People v. Rosen

• Decision Date: 27 March 2007
• Docket Number: No. C048139.,C048139.
• Citation: 148 Cal.App.4th 1311,56 Cal.Rptr.3d 444
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darryl George ROSEN, Defendant and Appellant.

56 Cal.Rptr.3d 444 148 Cal.App.4th 1311 The PEOPLE, Plaintiff and Respondent,
v.
Darryl George ROSEN, Defendant and Appellant. No. C048139. Court of Appeal, Third District. March 27, 2007. Certified for Partial Publication.^*

[56 Cal.Rptr.3d 446]

Charles M. Bonneau for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

Jan Scully, District Attorney (Sacramento) and Michael A. Neves, Deputy District Attorney (Sacramento) as Amicus Curiae.

SCOTLAND, P.J.

Rather than uphold the law, as was his charge, defendant Darryl George Rosen disrespected both his badge and the women he sexually abused while on duty as a police officer. A jury convicted defendant of four counts of sexual battery, four counts of assault by a public officer, two counts of false imprisonment, and one count of attempting to dissuade a witness. The trial court sentenced him to state prison for an aggregate term of nine years and eight months. He appeals.

In the published parts of our opinion, we reject his claims that (1) the trial court erred in allowing introduction of evidence of uncharged sexual assaults committed by defendant, and (2) because one victim touched defendant, at his direction, rather than he touch her, defendant could not be convicted of assault by a public officer against that victim.

When a defendant is accused of a sexual offense, Evidence Code section 1108 allows the introduction of evidence of the defendant's commission of other sexual offenses, unless the trial court excludes the evidence on the ground its probative value is outweighed by the probability that presenting the evidence would require an undue consumption of time or would create a substantial danger of undue prejudice to the defendant, confuse the issue, or mislead the jury. We find no merit in defendant's view that the prosecutor's decision not to formally charge him with committing the other sexual offenses necessarily means that the evidence was not sufficiently reliable to be used against him. As we will explain, not only is defendant's premise unsound, it would negate the provisions of Evidence Code section 1108. Also without merit is his claim that evidence of other sexual offenses is not admissible under this statute unless the prosecutor presents expert testimony that the evidence shows the defendant's predisposition to commit sex crimes. For reasons that follow, we conclude the statute does not require expert testimony, nor is such a requirement otherwise necessary.

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In another novel contention lacking merit, defendant argues the evidence does not support his conviction for assaulting S.M. under color of authority and without legal necessity. (Pen.Code, § 149.) In his view, he did not commit an assault because he made no effort to touch S.M.; instead, she did the touching when she complied with his direction to "grab [his] dick." As explained in more detail below, because he coerced the victim to engage in an unconsented touching of a part of her body to his, defendant was guilty of assault by a public officer even though he did not do the touching.

In the unpublished parts of our opinion, we address defendant's other claims of error.

FACTS

In 2000 and 2001, defendant was an officer of the Sacramento Police Department.

Between October 2000 and December 2001, defendant and other officers came to S.D.'s house many times to conduct drug searches while S.D.'s mother was on searchable probation. On one occasion, defendant took S.D. into the kitchen, closed the door, commented about how large her breasts were, and asked if he could suck them. He then ran his hand across her chest. On another occasion, defendant took S.D. into the garage of her home. Having earlier given S.D. his telephone number, he asked why she had not called him. Then, saying he had to make sure that she did not have any drugs on her, defendant ordered S.D. to lift her bra and "shake it out." She complied. Telling her that she "had some big ass titties and he wanted to suck them," he lifted her t-shirt and started "playing with [her] nipples." On a third occasion, defendant took S.D. into a bedroom of her home and closed the door. Again asking why she had not called him, he said how much he wanted to "fuck" her. He then took S.D.'s hand and rubbed it across his penis over his pants.

Based on these facts, defendant was convicted of misdemeanor sexual battery of S.D. for the first incident, felony sexual battery for the second incident, and assault by a public officer for the third incident.

