PEOPLE v. EARLE

Filed 3/19/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUE FROM PART I.

Further, this theory begs the only real question in the case, which is whether defendant was the assailant. The proposed inference of intent necessarily supposes that he was; its necessary premise is that the indecent exposure and the assault were committed by the same person, i.e., defendant. But jurors were given many quite substantial reasons, discussed in detail below, to doubt this premise. At the same time, they had no reason at all to doubt that the purpose of the assault, whoever committed it, was to rape Gloria. According to her account of the attack, which went entirely unchallenged at trial, the assailant all but told her he intended to rape her. After expressly denying that he wanted money, he told her to stop struggling and to allow [herself] to have it done . . . . She described him as furiously stymied by the obstruction of her apron and fairly tight pants . . . .[1] Unless the jury simply refused to believe her accountin which case it would have acquitted defendant without worrying about the assailants intentthere could be no doubt about the issue. The prosecutor told the jury as much early in his argument: [T]heres no questionand . . . nothing to be disputed that the victim was assaulted by a person with the intent to commit rape. He soon repeated the point: Theres no question that the perpetrator was assaulting her with the intent to commit rape. We agree, as would any reasonable juror. Intent simply was not an issue on which a reasonable juror could entertain any doubtat least, not without doubting the entire prosecution case.

This is not to suggest that a defendant can limit the prosecutions evidence merely by  not putting things at issue.  (People v. Thornton (2000) 85 Cal.App.4th 44, 48.) A mere failure to contest an element of the prosecutions case cannot by itself bar evidence to prove that element. But before potentially prejudicial evidence can be admitted to show an element of the offense there must be some concrete basis to suppose that the that the jury might fail to find that element beyond a reasonable doubt. (See People v. Balcom (1994) 7 Cal.4th 414, 423 [because the victims testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendants intent, evidence of defendants uncharged similar offenses would be merely cumulative on this issue Accordingly, . . . the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence]; People v. Thornton, supra, 85 Cal.App.4th at p. 49) This was precisely the case here: even if the indecent exposure had possessed some logical tendency to establish the intent element of the assault chargewhich, again, it did notits probative value on that point was wholly theoretical, and it would have been a patent abuse of discretion to admit evidence of the indecent exposure for this purpose in a separate trial of the assault.

The dissent attempts to save this rationale by exploiting ambiguities in the term intent. This approach is encapsulated in the assertion that [t]he two offenses have very similar intent elements. (Dis. opn. post, p. 9, fn. 4.) This is true, if at all, only in some lay sense, and an abstract, impressionistic one at that: paradigmatically, both crimes involve intentional sexual imposition upon, and at least potential insult to another, albeit psychological in one case and physical in the other. But if that gives them very similar intent elements, then the same may be said of embezzlement and armed robbery. Indeed, all sex crimes have very similar intent elements, and the point the dissent is attempting to refutethat the two crimes here shared nothing but their sexual characteris instead reinforced.

The dissents blurring of the concept of intent is also reflected in its assertion that the indecent exposure was relevant to intent because it showed . . . defendants sexual intent toward lone female strangers. (Dis. opn. post, at p. 17.) But as the dissent goes on to acknowledge, the requisite mental state for the assault charge was intent to commit rape, not lewd sexual intent toward female strangers. (Dis. opn. post, at p. 17; see People v. Trotter (1984) 160 Cal.App.3d 1217, 1222, quoting People v. Cortez (1970) 13 Cal.App.3d 317, 326 [Courts recognize a distinction . . . between the intent to rape and lewdness, indecency and lasciviousness either alone or accompanied by an intent to seduce ].) The proper use of the term intent in the present context is the mental elementthe mens reathat the prosecution is required to prove in order to make a prima facie case of guilt. (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted [Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense].) The mens rea for ordinary assault is a general intent to commit an act that by its nature would directly and probably result in the application of force to someone . . . . (CALCRIM No. 914; see People v. Colantuono (1994) 7 Cal.4th 206, 214.) Assault with intent to commit rape further requires, as the name says, the specific intent to commit rape, i.e., sexual intercourse by force. (People v. Trotter, supra, 160 Cal.App.3d at p. 1224; see CALCRIM No. 890.) These elements bear no similarity to the mental elements for indecent exposure, which are that (1) the defendant acted willfully ( 314(1)), meaning essentially that he knew he was exposing his genitals (see In re Smith (1972) 7 Cal.3d 362, 364 (Smith)); (2) he intended by his conduct to direct public attention to his genitals (id. at p. 366); and (3) he acted for purposes of sexual arousal, gratification, or affront (ibid., fn. omitted).

