IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TAIRON E. ARROLIGA, DEFENDANT AND APPELLANT.
San Mateo County Super. Ct. No. SC067665
The opinion of the court was delivered by: Jones, P.J.
P. v. Arroliga CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Tairon E. Arroliga appeals from a judgment entered after a jury convicted him of four counts of rape (Pen. Code,*fn1 § 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)(2)), and one count of forcible digital penetration. (§ 289, subd. (a)(1).) He contends his conviction must be reversed because the trial court erred when it admitted certain evidence at his trial. We conclude the court did not commit any prejudicial error and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of sexually abusing a woman named Ana.*fn2
On November 7, 2008, Ana and several friends went out to dinner and then to a nightclub in San Francisco. While at the nightclub, Ana met appellant, who was a security guard at the club. Appellant and Ana spoke for several minutes and learned that they both were from Costa Rica. Appellant was dressed in a blue uniform and he carried a gun. Appellant told Ana that he was attending the police academy and that had to wait three months before he could "make the evaluation for police." Appellant gave Ana a business card that had a photograph of him in a uniform armed with a gun. He offered Ana a ride home, but she declined.
The next morning Ana sent a text message to appellant. He replied and Ana and appellant agreed to meet later that day. Appellant picked Ana up in his truck. As they drove to a restaurant in Daly City, appellant mentioned that he had been cleaning his gun that morning. He told Ana that he was waiting to graduate from the police academy and that he planned to join the Highway Patrol.
Appellant and Ana arrived at the restaurant and they had a lengthy meal together. Appellant drank two or three margaritas while Ana had a nonalcoholic drink. During the course of the meal, Ana kissed appellant about three times.
Appellant apparently read more into their meeting than Ana intended. He began to profess his love for her saying he wanted to take her to Costa Rica where they could live together. Ana told appellant he was moving too quickly.
Appellant invited Ana to his home to meet his mother and sister. He told Ana that his mother would convince her that he was a good man. Ana agreed.
When they arrived at appellant's home, appellant led Ana to a bedroom. Ana asked appellant where his mother was. Appellant replied that she was sleeping. Appellant put on some music and Ana sat on the bed. Ana looked around the room. She saw appellant's uniform but she did not see the gun that appellant had mentioned earlier. Appellant came over to Ana, put his body on top of her, and pushed her down onto the bed. Ana protested saying no repeatedly and telling appellant that "[she did not] want this." Appellant ignored Ana's complaints. He removed Ana's pants and then began to abuse her sexually for more than an hour, forcing her to kiss his penis, and penetrating her with his fingers and penis. At one point during the assault, appellant told Ana that he could "feel nothing" and the she was "like . . . a dead woman." He complained to Ana that he could not "finish." At another point, appellant reached over as if he was looking for something. Ana was afraid appellant was reaching for his gun.
Appellant grew tired eventually and Ana told him she wanted to go home. She dressed quickly and appellant gave her a tour of his home. He then drove Ana home. Appellant was angry during the ride. He again complained that he had been unable to "finish" and told Ana, "My balls are hard, and that's your fault."
Once home, Ana took a bath, washed her clothes, and cried herself to sleep. The next day, Ana's friends convinced her she should report the assault to the police. Ana agreed.
Ana contacted the Daly City police that same day. A nurse examined her and found injuries that could have been caused by either consensual or nonconsensual sex.
A detective interviewed Ana on November 14, 2008. While the detective was present, Ana contacted appellant by phone and the call was recorded. Ana asked appellant why he had forced her to have sex even though she told him she did not want to do so. Appellant replied that he felt bad about what he had done and that he was sorry. Appellant blamed his actions on having had too much to drink.
Appellant was arrested on November 20, 2008 when the police stopped him while he was driving his truck. During a subsequent search of the truck, the police found a replica firearm underneath the driver's seat. An officer examined the replica firearm and determined that it was a BB gun.
Based on these facts, an information was filed charging appellant with four counts of rape, one count of forcible oral copulation, and one count of forcible digital penetration.*fn3 The case proceeded to trial where the prosecution presented the evidence we have set forth above. Appellant testified on his own behalf and he admitted having sexual relations with Ana. Appellant said the encounter was consensual and that Ana never objected.
The jurors considering this evidence convicted appellant on all counts. Subsequently the court sentenced appellant to 13 years in prison.
