P. v. Elder

Filed 2/15/08 P. v. Elder CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed as modified.

Mark Elder appeals from a judgment convicting him of first degree murder. He argues the trial court erred in: (1) denying his request for a continuance following its ruling admitting uncharged offense evidence; (2) admitting the uncharged offense evidence under Evidence Code^[1]sections 1108 and 1101, subdivision (b); and (3) denying his request for a mistrial based on the prosecutor's comment on his silence after being given Miranda^[2]warnings. With one exception, we reject his contentions of error. We hold the court erred in admitting the uncharged offense evidence under section 1108, but find the error harmless because the evidence was admissible under section 1101, subdivision (b).

Elder also argues the trial court's imposition of a restitution fine under Penal Code section 1202.45 violated the constitutional prohibition against ex post facto laws. The Attorney General properly concedes this error. Accordingly, we modify the judgment to strike this restitution fine. As so modified, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Overview

The victim, Janet M., who sometimes worked as a prostitute, was murdered in 1988. Elder was not identified as a suspect until after a DNA profile from the murder scene was developed in 2003. Elder, who was arrested in Florida in 2005, initially denied knowing the victim, but later admitted that he had sexual intercourse with her. At trial, he presented a third party culpability defense, claiming that he had been framed for the murder by Henry Tan, a pathologist who had been sexually involved with the victim and who had been interviewed by the police after the murder. The prosecution presented DNA evidence tying Elder to the murder scene but excluding Tan. The prosecution also presented testimony from four Florida prostitutes who described encounters with Elder during which he used violence or force to engage in sexual activity with them. The jury found Elder guilty of first degree murder.

Elder challenges the trial court's rulings pertinent to the admission of the testimony of the Florida prostitutes, and the court's denial of a mistrial after the prosecution suggested to the jury that Elder's defense was not credible because he failed to mention Tan when he was interviewed by the police.

Facts

On June 11, 1988, Janet was found dead in her apartment by a friend. She had been repeatedly stabbed with a knife. She suffered 39 wounds, including stab wounds, incised wounds, scratches, and contusions. Most of the wounds were on the front, upper portion of her body. Some of her wounds were consistent with defensive actions from trying to block the attack, and the nature of her wounds indicated there had been a struggle. Janet had scratch marks on her neck, a bruise in the muscle overlying her thyroid, and hemorrhages on her eyelids that could have been (but were not necessarily) associated with an obstruction of her airway. Toxicology testing showed she had used cocaine and heroin within the last 12 hours of her life. She had sperm in her vagina which indicated intercourse 12 hours or less before her death or at the time of her death. There were no indications of trauma to her vaginal or rectal areas. Medical examiner Glenn Wagner testified that physical trauma from sexual assaults typically occurs with children and older people, whereas sexual assaults on sexually active people frequently do not cause physical trauma, particularly if the victim submits to the assault as a defensive mechanism. Dr. Wagner stated that based on the physical evidence, rape of Janet could neither be established nor excluded.

When the police arrived at the apartment, they observed a large pool of blood by the front door. Janet's body, covered with blood, was laying on the floor between the living room and kitchen area of her apartment. Based on the pool of blood by the front door and drag marks on the carpet, it appeared Janet's body had been dragged from the front door to the area where it was found. There was blood throughout the apartment, including blood splattered on the walls and carpeting. There was blood scattered on a sheet on a bed near the front door, and a pillow on the floor was saturated with blood. A pair of jeans, a shirt, and underwear were folded on the floor next to the bed. There was a purse on the sofa, with its contents spilled out on the sofa. There was blood inside the purse on the lining and on a folio with the words "Money Express Company Inc." printed on it. In the vanity area of the apartment, there was blood on an open dresser drawer. In the bathroom, there was blood on the door, in the bathtub and sink, on a tissue on the sink, and on a washcloth on the toilet tank. There was blood on a towel on the kitchen counter. There was blood on the top step porch area outside the entrance to the apartment complex. Based on the blood in the bathroom, on the dresser drawer, inside the purse, and on the front porch, the police surmised that Janet's attacker had injured himself or herself during the attack.

The police were unable to identify a suspect for the murder until 2005, by which time DNA technology had advanced. The San Diego police department had compiled a DNA profile based on the evidence found at the scene, and from that information identified Elder, who in 2005 was arrested in Florida for an unrelated offense. After communications between Florida and California law enforcement, Elder was arrested for Janet's murder. Ronald Thill, an investigator for the San Diego District Attorney's office, interviewed Elder in Florida, and during the interview observed that Elder's right little and ring fingers were stiff and did not bend. Elder told Thill that the injury to his fingers occurred when he cut his hand in San Diego in 1988. However, Elder denied that he had been in any altercations in San Diego. When Thill showed Elder a photograph of Janet and asked if he had sex with her, Elder stated he did not know her and he never had sex with her. Thill told Elder that he was being charged with murder and that his DNA was found in the semen inside the victim. Thill asked Elder to explain the presence of his DNA, stating that he was "willing to listen to any kind of plausible explanation." When confronted with the DNA information, Elder did not change his story and admit that he had sex with the victim, nor did he claim someone else killed her while he was at the apartment. At the time of the interview, Elder had not been provided police reports containing information about Tan, and Elder did not mention Tan. While Thill was processing paperwork, Elder was left alone in the interview room with a videotape camera running. The videotape depicted Elder stating "Damn! I guess this is it!"

