Filed 9/4/26 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052865 (Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 22CR04097)
v.
STUART STAMMERS,
Defendant and Appellant.
Defendant Stuart Stammers was convicted by jury of forcible digital penetration following a sexual encounter with complaining witness Christina Doe. On appeal, defendant brings numerous challenges to the trial court’s admission of crude and demeaning material he sent to friends during the months leading up to the charged offense. We conclude much of the evidence was erroneously admitted and, combined with the prosecutor’s excessive focus on that evidence, ultimately deprived defendant of a fair trial. Because the due process violation was not harmless beyond a reasonable doubt, we will reverse the judgment.
I. BACKGROUND
A. TRIAL TESTIMONY ABOUT THE CHARGED OFFENSE At the time of trial, Doe had lived in California for 18 years after immigrating from China. She met defendant on a dating website in July 2022. Over the next month they exchanged messages frequently and met in person several times. On their third date they kissed and hugged. Doe was interested in continuing to pursue a relationship with defendant.
On one occasion, Doe visited defendant at his home. They shared a bottle of wine while defendant cooked dinner. Doe drank part of one glass and defendant finished the bottle. After dinner, they changed into bathing suits and sat in defendant’s hot tub for about an hour. Defendant was drinking beer. At some point defendant placed Doe on his lap and removed her bikini top. Doe testified that she would not have agreed to remove her top if defendant had asked her, but she did not put the top back on. According to Doe, she asked defendant, “Did I say it’s okay to take it off?” and defendant replied that he would “rather ask for forgiveness than permission.” Defendant denied making that statement. While defendant and Doe were in the hot tub, they kissed on the lips and defendant kissed Doe’s breast. Defendant also attempted to touch Doe’s vaginal area but stopped when she pushed his hand away.
Doe and defendant showered separately after leaving the hot tub. They then sat on a couch together and watched television. While on the couch, they touched one another and had consensual vaginal sex. Defendant stopped after a few minutes. Doe was “confused” when he stopped and “was questioning why.” Defendant testified that he and Doe attempted to have vaginal sex but stopped because he was unable to maintain a sufficient erection.
Defendant positioned himself behind Doe on the couch and touched her anus with his finger. After she told him to stop and pulled his hand away from her anus, he told her, “It’s okay, just relax.” Doe described what happened next: “After that it’s just all of a sudden I felt a big pressure pull me down and my face was facing the TV, then became facing down to the pillow, and a huge force on me and I couldn’t move. And there was enormous pain just came to something was in my butt. It was really, really painful and I was so scared. And first I couldn’t breathe at the beginning because my face was in the middle of pillow and I had to struggle to – to get to breathe first, and then – then trying to get him off of me.” She believed defendant’s penis was inside her anus because she did
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not think the “enormous pain” she felt could have been caused by a finger. Doe struggled and screamed, but defendant continued for several minutes.
Doe eventually got away and went into the bathroom. Her anus was bleeding. (A forensic examination conducted later that night revealed tearing in Doe’s perianal area.) Doe then stood outside the bathroom, attempting to get defendant’s attention, but he did not notice her. After gathering her belongings, she approached defendant and told him she was bleeding. Doe asked defendant, “you don’t understand what no means?” She left the house and called 911 from the driveway.
Sheriff’s deputies met Doe nearby and interviewed her. The deputies then went to the house and spoke to defendant, who told them he and Doe had kissed and “touched” but did not have sex. They found bloody tissue in the toilet. Defendant gave them access to his cell phone for the purpose of reviewing and downloading security camera footage. Motion-activated cameras in defendant’s house had intermittently recorded the evening, including part of the sexual encounter on the couch, and recordings were played for the jury. The full sexual encounter was not captured; there was a 59-second gap in the recording.
