Filed 10/28/21 P. v. Mabe CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075317
v. (Super.Ct.No. INF1600509)
THOMAS DEAN MABE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.
Affirmed, as modified, in part, reversed in part, and remanded with directions.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and
Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
Around 3:30 a.m., defendant Thomas Dean Mabe broke into a condominium in
which a husband and wife were sleeping. He awoke them by orally copulating the
husband and groping the wife. As the wife called 911, defendant kept asking the
husband, “[W]he don’t you let me give you another head job?” After defendant was
arrested, handcuffed, and placed a patrol car, he said to a police officer, “Let me suck
your dick.”
As a result, defendant was convicted on six counts, including assault during a first
degree burglary with the intent to commit oral copulation. (§ 220, subd. (b).)1
Defendant contends:
(1) The trial court erred by admitting evidence that defendant had previously
committed attempted sexual battery and child annoyance.
(2) The trial court erred by admitting jailhouse phone calls in which defendant’s
lover urged him to act “crazy.”
(3) There was insufficient evidence of unlawful restraint to support defendant’s
conviction for felony sexual battery. (§ 243.4, subd. (a).)
(4) There was insufficient evidence of circumstances likely to produce great
bodily harm or death to support defendant’s convictions for felony elder abuse (§ 368,
subd. (b)(1)); or, in the alternative, the trial court erred by failing to instruct on the lesser
included offense of misdemeanor elder abuse. (§ 368, subd. (c).)
We will hold that defendant’s prior sexual offenses were similar enough to the
charged offenses to be relevant and admissible as evidence of both intent (Evid. Code,
1 This and all further statutory citations are to the Penal Code, unless
otherwise specified.
2
§ 1101, subd. (b)) and propensity (Evid. Code, § 1108); moreover, they were not unduly
prejudicial. We will further hold that defendant’s apparent agreement with his lover’s
suggestion that he act crazy was relevant and admissible to show consciousness of guilt.
We agree, however, with defendant’s contention that there was insufficient
evidence to support his convictions for felony sexual battery and felony elder abuse. We
will reduce these convictions to misdemeanor sexual battery and misdemeanor elder
abuse, respectively, and remand for resentencing.
I
STATEMENT OF FACTS
A. Prosecution Evidence.
Spouses John and Jane Doe2 lived in a ground-floor condo in a gated country club
community in Palm Springs. John was 71; Jane was 69.3
On the night of April 20-21, 2016, they were at home, asleep in the master
bedroom. All the doors and windows were locked. John was lying on his side, in the
nude.
Around 3:30 a.m., a man standing by the side of the bed turned John over onto his
back and started to orally copulate him. John assumed it was his wife. He reached
toward the person and felt an erect penis and testicles.
2 The trial court ordered that the victims be referred to in the record by these
fictitious names. (See § 293.5.)
3 The trial court observed for the record that, at trial, the Does “look[ed] like
folks in their 70s.”
3
The man lay across John’s chest and grabbed Jane’s breast and “pubic area” in an
“incredibly aggressive and invasive” manner. Then he grabbed her chin in a “rough” and
“strong” manner. She assumed it was her husband. She said, “[N]ot so rough.” “What
the hell are you doing?”
John pushed the man away and got up. Jane turned on a light. John and Jane both
later identified the person they saw as defendant. Defendant was six feet six inches tall.
He was wearing a shirt, pulled back over his head, but with his arms in the sleeves. He
was naked from the waist down.
Both John and Jane asked who he was and what he was doing there. Defendant
gave his true name. He said he had come in through the front door. “You sent me a
key,” he asserted. He also said he was John’s brother.
Jane ran into the kitchen and called 911. Meanwhile, defendant got dressed. He
wandered toward the spare bedroom, then back to the master bedroom. As he did so, he
kept “propositioning” John, saying, “[W]ould you like a blow job?” “You know you love
it.”
Defendant went into the dining room, where he sat in a chair, then sat on the floor.
He had been calm, but he became “agitated” because Jane was screaming on the phone.
He told her, “[Q]uit yelling, quit screaming.” He “walked quickly” into the kitchen,
came up behind her, and grabbed her “[r]oughly and firmly by the shoulders.” Jane
“didn’t know if he was going to rape [her] or kill [her].” John “was fearful for [his]
wife,” so he pulled defendant away and punched him once in the head.
4
Just then, the police came in and arrested defendant. He was compliant. Three
police officers each testified that defendant did not show any signs of being under the
influence of drugs. He did not tell anyone that he was high on methamphetamine. He
specifically told one officer that had not used methamphetamine.
As defendant was sitting in a patrol car, handcuffed, he said to an officer, “Let me
suck your dick. Come on. No one will see. Turn off all of the lights.”
Later, John and Jane found that the screen had been removed from the sliding
glass door separating their spare bedroom from a patio outside. The screen had also been
removed from a living room window; that window had been opened and was the apparent
entry point. On the patio, there were two red curtains and a stained pair of men’s
underwear.
B. Prior Sexual Offenses.
1. Rachel D.: Attempted sexual battery.
Rachel D.4 was homeless. She admitted one prior conviction for commercial
burglary and two prior convictions for using someone else’s checks.
On March 1, 2016, sometime before dawn, she was sitting outside a Circle K in
Palm Springs. Defendant approached her. He was wearing a tank top, briefs, and polka
dot socks. He was rubbing his penis over the briefs.
4 Although Rachel D. testified under her full name, we accord her protective
nondisclosure. (Cal. Rules of Court, rule 8.90(b)(4).)
