People v. Foster CA2/4

Filed 2/4/21 P. v. Foster CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B302307

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476824)
v.

REGINALD FOSTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Leslie A. Swain, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez, Michael Keller and Paul S.
Thies, Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Reginald Foster appeals from his conviction for
raping and injuring his girlfriend. He contends the trial court
prejudicially erred in admitting evidence of a prior uncharged
sexual offense against a former girlfriend under Evidence Code
section 1108.1 We conclude there was no error. We therefore
affirm the judgment.
PROCEDURAL HISTORY
The Los Angeles County District Attorney charged
appellant by information on May 15, 2019 with one count of
injuring a girlfriend (Pen. Code, § 273.5, subd. (a); count one) and
one count of forcible rape (Pen. Code, § 261, subd. (a)(2); count
two). The information further alleged on count one that
appellant personally inflicted great bodily injury under
circumstances involving domestic violence (Pen. Code, § 12022.7,
subd. (e)).
The jury found appellant guilty on both counts, but found
the great bodily injury allegation not true. The court sentenced
appellant to a total of seven years in state prison, comprised of
the mid-term of six years on count two, plus a consecutive term of
one year on count one. Appellant timely appealed.
FACTUAL BACKGROUND
I. The 2019 incident against Diana
The victim, Diana, testified that she and appellant dated
“off and on” for almost two years, starting in May 2017. He is
about 22 years younger than she is, and when she mentioned the
age difference, he said he liked “older women.”

1Allfurther statutory references are to the Evidence Code
unless otherwise indicated.

2
 On Friday, March 8, 2019, appellant picked up Diana to
spend the weekend together. He drove them to his apartment.
They both showered, ate dinner, and watched television. Diana
had taken pain medication earlier in the day because of a pinched
nerve and she started feel drowsy. Diana explained that it was
getting late and she wanted to lie down, but appellant said no.
He wanted to keep talking and demanded her full attention.
Diana said “just take me out” about three times, meaning to just
let her leave. She testified that at times appellant would “talk
on, and on” and “demands you to sit and give him your undivided
attention,” so she said that to “get him to stop. I didn’t want to
hear what he had to say.” According to Diana, appellant
responded by hitting her with his fist on the side of her face. She
did not know if he hit her more than once because she lost
consciousness. When she came to, she touched her face and
noticed blood on her hand. She could feel her face starting to
swell. She asked appellant, “What did you do to me?” Appellant
told her that he spared her life because he heard her crying.
Diana looked in the mirror and said it looked like
“somebody beat me up,” with a swollen face and a gash near her
left temple. They went to the bathroom and appellant got a towel
and some medicated patches for her face. Diana testified that
when he tried to help her, “I was clenching and stuff because I
didn’t want him nowhere near me because I was thinking he
might hit me again.” She had to change the dressing frequently
because she had sustained an “open wound” that continued to
bleed. Appellant got some ice for his knuckles and Diana sat on
the bed. She could not see out of her eye. She asked if she could
lie down and appellant said she could. She testified that she did
not call the police because she was afraid to do so.

3
 After she lay down, appellant lay on the bed as well, and
told her to “[c]ome lay next to daddy.” When she said she did not
want to, appellant responded, “Yes, you do. Come lay down.”
Diana stated that appellant tried to apologize, then said, “Let’s
make love.” She did not want to “after somebody hit you, and you
just can’t see out of your eye and you [sic] still bleeding.”
Appellant straddled her and tried to pull her pants down, but she
crossed her legs to stop him. After a while, she “just gave up,”
and appellant pulled off her pants. Diana testified that the
entire time she continued to tell him “no,” and cried. Her face
also continued to bleed. Appellant forced her legs apart and
penetrated her vagina with his penis. She did not recall how long
the penetration lasted. Afterward, appellant got up and went to
the bathroom. Diana testified that she did not try to call the
police at that point because her phone was charging somewhere
else in the apartment, and if she got up to get it, appellant would
have noticed.
Diana then cleaned herself up, dressed, and laid back down
to “try to rest.” Both she and appellant slept a little bit. After
waking up Saturday morning, appellant asked her to do
something and when she “didn’t move fast enough” he asked her,
“Do you want some more?” She said “no” and did what he told
her to do. She had a doctor’s appointment later that day and
asked appellant, “How can I go looking like this?” He told her
that if anyone asked what happened, “just tell them you walked
into a wall.”
Diana waited until appellant left to go to work around 6:00
p.m., then she called her daughter, C. She also texted her
daughter a photo of her face. When C. came to pick her up,
Diana took all of her belongings from the apartment. Appellant

