People v. Ogunmola

• Decision Date: 25 July 1985
• Citation: 39 Cal.3d 120,215 Cal.Rptr. 855,701 P.2d 1173
• Court: California Supreme Court
• Parties: , 701 P.2d 1173 The PEOPLE, Plaintiff and Respondent, v. Olufemi Babatunde OGUNMOLA, Defendant and Appellant. Crim. 24172.

Page 855

215 Cal.Rptr. 855

39 Cal.3d 120, 701 P.2d 1173

The PEOPLE, Plaintiff and Respondent, v. Olufemi Babatunde OGUNMOLA, Defendant and Appellant.

Crim. 24172.

Supreme Court of California In Bank.

July 25, 1985.

Gina Putkoski, Arcadia, Cal., Howard L. Weitzman, Weitzman & Re, Los Angeles, Cal., for defendant and appellant.

Robert R. Anderson, Deputy Atty. Gen., Los Angeles, Cal., for plaintiff and respondent.

KAUS, Justice.

I

Defendant, a board-certified gynecologist and obstetrician, was charged with and convicted of raping two patients--DC and BK--while they were "unconscious of the nature of the act." (Pen.Code, § 261, subd. (4).) At the trial the prosecution was permitted to introduce evidence of similar incidents with two other patients--TS and EG. Charges involving those patients had previously been tried and had resulted in acquittals. ¹ Defendant contends that the introduction of this evidence was prejudicial error under People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1. We agree and reverse the judgment.

II

The testimony of the four principal witnesses was quite similar. In sum, each testified to facts from which it could be inferred that defendant inserted his penis into her vagina while conducting a bimanual examination of her pelvic organs. Each victim was lying on her back on the examination table with her knees bent and her feet in stirrups. A paper drape covered her knees, blocking her vision of all but defendant's head and chest. Each testified that the nurse left the room after defendant had obtained a pap smear and before the bimanual examination. ²

Defendant testified and denied wrongdoing with respect to any of the four victims. He suggested that they mistook the normal insertion of two fingers during the bimanual examination for sexual penetration. This theory was supported by expert testimony. Defendant and his nurses testified that on three of the four occasions the nurses did not leave the room during the pelvic examination. ³

III

The question of the admissibility of the evidence concerning TS and EG was argued and ruled on before the opening statements. Having in mind that People v. Thomas (1978) 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433, which we disapproved in People v. Tassell, supra, probably made it futile for counsel to object on the basis of section 1101 of the Evidence Code--after all the uncharged offenses were not too remote and were similar to the charged offenses--the defense relied principally on section 352, arguing that the prejudicial effect outweighed the probative value. ⁴ The court ruled that it could not "conceive of a case where the probative value would be any greater," and that it "far outweighs any prejudicial value [sic ]." Eventually the jury was instructed that it could consider the evidence "only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of acts similar to the method, plan or scheme used in the commission of the offenses in this case which would further tend to corroborate the testimony of the prosecuting witnesses."

While the trial court's ruling was probably justified by People v. Thomas, supra, at this point even the People concede that since neither identity nor intent ⁵ was in issue and the evidence was not admissible solely to corroborate DC and BK, the announced basis for admitting the testimony of TS and EG was error. (People v. Tassell, supra, 36 Cal.3d at pp. 83-89, 201 Cal.Rptr. 567, 679 P.2d 1.) They claim however that the evidence was not prejudicial, since it would have been independently admissible for the purpose of establishing defendant's opportunity to achieve penetration, a necessary element of the charged offenses. To support this novel theory, the People rely on a passage in defense counsel's opening statement in which he pointed to a step at the foot of the doctor's examining table which-- unless removed with much noise--supposedly inhibited contact between defendant's and the victims' sexual organs. ⁶ With all respect, the People's "inevitable admissibility" theory will not work. We can disregard that it was never voiced below, that the trial court ruled on the admissibility of the evidence before defense counsel ever mentioned the steps, ⁷ and that the jury was obviously never instructed to limit its consideration of the evidence to the mechanical issue raised by the defense. The conclusive answer is simply that if it was genuinely desired to prove that the step did not make sexual contact impossible, there were several demonstrations by which the People could have proved their point directly with reasonable delicacy and without lurid testimony from alleged victims of uncharged rapes.

IV

We must face the fact that the only genuine issue before us is whether the erroneously admitted evidence was prejudicial. This question must, of course, be decided against the background of the entire case as presented by both sides. It would needlessly burden the record if we recited in detail the various side issues which the parties assiduously explored, the expert testimony, the impeachment--successful and not so successful--of the complaining witnesses or if we took meticulous note of the many intangibles which can determine the outcome of any litigation. None of these factors is of concrete assistance in assessing prejudice from erroneously admitted evidence. In its crudest form, the case pitted the credibility of the complaining witnesses against that of defendant and his nurses. The fact that the two complaining witnesses were impermissibly corroborated by two others, had to carry much weight with the jury. Finally, we simply cannot ignore the one fact which proves the effect of the error with seeming laboratory precision: that when defendant was charged only with two similar offenses allegedly committed against TS and EG, he was acquitted, but when the jury learned of four similar incidents he was convicted. While this fact is, of course, far from conclusive, it is a great deal more probative and convincing than the usual tools given to appellate courts on the issue of prejudice. We therefore find that the error was prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment is reversed.

BIRD, C.J., and MOSK, BROUSSARD, REYNOSO and GRODIN, JJ., concur.

LUCAS, Justice, concurring.

I concur in the judgment, but solely under the compulsion of People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, a case which I believe was incorrectly decided and should be reconsidered and overruled.

As the dissent by Justice Richardson in Tassell explained, the fact that the defendant had committed ¹ several strikingly similar sex offenses in the recent past is highly probative of defendant's intent, plan or scheme to commit such offenses,...