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 III.

Defense counsel quite properly objected to the prosecutors psychiatric speculations, stating, Theres no evidence as to this argument. The court not only overruled the objection, but invited the jury to give the prosecutors argument whatever credence it chose: The jury has already been admonished that evidence is to be decided from the testimony of witnesses. You have some latitude with respect to argument. []  They can give it whatever weight they want.

Shortly thereafter the prosecutor returned to the theme that, based upon the indecent exposure, defendant was a loathsome and dangerous pariah. On the pretext of discussing motive, he asserted that defendant is a sexual deviant because he mast[u]rbated in front of [Gina D.]. He went on to characterize defendant, based solely on the indecent exposure, as a scary guy and, again, a predator.

These argumentsand thus the indecent exposure evidencestruck at the heart of the identity defense by inviting the jury to substitute anti-deviant bias for a reasoned analysis of the evidence. Virtually every time the prosecutor acknowledged the question of identity he cited or alluded to the indecent exposure as an answer. Just as predicted in the defense motion for separate trials, he repeatedly lumped the two offenses together in the manifest hope that the certainty of defendants commission of the lesser crime would cure the uncertainties attending the greater. Thus he argued, So how do we know it was the defendant[?] How do we know that the man in court today is the man who committed these crimes against these two women? [] Well, [Gina Ds] identification of the defendant [for the indecent exposure] has gone completely unimpeached . . . . Theres no dispute about that. [] . . . Id be surprised if the defense made an argument that he was not the one that committed the . . . indecent exposure on [Gina]. Shortly thereafter, he explicitly invited the jury to consider the indecent exposure as evidence that defendant was the assailant: [I]n making your decision, you need to consider all of the evidence. And you can consider all of the evidence that was presented in this trial, every piece of evidence. You can consider the facts behind what happened to [Gina D.] in deciding the offenses in . . . the assault cases. (Italics added.)

Because there was ample reason for a jury to entertain a reasonable doubt that Gloria had correctly identified her assailant, it is entirely possible, if not likely, that a jury not exposed to evidence of the indecent exposure incident, and the use the prosecutor made of it, would have acquitted defendant of the assault. We must therefore conclude that the trial courts denial of the motion for separate trials, if not an abuse of discretion, resulted in such gross unfairness as to deprive defendant of a fair trial and thus of due process of law. This conclusion makes it unnecessary to address defendants other claims of error or to address his petition for habeas corpus.

Disposition

In No. H031525, the judgment of conviction on the charge of indecent exposure is affirmed. The judgment on the counts charging assault is reversed for further proceedings in accordance with this opinion. In No. H032982, the petition is dismissed as moot.

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RUSHING, P.J.

I CONCUR:

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PREMO, J.

Mihara, J., Dissenting.

I respectfully dissent. The majority opinion spends a great deal of time analyzing evidence presented at trial that might have led a factfinder to entertain a reasonable doubt as to whether defendant was the perpetrator of the assault. Yet the existence of evidence that could have supported a reasonable doubt is of minimal relevance to the issues actually before us in this case. Severance is not required merely because the evidence is strong as to one count and could support a reasonable doubt as to the other. Instead, the determination of whether to sever counts is committed to the discretion of the trial court, which must balance a number of relevant factors. Unlike my colleagues, I would find no abuse of discretion in the trial courts denial of defendants severance motion. I would also conclude that defendant was not denied due process by the joint trial of the indecent exposure and assault offenses. As there were no other prejudicial errors, I would affirm the judgment.

I. Factual Background

On September 30, 2004, at about 4:00 p.m., Gina[1] was walking into the mobile home park where she lived. She saw a white Ford Probe next to her that was moving very slowly. The man driving the car said come here. He spoke English. Gina approached the passenger window of the car and noticed that the man driving the car was naked from the waist down and was masturbating. Gina ran to the managers house, and the man parked in front of that house. Gina wrote down the license number of the mans car. No one was home at the managers house, so Gina ran to the managers office. As she ran, she called out Julio, and the man drove off. Gina ran home and called the police. In October 2004, Gina identified a photograph of defendant in a photo lineup as the man she had seen masturbating in the Ford Probe. Defendants residence was 2.3 miles from the mobile home park.

