People v. Fitch

Decision Date22 May 1997
Docket NumberNo. C023811,C023811
Citation55 Cal.App.4th 172,63 Cal.Rptr.2d 753
Parties, 97 Cal. Daily Op. Serv. 3882, 97 Daily Journal D.A.R. 6546 The PEOPLE, Plaintiff and Respondent, v. Robert Lee FITCH, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert Anderson, Joe Graves and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

MORRISON, Associate Justice.

Defendant was convicted by jury of forcible rape (Pen.Code, § 261, subd. (a)(2)) and the jury found true the allegation that defendant had two serious felony convictions (Pen.Code, § 667, subd. (a); § 667, subds. (b)-(i)). Sentenced to an indeterminate sentence of 25 years to life and a determinate sentence of 10 years, defendant appeals.

In the published portion of this opinion we reject defendant's constitutional challenge to Evidence Code section 1108, which permits, in a criminal action for a sex offense, the admission of evidence of the defendant's commission of another sex offense, subject only to the restrictions of Evidence Code section 352. In the unpublished portion of this opinion, we reject defendant's contentions as to his sentence and the reasonable doubt instruction.


Angelica L., was 18 years old and lived with her child and her sister and her sister's two children in an apartment in Sacramento. She met defendant at her apartment complex. He asked her out, to go to the fair, and she said yes. She had not been out in a long time and wanted to get away from the children.

They left at 9:45 or 10:00 at night and made several stops. First, they went to Tiffany's, a friend of Angelica's. They went to several apartments looking for drugs and stopped at a liquor store where defendant bought some liquor. Around midnight, Angelica called Tiffany and asked when the fair closed. At one point Angelica called her friend Monica and asked her to meet them; Monica never showed up, but Angelica ran into other friends at the Safeway Market in West Sacramento.

Defendant and Angelica were successful in finding some marijuana, which they smoked, and they stopped for food at a Taco Bell. Finally, defendant drove to Sand Cove Park and got out to use the restroom. Angelica wanted to go home, but defendant refused. When defendant tried to take off Angelica's seatbelt, she got out of the car. Defendant apologized. As Angelica walked towards the car, defendant grabbed her, threw her on the back of the car, and began feeling her. Angelica screamed and said no. Defendant asked if she was ready to die. Defendant pulled down her shorts and raped her while standing behind her. He then took her home and invited her and her daughter to brunch the next morning.

Once home Angelica called Tiffany and told her she had been raped. Tiffany told Angelica to tell her sister. Angelica's sister then called the police.

DNA (deoxyribonucleic acid) testing on semen samples from a vaginal swab and Angelica's panties revealed a very high probability that defendant was the semen donor.

At trial the People wanted to introduce evidence that defendant had committed another rape, as permitted under new Evidence Code section 1108. The People also offered the evidence as showing a common scheme under Evidence Code section 1101, subdivision (b). The defense objected. The trial court noted it was a "close call" whether the evidence was admissible as a common plan, but admitted it under both code sections.

April D. testified she and her boyfriend, Chris, double-dated with defendant and his date in 1990. April had a fight with Chris that evening. Defendant came by in the early morning and told April he had a message from Chris that he was not coming home, but was moving in with another woman. Defendant was going to call Chris and asked if April wanted to come. She accompanied him to a phone booth two blocks away where defendant made a call. Defendant told April Chris was coming to meet him at McKinley Park; April went to the park as she wanted to speak to Chris.

Chris did not show up at the park. Defendant told April he knew a way to get back at Chris and April said no. Defendant told her she could make it easy or hard. April got angry and said no. When defendant tried to touch her breast she pushed him away. Defendant pulled her hair and pulled her on top of a picnic table. When she refused to pull her pants down, he bit her neck and pulled her pants down. Defendant pulled up her sweatshirt, ripped her bra, and bit her breast. He penetrated her vagina with his penis for several minutes, stopping only when a transient approached. April spit at defendant and went home, where she later called the police.

The parties stipulated defendant entered a guilty plea to the rape of April.

Defendant originally told the police he did not have sex with Angelica. At trial, his defense was consent. Witnesses who saw defendant and Angelica that night testified she looked happy and not scared. One witness testified Angelica told her "I'm going to get mine tonight," which she interpreted as meaning Angelica intended to have sex with defendant.