DNA testing showed that Elder's DNA matched the DNA of the sperm found in Janet's vagina. Elder's DNA also matched the DNA on the blood on the dresser drawer, on the kitchen towel, on the washcloth on top of the toilet tank, on the tissue behind the bathroom sink faucet, and on the front porch.^[3] DNA testing excluded Tan as a contributor to the DNA on the samples collected from the scene.

Uncharged Offense Evidence

Four witnesses from Florida (Leona K., Connie W., Barbara H., and Brenda M.) described violent or forceful sexual encounters with Elder in 2004 and 2005. The four women, like the murder victim, used illegal drugs and worked as prostitutes.

Leona testified that in July 2004, she accepted a ride from Elder in his van. Leona worked as a prostitute, but was not working when Elder gave her the ride. Elder agreed to take her to where she wanted to go, but instead took her to a different location by a library. He climbed into the back of the van and asked Leona to come back and help him lift something. Leona complied. Elder lunged at her, grabbed her by the throat, pushed her down, and told her to orally copulate him. He threatened to kill her if she did not do what he said. Leona initially resisted, but then, fearful for her life, complied. While she was doing so, she gagged, and Elder slapped her hard on the face. Afterwards, he told

her to get out of the van, and he drove away.

Connie testified that in October 2004, Elder picked her up in his van. They discussed the price for sex with her, and Elder drove to a cemetery. Elder went to the back of the van, but refused to give Connie money. Connie exited the van and started walking away. Elder, whose demeanor had changed from nice and personable to angry and aggressive, followed her. He grabbed her neck or her shirt, pushed her to her knees, drew his fist back, forced her to orally copulate him, and raped her. Elder drove away, leaving Connie behind.

Barbara testified that in November 2004, she accepted a ride from Elder in his van, telling him she wanted to go home. Barbara worked as a prostitute, but when she accepted the ride from Elder she was finished working. She told Elder where to drop her off, but Elder continued driving beyond the drop off point and refused to stop. Elder drove to a secluded, wooded area. He asked Barbara to orally copulate him. When she refused, he grabbed her at the back of her head and forced her head down to his penis. Barbara pulled back and tried to get out of the van, but he grabbed her arm and prevented her from leaving. Elder pushed her to the back of the van and started to take off his pants. Barbara stated if she was going to "do this," she wanted money first. Elder refused. When Barbara stood up to try to get away, Elder pushed her back down by her shoulders, made a choking gesture with his hands, and stated that if she did not do what he said he would choke her. Elder then raped her. Afterwards, he made Barbara get out of the van and he drove off, leaving her behind.

Brenda testified that in July 2005, Elder picked her up in his van. They discussed how much she would charge for sex, and Elder drove to a cemetery. Brenda climbed into the back of the van and asked for the money. When Elder refused, she refused to have sex. Elder lunged at her, hit her on the forehead, and tried to grab a knife that she had placed in her brassiere. His demeanor changed from kind to "demonic." He lunged at her again, started choking her, and told her she was going to do what he told her. After momentarily losing consciousness, Brenda, fearful for her life, stopped resisting and orally copulated Elder. Elder drove her back to a location near where he had picked her up and let her out of the van.

Defense

Testifying on his own behalf, Elder stated that he met Janet at the San Diego harbor. They went to her apartment, smoked cocaine, and had consensual sex. While they were lying on her bed and talking, the door to her apartment opened. An Asian man "stormed in" and confronted Janet about what she was doing. Elder tried to get dressed, but the man hit him, causing him to lose consciousness. When Elder woke up, he was laying next to the bed. There was a knife in his hand and his fingers were cut. There was blood everywhere, and Janet was laying dead on the floor. Elder tried to clean himself in the bathroom and to stop his hand from bleeding. He denied looking in Janet's purse or opening her dresser drawer. He left the apartment and discarded the knife. He did not contact the police because he did not think they would believe him.

On cross-examination, Elder acknowledged that he acquired information about Tan (an Asian man involved with Janet) when he reviewed the police reports regarding the murder, and that he did not have this information when he was questioned by Thill in Florida.

DISCUSSION

I. Denial of Continuance Following Ruling on Uncharged Offense Evidence

Elder argues the trial court abused its discretion and violated his constitutional rights by denying his request for a continuance after the court ruled the uncharged offense evidence was admissible.