The dissents attempt to equate these quite distinct mental states may be understood to rest on some conceptual or symbolic parallel between indecent exposure and rape in that a paradigmatic act of indecent exposuresuch as the one shown hereinvolves a kind of assault upon the victims sensibilities. Perhaps the dissent means to imply that indecent exposure typically entails the infliction, or intent to inflict, a mental or emotional outrage or insult to the victim, which conceptually resembles the physical insult or outrage inflicted on the victim of a sexual assault. But this kind of symbolic comparison simply will not substitute for a focus on the actual elements of the offenses. Moreover, while insult is a common feature of the paradigmatic indecent exposure, it is not a necessary element of the crime. A purpose of affront[ing] the victim may satisfy part of the mens rea, but it is not necessary; the crime is also complete if the defendant acts for purposes of his own or the victims (presumably imagined) arousal or gratification, whether or not he intends to cause affront or believes he is doing so. ( 314(1).)

The indecent exposure was simply not relevant to show the intent required for the assault charge, and could not be admitted for that purpose.

C. Motive

Intermingled with respondents argument on the issue of intent is the suggestion that the indecent exposure would have been admissible to show a sexual motive for the assault. Properly understood, the motive for a crime is never an issue in its own right, but may operate as a basis to establish identity on the rationale that the defendants possession of a reason (motive) to commit the charged offense increases the likelihood that he did so. The concept is familiar to anyone who has read or watched a detective story. One who stands to inherit money from a murder victim will routinely come under suspicion for the death, and if he is charged, the fact of his expectancy may be offered in court as circumstantial evidence that it was indeed he who killed the victim.

Here the attempt to justify the trial courts ruling on such a theory fails because defendants commission of an indecent exposure simply could not show, without more, a motive to commit rapeexcept, yet again, through the undemonstrated premise that one who commits indecent exposure also wants, needs, or wishes to commit rape. Nor does the dissent appear to defend this theory of admissibilityexcept by blurring motive and intent, as in the assertion that the quintessential element of sexual assault is the sexual motivation for the assaultthe intent to commit rape. (Dis. opn. post at 9.) But motive is a much broader concept than intent; it is not an element of the offense at all; and it is relevant only insofar as it tends circumstantially to increase the likelihood that the defendant, rather than another, committed the charged offense. Here no one questions that both crimes were sexually motivated. But many people other than defendant engage in some conduct for sexual motives. The question is inwhat conduct is defendant sexually motivated to engage? On this record, evidence of the indecent exposure had no tendency at all to show that he had a motive to commit sexual assault. The proposed inference of motive is no more logical than saying, Joe manufactured methamphetamine, therefore he had a motive to steal a car. Without more, such a statement is simply a non sequitur.

D. Identity

Neither respondent nor the dissent makes any attempt to defend the use the prosecutor actually made of the indecent exposure evidence, which was to distract the jury from weaknesses in his own case on the issue of identity. Indeed the prosecutor explicitly cited the indecent exposure as modus operandi evidence, an implicit claim that it showed defendant, as opposed to someone else, to have been Glorias assailant. He also claimed that the indecent exposure furnished a substitute for DNA in tying defendant to the assault.

