Filed 5/19/21 P. v. Sanchez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B305319
(Super. Ct. No. 18CR08552)
Plaintiff and Respondent, (Santa Barbara County)
v.
ANGEL ANTHONY
SANCHEZ,
Defendant and Appellant.
Angel Anthony Sanchez appeals from the judgment entered
after a jury had convicted him of kidnapping for the purpose of
committing rape (count 1 – Pen. Code, § 209, subd. (b)(1));1
assault with intent to commit rape (count 2 – § 220, subd. (a)(1));
carrying a concealed dirk or dagger (count 3 – § 21310); resisting
or obstructing a peace officer, a misdemeanor (count 4 – § 148,
subd. (a)(1)); and attempting to dissuade a witness by the use or
Unless otherwise stated, all statutory references are to
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the Penal Code.
threatened use of force or violence (count 5 – § 136.1, subds.
(b)(1), (c)(1)). The jury found true an allegation that appellant
had been armed with a deadly weapon during the commission of
assault with intent to commit rape. (§ 12022.3, subd. (b).) The
trial court found true two prior serious felony convictions (§ 667,
subd. (a)(1)), one prior prison term (§ 667.5, subd. (b)), and two
prior “strikes” within the meaning of California’s “Three Strikes”
law. (§§ 667, subds. (b)-(j); 1170.12, subds. (a)-(d).) The court
“stayed” the prior prison term. It sentenced appellant to prison
for a determinate term of 32 months “followed by [an
indeterminate term of] 75 years to life.”
Appellant contends that the trial court (1) abused its
discretion in admitting evidence of a prior uncharged sexual
offense, (2) erroneously instructed the jury as to the uncharged
offense, and (3) violated his constitutional rights by imposing a
$5,000 restitution fine without conducting a hearing on his
ability to pay the fine. We affirm.
Facts Underlying Charged Sexual
Offenses and Prior Uncharged Offense
The charged sexual offenses occurred in September 2018
when Jane Doe 1 (Doe 1) was 19 years old. At approximately
11:00 p.m., she was walking to an ATM to get money. Appellant,
who was riding a bicycle, approached her and started asking her
questions. Doe 1 “cussed at him” and “told him to leave [her]
alone.”
Appellant pedaled his bike so that he was positioned in
front of Doe 1, blocking her path. Appellant grabbed her wrist,
took her cellphone, and threw it into a parking lot. Doe 1 pushed
appellant’s bicycle, “and he fell down with it.” Doe 1 tripped and
fell. Appellant “pulled [her] up and told [her] that if [she] didn’t
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cooperate, he’d hurt [her].” He said he had a weapon “and lifted
up his sweater so [she] could see . . . the tip of a knife or some
type of sharp object.”
Appellant pushed Doe 1 to the ground and dragged her into
the parking lot, away from the streetlights. “[I]t was really hard
to see anything.” Appellant got down on his knees in front of Doe
1. “He was attempting to grab [her] breasts.” While Doe 1 was
still on the ground, appellant pulled her shorts and panties down
below her knees. He was positioned between her legs and “was
trying to touch [her] vagina.” At the same time, he “was
unbuckling his belt.”
Doe 1 “was just screaming as much as [she] could.”
Appellant suddenly got up and fled on his bicycle. Doe 1 saw the
headlights of a vehicle. The driver had heard her screams. He
drove his pickup truck into the parking lot because he assumed
‘someone’s in trouble over there.’”
Jane Doe 2 (Doe 2) testified to an uncharged rape
committed by appellant in March 2009 when she was 16 years
old. Doe 2 went to a friend’s house. The friend introduced Doe 2
to her brother, appellant. While the friend went to a store, Doe 2
remained inside the house with appellant. Doe 2 was in the
living room when appellant grabbed her from behind. She broke
free, but appellant grabbed her again and pulled her into the
bedroom. He pulled down her pants and forcibly had sexual
intercourse with her until he ejaculated. Doe 2 fought with him
to no avail. Her wrists were bruised.
Doe 2 immediately reported the incident to the police.
Appellant was “detained.” She went to court but refused to
testify against him. Because of her refusal, the case was
dismissed.
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The prosecutor asked Doe 2 why she had decided to testify
against appellant in the present case. Doe 2 responded, “I’m here
so I can get justice for myself and for the girl [Doe 1], that it’s just
not okay what he’s doing.”
No Abuse of Discretion in Admitting
Evidence of Uncharged Sexual Offense
The trial court admitted evidence of the uncharged sexual
offense pursuant to Evidence Code sections 1101 and 1108
(section 1101 and section 1108). The court believed “the [section]
1101 argument is less compelling than the [section] 1108 theory
of admissibility.” “‘Evidence Code section 1101, subdivision (a)
sets forth the . . . rule that propensity evidence is not admissible
to prove a defendant’s conduct on a specific occasion.’ [Citation.]
