People v. Balcom

867 P.2d 777, 7 Cal. 4th 414, 27 Cal. Rptr. 2d 666, 94 Daily Journal DAR 2605, 94 Cal. Daily Op. Serv. 1517, 1994 Cal. LEXIS 698

• Court: California Supreme Court
• Decided: February 28, 1994
• Docket: S024543
• Status: Published

Opinions

Opinion

GEORGE, J.

In People v. Ewoldt, ante, page 380 [27 Cal.Rptr.2d 646, 867 P.2d 757], we overruled the holding in People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1] that evidence of uncharged misconduct is admissible to establish a common design or plan only if such evidence demonstrates a “single, continuing conception or plot” of which the charged crime is a part. (People v. Ewoldt, supra, ante, at p. 401.) We held instead in Ewoldt that such evidence is admissible to establish a common design or plan if the uncharged misconduct “shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan.” (Id. at p. 403.)

In the present case, we hold that evidence tending to establish that, soon after the commission of the charged offenses of rape and robbery, defendant committed a rape and robbery in Michigan in a manner quite similar to the charged offenses, was admissible to demonstrate the existence of a common design or plan which, in turn, was relevant to demonstrate that defendant either employed or developed that plan in committing the charged offenses.

Factual and Procedural History

Defendant was charged by information with rape (Pen. Code, § 261, subd. (2)) and related offenses of burglary and robbery.¹ Following trial, the jury found defendant guilty of first degree robbery but was unable to reach a verdict on the rape and burglary counts. The case was set for retrial on the rape count only. Prior to the second trial, the trial court ruled that evidence could be admitted tending to establish that defendant had committed a rape and robbery in Michigan less than two months after the charged offense.

The victim in the present case, Denise B., testified that on July 24, 1988, she lived in a rented condominium she shared with her roommate, Jace O. At approximately 1 a.m., Denise was alone, dressed in a nightgown and robe, when she heard a knock on her front door. Looking out the peephole, she observed in the dimly lit hallway a man wearing a cap. When she opened the door, the man, a six-foot-tall Caucasian, inquired whether a person named Mike resided there. Denise responded in the negative, and the man walked away as she closed the door.

Approximately five minutes later, there was another knock at the door. Denise looked out the peephole and again observed a man wearing a cap. Rather than open her door again, she went onto her patio, looked over the fence, and saw defendant, a six-foot-tall Black man, standing by her front door. Defendant, who was holding a rifle, ran toward her and leapt over the fence. Pointing the weapon at Denise, he ordered her into the condominium.

Denise sat on the couch and asked defendant what he wanted. Defendant responded, “Where’s your money?,” and she replied that it was inside her purse, which was in the bedroom. When defendant ordered her to retrieve it, she entered the bedroom. As she did so, defendant followed, put his arm around her, and fondled her breast. Denise gave defendant the small amount of money that was inside her purse. Defendant asked for “the card.” Denise thought he meant her credit cards and began to retrieve them, but defendant stopped her, stating: “[N]o, no, the card for the machine.” After Denise gave defendant her automated teller machine (ATM) card, he asked for her personal identification number (PIN) for the ATM card, threatening he would return and kill her in the event the number was incorrect. She gave him the correct number. At defendant’s direction, Denise surrendered the key to her automobile and described the vehicle’s appearance and location.

Defendant asked Denise for other valuables and looked through her belongings. Finding little of value, he said, “Well, since you don’t have anything [it] looks like I’m going to have to rape you.” Defendant tied Denise’s wrists with a belt and ordered her to kneel on the floor. She hesitated, begging, “Please, please, don’t,” but defendant put the gun to her face and again ordered her onto the floor. When she complied, defendant gagged her with a bandanna and ordered her to lie on her back. He then ripped open her robe, raised her nightgown, removed her underpants, lowered his pants, and raped her. Defendant asked Denise whether it hurt or felt good, but she did not respond.

Defendant took Denise’s watch and camera and an orange towel. He made her sit on the bed and tied her ankles with another belt. Telling her he was a member of a gang, he threatened that the gang would kill her if she reported him to the police. He then left. After managing to remove the gag, Denise telephoned the police.