At 5:00 a.m. on December 30, 2004, Gloria parked her car in the parking lot of the shopping center where she worked at an outdoor table selling tamales in front of a market. The shopping center was 2.4 miles from the mobile home park where Gina lived and about 4 miles from defendants residence. Although it was dark outside, the area was lit by street lights and lights in the parking lot. No one was around when Gloria began unloading her equipment from her car in front of the market. As Gloria was getting back into her car to reposition it, a man appeared at her car door. She asked if he could help her, and he grabbed her and pushed her into the car. Although the light in her car was not on, Gloria could see her assailants face due to the parking lot lights. Her assailant grabbed her hair and pulled it back. Gloria held onto the steering wheel so that her assailant would not be able to force her to lie down.

She asked him if he wanted money, and he said no. He told her to stop struggling and allow myself to have it done . . . . Gloria does not speak English, and her assailant spoke to her in kind of broken half Spanish. He said he had a gun and a knife. Gloria saw a small knife in his hand. She kept struggling, and her assailant seemed to become even more aggressive. He kept pulling her hair really hard. During their struggle, he cut her hand with his knife, although she did not notice it at the time. Gloria got a good look at his face, which was just six inches away from her face. Finally, Gloria was able to lift up her leg and push her assailant out of the car. She pushed as hard as I could and I shot out the [passenger] door on the other side. Gloria saw her assailant go toward the back of the bakery which was adjacent to the market.

Gloria ran to the bakery screaming for help. Armondo Romero, who worked at the bakery, came out of the bakery to help her. Gloria saw her assailant drive off from behind the bakery in a black truck similar to a Ford Bronco. She noticed that the vehicle was missing its back window. Romero also saw the vehicle, which he described as a dark-colored pickup truck. The police arrived in about 10 minutes.

Gloria described her assailant to the police as a five-foot, nine-inch tall man who was thin and in his mid-20s. He had dark brown hair and light skin, and she thought he might be Mexican American because of his broken Spanish. His hair was short and combed back, and he was wearing a black jacket. She told the police that his vehicle was a black Ford Bronco from around 1986, although she was not certain about the year.

A few days after the attack, Gloria saw a parked black Ford Bronco that was similar to the vehicle her assailant had been driving. She contacted the police, but it was determined that this Bronco was not involved in the attack.

A week after the attack, Gloria met with a police sketch artist who produced a sketch of her assailant from her description. Gloria felt that this sketch was pretty close to depicting her assailant.

A couple of weeks after the attack, Gloria was inside a building at a car wash when she saw defendant sitting in his truck in a nearby parking lot. Gloria was certain that defendant was the man who had assaulted her. Gloria tried unsuccessfully to telephone the police. Defendant kept moving his truck around from one parking space to another. Eventually he drove into another parking lot across the street, and Gloria followed him on foot. When the truck turned around and headed toward her, she ducked into a store and was able to write down the trucks license plate number as it passed the store. The truck was missing its rear window. After noting the license plate number, Gloria called the police again, and she and her brother followed the truck a few blocks to a house, where the truck parked. Defendant got out of the truck and went into his residence. Gloria and her brother remained in their car, a few houses away, awaiting the arrival of the police.

The police arrived and brought defendant out of the house. Gloria identified defendant as her assailant. He was wearing the same black jacket that he had been wearing when he assaulted her. Defendants truck was a 1981 Chevy Blazer. Ford Broncos and Chevy Blazers were somewhat similar in the 1980s. The sketch of Glorias assailant was similar to a photograph of defendant taken in 2002. Defendant was a 28-year-old white man who was five feet, 10 inches tall and weighed 180 pounds. He was the registered owner of both the white Ford Probe that bore the license plate number recorded by Gina, and the black 1981 Chevy Blazer that Gloria had trailed from the car wash to defendants home. A small retractable knife was found in defendants home.

II. Procedural Background

Defendant was charged by information with assault with intent to commit rape (Pen. Code, 220), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), and indecent exposure (Pen. Code, 314, subd. (1)). It was further alleged that defendant had personally used a dangerous or deadly weapon in the commission of the assault with intent to commit rape (Pen. Code, 12022, subd. (b)).

