IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
January 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TYMONE MAURICE ARCHIE, DEFENDANT AND APPELLANT.
Super. Ct. No. 07F09020
The opinion of the court was delivered by: Robie ,j.
P. v. Archie CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 to law enforcement after she became aware of the charges involving [C.]
"PRIOR UNCHARGED VICTIM [M. W.]
"[M. W.] is the half-sister of both [C.] and the defendant's girlfriend, Rachael. In 2005, [M. W.] stayed with Rachael and the defendant, then age 29, on two separate occasions during which the defendant engaged in conduct toward her while she slept. In early 2005, [M. W.] stayed the night with her sister and the defendant while recovering from a kidney infection. [M. W.] was asleep on the sofa in the living room positioned on her side facing out when she awoke to find the defendant crawling in behind her. The defendant was in a 'spoon-like position' with his chest against her back. [M. W.] asked the defendant what he was doing. The defendant responded, 'I can't sleep.' At this point, [M. W.] got up from the sofa and lay on the floor where she fell back asleep. A short time later, she rolled over and found the defendant asleep approximately eight inches away from her. Although he was not touching her, this made [M. W.] uncomfortable. She called her boyfriend to pick her up and stayed awake until he arrived. Her sister had left for work and [M. W.] did not want to be alone with the defendant.
"Later that year, [M. W.] stayed with the couple again for several days. During this time, she slept on a futon in the formal living room. One night she fell asleep on the futon and woke up because she felt someone staring at her. Defendant was sitting on the foot of the futon. [M. W.] asked the defendant what he was doing. The defendant responded, 'I folded your laundry.' [M. W.] told the defendant to go to bed. At this point, the defendant got off the futon and lay on the floor next to it for about an hour. [M. W.] was scared and felt uncomfortable with his behavior. She did not go back to sleep. Around Easter 2006, [M. W.] told her sister about the defendant's inappropriate behavior. However, [M. W.]'s sister did not believe her and kept 'making excuses' for the defendant. [M. W.] was approximately twenty-two years old when the two incidents occurred. [M. W.] gave a statement to law enforcement after she became aware of the charges involving [C.]"
Prior Uncharged Acts
Prior Acts Against M. W.
The trial court admitted evidence of defendant's prior acts toward M. W. under section 1101, subdivision (b). Defendant contends this evidence should have been excluded as irrelevant and an unnecessary consumption of time.
Section 1101, subdivision (b), allows the admission of evidence of prior uncharged acts where relevant to prove facts such as motive, intent, knowledge or absence of mistake. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . .' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
The determination whether to admit evidence of uncharged offenses is within the discretion of the trial court. (People v. Kelly (2007) 42 Cal.4th 763, 783.) The trial court has the discretion to admit evidence of uncharged crimes after weighing the probative value against the prejudicial effect. (People v. Butler (2005) 127 Cal.App.4th 49, 60.) On appeal, a trial court's ruling under sections 1101 and 352 is reviewed for abuse of discretion (Butler, at p. 60) and is entitled to deference (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001).
Here, defendant's intent was clearly material to establishing both counts alleged against him. Not only was his intent at issue by virtue of his plea of not guilty (People v. Rowland (1992) 4 Cal.4th 238, 260), defendant had specifically disputed criminal intent. He claimed that he had taken pain medication and alcohol the night he committed the offenses against the victim and he did nothing besides watch television in the victim's room, did not remember doing anything else, but may have mistakenly believed he was in bed with his girlfriend.
Thus, evidence that defendant had crawled up behind M. W. while she slept at Rachael's house and began "spooning" her, was admissible as it tended to logically, naturally, and by reasonable inference, rebut the mistake and lack of intent defense, and show a common plan. (See People v. Hill (1967) 66 Cal.2d 536, 556-557; People v. Thompson (1980) 27 Cal.3d 303, 315-318.) The evidence tends to show that defendant did not merely confuse the victim for his girlfriend and that his act of sleeping with a relative guest in his girlfriend's home was not due to mistake or being under the influence of heavy pain medication. Likewise, the fact that defendant continued to sleep next to M. W. on two occasions, even after she tried to move away or told him to go to bed, was probative for these same reasons. The evidence tends to show that defendant was not, as he contended, in the victim's bed by mistake.
Even where evidence of uncharged acts is otherwise admissible pursuant to section 1101, subdivision (b), the trial court must consider the policies underlying the general rule of exclusion in the context of section 352. (People v. Balcom (1994) 7 Cal.4th 414, 426-427.) Thus, a trial court may exclude otherwise relevant evidence proffered under section 1101, subdivision (b), if it determines under section 352 that the probative value is substantially outweighed by the probability it will cause delay, create a substantial danger of undue prejudice, confuse the issues or mislead the jury. (ÃéÂ§ 352; People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Again, the trial court has broad discretion in making this assessment and it will not be disturbed on appeal except upon a showing the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Defendant fails to identify, nor do we see, anything unduly prejudicial in the challenged evidence. Instead, defendant contends the evidence should have been excluded as cumulative, causing undue delay, since the prosecution had other ways of establishing that he was not in the victim's room by mistake. The prosecutor, however, represented to the trial court that the testimony would take about two hours over the course of an estimated eight-day trial. The trial court reasonably concluded that this was not unduly time consumptive.
Accordingly, the trial court did not abuse its discretion in admitting the evidence of defendant's acts toward M. W.
Prior Acts Against M. G.
The trial court also admitted evidence of defendant's prior assaults on M. G. pursuant to sections 1101, subdivision (b) and 1108. Defendant contends this evidence should have been excluded as more prejudicial than probative.
Evidence of prior criminal conduct is generally inadmissible to show that the defendant has a propensity or disposition to commit those acts. (ÃéÂ§ 1101, subd. (a).) However, the Legislature created exceptions to the general rule where the uncharged acts involve sexual offenses or domestic violence. (ÃéÂ§ÃéÂ§ 1108, 1109.) Under section 1108, subdivision (a), "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
By its express language, section 1108 requires the court to engage in the weighing process under section 352 before admitting propensity evidence. (ÃéÂ§ 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 917.) In this weighing process, the court must consider factors such as relevance, similarity to the charged offense, the certainty of commission, remoteness, and the likelihood of distracting or inflaming the jury. (Falsetta, at p. 917.) We review a challenge to admission of prior bad acts under section 352 for abuse of discretion and will reverse only if the trial court's ruling was "'arbitrary, whimsical, or capricious as a matter of law. [Citation.]'" (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Evidence of defendant's prior sexual offenses against M. G. was clearly probative. Defendant claimed he lacked criminal intent, had mistakenly ended up in the victim's bed, and mistakenly engaged in sexual intercourse with her. Defendant's disposition or propensity to commit sexual offenses against young females was thus relevant to prove his sexual intent. And although not identical to the present offense, the uncharged acts were sufficiently similar to be particularly probative. The assaults on M. G. involved defendant taking sexual advantage of a young female relative of his girlfriend on at least one occasion, while his girlfriend was sleeping in the same house; and on at least one occasion, commencing the assault while the young female was sleeping and then penetrating her from behind. As noted by the trial court, the first assault on M. G. was very similar to the charged offense -- and while the second and third assaults were not as similar, "with the number of prior offenses, actually, each offense increases in probative value."
The trial court specifically considered the inflammatory nature of defendant's acts against M. G. and concluded that even the most inflammatory act, forcible rape of a minor, was commensurately inflammatory with the charged offense of rape of an unconscious minor. The court also considered that defendant's acts against M. G. were not particularly remote, having taken place only five years earlier, and the estimated consumption of time to present this evidence was only two hours of an eight-day trial.
Upon carefully weighing all the relevant factors, the trial court concluded that the probative value of the evidence was not outweighed by considerations of undue prejudice, confusion, or consumption of time. This was not an abuse of discretion.
Our conclusion that the evidence was admissible pursuant to section 1108 makes it unnecessary to consider defendant's argument that the prior sexual offenses were inadmissible pursuant to section 1101.
Constitutionality Of Section 1108
Finally, defendant contends section 1108 violates the due process clause of the United States Constitution. He acknowledges, as he must, that our Supreme Court has rejected this claim (People v. Falsetta, supra, 21 Cal.4th at pp. 912-922), and that its decision is binding upon this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). He nevertheless includes the claim "to preserve it for further federal appellate review." We, of course, are not free to consider it.
Defendant contends the trial court erred in permitting evidence of C.'s text messages to Marcella under the fresh complaint doctrine. We disagree.
Under the fresh complaint doctrine, proof of complaints made by a victim of a sex offense to third persons may be admissible for the non-hearsay purpose of establishing that such a report was made in order to forestall the trier of fact from inferring erroneously that no report was made, and from further concluding, as a result of that mistaken inference, that the victim in fact had not been sexually assaulted. (People v. Brown (1994) 8 Cal.4th 746, 748-749.)
The prosecution may introduce testimony establishing the fact of, and the circumstances surrounding, the victim's disclosure of the alleged offense. (People v. Brown, supra, 8 Cal.4th at pp. 762-763.) The trial court should exercise caution to exclude the details of the alleged sexual incident because "a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge." (Brown, at p. 763.)
In the instant case, the trial court properly admitted C.'s text messages to Marcella under the guidelines described above. C.'s first message was received on Marcella's phone at 5:53 a.m., and read "I know it's hella early, but I am freaking out right now. When you get this, please text or call me. I really need you." Marcella did not see the message until after 9:00 a.m., whereupon she texted back to ask what was wrong. Marcella received a reply at 9:14 a.m., within three minutes, which read, "I woke up last night and [defendant] was in my bed and he was inside of me. I don't know what to do, dude, I am hella scared." In response to Marcella's inquiry of whether C. had told Rachael, she received a text which read, "Yes, I am sure. I told my sister this time and she said that she saw [defendant] come out of my room even. So, yeah, but she's not going to say anything about it."
C.'s text messages fit squarely within the fresh complaint doctrine. The messages did not provide a detailed account of the assault. From the text messages, the jury could learn only that C. claimed she woke up to find defendant's penis inside her. This described the nature of the offense, the identity of the alleged offender, and little more. C.'s messages established that she promptly reported the fact of the offense to Marcella (and Rachael), without including any detailed information. We find no error in the trial court's admission of the testimony of C.'s text messages.
To the extent that defendant now also contends that the part of the message that stated Rachael had seen defendant leave C.'s bedroom was inadmissible and should have been excluded as double hearsay, he has forfeited that claim for failure to raise it in the trial court. (ÃéÂ§ 353; People v. Williams (2008) 43 Cal.4th 584, 620.)
Defendant contends, and the People concede, that the trial court erred in its calculation of his presentence custody credits, which it had adopted from an erroneous probation report. We accept the concession.
Prior to sentencing, defendant had two periods of incarceration. He was incarcerated from September 15, 2007, to September 17, 2007, and from September 29, 2008, to July 10, 2009. Thus, defendant has 288 days of actual custody time. The recent amendments to Penal Code section 4019 do not operate to modify defendant's entitlement to credit as he was convicted of a serious felony and is required to register as a sex offender. (See former Pen Code, ÃéÂ§ 4019, subds. (b) & (c) [Stats. 2009, 3d Ex. Sess., ch. 28, ÃéÂ§ 50]; Pen. Code, ÃéÂ§ÃéÂ§ 261, subd. (a)(4), 1192.7, subd. (c)(3), 290; see also 4019, 2933, subd. (e)(3) [Stats. 2010, ch. 426.) Under the then-applicable formula, having served 288 actual days, defendant is entitled to 144 days of conduct credits for a total of 432 days of custody credit. (See former Pen. Code, ÃéÂ§ 4019; Stats. 1982, ch. 1234; People v. Smith (1989) 211 Cal.App.3d 523, 527.)
The judgment is modified to award defendant with 288 actual days, 144 conduct days, for a total of 432 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of same to the Department of Corrections and Rehabilitation.
RAYE Acting P.J.