People v. Falsetta

• Decision Date: 28 May 1998
• Docket Number: No. A077116,A077116
• Citation: 75 Cal.Rptr.2d 232,64 Cal.App.4th 291
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 64 Cal.App.4th 291 64 Cal.App.4th 291, 98 Cal. Daily Op. Serv. 4063 The PEOPLE, Plaintiff and Respondent, v. Charles Anthony FALSETTA, Defendant and Appellant.

Page 232

75 Cal.Rptr.2d 232

Previously published at 64 Cal.App.4th 291

64 Cal.App.4th 291, 98 Cal. Daily Op. Serv. 4063

The PEOPLE, Plaintiff and Respondent, v. Charles Anthony FALSETTA, Defendant and Appellant.

No. A077116.

Court of Appeal, First District, Division 3, California.

May 28, 1998.

Certified for Partial Publication ^*

Review Granted Aug. 12, 1998.

[64 Cal.App.4th 294] Martin Nebrida Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Richard Rochman and Linda M. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

WALKER, Associate Justice.

Charles Anthony Falsetta appeals from his convictions for forcible oral copulation (Pen.Code, § 288a, subd. (c)); assault with the intent to rape (Pen.Code, § 220); assault with force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1)); and kidnapping (Pen.Code, § 207), with sentence enhancements for inflicting great bodily injury (Pen.Code, §§ 12022.7, 12022.8). Sentencing Falsetta under the "Three Strikes" law (Pen.Code, § 667, subds. (a), (e)(2)), the trial court imposed a sentence of 40 years to life. Falsetta contends that: (1) his due process rights were violated by the admission of evidence of other uncharged rapes to show his predisposition to commit the charged offenses; (2) his counsel was ineffective; (3) the trial court erred by failing to give a limiting instruction to the jury on the use of other crimes evidence; and (4) the trial court erred by providing no remedy to Falsetta for the violation of his state constitutional right to counsel at a physical lineup conducted before charges against him were filed. In the published portion of this opinion we hold that Falsetta's due process rights were not violated and the trial court had no duty to instruct the jury where Falsetta's proposed instruction was incorrect, confusing, and verbose. In the unpublished portion of our opinion we find that Falsetta's attorney was not ineffective and Falsetta was not entitled to a remedy during his trial for any constitutional violation occurring at the preindictment lineup. Accordingly, we affirm.

FACTUAL BACKGROUND

Rochelle W., who was 16 years old on September 8, 1994, was walking from her home to a convenience store in Hayward at about 8 p.m. on that date, when a man in a red Mustang made a U-turn and drove slowly next to her as she walked. Rochelle W. testified that Falsetta was the man driving the car. Falsetta asked Rochelle W. if she wanted a ride. Rochelle W. refused at first and continued walking, but she then accepted the ride. Falsetta told Rochelle W. that he lived in Union City off Whipple Road near the drive-in theater. Falsetta turned in the opposite direction from the convenience store, and when Rochelle W. asked where they were going, Falsetta said, "We're going on a date." Rochelle W. told Falsetta several times that she wanted to go home and that she wanted out, but he did not respond. Falsetta drove on the freeway toward San Jose, and, because Rochelle W. "knew something wasn't right," she paid attention to the route they took, and to the car's interior.

Falsetta eventually pulled into a darkened parking lot, came around to the passenger side of the car, and sat on top of Rochelle W. Rochelle W. started screaming, and Falsetta said, "Nobody can hear you." Falsetta told Rochelle W., "We're on a date," and tried to give her money. Falsetta unsuccessfully tried to undo Rochelle W.'s pants, while biting her cheek and holding her head down. Rochelle W. hit Falsetta, and he responded by hitting her face and head with both fists. Falsetta then put his penis near Rochelle W.'s mouth, told her, "Suck it," and then hit her in the head with his fists until he forced his penis into her mouth. Rochelle W. bit his penis, not hard enough to draw blood, and Falsetta retaliated by hitting Rochelle W. so hard with his fists that she lost consciousness twice for a couple of seconds.

