P. v. Davis

Filed 7/12/07 P. v. Davis CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted following a jury trial of attempted murder (Pen. Code,  664/187, subd. (a)), assault with intent to commit forcible oral copulation (Pen. Code,  220, 288a, subd. (c)), attempted forcible oral copulation (Pen. Code, 664/288a), three counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)), and false imprisonment (Pen. Code, 236), with associated enhancements for personal use of a deadly weapon (Pen. Code, 12022, subd. (b)(1)).^[1]The trial court subsequently found that defendant suffered prior convictions (Pen. Code,  1170.12, subd. (c)(1), 667, subd. (a)), and served a prior prison term (Pen. Code, 667.5, subd. (b)). He was sentenced to an aggregate term of 27 years in state prison.

Defendant argues in this appeal that evidence of two uncharged sexual assaults was erroneously admitted by the trial court, proffered defense impeachment evidence was improperly excluded, and a prior prison term enhancement should have been stricken rather than stayed. In a supplemental brief he adds the argument that the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. We conclude that the trial courts evidentiary rulings were not an abuse of discretion, and no prejudicial sentencing error occurred in the imposition of an upper term on count 1, but we must strike the Penal Code section 667.5 prior prison term enhancement. The judgment is otherwise affirmed.

STATEMENT OF FACTS

The Charged Offenses

The victim of the charged offenses, Tamara,^[2] joined friends at Molloys bar in Colma at about 9:00 p.m. on December 18, 1997, to play a trivia game. The trivia game ended between 10:30 and 11:00 p.m., whereupon Tamara and her friends went to the Burlingame Station bar in Burlingame between 11:00 and 11:30 p.m. to play pool. Tamara left her car at Malloys bar. After an hour or more at Burlingame Station, Tamara noticed a friend, John Patterson, the manager of the Fish Market restaurant where she formerly worked. Patterson introduced Tamara to his friend, defendant. Patterson convinced Tamara to meet him and defendant at another bar a few blocks away known as the Tavern when she finished her pool game.

Tamara walked to the Tavern to join Patterson and defendant. They talked there for 10 or 15 minutes before Tamara mentioned that she should get back to her friends at Burlingame Station. Patterson and defendant then walked with Tamara back to Burlingame Station, where they discovered the bar was closed and her friends were gone. Patterson offered to drive Tamara home, but suggested they first visit a nearby candy store he owned with his sister. At the store, they ate candy, and at Pattersons suggestion Tamara took two Beanie Babies. Defendant grabbed a whole bunch of Beanie Babies and put them in a bag.

After 30 minutes to an hour in the candy store, they took a cab to a liquor store to purchase alcohol. They returned to the candy store for a while, then Patterson drove them to his house in Belmont. Tamara really wanted to go home, but Patterson insisted that she hang out with them and go to his house for a little bit. Tamara was reluctant, but felt really guilty after eating candy and taking Beanie Babies from Patterson, so she agreed. Patterson was aware that Tamara did not have cab fare. He offered to give her money to take a cab home from Belmont to her car in Colma.

They arrived at Pattersons home around 2:30 a.m. Tamara kept saying that she was really cold, tired, wanted to go home, but she did not want to immediately insist that Patterson call a cab for her. Defendant offered Tamara his sweatshirt, which she accepted. She spoke with defendant, who mentioned that he had a nine-year-old boy and a ten-year-old girl. He also said he was a model for Playgirl magazine. After one of Pattersons roommates began angrily screaming and yelling and swearing that they were making a lot of noise, Tamara just really wanted to go home. She was afraid of the roommate, and waited by the door until she could leave.

Finally, Tamara firmly told Patterson, I really want to go home; I need a cab. Patterson called a cab, which arrived at his home 15 minutes later, about 4:00 a.m. He also gave Tamara $20 for cab fare, and asked her not to tell defendant that he gave this to her. Tamara intended to take the cab directly to her car parked in Colma. As she said goodbye and turned to the door, however, defendant asked if he could share a cab with her. Tamara agreed, as defendant lived in San Mateo, so it was right along the way to Colma. Tamara testified that both Patterson and defendant had been very polite, very nice during the evening, although they both, and Patterson in particular, did not seem to want her to leave.

Tamara and defendant rode in the cab to defendants house in San Mateo. They both thought the cab driver acted really strange during the cab ride; he did not respond to anything Tamara said. Although Tamara planned to have the cab driver leave defendant at his home and continue alone in the cab to Colma, defendant repeatedly mentioned that he had a cab driver friend who could drive her to her car. When they arrived at defendants house, he forcefully reiterated that the cab driver was very strange and unsafe. He suggested that Tamara come inside, where he offered to call his friend to pick her up. Tamara trusted defendant, who was very polite all evening, and thought his suggestion was a far better alternative to continuing the ride with a cab driver who didnt listen to anything she said.