5
“[H]e was saying a lot of really vulgar stuff and grabbing other women.” He told
Rachel several times that “he wanted to eat [her] pussy.” He tried to grab her “behind”
and her breasts.5 She told him to leave her alone, but he kept rubbing himself. When
another woman walked by, defendant grabbed that woman’s “behind.” About seven
minutes after defendant first showed up, Rachel left.
By coincidence, Rachel and defendant were each arrested later that day.
(Defendant’s arrest was for his second prior sexual offense; see part I.B.2, post.) They
were placed in cells across from each other. Defendant yelled that “he was going to fuck
[her] and he was going to bend [her] over and he wanted to eat [her] pussy.”
2. Lotus: Child annoyance.
Lotus6 was 16 and going to high school in Palm Springs. On March 1, 2016, at
7:15 a.m., as she started walking to school, defendant came out from the gate of a nearby
house and started following her.
After defendant had been following Lotus for about three minutes, just as the
street went over a bridge, he started to speed up. She tried to speed up, too, but he caught
up with her. He asked how old she was; she said 16. He tried to grab her arm. He said,
“If you were 18, I would hit that.”
5 In her statement to the police, Rachel had not mentioned that defendant
tried to grab her.
6 The trial court ordered that Lotus’s last name be redacted from the record.
6
Lotus ran out into the street and tried to get the attention of passing drivers. One
driver pulled over. He said he had seen “the guy” following her and trying to grab her.
He offered to drive her to school; she accepted. When she got to school, the police were
called.
The driver who picked Lotus up corroborated her testimony. However, he did not
see defendant “touch” Lotus.
As a result of this incident, defendant pleaded guilty to child annoyance. (§ 647.6,
subd. (a).)
C. Defense Evidence.
1. Defendant’s testimony.
Defendant lived in Palm Springs with his “lover,” Christopher Strickland.
Defendant had been using methamphetamine daily for 13 years.
The night before April 20-21, 2016, defendant “partied” at a house and then stayed
there overnight. On April 20-21, 2016, he was wearing a pair of underwear that he found
abandoned at the house.
While defendant was at a park, a girl “came out of nowhere,” asked to use his
lighter, and shared some heroin with him. Later, around 11:00 p.m., he bought $10 worth
of methamphetamine and smoked it with an acquaintance.
He had missed the last bus home, so he went to the golf course of the Does’
country club. He was looking for a place “where [homeless people] could sleep”, so he
7
could either sleep there or “scare them, mess with some of those people . . . .” He had
some red drapes in a bag that he intended to give to a friend.
Hearing a voice, defendant went toward it, across the golf course and up to the
Does’ condo. He put the drapes on some chairs because he thought they would look
“neat” there. When he “peed on a bush,” he noticed a brown stain on the underwear, so
he took it off; 7 however, he put his pants back on. He denied taking his pants off again
later.
He saw lights on in the condo and he saw bicycles out on the patio. He “just
wanted somebody to play with.” He wanted “somebody to talk to, . . . [to] see if there
was anybody in there, maybe lie down and go to sleep.” He therefore removed the screen
from the sliding glass door and knocked “really softly.” The décor in the spare bedroom
made him think the condo was a model home. He saw a bed and decided to go inside and
go to sleep. He tried to open the sliding glass door, but it was locked. He planned “to
wash the sliding glass door where [he] put [his] prints from [his] hands.”
Defendant noticed that the screen on another window was on backwards. He took
it off, intending only to put it back on properly. Just then, however, he started sweating
and shaking. He was afraid he was having a bad trip. He therefore opened the window,
by bending it near the latch, and went inside, so he could “use the phone and call an
ambulance . . . .” He claimed he did not realize that he had broken into someone’s house.
However, he did think “if there’s somebody in here, I could get in trouble.”
7 He admitted that he had seen the stain before he put the underwear on.
8
He heard snoring. “I thought ewww,” he testified. However, he also found it
funny. He also testified that the snoring “attracted” him. When he heard it, “[his] goals
. . . changed.”
He followed the snoring to the master bedroom, where he saw two people asleep
in bed. He decided to lie down in the space between them and go to sleep. To get over
John, he rolled him onto his back. In the process, John’s hands “c[a]me down on
[defendant’s] head.” “I thought,” he testified, “maybe he thought that I was his wife” and
the gesture was an invitation “to give him a blow job . . . .” Defendant therefore
proceeded to orally copulate John.
Defendant denied touching Jane. Jane got out of bed, turned on the light, and
screamed, “What are you doing in my bed?” John put defendant in an “arm bar.” Jane
left the bedroom, and John let go of defendant. Defendant denied saying anything about
keys or being John’s brother.
Defendant left the bedroom, went through a door, and found the spare bedroom
that he had seen earlier. Then he went to the dining room and sat down. He asked John,
“Would you mind if I sucked your dick?,” but only once. He did not leave because he
did not know where the door was.
Jane was yelling into the phone and looking out the window. The yelling
“irritated” him and he “told her to quit screaming.” However, he was curious about what
she was looking at, so he walked up behind her. Jane was startled and backed up into
9
him. He put his hands on her hips, just to “lead her around [him].” That was when John
punched him.
Defendant admitted telling a police officer that “[he] wanted to suck his dick,” to
“flirt with him.”
Defendant testified that, during his encounter with Rachel D., he was wearing
spandex shorts, not briefs. He denied rubbing his penis or trying to grab her.