After the jury found both prior serious felony allegations true, defendant moved to strike one prior. The court responded that defendant did not deserve leniency so even if it had the power it would not strike the prior. Pursuant to People v. Cartwright (1995) 39 Cal.App.4th 1123, 46 Cal.Rptr.2d 351, the court imposed two 5-year enhancements, and sentenced defendant to 25 years to life on the rape charge.


Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Subdivision (b) allows the admission of a crime, civil wrong, or other act to prove a fact, such as motive, intent, common plan, or identity, other than disposition. Evidence Code section 1108, enacted in 1995 (Stats.1995, ch. 439, § 2), provides in subdivision (a): "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." 1

Defendant contends this statute, which permits the admission of character evidence to prove disposition, violates due process.

In reviewing a statute against constitutional challenge, "we are mindful that it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. [Citations.]" (Mills v. Superior Court (1986) 42 Cal.3d 951, 957, 232 Cal.Rptr. 141, 728 P.2d 211.)

Preventing and dealing with crime is more the business of the states than of the federal government. Accordingly, the State has power to regulate the procedures under which its laws are carried out, and a rule of evidence in this regard "is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' [Citations.]" (Patterson v. New York (1977) 432 U.S. 197, 201-202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281, 286-287.)

Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. "In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]" (People v. Jones (1954) 42 Cal.2d 219, 223, 266 P.2d 38.) Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. "It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much." (1A Wigmore, Evidence (Tillers rev.1983) § 58.2, p. 1212.)

One raising a due process claim to exclude relevant evidence must sustain a heavy burden. (Montana v. Egelhoff (1996) 518 U.S. 37, ---- - ----, 116 S.Ct. 2013, 2017-2018, 135 L.Ed.2d 361, 368; Watkins v. Meloy (7th Cir.1996) 95 F.3d 4, 7 ["If the evidence is probative, it will be very difficult to find a ground for requiring as a matter of constitutional law that it be excluded."].) The Due Process Clause has limited operation beyond the specific guarantees of the Bill of Rights, and the category of infractions that violates "fundamental fairness" is defined very narrowly. (Dowling v. United States (1990) 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708, 720 [holding admission of evidence relating to alleged crime of which defendant had been acquitted did not violate due process].) The Due Process Clause does not permit courts to engage in fine-tuning of state evidentiary rules. (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6, 103 S.Ct. 843, 853, fn. 6, 74 L.Ed.2d 646, 661, fn. 6; Spencer v. Texas (1967) 385 U.S. 554, 564, 87 S.Ct. 648, 653-654, 17 L.Ed.2d 606, 614.)

The United States Supreme Court has not decided whether a state law would violate the Due Process Clause if it permitted the use of prior crimes evidence to show the defendant's propensity to commit the charged crime. (Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5, 116 S.Ct. 475, 484, fn. 5, 116 L.Ed.2d 385, 401, fn. 5.) Generally, however, federal courts have rejected the blanket...

To continue reading

Request your trial
365 cases
  • People v. Williams
    • United States
    • California Court of Appeals Court of Appeals
    • May 15, 2018
    ...a condemnation irrespective of guilt of the present charge.’ " (Id. at § 76, p. 460, italics added; see People v. Fitch (1997) 55 Cal.App.4th 172, 179, 63 Cal.Rptr.2d 753.) "The primary reasoning that underlies this basic rule of exclusion is not the unreasonable nature of the forbidden cha......
  • Rogers v. Giurbino
    • United States
    • U.S. District Court — Southern District of California
    • July 11, 2007
    ...not burden a fundamental right. The California Court of Appeal properly applied a rational basis standard of review in Fitch, 55 Cal.App.4th at 184, 63 Cal. Rptr.2d 753, to uphold § 1108. The court found that "the nature of sex offenses, both their seriousness and their secretive commission......
  • People v. Acosta
    • United States
    • California Court of Appeals Court of Appeals
    • May 3, 1999
    ...of justice and violates constitutional guarantees of due process. Defendant implicitly acknowledges that in People v. Fitch (1997) 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753, the Third District rejected an identical due process challenge to section 1108, which is essentially the same as section......
  • People v. Abilez
    • United States
    • California Supreme Court
    • June 28, 2007 rooted in the traditions and conscience of our people as to be ranked as fundamental." [Citations.]'" (People v. Fitch (1997) 55 Cal.App.4th 172, 178-179, 63 Cal. Rptr.2d 753, quoting Patterson v. New York (1977) 432 U.S. 197, 201-202, 97 S.Ct. 2319, 53 L.Ed.2d This general rule will giv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT