P. v. Vitale

Filed 8/16/06 P. v. Vitale CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed.

Antonio Michael Vitale was found guilty of three counts of forcible rape and four counts of forcible oral copulation. It was found true as to counts 1 through 4 that Vitale committed a sex crime against multiple victims within the meaning of Penal Code,^[1] section 667.61, subdivision (c), and that as to counts 6 through 7 he committed a sex crime against multiple victims within the meaning of section 667.61, subdivisions (b), (c), (e). Vitale pled guilty to the possession of a controlled substance. He was found not guilty of kidnapping for the purpose of rape and it was found not true as to counts 1 through 4 that the victim was kidnapped within the meaning of section 667.61, subdivisions (a), (c), (e)(1).

Vitale was sentenced to a term of 30 years to life plus 12 years. He appeals, arguing the evidence was insufficient to support his convictions for rape and oral copulation, the trial court erred in refusing to instruct concerning the defense of good faith belief in consent and the trial court erred in admitting evidence of a prior sex act.

FACTS

A. Prosecution Case

1. Victoria S.

In the spring or summer of 2003, 16-year-old Victoria S. was working as a prostitute on El Cajon Boulevard in San Diego when appellant pulled up to her in a car and asked if she wanted a ride. She declined. Appellant asked again. Victoria got into his car. Victoria asked appellant to prove he was not a police officer. Appellant exposed his penis and Victoria touched it. The pair began driving to appellant's apartment in the Clairemont section of San Diego.

As they drove, Victoria mentioned she was 20 years old. Appellant told her he would pay more if she were younger. Victoria told appellant she was 16. Victoria asked appellant what he wanted her to do. She could not remember whether he wanted only oral sex or also wanted intercourse. After the two agreed on a price, appellant told Victoria he wanted to do something "different." Appellant told her it involved pulling her hair lightly. Victoria agreed. He then stated he wanted to spank her gently with a paddle.

This request frightened her and Victoria changed her mind about being with appellant. Victoria thought appellant looked "crazy." She told appellant she did not want to go with him and attempted to get out of the car. Appellant told her not to get out, she was coming with him. As the two drove, Victoria asked appellant questions about himself. Appellant stopped at an ATM machine and got money. Victoria did not leave because she was afraid of appellant.

When they arrived at the door to appellant's apartment, he told her to call him "pedophile" and threatened to hurt her if she did not. Victoria asked if he was proud of being a pedophile. Appellant stated he was. He then grabbed her by the neck and threw her into his apartment. Appellant told Victoria to act as if she was 12 years old. She was frightened and believed appellant was going to kill her.

As they sat on the couch, appellant told Victoria to orally copulate him. Victoria testified she was naked and believed she had undressed herself. Victoria asked appellant to wear a condom, he refused. Victoria did not want to orally copulate appellant. As she orally copulated him, he urinated in her mouth. When Victoria protested, appellant asked her if she could "handle that." Victoria replied she could not. Afraid of appellant, she then stated that she could. Appellant threw her to the floor and raped her. He then forced her to orally copulate him, choked her and again urinated in her mouth. Appellant pulled Victoria's hair and forcibly made her orally copulate him. When Victoria vomited, appellant stated: "Good girl. That's a good girl. I'll pay you more."

Appellant then pulled Victoria by the hair into a bedroom. He put her face down on the bed and struck her twice on the buttocks with a paddle. When she cried out in pain, appellant yelled at her and told her to say: "Yes, pedophile" or "No, pedophile." Appellant struck Victoria with the paddle twice more on her buttocks.

The pair returned to the living room where the two again had intercourse and where appellant again made Victoria orally copulate him. Appellant then made her get into a bathtub and yelled that she was "nothing but a 12-year-old little whore." Victoria asked appellant if he wanted to hurt her. Appellant replied: "Oh, bitch, you don't know."

As the two were leaving the apartment, Victoria, angry, asked appellant if he was going to pay her. He stated he already had. He had not. Appellant and Victoria walked to the underground garage and got into appellant's vehicle. Victoria asked appellant if he was a "cop." Appellant stated that he was. Victoria got out of the car and walked out of the garage. Appellant followed, asking where she was going. Victoria ran and eventually got a ride to another location where she called her friend Christopher Larkins. When he arrived, Victoria was crying and wanted to leave the area. She told Larkins she had been raped. Later, she showed him two or three paddle marks on her inner thigh and buttocks. She did not call the police because she was a runaway and a prostitute and thought the police would laugh at her.

2. Margaret W.

On May 23, 2003, 17-year-old Margaret W. was working as a prostitute on El Cajon Boulevard. Appellant drove up to her and offered her $300 if she would spank him with a paddle. There was no discussion of sex acts and no price was negotiated for such acts. It was not Margaret's intention that $300 would cover anything other than spanking appellant with a paddle. Margaret got into appellant's car and they drove to his apartment. In the apartment, appellant, who appeared angry, told Margaret he was a vice officer and that if she did not do what she was told, he would take her to jail. Margaret did not know whether appellant was a vice officer but thought he might be. She was afraid he might take her to jail. Margaret was fearful but did not try to leave because she thought appellant might hurt her. Margaret, afraid of appellant and believing she was in danger, began to sob.

Appellant told Margaret to say she was 15 years old every chance she had. As the two sat on the couch, appellant pulled down his pants and told Margaret to orally copulate him. Crying, Margaret complied. After a few minutes appellant put Margaret on the floor and orally copulated her. Margaret was afraid appellant might hurt or kill her. Refusing Margaret's request he use a condom, appellant placed his penis in her vagina. Margaret did not want to have intercourse with appellant. Appellant ejaculated on her chest. Margaret wiped the semen off her body with paper towels. Margaret, crying hysterically, ran from appellant's apartment.

Carolyn Quinn and her husband were driving by appellant's apartment building in Clairemont when they saw Margaret running out the structure, screaming that she had been raped and needed help. As Quinn tried to help her, Margaret, who was hysterical, pointed to appellant as he crossed the street and stated: "He raped me." Appellant replied sarcastically: "Yeah, I raped her." Over Margaret's objection, Quinn called the police.

3. Investigation

In response to the report of a rape, Officer Charles Dunnigan contacted Margaret near appellant's apartment. Margaret identified herself as Reyna Chanyet. She did so because she was underage and did not want her family to discover she was a prostitute. For the same reasons, Margaret falsely told the officer she had been forcibly abducted. Margaret took the officer to appellant's apartment where she stated she was sexually assaulted. Appellant was not there.

Later that night, officers, pursuant to a warrant, searched appellant's apartment. They found a paddle under the sofa and paper towels that testing later revealed contained semen that was likely that of appellant.

Officers returned to appellant's apartment on May 27, 2003. It did not appear he had returned after the May 23, 2003, search of the residence. On May 24, 2003, appellant called a coworker and asked for a place to stay for a few days. Appellant told his friend he had tried but failed to contact her the night before and had stayed at a motel. Appellant, without luggage, arrived at his friend's residence and slept three nights on her couch. During those three days, appellant did not go to work and did not want to drive his car.

A few days after she was assaulted, Margaret, without telling the officers her true name or that she was leaving, returned to her home in Florida. The investigation of the crime came to an end.

4. Later Investigation

As part of an unrelated investigation, Victoria S. told an officer she had been sexually assaulted and could show the officer the location were the crime occurred. On January 7, 2004, Victoria took the officer to appellant's apartment. The officer discovered that appellant was a suspect in the May 2003 sexual assault on Reyna Chanyet. The officer could not locate Chanyet.

On February 10, 2004, officers served a search warrant on appellant's apartment. They found a paddle, a police uniform and pornographic videotapes, including ones involving urination in the mouth of another person. The officers determined that appellant had been in Thailand from December 2003 until January 2004. The officers found a videotape labeled "Thai." The videotape showed appellant slapping a Thai woman, then forcing her to orally copulate him. After the woman vomited, appellant states: "Good girl."

On March 3, 2004, appellant telephoned Officer Daniel Vile who was investigating the cases. In a lengthy telephone interview, appellant discussed his sexual history and stated he had never committed a rape. Appellant also discussed his encounter with Margaret W. and in a less specific way his encounter with Victoria S.

When the officer asked appellant about Margaret running from his apartment, he stated she was unhappy because she did not get as much money as she wanted and because appellant was not willing to drive her back to El Cajon Boulevard. Appellant stated he wanted to have intercourse with Margaret without a condom. Margaret agreed but when the act was over she changed her mind and was angry she had sex without a condom. Appellant stated he gave Margaret no money. He stated: "She started being a bitch and yelling." He offered her money and told her to get out. She left the apartment, saying she had been raped. Appellant stated Margaret tore her own clothes and that he did not grab her in a hard manner.

