People v. Chandler

• Decision Date: 22 July 1997
• Docket Number: No. A072329,A072329
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5780, 97 Daily Journal D.A.R. 9285 The PEOPLE, Plaintiff and Respondent, v. Cory J. CHANDLER, Defendant and Appellant.

Page 687

65 Cal.Rptr.2d 687

56 Cal.App.4th 703, 97 Cal. Daily Op. Serv. 5780,

97 Daily Journal D.A.R. 9285

The PEOPLE, Plaintiff and Respondent, v. Cory J. CHANDLER, Defendant and Appellant.

No. A072329.

Court of Appeal, First District, Division 2, California.

July 22, 1997.

Certified for Partial Publication. ^*

Review Denied Nov. 12, 1997.

Janice M. Lagerlof, San Francisco, under appointment by the Court of Appeal, for appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Susan E. Myster, Deputy Attorney General, for respondent.

RUVOLO, Associate Justice.

I. INTRODUCTION

Appellant Cory J. Chandler was convicted by jury of numerous sex offenses, ¹ false imprisonment, and two counts of furnishing cocaine base (Health & Saf.Code, § 11352, subd. (a)). He was sentenced to a term of 185 years to life as a "third strike" defendant under California's "Three Strikes" law (Pen.Code, § 667, subds. (b)-(i)). Appellant alleges error occurred at virtually every stage of the proceeding. With regard to pretrial matters, he claims the court erred in allowing the prosecutor to amend the information to add additional charges. He claims error in a number of the court's evidentiary rulings, the most important of which challenges the court's limitation of evidence concerning the victim's previous exchanges of sex for drugs. In addition, he claims the evidence is insufficient to support his convictions for furnishing cocaine base. Finally, he raises instructional error and multiple issues concerning sentencing under the Three Strikes law.

We affirm the convictions and judgment in all respects. In the published portion of this opinion, we conclude that the trial court correctly applied the appropriate statutory procedures provided for in Evidence Code section 1103, subdivision (c), to determine the limited admissibility of prior sexual conduct of a victim of sexual assault. However, it was error, although harmless in this instance, to consider the trustworthiness of the proffered evidence as a criterion in ruling upon its admissibility.

II. STATEMENT OF FACTS

The facts underlying appellant's convictions were adduced predominantly through the testimony of the victim. By her own admission, at the time of these crimes, she was a five-month pregnant mother of two who had been addicted to crack cocaine for many years.

The victim testified she first met appellant on April 23, 1994, when he arrived at her apartment at Geneva Towers, a housing project in San Francisco, and indicated he knew her stepbrother. On that occasion, appellant supplied her with crack cocaine, which they smoked together. The victim made a date to see appellant again but later had to cancel it.

Around midnight on April 29, 1994, appellant appeared at the victim's door unannounced and unexpected. The victim's two sons were asleep in their bedroom, and because she perceived no threat from appellant, she let him in. Appellant declared he wanted "a hit" of cocaine, to which the victim replied, "me[,] too." The victim testified after they smoked crack cocaine together, appellant took off his clothing and demanded the victim also take off her clothing. When she refused, he hit her on her cheek, after which she insisted they go into her bedroom so her children would not be awakened. She then submitted to numerous sexual acts over the course of 45 uninterrupted minutes, including sodomy and oral copulation.

The victim heard her 11-year-old son get up to use the bathroom, and she told appellant she was going to check on him. She left the bedroom and told her son to get the police. After she returned to the bedroom, appellant told her to get him his clothes. She gave him his clothes and then fled the apartment. As she was pounding on a neighbor's door, appellant left her apartment, saying as he left, "you know you're tripping."

The defense argued the sexual encounter which formed the basis of appellant's prosecution was entirely consensual, because the victim was exchanging sexual acts for crack cocaine on the night in question. In so arguing, the defense highlighted the victim's admission that she had traded sex for drugs on two prior occasions. The defense also relied on expert testimony regarding the effects of long-term cocaine addiction to argue the victim's characterization of the events that night might well be the result of "memory gaps, confabulation, paranoia, [and] psychotic responses...."