Defendant also denied following Lotus. He just happened to be going in the same
direction. Lotus ran up to him and said hello. When she said she was 16, all he said was,
“I bet there’s times that you wish you were 18.” He tried to grab her arm to stop her from
stepping off the curb in front of an oncoming SUV. He did plead guilty to child
annoyance, but only so he could get out of jail sooner.
2. Expert testimony.
The defense called Dr. Michael Kania, a forensic psychologist and an expert in
substance abuse. He testified that a large dose of methamphetamine can cause confusion,
disorientation, and inability to “read[] social cues.” Methamphetamine can also make a
user impulsive, including sexually impulsive.
Defendant told Dr. Kania that, on April 21, 2016, he was “very intoxicated.”
Based on defendant’s statements and behavior on that date, Dr. Kania believed he was
under the influence of methamphetamine. When Dr. Kania interviewed him, 16 months
later, defendant’s thinking was not disorganized.
10
D. Rebuttal Evidence.
Defendant told police that he went in the condo because he thought his brother
lived there, had sent him a key, and had given him directions. He intended to orally
copulate his brother, though he conceded that they had never had sex before. “[A]fter
trying the back door . . . he decided to go in through the window.” He thought John was
his brother.
He said he massaged the back of Jane’s neck while she was asleep. When she
pulled away from him, “he got more aggressive . . . , grabbed her by the back of the neck,
and pulled her head toward his groin,” seeking oral copulation. She was still asleep at
that point. He admitted propositioning John repeatedly.
He said that, in the kitchen, he grabbed Jane’s waist “aggressively.” He admitted
that he was trying “to freak [her] out.”
II
STATEMENT OF THE CASE
Before trial, defendant pleaded guilty to count 8, misdemeanor failure by a
transient to register as a sex offender. (§ 290.011, subd. (a).)
In a jury trial, defendant was found guilty of:
Count 1: Oral copulation on an unconscious person. (Former § 288a, subd. (f);
see now § 287, subd. (f).)
Count 2: Assault on John Doe during the commission of first degree burglary with
the intent to commit rape, sodomy, or oral copulation. (§ 220, subd. (b).)
11
Count 4: Felony sexual battery against Jane Doe, a restrained person. (§ 243.4,
subd. (a).)
Count 5: First degree burglary. (§§ 459, 460, subd. (a).)
Counts 6 and 7: Felony elder abuse. (§ 368, subd. (b)(1).)
Defendant was found not guilty on count 3, assault on Jane Doe during the
commission of first degree burglary with the intent to commit rape, sodomy, or oral
copulation.
Defendant admitted one strike prior (§§ 667, subds. (b)-(i), 1170.12) and one prior
serious felony conviction enhancement (§ 667.5, subd. (a)).8
As a result, he was sentenced to a total of 37 years to life in prison.
III
EVIDENCE OF DEFENDANT’S PRIOR SEXUAL OFFENSES
Defendant contends that the trial court erred by admitting evidence of his prior
sexual offenses against Rachel and Lotus.
A. Additional Factual and Procedural Background.
The prosecution filed a motion in limine to admit this evidence. Defense counsel
objected “on due process grounds and 352.”
8 Defendant also admitted one prior prison term enhancement. (§ 667.5,
subd. (b).) However, Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1,
2020, eliminated all prior prison term enhancements, except when the prior prison term is
for a sexually violent felony; defendant’s was not. Hence, although the trial court did not
formally strike this enhancement, it recognized that it could not impose it, and it did not.
12
The trial court ruled that the evidence was admissible under Evidence Code
section 1108. “It shows a really impulsive act which . . . the felony charged here was. In
terms of showing propensity, I think it’s got . . . a very high amount of probative value.
It’s prejudicial. But I don’t think it’s any more prejudicial than any other prior sex
offense . . . .” It also admitted it as relevant to intent under Evidence Code section 1101,
subdivision (b).
The trial court instructed the jury that it could consider the prior sex offenses as
evidence of intent (CALCRIM No. 375) and as evidence that defendant “was disposed or
inclined to commit sexual offenses” (CALCRIM No. 1191A), and for no other purpose.
B. Discussion.
Evidence Code section 1101, subdivision (a), sets up a general rule that evidence
that the defendant has committed a crime in the past is inadmissible to prove that he or
she committed the charged crime. In other words, it bars evidence that the defendant has
a propensity to commit crimes.
Evidence Code section 1101, subdivision (b), states one exception to that rule. It
makes evidence that the defendant has committed a past crime admissible “when relevant
to prove some fact (such as . . . intent . . . ) other than his or her disposition to commit
such an act.”
Evidence Code section 1108, subdivision (a), states a second exception. It
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
13
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section
352.”
Last but not least, Evidence Code section 352 gives the trial court “discretion [to]
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will . . . create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
“A trial court’s rulings admitting evidence under Evidence Code sections 1101
and 1108 are reviewed for abuse of discretion. [Citations.]” (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 824.) “‘“[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.”’ [Citation.]” (People v. Charles (2015) 61 Cal.4th 308, 333.)
1. Admissibility under Evidence Code section 1108.
Preliminarily, defendant contends that his conduct toward Rachel did not
constitute a “sexual offense” within the meaning of Evidence Code section 1108.
His trial counsel did not object on this ground below and thus forfeited this
contention. (Evid. Code, § 353, subd. (a).)
