People v. Falsetta

• Citation: 986 P.2d 182,21 Cal.4th 903,89 Cal.Rptr.2d 847
• Decision Date: 01 November 1999
• Docket Number: No. S071521.,S071521.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Anthony FALSETTA, Defendant and Appellant.

89 Cal.Rptr.2d 847

21 Cal.4th 903

986 P.2d 182

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

No. S071521.

Supreme Court of California.

November 1, 1999.

Certiorari Denied April 24, 2000.

Martin Nebrida Buchanan, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias, Richard Rochman and Linda M. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied April 24, 2000. See 120 S.Ct. 1723.

CHIN, J.

In this case we resolve a due process challenge to legislation (Evid.Code, § 1108)¹ permitting the admission, in a sex offense case, of the defendant's other sex crimes for the purpose of showing a propensity to commit such crimes. Although this provision represents a deviation from the historical practice of excluding such "propensity" evidence (see § 1101, subd. (a)), the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352). We conclude, consistent with prior state and federal case law, that section 1108 is constitutionally valid. We also reject defendant's additional contention that the judgment should be reversed because the trial court erred in refusing to give defendant's special limiting instruction regarding the jury's consideration of the other crimes evidence.

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 defendant under the "Three Strikes" law (Pen.Code, § 667, subds.(a), (e)(2)), the trial court imposed a sentence of 40 years to life.

On appeal, defendant contended, inter alia, that the admission of evidence of his other uncharged rapes violated his due process rights, and that the trial court erred in refusing to give a special instruction limiting the jury's consideration of evidence of these uncharged offenses. The Court of Appeal rejected both contentions and affirmed the judgment. As will appear, we agree.

FACTUAL BACKGROUND

The following fact statement is largely taken from the Court of Appeal's decision in this case. On September 8, 1994, about 8:00 p.m., Rochelle W., 16 years old, was walking from her home to a convenience store in Hayward, when a man in a red Mustang made a U-turn and drove slowly next to her. Rochelle W. testified that defendant was the man driving the car. He asked her if she wanted a ride. She refused at first and continued walking, but she then accepted the ride. Defendant told Rochelle W. that he lived in Union City off Whipple Road near the drive-in theater. Defendant turned in the opposite direction from the convenience store, and when Rochelle W. asked where they were going, defendant said, "We're going on a date." Rochelle W. told defendant several times that she wanted to go home and that she wanted out, but he did not respond. Defendant 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.

Defendant eventually pulled into a darkened parking lot, came around to the passenger side of the car, and sat on top of Rochelle W. She started screaming, and defendant said, "Nobody can hear you." Defendant told her, "We're on a date," and tried to give her money. Defendant unsuccessfully tried to undo Rochelle W.'s pants, while biting her cheek and holding her head down. Rochelle W. hit defendant, and he responded by hitting her face and head with both fists. Defendant 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 defendant retaliated by hitting her so hard with his fists that she lost consciousness twice for a couple of seconds.

Rochelle W. told defendant that she would do anything he wanted if she could get a drink. Defendant drove to a gas station, dropped her off, and left. Rochelle W. ran crying to a customer, Robert Vanderhorst, asking for help and saying "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 "goodlooking" man with a thick mustache, mid-30's, between 5 feet 6 inches and 5 feet 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.

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 later eliminated as a suspect the person whose photograph Rochelle W. identified, in part because he had no injury to his penis.

Defendant was arrested for a parole violation several weeks after the attack. At the time, he lived about a half-mile from the Union City drive-in, near the Whipple Road exit. Defendant also owned a 1993 Mustang with a red exterior, red seats, 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 defendant 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 defendant's penis.

Rochelle W. viewed a corporeal lineup of six people, including defendant, 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. Her demeanor changed as defendant approached the mirror; she began to cry, started shaking, and tried to back up. She told a police officer present at the lineup that defendant tried to change his appearance, and then she positively identified him. She also identified defendant's car as the one he was driving the night of the assault.

Over defendant's objections, and pursuant to section 1108, the prosecution introduced evidence of two prior sexual assaults by him. In the first, occurring in 1985, defendant began jogging beside a woman, asked her where she was going, then tackled her. The woman screamed and struggled, and defendant told her to be quiet and that he had a knife and would poke her eyes out. Sitting on top of her, defendant pressed on her eye, then struck her in the eye with his fist. He raped her, told her she was lucky, and ran off. Defendant 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, defendant drove his car into a driveway so that it blocked the sidewalk in front of a woman as she walked to her work. Defendant asked the woman where she was going and if she needed a ride. She declined and kept walking as defendant drove into an apartment complex. Farther along the woman's route, defendant 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. Defendant pulled down his pants and the woman's pants and raped her. He threatened to kill the woman and left. Defendant later pleaded guilty to rape.

The defense called Wilkerson, the gas station attendant who telephoned the police after defendant 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.

SECTION 1108

Defendant contends the court erred in admitting evidence of his prior sex offenses under section 1108. He asserts that section 1108 violates due process principles by allowing admission of "propensity" evidence. Before confronting this constitutional issue, we first review and briefly summarize the statutory scheme for admitting or excluding character and "other crimes" evidence in this state.

As a general rule, evidence that is otherwise admissible may be introduced...