They arrived at defendants house, which he occupied with his two children and a roommate. Defendant awakened his two children who were sleeping on a sofa in the living room, and directed them to a bedroom. At Tamaras request, defendant then appeared to place a telephone call to a cab company. Tamara noticed that defendant did not give his address during the conversation, but defendant explained, hes my friend, he knows where I live. While Tamara waited for the cab, they sat on the couch. Defendant talked about his modeling career and displayed photographs of himself and his family. When defendant began to show her nude photographs of himself from Playgirl magazine she thought he was a little perverted, but still didnt think he was any danger to her.

After at least 20 minutes passed, Tamara said, Im going to call a cab. Defendant replied no, Ill go ahead and call my friend again. After ostensibly making another phone call to the cab company defendant told Tamara there was an accident, and the cab driver would arrive in five or ten minutes. Tamara settled back down and fell asleep while seated on the couch.

When Tamara awoke, she found defendant completely naked, sitting on her, and he was masturbating. Defendant declared, Suck my cock. When Tamara refused, defendant grabbed a black baton, held it over her head, and clenched his jaw. Tamara replied, okay okay, okay, Ill do whatever you want. Defendant put the baton down and said, Put it in your mouth. Tamara pretended to be agreeable. She told defendant, first I have to use the bathroom and take care of some things, and then I can have sex with you. She hoped to run away if defendant allowed her to get up from the couch. When defendant lifted some of his weight from her, Tamara slipped out from beneath his legs to run for the door.

As Tamara attempted to escape, defendant grabbed her and ripped off her sweater and shirt. Tamara found herself on her hands and knees on the floor. Defendant jumped on her back and flattened her face down on the floor. He put a plastic bag on her face as he pushed her against the floor so she could not move. Tamara could not breathe through the plastic, although she kept thrashing and fighting. She began losing consciousness, and thought she was dying. She couldnt move her hands, and tried laying still. Finally, Tamara just thrashed really hard one more time, and managed to momentarily get the bag away from her mouth to take a breath.

Defendant replaced the bag on Tamaras mouth, and with one hand tried to wrap a cord around her throat or face. Tamara was able to free one of her hands and pull the plastic bag away from her mouth so she could get another breath. She also screamed as loud as she could. Defendant continued to push the plastic bag against her mouth and tighten the cord around her neck.

Defendants roommate Charles Renfroe ran into the room. Tamara testified that Renfroe hollered at defendant, you have to stop doing this. You cant keep doing this. You need to let her go. Defendant answered: [S]hes just a hooker that I picked up. She wants me to do this to her. Go back to bed, Charles. Tamara screamed to Renfroe, its not true, and implored him not to leave her.

Renfroe again told defendant to let her go. When defendant did not respond, Renfroe attempted to pull defendant away from Tamara. As they struggled on the floor Renfroe again pled with defendant, Let this one go. Defendant yelled to Renfroe: Its too late. Go back to bed. Its too late. Shell go to the cops. I have to finish. Defendant continued to hold Tamara by the head and pin her to the ground. During the struggle they rolled into the Christmas tree and the packages under it were strewn about. Defendant had Tamaras hair balled up in his hand.

Defendants daughter Amanda then entered the room and exclaimed, Im going to call 911.^[3] Defendant told her do not call 911. If you love your daddy, you will go back to bed. Do not call 911. Daddy is just playing. Tamara spoke to Amanda; her voice sounded scary and shaky. Amanda also observed Renfroe attempting to pull defendant off the girl and telling defendant just let her go.

After defendant told Amanda to go to her bedroom, she left the living room briefly. She and defendants son Dustin returned to the living room about five minutes later and screamed at defendant to stop. Tamara was still trying to get away from defendant. Amanda once more threatened to call 911 unless defendant released Tamara. She left the room and called 911 to report that a guy and girl were struggling in the living room. Renfroe also told defendant, I am going to call 911," and got up from the floor.

Defendant began pushing Tamara so hard that she thought her neck would be broken any second. Tamara begged Renfroe not to leave her. Renfroe came back over and tried to pull [defendant] off some more. There was silent fighting for a long time before Renfroe again commanded defendant to let her go. Defendant repeated: Shell go to the cops. Its too late. I cant. I have to finish. Tamara promised not to go to the cops.

Defendant suddenly stopped struggling, let go, and said its over. Tamara pulled away from defendant, ripping her hair out of his hand as she did so. She grabbed her purse and other belongings as Renfroe opened the front door and screamed to her, just get out of here while you can. Tamara leapt through the door and ran away. She noticed the address of defendants house and name of the street as she ran, and kept saying it over and over to remember it.

