IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 14, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PIERRE LACELLE BUTLER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F07573)
The opinion of the court was delivered by: Butz , J.
P. v. Butler
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Pierre Lacelle Butler appeals his conviction for forcible rape.*fn1 (Pen. Code, § 261, subd. (a)(2).) He contends the trial court prejudicially erred in admitting evidence of his 1995 rape of M.M. under Evidence Code section 1108*fn2 and abused its discretion in denying his motion to strike his prior convictions under Romero.*fn3 We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the nature of the claims on appeal, a detailed recitation of the facts is not necessary. In sum, shortly after they met, defendant and A.M. went on a date. What began as a consensual physical encounter between them deteriorated and defendant raped A.M. DNA samples taken from A.M. during the sexual assault exam matched defendant's DNA profile.
Evidence of a prior rape committed by defendant was also admitted at trial. There, defendant and 16-year-old M.M. were at a friend's house, talking in a bedroom. Defendant locked the door, orally copulated, digitally penetrated and raped M.M.
For the current offenses, defendant was charged with two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)--counts one and four), forcible sexual penetration with a foreign object (id., § 289, subd. (a)(1)--count two), and forcible oral copulation (id., § 288a, subd. (c)(2)--count three). It was also alleged defendant had suffered two prior serious felony convictions. (Id., §§ 667, subds. (a), (b)-(i), 1170.12.) The jury found defendant guilty of one count of forcible rape and acquitted him of the other sexual offenses. In bifurcated proceedings, the court also found the prior serious felony allegations true.
Defendant filed a Romero motion, which the court denied. Defendant was sentenced to state prison for an aggregate term of 50 years to life, plus five years.*fn4
I. Section 1108 Evidence
Defendant contends the trial court erred in admitting evidence under section 1108 of his prior rape conviction. He contends: (1) the prior offense was more inflammatory than the charged offense, as its victim, M.M. appeared more credible than A.M., the prior offense was more a stranger rape than a date rape, and M.M. was only 16 years old at the time she was raped; (2) the prior offense was too remote, as it was committed 12 years prior to the charged offense with no intervening sexual misconduct or other criminal conduct other than failure to register as a sex offender; and (3) the strength and inflammatory nature of the prior offense was likely to lead the jury to punish defendant for the offense against M.M. We disagree.
Under section 1108 the jury may consider evidence of prior offenses for any relevant purpose, subject only to the analytical process required by section 352. (People v. Britt (2002) 104 Cal.App.4th 500, 505 (Britt).) Under section 352, "[a] trial court 'may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (§ 352.)" (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) In assessing the probative value, the court evaluates the similarity of the uncharged act to the charged offense, whether the source of the evidence is independent of the charged offense, and the amount of time which has elapsed between the uncharged acts and the charged offense. The prejudicial effect is weighed by examining whether the uncharged acts resulted in criminal convictions, the relative strength of the evidence of each act and whether the uncharged act is more inflammatory than the evidence of the charged offenses. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 (Hollie).)
We review the trial court's decision for an abuse of discretion and will reverse only if the trial court's ruling was "'arbitrary, whimsical, or capricious as a matter of law.'" (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).) Furthermore, we evaluate a trial court's ruling, based on the facts before it at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425.) Thus, we evaluate whether the trial court abused its discretion in determining the evidence was admissible, based on the evidentiary proffers made, not the evidence adduced at trial.
The prosecution's proffer of evidence was that in December 2007, A.M. and defendant met at a gas station. They then went out on a date, and a few hours later they were kissing. Defendant asked if he could "taste" A.M. She "told him no, but the defendant pulled up her shirt and began to kiss her stomach. She continued to tell him no as he trapped her against the rear door and undid his pants. Despite the victim's pleas not to, the defendant orally copulated her, digitally penetrated her and raped her twice." During interviews with a police detective, defendant denied ever engaging in sex with A.M. DNA of semen taken from the physical examination of A.M. matched defendant's DNA profile. As to the prior offense, the proffer was that in December 1995, defendant and M.M., who had met once before, were at a party and defendant told her he wanted to get to know her better. They went "into a bedroom to talk. After entering the room, the defendant closed and locked the door. He edged the victim to the bed and began to kiss her neck and stomach. The victim repeatedly told the defendant no. He pulled down her shorts and began to lick her vaginal area. He put his fingers inside her vagina. He then pulled down his pants and trapped her by placing his body on top of her and then raped her."
Although defendant has noted specific differences in the two matters, including M.M.'s age and the relative level of acquaintance between defendant and his victims, these differences "do not negate the basic similarity between the two incidents." (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Each offense showed defendant, on new acquaintance with a woman and indicating he wanted to get to know her better, used his body to physically trap her. He moved or removed her clothing to allow him greater access to her physically. In the face of her repeated refusals and pleas to stop, he digitally penetrated her, orally copulated her and raped her. In spite of the differences, the offenses were sufficiently similar that the prior uncharged offense had substantial probative value. (See People v. Escudero (2010) 183 Cal.App.4th 302, 311.)
Relatedly, because of the similarity between the offenses, we cannot say the evidence of the uncharged offense was significantly stronger or more inflammatory than the charged offense. Both nonconsensual sexual offenses were committed against women defendant had met recently and with whom he was trying to develop a new relationship. Both cases rested largely on the testimony of the victim and her credibility. In both cases defendant physically trapped his victim and disregarded her pleas and protests. And, neither case involved the use of weapons or injury to the victim beyond those naturally incident to the offenses. (See Hollie, supra, 180 Cal.App.4th at p. 1276.)
