P. v. Harris

P. v. Harris

Filed 5/23/08 P. v. Harris 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

INTRODUCTION

A jury found Micah Armand Harris guilty of torture (Pen. Code,  206)[1] (count 1); mayhem ( 203) (count 2); assault with an intent to commit certain specified sexual offenses ( 220) (count 3); and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) (count 5). With respect to count 5, the jury found that Harris personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The jury acquitted Harris of attempted forcible rape ( 261, subd. (a)(2)).

On count 1, the trial court sentenced Harris to life in prison with the possibility of parole. On count 3, the court sentenced Harris to a term of four years in prison, to be served concurrently with the sentence on count 1. The court stayed imposition of sentence on counts 2 and 5, and imposition of the great bodily injury enhancement on count 5, pursuant to section 654.

On appeal, Harris claims there is insufficient evidence to support his conviction for torture. Harris also claims the trial court erred in admitting evidence of his commission of two uncharged sexual offenses, and the court violated his constitutional right to confrontation by restricting his cross-examination of the victim of one of the uncharged sexual offenses. He also claims the trial court erred in denying him probation. We affirm the judgment

FACTUAL AND PROCEDURAL BACKGROUND

On the night of March 9, 2006, Jacqueline T.[2] drove her car to her friend Michelle's apartment in Mission Valley. Jacqueline and several other women ─ Tammi, Michelle, Phoebe, and Patty ─ planned to go out together that evening. Patty drove the group in her car to a restaurant in Mission Valley. Jacqueline left her car parked across the street from Michelle's apartment building. From the restaurant, the group took a

taxicab to the Sidebar nightclub in downtown San Diego.

That same evening, Harris was at the Sidebar nightclub, sitting at a VIP table with Kassim Osgood and Osgood's cousin, Wade White. At approximately 11:15 p.m., Jacqueline, along with her friends, joined Harris, Osgood, and White at their table. Jacqueline socialized and danced with Harris and on at least two occasions he kissed her.

At approximately 1:45 a.m., shortly after the bar closed, Osgood offered a ride to the remaining women in Jacqueline's group. Jacqueline believed that Osgood would drive them back to Michelle's apartment in Mission Valley. As Jacqueline was standing next to Osgood's car, Harris told her to come with him instead, since they would all be going to the same place. Harris took Jacqueline by the wrist and led her to his truck.

Once in the truck, Harris pulled down Jacqueline's shirt and kissed her chest. Jacqueline was surprised by Harris's action and told him to, "Back off," and told him to drive toward Mission Valley. Along the way, Harris told Jacqueline he was an Olympic hurdler. He gave her a card that bore his photograph and contained promotional information about him.

Once Harris and Jacqueline arrived in Mission Valley, Harris parked his truck across the street from Jacqueline's car. Jacqueline was talking to Tammi on her cell phone as she was getting out of Harris's truck. Jacqueline learned that Tammi and Jacqueline's other friends had gone with Osgood to a party in Chula Vista, and that Tammi was feeling uncomfortable. As Jacqueline was opening the door to her car, Harris took her keys away from her and started to walk back to his truck. Harris told Jacqueline to stay with him and said he would take her wherever she wanted to go. Jacqueline followed Harris, took her keys back from him, and walked back to her car.

At about 3:00 a.m., Jacqueline got into the driver's seat of her car, put the key in the ignition, and spoke again with Tammi on her cell phone. As Jacqueline was talking with Tammi, Harris stood outside her open car door. He appeared irritated. Within Harris's earshot, Jacqueline told Tammi that Harris would not leave her alone and she did not know what to do. Without warning, Harris punched Jacqueline on the left side of her face. She screamed for help. Tammi briefly heard Jacqueline screaming over her cell phone before the phone went dead. Harris continued to punch Jacqueline in the face. Jacqueline estimated Harris punched her between five and 10 more times while she was sitting in the front seat of her car. After Harris stopped punching Jacqueline, he grabbed her cell phone.

Harris angrily told Jacqueline to "get in the back seat of the fucking car." Jacqueline complied. Harris yelled at Jacqueline, "You got blood on my fucking jacket, you bitch." Harris then got in the back seat and punched Jacqueline in the face a couple more times. Harris attempted to pin Jacqueline down and tried to put his hand down her pants. He forced a fingertip down the front of her jeans. Jacqueline feared Harris was going to rape her. She told him to stop and continued to struggle with him.