Within a few minutes, Tamara stopped a passing tow truck driver and used his cell phone to call 911. In the call she stated that a man named Trent had tried to rape and kill her. Tamara mentioned that defendant may have given her a drug to put me out. She also expressed concern for the safety of Renfroe. Tamara made a second 911call shortly thereafter for fear that defendant might turn on Renfroe and the children because they witnessed something really bad and tried to help her. She later called Patterson to tell him defendant had tried to kill her and direct him not to give defendant any information about her.

Once Tamara was gone, defendant told his son and daughter that she had held a knife to his throat, beaten him with a pool cue, tried to handcuff him, and demanded money from him. He gave a long black stick to Amanda and told her to take it to his room. Amanda also took a romance tape out of the VCR which had been playing when she came into the room, and later gave it to the police.

After Tamara fled from the house, Renfroe began hyperventilating and had pain in his chest, so he went to his bedroom to rest. By the time the police arrived at defendants house 10 minutes later just before 6:15 a.m. Renfroe had calmed down. Renfroe described the incident to the police, although he was concerned about defendants welfare and did not then disclose that defendant had been prosecuted in New York for sexual assault a year and a half before.

Tamara was transported to the San Mateo Police Department. The officer who interviewed her noticed that her clothing was disheveled, her hair was messed up, and she was clearly upset. Her gums were cut, her lips were swollen, and she had dried blood on the corners of her mouth.

From the police station, Tamara was transported to the hospital, where a sexual assault examination was performed. When she arrived Tamara was tearful and emotional and upset. She had scratches on her face and her lips were very crusted over with blood. She complained of neck and nasal pain, and was basically sore all over. Blood was found on her underwear that was consistent with defendants genetic markers, but was not positively identified except that Tamara was excluded as the donor. Blood stains were detected on both the inside and outside of her sweater: those on the inside were consistent with Tamaras type; those on the outside were consistent with defendants type. No sperm was found on her body or clothes.

A search of defendants residence was undertaken later that day. A black billy club was found on the floor of a closet and a pool cue was discovered in a bedroom. Three plastic bags smeared with saliva were seized. A clump of hair was recovered from the living room floor near a coffee table. Nude and partially clothed photographs of defendant, along with an adult video and magazines, were also collected from the house.

Defendant was taken into custody and interviewed at the police station. Cut or bite marks were observed on the middle fingers of both hands. He also had a bite mark on his left forearm and scratches on his right shoulder and chest. Blood was visible on his middle right finger. Defendant stated that he called Luxor Cab Company for Tamara three times from his house, but the dispatch records for the company did not indicate any calls for service from defendants neighborhood after midnight.

The Victims Prior Report of an Assault

During her cross-examination Tamara also testified about a police report of assault and battery she filed with the Millbrae Police Department in February of 1997. The complaint recited periodic physical abuse of Tamara by her boyfriend Scott W. during the course of their year and a half relationship. Late in 1995, W. became mildly abusive with Tamara. In March of 1996, according to the report, W. pushed her down and punched her after she said she was leaving him. Tamara also reported additional incidents of physical violence by W. directed at her that occurred in November and December of 1996, including throwing her against a wall, pulling her hair, slapping her face, shaking her neck, and bruising and biting her arms. In January of 1997, W. slashed the tire of her friends car. None of the incidents reported by Tamara involved sexual assault, attempted suffocation, or weapons.

Tamara was interviewed by a police officer, but W. was never charged for any criminal offenses described in the report due to late reporting and lack of corroborating witnesses. Tamara was urged to obtain a restraining order.

The Prior Sexual Assault of Kimberly

Kimberly testified that she met defendant while she was at the Limelight Club in Manhattan with two friends on the night of April 17, 1996. After a couple of hours at the Limelight Club, Kimberly, her two friends and defendant left in Kimberlys car. Defendant did not express any romantic or sexual interest in Kimberly. She dropped off her two friends on the way to her home in Rockaway. Defendant then lamented that he was alone in New York City and had no place to stay. Kimberly felt bad for defendant and agreed to let him sleep on a couch in the living room. Kimberly retired to her bedroom to sleep, and closed the door.

While Kimberly was half asleep defendant appeared in her bedroom and said he was going to rape and kill her. Defendant looked evil. Kimberly was scared, but decided to fight back. Defendant pinned her on the bed, and began to strangle her with his hands around her neck. He tried to force his penis into her mouth, but she resisted. Defendant then flipped Kimberly onto her stomach and wrapped a belt around her neck until she passed out. Kimberly thought she was going to die. When she awoke she was naked on her stomach, with defendant on her back. She tried to escape, but defendant pulled her back onto the bed and again began to strangle her with his hands. Kimberly struggled free and ran into the living room. Defendant followed her into the living room and apologized. He said he thought she would like it like that. Kimberly told defendant to leave. When he asked her to return to the bedroom with him, she grabbed a dress from the sofa and ran out of the house to her neighbors residence, where she called the police. Defendant was charged with the offenses committed against Kimberly, but found not guilty after a trial.