At first it did not appear that appellant, who had been with many prostitutes, specifically remembered Victoria. Later in the interview, he seemed to recollect who the officer was referring to. He said there was no rape and he had not urinated in her mouth. In any case, appellant told the officer he had never asked a woman to call him pedophile. Later in the interview, appellant stated he had urinated in prostitutes' mouths. Appellant stated he had never paddled a prostitute.

In explaining why Victoria and Margaret would claim he raped them, appellant stated that prostitutes are crazy, the two women probably knew each other and decided, perhaps because of the bad end to his encounter with Margaret, to get him in trouble. Appellant also stated that on a number of occasions he told prostitutes he was a "reporter" for the police, that he had connections with the police and knew vice officers. Appellant stated he would tell the women that if they would "do this for me or that for me" he would make sure the police would leave them alone. Appellant speculated that when the women found out he had no such connections, they were angry because he had "conned" them.

Appellant also discussed the circumstances surrounding the videotape made in Thailand. Appellant stated the Thai woman was probably 25 to 29 years of age. She was a prostitute he paid to engage in sex acts. Appellant admitted slapping her and that being struck frightened the woman. Appellant noted he had not beaten the girl to death. When the officer stated the girl looked "pretty scared," appellant replied: "Well, yeah. And that was the whole idea."

In October 2004 an investigator for the district attorney's office determined that Reyna Chanyet was Margaret W. The investigator contacted Margaret in Florida. She related appellant's sexual assault on her and agreed to testify against him.

B. Defense Case

Appellant did not testify. Appellant's neighbor saw appellant in the apartment complex garage with a young woman on the May evening police would later come to the complex. The defense presumed this woman was Margaret W. It did not appear to appellant's neighbor that the woman was under duress. It was the defense position that all charged acts were consensual.

DISCUSSION

A. Sufficiency of Evidence

Appellant argues the evidence was insufficient to convict him of any of the forcible rape or forcible oral copulation charges. Appellant specifically argues both women initially consented to engage in sex acts in return for money. Conviction on the charges, therefore, could only be based on the women's withdrawal of that consent. Appellant contends there was no evidence supporting a finding that consent was withdrawn.

In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

1. Forcible Sex Crimes and the Defense of Consent

Appellant was convicted of rape within the meaning of section 261, subdivision (a)(2), i.e., an act of sexual intercourse "[w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another."

Appellant was convicted of forcible oral copulation within the meaning of section 288a, subdivision (c)(2), i.e., an act of oral copulation "accomplished against the victim's will by means of force, violence, duress menace, or fear of immediate and unlawful bodily injury on the victim or another person."

With regard to these crimes, consent is defined in section 261.6 as "positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."

An act of free will in this context means that a woman chooses to engage in a sexual act for some reason other than because of the application of force, violence, duress, menace or because of her fear of immediate injury to herself or another person. Free will is purely a state of mind. If a woman chooses to engage in a sexual act out of fear, the act is nonconsensual, i.e., it is against her free will.

This does not mean a defendant can be found guilty of a sex crime where the woman's lack of consent, i.e., cooperation in the absence of free will, is uncommunicated or not reasonably detectible. This is so because in order to find the element of force, duress, etc., -- but not the element of consent -- the victim's fear must not only be genuine but also reasonable (People v. Iniguez (1994) 7 Cal.4th 847, 856-857), and because it is a defense to a sex offense if the defendant reasonably and in good faith believed the woman engaged in the act consensually. (People v. Mayberry (1975) 15 Cal.3d 143, 153-158.) Nonetheless, free will is a wholly subjective matter. When focusing only on the issue of consent, the issue is the woman's state of mind.^[2]

With this understanding of the concept of consent, we address the issue of the sufficiency of the evidence supporting appellant's convictions.

2. Victoria S.

There is no doubt that at the beginning of their encounter Victoria freely entered into an agreement with appellant for sex in exchange for money. Victoria testified, however, that appellant's requests for unusual sex acts and his general demeanor frightened her. She told appellant she did not want to go with him and attempted to get out of his car. Appellant told her to stay in the car and that she was coming with him. When the two arrived at the door to appellant's apartment, he made additional unusual requests and threatened to hurt her if she did not comply. Appellant grabbed her by the neck and threw her into his apartment. Victoria testified she was afraid of appellant and did not want to engage in any of the sex acts that occurred.

