Ct.App. 2/8 B222214 Los Angeles County Super. Ct. No. BA339453 Judge: William N. Sterling
The opinion of the court was delivered by: Chin, J.
Pursuant to Evidence Code*fn1 section 1108, pattern jury instruction CALCRIM No. 1191 explains to a jury that it may consider a defendant's uncharged sexual offense as evidence of his or her propensity to commit a charged sexual offense. Relying on a recent case, the trial court here modified CALCRIM No. 1191 to permit the jury to consider the defendant's charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. (See People v. Wilson (2008) 166 Cal.App.4th 1034, 1052 (Wilson).) The jury subsequently convicted defendant Juan Jose Villatoro of various counts of kidnapping, robbery, and rape against five women.
On appeal, defendant challenged the modified instruction based on People v. Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), which held that charged offenses could not be considered as propensity evidence under a similar provision (§ 1109) and its corresponding jury instruction (CALJIC No. 2.50.02). Relying in part on Wilson, the Court of Appeal below rejected defendant's challenges to the modified instruction. For reasons that follow, we affirm the Court of Appeal's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with committing various offenses, including rape, against five women between 2005 and 2008.
On May 25, 2005, prostitute R.I. agreed to have sex with defendant for $80 and got into his car. After driving to a nearby residential area, defendant stopped the car, pulled out a gun from the backseat, and told the victim not to move or look at him or else he would kill her. Defendant forced R.I. to have vaginal and anal intercourse, then whipped her on the back for 20 minutes with electrical extension cords. He then took her cell phone and told her to get out of the car.
The bruises on R.I.'s back and vagina, along with the swelling in her legs, were consistent with her account of the attack. DNA samples taken from R.I were later found to match defendant's DNA. R.I. subsequently identified defendant from a six-pack photographic lineup.
On June 21, 2006, 18-year-old N.G. was walking home late at night when defendant drove up in a car, pointed a gun at her, and told her to get in his car or else he would kill her. She got in and defendant drove off. He told her not to look at him, and held a razor to her ribcage as he drove. When he stopped in a residential area, he forced N.G. to have vaginal intercourse, and inserted his fingers into her vagina. Defendant took the victim's cell phone, rings, and sunglasses, and then let her go.
DNA samples taken from N.G. were later determined to match defendant's DNA. Almost two years after the attack, N.G. identified defendant from a six-pack photographic lineup.
On February 3, 2008, prostitute Beverly G. agreed to have sex with defendant for $100. After she got into his car, defendant drove a short distance to a residential area. When he stopped the car, he pulled out a stun gun, activated it, and told Beverly not to move. He held the stun gun to her neck and screamed, "Don't look at me." He forced her to have vaginal and anal intercourse. Whenever Beverly looked at defendant, he slapped her or spat at her. After he was done, defendant told her to get out; she did not retrieve her belongings before getting out of the car.
Beverly eventually told police what had happened and identified defendant from a six-pack photographic lineup on May 2, 2008.
In the early morning of February 10, 2008, defendant offered a ride to C.C., who was waiting at a bus stop. She accepted the ride because another man had been harassing her. C.C. asked defendant to drive her to Hollywood. When she noticed he had driven to Santa Monica, she became worried and nervous. She asked defendant to stop so that she could use a restroom. Defendant pulled over, handed C.C. some baby wipes, and told her to relieve herself in the grass. Defendant watched as she did so.
After defendant promised to take her home, C.C. got back into his car. He then pulled out a Taser or stun gun, activated it, and placed it near her throat. He ordered C.C. to take off her pants, which she did. He told her not to look at him, punched her in the face, and made her cover her head with her shirt. Defendant forced C.C. to have vaginal intercourse, bit her left breast, and pulled out some of her hair. He took her purse.
C.C.'s physical injuries -- a bite mark and suction injury on C.C.'s left breast -- were consistent with her account of the attack. DNA samples taken from her body were later found to match defendant's DNA. In April 2008, C.C. identified defendant from a six-pack photographic lineup.
On April 4, 2009, around 3:00 a.m., prostitute Kimberly J. got into defendant's car. He drove a few blocks before parking the car on a secluded street. He then jumped on top of Kimberly and said, "Shut up or I'm going to kill you." He pulled out a stun gun and turned it on to scare her. After defendant ripped off Kimberly's underwear and pulled down her skirt, he forced her to have vaginal intercourse. He repeatedly pushed her head and told her not to look at him. When defendant was done, he took Kimberly's jewelry and cell phone and ordered her out of the car.
Kimberly's physical injuries -- vaginal bruising and abrasions on her hymen -- were consistent with her account of the attack. DNA samples were taken from Kimberly, which were later determined to match defendant's DNA. Kimberly helped police create a composite drawing of her attacker, and she later identified defendant from a six-pack photographic lineup.