At trial, Gloria made an in-court identification of defendant, and the jury had an opportunity to observe defendants appearance, including his face and his body. The defense presented expert testimony on human perception and human memory to challenge the accuracy of Glorias identification of defendant as her assailant. A friend of defendant testified at trial that defendant is one of the top-ranked Americans in Brazilian Jujitsu, a martial art in which leverage is utilized for self-defense and ground fighting.

After about a day of deliberations, the jury returned guilty verdicts on all three counts and found the personal use allegation true. Defendant, who was free on bail, failed to appear for sentencing, and he was charged with failure to appear while released on bail (Pen. Code, 1320.5). He pleaded guilty to that count and was sentenced to a total of five years and eight months in prison for all of his convictions.[2] Defendant filed a timely notice of appeal.

III. Discussion

A. Joint Trial of Indecent Exposure and Assault Counts

1. Background

The indecent exposure count was consolidated with the other counts in advance of the preliminary examination. Defendant moved in limine to sever the indecent exposure count from the other counts. His motion implicitly conceded that the assault with intent to commit rape count and the indecent exposure count were of the same class of crimes. He claimed that severance should be ordered because a joint trial would substantially prejudice him. Defendant argued that the indecent exposure evidence was not cross-admissible, and a joint trial would pair a weak case (the assault) with a strong case (the indecent exposure) to his prejudice.

The defense submitted an experts affidavit in support of its contention that the commission of the indecent exposure offense was not probative as to propensity to commit a sex offense. The expert opined that [e]xhibitionist behavior alone cannot be considered indicative of or a precursor to an individual committing an act of rape. . . . A small proportion of exhibitionists are known to commit acts of rape. The underlying data cited by the expert in his affidavit indicated that about a quarter of exhibitionists commit rape and about a quarter of rapists have a history of exhibitionism.

At the hearing on the in limine motion, defendants trial counsel argued that the indecent exposure evidence was not cross-admissible, and that the indecent exposure case was a strong case involving minimal conduct that would be joined with the weaker, more inflammatory assault case. Defendants trial counsel relied on the experts affidavit to support her claim that evidence of the indecent exposure was not probative as to the assault. She argued that its prejudicial to join the two counts. The prosecutor argued that evidence of the indecent exposure was cross-admissible under Evidence Code sections 1101, subdivision (b) and 1108. The court denied the severance motion on the ground that defendant would not be unduly prejudiced by a joint trial.

In his opening argument to the jury, the prosecutor told the jury that it could consider the facts behind what happened to [Gina] in deciding the offenses in Counts One and Two, the assault cases. We dont have DNA but we do have the fact that he committed this 314 [indecent exposure]. The modus operandi was absolutely the same, ladies and gentlemen. He sought out a woman that was alone while he was using his car.

Defendants trial counsel conceded in closing argument that defendant was guilty of the indecent exposure count. Defendants trial counsel argued that the indecent exposure offense was so different from the assault that it did nothing to support a finding that defendant had committed the assault.

The prosecutor argued in his closing argument that the indecent exposure offense was circumstantial evidence that could be considered on the assault counts. And its important to remember when youre deciding the evidence you can consider all of the facts. [] You need to decide each count separately, but you can consider all of the facts, with all of the counts. When deciding each count, youre not limited -- you dont have to say, we can only consider what [Gloria] says. You need to consider everything.

2. Consolidation

Defendants initial contention is that the indecent exposure count should never have been consolidated with the assault with intent to commit rape count in the first place, because the two counts were not of the same class of crimes or offenses within the meaning of Penal Code section 954.[3]

An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . ; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . . (Pen. Code, 954, italics added.) The phrase of the same class of crimes means offenses possessing common characteristics or attributes. (People v. Kemp (1961) 55 Cal.2d 458, 476.) Appellate courts exercise independent review in resolving whether the offenses were of the same class within the meaning of Penal Code section 954. (People v. Alvarez (1996) 14 Cal.4th 155, 188.)