While S.M. was working as a prostitute one evening in 2001, defendant drove up to her and told her to come over to his patrol car. He was wearing his police uniform and badge. Defendant told S.M. to stick her head in the car and she did so. He then said, "grab my dick." She complied because she did not want to go to jail. S.M. rubbed defendant's penis over his pants and, when she stopped, he told her to "keep doing it." She continued to rub defendant. When S.M. finally stopped rubbing defendant's penis, he told her he wanted to "fuck [her] doggie style."

Based on these facts, defendant was convicted of assault by a public officer on S.M. and false imprisonment.

One day in the summer of 2001, an argument broke out at L.M.'s house, and police were summoned. The call for help falsely reported that a gun was involved in the dispute. Defendant and other police officers responded, and persons in the dispute fled from the scene. Eventually, all the officers left except defendant, who spoke with L.M. While talking with her, defendant said that he wanted to "fuck" her but that he was not going to "pay" for it. L.M. assumed he believed she was a prostitute, like her friend who was at the scene. Telling L.M. to call him if she wanted to go out on a date, defendant gave her his business card and wrote down the telephone number where he could be reached. L.M. was "shocked" by the encounter but "just kinda brushed it off' and

56 Cal.Rptr.3d 448

went back to her home. Later that evening, defendant returned in his patrol car, wearing his police uniform and badge. L.M.'s female friend, S.S., who had been a prostitute, went out and spoke with defendant. He asked about L.M. and wanted to know whether S.S. had "fucked" her. While S.S. was standing next to the patrol car, defendant grabbed her hand, put it on his penis over his pants, and asked her if she "liked this nice hard.dick." He then told S.S. to go inside and send L.M. out. L.M. complied and, as she stood by the open window of the patrol car, defendant grabbed her hand and put it on his penis over his pants. L.M. "snatched back" and returned to the house.

Based on these facts, defendant was convicted of assault by a public officer on L.M. and false imprisonment.

On June 29, 2001, defendant and two other police officers conducted a probation search of the motel room where 16-year-old D.C. and her mother were living. Discovering that D.C. had an outstanding warrant for her arrest, defendant handcuffed her and put her in his patrol car. While driving her to juvenile hall, defendant asked D.C. if she had a boyfriend. Although she replied that she is a lesbian, defendant asked her if she liked "big dick." She did not respond. Defendant eventually stopped the patrol car and asked if she was scared. He then got out of the car, opened the rear door on the other side, and placed his gun on top of the patrol car. When D.C. asked what he was doing, defendant reached in and put his hand under her shirt and bra and rubbed her breast. D.C. yelled at defendant to stop, but he put his hand down her pants and onto her vagina. Eventually, defendant took off his utility belt, pulled D.C.'s pants off and climbed on top of her. Although she screamed and tried to kick him off, he succeeded in getting his penis inside her vagina. He then got out of the car, grabbed his utility belt and gun, got back in the front seat, and drove off. During the remaining journey, defendant told D.C. not to tell anyone what he had done, saying he had "all [of her] information," which she took as a threat. When they arrived at juvenile hall, defendant told D.C. he would be waiting for her when she got out. She took this as a threat as well. When defendant took D.C. out of the car, he got behind her, bent her cuffed hands up, and told her to "grab his dick." She complied. After they entered the building and he was taking D.C. for fingerprinting, defendant again got behind her, bent her hands up, and ordered her to "grab his dick." She again complied.

Based on these facts, defendant was convicted of two counts of felony sexual battery on D.C, assault by a public officer, and attempting to dissuade a witness from testifying.

Defendant also was charged with other offenses against D.C, including rape, and several crimes involving two other victims. However, the jury either found defendant not guilty or was unable to reach a verdict on those other charges.

DISCUSSION I

Defendant contends the trial court abused its discretion in allowing the prosecutor to present evidence of uncharged sexual offenses that defendant committed against R.P., AM., and A.E. *

A

R.P. testified that she called the police in March 2001 when her home was burglarized. Defendant responded and took the report. After R.P. saw him over a month later at the courthouse, defendant returned unexpectedly to her home, in uniform

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in his patrol car, while she was standing outside. Defendant called her to come to the patrol car. She complied and leaned on the open driver side window of the car. After defendant talked with her for a moment, he "grabbed [R.P.'s] hand and placed it down on his groin area" over his pants. Feeling his erect penis, she...