The Prior Sexual Assault of C.

C. was married to defendant for approximately one year beginning in 1996. In 1997, they lived in San Mateo with Charles Renfroe and defendants two children. In October of 1997, their relationship ended and C. moved out of the residence to a house she shared with friends. C. told defendant that she wanted a divorce. Defendant wanted to try and work it out, and was very upset.

C. visited defendants house at his request one night in December of 1997. No one else was there. Defendant stated that he needed to talk with her. He was obviously intoxicated, and told C. that he still wanted to reconcile. She said no. C. followed defendant from the living room into the bedroom as they continued their conversation. They hugged and kissed at defendants instigation, but C. felt a bit uncomfortable and started to push away from him. Defendant closed the bedroom door and told C., youre not going anywhere. Defendant began kissing C. more aggressively and thrust his pelvis against her as she continued to push against his chest. C. said: Stop, Trent, what are you doing. I dont want to do this.

After a couple minutes of groping, defendant exclaimed, Im horny and I want to fuck you. C. reiterated that she did not want to do this, whereupon defendant became very angry. He unbuttoned her pants and pushed her hard to the ground. Defendant continued to remove C.s clothes despite her pleas to stop. With C. on her back, defendant pushed down on her shoulder with one hand, and with the other squeezed her throat until she had difficulty breathing. Defendant forcibly inserted his penis and engaged in sex with C., then turned her over onto her stomach, held her by the back of the neck, and began to have sex with [her] again. C. continued to plead with defendant to stop, but he did not respond. Defendant abruptly stopped what he was doing and rolled over onto his back. C. got up immediately and pulled [her] pants back on. She told defendant he was really sick and needed help, then left the house without interference from defendant.

C. testified that she did not report the incident to the police because she was embarrassed and didnt understand what had just happened. She also thought the police would not believe an accusation that her husband raped her. After C. learned that defendant was accused of the sexual assault of Tamara in December of 1997, during questioning by the police she still did not reveal his assault of her. Instead, she stated that defendant was never physically violent with her. She still loved defendant and wanted to protect him. She also feared retaliation from him. C. disclosed the assault to friends in 1998, but did not testify against defendant at his first trial. She told the district attorneys office for the first time during an interview on August 24, 2005, that defendant had raped her. C. testified that she finally disclosed the rape because she needed to tell the truth, and couldnt lie anymore.^[4]

The Defense Case

The defense presented testimony from Tamaras former boyfriend Scott W. in which he claimed that he never physically abused Tamara. He denied all of the acts of assault and battery that Tamara reported to the police. W. admitted that he punctured the tires of a car owned by Tamaras friend after he learned Tamara had a relationship with him.

Renfroe testified for the defense that he did not hear defendant refer to Tamara as a hooker during the struggle. Nor did he hear defendant say its too late and I need to finish this, as Tamara testified. Instead, he heard defendant proclaim that Tamara took his wallet, and she replied, Thats not true. Renfroe further testified that he did not say to defendant, you cant keep doing this anymore. He only kept pleading with defendant to stop. Renfroe did not see a billy club, plastic bags or a cord during the struggle in the living room. He also denied that he opened the front door for Tamara to leave; rather, she did that herself.

DISCUSSION

I. The Admission of Evidence of Prior Uncharged Sexual Assaults.

Defendant argues that the trial court erred by admitting the testimony of Kimberly and C. that recounted prior sexual assaults committed by him. He claims that the evidence of uncharged acts was inadmissible under Evidence Code section 1101, subdivision (b) to prove identity, intent or common scheme.^[5] He further asserts that although the sexual assault evidence may have been admissible under section 1108, the trial court abused its discretion by failing to exclude the evidence as unduly prejudicial under section 352.

We commence our inquiry by expressing agreement with defendants acknowledgement that despite the general prohibition against admission of uncharged criminal acts to prove disposition to commit charged crimes (Evid. Code,  1101, subd. (a)), evidence of the uncharged sexual assaults of Kimberly and C. was properly admitted under section 1108. (See People v. Branch (2001) 91 Cal.App.4th 274, 280; People v. McFarland (2000) 78 Cal.App.4th 489, 494.) Notwithstanding the general rule prohibiting evidence of prior acts of misconduct to prove predisposition or propensity, in 1995 the Legislature enacted section 1108 authorizing in sexual offense cases the admission of evidence of the defendants other sexual offenses to prove his or her propensity to commit the charged sex offense. 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. ( 1108, subd. (a).) (People v. Walker (2006) 139 Cal.App.4th 782, 796797.) By removing the restriction on character evidence in section 1101, section 1108 now permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352. (People v. Britt (2002) 104 Cal.App.4th 500, 505.)