Background

Trial was set for May 22, 2006. On May 11, 2006, the prosecutor filed a motion to admit uncharged offense evidence under section 1101, subdivision (b), stating the evidence would be offered in rebuttal if the defendant testified. In his opposition to the motion, defense counsel stated that he had been provided with very little discovery regarding the uncharged offense evidence, and requested that the court conduct a section 402 evidentiary hearing prior to ruling on its admissibility. The trial court agreed that a section 402 hearing was appropriate.

At a May 18 hearing, defense counsel requested a continuance to contact witnesses relevant to a third party culpability defense recently revealed by the defendant. The prosecutor opposed a continuance, stating a delay could create serious problems with witness availability. The parties and the court agreed to trail the case by addressing pretrial motions on May 22, commencing jury selection on May 24, and commencing trial testimony on May 30.

At the May 22 hearing, the prosecutor stated she had made travel arrangements for the four uncharged offense witnesses from Florida to be in California to testify on June 5. Defense counsel requested additional discovery regarding the witnesses, including information regarding their prior convictions. The prosecutor agreed that the defense was entitled to this information, noting that the witnesses' criminal history was currently being compiled.

At a May 24 hearing, the trial court made a tentative ruling (subject to an evaluation of the evidence at a section 402 hearing) that the uncharged offense evidence was admissible under section 1101, subdivision (b), and that the evidence did not need to be excluded under section 352.^[4]

At a hearing on May 25, defense counsel argued that he could not properly voir dire the jury unless the court made a definite ruling on the issue of admission of the uncharged offense evidence. Defense counsel requested that trial not commence until the section 402 hearing was held and the issue resolved. The prosecutor objected to a continuance, expressing concerns about witness availability, scheduling, and increased expenses. Although recognizing the problems created by a continuance, the trial court agreed with defense counsel and ruled trial would not commence until after the section 402 hearing, scheduled for June 5 when the Florida witnesses would be in California.

At the May 25 hearing, the trial court also stated its view that if the uncharged offense evidence was admissible under section 1101, subdivision (b), it was appropriate to admit it during the prosecution's case-in-chief rather than as rebuttal evidence; however, the court stated it would not interfere with the prosecutor's strategy. Thereafter, the prosecutor stated she would introduce the uncharged offense evidence in her case-in-chief. At the next hearing, on May 30, the prosecutor advised the court that she intended to pursue a felony-murder theory of culpability based on a theory that the killing occurred during the commission of a rape, and accordingly would move to also admit the uncharged offense evidence under section 1108.

The proceedings resumed on June 5 with the section 402 hearing on the uncharged offense evidence. Both before and after the Florida witnesses testified, defense counsel advised the court that he had not received full discovery regarding the witnesses. Defense counsel stated that rap sheets were missing for one witness, some police reports were missing, and he had not been provided the witnesses' tape recorded or written statements. The prosecutor stated that she had provided the defense with all items she had received from the Florida authorities, but that she would check if there were missing items. Thereafter, the court and the parties engaged in a lengthy discussion, and consulted with a Florida detective who was present in court, to determine what items were missing and how to acquire them. The missing discovery items were provided to defense counsel the afternoon of June 5 and the morning of June 6.

After further discussions, on June 6 the trial court ruled the uncharged offense evidence (1) was admissible under section 1108 because there was evidence from which the jury could infer a rape had occurred; (2) was admissible under section 1101, subdivision (b) to show intent, common plan, and motive; and (3) should not be excluded under section 352.

Once the trial court made its evidentiary ruling, defense counsel requested another continuance of the trial. Defense counsel argued that because the Florida sexual offense evidence did not involve convictions, it was necessary to present a defense against the women's claims. He explained that he wanted to send an investigator to Florida to search for evidence to impeach the witnesses' credibility, and that he had not been given the necessary information to perform this investigation until he received the missing discovery items. The prosecutor objected, stating defense counsel had received discovery regarding all four Florida witnesses in September 2005, and noting that defense counsel had known about the prosecutor's intention to present the evidence since its May 11, 2006 motion in limine. The trial court denied defense counsel's request for a continuance, finding defense counsel "had more than enough time" to anticipate the admission of the evidence.

Jury voir dire occurred on June 7 and 8, and testimony commenced on the afternoon of June 8. The four Florida women testified during the prosecution's case-in-chief on June 8 and 9.

Analysis

The decision whether to grant or deny a continuance rests within the sound discretion of the trial court, although that discretion may not be exercised to deprive the defense of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646; People v. Beames (2007) 40 Cal.4th 907, 920.) The party challenging the trial court's ruling bears the burden of establishing an abuse of discretion, and discretion is abused only when the court exceeds the bounds of reason. (Ibid.)