About this time, a visitor to the condominium complex observed a man matching defendant’s general description, wearing a cap, leave the vicinity of Denise’s condominium carrying a long object covered with a gold-colored towel. From its shape and the manner in which it was being carried, the visitor believed the object was a rifle.

When the police arrived, they found the door to the condominium ajar and Denise inside, bound at the wrists and ankles. The condominium had been ransacked. Denise’s automobile was missing.

Approximately six weeks after the commission of the crime, Denise was shown a photographic lineup, which did not include a photograph of defendant. She did not identify any of the photographs as that of her assailant. A few days later, she was shown a second photographic lineup, which did include a photograph of defendant. Denise identified defendant as her assailant.

The owner of a pawnshop testified that defendant pawned the victim’s camera. An expert in fingerprint identification testified that defendant’s fingerprints matched a fingerprint on the pawn slip, as well as one found on the bottom of a jewelry box which Denise kept in her bedroom. An analysis of a sample of defendant’s blood was compared with an analysis of semen collected from the victim’s vagina and revealed that defendant was included in the group of men who could have produced that semen. This group includes approximately 13 percent of the Black male population.

Defendant testified that he had met the victim and her roommate, Jace O., when he accompanied his friend to Denise’s condominium, where the friend consummated a drug transaction with Jace. Defendant agreed to sell a gold necklace to Jace for $250 and left the necklace with him.

Defendant testified that when he returned to the condominium the following night to collect his money, Denise invited him in, stating that Jace would arrive shortly. Defendant claimed that he and Denise conversed and then engaged in consensual sexual intercourse.

Defendant further testified that Denise then told him that Jace was not returning and had no intention of paying him the $250. This upset defendant, and he demanded the money from Denise. When she refused, he demanded her ATM card. When she again refused, defendant removed the card from her purse, but she would not divulge her PIN. Defendant took her camera, placing it on the bed while he searched for other valuables. Denise grabbed the camera and threw it at defendant. Defendant then tied her wrists and ankles with belts. When she threatened to “yell rape,” defendant gagged her with a bandanna. After Denise finally provided defendant with her PIN, he took the ATM card, the camera, and the keys to her automobile, driving off in her vehicle. Defendant withdrew $200 from Denise’s bank account and pawned the camera for $20.

In his testimony, defendant also admitted he had suffered a felony conviction for “criminal sexual assault” in Michigan, where his family resided at the time. Defendant stated he had been sentenced to a term of 50 years in prison for that offense and was appealing from the judgment.

In rebuttal, Theresa H. testified for the prosecution regarding the Michigan offense. On September 2, 1988, six weeks after the charged offense was committed, she was driving out of her apartment complex at 6:30 a.m. when defendant, who was wearing a cap, motioned for her to stop and asked for directions. As she was replying, defendant placed a handgun to her head, opened the door of the automobile, and, shoving her aside, entered the vehicle and began driving. Defendant assured her he wanted only money.

Defendant parked the automobile on a dirt road behind a business establishment. As Theresa reached for her purse, defendant “jumped on top” of her and said he was going to rape her. He tore off her clothes, pulled down his pants, and engaged in sexual intercourse with Theresa.

Thereafter, defendant went through Theresa’s purse and took her ATM card from her wallet, asking whether he could obtain cash with it. Theresa asked whether he would let her go if she gave him her PIN and could prove it was valid. When defendant replied affirmatively, she gave him a “personal identification number sheet” from her purse. After defendant allowed Theresa to leave the vehicle, he drove away.

The jury in the present proceedings found defendant guilty of rape. After the Court of Appeal affirmed the resulting judgment of conviction, we granted defendant’s petition for review.

Discussion

The People contend the evidence that defendant committed the Michigan rape and robbery several weeks after the commission of the alleged offenses was admissible to prove intent. We disagree, but conclude that the evidence was admissible to demonstrate the existence of a common design or plan which, in turn, was relevant to establish that defendant either employed or developed that plan in committing the charged offenses.