A person commits indecent exposure when he or she willfully and lewdly exposes his or her private parts in a public place. (Pen. Code, 314, subd. (1).) The exposure must be sexually motivated. (In re Smith (1972) 7 Cal.3d 362, 366.) The prohibition against indecent exposure is contained in Title 9 of Part 1 of the Penal Code, which contains Crimes Against The Person Involving Sexual Assault, and Crimes Against Public Decency. A person commits an assault with intent to commit rape when he or she assaults another with the intent to commit rape. (Pen. Code,  220.) The prohibition against assault with intent to commit rape is contained in Title 8 of Part 1 of the Penal Code, which contains Crimes Against The Person. There are many types of rape, but rape generally refers to an act of sexual intercourse that is accomplished against anothers will by force. (Pen. Code, 261.) Like the prohibition against indecent exposure, the prohibition against rape is contained in Title 9 of Part 1 of the Penal Code.

In People v. Maury (2003) 30 Cal.4th 342 (Maury), the California Supreme Court found that murder and rape were of the same class of crimes because they were both assaultive crimes against the person and therefore were properly joined under Penal Code section 954. (Maury, at p. 395.) Maury is instructive. The prohibition against murder, like the prohibition against assault with intent to commit rape, is contained in Title 8. The prohibition against rape, like the prohibition against indecent exposure, is contained in Title 9. Murder and rape have in common that they are assaultive acts against a person; assault with intent to commit rape and indecent exposure have in common that they are sexually motivated acts. Murder and rape are of a class of assaultive crimes on persons; assault with intent to commit rape and indecent exposure are of a class of sexually motivated crimes. Assault with intent to commit rape and indecent exposure are of the same class of crimes within the meaning of Penal Code section 954 because these two crimes possess a common characteristicsexual motivation.

Defendant argues that two offenses are not of the same class unless they are generically similar and share a common element of substantial importance. Offenses must share a common element of substantial importance to qualify for joinder as connected together in their commission under Penal Code section 954. (People v. Matson (1974) 13 Cal.3d 35, 39.) However, offenses may alternatively qualify for joinder if they are of the same class of crimes. If the common element of substantial importance requirement applied to the same class of crimes, the same class of crimes language in Penal Code section 954 would be surplusage.

Moreover, indecent exposure and assault with intent to commit rape do share a common element of substantial importance. The quintessential element of assault with intent to commit rape is the sexual motivation for the assaultthe intent to commit rape. The quintessential element of indecent exposure is the sexual motivation for the exposurethe lewd intent. Hence, these two offenses do share a common element of substantial importancea sexually motivated act.[4] The consolidation of the indecent exposure count with the assault with intent to commit rape count did not violate Penal Code section 954.

3. Denial of Severance Motion

Defendant asserts that the trial court prejudicially erred in denying his motion to sever the indecent exposure count from the assault counts.

The prosecution is entitled to join offenses under the circumstances specified in section 954. The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citations.] When the offenses are [properly] joined for trial the defendants guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice. (People v. Bean (1988) 46 Cal.3d 919, 938-939.)

Not only is the burden allocated differently in cases involving properly joined charges as compared with cases involving the introduction of uncharged misconduct, but the nature of the abuse of discretion standardand the ensuing method utilized to analyze prejudice, undertaken to determine whether a trial court abused its discretion in a specific casealso are significantly different from what is employed in determining whether a trial court erred in allowing the introduction of evidence of uncharged misconduct. (People v. Soper (Feb. 19, 2009 No. S152667) __ Cal.4th __, __ [2009 Cal. LEXIS 1100, p. *24] (Soper).)

To demonstrate that a denial of severance was reversible error, defendant must clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried. (People v. Smith (2007) 40 Cal.4th 483, 510.) A trial courts denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion if the trial courts ruling falls outside the bounds of reason.    [Citation.] In making that assessment, we consider the record before the trial court when it made its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] The states interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220-1221 (Alcala).)

Defendant claims that the admission of evidence of the indecent exposure offense at a joint trial posed a substantial danger of prejudice to him with respect to his identity defense to the assault counts. Consideration of the relevant factors does not support his claim that the trial court abused its discretion in concluding otherwise.