It lacks merit in any event. “Sexual offense,” as defined by Evidence Code section
1108, includes sexual battery (§ 243.4), whether completed or attempted. (Evid. Code,
§ 1108, subds. (d)(1)(A), (d)(1)(F).) A sexual battery can be committed by touching a
person’s breast or buttocks against their will for the purpose of sexual arousal, sexual
14
gratification, or sexual abuse. (§ 243.4, subd. (e)(1), (g)(1).) The touching may be either
skin-to-skin or through clothing. (§ 243.4, subd. (e)(2).)
There was substantial evidence that defendant committed attempted sexual battery
by trying, unsuccessfully, to grab Rachel’s breast and buttocks. Rachel’s testimony also
afforded substantial evidence that defendant committed completed sexual battery by
grabbing the buttocks of an unnamed woman who came walking by — indeed, apparently
those of multiple other women.
Defendant notes that Rachel had not told the police that defendant tried to grab
her. He argues that this fact was not before the trial court when it ruled, and therefore it
erred.
We disagree, for two reasons.
First, Rachel did tell the police that defendant grabbed another woman’s buttocks.
Second, the prosecution’s motion in limine is not in the record. It is not part of
the normal record (see Cal. Rules of Court, rule 8.320(b)), and defendant has not
requested augmentation. Therefore, we do not know what facts were before the trial
court. It does appear that the prosecution had not only Rachel’s statement to the police,
but also a Mirandized statement by defendant in which he “acknowledge[d]” the
“incident.” For all we know, he admitted trying to grab (or even actually grabbing)
Rachel.
For the sake of completeness, we note one wrinkle: The jury was instructed that
the People had presented evidence of “sexual battery against Rachel” — not attempted
15
sexual battery, and not sexual battery against an unnamed woman — and that it should
consider this evidence only if it found that defendant did commit this offense.9
Because there was no evidence of a completed sexual battery against Rachel, this
instruction was erroneous. The evidence, however, was properly admitted, regardless of
the subsequent misinstruction. Moreover, defendant has not raised the misinstruction as a
separate assignment of error. And wisely so. The misinstruction was entirely favorable
to him. In effect, it directed the jury not to consider the attempted sexual battery against
Rachel or the sexual battery against an unnamed woman actually shown by the evidence.
2. Admissibility under Evidence Code section 1101.
Next, defendant contends that the two incidents were not relevant as evidence of
intent.
“‘Evidence of uncharged crimes is admissible to prove identity, common plan, and
intent “only if the charged and uncharged crimes are sufficiently similar to support a
rational inference” on these issues.’ [Citation.] The degree of similarity varies
depending on the purpose for which the evidence is offered. ‘The least degree of
similarity . . . is required in order to prove intent.’ [Citation.] For this purpose, ‘the
uncharged misconduct must be sufficiently similar to support the inference that the
defendant “‘probably harbor[ed] the same intent in each instance.’”’ [Citation.]” (People
v. Chhoun (2021) 11 Cal.5th 1, 25.)
9 We commend the People for their candor in pointing this out in their brief.
16
“‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to
negative accident or inadvertence or self-defense or good faith or other innocent mental
state, and tends to establish (provisionally, at least, though not certainly) the presence of
the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.]” (People v.
Ewoldt (1994) 7 Cal.4th 380, 402.)
The crime against Rachel was similar to the charged crimes in that: (1) the crime
took place in the early morning hours, (2) the victim was a stranger, (3) the victim was
vulnerable (i.e., Rachel was homeless and alone, whereas the Does were elderly and
asleep), (4) the crime showed impulsivity and opportunism, (5) defendant was seeking
oral copulation, (6) defendant made crude sexual demands, (7) defendant undressed
before confronting his intended victim, (8) defendant also sexually touched a person
other than the primary victim, and (9) defendant could not or would not recognize lack of
consent. This went far beyond the minimum required similarity. Thus, this incident was
relevant to show that, during the charged crimes, defendant did not really want to go to
sleep or to call an ambulance; he was simply a sexual predator who ignored conventional
boundaries.
The crime against Lotus was also similar to the charged crimes, in that (1) the
victim was a stranger, (2) the victim was vulnerable (i.e., Lotus was only 16 and alone),
(3) the crime showed impulsivity and opportunism, and (4) defendant could not or would
not recognize lack of consent. However, there was also a fifth similarity: defendant was
seeking oral copulation. The prosecutor represented to the trial court that, in the
17
Mirandized interview, defendant explained that “he was attracted to [Lotus] and wanted
her to orally copulate him.” For some unknown reason, this statement was never
introduced at trial. Nevertheless, the trial court was entitled to rely on it in finding
sufficient similarity. Thus, again, the incident was relevant to show that defendant
intended to seek oral copulation when he entered the Does’ home.
Understandably, defendant focuses on the differences between the incidents. He
claims that he did not “assault” Rachel or Lotus; however, he did attempt to grab each of
them, much as he later grabbed Jane Doe. Of course, there were other obvious
differences: the crimes against Rachel and Lotus occurred outdoors, in public, whereas
the crimes against the Does occurred indoors; Lotus was a teenager, Rachel’s age was not
stated, and the Does were elderly. However, absent an unusually robotic modus
operandi, a prior sexual offense will always be different, in some respects, from a
charged crime. The question is not whether there are differences, but whether there are
sufficient similarities for the prior sexual offense to be probative. Here, there were.
Separately and alternatively, even assuming the evidence was not relevant to show
intent, the trial court still properly admitted it under Evidence Code section 1108. On
that view, the only error was in instructing the jury that it could also consider it as
evidence of intent. (See People v. Walker (2006) 139 Cal.App.4th 782, 808-809.)