I

Pursuant to Evidence Code section 1101, evidence that the defendant in a criminal prosecution committed an uncharged offense may be admitted if relevant to prove some relevant fact other than the defendant’s character—such as intent or identity, or that the defendant acted pursuant to a common design or plan. We first examine the People’s contention that evidence of defendant’s uncharged offenses was admissible to prove intent.

“Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt, supra, ante, p. 394, fn. 2, italics in original.) In the present case, however, if the jury found that defendant committed the act alleged, there could be no reasonable dispute that he harbored the requisite criminal intent. (Id. at p. 406.)

The victim testified that defendant placed a gun to her head and forced her to engage in sexual intercourse. Defendant conceded that he engaged in sexual intercourse with the victim but denied that he used a gun or otherwise accomplished such intercourse against the victim’s will, claiming she voluntarily consented.

These wholly divergent accounts create no middle ground from which the jury could conclude that defendant committed the proscribed act of engaging in sexual intercourse with the victim against her will by holding a gun to her head, but lacked criminal intent because, for example, he honestly and reasonably, but mistakenly, believed she voluntarily had consented. (People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961].) On the evidence presented, the primary issue for the jury to determine was whether defendant forced the complaining witness to engage in sexual intercourse by placing a gun to her head. No reasonable juror considering this evidence could have concluded that defendant committed the acts alleged by the complaining witness, but lacked the requisite intent to commit rape.

“Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ . . . ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.]” (People v. Ewoldt, supra, ante, p. 404, italics in original.)

Defendant’s plea of not guilty put in issue all of the elements of the offenses, including his intent (People v. Daniels (1991) 52 Cal.3d 815, [277 Cal.Rptr. 122, 802 P.2d 906]), and evidence that defendant committed uncharged similar offenses would have some relevance regarding defendant’s intent in the present case. But, because the victim’s testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant’s intent, evidence of defendant’s uncharged similar offenses would be merely cumulative on this issue. (People v. Ewoldt, supra, ante, p. 405.) Accordingly, we conclude that the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence.² We reach a different conclusion, however, concerning the admissibility of this evidence to prove the existence of a common design or plan.

II

As we explained in Ewoldt, “[e]vidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, ‘[i]n proving design, the act is still undetermined . . . .’ [Citation.]” (People v. Ewoldt, supra, ante, p. 394, fn. 2, italics in original.) To establish a common design or plan, the evidence must demonstrate not merely a similarity in the results, but “ ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” (Id. at p. 393-394.)

In the present case, the uncharged offenses committed by defendant in Michigan share features in common with the charged offenses sufficient to support the inference that the uncharged acts and the charged offenses were manifestations of a common design. In both instances, which occurred only six weeks apart, defendant, wearing dark clothing and a cap, went to an apartment complex in the early morning, sought out a lone woman unknown to him, and gained control over her at gunpoint. In both instances, defendant initially professed only an intention to rob the victim, waiting until he had moved the victim to the location where the rape would occur before expressly announcing his intention to rape her, forcibly removing her clothing, and committing a single act of intercourse. In both instances, defendant stole the victim’s ATM card, obtained her PIN, and escaped in the victim’s automobile. These similarities support the inference that defendant committed the Michigan rape and robbery pursuant to a design or plan that he either employed or developed in committing the charged offenses.

To be relevant, the plan, as established by the similarities between the charged and uncharged offenses, need not be distinctive or unusual. Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant to prove the defendant employed that plan and committed the charged offense. “For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (People v. Ewoldt, supra, ante, p. 403.)

In this manner, the use of evidence of uncharged misconduct to demonstrate a common design or plan differs from the use of such evidence to prove identity. “Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator.” (People v. Ewoldt, supra, ante, p. 394, fn. 2, italics in original.) In order for evidence of an uncharged offense to be relevant for this purpose, it must share with the charged offense characteristics that are “ ‘so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.) The highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense.

