People v. Villatoro

• Decision Date: 30 July 2012
• Docket Number: No. S192531.,S192531.
• Citation: 144 Cal.Rptr.3d 401,2012 Daily Journal D.A.R. 10375,54 Cal.4th 1152,281 P.3d 390,12 Cal. Daily Op. Serv. 8566
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Jose VILLATORO, Defendant and Appellant.

54 Cal.4th 1152

281 P.3d 390

144 Cal.Rptr.3d 401

12 Cal. Daily Op. Serv. 8566

2012 Daily Journal D.A.R. 10,375

The PEOPLE, Plaintiff and Respondent,

v.Juan Jose VILLATORO, Defendant and Appellant.

No. S192531.

Supreme Court of California

July 30, 2012.

Edward J. Haggerty, Rowland Heights, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Lawrence M. Daniels, Chung L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Pursuant to Evidence Code ¹ section 1108, pattern jury instruction CALCRIM No. 1191 explains to a jury that it may consider a defendant's uncharged sexual offense as evidence of his or her propensity to commit a charged sexual offense. Relying on a recent case, the trial court here modified CALCRIM No. 1191 to permit the jury to consider the defendant's charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. (See People v. Wilson (2008) 166 Cal.App.4th 1034, 1052, 83 Cal.Rptr.3d 326( Wilson ).) The jury subsequently convicted defendant Juan Jose Villatoro of various counts of kidnapping, robbery, and rape against five women.

On appeal, defendant challenged the modified instruction based on People v. Quintanilla (2005) 132 Cal.App.4th 572, 33 Cal.Rptr.3d 782( Quintanilla ), which held that charged offenses could not be considered as propensity evidence under a similar provision (§ 1109) and its corresponding jury instruction (CALJIC No. 2.50.02). Relying in part on Wilson, the Court of Appeal below rejected defendant's challenges to the modified instruction. For reasons that follow, we affirm the Court of Appeal's judgment.

Factual and Procedural Background

Defendant was charged with committing various offenses, including rape, against five women between 2005 and 2008.

R.I.

On May 25, 2005, prostitute R.I. agreed to have sex with defendant for $80 and got into his car. After driving to a nearby residential area, defendant stopped the car, pulled out a gun from the backseat, and told the victim not to move or look at him or else he would kill her. Defendant forced R.I. to have vaginal and anal intercourse, then whipped her on the back for 20 minutes with electrical extension cords. He then took her cell phone and told her to get out of the car.

The bruises on R.I.'s back and vagina, along with the swelling in her legs, were consistent with her account of the attack. DNA samples taken from R.I. were later found to match defendant's DNA. R.I. subsequently identified defendant from a six-pack photographic lineup.

N.G.

On June 21, 2006, 18–year–old N.G. was walking home late at night when defendant drove up in a car, pointed a gun at her, and told her to get in his car or else he would kill her. She got in and defendant drove off. He told her not to look at him, and held a razor to her ribcage as he drove. When he stopped in a residential area, he forced N.G. to have vaginal intercourse, and inserted his fingers into her vagina. Defendant took the victim's cell phone, rings, and sunglasses, and then let her go.

DNA samples taken from N.G. were later determined to match defendant's DNA. Almost two years after the attack, N.G. identified defendant from a six-pack photographic lineup.

Beverly G.

On February 3, 2008, prostitute Beverly G. agreed to have sex with defendant for $100. After she got into his car, defendant drove a short distance to a residential area. When he stopped the car, he pulled out a stun gun, activated it, and told Beverly not to move. He held the stun gun to her neck and screamed, “Don't look at me.” He forced her to have vaginal and anal intercourse. Whenever Beverly looked at defendant, he slapped her or spat at her. After he was done, defendant told her to get out; she did not retrieve her belongings before getting out of the car.

Beverly eventually told police what had happened and identified defendant from a six-pack photographic lineup on May 2, 2008.

C.C.

In the early morning of February 10, 2008, defendant offered a ride to C.C., who was waiting at a bus stop. She accepted the ride because another man had been harassing her. C.C. asked defendant to drive her to Hollywood. When she noticed he had driven to Santa Monica, she became worried and nervous. She asked defendant to stop so that she could use a restroom. Defendant pulled over, handed C.C. some baby wipes, and told her to relieve herself in the grass. Defendant watched as she did so.