There was sufficient evidence that Victoria's participation in sex acts with appellant was nonconsensual and did not occur as a result of her free will. She testified she did not want to engage in the acts. Sufficient evidence supports the truth of that claim. Her initial agreement with appellant notwithstanding the evidence suggests the nature of their relationship quickly turned from contractual to criminal. The basis for their relationship ceased to be their agreement and became appellant's assertion of authority. Appellant wanted Victoria to behave in particular ways and he did not rely on his promise of money to insure that behavior. Victoria stated she found appellant's demand for certain acts frightening. The evidence supports the conclusion Victoria did not want to be around appellant and certainly did not want to engage in sexual relations with him. There was sufficient evidence that the sex acts in appellant's apartment were nonconsensual.

3. Margaret W.

Margaret W. and appellant entered into an agreement in which for a payment of $300 she would spank appellant with a paddle. Her understanding of the contract was that the $300 was for paddling and did not include other sex acts. At his apartment appellant appeared angry. Appellant, not unlike the situation with Victoria, soon changed the nature of the relationship from one dictated by their agreement to one dictated by his assertion of authority and control. Appellant told Margaret he was a vice officer and that if she did not do what she was told he would take her to jail. Margaret was not sure if appellant was in fact a police officer but did know she was afraid of him and that she did not want to go to jail.

Margaret did not want to engage in sex acts with appellant. In her mind she had never agreed to such acts. The evidence supports the conclusion that her submission to appellant was not an act of free will and, thus, was not consensual.

B. Instruction on Mistaken Belief in Consent

Appellant argues the trial court erred when it refused his request to instruct the jury in terms of CALJIC No. 10.65, i.e., it is a defense to the charged offenses that the defendant reasonably and in good faith believed the victim voluntarily consented to engage in sexual activity.

In relevant part, CALJIC No. 10.65 states with regard to the crimes of rape and oral copulation by force and threats: "There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] [or] [oral copulation]. . . . Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]

"[However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief.]"

1. Background

At the instructions conference, defense counsel asked the trial court instruct in the terms of CALJIC No. 10.65. The prosecutor objected, arguing the evidence established forcible rape and there was no evidence of equivocal conduct. The prosecutor also argued a reasonable belief in consent instruction was improper when there was no testimony from the defendant asserting equivocal conduct. The prosecutor asked that if the instruction was given it include the paragraph stating that the equivocal conduct on which the defense was based could not be the result of force, etc., by the defendant.

The trial court noted the testimony of the victims and refused to instruct in the terms of CALJIC No. 10.65 because it believed there was no substantial evidence appellant "honestly and reasonably, but mistakenly, believed the victim consented to sexual intercourse."

2. Law

a. Requested Instructions

A trial court should give only those requested instructions that are supported by substantial evidence. In deciding whether substantial evidence exists, the trial court must accept as true the proffered evidence supporting the giving of the instruction whether or not it inspires belief. Doubt as to the sufficiency of evidence warranting the giving of an instruction should be resolved in favor of the defendant. Still, the test is not whether any evidence is presented, no matter how weak. The requested instruction need only be given where there is evidence from which a reasonable juror could conclude that the facts supporting the instruction exist. (People v. Petznick (2003) 114 Cal.App.4th 663, 677.)

b. Mistaken Belief in Consent

In People v. Mayberry, supra, 15 Cal.3d at page 155, the court held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. This is so because a reasonable mistake of fact is incompatible with the existence of wrongful intent.

"'The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 424.)

When, however, the evidence is susceptible of only two reasonable interpretations, one establishing actual consent and the other rape, there is no basis for giving a Mayberry instruction, i.e., when the defense evidence, if believed, supports a finding of actual consent and the prosecution evidence, if believed, precludes any reasonable belief in consent. (People v. Williams, supra, 4 Cal.4th at pp. 362-363.) Thus, a Mayberry instruction is only appropriate when the evidence reasonably reveals a middle ground, i.e., where there was no consent, but the defendant reasonably and in good faith believed the acts were consensual. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275-1276.)