The relevant instruction also told the jury that, if it found that defendant
committed the uncharged offenses, “you may, but are not required to, consider that
evidence for the limited purpose of deciding whether the defendant acted with the intent
18
required” for the charged crimes. If, as we are assuming arguendo, the uncharged crimes
were not sufficiently similar to show defendant’s intent during the charged crimes, then
we may safely conclude that the jury ignored them. “‘[A]n instruction that tells the jury
what kinds of rational inferences may be drawn from the evidence does not provide any
insight jurors are not already expected to possess.’ [Citation.]” (People v. Najera (2008)
43 Cal.4th 1132, 1139; see People v. Chism (2014) 58 Cal.4th 1266, 1299 [where
instruction on adoptive admissions by silence was given, despite lack of evidence to
support it, jury presumably disregarded it].) Thus, it is not reasonably probable that the
error in the instruction affected the verdict.
3. Admissibility under Evidence Code section 352.
Next, defendant contends that the two prior incidents were more prejudicial than
probative.
“When determining the prejudicial impact of other sexual offenses admitted under
Evidence Code section 1108, the trial court may consider the ‘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
19
surrounding the offense. [Citations.]’ [Citation.]” (People v. McCurdy (2014) 59
Cal.4th 1063, 1098-1099.)
In part, this contention simply reframes defendant’s contention that the incidents
were not similar to the charged offenses. For the reasons already stated in part III.B.2,
ante, we disagree. They were so similar that they tended to prove intent as well as
propensity. Moreover, similarity must be balanced against remoteness; when a prior
sexual offense is very remote, more similarity is required. (People v. Spicer (2015) 235
Cal.App.4th 1359, 1384.) Here, both prior incidents were very recent — they occurred
just a month and a half before the charged crimes. Hence, not much similarity was
required.
Despite defendant’s denials, it was reasonably certain that the prior incidents did
occur. Rachel accused defendant on the same day as he attempted to grab her. He
partially corroborated her account by yelling that “he wanted to eat [her] pussy.”
Similarly, Lotus’s account was largely corroborated by the motorist who picked her up.
While he did not actually see defendant “touch” her, she did not claim that defendant did.
He still found defendant’s apparent stalking of her so concerning that he turned around to
rescue her. Also, defendant had pleaded guilty to child annoyance.
The challenged evidence did not take up a great deal of time at trial and did not
tend to confuse a properly instructed jury. Thus, it also did not unduly burden the
defense.
20
Defendant briefly asserts that the prior offense against Lotus was particularly
inflammatory because Lotus was a child. Against that, however, must be weighed the
fact that he did not engage in any overtly sexual behavior toward her. His comment, “If
you were 18, I would hit that,” was merely conditional; it was not nearly as crudely
worded as his propositions to both Rachel and John. He only tried to grab Lotus’s arm,
not her breasts, crotch, or buttocks.
The trial court’s explanation that defendant’s prior sexual offenses were not more
prejudicial than prior sexual offenses in general was reasonable and well within its
discretion. Moreover, the charged offenses were so bizarre and outrageous that the prior
sexual offenses paled in comparison.
Defendant relies on People v. Earle (2009) 172 Cal.App.4th 372, which held that
the trial court erred by failing to sever a charge of indecent exposure from a charge of
assault with the intent to commit rape. (See id. at p. 384.) In the process, the appellate
court held that evidence of the indecent exposure would not have been admissible under
Evidence Code section 1108 in a trial for the assault with the intent to commit rape,
because it had no “tendency in reason” to prove a predisposition to rape. (Id. at pp. 396-
400.) However, there is no hard-and-fast rule that evidence of one type of sexual offense
is irrelevant to show a propensity to commit a different sexual offense. Here, defendant’s
prior sexual offenses — impulsively seeking oral copulation from vulnerable persons,
with or without their consent — had a tendency in reason to show a predisposition to
commit the charged offenses, which had a similar aim.
21
We therefore conclude that the trial court did not abuse its discretion by admitting
the prior sexual offenses.
IV
PHONE CALLS URGING DEFENDANT TO “ACT CRAZY”
Defendant contends that the trial court erred by admitting jailhouse phone calls in
which his lover urged him to “act crazy.”
A. Additional Factual and Procedural Background.
1. The jailhouse phone calls.
Before defendant testified, the prosecutor sought to introduce three telephone calls
between him, while in jail, and his lover, Christopher Strickland.
a. The first call.
In the first call, on March 5, 2017, there was this exchange:
“STRICKLAND: . . . Hey, uh — uh, remember what I say about go — about
actin’ crazy stuff like that? You better hurry up and start doin’ it mister. . . . [¶] . . . [¶]
“STRICKLAND: . . . Two years in — in a — in a mental place. Sentences for
like 28 years or ten years or something like that. [¶] . . . [¶] . . .
“MABE: Yeah that would be nice wouldn’t it? I can’t . . . [¶] . . . [¶]
“MABE: I don’t — I don’t know. I don’t even know how to act crazy.
“STRICKLAND: . . . Sure you do. You act — I remember how you used to get
crazy here and you’d be on top of my — top of the entertainment center? That’s the
crazy, okay. [¶] . . . [¶] . . .
22
“MABE: Gosh.
“STRICKLAND: Yeah. Okay? There you go.
“MABE: All right, I’ll keep it in mind.”
b. The second call.
In the second call, on April 3, 2017, defendant said, “[T]hey’re sendin’ me to
another doctor.” Strickland replied, “Well, that’s — that’s a good thing, right?” They
also said:
“STRICKLAND: Yeah, [i]t — yeah baby, you know, and come on just act crazy.