The evidence was patently irrelevant for any such purpose. Evidence of uncharged misconduct has long been admissible to prove identity when the uncharged misconduct and the charged offense . . . share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Ewoldt, supra, 7 Cal.4th at p. 403, italics added; accord, People v. Matson, supra, 13 Cal.3d at p. 40; Soper, supra, ___ Cal.4th at p. ___ [2009 Lexis 1100, at p. *30].) But such an inference depends upon the presence of distinctive marks that are shared by the uncharged and charged crimes. (People v. Thornton (1974) 11 Cal.3d 738, 756, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)  [T]he inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.  (Ibid., , quoting People v. Haston (1968) 69 Cal.2d 233, 245-246; italics added.)  The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.  (Ewoldt, supra, 7 Cal.4th 380, 403; Soper, supra, ___ Cal.4th at p. ___ [2009 Lexis 1100, at p. *30].)

Similarly, an inference of identity can be drawn from a distinctive modus operandi, but again, to be admissible on this basis, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes. (People v. Bradford (1999) 15 Cal.4th 1229, 1316.) These common marks must be distinctive rather than ordinary aspects of any such category of crime. They must be sufficiently distinctive that they bear defendants unique signature. Reaching a conclusion that offenses are signature crimes requires a comparison of the degree of distinctiveness of shared marks with the common or minimally distinctive aspects of each crime. (People v. Bean (1988) 46 Cal.3d 919, 937; italics added.)

Obviously the two incidents here share no marks distinguishing them from other indecent exposures or other sexual assaults. Both involved taking advantage of unwilling victims, but this is true of all attempted rapes and many, if not the vast majority of, indecent exposures. Certainly this feature is not so distinctive as to set these two crimes apart. Much the same is true of the prosecutors argument to the jury that the crimes had the same perpetrator because the offender in both cases sought out a woman that was alone while he was using his car. Elsewhere he described the perpetrator as singling out a victim using his own vehicle[,] [a]nd when she tried to escape, he followed her. Ginas somewhat confusing testimony could be understood to mean that defendant made some attempt to follow her after initially exposing himself, but there is no evidence that the assailant attempted to follow Gloria after she escaped his grasp and fled. This leaves the commonplace facts that the offender in both cases used an automobileinstead of traveling to and from the scene by foot, bicycle, or helicopterand that he chose a victim who was alone rather than one in a position to readily secure aid. The choice of an isolated victim does not remotely approach the level of distinctiveness required to support an inference of identity. By their very nature, most sex crimes are committed in seclusion without third party witnesses or substantial corroborating evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 915; see People v. Thomas (1978) 20 Cal.3d 457, 468 [noting the circumstances of privacy and seclusion surrounding the commission of most sex offenses], impliedly overruled on another point in People v. Tassell (1984) 36 Cal.3d 77, 87-89, & fn. 8, as stated in People v. Alcala (1984) 36 Cal.3d 604, 634, fn. 18.) Nor does anything distinctive appear in the mere use of a vehicle, particularly where, as here, it is not the same vehicle or used in the same manner. The indecent exposure was committed from within the perpetrators vehicle; he never left it. The assailant, in contrast, parked away from the victim, snuck up on her, and carried out the attack inside her vehicle. The only feature the two crimes really had in common, aside from their sexual character, was that the perpetrator traveled to and from them by car. Given the obvious advantages of a private automobile for this purpose, it is hardly surprising that innumerable cases share the same feature. (See People v.Bean, supra, 46 Cal.3d at p. 937 [several common features, including taking and abandoning victims car, lacked sufficient distinctiveness to establish modus operandi].)

The two crimes had no distinguishing characteristics in common.[2] They simply were not similar. They did not even involve the same, or notably similar, actsa mark that may ordinarily be taken for granted in cases involving the use of uncharged crimes to prove identity. It is one thing to find a man guilty of armed robbery based on his previous commission of that offense. But to base such a finding on an act of shoplifting passes beyond speculation into the realm of hunch or fancy. Here the jury had no rational basis to infer from the facts surrounding the indecent exposure that it was defendant and not someone else who committed the far more serious, violent offense of sexual assault, on another occasion, under entirely different circumstances. The indecent exposure was simply not relevant to any issue in the assault case and could not have been introduced in evidence in a separate trial of that case.