The record supports the trial court's denial of Elder's request for a continuance. According to the prosecutor's representations to the trial court, discovery regarding the Florida witnesses was provided to the defense as early as September 2005; Elder has not disputed this assertion. As of May 11, 2006, Elder knew the prosecution was seeking admission of the uncharged offense evidence. On May 18, trial was trailed until May 30. On May 22, trial was continued until after the June 5 section 402 hearing. Voir dire commenced on June 7, and trial testimony commenced on June 8. Thus, Elder knew about the possible presentation of the uncharged offense evidence approximately four weeks before the start of trial. The prosecutor's May 11 motion in limine to admit the evidence provided the names of the four Florida women and a summary of their anticipated testimony. Elder has not explained how the delayed provision of some of the discovery pertinent to these witnesses impeded his ability to conduct an investigation to uncover impeachment evidence. Because Elder was given advance notice regarding the prosecutor's intent to offer the evidence and was provided identifying information regarding the witnesses at least one month before trial, the record does not show the trial court abused its discretion in denying his request for a continuance.

Elder also argues the court abused its discretion in denying his request for a continuance because the prosecutor initially stated the uncharged offense evidence would only be presented in rebuttal, and about one week before trial the prosecutor adopted a new rape-felony-murder theory and offered the evidence under section 1108. We are not persuaded. The rape-felony-murder theory, and the admission of the evidence under section 1108, did not alter the uncharged offense evidence itselfi.e., the new theory relied on precisely the same evidence (the testimony of the four Florida women) as the section 1101, subdivision (b) theory.^[5] Further, the fact that the prosecutor decided to present the evidence in the prosecution's case-in-chief did not compel the trial court to grant a continuance given that defense counsel had about one month prior to the commencement of trial to investigate the Florida witnesses. We note that on May 18, the prosecutor stated that she estimated the prosecution's case-in-chief would last about one day (excluding defense cross-examination and without the presentation of the Florida witnesses). This is not a case where defense counsel could anticipate a lengthy prosecution case-in-chief and therefore rely on this factor to delay investigation of anticipated rebuttal witnesses.

On appeal, Elder further suggests the trial court should have granted a continuance because he needed time to review the late-disclosed discovery on the Florida women. As pointed out by the Attorney General, defense counsel did not advise the trial court that he needed a continuance to review the additional materials, but rather stated he wanted time to send an investigator to Florida. In any event, the additional materials were provided the afternoon of June 5 and the morning of June 6, and the Florida women did not commence their testimony until June 8. Thus, defense counsel had a two-day period to review the new material. The record does not indicate that the amount of additional material was so voluminous that it would require a lengthy period of time to review.

Elder has not carried his burden to show that the trial court's denial of a continuance constituted an abuse of discretion or violated his constitutional rights.

II. Admission of Uncharged Offense Evidence

Elder argues the trial court erred in admitting the uncharged offense evidence under sections 1108 and 1101, subdivision (b). He asserts the court's ruling was erroneous because (1) he was not accused of a sexual offense within the meaning of section 1108; (2) the evidence was not relevant to prove intent, motive or common plan under section 1101, subdivision (b); and (3) the evidence should have been excluded under section 352.

Evidence of criminal conduct by the defendant that is not charged in the current case is generally inadmissible to prove the defendant has a propensity to commit crimes. (People v. Catlin (2001) 26 Cal.4th 81, 145; 1101, subd. (a).) However, uncharged offense evidence is admissible under section 1101, subdivision (b) for the limited purpose of proving such matters as intent, common plan, or motive. (People v. Catlin, supra, at p. 145; People v. Kipp (1998)18 Cal.4th 349, 369.) Further, the evidence is admissible to show a propensity to commit sexual offenses if it falls within the exception set forth in section 1108 for other sexual offenses when a defendant is accused of a sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta); People v. Soto (1998) 64 Cal.App.4th 966, 983.) Even if uncharged offense evidence qualifies for admission under section 1101, subdivision (b), or section 1108, the trial court must carefully evaluate the evidence under section 352 to decide if its probative value is substantial and not outweighed by the potential for undue prejudice, jury confusion, or time consumption. (Peoplev. Kipp, supra, 18 Cal.4th at p. 371; Falsetta, supra, 21 Cal.4th at p. 917.)

Improper Admission Under Section 1108

Section 1108, subdivision (a) states: "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 inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Italics added.) "Sexual offense" is defined as crimes involving sex-related conduct proscribed by various specified penal code sections; nonconsensual contact with the defendant's or the victim's genitals or anus; or deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person. ( 1108, subd. (d)(1)(A)-(E).)

In Falsetta, supra, 21 Cal.4th at pages 913-922, the California Supreme Court rejected a constitutional challenge to section 1108 even though the statute created a rule that altered the long-established principle that uncharged offense evidence is not admissible to show a defendant has a propensity to commit crimes. In reaching its conclusion, the Falsetta court noted that section 1108 was a narrowly-defined statute that applied "only when [the defendant] is charged with committing another sex offense." (Id. at p. 916, italics omitted.)