Prior to trial, the prosecutor filed a motion to admit the business card that appellant gave to Ana on the night they met, and the plastic BB gun that was found during a search of appellant's truck. As to the gun, the prosecutor argued it was relevant on the issue of Ana's credibility: "She told the officers that she saw him with a gun. The business card (depicting him holding a gun) and the plastic gun on the Defendant at the time of his arrest corroborates her statement that the Defendant did in fact have access to a replica gun and carried it on his person." The prosecutor argued the gun also was relevant on the issue of Ana's state of mind at the time of the offense: "She told the officers that she was terrified during the assault and that she kept remembering the gun the Defendant had with him when she met him at the nightclub. She also told the officers that she could see his uniform hanging in the room, but did not see his gun. All of this is relevant to explain the limited amount of resistance the victim put up after initially trying to stop the Defendant during the course of the assault."
At the hearing on the motion, the trial court tentatively ruled that it would admit the gun stating, "I can see its relevance in terms of the victim's state of mind." As the court explained, "The reason why I tentatively state that the replica handgun is relevant is because the victim's state of mind is relevant. Her conduct during the assault is relevant. And to that extent, the fact that he is found with it later does corroborate her statements in that regard." Defense counsel argued the fact that the gun was found 10 days after the assault lessened any relevance that it might otherwise have. The trial court conceded the delay was a consideration, but it decided to admit the gun explaining its decision as follows: "with regard to the plastic replica gun, notwithstanding the time delay, I do see that as corroborating what is [the] victim's credibility under circumstances where that would have independent relevance. So under [Evid. Code] 352, I will allow [that item] of evidence to that extent."
Appellant now contends the trial court erred when it admitted the replica firearm into evidence.
The standard of review that we must apply when evaluating this type of argument is settled. The trial court is granted broad discretion to determine whether to admit evidence under Evidence Code section 352, and its ruling will be reversed on appeal only where the court abused its discretion. (People v. Cain (1995) 10 Cal.4th 1, 33.) We find no abuse here.
As the trial court explained, the replica gun was relevant to help explain Ana's state of mind during the rape. The evidence at trial indicated that although Ana told appellant that she did not want to have sex, she did not try to resist his advances physically. One possible explanation for Ana's lack of resistance was the fact that she knew appellant had a gun and she was afraid he might use it against her. Ana's testimony at trial supported that conclusion. She stated that at one point during the rape, the music stopped and appellant reached for something. Ana said she was afraid appellant was reaching for his gun. The fact that appellant carried a gun is supported by several items of evidence. One of Ana's friends testified that appellant was armed with a gun at the club on the night before the rape. Ana herself testified that appellant might have been carrying a gun that night, although her testimony was equivocal.*fn4 Appellant gave Ana a business card that showed him armed with a gun. In addition, Ana testified when she and appellant were driving to the restaurant the following day, appellant mentioned that he had been cleaning his gun that morning. The trial court, considering this evidence, reasonably could conclude that the fact that appellant had a gun, and carried it, helped explain why Ana did not resist more aggressively when appellant was attacking her. We conclude the trial court did not abuse its discretion when it admitted the gun into evidence.
Furthermore, even if we were to assume that the trial court erred on this point, we would not reverse. The question is whether it is reasonably probable appellant would have achieved a more favorable result if the evidence in question had not been admitted. (People v. Page (2008) 44 Cal.4th 1, 41-42; People v. Watson (1956) 46 Cal.2d 818, 836.) The answer clearly is no. First, the evidence in question, a plastic BB gun, is not intrinsically prejudicial. It is unlikely that the jurors would have viewed appellant negatively simply because he carried such a weapon. Second and more importantly, we do not view this as a close case. Appellant admitted that he had sex with Ana and the primary issue at trial was whether Ana consented to the encounter. The transcript of the pretext phone call, in which appellant apologized to Ana for forcing her to engage in sex against her will, was damning.
On this record we do not hesitate to conclude it is not reasonably probable appellant would have achieved a more favorable result if the replica gun had not been admitted. Any possible error was harmless. (People v. Page, supra, 44 Cal.4th at pp. 41-42.)
Finally, we reject appellant's argument that the trial court violated his due process rights when it admitted the replica firearm. "[T]he ordinary rules of evidence, including the application of Evidence Code section 352, do not infringe on the accused's due process right to present a defense." (People v. Frye (1998) 18 Cal.4th 894, 948; disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The judgment is affirmed.*fn5