B. Discussion

While appellant did not testify at trial, the record in the form of his telephone conversation with Officer Vile reveals much about his state of mind. It was appellant's position that he had never raped a prostitute. He made that specific claim with regard to Margaret W. He stated their encounter and activities were consensual. It was only after the events, perhaps because of Margaret's unhappiness with her payment, her anger with appellant's failure to use a condom or appellant's refusal to return her to where he picked her up, that she claimed, falsely, she was raped.

Margaret told a very different story. She stated that while she agreed to paddle appellant, the two never had an agreement for other sexual activity. At appellant's apartment, he appeared angry, told her he was a police officer and if she did not do what she was told he would take her to jail. Margaret testified she cried during the sexual activity. Margaret stated appellant refused her request to wear a condom.

If appellant's version of events was believed, Margaret unequivocally consented to sexual activity in exchange for money. If Margaret was believed, she was raped and forced to orally copulate appellant. There was no middle ground and the trial court properly refused to give a Mayberry instruction with regard to the charges relating to Margaret.

Appellant's recollection of his encounter with Victoria was less clear. It does appear he was able at least late in his conversation with Officer Vile to remember who Victoria was. In any event appellant stated he had never raped anyone, he had never asked anyone to call him pedophile and had never hit anyone with a paddle. The clear import of appellant's statement was that his entire encounter with prostitutes had been fully consensual and based on his agreement to pay for their services.

Victoria told a very different story. While she at first agreed to go with appellant for sexual activity, she soon became frightened, changed her mind and told appellant to let her out of the car. He told her no, took her to his apartment, threatened her if she did not call him pedophile and then grabbed her by the neck and threw her into his apartment. Victoria was afraid and believed appellant was going to kill her. As the sexual encounter began, appellant urinated in Victoria's mouth and later struck her twice with a paddle. Victoria's testimony was that she was raped and forced to engage against her will in other sex acts.

Appellant stated he had never raped anyone. If his statements to the officer were believed, the encounter with Victoria was consensual. If Victoria's testimony was believed, she was raped. There was no basis for a Mayberry instruction with regard to the charges related to Victoria.

C. Propensity Evidence

The prosecution played for the jury pursuant to Evidence Code section 1108 a videotape that depicted appellant engaging in various activities that the parties agreed occurred in Thailand. Appellant argues the trial court erred in admitting the tape. He contends the tape was not admissible under Evidence Code section 1108, should have been excluded under Evidence Code section 352 and in any case was admitted in violation of his rights to due process and confrontation.

As relevant here Evidence Code section 1108 states: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [¶] . . . [¶]

"(d) As used in this section, the following definitions shall apply:

"(1) 'Sexual offense' means a crime under the law of a state or of the United States that involved any of the following:

"(A) Any conduct proscribed by Section . . . 288a . . . of the Penal Code. [¶] . . . [¶]

"(E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person."

1. Background

a. The Tape

In his brief, appellant describes the events depicted on the tape as follows:^[3] "The tape begins with appellant and the young woman, conceded to be a prostitute, on a bed in what appears to be a hotel room. Both are naked. From the surroundings (and other scenes on the tape not presented to the jury) the incident appears to take place in Thailand.

"Appellant is first shown shaving the pubic area of the woman. He stops for a moment and slaps the woman on the side of her face.[^[4]] [The woman begins to cry.] He tells her 'look, look.' She starts crying and he tells her, 'Good girl.' She is seen holding the side of her face and asking appellant not to hit her. He assures her, and tells her 'Good girl.'

"Appellant sits on the edge of the bed and has the woman kneel down on the floor in front of him. He tells her to 'suck' and she orally copulates him. After a few minutes, he is seen holding the back of her head, forcing his penis all the way into her mouth. She begins to gag. Appellant is heard encouraging her, telling her she is pleasing him. He tells her to vomit. Appellant is heard to say 'Yes,' approximately 10 times. Appellant places the woman on the bed, out of the view of the camera. He tells her, 'Open your mouth,' and choking sounds are heard. Appellant again encourages the woman. A few minutes later, the woman is seen getting off the bed and appellant eventually does the same."

At trial a Thai speaking police officer testified that after the slap, when appellant would make requests of the woman, she would put her hand to her face and ask appellant not to slap her.

