People v. Tassell

• Decision Date: 20 April 1984
• Docket Number: Cr. 22823
• Parties: , 679 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. David TASSELL, Defendant and Appellant.
• Court: California Supreme Court

Page 567

201 Cal.Rptr. 567

36 Cal.3d 77, 679 P.2d 1

The PEOPLE, Plaintiff and Respondent, v. David TASSELL, Defendant and Appellant.

Cr. 22823.

Supreme Court of California In Bank.

April 20, 1984.

Philip D. McKibbin, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Quin Denvir, State Public Defender, Lisa Short and George L. Schraer, Deputy State Public Defenders, as amici curiae on behalf of defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones, Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Justice.

After a jury trial, defendant David Tassell was convicted of kidnaping (Pen.Code, § 207), rape (Pen.Code, § 261, subds. (2), (3)), and forcible oral copulation (Pen.Code, § 288a). He appeals, contending that the trial court erred in two respects: (1) by admitting evidence of two earlier sex offenses; and (2) by using prior convictions twice to enhance the sentence. We affirm the convictions, but remand for resentencing.

I

The convictions result from an incident with Anne B. on October 21, 1980. Miss B. testified that at the time she had been working as a waitress at a restaurant in Susanville for only a few days. As she left the restaurant at the end of her shift about 1:30 a.m., defendant left with her and asked if she would give him a ride home. She agreed because she had seen him at the restaurant on several occasions and thought he was a friend of others who worked there.

The two got into Miss B.'s Volkswagen camper van and drove off. When they reached defendant's destination, he attempted to kiss Miss B. She pushed him away and tried to open the driver's door to leave, but the door jammed. Defendant grabbed her neck with both hands and put his thumbs against her windpipe, making it difficult for her to breathe. While still holding her throat, he pushed Miss B. between the seats and threw her into the back of the van. She landed on her back, hitting her head and back on the floor. Defendant continued strangling her until she stopped resisting. He told her to "shut up" and promised that she would not be hurt if she did as told.

Defendant grabbed Miss B.'s hair and dragged her to the passenger seat. He himself sat in the driver's seat and ordered her to turn the ignition key to start the engine and to shift gears. He then drove the van about a tenth of a mile.

After stopping the van, defendant ordered Miss B. to go to the back of the van, to take off her clothes, to fold out the bed and to lie down. She did so because defendant had hurt her before and she was frightened. Defendant took off his clothes, sat on Miss B.'s chest and ordered her to copulate him orally. She did so and defendant then told her to get dressed. After she had put on her slip and dress, he told her to lie down again. She obeyed and appellant had intercourse with her.

When he was finished, defendant had Miss B. drive him to a location about a mile away. He got out and told her he would kill her if she went to the police and that "it would never stick in court" because he would have an alibi. He had told her earlier that his name was Mike.

Miss B. drove to her apartment which she entered screaming. She told a houseguest that she had just been raped. She asked that he call Milt Bennett, her former boss. Bennett came over and stayed with Miss B. while she talked to the police. He also accompanied her to the hospital.

Bennett corroborated Miss B.'s testimony about her condition. When he arrived she was crying and gasping for air. Her waitress' uniform was torn and her hair messed up. Miss B. spent the rest of the night and the next day at his house with his family. When Bennett arrived home from work the next day, he noticed that Miss B.'s left eye and upper lip looked swollen. He also saw a bruise on her leg. She said that it was not the only bruise and that she was sore all over.

The police officers who responded to Miss B.'s call also testified about her emotional state. She was very upset, shaking, crying and had difficulty talking.

The doctor who had examined Miss B. that night testified that she was very upset. There was a rather large reddish area on her scalp with serous weeping, which was compatible with a severe hair pull. She had a four-inch long scrape on her left foreleg and some redness on her back.

Vaginal smears indicated that the person who had had intercourse with her was a nonsecretor; only 20 percent of the population are nonsecretors. Defendant is a nonsecretor.