B. EVIDENCE OF DEFENDANT’S CHARACTER AND ELECTRONIC COMMUNICATIONS Numerous character witnesses testified on defendant’s behalf. The trial court allowed the witnesses to provide opinion and reputation testimony concerning defendant’s truthfulness and nonviolent character. Defendant’s former wife and his thencurrent girlfriend testified that they had not known defendant to be sexually violent and did not believe he would be. His former wife described him as a positive role model for their children.
The trial court allowed the prosecutor to impeach the character witnesses using communications obtained from defendant’s cell phone. The evidence consisted of electronic images he sent to others during the 10 months leading up to the charged
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offense. Some of the communications were also admitted as evidence of defendant’s intent or lack of mistake regarding consent. The admitted communications included: an image of a topless woman in a headdress, accompanied by the text “Sittin’ Juggs says have a great THANKSGIVING!!! And remember if the indians would have killed a mule instead of a turkey we’d all get a piece of ass for thanksgiving!!”; a Thanksgivingthemed cartoon image including the text “May your women and turkey both be moist, smokin’ hot, with big breasts, lying on their back ready to be eaten. Happy Thanksgiving!”; an image including the text “I’m kind of like a finger in the ass. I’m either a wonderful surprise or make everything fucking awkward and uncomfortable.”; an image of a man holding a microphone including the text “Asians at karaoke bars be like abba ree I can fry”; an image of a man including the text “When a girl seductively tells you, ‘you can stick it wherever you want’ apparently in her roommate is not one of the options.”; an image including the text “Fellas, If The relationship fails, don’t blame only her. It takes 2 people to mess up a relationship. Blame her and her mother”; an image of a female nurse attending to a male patient, accompanied by the text “Nurse: You may not feel anything from the waist down. Him: Just tits then?”; an image of a police officer asking a man, “So, when did you notice your wife was dead?” and the man responding, “The lovemaking was the same but then the dishes started to pile up…”; and an image including the text “He: You remind me of my little toe. She: Is it because I’m so cute and tiny? He: No, it’s because I will probably get drunk later and bang you on the coffee table.”
Defendant testified that he shared the images after receiving them from others.
The prosecutor also referenced several text messages in which defendant and a friend shared pictures of women. In those text messages, defendant made comments about one woman’s “great personality” and “testing” another woman out.
Also admitted was a video podcast excerpt of two women discussing anal sex.
Defendant sent the video to two women but did not send it to Doe. In the video, one
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woman describes anal sex as “a challenge that I have to survive.” The other woman agrees and says, “How am I gonna like survive this one?” One woman describes anal sex as an “intense” experience that “gives you this high afterwards” for the rest of the day, and the video ends with the second woman replying, “everyone get your morning anal.”
C. CLOSING ARGUMENT The prosecutor discussed in closing argument what he referred to as defendant’s “sex communication,” stating in part: “as I said, defense was very defensive about this, spent a lot of time on direct to try and counter it, I suppose, maybe brush these off as no big deal and, look, some of you may think this is -- they were funny or they were offensive.· Doesn't really matter.· The judge let them in as evidence.· You get to use them and consider them. Some were absolutely racist.· Some were absolutely misogynist.· But every joke that they claim these are, the fact is there's a bit of toxic masculinity behind them.· This isn't some 22-year-old in college sending these or talking about women this way.· This was, as he said and testified to for about 20 to 35 minutes, a very important person.· A vice president at [defendant’s employer] talking this way about women, about Asian people.”
Defense counsel suggested in closing argument that the prosecutor had “riffled through [defendant’s] phone for hours and hours to do a gotcha against him for his memes and his messaging” and the results of that search did not establish defendant’s guilt. In rebuttal, the prosecutor stated: “I was also accused of being deceptive several times throughout the close.· You heard me object because the judge decides what evidence comes in and some things may be kept out that want to be brought in by other parties.· Some things may be brought in that other parties don’t want. Defense knows what was out there and to try and deceive you by saying this is all that was on his phone after all of the hours, again, that is deceptive.· He knows the truth.”