While the prior uncharged offense occurred some 12 years before the offense at issue here, "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (Branch, supra, 91 Cal.App.4th at p. 284.) In addition, although the prior offense was committed in 1995, defendant was in prison for three of those intervening years and on parole until 2001. Accordingly, we do not find the prior offense is overly remote. (See People v. Frazier (2001) 89 Cal.App.4th 30, 41 [sexual offenses occurring 15 or 16 years prior to the charged offenses still probative and not too remote]; accord, People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior sexual offenses 21 to 28 years earlier still probative].)
Mitigating any prejudicial effect, the evidence regarding M.M.'s rape came from a source entirely unrelated to the charged offense. Nor, as defendant acknowledges, did the admission of the evidence require an undue consumption of time. The evidence required the testimony of only one witness, and was not overly complicated. Furthermore, defendant had been convicted of the previous rape. This last fact strongly supports admission of the evidence, as defendant's "commission of [the] crime had already been established and was thus certain, and defendant bore no new burden of defending against the charge. The jury would not be tempted to convict him of the charged crime to punish him for the earlier crime. [Citation.] Additionally, the conviction meant there was little danger of confusing the issues or requiring an inefficient minitrial to determine defendant's guilt of the previous crime." (People v. Loy (2011) 52 Cal.4th 46, 61.)
Given the high probative value of the evidence of the uncharged offense and the low probability that the jury would be sidetracked with evidence of the prior offense or prejudiced by its admission, we cannot say that, in admitting evidence of the 1995 rape, the trial court "acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) Accordingly, we find no abuse of discretion. (Hollie, supra, 180 Cal.App.4th at p. 1277.) Since the trial court properly admitted M.M.'s testimony under section 1108, we need not reach the issue of its admissibility pursuant to section 1101.*fn5 (Britt, supra, 104 Cal.App.4th at p. 506.)
II. Romero Motion
Defendant next contends the trial court abused its discretion in denying his Romero motion to strike one or both of his qualifying prior convictions. He contends the convictions were remote in time and were followed by a "blame-free life until the advent of the current" charges. We are not persuaded.
Penal Code section 1385 gives the trial court authority to order an action dismissed, "in furtherance of justice." (Pen. Code, § 1385, subd. (a).) Under this authority, the court may vacate a prior strike conviction for purposes of sentencing under the three strikes law, "subject, however, to strict compliance with the provisions of section 1385." (Romero, supra, 13 Cal.4th at p. 504.) The decision to strike a prior conviction is reviewed under an abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
Dismissal of a strike is a departure from the sentencing norm. As such, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so, at least in part, for impermissible reasons. (Id. at p. 378.) But here the trial court, aware of its discretion, "'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law . . . .'" (Ibid.)
In ruling on a Romero motion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the court considered the probation report, the pleadings and arguments of counsel, the intent and spirit of the law, and defendant's criminality, including the significant period of time during which he was apparently crime-free. Despite the "crime-free" period, the court found both strike offenses were serious and significant. Furthermore, as the court noted, these were not isolated incidents of violence; defendant had engaged in other violent conduct throughout his criminal career. Considering the facts and circumstances of both defendant's past and present offenses, the court found the behavior towards both rape victims was predatory. Based on all the evidence before it, the court declined to exercise its discretion to strike any strikes. We find no error.
Defendant had a GED and had taken three years of college classes. At the time of his arrest, he was employed full time by a billing company for a group of doctors. He was divorced and had had an "off and on" relationship with his co-defendant since 2005.*fn6
Defendant's first strike was a conviction as a juvenile in 1988 for robbery. A few months later, he was convicted of vehicle theft. In 1989, he sustained a conviction for possession of marijuana for sale and giving false identification to a peace officer. While in custody for that offense, he sustained a conviction for battery causing serious bodily injury. In 1994, he sustained a conviction for possession of cocaine for sale. In 1995, he sustained a misdemeanor false imprisonment conviction. While on probation for the possession offense, he committed his second strike offense, the rape of M.M. He was sentenced to a term of three years and released from prison in 1998. When the current charge was brought, he was facing a pending charge for failing to register as a sex offender, and was intentionally living someplace other than his registered address. While living at an unregistered address, he committed this latest rape. While in custody on those charges, he orchestrated his girlfriend Pearson's attempt to bribe or coerce the victim to not testify. A static-99 test indicated defendant was at medium to high risk for committing another sexual offense.
Based on its consideration of the relevant facts and the totality of the circumstances, the court found "it would not be in the interest of justice to dismiss either of the two prior convictions . . . and imposition of sentence pursuant to the three strikes law clearly falls within the meaning and purpose of the statute." We can find no abuse in this decision. The court was aware of its discretion, properly considered the relevant facts and factors, and there is nothing on this record that removes defendant from the three strikes scheme.
III. Correction to Abstract of Judgment
We note an error in the abstract of judgment. Defendant was convicted in count four of rape by force, a violation of Penal Code section 261, subdivision (a)(2). The abstract incorrectly lists the conviction as a violation of Penal Code section 261, subdivision (a)(1). We shall order the abstract corrected to reflect the accurate subdivision.
The trial court shall prepare a corrected abstract of judgment that reflects defendant's conviction in count four of a violation of Penal Code section 261, subdivision (a)(2). A certified copy of the corrected abstract shall be provided to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: BLEASE , Acting P. J. HOCH , J.