‘At the same time, “other crimes” evidence is admissible under
Evidence Code section 1101, subdivision (b) “when offered as
evidence of a defendant’s motive, common scheme or plan,
preparation, intent, knowledge, identity, or absence of mistake or
accident in the charged crimes.”’ [Citation.] ‘In this inquiry, the
degree of similarity of criminal acts is often a key factor . . . .’”
(People v. Erskine (2019) 7 Cal.5th 279, 295 (Erskine).)
“Section 1108 ‘carves out an exception to section 1101.’
[Citation.] Section 1108, subdivision (a) provides that ‘[i]n 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 [Evidence Code]
[s]ection 352.’ [Citation.] 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
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or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.’” (Erskine, supra, 7 Cal.5th
at p. 295-296.)
Where “a defendant is accused of a sexual offense, Evidence
Code section 1108 authorizes the admission of evidence of a prior
sexual offense to establish the defendant's propensity to commit a
sexual offense, subject to exclusion under Evidence Code section
352.” (People v. Lewis (2009) 46 Cal.4th 1255, 1286 (Lewis).)
“[C]ourts ‘must engage in a careful weighing process under
[Evidence Code] section 352’ when admitting propensity evidence.
[Citation.] ‘Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its
nature, relevance, and possible remoteness, 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, or excluding
irrelevant though inflammatory details surrounding the offense.’”
(People v. Baker (2021) 10 Cal.5th 1044, 1098.)
In reviewing the trial court’s admission of evidence under
section 1108, we apply the abuse of discretion standard. (Lewis,
supra, 46 Cal.4th at p.1286.) “‘Under the abuse of discretion
standard, “a trial court’s ruling will not be disturbed, and
reversal is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice . . . .”’” (Ibid.)
Appellant contends that the trial court abused its discretion
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because “Doe 2’s testimony was highly inflammatory and its
probative value was reduced by the crime’s remoteness, the
witness’s lack of credibility, and the factual dissimilarities
between the two incidents.”
There is a “distinction between admissibility under
Evidence Code section 1101(b), which requires a sufficient degree
of similarity between charged and uncharged offenses, and
admissibility under Evidence Code section 1108, which does
not. . . . [A]lthough lack of similarity is relevant to the court’s
decision whether to exclude Evidence Code section 1108
propensity evidence as more prejudicial than probative, that
factor is not dispositive.” (People v. Merriman (2014) 60 Cal.4th
1, 41-42 (Merriman).) The Doe 1 sexual assault and the prior Doe
2 rape are not dissimilar. They both involved sexual assaults on
teenage, vulnerable females. On both occasions appellant pulled
or dragged the victim to another location. The trial court noted,
“[T]here was . . . significant movement in both cases, and that, I
think, is an important distinction because not all . . . sexual
assaults occur with movement of the alleged victim.”
We reject appellant’s claim that Doe 2 lacked “credibility.”
Appellant fails to explain why she lacked credibility.
The Doe 2 rape was committed approximately nine years
before the Doe 1 sexual assault. In view of the similarities
between the two offenses and the high probative value of the
prior Doe 2 rape, it was not unduly remote. In People v. Branch
(2001) 91 Cal.App.4th 274, the court upheld the admission of
prior uncharged sexual offenses despite a 30-year gap between
the charged and uncharged offenses. The court concluded, “[T]he
substantial similarities between the prior and the charged
offenses balance out the remoteness of the prior offenses.” (Id. at
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p. 285.) The court noted, “No specific time limits have been
established for determining when an uncharged offense is so
remote as to be inadmissible.” (Id. at p. 284.)
Appellant was not convicted of the Doe 2 rape. “[T]he
absence of a conviction would increase the prejudicial impact of
the evidence [of the Doe 2 rape] because the jury might be
tempted to convict [appellant] of [the charged offense] as
punishment for having escaped criminal liability for [the Doe 2
rape]. [Citations.] [But] [t]his circumstance does not tip the
balance against” the admission of the prior uncharged offense.
(Merriman, supra, 60 Cal.4th at p. 42.)
It is troubling that Doe 2 testified, “I’m here so I can get
justice for myself and for the girl [Doe 1], that it’s just not okay
what he’s doing.” (Italics added.) It was not the jury’s function to
do justice for Doe 2. But this testimony came in after the trial
court had ruled that evidence of the Doe 2 rape should not be
excluded under Evidence Code section 352. There was no abuse
of discretion based on the subsequent, unanticipated testimony of
Doe 2. “To determine whether the court abused its
discretion . . . , we examine the record before the trial court when
it ruled.” (People v. Price (1991) 1 Cal.4th 324, 388.)