 In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101. [Citation.] When section 1108 swept away the general prohibition on character evidence set forth in section 1101, it rendered moot the exceptions to that prohibition created by section 1101, subdivision (b). (People v. Britt, supra, 104 Cal.App.4th 500, 505506; see also People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) Section 1108 thus   permits courts to admit such evidence on a common sense basiswithout a precondition of finding a non-character purpose for which it is relevantand permits 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 bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.  [Citation.] (People v. Falsetta (1999) 21 Cal.4th 903, 912.)

We turn the focus of our inquiry to whether the evidence still was subject to exclusion under Evidence Code section 352, as defendant claims. To be admissible under section 1108, the probative value of the evidence of uncharged crimes must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] (People v. Walker, supra 139 Cal.App.4th 782, 796.) The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)

We will only disturb the trial courts exercise of discretion under section 352 when the prejudicial effect of the evidence clearly outweighed its probative value. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)

We find that the prior sexual assaults of Kimberly and C. were quite probative evidence in the present case. The crucial issues at trial were the precise nature of the acts committed by defendant and his intent. The defense admitted that Tamara had been falsely imprisoned and assaulted, but disputed any intent to sexually assault or murder her. The resolution of those issues was primarily dependent upon the jurys assessment of the credibility of the victim. The defense case was directed at challenging the accuracy of the victims perception or recollection of events. Evidence of the two prior uncharged sexual assaults committed by defendant under similar circumstances in residences where defendant had gained a position of trust, then suddenly began forcible sexual attacks which escalated quickly into a strangling of the victims was vital to the jurys effort to evaluate the credibility of the victim and the probability or improbability that defendant had been falsely or mistakenly accused of the charged offenses. (People v. Falsetta, supra, 21 Cal.4th 903, 912; People v. Walker, supra, 139 Cal.App.4th 782, 797.)

Against the appreciable probative value of the evidence we balance its prejudicial effect upon the defense. The evidence of defendants inclination to commit sexual assaults was of course damaging to his defense that he did not intend to sexually assault Tamara, but not prejudicial in the sense contemplated by section 352.  In applying section 352, prejudicial is not synonymous with damaging.  [Citations.] (People v. Callahan (1999) 74 Cal.App.4th 356, 371.)  Undue prejudice refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial.   [Citations.] (People v. Walker, supra, 139 Cal.App.4th 782, 806; see also People v. Garceau (1993) 6 Cal.4th 140, 178; People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) Here, the prior sexual offense evidence was, as we have delineated, quite probative to a critical issue in the case, and thus did not carry with it the undue prejudice section 352 seeks to avoid. A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. (People v. Walker, supra, at p. 806.)

The descriptions of the uncharged sexual assaults by Kimberly and C. were also not more inflammatory than the charged offenses, particularly the attempted murder of the victim in the present case with the use or threat of use of a weapon. The testimony of Kimberly and C. did not consume an inordinate time compared with the evidence on the charged assault upon Tamara. The source of the evidence of the uncharged acts evidence was also entirely unrelated to the charged offenses, and the incidents occurred in sufficiently close temporal proximity. (People v. Wesson (2006) 138 Cal.App.4th 959, 970.)

We recognize that defendant was not convicted of the uncharged assaults, which presented the risk of consideration of the evidence by the jury to inflict punishment for those offenses in this proceeding. Upon review of the arguments of counsel and the jury instructions, however, we are persuaded that the jury was not inclined to improperly punish defendant for the uncharged acts. The fact that the jury was also advised of the acquittal of the offenses against Kimberly diminished the prejudicial impact of the evidence by raising at least some question as to the credibility of her testimony. In any event, the remaining pertinent factors strongly militate in favor of admission of the evidence. We find that the trial court did not abuse its discretion by admitting the evidence of uncharged sexual assaults under section 1108.^[6]

II. The Exclusion of Defense Impeachment Evidence.

Defendant also argues that he was deprived of the opportunity to present relevant impeachment evidence of numerous police reports against other people made by the victim. Defendant sought to impeach the victim with evidence of four police reports by Tamara during the course of seven years: a complaint in October of 1997, that a neighbors dog bit her dog on the paw; the report in February of 1997 of W.s abuse of Tamara and vandalism of her friends car; a complaint in January of 2003 that a former roommate impersonated Tamara and used her name to subscribe to products and websites; and a crime report initially made to a police officer by Tamaras friend that Tamara was accosted by three men who grabbed her around the waist and shoulder, and partially unbuttoned her pants.^[7] The trial court permitted the defense to impeach Tamara with the police report of W.s abuse of her, but excluded evidence of the other three reported incidents as irrelevant. Defendant complains that by refusing to allow the defense to introduce potentially impeaching evidence about [the victims] propensity for filing police complaints against domestic partners, roommates, neighbors and total strangers the trial court violated his right to present a defense.