E. Propensity

The only colorable basis for admitting evidence of the indecent exposure in a hypothetical separate trial of the assault would have been that it was admissible under Evidence Code section 1108 to show that defendant had a propensity or predisposition to commit sexual assault. The prosecutor alluded to this theory, respondent defends it, and the dissent endorses it in passing. In our view it presents two distinct questions: whether Evidence Code section 1108s exception to the rule against propensity evidence extends to proof of a wholly different crime; and whether, assuming it does, evidence of defendants indecent exposure had any tendency in reason, on the evidence before the jury, to establish such a predisposition. We do not finally reach the first question, but we answer the second with a resounding negative.

It is of course the general rule that evidence of uncharged misconduct is not admissible to prove a predisposition to such conduct, even when it would otherwise be relevant to establish misconduct on a specific occasionsuch as the occasion of a charged criminal offense. (See 1101, subd. (a).) Although the rule is codified in rather indirect terms, its gist is that parties in both civil and criminal cases are generally prohibited from introducing evidence of a general character for good or bad conduct, or a predisposition or propensity to engage in conduct of a particular kind, to show conduct on a particular occasion. (See ibid.) Evidence Code section 1108 creates an exception to this rule, though again the point is expressed rather obliquely: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (Evid. Code, 1108, subd. (a).)

According to its sponsor, the statute was intended to provide explicitly that evidence of other offenses within the scope of the section is not subject to 1101s prohibition of evidence of character or disposition, and thereby to permit[] courts to admit such evidence on a common sense basiswithout a precondition of finding a non-character purpose for which it is relevant . . . . (Letter by Assemblyman Rogan re Assem. Bill No. 882 (1995-1996 Reg. Sess.) published in 2 Assem. J. (1995-1996 Reg. Sess.) p. 3278 (Assembly Journal), reprinted at 29B pt. 3 Wests Ann. Evid.Code (1999 pocket supp.) foll. 1108, at pp. 40-41 (Rogan Letter) [bill was modeled on Rules 413-15 of the Federal Rules of Evidence, and adapts the principle of these rules to the framework of California law].) The object is to allow rational assessment by juries of evidence so admitted. This includes consideration of the other sexual offenses as evidence of the defendants disposition to commit such crimes, and for its [sic] bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense. (Ibid.; see People v. Reliford (2003) 29 Cal.4th 1007, 1009, italics added [section 1108 allows evidence of the defendants uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendants disposition to commit such crimes].)

The statute implicitly abrogates prior decisions . . . indicating that propensity evidence is per se unduly prejudicial to the defense. (Falsetta, supra, 21 Cal.4th 903, 911; People v. Abilez (2007) 41 Cal.4th 472, 502 (Abilez).) Its purpose, however, was to relax the traditional limits, not abolish them. Thus a trial court may not admit or exclude every sex offense a defendant commits, but must consider other factors bearing on the relevance, probative value, and prejudicial potential of the evidence, including  its similarity to the charged offense.  (Abilez, supra, 41 Cal.4th at p. 502, quoting Falsetta, supra, 21 Cal.4th at p. 917; italics added in Abilez.) Obviously, the lack of similarity between charged and uncharged offenses can be enough by itself to justify an exclusion of the latter in an exercise of the trial courts discretion. (Abilez, supra, 41 Cal.4th at p. 502.) Logically, it can also be enough to compel its exclusion where, as here, any inference of predisposition to commit the charged offense would be wholly speculative, i.e., where the uncharged offense has no tendency in reason to show that the defendant actually has the propensity whose proof the statute authorizes.

The statute would clearly authorize the admission of evidence of an indecent exposure in a second prosecution for indecent exposure, on the rationale that the defendants commission of the first crime supports an inference that he is predisposed to such conduct, and that since it shared the same essential nature as the conduct underlying the charged offense, its occurrence increased the likelihood that the defendant committed that offense. However, the statute cannot infuse an uncharged offense with relevance or probative value it cannot rationally be found to possess. In order for evidence of another crime to be relevant under Evidence Code section 1108, it must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged. (See People v. Soto (1998) 64 Cal.App.4th 966, 989 [ A defendant with a propensity to commit acts similar to the charged crime is more likely to have committed the charged crime than another ].) If the uncharged crime does not rationally support such an inference, then it is simply irrelevant in a prosecution for the charged one.

