People v. Jackson

• Decision Date: 25 September 1980
• Docket Number: Cr. 19707
• Citation: 167 Cal.Rptr. 915,110 Cal.App.3d 560
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John William JACKSON, Defendant and Appellant.

Page 915

167 Cal.Rptr. 915

110 Cal.App.3d 560

The PEOPLE, Plaintiff and Respondent, v.John William JACKSON, Defendant and Appellant.

Cr. 19707.

Court of Appeal, First District, Division 4, California.

Sept. 25, 1980.

Hearing Denied Nov. 19, 1980.

John M. Hanley, Sunnyvale, for defendant and appellant(Under appointment by the Court of Appeal).

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Charles Michael Buzzell, Deputy Attys.Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

DefendantJohn William Jackson was convicted of rape (Pen.Code, § 261, subd. 3) and forcible oral copulation (Pen.Code, § 288a, subd. (c)) after a trial by jury and was also found to have used a deadly weapon in the commission of the offenses (Pen.Code, § 12022, subd. (b)).He was subsequently found not to be a mentally disordered sex offender (MDSO)(Welf. & Inst.Code, § 6300 et seq.).

On appeal defendant asserts that prejudicial error occurred when the trial court admitted evidence that he had committed a prior offense, that the evidence was insufficient to support the convictions and the "use" finding, and that the finding that he was not an MDSO was not supported by the record.We reject these contentions.

On November 9, 1978, the victim was asleep in the front room of the Aries Massage Parlor when she was awakened because a towel had been placed over her face, impairing her breathing.She saw defendant standing over her holding an 18-inch pair of scissors which were normally kept in the medicine cabinet in the bathroom of the massage parlor.A brief struggle followed, and the victim smelled alcohol on defendant's breath.In an effort to stall, she suggested to defendant that they would be more comfortable in the back room of the massage parlor.Upon arriving in the back room, defendant undressed the victim and forced her to perform oral copulation.After a brief conversation, defendant then had sexual intercourse with the victim.Upon returning to the front room, the victim made two phone calls after assuring defendant that she was not calling the police.Through signaling she conveyed to a friend that she needed help.Shortly thereafter, Officers Paul Tessier and Michael Loesch arrived at the massage parlor and arrested defendant.The officers found a footprint which matched the pattern on defendant's shoes on the toilet lid in the bathroom, indicating that he had entered the premises through the bathroom window.

At trial a witness testified that in February of 1977she had been awakened by defendant, who was holding a knife, and had been forced to perform two acts of oral copulation.There was evidence that defendant had entered through the bathroom of the apartment, that they had talked for a while, and that defendant appeared confused.

I

Defendant contends that prejudicial error occurred when the trial court admitted evidence of the February 1977 oral copulation.Prior to trial counsel for defendant informed the court that his trial theory would be that the victim in the present case had consented to the sexual acts.When the judge subsequently admitted evidence of the prior offense, he explained that by trying to show that the victim consented, defendant had placed his intent at issue.Defendant now contends that the admission of the forced act of oral copulation in 1977 was not relevant because the lack of consent by that victim does not show a lack of consent in the present case.

As a general rule, evidence that a defendant committed other offenses is inadmissible if offered solely to prove his criminal disposition or propensity.(Evid.Code, § 1101, subd. (a);People v. Kelley(1967)66 Cal.2d 232, 238, 57 Cal.Rptr. 363, 424 P.2d 947.)The primary purpose of this rule is to protect against misuse of uncharged acts, prejudicing the defendant in the minds of the jurors.(People v. Cramer(1967)67 Cal.2d 126, 129, 60 Cal.Rptr. 230, 429 P.2d 582.)Nevertheless, "(i)t is settled that evidence of other crimes is ordinarily admissible where it tends to show guilty knowledge, motive, intent . . . ."(People v. Kelley, supra, 66 Cal.2d at p. 239, 57 Cal.Rptr. at p. 370, 424 P.2d at p. 954.)When prior offense evidence is relevant to prove some material fact at issue, other than the mere general disposition of the defendant to commit such offenses, it is generally admissible.(Evid.Code, § 1101, subd. (b).)The trial court, however, "may (in its discretion) exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice."(Evid.Code, § 352.)The court will be held to have abused its discretion if it admits evidence, the probative value of which is outweighed by its prejudicial effect.(People v. Haston(1968)69 Cal.2d 233, 246, 70 Cal.Rptr. 419, 444 P.2d 91.)

