Santa Clara County Ct.App. 6 H030020 Super. Ct. No. 210711 Judge: Linda R. Condron.
The opinion of the court was delivered by: Chin, J.
When a defendant is accused of a "sexual offense," Evidence Code section 1108*fn1 gives the trial court discretion to admit evidence of other sexual offenses the defendant committed. As relevant here, the statute defines sexual offense a crime or attempted crime that "involve[s]" "[a]ny conduct proscribed by" various other penal provisions, including Penal Code section 261, which defines the crime of rape. (§ 1108. subd. (d)(1).) We granted review primarily to decide whether a defendant tried for first degree felony murder, with rape the underlying felony, is accused of a sexual offense under this definition.
Because a murder during the course of a rape involves conduct, or at least an attempt to engage in conduct, proscribed by Penal Code section 261, we conclude that a defendant accused of such a murder is accused of a sexual offense within the meaning of section 1108. Accordingly, we reverse the judgment of the Court of Appeal, which had found the trial court prejudicially erred in admitting evidence of other sexual offenses.
The Court of Appeal also concluded insufficient evidence supported the jury's finding that defendant murdered the victim while raping her. We conclude the Court of Appeal erred in this respect also. Ample evidence supports the jury's verdict of first degree felony murder.
I. FACTS AND PROCEDURAL HISTORY
A. Evidence Presented at Trial
On October 22, 1976, 26-year-old Betty Yvonne Vickers was found dead, lying on her stomach on the right side of the bed in the bedroom of her apartment on Dana Street in Mountain View. She was wearing only a football jersey; the bottom half of her body was covered with bed covers. Panties were under the pillow on the bed and a bloody tampon was on the bed beside her body. A large semen stain was found on the bottom sheet. The rest of the apartment contained no evidence of a struggle.
An autopsy revealed that Vickers had been strangled to death. Her body had many abrasions and other injuries, some caused by the victim struggling while she was being strangled. The pathologist testified that the injuries were most consistent with the victim "being face up and someone applying their hands to her neck and either their elbows on to the collar bones or the chest or perhaps even their knees to straddle her and immobilize her." The vagina contained a white discharge but no sign of injuries. The pathologist testified that the absence of injury to the vagina did not rule out a sexual assault. There was no evidence of sperm, which is what would be expected if the assailant had had a vasectomy. (Defendant had had a vasectomy.) The victim was menstruating when she died.
The pathologist estimated the time of death as shortly after the victim's friends last saw her alive, which was around 1:30 a.m. the morning her body was found.
Defendant and Vickers had been co-workers in Palo Alto. A friend who lived with Vickers in the summer of 1976, before Vickers moved into the Dana Street apartment, testified that defendant was once at her and Vickers's home. Another time, Vickers told the friend that defendant had spent the night at their home but, Vickers told the friend, " 'Nothing happened. I just let him sleep here but nothing happened. I'm on my period.' "
One Sunday morning in September 1976, around the time Vickers moved into the Dana Street apartment, a man later identified as defendant appeared at the sliding glass door of an apartment near Vickers's apartment. He told two women in the apartment that he was looking for Vickers. The women, who had not previously known defendant, told him they did not know her. Defendant became persistent and even hostile, making the women uneasy, before he finally left. That evening, when one of the women was alone in the apartment, defendant knocked on the door. He told the woman something like "Betty had stood him up." He had alcohol on his breath, which made the woman uncomfortable. Eventually defendant left.
Before her death, Vickers and some of her friends often socialized at the Saint James Infirmary, a Mountain View bar about two and a half miles from Vickers's Dana Street apartment. Defendant sometimes joined the group, although he was not a regular. Vickers introduced him to the others as a co-worker. On the evening of October 21, 1976, the night of her death, Vickers had dinner with her sister in Pacifica, then went to the Saint James Infirmary, arriving sometime around 8:30 to 10:00 p.m. She sat with some of her friends, including Shirley Kovach and Patricia Courter. Kovach had driven Courter to the bar and expected to drive her home at the end of the evening.
During the course of the evening, defendant joined the group. At one point, defendant asked Courter if she wanted to have breakfast with him at Denny's. She said no, she was not interested. She felt defendant was trying to "hit on" her. Courter then observed defendant talk to Vickers and saw Vickers shake her head no. Courter could not hear what they were talking about, but she saw Vickers turn her back on defendant as if she did not want to talk with him any more.
The group left the bar shortly after 1:00 a.m. that morning. As they were leaving, Vickers asked Kovach if she, Kovach, could go home with her. Kovach said she could not do so because she had to give Courter a ride home. Outside the bar, Courter observed defendant approach Vickers and say something in what appeared to be a whisper. Courter could not hear what it was, but she saw Vickers shake her head no. Vickers then got into her car and drove away alone in the direction of her apartment. Defendant also drove away in his car, going in the same direction. It was the last time her friends saw Vickers alive.
After Vickers's body was found, defendant told the police that he had been at the Saint James Infirmary the night she died and left around 1:30 a.m. He said he went directly home without making any stops and arrived home no later than 2:00 a.m. His wife at the time testified that he was not home that night between the hours of 2:00 and 4:00 a.m. Later defendant told her that he had been "out driving around," but he did not say where. Defendant's first wife, who had been married to him from 1971 to 1973, testified that on the day of Vickers's funeral, defendant asked her to have lunch with him. At lunch, defendant told her that the police might ask her questions regarding his whereabouts. He asked her to give him a false alibi for the early morning hours of the night Vickers died. He also told her he had been at the Saint James Infirmary that night with a group of people, including Vickers. He said that after he left the bar, he drove around for a while. A couple of days later, defendant again asked his former wife to provide a false alibi. She told him she would not do so. Defendant never denied killing Vickers.
One of defendant's co-workers testified that defendant called her on the telephone and accused her of telling the police that he had admitted killing Vickers. She told him she had not done so, then also told him that he had never denied the killing. Defendant responded immediately, "just don't worry about it."
Two women who were married to defendant after Vickers's death testified that on a number of occasions before they were married, defendant told them that he had killed before and had gotten away with it. He was serious. One of the former wives testified that she and defendant lived in Arizona at the time. In connection with his statement that he had killed before and gotten away with it, he told her "why do you think I had to leave California." He also said that he had been arrested in connection with the killing he had gotten away with, but he was then released because of insufficient evidence. In fact, defendant had been arrested for the Vickers killing and subsequently released for lack of evidence.
A criminalist examined the semen stain on the bedsheet using techniques available in 1976. He concluded that defendant could not be excluded as a donor of the semen, but neither could most of the population. In 2001, when investigation into this case was reopened, and since then, the physical evidence, including the bedsheet, could not be located.
Over objection, the trial court admitted evidence of four other sexual assaults that defendant committed, two before and two after Vickers's death.
Maureen E. testified that she met defendant in August 1973. He was interested in dating her but she was not, although they did have one date. Around 8:00 p.m., February 13, 1974, defendant appeared unexpectedly at her apartment "reek[ing] of alcohol." He entered the apartment, then struck her on the head with a gun, rendering her unconscious. When she regained consciousness, defendant dragged her into the bedroom and ripped her clothes off. At some point, defendant left the bedroom. Maureen broke open a window and screamed, but defendant returned, grabbed her, threw her onto the bed on her back, pinned her down with his legs, and strangled her "into unconsciousness." When she regained consciousness again, defendant was gone.
Jayne H. testified that she met defendant on one occasion at her home in July 1975. She next met defendant in early 1976 as part of a group that included Vickers at the Saint James Infirmary. Defendant engaged Jayne in a conversation that made her uncomfortable, and she left the group. Later that evening, he knocked on the door of her home, asked her why she had left the bar without saying goodbye, and then entered the house uninvited. He began to kiss her and, despite her protests, forced her to have sexual intercourse against her will.
Andrea H. testified that in 1980 she met defendant in Arizona. The day after she met him, she went on a date with him. In his car, he tried to kiss her; when she asked him to stop, he choked her. As a result, she did not want to see him again. Less than a month later, on May 29, 1980, around 11:00 p.m., defendant entered her apartment uninvited. She told him to leave, but defendant pulled out a gun and raped her. Afterwards, defendant straddled her and began to strangle her. After ...