In People v. Walker (2006) 139 Cal.App.4th 782 (Walker), the court considered whether evidence of prior sexual assaults was admissible under section 1108 in a case where the defendant was charged solely with murder. The facts of the case showed the victim was a prostitute and the defendant had sexual contact with her near the time of her death; however, the parties stipulated that there was "no medically valid way to determine whether the sexual contact" was consensual. (Id. at pp. 789-790.) The trial court admitted evidence of the defendant's prior sexual assaults on prostitutes under section 1108. (Walker, supra, at pp. 791-792, 798.) On appeal, the court held the admission of the prior sexual offense evidence under section 1108 was erroneous because the defendant was not "accused" of a sexual offense within the meaning of section 1108. (Walker, supra, at pp. 789, 798-802.)

The Walker court evaluated section 1108's definition of sexual offense pertaining to crimes that involve sexual pleasure or gratification from the infliction of death, injury or pain. ( 1108, subd. (d)(1)(E).) The court concluded this provision was not applicable merely because "the circumstances under which a violent crime has been committed suggest the defendant derived sexual pleasure or gratification from the victim's pain . . . ." (Walker, supra, 139 Cal.App.4th at p. 799, italics added.) Rather, the court determined that to be "accused" of a sexual offense within the meaning of section 1108, "sexual pleasure or gratification [must either be] a necessary element of the charged offense, [or] alleged in the information as an enhancement or aggravating factor." (Walker, supra, at p. 799, italics added.)

The Walker court reasoned that requiring the sexual component of the crime to be "an element of the charge (or applicable enhancement or aggravating factor), and not simply a circumstance of the crime's commission," was consistent with the ordinary meaning of the phrase "accused of a sexual offense" used in section 1108. (Walker, supra, 139 Cal.App.4th at p. 800.) The court explained that "[i]n ordinary usage these terms connote that the requisite sexual transgression must be an element or component of the crime itself without regard to the evidence establishing a specific violation." (Ibid.) Further, the Walker court determined that limiting section 1108 to crimes where sexual misconduct is an element of the charged offense was supported by the California Supreme Court's analysis in Falsetta where the high court found section 1108 was a constitutionally permissible deviation from the rule precluding admission of propensity evidence because the statute applied only when the defendant was charged with committing another sexual offense. (Walker, supra, at p. 801.)

We agree with Walker's analysis. Section 1108 states that to trigger its provisions, the defendant must be "accused of a sexual offense." ( 1108, subd. (a).) When interpreting a statute, "[w]e look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning." (People v. Yartz (2005) 37 Cal.4th 529, 537-538.) "If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said." (Id. at p. 538.) Under its ordinary meaning in criminal law, "accuse" means "to charge with an offense judicially or by a public process." (Merriam-Webster's Collegiate Dict. (10th ed. 2002) p. 8, col. 2.) Here, as in Walker, Elder was charged solely with murder, which does not include sexual misconduct as a necessary element or component of the charges. The prosecutor's theory that first degree murder was established under a felony-murder theory by the evidence showing that the killing occurred during the commission of a rape merely introduced a sexual offense component into the case as a factual circumstance.^[6]

Because Elder was not charged with an offense that included sexual misconduct as an element or component of the charge, he was not "accused" of a sexual offense within the meaning of section 1108. Given that section 1108 represents an expansion of the traditional rule against the use of propensity evidence, we agree with Walker that we should not deviate from the plain language of the statute absent a clear indication that the Legislature so intended. We conclude the trial court erred in admitting the uncharged offense evidence under section 1108.^[7]

However, as we shall explain, we find the error harmless.

Proper Admission Under Section 1101, Subdivision (b)

The trial court found the uncharged offense evidence was admissible under section 1101, subdivision (b) to show intent, common plan, and motive, and that the evidence should not be excluded under section 352. Uncharged offense evidence may be admissible to prove intent or common plan if the uncharged and charged conduct are sufficiently similar to support a rational inference that the defendant harbored the same intent or employed the same plan in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) The least degree of similarity between the uncharged act and the charged offense is required to prove intent; the reoccurrence of a similar result tends increasingly with each instance to negate an innocent mental state. (Id. at p. 402.) A greater degree of similarity is required to prove the existence of a common plan or design; there must be common features indicating the existence of a plan rather than a series of spontaneous acts, but the plan need not be distinctive or unusual. (Id. at pp. 402-403.) Uncharged

offense evidence may be admissible to prove motive if the evidence tends to show the defendant had a reason to commit the current crime. (See Walker, supra, 139 Cal.App.4th at pp. 804,805; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) On appeal, we review the trial court's evidentiary determinations for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 371.)

Here, the uncharged and charged offenses all shared the common features of the victims being women who worked as prostitutes, the perpetrator engaging in sexual activity with the victims, and the perpetrator's use of physical violence or force. Although the violence or force used during the uncharged offenses was less extreme than the violence used during the charged offense, the use of violence or force during the sexual encounters with women who worked as prostitutes in the uncharged offenses showed a pattern of behavior sufficient to support an inference that Elder likely had the same intent and engaged in the same plan during the charged offensei.e., to physically assault a prostitute during the course of sexual activity. Additionally, the uncharged conduct supported an inference that Elder had an animus toward prostitutes which gave him a motive to attack Janet. The record supports the trial court's finding that the evidence was admissible under section 1101, subdivision (b) to show intent, common plan, and motive.