Does the commission of indecent exposure rationally support an inference that the perpetrator has a propensity or predisposition to commit rape? Not without some kind of expert testimony, it doesnt.[3] [P]ropensity refers to [a] predisposition or inclination to, towards, or for a particular action, habit, quality, etc.; a tendency to do something. (Oxford English Dict. (Draft rev. Sep. 2008)

50190128> (as of Mar. 5, 2009), italics added.) Similarly, predisposition is [t]he condition of being predisposed or inclined beforehand (to do something, or to a particular opinion, course of action, etc.); a prior inclination or pre-existing tendency. (Id., (as of Mar. 5, 2009), italics added.) As the use of tendency here reflects, both terms refer to a constant, or at least recurring, inclination. (See Oxford English Dict. (2d ed. 1989),

entry/50248869> (as of Mar. 5, 2009), italics added [defining tendency as [t]he fact or quality of tending to something; a constant disposition to move or act in some direction or toward some point, end, or purpose; leaning, inclination, bias, or bent toward some object, effect, or result].)

There is of course substantial basis to suppose that many sexual offenses arise from a persistent or recurring compulsion, desire, appetite, or drive on the defendants part to engage in such conduct. Such a drive constitutes propensity of a kind, and probably a forcefulness, wholly unlike the psychological processes actuating most criminal offenses.[4] If is probably safe to say that most people have not the slightest inclination to lewdly expose their genitals to strangers, no matter how perfect an opportunity might arise. Those who do engage in such conduct, at least in the paradigmatic manner shown here, typically act not from any circumstantial or situational motive, but from a persistent and recurring desire to exhibit their sex organs. Because the desire is typically persistent and recurring, it is a good bet that someone who commits this act once will be predisposed to commit it again (and again). This provides a solid foundation for a focused inference that a defendant, having criminally exposed himself on one occasion, will do so again. This in turn adds weight to an accusation that he has done so again.

But a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act. The psychological manuals are full of paraphilias, from clothing fetishes to self-mutilation, some of which are criminal, some of which are not. No layperson can do more than guess at the extent, if any, to which a person predisposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct, criminal or otherwise. Is one who commits an act of necrophilia (Health & Saf. Code,  7052) more likely than a randomly selected person to commit an act of rape? Child molestation? Indecent exposure? Is a pedophile more likely than a rapist or a member of the public to commit necrophilia? Without some evidence on the subject, a jury cannot answer these questions.

Certainly these questions cannot rationally be answered, as the dissent would answer them, by drawing abstract conceptual analogies between one kind of sexual misconduct and another. That they all involve some kind of outrage against an unconsenting person (or, in the one case, a former person) can hardly justify any particular inference about the likelihood that one such activity shows a predilection for another. Most crimes can be conceptualized as outrages or impositions against one or more unconsenting persons. That does not make it rational to suppose that the perpetrator of one crime will commit another crime of a substantially different character. If anything such speculation may be even more unwarranted in the case of sexual misconduct, which may reflect highly particularized, compulsive activity rather than opportunistic, situational, or impulsive conduct. Here the dissent would impliedly justify an inference of predisposition by equating the psychic distress inflicted by a criminal exhibitionist to the physical and potentially lethal violence inflicted by a rapist. That is not a reasoned inference; it is sheer guesswork.

This is not to assert as a fact that criminal exhibitionists are no more likely than other members of the public to commit sexual assault. The expert declaration submitted by the defenseto the court, not the juryto establish the prejudicial effect of trying the two charges together showed a correlation between the two types of misconduct. But it is a weak one: according to the studies there summarized, nearly three out of four indecent exposers will not commit rape, and at least three out of four rapists have not committed indecent exposure. Whether that correlation would be sufficient to permit introduction of this evidence on a proper foundation is a question we do not and need not reach, for the prosecution made no attempt to lay any such foundation. The jury therefore had no rational basis on which to draw even the weak inference this evidence might sustain.