Appellant “faces a presumption favoring the admissibility
of sexual offense evidence under Evidence Code section 1108 to
show propensity to commit the charged offense. [Citations.] [¶]
We conclude that [appellant] has failed to carry his burden of
rebutting the strong presumption of admissibility of the [prior
uncharged rape] under Evidence Code section 1108.” (Merriman,
supra, 60 Cal.4th at p. 42.) Because the evidence was admissible
under section 1108, “[w]e need not resolve . . . whether the
evidence [of the prior rape of Doe 2] was sufficiently similar to
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the evidence underlying the [Doe 1 sexual assault charge] to
permit admission under Evidence Code section 1101(b) . . . .”
(Merriman, supra, at p. 40.)
Jury Instruction
Appellant argues that the trial court erroneously gave
CALCRIM No. 375, which instructed the jury that it could
consider the prior uncharged rape of Doe 2 to show appellant’s
intent and motive as to the charged sexual offenses. The
instruction was given pursuant to section 1101, subdivision (b).
Appellant maintains that CALCRIM No. 375 was “inapplicable”
because “intent and motive were never challenged at trial . . . .
The sole dispute was whether or not appellant was [Doe 1’s
attacker].” No error occurred because intent was an element of
the charged sexual offenses. “‘[A] fact—like defendant’s intent—
generally becomes “disputed” when it is raised by a plea of not
guilty or a denial of an allegation. . . . Such a fact remains
“disputed” until it is resolved.’” (People v. Scott (2011) 52 Cal.4th
452, 471.) Appellant’s motive was relevant to show his intent.
(See People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23,
disapproved on other grounds in Scott, supra, at pp. 470-471
[“several prior dissimilar crimes were admissible to prove intent
to kill . . . by establishing the intermediate fact of motive”].)
Even if CALCRIM No. 375 had been erroneously given, the error
would have been harmless because evidence of the prior rape was
admissible to show appellant’s propensity to commit the charged
sexual offenses.
Appellant claims that the trial court’s instructions “allowed
the prosecution to use Jane Doe 2’s testimony to improperly
bolster its case as propensity evidence, . . . as instructed by
CALCRIM [No.] 1191A, which stated . . . ‘If you decide that the
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defendant committed the uncharged offense, you may . . .
conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses . . . .’” Instructing the jury
pursuant to CALCRIM No. 1191A was not improper; it was
authorized by section 1108.
Imposition of Restitution Fine Absent a
Hearing to Determine Appellant’s Ability to Pay
Based on People v. Dueñas (2019) 30 Cal.App.5th 1157,
appellant claims that the trial court erroneously imposed a
section 1202.4 restitution fine of $5,000 without conducting a
hearing to determine his ability to pay the fine. “Dueñas held
that it violates due process under the federal and state
Constitutions to impose . . . court operations and facilities fees
without first determining the convicted defendant’s ability to pay
them. [Citation.] In addition, ‘to avoid serious constitutional
questions’ raised by the statutory restitution scheme, [Dueñas
held that] the [trial] court must stay execution of the mandatory
restitution fine unless the court determines that the defendant
has the ability to pay it.” (People v. Taylor (2019) 43 Cal.App.5th
390, 397 (Taylor).) 2
2 “Since Dueñas, some courts have criticized Dueñas’s due
process analysis and have declined to follow it. . . . [¶] The
California Supreme Court will resolve the split in authority,
having granted review of the issues presented by Dueñas in
[People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844]. The [Supreme] [C]ourt will decide whether
courts must ‘consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments,’ and if so, ‘which party
bears the burden of proof regarding defendant’s inability to pay.’”
(Taylor, supra, 43 Cal.App.5th at p. 398.)
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Appellant forfeited his Dueñas claim because in the trial
court he failed to request a hearing on his ability to pay. There
was no excuse for this failure. Dueñas was decided more than
one year before appellant’s sentencing date of February 27, 2020.
Irrespective of Dueñas, the trial court was authorized to consider
appellant’s ability to pay because the restitution fine exceeded
the $300 minimum (§ 1202.4, subd. (c)). (See People v. Oliver
(2020) 54 Cal.App.5th 1084, 1102 [“in Taylor[, supra, 43
Cal.App.5th at pp. 399-400], we concluded a defendant forfeited
his claim of Dueñas error about a maximum $10,000 restitution
fine by not objecting because, even before Dueñas was decided,
the trial court had the express authority to consider the
defendant's ability to pay as one factor when deciding whether to
impose a fine above the [$300] mandatory minimum”].)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Von Deroian, Judge
Superior Court County of Santa Barbara
______________________________
Gusdorff Law and Janet Gusdorff, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.