IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TIMOTHY PAUL THOMPSON, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Hull , Acting P. J.
P. v. Thompson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CRF066681)
A jury convicted defendant of forcible rape (Pen. Code, § 261, subd. (a)(2); unspecified section references that follow are to the Penal Code), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), and attempted penetration by a foreign object (§§ 664/289, subd. (a)(1)), and found charged enhancements to be true (§ 667.61, subd. (b)). The jury was unable to reach verdicts as to two other counts, kidnapping for the purpose of oral copulation (§ 209, subd. (b)(1)) and attempted sodomy (§§ 664/21a, 286, subd. (c)(2)). The court dismissed those charges and sentenced defendant to an aggregate prison term of 18 years to life.
On appeal, defendant contends that (1) the trial court erroneously allowed evidence of other offenses, (2) his attorney did not provide the effective assistance of counsel, and (3) the cumulative effect of these errors compels reversal. We find merit in one of defendant's ineffective assistance of counsel claims and reverse his conviction on count 5 for forcible oral copulation. This conclusion obviates the need to address the People's claim that the court erred in imposing sentence on this particular count.
FACTS AND PROCEEDINGS
On a cold, rainy November evening, the victim left her apartment in her pajamas and a sweater to do her laundry in the complex's laundry room. She passed a person she did not know, later identified as defendant.
On one of the victim's trips back and forth to the laundry room to check her wash, defendant ran up behind her and grabbed her around the neck. The victim screamed but defendant covered her mouth and forced her along as he walked. When the victim fell on the grass, defendant pulled her up by the hair, grabbed her neck, and took her behind one of the apartment buildings.
He threw the victim against the wall, pushed her to her knees and forced her to orally copulate him. He then raped her.
Defendant grabbed the victim around the neck and pulled her toward a park across the street from the complex. When defendant received a call on his cell phone, the victim attempted to run away but she slipped in the mud and defendant pulled her back by her hair and forced her to the park. Defendant put his fingers underneath the victim's clothes and attempted to digitally penetrate her vagina. He also forced the victim to orally copulate him.
Defendant let the victim go and she ran back to her apartment. Her roommates described her as disheveled, and her clothes as wet and dirty. Her neck had red marks on it. The victim was crying, shaking, and scared, and she initially did not want to talk about what had happened. She eventually told her roommates that she had been raped.
A non-Spanish speaking officer arrived on the scene and found the victim huddled on the floor, shaking and crying. She had mud on her pajama pants. The officer did not notice any smell of alcohol. An interpreter arrived and the victim gave a brief statement while crying.
The victim was taken to the hospital, where she was interviewed by officers and examined by medical staff. The victim was described as disheveled. The nurse practitioner, a very experienced sexual assault examiner, was bilingual and spoke with the victim, who told her defendant had grabbed her neck, forced her to orally copulate him, raped her, and attempted acts of digital penetration and sodomy. She had never seen defendant before.
The physical examination revealed scrapes and abrasions on the victim's foot, arm and neck. The nurse also found injuries to the victim's cervix, injuries the nurse had seen only in cases of sexual assault. The victim's blood alcohol level was 0.00 percent according to analysis of a blood sample taken at 1:45 a.m. the following morning.
The victim helped officers create a composite drawing of her assailant and she subsequently picked defendant out of a photographic lineup. Laboratory tests matched DNA evidence to defendant.
When defendant was interviewed and told he was under arrest for rape, he asked where the rape happened and "Who's the girl?" He denied being at the park, said he was with his cousin at the time the assault occurred, and denied having sex outside with anyone on that date. However, defendant later changed his story and said he had gotten drunk with "one Mexican girl" and had sex with her. He had met this girl a few weeks earlier, but didn't talk with her much because she spoke little English and he knew little Spanish. Defendant said that he did not have a phone number for her and did not know her name, but added that she had phoned him. He asserted that the two of them engaged in consensual sexual activity behind the apartment complex.
The victim's cell phone records did not show any calls to defendant's phone numbers, nor were there any calls from defendant to the victim.
As described in detail below, the prosecution introduced evidence that defendant had previously tried to force his way into the apartment of another resident at the same complex, and had exposed himself to teachers in Juvenile Hall.