Defendant testified that Miss B. had been a willing participant in the acts of oral copulation and sexual intercourse. He denied threatening or choking her or pulling her hair. He admitted saying to the police, "I don't need this," when they came to his door at 8:30 a.m. on October 21, 1980 and told him that a "girl" had accused him of raping her. He also admitted telling the occupants of the apartment where he had been staying, "I've been here all night," but he explained that he thought the police were talking about a rape that had occurred an hour or so before. He had no idea how Miss B. could have received the scrapes and red marks the doctor had mentioned. He had not noticed a tear in Miss B.'s uniform at the restaurant or after leaving with her. He did not notice Miss B.'s mood when he left her, but she was not crying.

Evidence of two prior sex offenses was admitted to show "common design or plan" and to corroborate Miss B.'s testimony. ¹

As part of its case in chief the prosecution presented testimony by Mrs. G. regarding offenses defendant committed against her in 1976 and by Cherie B. regarding offenses committed against her in 1977.

Mrs. G. related that defendant attacked her as she was leaving work on her third day of employment as a barmaid in Vista, California. She had seen him in the bar on her first or second night of work. On the night of the attack defendant had a drink earlier in the evening, spoke to her briefly and left. He returned about midnight and chatted with her again. At closing time he followed her to her car, leaned over and kissed her as she started the engine. She tried unsuccessfully to push him away. He forced his way into her car, grabbed her neck and held her in a choke hold while he drove to a secluded spot. He stopped the car, grabbed her by the throat and forced her down on the seat. He told her to undress and to get in the back seat. After she complied, he attempted to force her to copulate him orally, but she gagged. He then turned her over on her stomach and had anal intercourse. He finished by turning her over again and having vaginal intercourse. He then let her get dressed and drove her back to the bar. He told her that she could tell her boyfriend and the police and that he would not deny the incident.

Cherie B. testified that defendant picked her up while she was hitchhiking one night in Redding in 1977. He pulled off the road on a purported errand and attempted to kiss her. He put his hand around her throat with his thumb on her windpipe. She fought, and he grabbed her hair and told her to stop fighting or he would break her neck. He continued pressing on her throat until she stopped fighting. He ordered her to remove her bra and to orally copulate him. He put his penis in her mouth for a minute and then attempted vaginal intercourse while still holding her throat. His attempt was, at first, unsuccessful, as was an attempt at anal intercourse. Eventually he succeeded in having vaginal intercourse. He told Cherie B. that his name was Mike and that it would do no good to report the crimes because his friends would give him an alibi. He let her get out of the car and walk away.

II

The first issue raised is the admissibility of the evidence of the crimes directed against Cherie B. and Mrs. G. Defendant contends that since, with respect to the charged crime, the evidence was not material to any issue of "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," the only issue to which the evidence was relevant was his disposition--precisely what section 1101 of the Evidence Code forbids. ²

While the People do not contend that the evidence of the crimes against Mrs. G. and Cherie B. was admissible to identify defendant as the perpetrator of the offenses against Miss B.--identity having been conceded ³--it is claimed that the evidence was properly admitted to show "common design or plan" and to corroborate Miss B.'s testimony. Although the People's argument is supported by language in People v. Thomas (1978) 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433, we have concluded that the evidence is not admissible on the "common plan" theory.

We acknowledge that our pronouncements in the area of "other crimes" evidence have not been entirely consistent. Nevertheless, recent decisions-- notablyPeople v. Thompson (1980) 27 Cal.3d 303, 314-321, 165 Cal.Rptr. 289, 611 P.2d 883--have done much to isolate and identify the various considerations which play a part in determining the admissibility of such evidence. Thompson, in particular, explains that the question of weighing probative value against prejudicial effect does not even arise, unless the disputed evidence is relevant to an ultimate fact " 'actually in dispute.' " (Id. at pp. 315-318, 165 Cal.Rptr. 289, 611 P.2d 883.) Since much of the confusion concerning this class of evidence--particularly with respect to the sub-class of "other sex crimes"--is due to successive failures to relate the suggested relevance of the proffered evidence to issues "actually in dispute," an analysis of relatively recent key decisions may be of assistance.

A good place to start is People v. Covert (1967) 249 Cal.App.2d 81, 57 Cal.Rptr. 220. The case is valuable for our purposes because it (1) contains an...