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D. VERDICT AND SENTENCING Defendant was initially charged with forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A); count 1) and the information was later amended to add a charge of forcible digital penetration (Pen. Code, § 289, subd. (a)(1)(A); count 2). The jury found defendant not guilty on count 1 but guilty on count 2. The trial court sentenced defendant to three years in prison.
II. DISCUSSION
Defendant challenges the admission of his electronic communications on several grounds. He argues the communications were not admissible as evidence of intent or lack of mistake under Evidence Code section 1101; were highly prejudicial and should have been excluded under Evidence Code section 352; should have been excluded as creative expressions under Evidence Code section 352.2; and exceeded the proper scope of rebuttal or impeachment. He also asserts the prosecution violated Penal Code section 1054.1 by not disclosing the challenged evidence until midway through trial. He contends those violations of state law deprived him of his constitutional rights to due process and an impartial jury, and prevented him from exercising his constitutional right to present a defense. We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Paniagua (2012) 209 Cal.App.4th 499, 518.)
The challenged evidence conveyed to the jury that defendant is crude, sexist, and racist. And therein lies the problem. With two possible exceptions, 1 the evidence of
1 One message forwarded by defendant (People’s Exhibit 24) suggested “a finger in the ass” would either be “a wonderful surprise or make everything fucking awkward and uncomfortable.” That message could arguably support an inference that defendant viewed nonconsensual digital penetration, the conduct charged in count 2, as permissible in the context of an otherwise consensual sexual contact. A second item (People’s Exhibit 25) is a video podcast excerpt in which women are discussing anal sex. Combined with evidence that defendant sent it to two women but not to Doe, that message could arguably support an inference that defendant believed Doe would not or
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defendant’s communications has no legal relevance to the legitimate issues of his truthfulness, use of force, or intent to commit sexual assault. The communications as a whole reflect defendant’s apparent enthusiasm for sharing demeaning jokes about women and people of certain races, but they shed no light on the issues being tried. As one example, we note the lampooning of an Asian man singing karaoke, which was introduced at trial in connection with questioning about defendant’s “Asian fever” or sexual interest in Asian women such as Doe: the derogatory trope highlighted race (and the racial difference between the apparently white defendant and Doe) yet did nothing to establish any relevant circumstances.
We acknowledge that the trial court appears to have appreciated at least to some degree the potential for misuse posed by this type of evidence. It considered a large number of similar communications from defendant and excluded them as cumulative or temporally remote. But even deferring to the trial court’s discretion in admitting evidence, its gatekeeping in this important aspect was inadequate. As we have explained, the court admitted numerous irrelevant exhibits which were then improperly used to impeach defendant’s character witnesses, whose testimony was limited in scope to defendant’s truthfulness and nonviolent character (which the exhibits did nothing to disprove). Even if one or two of the many exhibits could be deemed marginally probative, their collective admission created a substantial danger of undue prejudice, which was only exacerbated by the amount of time devoted at trial to examining the character witnesses about the exhibits, compared to the time spent on legally relevant and
did not consent to anal sex, the conduct charged in count 1. Even assuming some relevance of those two exhibits based on a loose relationship to legitimate issues, we need not decide whether their admission would be proper under Evidence Code sections 352 and 1101 because of the scope and prejudicial effect of the improperly admitted communications, as we explain.
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admissible evidence. (See Evid. Code, § 352.) This is especially so where credibility of accuser and accused is central to the case.
“Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test” which requires reversal only if a different outcome is reasonably probable absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439.) But defendant argues admission of the challenged evidence in fact deprived him of due process and resulted in a fundamentally unfair trial, requiring reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant “must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial.” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. And even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ ” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Other than the possibility of permissible inferences from People’s Exhibits 24 and 25 we have briefly discussed, we see no permissible inferences to be drawn from the disputed cell phone evidence.