Cross-admissibility is the key factor. If the evidence in each case is shown to be cross-admissible in the others, ordinarily any inference of prejudice from joinder of charges is dispelled. (People v. Sully (1991) 53 Cal.3d 1195, 1222.) The prosecutor argued below that evidence of the indecent exposure would have been admissible under Evidence Code sections 1101, subdivision (b) and 1108 at a separate trial of the assault counts.[5] Evidence of an uncharged crime is admissible under Evidence Code section 1101, subdivision (b) when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . . (Evid. Code, 1101, subd. (b).) Evidence Code section 1108 permits the admission of evidence of an uncharged sexual offense to prove disposition in a sex offense prosecution. (Evid. Code, 1108, subd. (a).)

Defendant claims, and the majority opinion accepts, that there was no dispute at trial about the intent for his assault on Gloria. On this basis, they maintain that the admission of evidence of the indecent exposure offense under Evidence Code section 1101, subdivision (b) at a separate trial on the assault counts would have been prohibited as cumulative and unnecessary. I disagree. The severance motion was ruled on in limine, and the prosecution remained under the burden of proving that the perpetrator of the assault intended to commit rape. In light of the absence of any evidence that Glorias assailant touched, or attempted to touch, her private parts, attempted to remove her clothing, or unequivocally expressed any sexual intent, the trial court could have concluded that evidence of defendants sexual intent, in the form of his indecent exposure offense, was probative on the specific intent element of the assault count.

The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] (Ewoldt, at p. 402.) The indecent exposure offense was sufficiently similar to the assault offense to support the inference that defendant probably harbored the same intent on both occasions. The fact that, just three months before the assault, defendant approached a female stranger who was alone, summoned her to his car window, and lewdly exposed his private parts to her tended to show that, when defendant approached the car window of another lone female stranger, he harbored a similar lewd intent. Consequently, evidence of the indecent exposure offense would have been admissible in a separate trial of the assault count under Evidence Code section 1101, subdivision (b).

Defendant and the majority also contend that evidence of the indecent exposure offense would not have been admissible under Evidence Code section 1108 in a separate trial of the assault counts to prove that defendant was disposed to commit rape. They assert that the defense produced evidence at the in limine hearing that exhibitionists are not likely to commit rape, and the prosecution failed to produce evidence that exhibitionists are likely to commit rape. In their view, the indecent exposure evidence was therefore not relevant to show a disposition to commit rape. I disagree.

It is simply not true, as the majority opinion asserts, that the jury lacked a rational basis for drawing a relevant inference in the absence of expert testimony that it was more likely than not that an exhibitionist, in the abstract, would commit rape.[6] The trial court was not obligated to credit the defense experts declaration, and it could also reasonably conclude that the jury would not face the abstract question addressed by the expert. Here, the question of fact that would be placed before the jury at trial was whether a man who summoned a lone female stranger to his car window to view his exposed erect penis was likely to commit other sexually motivated offenses against lone female strangers. The trial court could have reasonably concluded that these specific facts provided a rational basis for drawing such an inference. On this basis, the court could have concluded that the evidence was admissible under Evidence Code section 1108.

TO BE CONTINUED AS PART V.

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[1] To avoid confusion, I adopt the majority opinions naming convention. (See maj. opn., ante, p. 3, fn. 1.)

[2] There is an error on the abstract of judgment. The Penal Code section 245, subdivision (a)(1) conviction is erroneously described as the crime of Indecent exposure.

[3] Defendant did not make this contention below, and the Attorney General contends that it was forfeited. However, defendant claims that his trial counsel was prejudicially deficient in failing to raise this contention below. I would resolve his contention on the merits so that it would not be necessary to consider whether defendants trial counsel was deficient in failing to raise this claim below.

[4] I would reject defendants characterization of the similarity as merely sexual misconduct. The similarity is far more specific. The two offenses have very similar intent elements.

[5] [C]omplete (or so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for example, if evidence underlying charge B is admissible in the trial of charge Aeven though evidence underlying charge A may not be similarly admissible in the trial of charge B. (Alcala, supra, 43 Cal.4th at p. 1221.)

[6] The defense experts declaration did establish that it was more likely that an exhibitionist, as opposed to a non-exhibitionist, would commit rape.