At trial, defendant argued that his encounters with the victim were consensual. He challenged the victim's credibility, and argued the implausibility of the offenses occurring at the park as described because he was on his cell phone for much of that time.
The jury convicted defendant of rape, two counts of oral copulation, and one count of attempted penetration by a foreign object. The jury was unable to reach verdicts on charges of attempted sodomy and kidnapping for purposes of oral copulation, and those counts were ultimately dismissed.
The court sentenced defendant to an aggregate sentence of 18 years to life and this appeal followed.
Evidence of Other Acts
Defendant contends that the court erred in admitting evidence of other acts, namely, an incident in which defendant tried to enter the apartment of another woman in the same apartment complex, and three instances in which defendant exposed himself to his teachers. Any error was harmless.
Evidence Code section 1101 prohibits the admission of character evidence and specific instances of conduct to prove a defendant's conduct on another occasion. However, if the evidence is relevant to prove a fact other than disposition to commit the offense, such as motive, intent, common plan, or identity, it may be admitted. (§ 1101, subd. (b).)
In prosecutions for sex offenses, Evidence Code section 1108, subdivision (a) provides another exception to the general rule against propensity evidence by permitting evidence of the defendant's commission of other sexual offenses, subject to assessment under Evidence Code section 352. (See People v. Falsetta (1999) 21 Cal.4th 903, 907, 917.)
A trial court's balancing of factors under Evidence Code section 352 is reviewed under an abuse of discretion standard and will be reversed only if its discretion is exercised in an arbitrary, capricious or absurd manner resulting in the manifest miscarriage of justice. (People v. Carter (2005) 36 Cal.4th 1114, 1149; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
With these principles in mind, we turn to defendant's specific claims.
Indecent Exposure Incidents
Defendant exposed his penis to Juvenile Hall teachers on three occasions. The prosecutor sought to introduce this evidence under Evidence Code section 1108, which permits introduction of acts of indecent exposure. (See Pen. Code, § 314; Evid. Code, § 1108, subd. (d)(1)(a).) Defendant argued that this evidence was overly prejudicial and should be excluded under Evidence Code section 352. The trial court ruled the evidence admissible and the teachers subsequently described the incidents in which defendant exposed his penis in the classroom.
On appeal, defendant contends the trial court erred because evidence of indecent exposure has no tendency in reason to establish a predisposition to commit rape or other violent sexual assaults. (See Evid. Code, § 210.) In arguing that this evidence lacked probative value, defendant relies on People v. Earle (2009) 172 Cal.App.4th 372 (Earle).
In Earle, the defendant was charged in two separate cases, one involving misdemeanor indecent exposure and the other involving felony sexual assault. The cases had been consolidated for trial and the defendant unsuccessfully sought to sever them. (Earle, supra, 172 Cal.App.4th at p. 378.) In reviewing the trial court's decision, the Court of Appeal evaluated the cross-admissibility of evidence and concluded that evidence of acts of indecent exposure would not be admissible in a separate prosecution for sexual assault. The court noted that Evidence Code section 1108 "cannot infuse an uncharged offense with relevance or probative value it cannot rationally be found to possess. In order for evidence of another crime to be relevant under Evidence Code section 1108, it must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged." (Id. at p. 397.)
The court continued: "Does the commission of indecent exposure rationally support an inference that the perpetrator has a propensity or predisposition to commit rape? Not without some kind of expert testimony, it does not." (Earle, supra, 172 Cal.App.4th at p. 398.) The court contrasted this situation with one in which a defendant charged with indecent exposure had committed the same act earlier: "[I]t is a good bet that someone who commits this act once will be predisposed to commit it again (and again). This provides a solid foundation for a focused inference that a defendant, having criminally exposed himself on one occasion will do so again. This in turn adds weight to an accusation that he has done so again. [¶] But a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act. The psychological manuals are full of paraphilias, from clothing fetishes to self-mutilation, some of which are criminal, some of which are not. No layperson can do more than guess at the extent, if any, to which a person predisposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct, criminal or otherwise. . . . Without some evidence on the subject, a jury cannot answer these questions." (Id. at p. 399.)