4
had taken her set of keys to the apartment, so she left it unlocked
and texted him to let him know. She also texted appellant that
she was going to leave on a Greyhound bus in the morning, in
order to make it harder for him to find her, because he had
previously told her “how he handles situations and . . . no matter
what if anything was to happen I will find you.”
Diana did not go to the hospital that day, although her
daughter asked if she wanted to go. She testified that she “just
wanted to get away . . . just try to get a grasp of everything that
actually went on.” She told her daughter about the assault. She
also testified that she tried to tell her daughter about the rape as
they were leaving appellant’s apartment, but C. was upset and
said she did not “want to hear it.” She did not call the police
because appellant “told me so many other stories about things
that he’s capable of doing, so I would have been traumatized by
that and it took me a moment to just think about it.”
Diana went to the hospital a few days later, on Monday,
March 11, 2019. She testified that she did not report the assault
or rape at that time because she was “still traumatized.” She
returned to the hospital a month later because she was
continuing to suffer from headaches and issues with her vision.
At trial, she showed the jury her scar from the wound on her left
temple.
Diana also testified that she had been wanting to end the
relationship for about six months before the incident. She stated
that appellant liked to control her behavior. When she tried to
end things, appellant stated that if she wanted out of the
relationship “then you need to find another woman to replace you
to be with me.” He also threatened her and told her she could not
leave the relationship. Sometimes, Diana would make excuses to

5
avoid seeing appellant; other times, she would try to give the
relationship a chance. When she pushed back against appellant’s
demands, he would tell her that she needed to “humble” herself
and to “give him respect in his house.”
Diana continued to exchange text messages with appellant
for a few days after the incident, trying to end the relationship.
Appellant told her they were no longer “a harmonious couple,”
but “we’re not done yet.” The texts also discussed the incident,
including that Diana said “take me out,” that appellant spared
her life, and that he helped her treat her wounds. Appellant also
asked Diana to forgive him and promised that he would “never do
such an act ever again.” Diana cut off contact with appellant on
March 12, 2019.
Diana’s daughter C. testified that she picked her mother up
on March 9, 2019 after her mother texted her that it was an
emergency. Her mother also sent a picture of her face and C.
could see that Diana’s eye was swollen and it looked like she was
bleeding from a wound above her eye. Diana was very upset, but
she did not want to go to the hospital or contact the police, she
stated that she just wanted to “hurry up and leave” appellant’s
apartment complex. Initially, Diana just told C. that appellant
hit her. After a few days, she started telling C. more details
about the incident, including that appellant had raped her.
Diana went to the police station to report the incident on
March 16, 2019. She met with Los Angeles Police Department
(LAPD) officer Paul Navarro. Navarro testified that in her initial
report, Diana stated that her boyfriend struck her five to 10
times, causing her to lose consciousness. She did not disclose any

6
sexual crimes.2 Navarro took photographs of Diana’s injuries and
the text messages between her and appellant.
LAPD detective Deandre James interviewed Diana again
on March 25, 2019. Diana told him about the sexual assault.
She also told him about two prior unreported incidents of
domestic violence. LAPD officers arrested appellant on April 17,
2019.
II. The uncharged 2006 incident against Jeanelle
During the investigation into the 2019 incident, Diana
mentioned appellant’s former girlfriend, Jeanelle. Detective
James contacted Jeanelle, who confirmed she had previously
been in a dating relationship with appellant. She also confirmed
to James that there was an incident with appellant in 2006, but
said she could not remember exactly what happened because it
was so long ago. She told James that she did not remember
reporting a sexual assault involving appellant.
Jeanelle testified that she dated appellant in 2006. At the
time, she was 53 and appellant was in his 20’s. The prosecutor
showed her the police report she filed in 2006 reporting that
appellant had raped her. Jeanelle claimed she did not remember
filing any such report. After reviewing the report, she testified
that it “said what happened and I don’t remember saying any of
that.” Jeanelle also denied that appellant raped her.
Additionally, she stated she could not recall being interviewed
recently by detective James. She also said that she did not have
any positive feelings toward appellant because of “what you’re
talking,” but refused to provide any details, stating, “Time
passed, just let it go, that’s it.” When asked about the details of