2. Arguments and Ruling

In its trial brief the prosecution sought the admission of the videotape pursuant to Evidence Code sections 1101, subdivision (b), and 1108. The prosecution argued the tape depicted a sexual assault and was admissible pursuant to section Evidence Code section 1108 to show appellant's propensity to assault prostitutes and, thus, the tape tended to support the credibility of the victims in this case. With regard to Evidence Code section 1101, subdivision (b), the prosecution argued the tape was admissible to prove appellant's motive or intent in committing the charged offenses. The prosecution argued the evidence was not more prejudicial than probative within the meaning of Evidence Code section 352.

By in limine motion appellant objected to the admission of the videotape. He argued the tape was not admissible pursuant to Evidence Code sections 1101, subdivision (b), or section 1108. Appellant argued the only reason the prosecution sought admission of the evidence was to show his propensity to engage in child molestation, an act with which he was not charged. Additionally, appellant argued that the acts depicted on the tape and those allegedly committed against the victims in this case were not sufficiently similar to allow admission of the tape. Appellant also argued the tape was inadmissible because section 1108 allows only the admission of evidence showing a "sexual offense." Without the testimony of the woman in the videotape, there was no evidence any of the depicted acts was an offense. Appellant finally argued the events on the tape occurred in Thailand and, therefore, it was inadmissible under section 1108 because any "sexual offense" depicted was not "a crime under the law of a state or of the United States" as require by the section.

The trial court viewed the tape and a hearing was conducted before trial on its admissibility. The defense made the arguments advanced in its motion and also noted that it was impossible for them to contact the woman in the videotape to determine what conduct was consented to and what was not.

The prosecutor argued the tape was admissible under Evidence Code section 1101, subdivision (b), to show a common plan or scheme involving appellant's use of violence and control in his dealings with prostitutes.

The trial court admitted the videotape.

The trial court instructed the jury in the terms of CALJIC No. 2.50.1, concerning the use of other crimes evidence to show a disposition to commit sexual offenses. The jury was told that evidence was introduced to show appellant engaged in an uncharged sexual offense. It was instructed that a sexual offense means a crime under the laws of a state or of the United States that involves any conduct made criminal by section 288a, subdivision (c)(2), i.e., forcible oral copulation. The jury was told the elements of that offense were set forth elsewhere in the instructions. The court explained: "If you find that the defendant committed a prior sexual offense, you may, but are not required, to infer that the defendant has a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused."

The court concluded its instruction on section 1108 by stating: "Unless you are otherwise instructed, you must not consider this evidence for any other purpose."

The jury was not instructed in the terms of CALJIC No. 2.50, concerning the use of other crimes evidence for the purpose of showing a common scheme or plan within the meaning of Evidence Code section 1101, subdivision (b).

In argument, the prosecutor noted appellant had slapped the Thai woman very hard. She noted that in the tape appellant caused the woman to gag, and as she vomited, appellant stated: "Good girl." The prosecutor observed that this was very similar to his conduct with Victoria S. and argued it showed appellant had a predisposition to such acts. The prosecutor then reminded the jury that appellant's attitude about hitting the Thai woman was that it was of no significance. The prosecutor argued this demonstrated appellant in general did not believe that hitting a prostitute had any relationship to whether she was consenting to sexual conduct. The prosecutor also argued that the similarity of the conduct supported Victoria S.'s credibility.

In his argument, defense counsel noted that it was impossible to bring the Thai woman to court. Counsel noted appellant stated in his taped conversation with the police officer that he paid the Thai woman. He noted that it was true appellant slapped the woman but after she told him not to slap her appellant did not hit her again. Counsel stated there was no evidence concerning the agreement between appellant and the Thai woman. Counsel told the jury not to convict appellant simply because of his "disgusting" behavior on the tape. He noted that in his conversation with the officer, appellant stated what he did on the videotape was not a crime in Thailand. Counsel stated that slapping the woman was a battery but the tape did not show a propensity to commit forcible oral copulation.

3. Discussion

Appellant raises multiple issues concerning the propriety of the admission of the videotape. It is necessary we address two of those contentions: first, that admission of the tape denied appellant the right of confrontation and due process; and second, the evidence was insufficient to prove that the conduct depicted in the videotape was a sexual offense within the meaning of section 1108.

a. Confrontation and Due Process

Appellant argues because the prosecution did not offer the testimony of the woman in the videotape, he was denied his right under the Sixth and Fourteenth Amendments to the United States Constitution to confront the witnesses against him. The right of confrontation does not apply to non-testimonial evidence. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411-1413; People v. Purcell (1937) 22 Cal.App.2d 126, 131.) The videotape was non-testimonial and playing it did not deny appellant his right of confrontation.