That’s all you gotta do.
“MABE: Yeah.
“STRICKLAND: Okay? I mean, I want you back, you know what I mean?
“MABE: I’ll — I’ll be there.”
c. The third call.
In the third call, on January 8, 2020, they discussed the fact that defense counsel
was trying to get ahold of Strickland. Defendant explained, “[J]ust tell him I did a lot of
drugs.” Strickland protested:
“STRICKLAND: . . . [W]hy would you — why would you say you do — do d —
dru — oh m — that’s just, uh, Tom, that . . .
“MABE: Well, that’s why you gotta talk to him. He’ll explain it to you. . . . It’s
the defense that he’s puttin’ up for the case. He got a, uh, blood test from when I went to
the hospital . . . .
23
“STRICKLAND: Yeah.
“MABE: . . . to see how intox — because he says I was intoxicated, didn’t know
what I was doin’.”
2. The trial court’s ruling.
Defense counsel objected that the calls were irrelevant, because “we’re not putting
on a mental health defense.” He also objected that Strickland’s statements were hearsay.
The trial court ruled: “I think it goes to the weight. I think he does kind of
acknowledge the statement. And it kind of shows an effort to puff your case, maybe tell
some untruths to a doctor. So I will allow that.” “I think there’s some evidence that
shows consciousness of guilt.”
After the trial court had ruled, defense counsel reiterated “for the record” that he
was objecting based on hearsay and “on relevance 352 grounds being that there is no
mental health defense.”
While defendant was on the stand, the three phone calls were played for the jury.
B. Discussion.
Defendant argues that the phone calls were irrelevant because he did not actually
present a mental defense; rather, his defense ultimately was voluntary intoxication.
We agree with the trial court that the phone calls were relevant to show
consciousness of guilt. In the first phone call, when Strickland suggested that defendant
act crazy, defendant agreed, saying, “All right, I’ll keep it in mind.” He also agreed that
it “would be nice” to be in a mental institution for two years rather than in prison for 10
24
or 28 years. It is reasonable to infer that defendant knew he was guilty and had no
defense other than a fabricated one.
Likewise, in the second phone call, when Strickland urged him once again to act
crazy, defendant agreed. Strickland added that he should act crazy because “I want you
back . . . [.]” Defendant replied, “I’ll — I’ll be there,” indicating that he would comply.
Moreover, this implied that he had no way of “being there” other than to fabricate a
defense.
Defendant’s argument does not even apply to the third phone call. In it, defendant
told Strickland — evidently for the first time — that he would be asserting voluntary
intoxication. He also indicated that this had come as news to him; it was his defense
counsel who had told him that “[he] was intoxicated, didn’t know what he was doin’,”
which defense counsel had learned from hospital blood tests. This was relevant because
it contradicted defendant’s testimony that he committed the crimes while under the
influence of methamphetamine.
Defendant also argues that the phone calls were more prejudicial than probative, in
violation of Evidence Code section 352. His trial counsel failed to preserve this
argument, for two reasons. First, his Evidence Code section 352 objection came too late,
after the matter had been fully argued and the trial court had already ruled. Second, he
argued that Evidence Code section 352 applied solely because the evidence was not
probative — because “there is no mental health defense.” He did not argue that, even if
the evidence was probative, it was unduly prejudicial.
25
In any event, the evidence was not unduly prejudicial. As discussed, it was
probative to show consciousness of guilt, in that defendant was considering fabricating
(or did fabricate) a defense. Otherwise, it did not show defendant in a bad light at all.
Separately and alternatively, the admission of this evidence was harmless.
Defendant asserts that the admission of evidence in violation of Evidence Code section
352 automatically violates due process, and therefore it triggers the “beyond a reasonable
doubt” harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. Not
so. “A trial court’s determinations under Evidence Code section 352 do not ordinarily
implicate the federal Constitution, and are reviewed under the ‘reasonable probability’
standard of People v. Watson (1956) 46 Cal.2d 818, 836 . . . .” (People v. Gonzales
(2011) 51 Cal.4th 894, 924.) “[T]he admission of evidence, even if erroneous under state
law, results in a due process violation only if it makes the trial fundamentally unfair.”
(People v. Partida (2005) 37 Cal.4th 428, 439.) “Absent fundamental unfairness, state
law error in admitting evidence is subject to the traditional Watson test.” (Ibid.) If it is
not reasonably probable that the admission of the evidence changed the result, it follows
that the trial was not fundamentally unfair.
Here, it was not defendant’s idea to act crazy; Strickland suggested it to him. And,
while defendant said he would “keep it in mind,” there was no evidence that he ever
actually did act crazy. As already noted, the third phone call was a little different,
because there, defendant was talking about a voluntary intoxication defense. The call,
however, was ambiguous as to whether defendant was fabricating that defense. On one
26
hand, his attorney had had to tell him about it, and he was urging Strickland to support it.
On the other hand, the call indicated that the defense was supported by a hospital blood
test. As no such blood test was ever introduced at trial, in that respect, the call was
actually somewhat exculpatory.
Last but not least, the evidence of guilt was overwhelming. For purposes of
count 2 (assault on John Doe during the commission of first degree burglary with the
intent to commit oral copulation) and count 5 (first degree burglary), the key issue was
whether defendant entered the home with the specific intent to commit oral copulation.