We begin our analysis of the trial courts exclusion of proffered defense with recognition of a fundamental constitutional premise relied upon by defendant:  [T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this countrys constitutional goal. Indeed, . . . to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendments guarantee of due process of law. [Citation.] (People v. Brown (2003) 31 Cal.4th 518, 538.) Further, a defendant in a criminal case must have an opportunity to present a complete defense to the charges against him. (People v. Adams (2004) 115 Cal.App.4th 243, 254; People v. Sixto (1993) 17 Cal.App.4th 374, 398399.)  Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 269.)

 Evidence showing a witnesss bias or prejudice or which goes to his credibility, veracity or motive may be elicited during cross-examination. [Citation.] (People v. Carpenter (1999) 21 Cal.4th 1016, 1054.)  [A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.  [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 946.) Confrontation clause questions arise where restrictions imposed by the trial court effectively  emasculate the right of cross-examination itself.  (Delaware v. Fensterer (1985) 474 U.S. 15, 19, quoting Smith v. Illinois (1968) 390 U.S. 129, 131.)  It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. . . . [Citations.] (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 11391140.)

The right of confrontation is not absolute, however [citations], and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. [Citation.] (Alvarado v. Superior Court, supra, 23 Cal.4th 1121, 11381139; see also People v. Stritzinger (1983) 34 Cal.3d 505, 515; People v. Harris (1985) 165 Cal.App.3d 1246, 1257.)  [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. [Citations.] Exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendants right of confrontation. (People v. Greenberger (1997) 58 Cal.App.4th 298, 350; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; People v. Cooper (1991) 53 Cal.3d 771, 817; People v. Harris (1989) 47 Cal.3d 1047, 1091.) Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendants due process rights. (See People v. Lucas (1995) 12 Cal.4th 415, 464; People v. Fudge (1994) 7 Cal.4th 1075, 11021103; People v. Hawthorne (1992) 4 Cal.4th 43, 58.)

Evidence Code section 352 permits the trial court to exercise its discretion and restrict cross-examination. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) It also retains discretion to admit and exclude impeachment evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 9; see also People v. Mincey (1992) 2 Cal.4th 408, 440; People v. Price (1991) 1 Cal.4th 324, 412; People v. Sully (1991) 53 Cal.3d 1195, 1221; People v. Morse (1992) 2 Cal.App.4th 620, 641642.) Exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendants right of confrontation. (People v. Greenberger, supra, 58 Cal.App.4th 298, 350; see also People v. Wheeler (1992) 4 Cal.4th 284, 295296; People v. Dyer (1988) 45 Cal.3d 26, 48; People v. Bento (1998) 65 Cal.App.4th 179, 195.) Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendants constitutional rights to confrontation and cross-examination. (People v. Brown, supra, 31 Cal.4th 518, 545.)

As with the evidentiary ruling on the evidence of uncharged sexual assaults, review of a trial courts exclusion of impeachment evidence pursuant to Evidence Code section 352 is subject to abuse of discretion analysis. [Citations.] The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. . . . [Citation.] (People v. Greenberger, supra, 58 Cal.App.4th 298, 352.) We find error only if the trial courts decision exceeded the bounds of reason. (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.)

The probative value for impeachment purposes of evidence that the victim made police reports of other incidents under entirely different circumstances was marginal in the extreme. The fact of the police reports on collateral matters by the victim had little, if any, tendency in reason to prove that she testified untruthfully in the present case, and thus would not have impugned her credibility. (People v. Rodriguez, supra, 20 Cal.4th 1, 10; People v. Hawthorne, supra, 4 Cal.4th 43, 58.) The trial courts wide discretion under Evidence Code section 352 to limit cross-examination is not abused by the exclusion of impeachment evidence which has only marginal probative value. (People v. Wheeler, supra, 4 Cal.4th 284, 296; People v. Dyer, supra, 45 Cal.3d 26, 48; People v. Bento, supra, 65 Cal.App.4th 179, 195.) Further, nothing indicates that the other police reports by Tamara were in any way false. The defense was also granted the opportunity to impeach Tamara by numerous other means, including the evidence of the police report on W.s abuse of her, and his testimony to the contrary. Thus, defendant was not prevented from effectively challenging the credibility of the witness. (People v. Hill (1995) 34 Cal.App.4th 727, 739.)

The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citations.] (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3; see also People v. Cooper, supra, 53 Cal.3d 771, 817.)  Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 494; see also People v. Brown, supra, 31 Cal.4th 518, 545546.) We find that any cross-examination on the content of the excluded police reports would not have produced any different impression of the witness. (People v. Frye, supra, 18 Cal.4th 894, 946.) And finally, we agree with the trial courts assessment that admission of the evidence, the probative value of which was speculative at best, would have entailed undue consumption of time, confusion of the issues, and potential for prejudice. We thus conclude that the court did not abuse its discretion or violate defendants right to cross-examination by excluding the evidence. (People v. Gurule (2002) 28 Cal.4th 557, 619; People v. Brown, supra, at pp. 545546; People v. Box (2000) 23 Cal.4th 1153, 1203; People v. Jenkins (2000) 22 Cal.4th 900, 10141015; People v. Dyer, supra, 45 Cal.3d 26, 50.)

