P. v. Goods





Filed 3/2/11 P. v. Goods CA2/1








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. GREGORY GOODS, Defendant and Appellant.

B218405 (Los Angeles County Super. Ct. No. TA103770)

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur M. Lew, Judge. Affirmed as modified with directions.
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Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Gregory Goods of one count of kidnapping to commit rape, two counts of rape, one count of felony false imprisonment and two counts of forcible oral copulation. On appeal, Goods contends the court erred by belting him to a chair during trial, admitting evidence of uncharged rapes and a kidnapping, admitting hearsay evidence of a witness’s prior inconsistent statements and miscalculating his presentence credits. We will add an additional day of custody credit to Goods’s sentence of 63 years 8 months to life and affirm the judgment as modified.
FACTS AND PROCEEDINGS BELOW
A. Order Restraining Goods In His Seat
Prior to the start of the trial, the court ordered that Goods be strapped into his chair by a belt that would not be visible to the jury. The court explained it made this order because in a pretrial hearing in another courtroom Goods had argued with the court about whether his handcuffs should be removed and in the course of that argument Goods “started to get up, and he wouldn’t sit down at the request of the bailiffs, and they had to forcibly restrain him to have him seated.” After the court announced its intention to restrain Goods to his chair, Goods began to argue with the court over that decision despite the court and his own counsel directing him to “not speak out” and “keep quiet.” The court noted that Goods’s conduct “in the brief time that we’ve been together, [shows] he has a tendency to not respect the court and the court staff’s instructions.” The court added that while it was making the statement quoted above Goods appeared to be starting to get up from his chair and had to be told by the bailiff to sit back down. During the entire trial, Goods was belted into his chair at the counsel table and on the witness stand.
B. Evidence Of The Charged Crimes
1. Testimony of S.R.
On May 15, 2008, at approximately 2:00 p.m., Goods approached S.R. while she was using a payphone on Figueroa Street and asked her if she was interested in posing for a magazine. S. said she was and voluntarily got into Goods’s car to further discuss the matter. Once she was in the car, however, Goods drove away without S.’s agreement. When S. attempted to get out of the car she found the passenger door locked, and when she attempted to attract the attention of the driver of another car Goods told her to “chill” or he would shoot her. After Goods parked his car in an alley he used the threat of a gun and a box cutter to force S. to give him her jewelry, to undress and to engage in intercourse and oral copulation.
S. initially told police that three Black males kidnapped her from the Blue Line Metro Station in Long Beach, forced her into a red Nissan at gunpoint and drove her to an alley. She later changed her story and told the police the same version of events as her testimony at trial. Although S. denied that she was a prostitute, she admitted that Goods had picked her up in a high prostitution area.
2. Testimony of L.W.
On May 21, 2008, at approximately 7:30 a.m., Goods drove along side L.W. as she walked down Long Beach Boulevard and asked her if she was “dating.” L. said she was. Goods agreed to pay L. $200 to go on a “date” with him and L. got into his car. Goods parked in an alley. He asked L. if she had any money. When she answered “no,” he searched her backpack and then ordered L. to undress. She complied. He ordered L. to perform oral sex and again she complied. Goods then had sexual intercourse with L. twice against her will. After the second time, Goods told the naked L. to get out of the car, which she did. Goods threw her clothes out the car window as he drove away. He did not pay L. the $200.
L. testified that she was working as a prostitute at the time she met Goods and that she agreed to “perform sexual activities with him” for $200. She admitted that she initially gave the police a false name but explained that she had done so because she had an outstanding warrant for prostitution and didn’t want to be arrested. She also admitted that she had lied about where Goods picked her up but explained that she had done so because she did not want the police to know in what area of town she was working.
C. Evidence of Uncharged Crimes
1. F.S.
F.S. testified that in 1990 Goods was her boyfriend. He picked her up at the airport one night and drove her to his apartment. F. got into bed with Goods wearing just panties and a T-shirt but told him she was menstruating and did not want to have sex with him that night. Goods removed F.’s tampon and forced her to have intercourse with him by shoving his penis into her vagina. During intercourse Goods held a pillow over F.’s face for about 20 seconds.