On the evidence actually before the jury, defendants commission of indecent exposure was simply irrelevant to the assault charge, i.e., it had no tendency in reason to show that he committed the latter offense. As we have said, Evidence Code section 1108 does not purport to make irrelevant evidence relevant. It therefore furnished no justification to admit the indecent exposure in a separate trial of the assault.

IV. Potential Spillover Effect

A. Inflammatory Tendency

Having concluded that evidence of the indecent exposure was spillover evidence as to the assault charge, we must assess its potential to prejudicially affect the jurys assessment of that charge. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p. *27].) In non-capital cases, this inquiry typically revolves around two factors: the extent to which the spillover evidence was particularly likely to unusually inflame the jury against the defendant, and the extent to which a weak case [was] joined with a strong case . . . so that the total evidence m[ight] alter the outcome of some or all of the charges. (Alcala v. Superior Court, supra, 43 Cal.4th 1205, 1220-1221; see Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p. *27].)

The presence of the first factor here is debatable. Surely in many contexts an act of indecent exposure would not be expected to inflame a jurys sentiments, however obnoxious they might find it. Notwithstanding its loathsomeness, it remains a distinctly nonviolent offense. (See In re Lynch (1972) 8 Cal.3d 410, 429-431 (Lynch).) While its commission often appears  intended to evoke fear and shock  (Id. at p. 430, quoting Gigeroff, Mohr, and Turner, Sex Offenders on Probation: The Exhibitionist (1968) 32 Fed.Prob. (No. 3) 17, 19), no such effect is necessary to its completion. So long as the defendant acts with the requisite intent, the crime requires only that the exposure occur in a public place or in the presence of other persons to be offended or annoyed thereby . . . . (Pen. Code, 314, subd. (1).) The second phrase is satisfied so long as there are persons present who may . . . be offended or annoyed . . . .  (Lynch, supra, 8 Cal. 3d at p. 431.) The same is probably also true of the first. (See Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244 [saving disorderly conduct statute from vagueness challenge by construing public place to require actual or constructive knowledge of the presence of persons who may be offended by the conduct].) Traditionally the crime received relatively mild punishment, and apart from the potential magnifying effects of recidivism, that remains true today. (People v. Massicot (2002) 97 Cal.App.4th 920, 928, citing In re Lynch, supra, 8 Cal.3d 410, 429-431.)

On the other hand, in the context of the assault case here the exposure charge may well have had the potential to inflame the jury against the defendant in an unusual and peculiar manner. The entire defense consisted of raising doubts based on weaknesses in Glorias identification of defendant and his truck. As a repellent sexual aberrationwhat is still widely known as a perversionthe indecent exposure would naturally incline the jury to view defendant as a kind of freak, a pariah, a pervert. This would at a minimum reduce the jurors natural compunction about convicting him of the more serious offense on questionable evidence, as well as impairing their ability to view evidence of that offense objectively. Further, as discussed in more detail below, the prosecutors arguments to the jury tended to considerably amplify the inflammatory potential of the indecent exposure by furnishing the predicate to characterize defendant as a predator and scary guy. (See pts. IV, V, post.) We are satisfied that in the context of the heavily contested assault charges here, these arguments gave a particularly inflammatory tendency to the evidence of indecent exposure.

B. Weak Case Bolstered by a Strong Case

The indecent exposure case was extremely strong. The unimpeached testimony of the victim established that the exposure was perpetrated by a man who looked exactly like defendant and who was driving defendants car. The victim positively identified defendant from a photographic lineup the fairness and reliability of which was not questioned. There simply was no rational basis for the jury to doubt that it was in fact defendant who exposed himself to Gina. Defense counsel acknowledged the strength of this evidence and tacitly conceded her clients guilt.[5]

In stark contrast to this seemingly unassailable showing, the evidence in the assault case was vulnerable to attack on a number of grounds. Indeed, while there was no reason to doubt that Gloria sincerely believed defendant was the assailant, virtually every part of her testimony on that subject presented discrepancies sufficient to lead a reasonable juror to entertain serious doubts about defendants guilt.

