People v. Earle, H031525.

• Court: California Court of Appeals
• Citation: 172 Cal.App.4th 372,91 Cal. Rptr. 3d 261
• Decision Date: 19 March 2009
• Docket Number: No. H032982.,No. H031525.,H031525.,H032982.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CAMERON LEE EARLE, Defendant and Appellant. In re CAMERON LEE EARLE on Habeas Corpus.

172 Cal.App.4th 372 91 Cal. Rptr. 3d 261 THE PEOPLE, Plaintiff and Respondent,
v.
CAMERON LEE EARLE, Defendant and Appellant.
In re CAMERON LEE EARLE on Habeas Corpus. No. H031525. No. H032982. Court of Appeals of California, Sixth District. March 19, 2009.

[172 Cal.App.4th 378]

Fred Schnider, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, René A. Chacón and Joan Killeen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RUSHING, P. J. —

Defendant Cameron Lee Earle was charged in two separate cases with indecent exposure, a misdemeanor, and sexual assault, a felony. The charges arose from entirely distinct and dissimilar incidents with no apparent historical connection to one another. After first ordering the charges consolidated, the trial court denied a motion by defendant to sever them for trial.

At trial defendant tacitly conceded the indecent exposure charge, proof of which was strong. The underlying conduct occurred in broad daylight; the perpetrator's license number, which the victim recorded, belonged to a car then owned by defendant; and the victim positively identified defendant from a properly conducted photographic lineup.

The assault case was considerably weaker. The underlying incident occurred at night in a parked car illuminated only by overhead parking lot lights. The victim's description of her assailant and his vehicle did not match defendant or his vehicle. She characterized her assailant as looking Mexican, with light brown skin resembling her own; but defendant presents a distinctly pallid, European appearance in photographic exhibits, was described by a police booking officer as "white," and apparently looked European to the

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victim of the indecent exposure, whose description to police resulted in a photographic lineup all but one of whose subjects has an unmistakably northern European appearance. The victim described her assailant as "skinny," but photographs of defendant suggest an athletic build. The victim failed to notice anything unusual about the assailant's forehead or ears, but the photographs depict a deeply furrowed brow and protruding, possibly damaged ears. The pictures show an unmistakably athletic bull neck that, like defendant's prominent ears and deeply furrowed brow, contrasts distinctly with the assailant's features in a police sketch.

The victim described the assailant's vehicle as a 1986 Ford Bronco, but the only other witness said it was a pickup. The victim seemed to confirm her own original perception shortly after the assault, when she reported a Ford Bronco to police as possibly the suspect's vehicle. But defendant did not drive a 1986 Bronco; he drove a 1981 Chevrolet Blazer. Furthermore, defendant was a world-class competitor in the sport of "submission grappling," but the victim of the assault managed to break the assailant's grasp, escape the vehicle in which he sought to subdue her, and flee the scene.

These and other facts, discussed in greater detail below, provided fertile ground for a reasonable doubt in jurors' minds that the victim had correctly identified defendant as her assailant. Given this background we conclude that the court committed reversible error by permitting the prosecution, through the expedient of a joint trial, to place the strongly incriminating evidence of the misdemeanor charge before the same jury that would have to decide the much more difficult felony assault charge—a charge to which it was irrelevant, at least in the absence of foundational evidence that was not presented. This led to a grossly unfair trial in which the prosecutor explicitly urged the jury to convict defendant of the assault based upon his commission of the indecent exposure, which the prosecutor compared to DNA evidence and "modus operandi," and cited as proof that defendant was a "predator" and "scary guy." Indeed the prosecutor relied on a variety of spurious legal theories to place the indecent exposure before the jury, as evidence of the assault, as often and emphatically as possible. The indecent exposure thus played a central role, and quite possibly a decisive one, in securing a conviction on the assault charge. We have thus concluded that the trial court abused its discretion by denying the motion for separate trials, and that even if that ruling was within its discretion, the resulting trial was so grossly unfair as to deny defendant's right to due process of law. We will therefore reverse the assault conviction.