2. Darlene B.
Darlene B. testified that in 1994 Goods approached her as she stood at a bus stop at approximately 3:00 a.m. Goods asked Darlene if she wanted a ride. Darlene replied “yes” and got into Goods’s car. Darlene told Goods she wanted to go to the corner of El Segundo Boulevard and Figueroa Street. When Goods drove past El Segundo Boulevard Darlene asked him: “What are you doing‌” Goods’s answer was to put a knife against Darlene’s neck and tell her to “Shut the fuck up.” Goods then drove into the parking lot of a warehouse and stopped the car. He asked Darlene if she had any money and she answered “no.” He grabbed Darlene’s purse and searched it. When Goods finished rummaging in Darlene’s purse, he told her to undress. Darlene was just starting to remove her boots when she saw a police car passing by. She reached over and started honking the horn of Goods’s car. When the police pulled into the parking lot Darlene jumped out of Goods’s car, and Goods started screaming that Darlene was a prostitute. The police searched Goods’s car and found a knife, which Darlene identified as the one Goods had held against her neck. Darlene told the police she had not agreed to have sex with Goods for money.
3. Nina S.
The prosecution questioned Goods’s wife, Nina S., about three incidents involving her and Goods.
The first incident occurred in February 1993, when, according to a police report, Nina claimed that Goods kidnapped her and forced her to drive him to a bank to get $20. When Nina testified that she did not remember this incident, the prosecutor tried to refresh her recollection by giving her the police report to read. After reading the report, Nina testified that she remembered driving to the bank with Goods who was trying to get $20 from her that she did not want to give him. She denied telling the police that Goods “kidnapped” her. The police report was not admitted into evidence.
The second incident related to an incident on April 23, 1993, before Goods and Nina were married. Again, Nina claimed that she did not recall this incident. The prosecutor then called police officer David Salcedo who testified that, although he had no independent recollection of the incident, and reading his report did not refresh his recollection, he had written the report while the matter was still fresh in his mind. Salcedo’s report related Nina’s statements to him. Goods arrived at Nina’s house about 6:00 a.m. and asked to come in to take a shower and sleep. Once inside the house, Goods slapped Nina on the cheek, grabbed her hair and said “‘I’m going to treat you like a whore.’” Goods pulled Nina into the bedroom, punched her in the stomach and threw her on the bed. He ordered her to undress. When she began to cry Goods put a towel over her mouth. Goods climbed on top of Nina and told her to spread her legs. When Nina resisted Goods told her to “‘open wide or I’m going to punch you in the face.’” Afraid of another beating, Nina stopped resisting. Goods had sexual intercourse with her and ejaculated on her face. Later, Goods told Nina that he “‘wanted some more.’” He grabbed Nina who was lying on the bed and again had forcible intercourse with her.
The third incident occurred in June 2005. Nina testified that she called the police after Goods dragged her across the floor by her hair, beat, choked and threatened her. Goods does not challenge the admission of this evidence so we discuss it no further.
D. Defendant’s Evidence
Goods denied raping S. and L. and forcing them to engage in oral sex with him. He claimed both women were prostitutes who willingly engaged in sexual acts with him when they thought they were going to be paid but fabricated charges of rape and kidnapping after a dispute arose over payment. Goods also testified that Darlene was a prostitute who willingly got into his car to have sex for money but became angry and flagged down the police when he changed his mind and refused to pay her for her time with him.
With respect to the alleged offenses involving Nina, Goods denied raping or assaulting Nina in 1993 but admitted being arrested at the bank on a charge of kidnapping.
Finally, Goods denied forcing F. to have sex with him. He testified that she fabricated that story because she was angry with him for seeing another woman.
E. The Verdict and Judgment
The jury convicted Goods of kidnapping to commit rape, forcible rape and forcible oral copulation of S. It convicted Goods of felony false imprisonment (as a lesser included offense of kidnapping), rape and forcible oral copulation of L. The jury also found true as to S. the allegations that Goods personally used a knife, kidnapped the victim and committed the offenses against more than one victim. It found not true the allegation that Goods personally used a firearm. The jury found true as to L. that Goods committed the offenses against more than one victim and not true that he kidnapped the victim.