First, Gloria described her assailant as a Hispanic male. She denied using the term Hispanic, but acknowledged telling police that her assailant looked Mexican American. She testified that she used the term Pocho, meaning, someone who was born here and has Mexican parents. She considered him Mexican-American as opposed to just Mexican, but the American component was not based on appearance; rather it rested on the way he was speaking Spanish, that he didnt speak it well.

The record indicates that this attribution of a distinctly Hispanic appearance simply did not match defendant. The officer who filled out booking documents after defendants arrest recorded his ethnicity as [w]hite.[6] The prosecutor elicited testimony from Detective Gutierrez that Gloria identified her assailant as a light-skinned Hispanic male . . . . But Gloria herself testified that the assailants skin was light brown, not light, and described it as [s]imilar to her own. Neither of the two mug shots in evidence shows defendant with a skin shade comparable to the distinctly olive tone in a photograph of Gloria. Instead they fully bear out the description of him as white. One shows him with an extremely pale complexion and sandy colored hair. In the other neither his hair nor his complexion looks so pale, but his skin tone is far from what anyone would call light brown.

Nor was there any other evidence suggesting that defendant looked Hispanic. Indeed Gloria herself was not asked whether defendant, as he sat in the courtroom or was depicted in the photographs, looked Pocho to her. Further, while no testimony was sought from Gina D. about the apparent ethnicity of the man who exposed himself to her, a telling inference may be based upon the photographic lineup from which she identified defendant. Of the six photographs were selected by police for the array, undoubtedly based on Ginas description, none had skin darker than one would expect in a person of northern European heritage. Only one had dark hair and eyes; and at least twoother than defendantlooked distinctly Nordic, Teutonic, or Slavic, with pale skin, blond hair, and light eyes.

In sum, so far as this record shows, Glorias assailant looked Hispanic, while defendant did not. This serious weakness in the prosecutors case is reflected in his repeated resort to speculation and surmise entirely outside the evidence. Thus he argued that a persons ethnicity is often a question of impression and that some people defy ethnic categorization, implying that the assailant, and thus defendant, might have been half Mexican and half white or a very light-skinned Hispanic . . . . In doing so he ignored, and manifestly hoped the jury would ignore, Glorias own testimony that the assailants skin color was light brown and similar to hers, and that only thing that seemed American about the assailant was his poor Spanish.

The prosecutor also insisted that there was no evidence to say the defendant is not Hispanic, and that apart from the booking officers entry, there was no evidence presented in this case to say he is white . . . . But apart from the issue of the burden of proof, the question was not defendants actual ethnicity; it was whether he looked like the assailant described by Gloria, and particularly as described by her before she decided defendant was the man. The prosecutors own insistence that a person can have Mexican genes and still look white was a tacit concession that defendant did look white and did not have, as Gloria said her assailant had, light brown skin. Nothing in this record supports a contrary view.

TO BE CONTINUED AS PART III.

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[1] The dissent denies that there was any evidence that the assailant attempted to touch, [Glorias] private parts or to remove her clothing. (Dis. opn. post at p. 12.) This may be narrowly true: When Gloria was asked whether the assailant tr[ied] to take your pants off, her reply was, No. But she went on immediately to explain, I dont think he washe had a chance to do any touching, because he was still trying to make me lie down and he was pulling my hair. So thats what he was doing with his hands. She then testified that she could not remember whether he tried to unbutton her pants. Shortly before this she had testified, I noticed that all of the sudden he seemed to become even more aggressive. I had fairly tight pants on and I also had an apron on over them that was tied[,] [a]nd this seemed to infuriate him even more. The unmistakable purport of this testimony was that if defendant did not succeed in removing her clothing touching her intimately, it was not for want of trying, but only because she fought off his attempts to subdue her to a point where he could accomplish his obvious goal. No rational juror could have supposed otherwise.