Jacqueline was able to get out of the car and run toward Michelle'sapartment complex when Harris became momentarily distracted by a dinging sound caused by the key remaining in the car's ignition switch. As Jacqueline was running, she was screaming, "Help me." Harris followed Jacqueline as she ran to the patio of an apartment and started to climb over the railing. Harris caught up with her and, holding her by the back of her neck, slammed her head against a metal railing, knocking out a tooth and breaking a bone in her jaw.

Melvin Toledo, who lived in the complex, was awakened by Jacqueline's screams. He went to his window and saw Harris with his arm wrapped around Jacqueline's neck, and his hand over her mouth. Toledo saw the two struggle. He yelled at Harris to leave Jacqueline alone.

Betty McLeod, another resident of the apartment complex, was also awakened by Jacqueline's screams. McLeod went outside her apartment and saw Harris bent over, with his arms hanging down. McLeod could not see Jacqueline, but could hear her screaming. McLeod shouted, "Where's the woman?" Harris yelled back, "Right here." Harris then said, "Can you help her?" McLeod thought this was "an odd, scary, remark," under the circumstances. Harris appeared "very calm." McLeod yelled out that she was going to call the police. Harris responded something to the effect of, "Yes, please call the police." McLeod ran into her apartment and called 911.

Toledo continued to watch the struggle. He saw Jacqueline open a sliding door and enter an apartment. She slammed the door shut and locked it. Toledo watched Harris nonchalantly walk away. Toledo could still hear Jacqueline screaming from inside the apartment.

At approximately 3:30 a.m., San Diego Police Officer Bryon Barmer responded to the apartment into which Jacqueline had fled. Officer Barmer found Jacqueline in the apartment, hysterical and covered in blood. Her face was very swollen, and her left eye was swollen almost shut. Her upper lip was split and bleeding profusely. When asked to compare Jacqueline's injuries to those he had seen after other beatings, Officer Barmer testified this was the second worst beating he had seen in his 20 years in law enforcement.

Paramedic Mary Cavanaugh arrived at the scene at 3:44 a.m. Jacqueline was bleeding from the mouth, and her face had obvious deformities consistent with facial bone fractures. Cavanaugh was concerned Jacqueline might suffocate because of the restriction of her airway caused by swelling. Cavanaugh designated Jacqueline a major trauma patient and transported her to the hospital.

Dr. Joseph Bellezzo testified regarding Jacqueline's injuries and the treatment she received at the hospital. Dr. Bellezzo noted Jacqueline suffered a six centimeter laceration to her lip and the inside of her mouth, two nasal fractures, a cheek bone fracture, a hematoma to her ear, blunt trauma to her eyeball, dental trauma, bruising to her neck, and bruising and swelling throughout her face. Dr. Bellezzo opined Jacqueline's injuries were caused by a blunt force and that she had likely suffered at least three separate blows. Dr. Bellezzo explained the blunt force trauma to Jacqueline's mouth must have been particularly severe to have caused bone loss in her jaw above a missing tooth.

Jacqueline testified regarding the pain she had suffered, her injuries, and her medical treatment. She described the pain from Harris's initial blow as "the worst pain I've ever felt in my life." Jacqueline described the numerous procedures she had undergone to replace the tooth she lost, and noted that she had to have a cheek implant to repair the damage from her fractured cheek bone. Jacqueline also explained she had suffered six other chipped teeth, a severe laceration on her lip, severe swelling to her eyes, fractured bones in her nose, soreness in her throat, and bruising at various other locations on her head. Jacqueline explained that after the attack, she initially had no feeling in her lip, and said the doctors had feared she might have suffered nerve damage. Although her condition in this regard had improved, it was still too early to know to what extent she would recover.

The People presented photographs of Jacqueline's injuries taken shortly after the beating, and at various times thereafter as her injuries started to heal.

Uncharged Offenses

Jacqueline P.

Jacqueline P. met Harris at a track and field convention in late November or early December 2005. She talked to him throughout the convention. After the awards dinner, Harris asked if she had any plans for the evening. When she said she was trying to call her friend Stacy D. to see if she was interested in going out for a drink, Harris told her he was going to meet some friends at a nearby bar and suggested her friend could meet her there. Jacqueline P. agreed. They talked for several hours in the bar. Neither Stacy nor any of Harris's friends arrived at the bar.