The court sentenced Goods to a term of 63 years 8 months to life. He received 503 days of custody credits.
DISCUSSION
I. SEAT RESTRAINT
Over Goods’s objection he was tethered to his chair at counsel table throughout the trial, and in the witness box while testifying, in what he refers to as a “stealth belt” and what the court described as a non-electrical belt that is “covered up and connects him with the chair that he is seated in.” He contends that this restraint violated his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. We disagree.
The court’s discretion to order a defendant’s restraint is not limited to cases of violent conduct but may be based on “nonconforming behavior.” (People v. Duran (1976) 16 Cal.3d 282, 291.) We need not, however, decide whether the court erred in restraining Goods because Goods concedes, and we agree, that the use of a restraint is harmless error if there is no evidence that the jury saw the restraint or that it interfered with the defendant’s right to testify or participate in his defense. (People v. Combs (2004) 34 Cal.4th 821, 838.) Goods does not contend that the belt interfered with his testimony or participation in his defense. Nor does he contend the jurors saw the belt that restrained him in his chair at the counsel table or on the witness stand. Rather, he argues that the jury must have deduced that he was being restrained because (1) he did not stand when the jurors entered and exited the courtroom as is traditional in California courtrooms, (2) unlike other witnesses, when he testified he was already seated in the witness chair as the jury entered the courtroom and he remained seated until they left, and (3) unlike with other witnesses, a bailiff stood “fifteen feet” from the witness box while he was testifying.
Goods’s argument fails for three reasons. He provides no citation to the record to support his claim that the jury saw all the other witnesses walk to and from the witness stand. (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1 [failure of a party to cite to the record permits appellate court to disregard the argument].) Furthermore, even if the record did show that Goods’s failure to stand for the jury differed from the conduct of other trial participants, he fails to explain why we should infer that the jurors noticed this difference or, if they noticed it, that they drew the conclusion that Goods must be belted to his chair. Similarly, the same lack of connection applies to the bailiff’s location during Goods’s testimony. Finally, even if the court erred in restraining Goods and the jury knew he was restrained it is not reasonably probable that an unrestrained Goods would have obtained a more favorable verdict for the reasons we explain below in considering the testimony against him. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. ADMISSIBILITY OF EVIDENCE OF UNCHARGED CRIMES
Prior to trial, Goods moved unsuccessfully to exclude the evidence of his prior uncharged crimes against Darlene, F. and Nina. On appeal, Goods acknowledges that evidence of his uncharged sex offenses was presumptively admissible under Evidence Code section 1108^[1] but argues that this evidence should have been excluded under section 352 because it was more prejudicial than probative. He also argues that evidence of the uncharged sex crimes and Nina’s kidnapping showed that those offenses were not sufficiently similar to the charged offenses to be admissible under section 1101 to prove intent or lack of belief in consent and that their admission was unduly prejudicial under section 352. We agree that the offenses against F. and Nina were too dissimilar to be admitted to show propensity, intent or lack of belief in consent but we conclude the admission of that evidence was harmless error under People v. Watson, supra, 46 Cal.2d 818.
A. Admissibility Under Section 352
Section 1108 authorizes the admission of evidence of prior sex offenses to establish a defendant’s propensity to commit the charged sexual offense.^[2] (People v. Mullens (2004) 119 Cal.App.4th 648, 666.) But the admission of such propensity evidence is subject to section 352 which specifies that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In People v. Falsetta (1999) 21 Cal.4th 903, our Supreme Court upheld the constitutionally of section 1108 against a due process challenge concluding that the weighing process of section 352 would be a sufficient safeguard against undue prejudice from such propensity evidence. In reaching this conclusion the court set out the criteria that a trial court should consider in ruling on the admissibility of evidence of prior sexual offenses. “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
We review rulings under section 352 for abuse of discretion. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.) “A trial court’s exercise of its discretion under section 352 must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) A trial court’s erroneous exercise of discretion under section 352 is tested for prejudice under the standard of People v. Watson, supra, 46 Cal.2d at page 836 [i.e. whether it is reasonably probable that the defendant would have obtained a more favorable result in the absence of the error].