[2] Although the dissent does not defend the use of the evidence to show identity, it does attempt to convey the impression that the two offenses had small details in common. A good example is its statement that defendant summoned [Gina] to his car window whereas the assailant approached the car window of another lone female stranger, i.e., Gloria. (Dis. opn. at p. 12, italics added.) The first statement is an accurate characterization of the testimony. The second is not, though its literal truth may be deduced from Glorias testimony that the assailant appeared while she was sitting in her open car door. By approaching the car, the assailant perforce approached all of its component parts, including its windows. One might say with equal accuracyand equal pertinencethat he approached the steering wheel or the battery.

[3] Evidence Code section 1108 would not authorize the admission of expert opinion concerning the presence or absence of a particular disposition in a particular defendant. (People v. McFarland (2000) 78 Cal.App.4th 489, 495; see id. at p. 496, citing Pen. Code, 29 [expert may not testify on the ultimate question of whether the defendant had or did not have a particular mental state at the time he committed the offense].) This does not mean that in a sex crimes prosecution, the state may not be required to lay a proper foundation for an inference of propensity to commit the charged offense. For instance, testimony like Dr. Abbotts, addressing the incidence of rapes by criminal exhibitionists and vice versa, and the factors bearing on the likelihood of an exhibitionists committing rape, would offend neither of the prohibitions just noted, but would provide the jury with an evidentiary foundation on which to predicate an inference, as well as an estimate of the likelihood, that defendants commission of indecent exposure actually reflected a propensity to commit rape. It was not defendants burden to make this showing. It is for the proponent of evidence to establish the foundational facts for its admission, including its relevance to a material issue. (See Evid. Code, 403, subd. (a).)

[4] To be sure, nonsexual crimes may also be the product of psychological compulsion. Kleptophilia describes a tendency to receive sexual arousal or gratification from theft or burglary. (Dorlands Illustrated Medical Dict. (29th ed. 2000), p. 947.) One who has exhibited this trait might be expected to commit crimes of larceny and burglary in the same way that a criminal exhibitionist might be expected to repeat his offense. Indeed the compulsion need not have sexual origins; it may be driven, as in the case of kleptomania, by a compulsion or impulse disorder. (See Amer. Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text rev. 2000), p. 667.) Of course, section 1108 would not apply, and this evidence would presumably not be admissible, in a prosecution for theft or burglary.

[5] The dissent states flatly that defense counsel conceded in closing argument that defendant was guilty of the indecent exposure count, which conveys the impression that counsel expressly acceded to defendants guilt. (Dis. opn. at p. 6.) She did not. Her relevant comments were as follows: Now, I want to show briefly about what I believe the evidence has shown in this case as to count three [the indecent exposure]. The evidence is there, I expect you to go back and do your duty and vote appropriately. [] According to the evidence with regard to counts one and two, Im going to submit to you, based on the evidence, Mr. Earle is not guilty. And Im going to show you why I believe that. []  And I wanted to mention again about count three because we heard that count three corroborates counts one and two. And there is no evidence that count three corroborates anything, count three is what it is. And there is no evidence, no nothing to suggest that a person who sits in a car and exposes himselfunsavory though it may beis a person who would attack someone in the middle of the night using a knife. [] And I say that because there was no evidence to suggest that. And just because its convenient to say he did count one and two because he may have done three, convenient, is not what this is about. This is about a process and thats why youre here. [] There was some talk about, perhaps, after the exposure he was frustrated and he was lookingthere is no evidence as to that. Thats all speculation and youre not allowed to use that. (Italics added.)

[6] In jury argument the prosecutor sought to minimize this characterization by calling it the impression of the person who took the booking photo. . . . But the prosecution itself relied on nothing more than the impression formed by an untrained, terrified observer fighting off a nocturnal assault inside a vehicle illuminated only by overhead parking lamps. This lends considerable irony to the dismissal of the officially recorded impression of a (presumably trained) police officer, formed under conditions suitable for photography.