Further, the record does not show the trial court abused its discretion in concluding the evidence should not be excluded under section 352. When evaluating uncharged misconduct evidence under section 352, the trial court considers such factors as "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . . ." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues upon the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008.)

The uncharged offense evidence showed that Elder had a pattern of meeting women who worked as prostitutes, acting friendly or helpful towards them, and then becoming assaultive in conjunction with sexual interaction. The uncharged offense evidence was highly relevant to support the prosecution's theory that Elder did not merely engage in consensual sexual intercourse with Janet as he claimed, but that at some point during their encounter he became violent and killed her. Although Janet's murder occurred about 16 to 17 years before the uncharged assaults on the Florida prostitutes, the trial court could reasonably conclude that the evidence that Elder repeatedly engaged in the same type of encounter with prostitutes created a high degree of relevancy to the charged offensewhich also involved sexual behavior with a prostitutedespite the length of time between the charged and uncharged conduct. (See People v. Branch (2001) 91 Cal.App.4th 274, 285.) Further, although the Florida offenses did not involve convictions, the Florida women testified at trial; thus Elder had an opportunity to cross-examine them to test the validity of the uncharged offense evidence. When compared to the brutal murder of Janet, the uncharged offense evidence was not so inflammatory that it might have caused the jurors to be distracted from their main task of evaluating guilt in the current case or to be tempted to convict to punish Elder for his other misconduct. The trial court reasonably exercised its discretion to admit the uncharged offense evidence under section 1101, subdivision (b).

Propensity Instruction Based on Section 1108 Was Harmless Error

Having concluded that the trial court did not abuse its discretion in admitting the uncharged offense evidence under section 1101, subdivision (b), the only potential for prejudice arising from the trial court's erroneous admission of the evidence under section 1108 arises from the court's propensity instruction to the jury based on section 1108. In addition to being instructed that it could consider the evidence to show intent, common plan, and motive, the jury was instructed that it could consider the evidence to determine that "the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit murder during the commission of a forcible rape as charged here."

We conclude the error was harmless even assuming we apply the harmless beyond a reasonable doubt standard for federal constitutional error. (See Walker, supra, 139 Cal.App.4th at pp. 809-810.)Under this standard, the People must show there is no reasonable possibility the error affected the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Lewis (2006)139 Cal.App.4th 874, 885, 887.) " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (People v. Neal, supra, 31 Cal.4th at p. 86.)

Here, the evidence that Elder murdered Janet was strong. Blood containing DNA consistent with Elder's DNA was found throughout the crime scene, whereas Tan was excluded as a DNA contributor in the tested samples. Elder did not describe a man entering the apartment until after he had seen the police reports referring to Tan, and he made a statement suggesting he knew he had been caught when he was left alone in the interview room after being questioned about the murder. Significantly, this is not a case where the jury was presented with uncharged offense evidence that it should not have known about. The uncharged offense evidence supported an inference that Elder had an intent, plan, and motive to physically assault Janet, not merely to engage in consensual sexual activity with her. Given the strength of the evidence of guilt and the fact that the jury could properly consider the uncharged offense evidence to show intent, plan, and motive, there is no reasonable possibility the verdict was affected by the fact that the jury was told it could use the evidence to infer sexual offense propensity. (See Walker, supra, 139 Cal.App.4th at p. 810.)

III. Denial of Mistrial Based on Doyle Violation

Elder argues the trial court erred in denying his request for a mistrial based on the prosecutor's reference at trial to his post-Miranda silence in violation of the Doyle rule. (Doyle v. Ohio (1976)426 U.S. 610.)

Background

In opening statements to the jury, the prosecutor stated that when district attorney investigator Thill showed Elder a picture of the victim, at a time when Elder had not yet been given access to police reports, Elder told the detective he had never seen the victim and did not have sex with her. The prosecutor stated to the jury that when Thill confronted Elder with the fact that semen containing his DNA was found inside the victim, Elder responded: "I have nothing to say. I don't want to talk to you." The prosecutor commented: "That was what [Elder] said then before he got the reports." Defense counsel objected and moved to strike the latter portion of the prosecutor's statement. The trial court sustained the objection and granted the motion to strike.

During a sidebar conference, defense counsel moved for a mistrial based on the prosecutor's statement to the jury referencing Elder's assertion of his right to remain silent. Defense counsel stated his view that to admonish the jury not to consider the statement would call more attention to it. The court agreed that an admonishment would just place more emphasis on the statement and stated the mistrial issue was "a close question." However, the court denied the mistrial request.

Thereafter, during the prosecution's case-in-chief, Thill testified that during his interview with Elder, Elder stated that he did not know Janet and that he never had sex with her. Thill testified that at the time of the interview Elder had not been provided with the police reports containing information about Tan, and during the interview Elder did not mention Tan. Further, when Elder was confronted with the fact that semen containing his DNA was found inside the victim, Elder did not change his story and admit that he had sex with her or claim that someone else killed her.