Appellant argues the admission of evidence pursuant to Evidence Code section 1108 denied him due process in that it admits highly prejudicial evidence and reduces the prosecution burden of proof. Our Supreme Court has held the section does not have these effects and does not deny due process. (People v. Falsetta (1999) 21 Cal.4th 903, 916-922.)

b. Evidence of Sexual Offense

We need not reach appellant's arguments that the evidence was insufficient to prove that his conduct in the videotape was a sexual offense within the meaning of Evidence Code section 1108 and that, therefore, the trial court erred in admitting it since we conclude the admission of the tape did not prejudice appellant. Both victims made immediate and strong complaints that they had been sexually assaulted. As to both victims, the evidence against appellant was strong. Each victim corroborated appellant's acts with respect to the other. The victims, who did not know each other, testified to very similar physical and emotional treatment by appellant. As to each of them, he threatened punitive measures if they did not go along with his commands. He told both that he was a law enforcement officer. He told Victoria he was a "cop." He told Margaret he was a vice officer. During the assaults of both women, he insisted they refer to themselves as being much younger. In the case of Margaret, he insisted she say she was 15 years old "every chance she had." He told Victoria to act as if she was 12 years old. He referred to her as a "12-year-old whore." Neither woman was paid, leading to a reasonable conclusion that these were not consensual encounters. The videotape, while disgusting, was not so shocking or probative that it can be said to be reasonably probable that

without it, a result more favorable to appellant might have occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] A non-standard instruction was given in this case, stating: "A person who initially consents to an act of sexual intercourse has the right to withdraw that consent, provided that withdrawal is communicated to the other person. It is immaterial at what point the withdrawal occurs as long as that withdrawal is communicated to the other person. If the other person continues the sexual act by force, violence, duress, menace or fear of immediate and unlawful bodily injury despite the withdrawal of consent, the crime of rape is committed."

It is unclear who requested the instruction. It appears to be based on language in In re John Z. (2003) 29 Cal.4th 756. In re John Z., however, was not a case dealing with the general issue of consent in sex crime cases. It dealt rather with a specific problem of consent, i.e., whether a rape occurs when during apparently consensual sexual intercourse the woman expresses an objection to continued intercourse and the perpetrator does not desist.

A split of authority was resolved by In re John Z. In People v. Vela (1985) 172 Cal.App.3d 237, 245, the court found no rape occurs when consent is withdrawn after initial penetration. The court in People v. Roundtree (2000) 77 Cal.App.4th 846, 851, held to the contrary. The court in In re John Z. agreed with Roundtree. The court in In re John Z. quotes with approval language from the lower court opinion in the In re John Z. case, stating: "'[F]orcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he ignores it.'" (In re John Z., supra, 29 Cal.4th at p. 762.)

In discussing the facts before it, the court in In re John Z. concluded substantial evidence showed that the victim withdrew her consent "and, through her actions and words, communicated that fact to defendant." (29 Cal.4th at p. 762.) The court stated that no one in the defendant's position would have believed the victim continued to consent to the act. In support of the legal significance of the defendant's perception, the court cited People v. Williams (1992) 4 Cal.4th 354, 360-361, and CALJIC No. 10.65, both deal not with the general concept of consent but rather with the Mayberry defense, i.e., no criminal intent exists when the defendant reasonably and in good faith believes the other person has consented to engage in sexual activity. (See ante.)

The court in In re John Z. was not attempting to elucidate broad general rules concerning the concept of consent or the need for the communication of the withdrawal of consent; it was rather resolving a specific case where there was an unequivocal withdrawal of consent after consensually intercourse had begun. As we have noted above, while the communication of a state of mind and the reasonable perception of consent may be crucial to guilt in a particular case, consent as defined in the Penal Code is purely a question of state of mind and is unconcerned with communication or perception.

The trial court's special instruction in this case concerning the requirement for a communicated withdrawal of consent was a misstatement of the law.

^[3] The Attorney General's description does not materially differ. In brackets we provide certain additions.

^[4] The trial judge characterizes the slap as hard and says the woman was very fearful.