2Diana testified that she reported both the physical and the
sexual assault during her initial meeting with officer Navarro.

7
the report, she continued to state that she did not remember.
LAPD officer Sybil Licea testified that she met with
Jeanelle on October 26, 2006. At that time, Jeanelle reported
that appellant raped her. Jeanelle told officer Licea that she and
appellant were dating. At the time of the incident, appellant said
he wanted to make love to Jeanelle, but she said “no.” Appellant
threatened that he would “break your left arm if you don’t stop
moving.” Appellant forced her legs open and put his mouth on
her vagina for about 30 minutes. He then penetrated her vagina
with his penis, which caused her pain. During the penetration,
he held her down and pinned her arms above her head. Jeanelle
told officer Licea that the encounter lasted about two hours.
After the assault, Jeanelle told officer Licea that she and
appellant fell asleep. When they woke up the next morning,
Jeanelle stated that “there was a domestic incident” during which
she grabbed a fan to defend herself and appellant slammed her
head into a wall at least three times. Jeanelle went to the police
station to file the report the same day and LAPD arrested
appellant shortly thereafter. Licea reported that Jeanelle had no
visible injuries. Licea did not know if the case was ever filed.
Appellant did not testify or call any witnesses.
DISCUSSION
Appellant contends the trial court erred in admitting
evidence of the uncharged 2006 assault of Jeanelle. He argues
that this evidence was substantially more prejudicial than
probative, and therefore inadmissible under section 352. We find
no abuse of discretion.
I. Relevant Background
Prior to trial, the prosecution filed a motion to introduce
evidence of the 2006 incident pursuant to section 1108. At the

8
hearing on the motion, defense counsel objected, arguing that the
evidence was highly prejudicial and minimally probative,
particularly given that the incident occurred 13 years prior to the
charged incident. Defense counsel also stated that she believed
Jeanelle recently claimed “she couldn’t remember reporting a
sexual assault,” that there was never a case filed, and that “we
don’t have any of the old evidence preserved.” She further argued
that it would be confusing to the jury.
The prosecutor responded that Jeanelle had recently
confirmed her recollection in reporting the assault, and that “I
strongly believe that Miss Jeanelle . . . will be able to recall the
facts in this case.” He also told the court that the officer who
wrote the police report would be ready to testify if Jeanelle could
not recall the incident.
The court found that the “potential prejudice from the
confusion of the jury and the consumption of time is outweighed
by its probative value,” and therefore granted the prosecution’s
motion to allow Jeanelle to testify.
At trial, officer Licea testified without objection to the
report she took from Jeanelle in 2006. She recalled Jeanelle’s
report that appellant raped her, but referred to her report to
refresh her recollection throughout her testimony as to the
details of the incident.
II. Legal Framework
Section 1108 “is an exception to the general prohibition
against admitting character evidence to prove criminal
disposition or propensity.” (People v. Jandres (2014) 226
Cal.App.4th 340, 352-353 (Jandres); see also § 1101, subd. (a);
People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “In a
sexual offense prosecution, the statute permits the admission of