Even if evidence of a prior crime is offered for the admissible purpose of proving intent, it should be excluded unless it is logically relevant to prove the defendant's intent in the charged offense.(People v. Thompson(1980)27 Cal.3d 303, 318-319, 165 Cal.Rptr. 289, 611 P.2d 883.)Evidence of a prior offense is logically relevant to prove the defendant's intent if the prior offense was sufficiently similar in its commission to the charged offense to indicate that the defendant probably harbored the same intent in both instances.(ComparePeople v. Thompson, supra, 27 Cal.3d at pp. 319-321, 165 Cal.Rptr. 289, 611 P.2d 883(insufficient similarity of offenses to invest the evidence of the prior offense with probative value substantial enough to outweigh prejudicial effect).)The admission of such evidence is not an abuse of discretion.

Additionally, in cases involving sex crimes, evidence of similar, nonremote prior sex offenses is admissible to corroborate the victim's testimony on a material issue such as the intent of the defendant.(People v. Thomas(1978)20 Cal.3d 457, 468-469, 143 Cal.Rptr. 215, 573 P.2d 433;People v. Hunt(1977)72 Cal.App.3d 190, 199-203, 139 Cal.Rptr. 675.)Such evidence is admissible because "by reason of the unique circumstances of privacy and seclusion surrounding the commission of most sex offenses the determination of witness credibility plays a central role."(People v. Thomas, supra, 20 Cal.3d at p. 468, 143 Cal.Rptr. at p. 220, 573 P.2d at p. 438.)Defendant's trial theory, that the victim had consented to the sexual acts, was tantamount to a denial that he had intended to achieve oral copulation and sexual intercourse by force or intimidation.Evidence of prior offenses was thus admissible to establish defendant's intent in the present offense by corroborating the victim's testimony that she had not consented to the sex acts, so long as those prior offenses were not too remote and were similar to the offense charged.(SeePeople v. Jackson(1980)102 Cal.App.3d 620, 625, 162 Cal.Rptr. 574.)The court's limiting instruction, that the evidence of the prior offense was admissible to prove intent, was appropriate to both theories of admissibility.

The present offense and the prior offense were close in time (one year and nine months apart) and shared several similar marks.In each case defendant entered the premises through the bathroom during early morning hours.Upon gaining entry, he armed himself with an instrument, found inside the building, which could be used for cutting or stabbing.In both instances he approached his victim by placing his hand over the victim's mouth while holding the weapon in an attack position above the victim's head.Defendant forced each victim to perform an act of oral copulation, then remained and engaged the victim in rather protracted conversation.Finally, it is noted that the victims in both cases were young women.There were an adequate number of common features in both cases to give rise to a reasonable inference that defendant harbored the same intent in both instances.Therefore the trial court could reasonably determine that the probative value of the prior offense outweighed its prejudicial effect.The court did not abuse its discretion when it admitted evidence of the prior offense.

II

Defendant next contends that the evidence was insufficient to support the jury's verdict.As noted in People v. Hillery(1965)62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382, cert. den.386 U.S. 938, 87 S.Ct. 958, 17 L.Ed.2d 810;reh. den.386 U.S. 1000, 87 S.Ct. 1310, 18 L.Ed. 2d 355, " '(t)he test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact.It is not whether guilt is established beyond a reasonable doubt. . . .' "

Defendant argues that the entire case against him rests upon the testimony of the victim which was so "thoroughly impeached by her prior inconsistent statements as to render it unbelievable," and that significant portions of her testimony were innately implausible and not corroborated by other witnesses.

The victim's testimony was certainly a central part of the prosecution's case, but it was not the only evidence.The testimony of the prior victim, as well as that of Officers Tessier and Loesch, served to corroborate the victim's testimony in important aspects.In addition, a footprint which matched the pattern on the soles of defendant's shoes was found on the toilet seat in the bathroom of the massage parlor.

Defendant points to several instances in which he contends the record reflects inconsistent statements made by the prosecutrix.For example, he notes that the victim testified at trial that he was wearing boots with grease, while at the preliminary hearing she said he wore black boots.At the preliminary hearing she testified that defendant's zipper was still unfastened when they walked toward the back room and that defendant, unaided, undressed her.At trial she testified that defendant...