The court concluded that "defendant's commission of indecent exposure was simply irrelevant to the assault charge, i.e., it had no tendency in reason to show that he committed the latter offense," and therefore would not be admissible in a separate trial for assault. (Earle, supra, 172 Cal.App.4th at p. 400.)
We question the Earle court's approach. Its blanket conclusions usurp the trial court's discretion to determine the relevance of particular prior sexual offenses to the charged crimes. (See People v. Harris (2005) 37 Cal.4th 310, 337.) Expert testimony in fact may be necessary but that determination is one best left to the trial court's discretion, and reviewing courts should evaluate that decision under the traditional abuse of discretion standard associated with Evidence Code section 352.
Additionally, we note that requiring experts to testify about the relevance of different sexual offenses to one another flies in the face of the statute's underlying purpose of making prior sexual offenses more easily admissible in certain subsequent prosecutions. As the California Supreme Court noted, Evidence Code section 1108 "was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offense in evaluating the victim's and the defendant's credibility." (People v. Falsetta, supra, 21 Cal.4th at p. 911, italics added.)
But even if we were to assume that evidence relating to indecent exposure was irrelevant to the later charges of rape and other forcible sex offenses, defendant cannot demonstrate that any prejudice resulted from the admission of this evidence.
Defendant's sole defense was consent. There was virtually no evidence to support this claim.
The assault took place outdoors on a cold and rainy evening. The victim was dressed in light clothing while she went back and forth to from her apartment to the laundry room. The idea that she would willingly engage in sex acts outdoors in a winter environment is less than credible.
The victim's behavior after the assault was consistent with forcible acts, not a consensual encounter. She was huddled on the floor, trembling, and crying. She was reluctant to talk to her roommates about what happened. Her clothes were wet and muddy in places consistent with her description of the assault.
More importantly, the physical evidence was consistent with a forcible attack. The victim had scratches and abrasions, and a physical exam revealed injuries to her cervix that the nurse practitioner had seen only in cases of forcible sex.
Defendant's story to police officers was, to be blunt, implausible. Defendant initially denied any involvement in any sexual activity. Only later in his interview with investigators did defendant say he had gotten drunk with a "Mexican girl" that he knew and then had sex with her. However, none of the witnesses smelled alcohol on the victim's breath after the incident and her blood alcohol level at the hospital was 0.00 percent.
Although defendant claimed to know the victim, he did not know her name or phone number and did not explain how they communicated, given that defendant spoke little Spanish and the victim spoke little English. Defendant asserted that the victim called him, but phone records did not indicate any such calls had been made. Witnesses called by defendant to attest to the fact that they had seen defendant and the victim together were less than convincing as neither of them could identify the victim as the woman they had seen with defendant. The victim consistently said she did not know her assailant and had never seen him before.
Given this overwhelming evidence, a result more favorable to defendant would not have been likely even if the challenged evidence had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
A few weeks before defendant assaulted the victim, he knocked on the door of another woman in the same apartment complex. When the resident opened the door, defendant asked her if she lived alone. The resident became scared, closed the door and called the rental office. An employee went out to investigate and found defendant on the property, but defendant denied approaching the resident. The resident, however, identified defendant as the person who came to her door, and said she had seen him hanging around the apartment complex and the nearby park on several occasions.
The People sought to admit this evidence under Evidence Code section 1108, which permits evidence of prior sexual offenses. The court concluded that the proffered evidence did not meet the requirements of this code section but was nonetheless admissible on the issue of defendant's credibility.
At trial, the resident testified without objection about her encounter with defendant. She said that defendant knocked at her door, asked if she lived alone, and tried to push his way inside. She closed the door, and called the police and the rental office. She said she had seen defendant before at the apartment complex and in the nearby park, and she had previously identified defendant in a photo line-up as the person who tried to enter her apartment.
On appeal, defendant contends the resident's testimony was inadmissible for impeachment purposes because he did not put his credibility at issue. (See People v. Fritz (2007) 153 Cal.App.4th 949, 955-957.) The People implicitly agree but argue that the evidence was nonetheless admissible to establish intent or motive, theories not relied upon by the trial court.