After defendant promised to take her home, C.C. got back into his car. He then pulled out a Taser or stun gun, activated it, and placed it near her throat. He ordered C.C. to take off her pants, which she did. He told her not to look at him, punched her in the face, and made her cover her head with her shirt. Defendant forced C.C. to have vaginal intercourse, bit her left breast, and pulled out some of her hair. He took her purse.

C.C.'s physical injuries—a bite mark and suction injury on C.C.'s left breast—were consistent with her account of the attack. DNA samples taken from her body were later found to match defendant's DNA. In April 2008, C.C. identified defendant from a six-pack photographic lineup.

Kimberly J.²

On April 4, 2009, around 3:00 a.m., prostitute Kimberly J. got into defendant's car. He drove a few blocks before parking the car on a secluded street. He then jumped on top of Kimberly and said, “Shut up or I'm going to kill you.” He pulled out a stun gun and turned it on to scare her. After defendant ripped off Kimberly's underwear and pulled down her skirt, he forced her to have vaginal intercourse. He repeatedly pushed her head and told her not to look at him. When defendant was done, he took Kimberly's jewelry and cell phone and ordered her out of the car.

Kimberly's physical injuries—vaginal bruising and abrasions on her hymen—were consistent with her account of the attack. DNA samples were taken from Kimberly, which were later determined to match defendant's DNA. Kimberly helped police create a composite drawing of her attacker, and she later identified defendant from a six-pack photographic lineup.

At trial, the victims (all but Kimberly J.) testified about what had happened to them, and indicated they did not know one another before they were attacked. Without objection, the trial court instructed the jury with a modified version of CALCRIM No. 1191, which permitted the jury to use evidence of defendant's guilt of one of the charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. The jury convicted defendant of five counts of rape, one as to each victim. It also convicted him of one count of kidnapping to commit another crime as to N.G.; and four counts of robbery, each as to N.G., Beverly G., C.C., and Kimberly J. The jury also found true allegations that defendant (1) personally used a firearm during the rapes of R.I. and N.G., and during the kidnapping and robbery of N.G.; and (2) personally used a deadly or dangerous weapon as to all of the five rapes and as to the robberies of C.C. and Kimberly J. The trial court sentenced defendant to 153 years to life. Defendant appealed.

Relying on Quintanilla, supra, 132 Cal.App.4th 572, 33 Cal.Rptr.3d 782, defendant challenged the modified instruction on several grounds: the instruction violated section 1108 because it allowed the jury to use charged, rather than uncharged, offenses to prove his disposition to commit the other charged offenses; because it did not identify what standard of proof was required before the jury could consider the charged offense as propensity evidence; and because it did not reiterate that despite the inferences the jury could draw from its finding that a charged offense occurred, defendant still retained the presumption of innocence. Based in part on Wilson, supra, 166 Cal.App.4th 1034, 83 Cal.Rptr.3d 326, the Court of Appeal rejected defendant's challenges to the modified instruction. We granted defendant's petition for review.

Discussion

A. Character Evidence and Section 1108

Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (§ 1101, subd. (a) (section 1101(a)); Cal. Law Revision Com. com., reprinted at 29B pt. 3B West's Ann. Evid.Code (2009 ed.) foll. § 1101, p. 221; see People v. Carter (2005) 36 Cal.4th 1114, 1147, 32 Cal.Rptr.3d 759, 117 P.3d 476.) This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness ( id., subd. (c)). (See People v. Falsetta (1999) 21 Cal.4th 903, 911, 89 Cal.Rptr.2d 847, 986 P.2d 182( Falsetta ).) The Legislature has also created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses (§ 1108, subd. (a)), and domestic violence, elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)–(3)). (See § 1101(a).)

As relevant here, section 1108, subdivision (a), provides: “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.” ³ Enacted in [144 Cal.Rptr.3d 406]1995, section 1108 “implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” ( Falsetta, supra, 21 Cal.4th at p. 911, 89 Cal.Rptr.2d 847, 986 P.2d 182.) “As the legislative history indicates, the Legislature's...