At trial, the victims (all but Kimberly J.) testified about what had happened to them, and indicated they did not know one another before they were attacked. Without objection, the trial court instructed the jury with a modified version of CALCRIM No. 1191, which permitted the jury to use evidence of defendant's guilt of one of the charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. The jury convicted defendant of five counts of rape, one as to each victim. It also convicted him of one count of kidnapping to commit another crime as to N.G.; and four counts of robbery, each as to N.G., Beverly G., C.C., and Kimberly J. The jury also found true allegations that defendant (1) personally used a firearm during the rapes of R.I. and N.G., and during the kidnapping and robbery of N.G.; and (2) personally used a deadly or dangerous weapon as to all of the five rapes and as to the robberies of C.C. and Kimberly J. The trial court sentenced defendant to 153 years to life. Defendant appealed.
Relying on Quintanilla, supra, 132 Cal.App.4th 572, defendant challenged the modified instruction on several grounds: the instruction violated section 1108 because it allowed the jury to use charged, rather than uncharged, offenses to prove his disposition to commit the other charged offenses; because it did not identify what standard of proof was required before the jury could consider the charged offense as propensity evidence; and because it did not reiterate that despite the inferences the jury could draw from its finding that a charged offense occurred, defendant still retained the presumption of innocence. Based in part on Wilson, supra, 166 Cal.App.4th 1034, the Court of Appeal rejected defendant's challenges to the modified instruction. We granted defendant's petition for review.
A. Character Evidence and Section 1108
Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (§ 1101, subd. (a) (section 1101(a)); Cal. Law Revision Com. com., reprinted at 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1101, p. 221; see People v. Carter (2005) 36 Cal.4th 1114, 1147.) This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness (id., subd. (c)). (See People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) The Legislature has also created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses (§ 1108, subd. (a)), and domestic violence, elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)-(3)). (See § 1101(a).)
As relevant here, section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, 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."*fn3 Enacted in 1995, section 1108 "implicitly abrogates prior decisions of this court indicating that 'propensity' evidence is per se unduly prejudicial to the defense." (Falsetta, supra, 21 Cal.4th at p. 911.) "As the legislative history indicates, the Legislature's principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes." (Id. at p. 915.)
Nearly every published opinion interpreting section 1108 (including some from this court) has recognized that this provision allows, when proper, evidence of prior uncharged sexual offenses to prove propensity. (See, e.g., People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 (Reliford); Falsetta, supra, 21 Cal.4th at pp. 917-918; People v. Fitch (1997) 55 Cal.App.4th 172, 181-182.) The pattern jury instruction explaining the application of section 1108 (CALCRIM No. 1191) likewise refers to uncharged sexual offenses. With regard to the admission of uncharged sexual offenses, we have held that section 1108 satisfies the requirements of due process (Falsetta, supra, 21 Cal.4th at p. 917), and that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct statement of the law (Reliford, supra, 29 Cal.4th at pp. 1012-1016). (See also People v. Cromp (2007) 153 Cal.App.4th 476, 480 ["no material difference" between CALJIC No. 2.50.01 & CALCRIM No. 1191].) Notwithstanding their repeated references to uncharged sexual offenses, these cases significantly did not consider whether section 1108 extended to charged offenses as well. We consider that issue here.
Section 1108 provides that in a sexual offense case, "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 terms, the statute does not distinguish between charged or uncharged sexual offenses, and refers instead to "another sexual offense or offenses." (Italics added.) As used here, the ordinary meaning of the word "another" is "being one more in addition to one or a number of the same kind: ADDITIONAL." (Webster's 3d New Internat. Dict. (2002) p. 89; see Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 ["When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word"].) This definition of "another" contains no limitation, temporal or otherwise, to suggest that section 1108 covers only offenses other than those for which the defendant is currently on trial.
Section 1108's qualifying language that such evidence is "not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352," also does not mandate that the sexual offense be uncharged. The argument is that evidence relating to the charged sexual offenses which the defendant is currently facing is independently admissible and would not be rendered inadmissible by either section 1101 or section 352; in other words, the phrase makes no sense if applied to charged offenses. (See conc. & dis. opn. of Corrigan, J., post, at pp. 6, 11-12.) We are not persuaded.
1. "Not Made Inadmissible by Section 1101"
First, we must construe the words of sections 1101 and 1108, which cross-reference each other, consistently. (See Isobe v. Unemployment Ins. Appeals Board (1974) 12 Cal.3d 584, 590-591.) Though section 1101 speaks in terms of the admissibility or inadmissibility of evidence, we have held that the provision (§ 1101(b)) applies not only to evidence of uncharged misconduct (People v. Kelly (2007) 42 Cal.4th 763, 782-783; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt)), but also to evidence (already admitted) of charged offenses. (People v. Catlin (2001) 26 Cal.4th 81, 153 (Catlin); People v. Ochoa (1998) 19 Cal.4th 353, 410 (Ochoa).) Likewise, though section 1108 states that evidence is "not made inadmissible by Section 1101," we similarly construe this provision to extend to evidence of both uncharged and charged sexual offenses. (See Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 116 ["Words or phrases common to two statutes dealing with the same subject matter must be construed in pari materia to have the same meaning"].)