9
evidence that the defendant ‘committed other sexual offenses to
prove his propensity to commit the charged sexual offense[ ],’ so
long as the evidence is admissible under section 352.” (Jandres,
supra, 226 Cal.App.4th at p. 353, quoting People v. Cottone (2013)
57 Cal.4th 269, 281 (Cottone); see also § 1108, subd. (a).)
“Section 352 articulates the general rule that ‘[t]he court in
its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’” (People v. Erskine (2019) 7 Cal.5th 279,
296 (Erskine).) “‘By subjecting evidence of uncharged sexual
misconduct to the weighing process of section 352, the
Legislature has ensured that such evidence cannot be used in
cases where its probative value is substantially outweighed by
the possibility that it will consume an undue amount of time or
create a substantial danger of undue prejudice, confusion of
issues, or misleading the jury. (§ 352.) This determination is
entrusted to the sound discretion of the trial judge who is in the
best position to evaluate the evidence.’” (Falsetta, supra, 21
Cal.4th at pp. 917-918.) The trial court’s admission of evidence
under these provisions is reviewed for an abuse of discretion.
(See Erskine, supra, 7 Cal.5th at p. 296; People v. Kipp (1998) 18
Cal.4th 349, 369-371.) We do not disturb that ruling on appeal
absent a showing that the court exercised its discretion in an
“arbitrary, capricious, or patently absurd manner” that resulted
in a “manifest miscarriage of justice.” (People v. Rodriguez (1999)
20 Cal.4th 1, 9-10.)
Under section 352, “evidence of past sexual offenses
proffered under section 1108 requires the court to ‘undertake[ ] a

10
careful and specialized inquiry to determine whether the danger
of undue prejudice from the propensity evidence substantially
outweighs its probative value.’” (Erskine, supra, 7 Cal.5th at p.
296, quoting People v. Merriman (2014) 60 Cal.4th 1, 41
(Merriman).) Among the factors to consider are the “‘nature,
relevance, and possible remoteness [of the evidence], the degree
of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on
the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some
but not all of the defendant’s other sex offenses.’” (Merriman,
supra, 60 Cal.4th at p. 41, quoting Falsetta, supra, 21 Cal.4th at
p. 917.)
III. Analysis
Appellant argues that the trial court abused its discretion
in admitting the evidence of the 2006 incident because its
probative value was substantially outweighed by the danger of
undue prejudice from its admission. We disagree.
Evidence of a “‘prior sexual offense is indisputably relevant
in a prosecution for another sexual offense.’” (People v. Branch
(2001) 91 Cal.App.4th 274, 282; see also Falsetta, supra, 21
Cal.4th at p. 920 [“evidence of a defendant’s other sex offenses
constitutes relevant circumstantial evidence that he committed
the charged sex offenses”].) Moreover, the “probative value of
‘other crimes’ evidence is increased by the relative similarity
between the charged and uncharged offenses.” (Falsetta, supra,
21 Cal.4th at p. 917.) Here, the similarity between the offenses
strengthens the probative value of uncharged offense. In both

11
instances, appellant was in a dating relationship with a
significantly older victim. Both offenses occurred in appellant’s
home, and involved appellant raping the victim after she rejected
his request to “make love.” Further, both included physical
violence against the victim, as well as threats of additional
violence. As such, we find no abuse of discretion in the trial
court’s determination that the 2006 incident was highly
probative, given its similarities to the charged incident.
In addition, the probative value of evidence of uncharged
misconduct also is strengthened when “its source is independent
of the evidence of the charged offense.” (People v. Ewoldt (1994) 7
Cal.4th 380, 404; Falsetta, supra, 21 Cal.4th at p. 917.) Here,
Jeanelle’s report to the police was made in 2006, long before and
entirely unrelated to the charged offense, thus bolstering the
probative value of that evidence.
Appellant contends that the probative value of the offense
was significantly lessened given that it occurred 13 years before,
and that it was “questionable” whether it happened at all in light
of Jeanelle’s testimony denying the rape and claiming she could
not remember anything else. Although the prior offense was
somewhat remote, this factor is subject to counterbalancing
considerations. “No specific time limits have been established for
determining when an uncharged offense is so remote as to be
inadmissible. . . . [¶] Remoteness of prior offenses relates to ‘the
question of predisposition to commit the charged sexual offenses.’
[Citation.] In theory, a substantial gap between the prior
offenses and the charged offenses means that it is less likely that
the defendant had the propensity to commit the charged offenses.
However, . . . significant similarities between the prior and the
charged offenses may ‘balance[ ] out the remoteness.’ [Citation.]