After two or three hours, Jacqueline P. said it was late and she needed to go back to the hotel. On the way back to the hotel, Harris put his arm around her and several times suggested she come up to his hotel room, at least for a few minutes to see some photos he had of athletes they had talked about earlier in the evening. She went to his room and sat on the bed while he sat next to her showing her photos on his digital camera. He then grabbed her hand and started massaging it. She pulled her hand away. He knelt on the bed behind her, started massaging her shoulders and then pressed his whole body against her back. She felt his penis against her back. She stood up, said it was late and that she "better go." She grabbed her purse and left.

The next day, during a break in the convention, she told Harris she had not enjoyed what had had happened the previous evening and it had made her feel uncomfortable. That night she went with a female friend to the same bar she had gone to with Harris. Harris was also there with a friend. They talked. At one point, Harris said he had found Jacqueline P.'s wallet on the floor and handed it to her. She put it in her purse. She left the bar at closing time with her friend and another athlete.

Shortly after she returned to the hotel room she shared with another athlete, she changed into pajamas and fell asleep. She was "pretty drunk." She was awakened by her roommate talking on the phone to Harris who claimed he had left his wallet in her purse. He said he was coming up to retrieve the wallet. Jacqueline P. got up, left the door open and returned to bed. She heard Harris in the room. She told him her purse was on the table at the end of the bed and he could look for his wallet. Instead, he got into bed next to her. She told him, "I don't think it's a good idea to stay here," and hoped he would get up and leave. He, however, lifted up her top and started kissing her back. She told him to leave. He got up and used the bathroom. She heard a door close, assumed he had left, and fell asleep.

She was later awakened when she was lying on her side and felt Harris thrusting his penis against her vagina. The sweatpants and underwear she was wearing had been pulled down below her buttocks. She rolled over and asked him what he was doing. Harris answered that she had grabbed him. She pointed out that she had been asleep and asked him to step outside to talk. They talked for five to 10 minutes in the hallway. She was angry with him and ended the conversation by saying she never wanted to speak or have contact with him again. She told some of her friends what had happened but did not contact the police because the contact was so brief and she did not know if it was illegal. However, after she learned of Harris's arrest in this case and had talked with her friends, she contacted the police to tell them of her experience with Harris.

Monique M.

On her birthday in February 2005, Monique went out with her friend Billie and some other female friends. Eventually, Billie drove the group to the Sidebar nightclub in downtown San Diego. During the evening, people were buying drinks for Monique because it was her birthday. By closing time, she was feeling ill and was experiencing problems with her hearing and vision. An antidepressant she had recently started taking may have been a contributing factor. Her memory of the rest of the evening was unclear; she could only remember bits and pieces.

She remembered standing by the exit to the bar, waiting for her friends. Harris came up to her, offering to help. She remembered walking to his car, thinking he was going to drive around to the front of the bar where her friend's car was located. She next remembered being in his car and him groping her chest as they were getting on a freeway. She asked him what he was doing. He said she had asked him to take her home. She tried to give him directions, but she was having difficulty seeing. The next thing she remembered was being on her knees crawling on the street in a housing development and thinking she would walk home. Harris told her not to go into the street because it was dangerous and complained about the rain "messing up" his jacket. She recalled then being inside a house, sitting on the toilet and seeing Harris, who was wearing only his boxers, walk by with a bundle of sheets. Then, she remembered being naked with him in a shower and he was shampooing her hair.

Her next memory was lying on her back on a makeshift bed of blankets on the floor wearing a shirt and boxers that did not belong to her. Harris was fondling her vagina. When she turned toward him, he pulled his hand away. She told him she did not know who he was, felt uncomfortable, and asked to use his phone. She called her friend Billie who was "freaking out," and asked where Monique was and where she had been.

Harris drove her to Billie's car. As they were driving, Monique asked Harris who he was and what had happened. He told her his first name, said he had taken care of her and that she had thrown up five to six times, including once in his face. In response to her questions, he told her they did have sex and that he had not used any protection.

When she returned to her family, she learned her grandfather had filed a missing persons report on her. At his urging, she called the police to inform them she was okay; she did not tell them what had happened. After seeing a news report about Harris in this case, Monique spoke to the police and told them about her experience with him.

Defense

Harris admitted punching Jacqueline in the face and ear. He denied he had punched her in the mouth, and also denied he punched her 10 to 15 times. He also denied having forced Jacqueline's face onto a railing. Harris denied ever having attempted to put his hand down Jacqueline's pants. He testified Jacqueline fell while she was trying to flee from the car, and she hit her mouth on a railing while she was trying to get away from him.