Also, in making clear that evidence of prior uncharged sex offenses is not made inadmissible by section 1101(a)'s ban on propensity evidence to prove conduct (see Falsetta, supra, 21 Cal.4th at p. 911), the qualifying language is not thereby rendered meaningless with respect to evidence of charged sex offenses. As a general matter, evidence may have multiple purposes and, consequently, may be "admissible . . . for one purpose and . . . inadmissible . . . for another purpose." (§ 355; see People v. Pierce (1969) 269 Cal.App.2d 193, 203.) Because section 1101(a)'s prohibition against propensity evidence is "absolute where it applies" (People v. Alcala (1984) 36 Cal.3d 604, 631), before section 1108 was enacted, evidence admitted to prove the defendant's guilt of a sex offense could not be considered as evidence of the defendant's propensity to commit the other charged sex offenses. (See Falsetta, supra, 21 Cal.4th at p. 915 [§ 1108's "limited exception to the historical rule against propensity evidence"].) Thus, in authorizing the jury's use of propensity evidence in sex offense cases, section 1108 necessarily extends to evidence of both charged and uncharged sex offenses, affirming that such evidence is not "made inadmissible by Section 1101."
2. Section 352 and Quintanilla
Second, with respect to section 352, defendant relies heavily on the reasoning in Quintanilla, supra, 132 Cal.App.4th 572, and insists that by incorporating a section 352 analysis, section 1108 effectively distinguishes between charged and uncharged offenses because the former cannot be excluded under section 352. Defendant therefore reasons that the Legislature must have intended section 1108 to apply only to uncharged offenses and asserts that the provision's legislative history supports this interpretation. We disagree.
Quintanilla dealt with the parallel provision governing propensity evidence in domestic violence cases (§ 1109).*fn4 The trial court there modified the pattern jury instruction implementing section 1109 (CALJIC No. 2.50.02), and instructed the jury that it could infer the defendant's criminal propensity to commit charged domestic violence offenses from other charged domestic violence offenses. (Quintanilla, supra, 132 Cal.App.4th at p. 581.) Relying on our decision in Falsetta, supra, 21 Cal.4th 903, the Quintanilla majority concluded that section 1109 permitted only the admission of uncharged offenses. (Quintanilla, supra, 132 Cal.App.4th at pp. 582-583.) The majority rejected the Attorney General's argument that section 1109's plain terms did not differentiate between charged or uncharged crimes, instead emphasizing that the provision "expressly conditions the admissibility of propensity evidence on the trial court's power to evaluate the evidence under section 352." (Quintanilla, supra, 132 Cal.App.4th at p. 583.) Defendant here advances the same section 352 argument in his briefing. By contrast, the Attorney General maintains that "it is not the express inclusion of the reference to section 352 that matters; rather, it is the availability of the weighing process." We agree with the Attorney General.*fn5
Section 1108's legislative history reveals that the legislation was amended after it was introduced to include a specific reference to section 352. (Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended July 18, 1995.) "While § 1108 explicitly supersedes § 1101's prohibition of evidence of character or disposition within its scope of application, it does not supersede other provisions of the Evidence Code, such as normal restrictions in hearsay and the court's authority to exclude evidence presenting an overriding likelihood of prejudice under § 352. [Citations.] [¶] The amendment adopted at the Judiciary Committee hearing simply makes this point explicit in relation to § 352." (Assembly Member Rogan, letter of intent re Assem. Bill No. 882 (1995-1996 Reg. Sess.) Aug. 24, 1995, reprinted at 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1108, p. 352, italics added (Rogan letter).)
Rather than imposing an additional hurdle to the admissibility of character evidence, as defendant suggests, the inclusion of section 352 merely makes "explicit" the point that section 1108 does not supersede section 352 or other provisions of the Evidence Code. In other words, even if section 1108 did not refer to section 352, the latter still serves as a limitation on the admission of all evidence. (See Ewoldt, supra, 7 Cal.4th at p. 404 ["to be admissible such evidence 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352' "]; see also Assem. Com. on Public Safety, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 3 (Assembly Committee analysis) [legislation puts evidence of similar sexual offenses "on the same footing as other types of relevant evidence" not subject to a special exclusionary rule].)
Though recognizing that evidence of the charged offenses may not be excludable under section 352, the Court of Appeal below concluded that nothing precludes a trial court from considering section 352 factors when deciding whether to permit the jury to infer a defendant's propensity based on this evidence. It explained: "Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses." We agree. (See People v. Harris (1998) 60 Cal.App.4th 727, 736 ...