III. The Stay of the One-Year Term for the Prior Prison Term Enhancement.

We proceed to defendants objection to the trial courts order that stayed the one-year enhancement for the prior prison term based upon his federal conviction for bank robbery. He argues that the prison term enhancement pursuant to Penal Code section 667.5, subdivision (b) must be stricken, not stayed. The Attorney General concedes the error, and we agree. (See People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Jones (1993) 5 Cal.4th 1142, 11491153; People v. Haykel (2002) 96 Cal.App.4th 146, 151; People v. Jones (1992) 8 Cal.App.4th 756, 758.) The judgment must be modified to strike rather than stay the one-year prior prison term enhancement.

IV. The Imposition of the Upper Term on Count 1

Defendant claims in his supplemental brief that the imposition of a nine-year upper term sentence on count 1 which was then doubled violated his jury trial and due process rights guaranteed as elucidated in Blakely v. Washington, supra, 542 U.S. 296, 301 (Blakely), and Cunningham, supra, 127 S.Ct. 856, 861. He argues that the trial courts findings of aggravating factors in the absence of a trial by jury requires that we strike the upper term sentence for attempted murder and remand the case for a new sentencing hearing.

In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), that  [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.  (Blakely, supra, 542 U.S. 296, 301, italics added.) The court found that an exceptional sentence beyond the standard range sentence for the offense imposed by a trial judge under Washingtons determinate sentencing based upon several specified facts found by the trial judge violated the Apprendi rule that the jury verdict alone must authorize the sentence. (Blakely, supra, at p. 305, fn. 8; see also People v. Riskin (2006) 143 Cal.App.4th 234, 241; People v. Linder (2006) 139 Cal.App.4th 75, 8384.)

The California Determinate Sentencing Law (DSL) was temporarily spared from the reach of Blakely by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black), where the California Supreme Court decided that a defendants constitutional right to a jury trial is not violated by the trial courts imposition of the upper term sentence for a conviction or by its imposition of consecutive sentences upon two or more convictions. (Id. at p. 1264.) After defendant submitted his opening brief, however, in Cunningham, supra, 127 S.Ct. 856 the United States Supreme Court examined the California determinate sentencing law in light of Blakely. The court in Cunningham reversed the Black decision, and concluded: In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra, 542 U.S. 296, 303 ([T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant (Emphasis in original.).)] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Apprendi, supra, 530 U.S. 466, 490.] (Cunningham, supra, 127 S.Ct. 856, 869.) The court summarized: Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, at p. 871; see also People v. Fluker (2007) 151 Cal.App.4th 515, 519.)

Looking at the record before us, the trial court relied upon the following factors to impose the upper term: defendant has engaged in violent conduct which indicates a serious danger to society; defendants prior convictions are of increasing seriousness; he served a prior prison term; and he was on federal parole or probation when the present offenses were committed. Under Cunningham, the trial courts finding of the aggravating factor that defendant engaged in conduct that represents a serious danger to society was error absent a finding by the jury beyond a reasonable doubt or an admission by defendant. (Cunningham, supra, 127 S.Ct. 856, 871; People v. Diaz (2007) 150 Cal.App.4th 254, 265.)

The findings on the remaining aggravating factors, however, related to defendants prior convictions and status on parole or probation did not violate the precepts articulated in Blakely and Cunningham. In Apprendi the court specifically held, based on its prior decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, that, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. 466, 490, italics added; see also People v. Taylor (2004) 118 Cal.App.4th 11, 28; People v. Superior Court (Andrades)(2003) 113 Cal.App.4th 817, 831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314.) Thus, [b]y its terms, the holding of Apprendi does not apply to the fact of a prior conviction . . . . [Citation.] (People v. Taylor, supra, at p. 28.) Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.)

Nothing articulated in the Blakely or Cunningham opinions casts doubt upon the exclusion in Apprendi of prior conviction allegations from the constitutional right to jury trial. (People v. Waymire (2007) 149 Cal.App.4th 1448, 14541456.) In fact, in Cunningham the court repeated once again the established limitation on the Apprendi rule that the [f]ederal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. 856, 860, italics added.) The California Supreme Court has consistently held that neither the state nor federal Constitution confer the right to have a jury determine any factual issues relating to prior convictions alleged for purposes of enhancing sentence. (People v. Epps (2001) 25 Cal.4th 19, 23; People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Vera (1997) 15 Cal.4th 269, 277; People v. Wiley (1995) 9 Cal.4th 580, 585.) Even in the aftermath of Apprendi our high court held: The right, if any, to a jury trial of prior conviction allegations derives from [Penal Code] sections 1025 and 1158, not from the state or federal Constitution. (People v. Epps, supra, at p. 23; see also People v. Belmares (2003) 106 Cal.App.4th 19, 27.)