Similarly, count 4 required the specific intent to obtain sexual arousal or gratification or
to commit sexual abuse. (§ 243.4, subd. (a).) And count 1 required knowledge that John
was unconscious when defendant first orally copulated him. (Former § 288a, subd. (f);
see now § 287, subd. (f).) The jury was instructed that voluntary intoxication was
relevant to each of these issues. (§ 29.4, subd. (b); see also People v. Reyes (1997) 52
Cal.App.4th 975, 985.)
Defendant, however, admittedly broke into the condo, by removing a screen,
forcing open a window, and entering through it. He admittedly did not have permission.
He admittedly intended to wash his fingerprints off the sliding glass door. He admittedly
knew John was asleep; he told the police that, while John was snoring, he manually
masturbated him, then orally copulated him. He also admittedly orally copulated John
without obtaining consent. He claimed that John put his hands on his head, which he
took to be an invitation to perform oral copulation; however, he admitted that he knew
27
that John thought he was his wife. Moreover, this excuse contradicted his statement to
the police, and as he admitted at trial, “It didn’t make a lot of sense at all.”
Defendant’s claimed explanations for entering the home were contradictory. He
said he wanted to “lay down and go to sleep.” However, he also said he “just wanted
somebody to play with.” Then, he said was sweating and shaking and he just wanted to
call 911. He could not explain why he entered the Does’ bedroom, except that John’s
“snoring kind of grabbed my attention.”
Finally, the only evidence that defendant was actually intoxicated was his own
testimony. When the police interviewed defendant, he did not appear to be under the
influence of drugs. He specifically told them that he had not used methamphetamine.
As already discussed, the phone calls were only weakly prejudicial. On this state
of the evidence, there is no reasonable possibility that, if the phone calls had been
excluded, defendant would have had a more favorable outcome on counts 1, 2, 4, or 5.
Defendant does not contend that the phone calls were prejudicial as to counts 6 and 7
(elder abuse). And the jury acquitted defendant on count 3.
In sum, then, the phone calls were properly admitted, and even if not, their
admission was harmless.
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V
THE SUFFICIENCY OF THE EVIDENCE OF UNLAWFUL RESTRAINT
FOR PURPOSES OF FELONY SEXUAL BATTERY
Defendant contends that there was insufficient evidence of unlawful restraint of
Jane to support his conviction for felony sexual battery on a restrained person (count 4).
“‘We often address claims of insufficient evidence, and the standard of review is
settled. “A reviewing court faced with such a claim determines ‘whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]
We examine the record to determine ‘whether it shows evidence that is reasonable,
credible and of solid value from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’”’ [Citation.]” (People v. Flinner (2020) 10 Cal.5th 686, 748.)
Sexual battery against a restrained person requires a touching of an intimate part
of another person, against the will of the person touched, for the purpose of sexual
arousal, sexual gratification, or sexual abuse. (§ 243.4, subd. (a).) “Intimate part” is
defined as “the sexual organ, anus, groin, or buttocks of any person, and the breast of a
female.” (§ 243.4, subd. (g).) It also requires that, when the touching occurs, the victim
must be “unlawfully restrained by the accused or an accomplice . . . .” (§ 243.4, subd.
(a).)
29
“[A] person is unlawfully restrained when his or her liberty is being controlled by
words, acts or authority of the perpetrator aimed at depriving the person’s liberty, and
such restriction is against the person’s will . . . .” (People v. Arnold (1992) 6 Cal.App.4th
18, 28.) “[A]n unlawful restraint is [not] limited to a physical restraint only.” (People v.
Grant (1992) 8 Cal.App.4th 1105, 1111.) However, “something more is required than
the mere exertion of physical effort necessary to commit the prohibited sexual act.”
(People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.)
The alleged victim of the sexual battery was Jane. The evidence showed that she
was asleep when defendant grabbed her breasts and pubic area. He then grabbed her
mouth area. Defendant told police that he “grabbed her by the back of the neck[] and
pulled her head towards his groin.”
When defendant grabbed Jane’s breasts and pubic area, he was not physically
restraining her. The grabbing itself could not constitute unlawful restraint, because it was
“the mere exertion of physical effort necessary to commit the prohibited sexual act.”
Because the touching started when Jane was asleep, it cannot be argued that defendant
restrained her by words or threat or other nonphysical means. The People argue that Jane
was restrained because she was asleep and thus “incapable of resisting.” Even assuming
this could be considered a form of restraint, it was not restraint “by the accused.”
Defendant’s grabbing of Jane by the mouth and/or neck could not constitute sexual
battery by restraint, because these were not “intimate part[s].” The People suggest these
grabbings show that defendant was willing to restrain Jane “when she stirred.”
30
Nevertheless, the restraint occurred after the touching of an intimate part had ended.
Thus, the touching did not occur “while” Jane was unlawfully restrained. (§ 243.4, subd.
(a).)
We therefore conclude that we must modify the judgment so as to reduce the
conviction of felony sexual battery to misdemeanor sexual battery (§ 243.4, subd. (e)(1)).
VI
THE SUFFICIENCY OF THE EVIDENCE OF
CIRCUMSTANCES LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH
FOR PURPOSES OF FELONY ELDER ABUSE
Defendant contends that there was insufficient evidence of circumstances likely to
produce great bodily harm or death to support his convictions for felony elder abuse
(counts 6 and 7). In the alternative, he contends that the trial court erred by failing to
instruct on the lesser included offense of misdemeanor elder abuse (§ 368, subd. (c)).
Defendant was charged with elder abuse under subdivision (b)(1) of section 368.
This subdivision, as relevant here, provides that “[a] person who knows or reasonably
should know that a person is an elder or dependent adult and who, under circumstances
or conditions likely to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering” is guilty of elder abuse. (Italics added.)