Although an uncharged offense need not possess unusual or distinctive characteristics to be relevant to establish the existence of a common design or plan, the presence of unusual or distinctive shared characteristics may increase the probative value of such evidence for this purpose. For example, in People v. Peete (1946) 28 Cal.2d 306 [169 P.2d 924], the defendant was prosecuted for murdering her employer. The victim had been shot in the back of the neck, the bullet having struck the fourth cervical vertebra, narrowly missing the spinal cord, and her body was buried in the backyard of her home. (Id. at pp. 310-313.) Evidence was introduced establishing that the defendant previously had killed her landlord. There were many similarities between the charged offense and the earlier murder, but the most striking were that the victim had been shot in the back of the neck, the bullet having struck the fourth cervical vertebra and severed the spinal cord, and that his body was buried beneath his residence. (Id. at pp. 317-318.) These unusual and distinctive shared characteristics increased the probative value of this evidence in establishing that the defendant committed both offenses pursuant to a common design or plan.

The circumstance that the uncharged offense occurred after the charged offense does not lessen its relevance in demonstrating the existence of a common design or plan. In People v. Coefield (1951) 37 Cal.2d 865 [236 P.2d 570], this court held admissible, in a prosecution for murder committed during the course of a robbery, evidence that the defendant had participated in three uncharged similar offenses, two of which were committed prior to, and one of which was committed subsequent to, the charged offense. After determining that these uncharged offenses were sufficiently similar to the charged offense “to show that the [charged] robbery was part of a common scheme, design or plan to commit robberies,” this court concluded: “Since the evidence was relevant on the question of common scheme and intent to rob, it was admissible whether the other offenses were prior or subsequent. [Citations.]” (Id. at p. 870; cf. People v. Thompson (1980) 27 Cal.3d 303, 312, 320-321 [165 Cal.Rptr. 289, 611 P.2d 883]; People v. Frank (1865) 28 Cal. 507, 518.) One commentator has stated: “If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.” (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.6, p. 1200, italics in original.)

Other jurisdictions have expressed the same rule. “It is well-established in [the federal second] circuit that evidence of subsequent similar acts, including other crimes, is admissible in the discretion of the trial court if ‘it is substantially relevant for a purpose other than merely to show defendant’s criminal character or disposition’, [citation], and its probative worth outweighs its potential prejudicial impact. [Citations.]” (United States v. Cavallaro (2d Cir. 1977) 553 F.2d 300, 305, italics added.) “ ‘Both prior conduct and subsequent conduct may be relevant . . . , depending on the circumstances and the probative value of the collateral conduct sought to be proven.’ ” (People v. Tipton (1980) 78 Ill.2d 477 [36 Ill.Dec. 687, 401 N.E.2d 528, 532], and cases cited, italics in original.)

In the present case, the similarities between the charged offenses and the later uncharged offenses support the inference that defendant either possessed the plan before the commission of the charged offenses and committed both the charged and uncharged offenses pursuant to that plan, or that defendant developed the plan during the commission of the charged offenses and then employed that plan in committing the uncharged offenses. In either event, evidence of defendant’s common design or plan was relevant on the issue of his guilt or innocence of the charged offenses.

Consider the example of a defendant who is alleged to have taken money hidden in a freezer during the commission of the charged offense. Evidence that, during the commission of a subsequent crime, the defendant searched a freezer for valuables would be relevant to establish a common design or plan. The relevance of this evidence would be the same whether the defendant had formulated the plan to search freezers for valuables prior to the charged offense, or instead learned during the commission of the charged offense that some individuals hide valuables in théir freezers, incorporating this knowledge into a plan that the defendant employed in committing the later, uncharged offense.

We conclude, therefore, that evidence of the Michigan incident shares sufficient common features with the charged offenses to support the inference that the uncharged acts and the charged offenses are manifestations of a common design or plan.

This conclusion, however, does not end our inquiry. As noted above, “[e]vidence that involves crimes other than those for which a defendant is being tried is admitted only with caution . . . .” (People v. Thompson (1988) 45 Cal.3d 86, 109 [246 Cal.Rptr. 245, 753 P.2d 37].) Although we have concluded that evidence of defendant’s uncharged criminal conduct is relevant to establish a common design or plan, in order to be admissible such evidence “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]” (Ibid.) We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)

The probative value of this evidence stems from the similarity between the uncharged offenses and the charged offenses—a similarity which, as noted above, is sufficient to support the inference that defendant acted pursuant to a common design or plan. The close proximity in time of the uncharged offenses to the charged offenses increases the probative value of this evidence.

