The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Tymone Maurice Archie guilty of sexual intercourse with an unconscious person and sexual intercourse with a minor more than three years younger. Sentenced to six years in state prison, defendant appeals. He contends the trial court improperly admitted evidence of his prior assaults on two other individuals and the victim's text messages to a friend. He also identifies an error in the calculation of his presentence custody credits. We shall modify the judgment to correct the additional custody credits and otherwise affirm.
Defendant was charged with unlawful sexual intercourse with an unconscious person and sexual intercourse with a minor more than three years younger, both with respect to acts he perpetrated upon victim C. on September 15, 2007.
Prior to trial, the trial court granted the prosecution's motion to admit evidence of defendant's prior assaults on M. W. under Evidence Code*fn1 section 1101, subdivision (b), and on M. G. under Evidence Code sections 1101, subdivision (b) and 1108. The court also denied defendant's pretrial motion to exclude evidence of the victim's text messages regarding defendant's assault.
Because defendant's assignments of error relate to these in limine rulings, we shall set forth the evidence proffered at the time the rulings on admissibility were made, not the evidence presented at trial. (People v. Welch (1999) 20 Cal.4th 701, 739 [in reviewing the trial court's ruling, we consider the facts that were before the court at the time of its ruling, not those produced at a later date]; People v. Hernandez (1999) 71 Cal.App.4th 417, 425 [same].)
The following evidentiary summary is taken from the People's motion in limine:
"In September 2007, the sixteen year old victim [C.] was living with her sister Rachael, her sister's 31 year old boyfriend [defendant] and the couple's three young children. The defendant would often sneak into bed with [C.] and cuddle. But when she expressed concerns, her sister did not believe her. At approximately 5:30 a.m. on September 15, 2007, [C.] was asleep in her room (formerly the kids' playroom) lying on her side when she awoke to find the defendant lying behind her in a 'spooning' position. The defendant's erect penis was inside her vagina. Scared, [C.] moved slightly but did not communicate with the defendant. At this point, the defendant left the room without saying anything. [C.] was unsure whether the defendant used a condom or ejaculated.
"Immediately following the incident, [C.] sent a text message to her friend Marcella stating that she was 'freaking out' and asked Marcella to call her. A few hours later, Marcella responded and asked what was wrong. In an exchange of text messages, [C.] told Marcella that she woke up and the defendant was in her bed inside of her. She stated that she was scared and did not know what to do. [C.] said that Rachael acknowledged that she saw defendant coming out of her room and talked with the defendant about the incident. However, her sister was not going to do anything about it and warned [C.] 'don't tell anyone or do anything I will regret.' Her sister stated that they would 'handle it in the family.' [C.] eventually went to Marcella's house where CPS [Child Protective Services] responded and subsequently contacted the Sacramento County Sheriff's Department.
"A Sheriff's Department detective conducted a recorded telephone conversation between [C.] and the defendant. When she confronted the defendant about the incident, he stated that he took a 'bunch of pills' before he went to bed and did not remember what happened after that. However, the defendant never denied having sex with [C.] and remembered leaving her room. The defendant said that he must have thought he was in bed with Rachael. The defendant apologized numerous times and told [C.] that he did not mean to do it. The defendant could not remember whether he used a condom or whether he ejaculated. When asked about the other times the defendant was caught in her room by Rachael, the defendant stated he was there 'watching television' with her.
"Later that evening, the defendant gave a Mirandized*fn2 statement to the same detective. The defendant indicated that he was in a motorcycle accident in August of 2007 and the doctor prescribed Vicodin and Percoset for pain. According to the defendant, he took both medications with two shots of Vodka or Gin the night before because he could not sleep. He stated that he did not remember what happened or if he ejaculated. But the defendant was doubtful that he could get an erection while on the medication. However, he acknowledged being in [C.]'s room and could not explain why. Also, the defendant stated that he had been in the room with her before to watch television.
"The defendant is charged with violations of Penal Code section 261(a)(4) and 261.5(c).
"PRIOR UNCHARGED VICTIM [M. G.]
"[M. G.] is the cousin of both [C.] and the defendant's girlfriend, Rachael. [M. G.] was 15 years-old when she lived with Rachael in 2002. That summer her cousin and the defendant, then age 26, started dating. At that time, the defendant did not live with Rachael, however, he would often sleep over. During 2002, the defendant sexually assaulted [M. G.] on several occasions. On the first occasion, [M. G.] was sleeping in Rachael's son's room and awoke to find the defendant massaging her back as she lay on her stomach. The defendant pulled her pajama bottoms down and penetrated her vagina with his penis while she lay on her stomach. When he was done, the defendant returned to Rachael's room and [M. G.] ran to a friend's apartment in the same complex. [M. G.] did not report the incident. A few months later, the defendant showed up at [M. G.]'s school and ordered her to get into his car. He drove [M. G.] to his apartment and raped her. The defendant would always tell [M. G.] not to tell anyone and that no one would believe her even if she did tell someone. Again, [M. G.] did not report the assault. She was scared of getting 'beat up' by the defendant. She was 'deathly' afraid of him.
"When the defendant assaulted [M. G.], he ejaculated and never used condoms. During the assaults, he secured her arms leaving [M. G.] with bruises and scratches on her arms. [M. G.] never fought back. However, on one particular occasion, [M. G.] became hysterical when the defendant attempted to assault her while Rachael was sleeping. [M. G.] believed the defendant stopped because he feared Rachael would wake up.
"When [M. G.] eventually attempted to talk with Rachael about what happened, Rachael accused her of 'coming onto' the defendant and stated that [M. G.] was having sex with him. Afterwards, [M. G.] and Rachael stopped communicating. [M. G.] finally reported these incidents ...