Harris presented evidence that Jacqueline was intoxicated on the night of the charged offense.

Harris denied that he had committed the uncharged offenses. He claimed that the sexual contact he had with Monique was consensual, and denied he attempted to have sexual intercourse with Jacqueline P. while she was asleep.

Various witnesses testified to Harris's nonviolent and truthful character.

DISCUSSION

I

Sufficiency of Evidence

Harris claims there is insufficient evidence to support his conviction for torture. He asserts the evidence is insufficient to prove he specifically intended to cause cruel or extreme pain.

Section 206 defines the crime of torture as: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [] The crime of torture does not require any proof that the victim suffered pain." The statute does not require premeditation and deliberation or require an intent to inflict prolonged pain. (People v. Hale (1999) 75 Cal.App.4th 94, 107-108.) It does not require that the defendant act calmly rather than out of an explosion of anger. (People v. Massie (2006) 142 Cal.App.4th 365, 375.)

Section 206 uses commonly understood words and is not ambiguous. (People v. Misa (2006) 140 Cal.App.4th 837, 844 [rejecting void for vagueness claim and that an ordinary person could not understand what conduct is prohibited by section 206]; People v. Vital (1996) 45 Cal.App.4th 441, 444-445 [proper to instruct the jury in the language of section 206]; People v. Barrera (1993) 14 Cal.App.4th 1555, 1572 [proper to instruct the jury in the language of section 206 because "the terms used . . . are of such common usage that they are presumed to be within the understanding of reasonable jurors"].) In particular, the phrase in section 206 "with the intent to cause cruel or extreme pain" is not ambiguous and uses commonly understood words. A reasonable jury can understand the words and decide whether the defendant had an intent to inflict cruel or extreme pain. The courts may not ignore the actual words of a statute in an attempt to vindicate its perception of the Legislature's or voters' intent in enacting a law. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993.)

Establishing that the evidence is insufficient to support a conviction is difficult. Such claims rarely succeed. It is an extremely rare event for twelve jurors to unanimously agree to find a defendant guilty despite a complete lack of evidence to support their verdict. Additionally, such claims rarely succeed because of the deferential standard of review. The appellate court is not free to reweigh the evidence but must accept as true all evidence favorable to the judgment and reject all conflicting evidence as not worthy of belief. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Tripp (2007) 151 Cal.App.4th 951, 955.) The appellate court must indulge all reasonable inferences that favor the judgment. (People v. Mays (2007) 148 Cal.App.4th 13, 33.) The test on appeal is not whether we believe the evidence established the defendant's guilt beyond a reasonable doubt, but whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Davis (1995) 10 Cal.4th 463, 509; People v. Holt (1997) 15 Cal.4th 619, 668.) To succeed on an insufficiency of the evidence claim there must be no credible evidence that any reasonable jury could believe. Stated otherwise, a reversal based on insufficiency of the evidence is merited only when, as a matter of law, the evidence cannot support the verdict.

Insufficiency of the evidence claims directed to the intent element are particularly difficult to establish. "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence." (People v. Pre (2004) 117 Cal.App.4th 413, 420. (Pre).) An explosion of anger may or may not show an intent to torture. As the court explained in People v. Massie, supra, 142 Cal.App.4th 365, 372: "The role that anger may have played in a criminal attack is a matter for the jury to determine. In many circumstances, the jury may determine that anger was the reason that the accused formed the intent to inflict injury. There is nothing logically or legally inconsistent in such a determination. On the other hand, if the jury believes the accused acted in such a mindless rage that thought processes were impossible, then it may conclude he did not harbor the intent to inflict injury. The proper inferences to be drawn are the province of the jury and not an appellate court."

Here, Harris punched Jacqueline without warning as she sat in her car talking on the phone. It was the worst pain she had ever felt. She was shocked, scared, and was bleeding. She was obviously injured. Yet he punched again and again on her neck and face while making no demands and while she was screaming for help. She had done nothing to provoke those further blows. She had not made any further statements about him. When Harris demanded she move to the back seat, she complied and yet he hit her twice more in the face and yelled at her about getting blood on his jacket. When Jacqueline fled from the car, Harris pursued her. When he caught up to her, he held her by the back of the neck and slammed her face against a railing so hard it knocked out a tooth and broke bone in her jaw. An eyewitness described Harris as appearing calm. He nonchalantly walked away. Jacqueline, on the other hand, was hysterical, screaming, and bleeding profusely. Even after she was inside the apartment and Harris had left, she feared Harris was still after her.