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BACKGROUND

A. The Indecent Exposure

Gina Doe¹ testified that around 4:00 in the afternoon of September 30, 2004, while walking into the San Jose mobilehome park where she lived, she noticed a white Ford sedan driving next to her with its windows down. The driver, whom she identified at trial as defendant, told her to "[c]ome here." On approaching the car, she saw that defendant was naked from the waist down and masturbating his erect penis. She fled in search of aid and managed to write down defendant's license number while he turned his car around. As she continued calling for assistance, he drove away.

Gina gave police the license number she had recorded. It was stipulated that this number was registered to a white Ford Probe owned by defendant. Gina subsequently viewed a photographic lineup in which she identified an October 2002 photo of defendant as the man who exposed himself to her. The defense offered no challenge to her testimony.

B. The Assault

Gloria Roe (see fn. 1, ante) testified through an interpreter that in late 2004 she was employed selling tamales from a table in a parking lot outside a San Jose market. On December 30 of that year, she arrived at the lot shortly after 5:00 a.m. to set up her table. At some point she decided to adjust the position of her car. As she entered it, with one leg still outside, a man appeared at the door. She asked him to help her. Instead of replying, he lifted and half-pushed, half-threw her into the front seat, where they began to struggle. He pulled her head back by the hair while she sat on the center divider holding the steering wheel to keep him from forcing her into a lying position.

She asked him if he wanted money. He said no, told her to stop struggling, and said that he had a gun and a knife.² He spoke to her in what Gloria, who

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does not speak English, described as "kind of broken half Spanish." Her told her "to allow myself—allow myself to have it done . . . ." Instead she "kept struggling. I wasn't just going to let him do what he wanted." He seemed to become more aggressive and to be infuriated by her apron and "fairly tight pants . . . ." She lifted a leg and tried to push him out of the car. At some point she got him to stop pulling her hair, and was able to open the passenger door. She "pushed him as hard as [she] could and . . . shot out the door on the other side." She ran to a nearby bakery, where she enlisted the aid of one of its workers. She testified that the two of them ran back to the scene of the assault in time to see the assailant drive away.

C. Description of, and Opportunity to Observe, Assailant

Gloria testified that the sun had not yet risen when she was attacked, and there was no light on inside her car. However, she testified, the driver's door was open and she could see the assailant's face from the overhead parking lot lights. She insisted that she got a good look at his face from a distance of about six inches. Interviewed by Detective Jorge Gutierrez shortly after the attack, Gloria described her assailant as about five feet nine inches tall, and "thin." She said he was wearing a black jacket.³ According to Detective Gutierrez, Gloria described her assailant as "a light-skinned Hispanic male . . . ." However Gloria herself testified not that his skin was "light," but that it was "light brown," "similar" to her own. She denied using the term "Hispanic" to police, but acknowledged telling them that her assailant looked "Mexican American." She testified that she called him "a Pocho," meaning, "someone who was born here and has Mexican parents." She considered him "Mexican-American as opposed to just Mexican," not because of his appearance but "because of the way he was speaking Spanish, that he didn't speak it well."

About a week after the assault Gloria described the assailant to a police artist. She told the artist the resulting sketch, which was introduced into evidence, resembled the assailant. Defense counsel in her summation described the sketch as "look[ing] similar to a photo that was taken of Mr. Earle in . . . 2002." Absent from the sketch, however, were the receding hairline, deeply furrowed brow, heavy neck, and protruding ears depicted in photographs of defendant. The face in the sketch is also thinner and has a more angular chin than the squarish face shown in photographs of defendant.

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D. Assailant's Vehicle

After returning to the area of the assault in the company of the bakery employee, Gloria saw her assailant climb into a truck and drive away. She initially described the truck as "pass[ing] right in front of us," but on cross-examination said it passed "at a great distance." She told police it was a "1986 black Ford Bronco." However, the bakery employee testified that it was a dark "pickup truck."

Asked at trial whether she remembered "anything unusual" about the truck, Gloria testified, "We noticed that it did not have the back window." She did not know whether the window was broken out or rolled down, adding, "It was far away that I saw this." There is no evidence that she mentioned a missing window in her original statement to police; she apparently first mentioned it after seeing defendant's truck.

On January 5, 2005—less than a week after the assault,...