The probative value of the evidence of defendant’s uncharged offenses also is increased because its source apparently was independent of the evidence of the charged offenses. The victim of the subsequent Michigan offenses apparently reported the manner in which defendant raped and robbed her at a time when she had no knowledge of the charged offenses. (Cf. People v. Ewoldt, supra, ante, p. 404.)

The probative value of this evidence is decreased, however, by the dissimilarities between the uncharged and the charged offenses. In the charged offenses, defendant allegedly forced entry into the victim’s residence, committing the crimes at that location. In the uncharged offenses, defendant forced entry into the victim’s automobile and, after driving to another location, committed the crimes inside the vehicle. Also, defendant used a rifle in the charged offenses and a handgun in the uncharged offenses.

As for the prejudicial impact of the evidence, the circumstance that the uncharged acts resulted in a criminal conviction and a substantial prison term decreases, in two ways, the potential for prejudice, undue consumption of time, or confusing the issues. (Evid. Code, § 352.) First, the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for the uncharged offenses, because the jury was aware he had been sentenced to a substantial prison term for the uncharged offenses. Second, the attention of the jury was not diverted to a determination whether or not defendant had committed the uncharged offenses, because that fact had been determined conclusively by the resulting Michigan conviction. (People v. Ewoldt, supra, ante, pp. 405-406.)

In light of these factors, we conclude the probative value of the evidence of defendant’s uncharged offenses, in establishing the existence of a common design or plan, outweighed its prejudicial effect. Accordingly, the trial court did not err in admitting this evidence.

Disposition

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Kennard, J., Arabian, J., and Panelli, J.,

* concurred.

1 At the time of the alleged offense, section 261, subdivision (2), defined rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... [¶] (2) Where it is accomplished against a person’s will by means of force, violence, or fear of immediate and unlawful bodily injury on the person or another.” (Stats. 1986, ch. 1299, § 1, p. 4592.) The statute subsequently was amended to redesignate this provision as section 261, subdivision (a)(2), and add, to the definition of rape, acts of intercourse accomplished by means of duress or menace.

2 In his concurring and dissenting opinion, Justice Baxter concludes that defendant’s uncharged misconduct was admissible to prove, as an intermediate fact from which it can be inferred that defendant committed the charged offense, that defendant “intended” to rape the victim. This approach is unprecedented and raises many questions left unanswered by the concurring and dissenting opinion. The word “intent” has several meanings, including “the state of mind with which an act is done.” (Webster’s New Collegiate Dict. (9th ed. 1990) p. 629.) Prior cases interpreting Evidence Code section 1101 have used “intent” in this sense. (See, e.g., People v. Ewoldt, supra, ante, p. 394, fn. 2; People v. Robbins (1988) 45 Cal.3d 867, 879-880 [248 Cal.Rptr. 172, 755 P.2d 355].) The concurring and dissenting opinion, however, uses the term “intent" in a different way, considering whether defendant “intended” to rape the victim. (Conc. and dis. opn. of Baxter, J., post, p. 433.) “Intend” means “to have in mind as a purpose or goal: plan.” (Webster’s New Collegiate Dict., supra, p. 629.)

To the extent that the concurring and dissenting opinion concludes that evidence of defendant’s uncharged misconduct was admissible because it demonstrates that defendant had a plan to commit the charged offenses, it simply restates the holding of the majority. But the statement in the concurring and dissenting opinion that such evidence is admissible “if the circumstances of the accused’s criminal sexual misconduct on other occasions tend to establish that he harbored criminal sexual intent toward the current complainant” (conc. and dis. opn. of Baxter, J., post, p. 433) would establish an ill-defined standard that does not clearly exclude evidence of a defendant’s criminal disposition, as required by Evidence Code section 1101, subdivision (a). For example, evidence that a defendant charged with rape had committed rape on another occasion in a manner different from the charged offense may tend to establish that the defendant had a propensity to commit rape and, therefore, “harbored criminal sexual intent toward the current complainant,” but such evidence is inadmissible under Evidence Code section 1101 as mere evidence of criminal disposition. (People v. Ewoldt, supra, ante, p. 393.)

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.