This was no momentary assault. It occurred over a period of about thirty minutes. The attack started at about 3:00 a.m., while Jacqueline was talking on her cell phone with Tammi. The attack ended because Jacqueline's screams were so loud and persistent that residents of the apartment complex were awakened and called the police. The 911 call to the police was made at 3:29 a.m.

This was an extremely vicious beating. Jacqueline's injuries were numerous, severe and obvious. The police officer who first responded to the scene described Jacqueline's beating as the second worst he had seen in his 20 years as a police officer. The paramedic who responded to the scene immediately identified Jacqueline as a major trauma patient who needed to be transported to the hospital. Her eyes were swollen and her left eye was swollen shut. Her ear was bruised and swollen. At trial, she explained she "was so swollen everywhere that [she] pretty much didn't have a neck on [one] side." She had a lump on the back of the head and a bald spot where the lump was located. She had lacerations inside her mouth along her gum line and on the outside of her lip, both of which required stitches. She had two nasal fractures. The cheek bone fracture was so severe, she required an implant in her cheek. Her lost front tooth had been ripped out so violently that she lost bone in her upper jaw above the tooth. To repair that damage involved multiple procedures, including putting in a screw. Six other teeth were damaged and had to be repaired. At the time of trial, she had not regained all the feeling in her lips and there was a risk the nerve damage would be permanent.

A reasonable jury could conclude Harris did not merely lash out in anger in response to Jacqueline's complaint about him to her friend, but had an intent to inflict cruel pain. He did not hit her only once or twice, he hit her numerous times. He continued to hit Jacqueline even after she was obviously injured, defenseless, and frightened. The blows were not randomly struck; they were directed to her face. The jury could conclude the blows were designed to cause damage and disfigurement and they did so. There were breaks between his attacks. He hit her first in the front seat, then in the back seat and then by the railing at the apartment building. He had time to reflect between those attacks. After the initial attack, he was calm enough to complain about Jacqueline getting blood on his jacket. During the third attack at the railing, he was composed enough to interact with McLeod, who described his demeanor as very calm. He acted nonchalantly as he walked away. A reasonable jury could infer that even if Harris's initial blow was a visceral response to Jacqueline's insulting comments, his continued attacks were not blind rages but deliberate acts done with the specific intent to inflict pain on Jacqueline for the purpose of revenge for her insulting remark or some other sadistic purpose. The jurors could infer that he inflicted pain on her because it gave him pleasure to do so.

The fact that he did not use a weapon is immaterial as nothing in section 206 requires the use of a weapon.[3] Nor does the fact that this attack did not involve a very lengthy period preclude a finding Harris intended to inflict extreme pain. "The intent required for a conviction of the offense contained in section 206 . . . does not require . . . the defendant have an intent to inflict prolonged pain." (Pre, supra, 117

Cal.App.4th at p. 420; see also People v. Hale, supra, 75 Cal.App.4th 94, 107 [rejecting defendant's argument that the "brevity of the attack preclude[d] his harboring an intent to torture"]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204.) Moreover, in this case, Harris engaged in repeated attacks on Jacqueline over a period of about half an hour. The duration of the attack was not limited by Harris's decision to stop beating Jacqueline, but by the fact her screams drew the assistance of other people.

Finally, as we made clear in Pre, supra, 117 Cal.App.4th at page 423, a conviction of section 206 will not be reversed based on the fact that defendants in other torture cases engaged in more extreme conduct or that more extreme conduct occurred in People v. Singleton (1980) 112 Cal.App.3d 418, the case which provided a motivation for passing section 206. Had the voters intended to require extreme injuries, such as chopping off arms, as in the Singleton case, they could have so provided, but they did not. Section 206 does not require the infliction of any particular injury. Indeed, it does not even require proof that the victim suffered pain.

In sum, there was sufficient evidence to support a conclusion by a jury that Harris committed the crime of torture.

II

Admission of Prior Uncharged Offenses

Harris also claims the trial court erred in admitting evidence of his commission of two uncharged sex offenses.

