(Super. Ct. No. 09F06047)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of first degree murder, defendant Bryan Cordell Johnson argues on appeal that the trial court erred in admitting evidence of prior sexual assaults he committed and in instructing the jury that the People did not have to prove motive. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the arguments on appeal, the underlying facts may be briefly stated. In November 2007, the body of Sofia Marquez was found in a wooded area on a small hill near a freeway onramp to Highway 99 in Sacramento. She was wearing a camisole top with a tank top over it, both of which had been pushed up underneath her armpits. She had no clothes on below her waist, including shoes and socks. Her body had been covered with branches broken off nearby trees. She had pinpoint hemorrhages in her eyes, which is indicative of asphyxiation or strangulation. The forensic pathologist who conducted the autopsy concluded she died from manual strangulation with hands or arms. The pathologist found no physical evidence of a sexual assault. Later, however, a criminalist found a single sperm head on a swab from the introital area (the entrance to the vagina).
During the victim's autopsy, scrapings were taken from under her fingernails. In August 2009, it was determined that the material from under the victim's nails contained defendant's DNA. Defendant was charged with first degree murder.
Before trial, the People moved to admit evidence that on several occasions defendant had choked his wife when she refused to have sex with him. (We will sometimes refer to this as the other crimes evidence.) The People contended the evidence of these "prior uncharged sexual offenses" was admissible under subdivision (b) of Evidence Code*fn1 section 1101 "to prove common plan and scheme, [and the] intent to strangle a resisting victim when seeking sex." The People also contended the evidence was admissible under section 1108 "to prove the Defendant's propensity to commit sexual offenses and to utilize strangulation when faced with a resisting victim."
At the hearing on the People's motion, defense counsel argued that "there was absolutely no evidence of an attempted sexual assault" in the present case and "[t]herefore, [section] 1108 does not apply at all and [the evidence] should not come in." The prosecutor responded that there was evidence of attempted rape in where the victim's body was located, the way it was positioned, the way the strangulation marks occurred, the position of her shirt, and her missing pants and shoes. Defense counsel asserted that the evidence of only a single sperm head in the victim's vaginal area "suggest[ed] that sexual contact occurred earlier, and, therefore, what the Court is left with is basically no evidence of any sexual contact whatsoever." Defense counsel added that absent any evidence of a sexual crime other than the other crimes evidence it "wouldn't be appropriate" to admit the other crimes evidence.
The trial court concluded that the evidence defendant had attempted to strangle his wife when she refused his sexual advances was admissible under section 1101, subdivision (b) because it was relevant to motive and intent because the victim "whom the Defendant denies knowing, was found nude from the waist down and her top was pulled up, revealing her breasts. The Defendant's DNA was found under her fingernails, and she was strangled." The court found that the location and position of the victim's body was "circumstantial evidence that the crime was of a sexual nature." The court also concluded that "the evidence of the prior conduct [wa]s not inflammatory or prejudicial compared to the allegation in this case" and "[t]he presentation of the evidence involves a single witness and will not result in an undue consumption of time."
The court also concluded the other crimes evidence was admissible under section 1108 because "[t]he fact[s] alleged in this case and the facts alleged in the prior instance constitute sexual offenses." In reaching this conclusion, the court concluded that "the proffered evidence [is] highly relevant to . . . sexual propensity" and "is not inflammatory and is far less serious than the alleged offense charged."
The jury found defendant guilty of first degree murder, and the trial court sentenced him to ...