The statute does not define “great bodily harm.” However, in People v. Burroughs
(1984) 35 Cal.3d 824, the Supreme Court was called on to construe another statute that
31
similarly did not define “great bodily harm.” It adopted the definition of “serious bodily
injury” in section 243 — i.e., “‘[a] serious impairment of physical condition, including,
but not limited to the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or organ; a wound
requiring extensive suturing; and serious disfigurement.’” (People v. Burroughs, supra,
at p. 831.) It further held that both terms are “‘essentially equivalent’” to “great bodily
injury.” (Ibid.)
“‘Great bodily harm . . . means great as distinguished from slight, trivial, minor or
moderate harm . . . . [Citation.]’” (People v. Wells (1971) 14 Cal.App.3d 348, 359, fn.
8.) The jury here was so instructed. (CALCRIM No. 830.) “[T]he phrase ‘likely to
produce great bodily harm or death’ . . . means ‘“the probability of serious injury is
great.”’ [Citation.]” (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1352 [decided
under § 273a, subd. (a)].)
“There is no requirement that a victim suffer actual injury or harm . . . .
[Citations.]” (People v. Clair (2011) 197 Cal.App.4th 949, 956 [decided under § 273a,
subd. (a)].) “It is the likelihood of foreseeable injury, rather than whether such injury in
fact occurs, that is relevant. [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214,
1220 [decided under § 273a, subd. (a)].)
In People v. Racy (2007) 148 Cal.App.4th 1327, the defendant used a stun gun on
elderly victim Picaso. (Id. at pp. 1330-1331.) The appellate court found insufficient
evidence that using a stun gun, standing alone, was likely to produce great bodily harm.
32
(Id. at pp. 1332-1333.) Nevertheless, it held that there was sufficient evidence of
circumstances likely to produce great bodily harm. It explained:
“Defendant ‘zapped’ Picaso in the leg with a stun gun causing him substantial
pain. Presumably, to escape the situation and avoid more pain, Picaso retreated to his
bedroom, and defendant gave chase following ‘so close[ly]’ that Picaso could not shut the
bedroom door. When Picaso moved to the bed, defendant repeatedly ‘zapped’ the stun
gun ‘in the air’ and then ‘tip[ped] [Picaso] over,’ and grabbed his wallet, tearing Picaso’s
jean pocket. The struggle moved the bed approximately one foot away from the wall and
caused Picaso to trip.
“From this evidence, the jury reasonably could have concluded that defendant’s
close pursuit of Picaso (which prevented Picaso from locking the door) or the force
defendant exerted on Picaso (which was strong enough to tip him over, tear his jean
pocket, and cause a struggle in which Picaso tripped and the bed moved one foot) likely
could have caused Picaso to fall and break a bone, causing him great bodily harm. . . .
Picaso’s knees are disabled and he is 74 years old, which, as a matter of common
knowledge, is an age that carries with it an increased risk of bone fractures from a fall.”
(People v. Racy, supra, 148 Cal.App.4th at p. 1333.)
Here, defendant’s use of force was very limited. He orally copulated John while
John was asleep. He grabbed Jane’s breasts and pubic area. He also grabbed her “mouth
area.” Defendant told police that he “grabbed her by the back of the neck[] and pulled
her head towards his groin.” Once John awoke, however, he was able to push defendant
33
off of him. Later, when defendant told Jane to stop yelling, he grabbed her shoulders
“[r]oughly and firmly.” However, when John punched defendant and then pinned him to
a countertop, defendant did not resist.10
Nothing about defendant’s actions was likely to cause more than slight harm, even
to elderly victims. Unlike in Racy, there was no struggle in which the Does could have
been injured. And there was no evidence that the Does had any medical condition that
would predispose them to injury, as in Racy. There was no evidence that the Does so
much as suffered bruises.
Waking up to find a naked stranger sexually assaulting you in your home is
undoubtedly terrifying. The Does’ fear in this situation is totally understandable.
However, their fear arose from defendant’s unpredictability; it was not about what he did,
so much as it was about what he might do. As Jane testified, “I didn’t know if he was
going to rape me or kill me.” The Does had to assume that defendant might use force.
The evidence however, shows that defendant did not intend to use force, even when
punched. Whenever the Does resisted, he backed off.
In closing argument, the prosecutor claimed that there was a risk of great bodily
harm “because that’s a stranger, 6’6”. He’s already sexually assaulted them in bed. And
now he’s going after [Jane]. . . . [¶] . . . When you listen to that 911 call, you hear
it. . . . You hear the threat of great bodily injury or death. And that’s the point at which
10 The People state that, while John was in bed, defendant “push[ed] him
down onto his back . . . .” Not so. The cited portion of the record says that it was John
who pushed defendant away and off of him.
34
Jane Doe runs out. She runs out of her own home in fear of what’s going to happen to
her in her own home.” All of these points tended to show that the Does were terrified,
and reasonably so. However, they did not show a great probability of serious injury.
We therefore conclude that we must modify the judgment so as to reduce the two
counts of felony elder abuse to misdemeanor elder abuse.
VII
DISPOSITION
The conviction of felony sexual battery on count 4 is reduced to misdemeanor
sexual battery. The convictions of felony elder abuse on counts 6 and 7 are reduced to
misdemeanor elder abuse. The convictions on all other counts are affirmed. The
judgment with respect to the sentence is reversed and the matter is remanded for
resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
FIELDS
J.
35