During the defense case, Elder acknowledged on cross-examination that when he was interviewed by Thill he did not have the police reports containing information on Tan. He acknowledged that after the interview he obtained and reviewed the police reports, and his description of the man who entered the apartment matched the details about Tan provided in the reports. The prosecutor also questioned Elder about whether he was lying when he told the police he did not remember Janet when they showed him her picture.

In closing arguments to the jury at the conclusion of trial, the prosecutor noted that Elder had conceded during his testimony that the information he had provided about Tan was contained within the police reports. The prosecutor then argued: "It's the old wait and see what the police know, wait and see all the evidence, and then build your story around that."

Defense counsel did not raise an objection nor renew his mistrial request based on the prosecutor's witness examination and closing arguments on the issue of Elder's failure to mention his third party culpability defense when he was interviewed by Thill.

Governing Law

We review a trial court's denial of a mistrial motion under the deferential abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953.) In Doyle v. Ohio, supra,426 U.S. 610 the United States Supreme Court held that it is a violation of due process for the prosecution to use a defendant's silence following Miranda warnings to impeach the defendant's subsequent explanation at trial. (Doyle, supra, 426 U.S. at p. 619.) The Doyle rule is premised on the recognition that it is fundamentally unfair to " 'permit the prosecution during the trial to call attention to [the defendant's] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.' " (Ibid.)

To establish Doyle error, the defendant must show (1) the prosecution inappropriately used the defendant's post-Miranda silence for impeachment purposes, and (2) the trial court permitted the prosecution to engage in such inquiry or argument. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448; People v. Evans (1994) 25 Cal.App.4th 358, 368.) If the trial court sustains a defense objection to an improper reference to the defendant's silence and instructs that the reference be disregarded and/or stricken from the record, "there may not necessarily be a Doyle violation because the government has not been permitted to 'use' the defendant's silence against him." (Ellen v. Brady (1st Cir. 2007) 475 F.3d 5, 11.) In Greer v. Miller (1987) 483 U.S. 756, the United States Supreme Court concluded that although the prosecutor engaged in misconduct, there was no error of constitutional dimension under Doyle because "the trial court . . . did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon [the defendant's] postarrest silence. No further questioning or argument with respect to [the defendant's] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained. [Fn. omitted.] Unlike the prosecutor in Doyle, the prosecutor in this case was not 'allowed to undertake impeachment on,' or 'permit[ted] . . . to call attention to' [the defendant's silence]." (Greer, supra, 483 U.S. at pp. 764-765, some brackets in original.)

Additionally, Doyle error does not occur if a Mirandized defendant freely elects to speak to the police, and then at trial the prosecutor refers to the defendant's statements (including the failure to provide information) as prior inconsistent statements to impeach the defendant's trial testimony. In Anderson v. Charles (1980) 447 U.S. 404, the United States Supreme Court found the Doyle rule was not violated when the prosecutor questioned the defendant (who voluntarily spoke to the police) about his failure to provide the police with factual information that he disclosed for the first time at trial. (Id. at pp. 405-406, 408.) The Anderson court explained: "Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. . . . [] . . . [] [The defendant's] two inconsistent descriptions of events may be said to involve 'silence' insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of 'silence,' and we find no reason to adopt such a view in this case." (Anderson, supra, 447 U.S. at pp. 408-409; accord People v. Poon (1981) 125 Cal.App.3d 55, 84-85, overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292.)

Analysis

Elder argues that the prosecutor committed Doyle error when she stated in opening statements that Elder told the police he did not want to talk to them, and that the Doyle error was reinforced when the prosecutor stated during closing arguments that he adopted a "wait and see" strategy until he saw what information the police had.

During opening statements, the trial court did not permit use of Elder's post-Miranda silence to impeach his defense. The trial court promptly sustained the defense objection to the prosecutor's statement about Elder's refusal to continue speaking to the police, and struck the statement from the record. Thus, the jury knew that any refusal to continue the police interview was not relevant to its evaluation of the case. Based on the trial court's ruling, the government was not permitted to use Elder's silence against him, and the prosecutor's single statement did not rise to the level of a constitutional violation under the Doyle rule.