The exception has also been found to apply not only to the fact of a prior conviction, but to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also People v. Taylor, supra, 118 Cal.App.4th 11, 2829.) A narrow reading of the Apprendi language to apply to nothing more than the  fact of a prior conviction  fails to consider the bases for the exception, and takes that language out of its context. (People v. Thomas, supra, at p. 216.) A reason for the exemption of prior convictions from the scope of the jury trial requirement for increased sentences, explained the court, is that procedural safeguards attached to any fact of prior conviction. (Apprendi, supra, 530 U.S. 466, 488; see also People v. Lee, supra, 111 Cal.App.4th 1310, 1314.) The court further emphasized that the typical sentencing factor of a prior conviction   does not relate to the commission of the offense.   (Apprendi, supra, at pp. 488, 496, quoting Almendarez-Torres v. United States, supra, 523 U.S. 224, 230, 244; see also People v. Taylor, supra, at p. 29.) And finally, the court excepted the fact of a prior conviction from this holding, because of the long tradition allowing sentencing judges to consider the defendants recidivism. (People v. Bowden (2002) 102 Cal.App.4th 387, 392; see also Jones v. United States (1999) 526 U.S. 227, 249.) [R]ecidivism is as typical a sentencing factor as one might imagine. [Citation.] (Castillo v. United States (2000) 530 U.S. 120, 126.) We therefore conclude that the trial court in the case before us did not violate defendants jury trial rights by finding aggravating circumstances based upon his recidivism. (People v. Abercrombie (2007) 151 Cal.App.4th 585, 591.)

We turn to the issue of prejudice. A sentencing error under Blakely is not a structural defect that demands automatic reversal. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, ___, 126 S.Ct. 2546, 2553]; People v. Epps, supra, 25 Cal.4th 19, 29; People v. Vera, supra, 15 Cal.4th 269, 278; People v. Marshall (1996) 13 Cal.4th 799, 851852.) Rather, we follow the federal standard of review of constitutional errors (Chapman v. California (1967) 386 U.S. 18, 24), and must reverse the sentence unless it appears beyond a reasonable doubt that the assumed error did not contribute to the judgment. (Washington v. Recuenco, supra, 126 S.Ct. 2546, 2553; People v. Neal (2003) 31 Cal.4th 63, 86; People v. Carter (2003) 30 Cal.4th 1166, 12211222; People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Fluker, supra, 151 Cal.App.4th 515, 519.) For Blakely error to require reversal, the error  must have affected the outcome of the [trial] court proceedings. [Citations.] (United States v. Cotton (2002) 535 U.S. 625, 632; People v. Taulton (2005) 129 Cal.App.4th 1218, 1226.)

Considering the properly established record and findings of the increasing seriousness of defendants convictions, his prior prison term; and his federal parole or probation status when the present offenses were committed, there is no reasonable probability that the trial court would have imposed a lesser sentence. A single factor in aggravation will support imposition of an upper term. [Citation.] When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.] (People v. Cruz (1995) 38 Cal.App.4th 427, 433434; see also People v. Osband (1996) 13 Cal.4th 622, 730; People v. Brown (2000) 83 Cal.App.4th 1037, 10431044.) We thus conclude that the trial courts error in finding one aggravating factor was not prejudicial to defendant and does not require reversal. (See People v. Sayres (2007) 150 Cal.App.4th 1040, 10451046; People v. Waymire, supra, 149 Cal.App.4th 1448, 1458; People v. Taulton, supra, 129 Cal.App.4th 1218, 1226; People v. Burbine (2003) 106 Cal.App.4th 1250, 12631264; People v. Williams (1996) 46 Cal.App.4th 1767, 17821783.)

DISPOSITION

The judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b). The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections. In all other respects, the judgment is affirmed.

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^[1] Defendant was previously convicted of the same offenses. The judgment was affirmed by this court, but reversed by the Ninth Circuit Court of Appeal in a habeas corpus proceeding. The convictions currently on appeal before us followed a retrial of the charges.

^[2] For the sake of confidentiality, we will refer to the victim of the charged offenses and the victims of the prior uncharged acts by their first names only.

^[3] The testimony of defendants daughter and son presented at the first trial was read into the record in the second trial.

^[4] The prosecution presented expert opinion testimony on rape trauma syndrome, particularly to account for the delay in disclosure of the incident by C.

^[5] All further statutory references are to the Evidence Code unless otherwise indicated.

^[6] Thus, we need not reach the question of the admissibility of the evidence under section 1101. (People v. Britt, supra, 104 Cal.App.4th 500, 506.)

^[7] The reports wer