The victim denied, however, that the sexual acts performed with appellant were voluntary. The victim's testimony was corroborated by the testimony of one of the responding police officers, who noticed the victim's cheek was red and swollen. The officer also described the victim as crying, shaking, and nauseous during her reporting of the incident. The victim was examined at a rape treatment center shortly after the assault. The sexual assault examiner who conducted the examination testified that her observations and physical findings were consistent with forcible sexual conduct, specifically vaginal and anal rape.

III. EXCLUSION OF EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT

Appellant first assigns error to the trial court's exclusion of specific instances of the victim's past sexual behavior. Statutes enacted in 1974 ² specify when and under what circumstances evidence of a victim's prior sexual behavior can be admitted in a trial of sexual assault charges. The statutory scheme actually consists of two statutes, Evidence Code sections 1103, subdivision (c), and 782. Section 1103, subdivision (c), provides that a defendant cannot introduce opinion evidence, reputation evidence, and evidence of specific instances of the alleged victim's previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts alleged. ³ In adopting this section the Legislature recognized that evidence of the alleged victim's consensual sexual activities with others has little relevance to whether consent was given in a particular instance. (See People v. Blackburn (1976) 56 Cal.App.3d 685, 690, 128 Cal.Rptr. 864.)

While strictly precluding admission of the victim's past sexual conduct for purposes of proving consent, Evidence Code section 1103, subdivision (c)(4), allows the admission of evidence of prior sexual history relevant to the credibility of the victim. Because the victim's credibility is almost always at issue in sexual assault cases, Evidence Code section 782 ⁴ specifies a procedure requiring an in camera review of the proffered evidence to diminish the potential abuse of section 1103, subdivision (c)(4). The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.

By narrowly exercising the discretion conferred upon the trial court in this screening process, California courts have not allowed the credibility exception in the rape shield statutes to result in an undermining of the legislative intent to limit public exposure of the victim's prior sexual history. (See, e.g., People v. Blackburn, supra, 56 Cal.App.3d at pp. 692-693, 128 Cal.Rptr. 864; In Re Wright (1978) 78 Cal.App.3d 788, 805-806, 144 Cal.Rptr. 535; People v. Guthreau (1980) 102 Cal.App.3d 436, 444, 162 Cal.Rptr. 376.) Thus, the credibility exception has been utilized sparingly, most often in cases where the victim's prior sexual history is one of prostitution. (See, e.g., People v. Varona (1983) 143 Cal.App.3d 566, 569-570, 192 Cal.Rptr 44 [evidence of the victim's prior prostitution activities in the location where she claimed to have been raped should have been admitted]; People v. Randle (1982) 130 Cal.App.3d 286, 293-294, 181 Cal.Rptr. 745 [granting defendant a new trial after evidence of victim's habit of soliciting public sex acts in exchange for money and drugs was discovered].) Evidence the victim participated in a form of prostitution is conduct involving moral turpitude which is admissible for impeachment purposes. (See People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938 [allowing the admission of past criminal conduct involving moral turpitude amounting to a misdemeanor absent a conviction to impeach the credibility of witnesses and parties].) Prostitution is a crime of moral turpitude. (People v. Alvarez (1996) 14 Cal.4th 155, 58 Cal.Rptr.2d 385, 926 P.2d 365; see also, People v. Hayes (1992) 3 Cal.App.4th 1238, 5 Cal.Rptr.2d 105.)

Utilizing the appropriate hearing procedure set forth in section 1103, subdivision (c), appellant made a general offer of proof identifying five individuals who could testify the victim was a "toss up," or someone who "regularly and frequently provides sex to men in exchange for crack cocaine." Acknowledging the evidence could not be used as evidence the victim consented to the sexual acts alleged, appellant contended the witnesses were only offered on the issue of credibility. ⁵

At the hearing, the court first heard the proffered testimony of Tommy Bruce Isaac. Isaac testified he had a relationship with the victim for about 19 months during which they were "having sex all the time." During that time, he exchanged drugs or money for sex with the victim. However, he admitted he never saw her having sex with anyone else.

Vannessa Joseph testified she lived in Geneva Towers, where the victim resided, but she only knew the victim slightly. Joseph had heard the victim "be tossing up, doing things for drugs," explaining the victim was known to trade sexual favors for drugs. Joseph admitted she did not have any personal knowledge of the victim's lifestyle, explaining she was relying on "just...