We need not resolve this matter. Even if we assume for purposes of argument that the court erred, defendant cannot establish prejudice. As described above, the evidence against defendant was overwhelming and it is not reasonably probable that the jury would have reached a more favorable result had the challenged evidence been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant's claims to the contrary are unpersuasive.
Ineffective Assistance of Counsel
Defendant contends his attorney was ineffective in (1) failing to object that there was no evidence presented at the preliminary hearing to link count 5, forcible oral copulation, to an offense occurring at the park, and (2) failing to investigate calls to the victim's workplace allegedly made by defendant to demonstrate that the parties knew each other. Defendant's first claim has merit.
To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and (2) this deficient performance resulted in prejudice (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694]; People v. Weaver (2001) 26 Cal.4th 876, 925), i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 520.) Courts accord great deference to an attorney's reasonable tactical decisions and will not second-guess those choices. (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)
Count 5 and the Preliminary Hearing
Counts 4 and 5 of the information charged defendant with forcible oral copulation but did not specify where these offenses took place.
At the preliminary hearing, investigators described their conversations with the victim. The victim reported that an act of oral copulation occurred at the apartment complex; defendant forced the victim's head to his penis five times and then ejaculated. Defendant also raped her there. In response to questions from one officer, the victim reported that defendant tried to insert his finger into her vagina at the apartment building, touched her breast, and attempted to sodomize her at the park. The testifying officers did not describe reports of any other acts of forcible oral copulation.
Discussion at the preliminary hearing centered on whether defendant had sufficient time to reflect during the oral copulation at the apartment complex to justify charging multiple counts of oral copulation. The trial court concluded there was, and held defendant to answer on both counts 4 and 5.
In her opening statement to the jury, the prosecutor said that an act of oral copulation occurred at the apartment building and added that other sex acts occurred at the park and that the victim was going to testify about them. The prosecutor did not provide any specifics about these other offenses.
The victim testified that defendant forced her to orally copulate him both at the apartment complex and at the park, and one of the officers corroborated that the victim had reported an act of forcible copulation occurring at the park. In closing argument, the prosecutor for the first time related counts 4 and 5 to particular locations, describing count 4 as the oral copulation at the apartment complex and count 5 as the oral copulation at the park. Defense counsel did not object. The jury convicted defendant of both counts.
As part of his motion for new trial, defendant argued that his attorney was ineffective in failing to object that there was no evidence in the preliminary hearing to support a charge of oral copulation occurring at the park. Defendant submitted a declaration from his trial attorney which stated, "During the trial I did not recall that Counts four and five of the information which charged forcible oral copulation . . . had been supported at the preliminary hearing solely on the basis of testimony pertaining to oral copulation at the apartment complex. Had I recalled that fact, I would have objected to the evidence, argument and instructions which allowed the jury to convict on Count five based upon the trial testimony that forcible oral copulation occurred at the park. I had no tactical basis for failing to object."
The prosecutor conceded that no such evidence had been introduced at the preliminary hearing but, in a less-than-compelling response, asserted that the "notice of the oral copulation at the park became evident through testimony at trial." The prosecutor emphasized that the jury believed the proffered evidence and, had it been presented at the preliminary hearing, the court would have held defendant to answer. The prosecutor acknowledged that if counsel's failure to object constituted ineffective assistance of counsel, the court was required to dismiss count 5.
The trial court denied defendant's motion for new trial without comment.
On appeal, defendant again contends that his attorney failed to provide the effective assistance of counsel by failing to object when the prosecutor connected count 5 to an act of oral copulation occurring at the park, an offense for which no evidence was presented at the preliminary hearing. We agree.
Section 739 provides that an information may charge a defendant with "any offense or offenses shown by the evidence taken before the magistrate to have been committed." A defendant may not be prosecuted for an offense for which no evidence was presented at the preliminary hearing. As Justice Sims explained in his concurring opinion in People v. Gordon (1985) 165 Cal.App.3d 839, "It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend." (Id. at p. 869, disapproved on other grounds in People v. Frazier (1999) 21 Cal.4th 737, 765.) "[A]n information plays a limited but important role: it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant." (Gordon, at p. 870; see also People v. Peyton (2009) 176 Cal.App.4th 642, 656.)