We also conclude there was no Doyle violation arising from the prosecutor's statements during closing argument. In closing argument, the prosecutor did not mention Elder's invocation of his right to remain silent during the police interview. Rather, the prosecutor stated Elder used a "wait and see" strategy to "build [his] story," depending on what information the police had. Likewise, during the prosecutor's examination of Thill and cross-examination of Elder, the prosecutor asked no questions about Elder's invocation of his right to remain silent during the police interview. Rather, the prosecutor focused her questions on Elder's false statement to the police that he did not know the victim, his failure to change his story when confronted with the DNA evidence, his lack of knowledge about Tan at the time of the police interview, his failure to mention Tan during the police interview, and his later acquisition of information about Tan before trial. Under these circumstances, we are satisfied the jury understood the prosecutor's closing argument statements about the "wait and see" strategy to be a reference to the inconsistency between Elder's pretrial statement that he did not know the victim and did not have sex with her, and his trial testimony that he did have sex with the victim but a third party entered the apartment and knocked him unconscious. Although the prosecutor's argument referenced Elder's omission of facts when interviewed by the police, this was permissible comment in the context of the defendant's voluntary statements to the police that were inconsistent with his trial testimony. (Anderson v. Charles, supra, 447 U.S. at pp. 408-409.)

Because no Doyle error occurred, the trial court did not abuse its discretion or violate Elder's constitutional rights by denying his mistrial motion.^[8]

IV. Ex Post FactoRestitution Fine

When sentencing Elder, the trial court imposed a $10,000 parole revocation restitution fine, suspending the fine unless parole is revoked. (Pen. Code, 1202.45.) The Attorney General properly concedes that imposition of this fine violated the constitutional prohibition against ex post facto laws. (People v. Callejas (2000) 85 Cal.App.4th 667, 669-670.) The Penal Code provision authorizing this fine was enacted in 1995, whereas the murder was committed in 1988. (Stats. 1995, ch. 313,  6, p. 1758.) Accordingly, this fine must be removed from the judgment.

DISPOSITION

The restitution fine under Penal Code section 1202.45 is stricken from the judgment. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and transmit the abstract to the Department of Corrections and Rehabilitation.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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^[1] Subsequent statutory references are to the Evidence Code unless otherwise specified.

^[2]Mirandav. Arizona (1966) 384 U.S. 436.

^[3] Based on the San Diego police department's protocol, the prosecutor's forensics expert characterized the DNA samples as being "consistent" with Elder's DNA rather than creating a "match." The DNA consistency calculations were based on population frequencies, which calculated the odds that a person randomly selected from the population would by chance have the same DNA profile. The DNA population frequency for the sperm in the vagina was one in 82 quadrillion. Population frequencies for the blood samples included: one in 7.9 trillion (dresser drawer); one in 3.4 trillion and one in 360 million (two spots on kitchen towel); one in 540 quintillion (washcloth on toilet); one in 1.2 quintillion (tissue on sink); and one in 1.7 quadrillion (front porch). Elder's DNA was also consistent with DNA found on the carpet and inside the purse, although with lesser population frequencies: i.e., one in 56,000 (carpet); one in 82 (purse folio); and one in 10 (purse lining).

^[4] At this hearing, the court also questioned why the prosecutor wanted to introduce the evidence in rebuttal rather than in its case-in-chief. In response, the prosecutor did not explain why she was not offering the evidence during the prosecution's case-in-chief, but merely stated that the uncharged sex offense evidence was relevant to show that Elder had a pattern of targeting and attacking prostitutes, which would rebut his testimony that he was merely having a consensual sexual encounter with Janet when a third party arrived at the scene and killed her. Additionally, the prosecutor responded to the defense argument that the charged and uncharged offenses were dissimilar because the charged offense did not involve rape. The prosecutor stated that rape was not alleged in the current case because the physical evidence did not substantiate it. However, the prosecutor emphasized that the prosecution did not concede that rape did not occur, noting that Janet may have quit fighting in an attempt to save her life, thus accounting for the lack of physical trauma to her vaginal area.

^[5] As pointed out by Elder, statutory law provides that at least 30 days prior to trial the prosecution shall disclose to the defendant any uncharged sex offense evidence that it intends to offer under section 1108, including witness statements or a summary of the substance of the witnesses' anticipated testimony. ( 1108, subd. (b); Pen. Code,  1054.7.) Although Elder did not receive 30-days' notice under section 1108, the trial court could reasonably conclude a continuance was not required because he received approximately one month's notice under section 1101, subdivision (b) involving the same evidence.

^[6] After filing a charging document alleging first degree murder, the prosecutor may rely on a felony-murder theory to prove the charge as long as the defendant has adequate notice of the theory to satisfy due process. (People v. Davis (1995) 10 Cal.4th 463, 513- 514; People v. Kipp (2001) 26 Cal.4th 1100, 1131.) The prosecution is not required to charge felony murder, nor need it charge the underlying felony. (Davis, supra, at p. 514.)

^[7] Given our holding that the uncharged sexual offense evidence was inadmissible under section 1108 because Elder was not accused of a sex offense, we need not evaluate Elder's contention that there was insufficient evidence that he raped Janet to show the predicate sexual offense under section 1108. Additionally, Elder argues that section 1108 is unconstitutional. Recognizing that the California Supreme Court in Falsetta, supra, 21 Cal.4th 903, found the statute constitutional, he raises this contention solely for purposes of preserving further review. Based on Falsetta, we summarily reject the argument.

^[8] Given our holding, we need not discuss the Attorney General's forfeiture argument.