12
Put differently, if the prior offenses are very similar in nature to
the charged offenses, the prior offenses have greater probative
value in proving propensity to commit the charged offenses.”
(People v. Branch, supra, 91 Cal.App.4th at pp. 284-285; see also
People v. Frazier (2001) 89 Cal.App.4th 30, 41 [15–or 16–year
gap]; People v. Soto (1998) 64 Cal.App.4th 966, 977, 991-992
[more than a 20–year gap].) Here the substantial similarity
between the two acts sufficiently outweighed the remoteness of
the uncharged offense.
We also reject appellant’s argument that the evidence was
inadmissible given Jeanelle’s lack of recall at trial. The jury was
free to disbelieve Jeanelle’s testimony that she could not recall
anything, including a recent interview with detective James.
Regardless, the jury heard evidence through officer Licea of the
details of the offense as Jeanelle reported it in 2006. These
details were presented without objection by defense counsel;
indeed, many of the details about the incident were elicited by
defense counsel during her cross-examination of Licea. The fact
that the details of the 2006 offense did not come directly from the
victim does not automatically render them so tenuous as to be
inadmissible, nor does appellant cite any authority suggesting
otherwise. Any potential prejudice was lessened by the fact that
both Jeanelle and officer Licea were subject to cross-examination
at trial. Moreover, the jury was instructed by the court, and
reminded by the prosecutor during closing argument, that
evidence of the prior offense was not sufficient, alone, to convict
appellant of the current offense.3 As such, we find no abuse of

3We presume the jury understood and followed these
instructions. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn.
17; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)

13
discretion in the trial court’s weighing of these factors under
section 1108.
Appellant also asserts that the evidence of the uncharged
offense was highly prejudicial because it was inflammatory, and
thus should have been excluded on that basis. “Without doubt,
evidence a defendant committed an offense on a separate
occasion is inherently prejudicial. [Citations.] But Evidence
Code section 352 requires the exclusion of evidence only when its
probative value is substantially outweighed by its prejudicial
effect. ‘Evidence is substantially more prejudicial than probative
. . . [only] if, broadly stated, it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome”
[citation].’ [Citation.]” (People v. Quang Minh Tran (2011) 51
Cal.4th 1040, 1047.) “In this context, the word ‘prejudice’ is used
in the sense of ‘“an emotional bias’” or ‘“of prejudging a person or
cause on the basis of extraneous factors.”’” (People v. Huy Ngoc
Nguyen (2010) 184 Cal.App.4th 1096, 1115.)
We are not persuaded that the evidence of the 2006 offense
against Jeanelle was stronger or more inflammatory than the
evidence of the charged offense. Appellant points to the fact that
Jeanelle claimed appellant slammed her head against the wall
three times, while Diana testified that he punched her only once.
However, Diana also testified that she did not know how many
times she was punched, but the blow was hard enough to cause
her to lose consciousness. It also caused facial wounds and
swelling, leaving a scar that was still visible at trial. Further,
after punching her, appellant proceeded to rape Diana, even
though she was crying and bleeding, and he later threatened to
hit her again. This evidence was further supported by the text
messages between appellant and Diana. Thus, the evidence of

14
appellant’s uncharged acts, “was no stronger and no more
inflammatory than the testimony concerning the charged
offenses. This circumstance decreased the potential for prejudice,
because it was unlikely that the jury disbelieved [Diana’s]
testimony regarding the charged offenses but nevertheless
convicted [appellant] on the strength of [the evidence] regarding
the uncharged offenses, or that the jury's passions were inflamed
by the evidence of [appellant’s] uncharged offenses.” (People v.
Ewoldt, supra, 7 Cal.4th at p. 405; see also People v. Branch,
supra, 91 Cal.App.4th at p. 283 [finding uncharged offenses were
not more inflammatory than similar charged offenses].) As such,
it was not an abuse of discretion for the trial court to conclude
that the evidence of the 2006 offense was not stronger or more
inflammatory than the evidence supporting the charged conduct.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.

15