While exceptions to this rule apply in limited situations (such as sexual abuse cases in which a child testifies about acts occurring over a long period of time that cannot be tied to particular dates or locations (e.g., People v. Jones (1990) 51 Cal.3d 294, 305, 317), no such exception applies here. Although the People contend that notice requirements were met because defendant had access to police reports that detailed the victim's description of an act of oral copulation that occurred at the park, that report gave no indication that this was the offense for which defendant was being prosecuted. The brief discussion at the preliminary hearing focused entirely on whether defendant's actions at the apartment complex could form the basis for two counts of oral copulation. Defendant was on notice that he was being prosecuted only for an act of forcible oral copulation at the apartment complex; nothing was mentioned at the preliminary hearing about a similar offense occurring at the park.
While the same offense, involving the same victim, occurred at the apartment complex and at the park, these were two very distinct acts, and defendant was entitled to notice as to exactly what was being charged. "It is one thing to hold . . . that as a matter of due process, a defendant may be convicted of any offense of which he or she is given notice by the information combined with the preliminary hearing and other discovery. It is another thing altogether to hold that a defendant may be convicted upon proof of any incident giving rise to the same 'offense' as charged in the information and shown at the preliminary hearing, regardless of the absence of connection between the proven incident and that shown at the preliminary hearing." (People v. Burnett (1999) 71 Cal.App.4th 151, 176.)
No evidence was presented at the preliminary hearing concerning an act of forcible oral copulation occurring at the park and the prosecution was therefore precluded from prosecuting this offense.
"Since [defendant] could not constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing, defense counsel should have objected or taken some action to protect [defendant's] rights, at least when it became clear the jury was going to be asked to convict on the basis of . . . the incident shown by the preliminary hearing evidence [and] the incident not addressed at the preliminary hearing." (People v. Burnett, supra, 71 Cal.App.4th at p. 181.)
Trial counsel had no tactical reason for failing to raise this point. He stated in his declaration that he simply forgot that the preliminary hearing focused only on evidence relating to count 4, the oral copulation at the apartment complex. Defendant was clearly prejudiced by this omission: he was convicted for an offense that should not have been prosecuted at trial. We are compelled to conclude that defendant did not receive the effective assistance of counsel, necessitating the reversal of defendant's conviction on count 5. (See People v. Peyton, supra, 176 Cal.App.4th at pp. 654-655.)
Telephone Call Investigation
Defendant contends his attorney was also ineffective in failing to investigate phone records that indicated defendant called the warehouse where the victim worked, arguably demonstrating that the defendant and victim knew each other. Defendant's claim is unpersuasive.
At trial, evidence was introduced that defendant placed a 52-second call from his cell phone to the victim's place of employment, a winery warehouse, a few weeks before the assault. In rebuttal, the warehouse facilities maintenance manager testified that this number was associated with the warehouse fax line and employees could not receive calls on that number.
In his motion for new trial, defendant submitted a declaration from a warehouse employee who stated that the number defendant called was one answered by a receptionist, who would transfer calls for an employee to one of the phones in the warehouse. Defendant asserted his attorney was ineffective in failing to present this evidence at trial, and he reiterates that claim on appeal.
There was no ineffective assistance of counsel. Defendant's claim that this call demonstrates that the two individuals knew each other is entirely speculative; there is no evidence whatsoever indicating to whom defendant might have spoken. Moreover, defendant stated to investigators that he did not know the victim's name and never called her. Under these circumstances, defense counsel cannot be deemed ineffective for failing to investigate the matter any further.
Defendant contends that the cumulative effect of the alleged errors compels reversal of the remaining counts. (See People v. Hill (1998) 17 Cal.4th 800, 844.) There is no cumulative effect to evaluate.
Our conclusion that ineffective assistance of counsel compels the reversal of count 5 moots the People's claim that the court erred in failing to impose a full, separate and consecutive term on this count.
Defendant's conviction on count 5 is reversed and that count is dismissed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. Upon finality of this opinion, the clerk of this court shall submit a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); In re Jones (1996) 13 Cal.4th 552, 589, fn. 9.)
We concur: ROBIE , J. BUTZ , J.
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