Rochelle W. told Falsetta that she would do anything he wanted if she could get a drink, so Falsetta drove to a gas station, dropped her off, and left. Rochelle W. ran crying to a customer, Robert Vanderhorst, asking for help and said, "some guy tried to rape me," adding that he was in a red Mustang. The gas station attendant, Scott Wilkerson, called the police. After the police arrived, Rochelle W. described her assailant to them as a "good-looking" man with a thick mustache, mid-30's, 5 feet, 6 to 8 inches tall, 140 to 150 pounds, with black hair combed straight back, wearing a white tank top and blue jeans. She also described the car as a 1970's or 1980's Mustang with red interior and exterior, tinted rear and side windows, automatic transmission, automatic door locks that extended into the door panel when locked, something hanging from the rearview mirror, a stereo with green lights, and a black or blue, plaid shirt on the floor of the passenger side. ¹

Later that night, at the police station, Rochelle W. looked at six photographs. She identified one photograph, but said she was unsure. After a police officer told her to tell him, positively yes or no, if that was her assailant, Rochelle W. said the photograph was of her assailant and signed a statement. The police eliminated as a suspect the person whose photograph Rochelle W. identified, in part because he had no injury to his penis.

Falsetta was arrested for a parole violation several weeks after the attack, and at the time lived about a half-mile from the Union City drive-in, near the Whipple Road exit. Falsetta also owned a 1993 Mustang with a red exterior, red seats (without furry seat covers), and red interior. The car had automatic locks, an automatic transmission with the gearshift in a central console, tinted rear and side windows, and medallions hanging from the rearview mirror. A black and white plaid flannel shirt was inside the car when Falsetta was arrested. After his arrest, a police officer also observed a reddish or pinkish mark, a quarter-inch long and one-tenth of an inch wide, on the shaft of Falsetta's penis.

Rochelle W. viewed a corporeal lineup of six people, including Falsetta, after his arrest. Rochelle W. watched attentively from behind a one-way mirror as each person in the lineup approached the mirror, spoke, and left the room. Rochelle W.'s demeanor changed as Falsetta approached the mirror; she began to cry, started shaking, and tried to back up. She told a police officer present at the lineup that Falsetta tried to change his appearance, and then she positively identified Falsetta. She also identified Falsetta's car as the one he was driving the night of the assault.

Over Falsetta's objections, the prosecution introduced evidence of two prior uncharged sexual assaults by Falsetta. In the first, occurring in 1985, Falsetta began jogging beside a woman, asked her where she was going, then tackled her. The woman screamed and struggled, and Falsetta told her to be quiet, that he had a knife and would poke her eyes out. Sitting on top of her, Falsetta pressed on her eye, then struck her in the eye with his fist. Falsetta raped her, told her she was lucky, and ran off. Falsetta later admitted that he attacked the woman after spotting her from his car, and he pleaded guilty to rape. In the second assault, in 1987, Falsetta drove his car into a driveway so that it blocked the sidewalk in front of a woman as she walked to her work. Falsetta asked the woman where she was going and if she needed a ride. The woman declined and kept walking as Falsetta drove into an apartment complex. Farther along the woman's route, Falsetta jumped from behind some bushes, grabbed the woman, threw her down into the bushes and told her he would kill her if she screamed. Sitting on top of the woman, he repeatedly hit her in the nose and the side of her face with his fists. He pushed his penis toward her and told her to put it in her mouth, and hit her when she jumped back. Falsetta pulled down his and the woman's pants and raped her. He threatened to kill the woman and left. Falsetta later pleaded guilty to rape.

The defense called Wilkerson, the gas station attendant who called the police after Falsetta attacked Rochelle W. Wilkerson testified that he overheard Rochelle W. tell Vanderhorst, the customer at the gas station, that "my boyfriend beat me up, it's the third time it's happened." Although Wilkerson never told the police of this conversation, he related the same conversation to a defense investigator. Wilkerson admitted that he told the prosecutor several weeks before trial that he did not remember what Rochelle W. said at the gas station, and he admitted on cross-examination that his memory of what happened on the night of the attack was not very good. On rebuttal, a police officer testified that Wilkerson, several weeks before trial, told the officer that he remembered Rochelle W. saying that someone beat her up, but he could not recall who she said beat her. The prosecutor also called Vanderhorst, who testified that he was absolutely sure that Rochelle W. did not say that her boyfriend beat her up.

I EVIDENCE CODE SECTION 1108 DOES NOT OFFEND DUE PROCESS

Falsetta argues that the admission of evidence, under Evidence Code section 1108, ² that he committed two other sex crimes in order to prove his disposition to commit the charged sexual offenses violates his right to a fair trial under the due process clause. We reject his argument.

Under section 1108, ³ evidence of a prior sexual offense is admissible to show any relevant issue in a sex crime prosecution, including a defendant's propensity to commit the charged crime. (People v. Harris (1998) 60 Cal.App.4th 727, 730, 70 Cal.Rptr.2d 689.) Section 1108, subdivision (a) also provides that the admissibility of prior sexual offense evidence is subject to ...