Goods contends the court abused its discretion in admitting evidence that he committed uncharged sex offenses to show his propensity to commit such crimes. He maintains the evidence should have been excluded because it was too remote in time, too dissimilar to the current charged offenses, highly inflammatory and, because Goods had never been punished for those crimes, there was a danger the jury would use the present case as a means of imposing that punishment. We agree as to F. and Nina but not as to Darlene.
The evidence of the attempted rape of Darlene was highly probative on the issue of propensity. Goods picked up Darlene from the street, drove her to a remote location, forced her to remain in the car, used a knife to control her, ordered her to undress and attempted to rob her before engaging in sex. In the present case, the evidence showed that Goods picked up S. and L. from the street, drove them to alleys, forced them to remain in the car, used a weapon to control S., and robbed S. and attempted to rob L. before raping them.
Although the crimes against Darlene occurred 14 years before the crimes against S. and L., the passage of time generally goes to the weight of the evidence, not its admissibility. (People v. Taylor (2001) 26 Cal.4th 1155, 1173.) Moreover, as the court explained in affirming the conviction in People v. Branch (2001) 91 Cal.App.4th 274, 285 (30-year gap between offenses): “[S]ignificant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” Here, the similarities between the attempted rape of Darlene and the rapes of S. and L. “balance out the remoteness” of the prior offense.
Goods also contends that because he had not been convicted of the uncharged crimes, the jury would be inclined to find him guilty of the charged crimes as punishment for the prior crimes against Darlene even if it didn’t believe him guilty beyond a reasonable doubt of the charged crimes. And further, this factor in combination with the other circumstances supporting undue prejudice, required the court to reject admission of the evidence of uncharged crimes. We disagree. There was strong evidence of Goods’s guilt in this case including the similarities in the methods employed in the crimes against Darlene, S. and L. All three crimes involved sexual intercourse or attempted sexual intercourse without the victims’ consent through use of force, violence, duress or menace. The strength of the evidence that Goods committed the current offenses allays any concern that the jury may have convicted Goods of the present crimes only in order to punish him for past offenses.
Goods argues that the rapes of F. and Nina are not only remote in time, but they bear little similarity to the charged offenses and are highly inflammatory. According to Goods, S. and L. were prostitutes he picked up off the street but F. and Nina were women with whom Goods had long-term relationships, eventually marrying Nina. Goods notes that he did not kidnap F. nor did he rape her or Nina in an alley or remote parking lot. He did not rob them or use a weapon to force them to have sex with him. Furthermore, Goods argues, the evidence that he removed F.’s tampon and forced her to have intercourse with him while he held a pillow over her face as she cried was highly inflammatory as was the evidence that he assaulted Nina prior to raping her.
We agree that the evidence of the rapes of F. and Nina were too dissimilar to the alleged sexual offenses against S. and L. to be admissible as propensity evidence. The exclusion of this evidence, however, would not have led to a result more favorable to Goods. (People v. Watson, supra, 46 Cal.2d at p. 836.) S. and L. presented compelling testimony against Goods. Although L. and S. had never spoken and did not know each other, the incidents they described closely mirrored each other. Further, the properly admitted evidence of Darlene’s kidnapping and attempted rape (see discussion, ante, p. 10) provided strong evidence to support the inference that Goods kidnapped S. and took her by force to a location where he intended to rape her.
B. Admissibility Under Section 1101 And The Hearsay Rule
In Part A, above, we explained why the evidence regarding Darlene was properly admitted under sections 352 and 1108, why the evidence regarding F. and Nina should have been excluded, and why the failure to do so was harmless error. That analysis makes it unnecessary to discuss the admissibility of this same evidence under section 1101.^[3]
III. CUSTODY CREDITS
Goods maintains, and the People agree, that he is entitled to one additional day of presentence custody credit. We will order the judgment modified to reflect that additional day.
DISPOSITION
The judgment is modified to award the defendant one additional day of presentence credit and is affirmed as modified. The cause is remanded to the trial court with directions to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.


ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.
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