We invited supplemental briefing on the applicable prejudice standard, and now must determine whether the wrongly admitted evidence was “ ‘of such quality as necessarily prevents a fair trial.’ ” (Jammal v. Van de Kamp, supra, 926 F.2d 918 at p. 920.) In doing so, we consider the strength of the prosecution’s case as well as the extent to which the prosecution relied on the evidence at trial and the potential emotional impact of the evidence on the jury. (Kipp v. Davis (9th Cir. 2020) 971 F.3d 939, 957.) Here, the evidence of defendant’s guilt on count 2 was not overwhelming. Although the jury was shown security camera footage of part of the sexual encounter, that video evidence was ambiguous as to salient aspects (including what transpired during a 59- second gap in the recording) and was used to counter Doe’s testimony that she screamed repeatedly and physically resisted defendant during the charged assault.
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As we have noted, the prosecutor spent considerable time cross-examining defendant and his character witnesses about the electronic communications at issue. In particular, the prosecutor focused on what he referred to as “Asian fever” in cross- examining defendant’s then-girlfriend (who identified herself as Asian) about their sexual relationship. The prosecutor went on to emphasize defendant’s communications in closing argument, telling the jury, “look, some of you may think … they were funny or they were offensive. Doesn’t really matter. The judge let them in as evidence. You get to use them and consider them.” The prosecutor described defendant as “defensive” about messages that were “racist” and “misogynist” with “toxic masculinity behind them.” Referencing defendant’s employment, he argued defendant was not “some 22- year-old in college” but rather a company vice president who was “talking this way about women, about Asian people.” In rebutting defense counsel’s closing argument, the prosecutor also implied that additional, unadmitted evidence had been found on defendant’s cell phone and suggested that defendant was being “deceptive” by downplaying the significance of the admitted cell phone evidence, stating, “He knows the truth.” The prosecutor’s focus on the wrongly admitted evidence throughout the trial made it likely that the jury would also focus on that evidence, and his discussion of the evidence in closing argument was likely to inflame the passions of the jury. Considering the prosecutor’s extensive use of the challenged evidence, together with the other evidence before the jury, we conclude admission of the cell phone evidence prevented a fair trial.
Another aspect of our analysis is that defendant did not create the messages at issue, but rather possessed and forwarded them. Accordingly, defendant did not argue in the trial court that any of his communications constituted “creative expression” under Evidence Code section 352.2. In that statute, the Legislature has recognized that “undue prejudice” for purposes of Evidence Code section 352 “includes, but is not limited to, the possibility that the trier of fact will, in violation of [Evidence Code] Section 1101, treat
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[creative] expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.” (Evid. Code, § 352.2, subd. (a).) We have analyzed the admissibility of defendant’s communications under traditional evidentiary principles without considering their potentially expressive nature. Although we have not relied on Evidence Code section 352.2 in concluding that the evidence was erroneously admitted, the Legislature’s concerns in enacting that statute nonetheless illustrate why the evidentiary error was prejudicial here.
By focusing extensively on defendant’s crass and racist communications despite their unclear relationship to the issues properly before the jury, the prosecutor encouraged the jury to treat them as evidence of defendant’s propensity to sexually demean or objectify Asian women like Doe. The exhibits and the prosecutor’s use of them injected highly inflammatory evidence and argument into the trial without corresponding probative value. The improper admission of the electronic communications deprived defendant of a fair trial and thus due process. As the error was not harmless beyond a reasonable doubt, the conviction must be reversed.
III. DISPOSITION
The judgment is reversed and the matter is remanded for possible retrial.
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Grover, Acting, P. J.
WE CONCUR:
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Lie, J.
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Wilson, J.
H052865 The People v. Stammers
Trial Court: Santa Cruz County Superior Court Case No.: 22CR04097
Trial Judge: Hon. Denine J. Guy Attorneys for Plaintiff/Respondent Rob Bonta The People: Attorney General of California Charles C. Ragland Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Catherine Rivlin Supervising Deputy Attorney General Gregg E. Zywicke Deputy Attorney General
Attorneys for Defendant/Appellant Jeanine G. Strong Stuart Stammers: Strong Appellate Law