Prior to trial, the People filed a motion in limine seeking the court's authorization to introduce evidence of Harris's commission of two uncharged sexual offenses, pursuant to Evidence Code sections 1108 and 1101, subdivision (b). Harris filed an opposition to the motion, arguing the introduction of the evidence pursuant to Evidence Code section 1108 would violate his constitutional rights to due process and equal protection. Harris also argued the trial court was required to exclude the evidence pursuant to Evidence Code section 352. Harris later filed a supplemental brief in which he argued the evidence of the uncharged offenses was not admissible pursuant to Evidence Code section 1101, subdivision (b).

The trial court held a hearing pursuant to Evidence Code section 402 for the purpose of determining the admissibility of the evidence.[4] At the hearing, the People presented the testimony of Jacqueline P. and Monique regarding Harris's commission of uncharged sexual offenses against them. Their trial testimony was much the same.

After Jacqueline P. and Monique testified, the trial court heard argument from both parties regarding the admissibility of evidence of the uncharged offenses. In its ruling regarding the admissibility of the evidence, the court outlined the relevant statutes and applicable case law governing the admission of the evidence. The court also discussed whether it should exclude the evidence pursuant to Evidence Code section 352, and examined the factors relevant to this analysis as articulated by the Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 916.

With respect to the nature and relevance of the evidence, the trial court noted that

while the uncharged offenses were not of exactly the same nature as the charged sexual offenses, they shared similarities. The trial court noted that all three offenses involved Harris attempting to touch intoxicated women without their consent. The court also noted that in each case, there was at least some evidence that Harris had employed a ruse to isolate each of the victims.

As to the timing of the uncharged offenses, the court observed that both of the uncharged offenses occurred within approximately 13 months of the charged offense, which was far less remote than in other cases in which uncharged sexual offense evidence had been admitted.

The trial court also considered the certainty of the commission of the uncharged offenses. The court noted that it had evaluated the credibility of the witnesses who testified at the Evidence Code section 402 hearing and found that "there's nothing which would favor excluding [the evidence based on] that factor in the [section] 1108 admissibility issue."

The trial court further considered the likelihood that introduction of evidence pertaining to the uncharged offenses would confuse, distract, or mislead the jurors from the main inquiry, whether Harris was guilty of the charged offenses. In this regard, the court noted that the fact that Harris had not been convicted of the uncharged offenses increased the possibility for confusion and the danger the jury may wish to punish Harris for the uncharged offenses. However, the trial court remarked the possibility of confusion could be reduced by appropriate limiting instructions.

With respect to the similarity of the prior incidents to the charged offenses, the court noted that while Harris had not used violence in the uncharged offenses, he had waited until the victims were unable to resist his sexual advances. The court concluded the uncharged offenses were not so dissimilar as to warrant exclusion.

As to the likely prejudicial impact the evidence of the uncharged offenses would have on the jurors, the trial court opined the incident with Jacqueline P. was less inflammatory than the charged offense. The court stated that while the incident with Monique was in one respect more inflammatory than the charged offense because of the nonconsensual sex act, the charged offense was also extremely inflammatory, in view of the level of violence Harris employed.

The court stated the fact Harris would have to defend against the uncharged offenses weighed against admitting the evidence. The trial court also noted it was required to consider ways in which it could limit the potential prejudicial impact of the evidence. In this regard, the court observed there were other witnesses who had had similar contacts with the defendant whom the prosecutor had chosen not to call to testify. Finally, the trial court said that it had considered whether the introduction of evidence of Harris's commission of the uncharged offenses would require an undue consumption of time. In this regard, the court noted the prosecutor intended to offer only the testimony of Jacqueline P. and Monique to establish Harris's commission of these uncharged offenses, and the amount of time it would take to present their testimony, potential impeachment testimony, and possibly Harris's testimony concerning the uncharged offenses, did not warrant exclusion of the evidence.

The court ultimately ruled it would admit the evidence pursuant to Evidence Code sections 1108 and 1101, subdivision (b). The court also ruled the evidence need not be excluded pursuant to Evidence Code section 352.

The trial court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2006) (CALCRIM) No. 303 and modified versions of CALCRIM Nos. 375 and 1191, regarding the limited purposes for which it could consider the uncharged offense evidence, including Harris's propensity to commit the charged offenses of assault with intent to commit rape or sexual penetration by a foreign object (count 3) and attempted forcible rape (count 4), Harris's intent to commit counts 3 or 4, and whether Harris had a plan or scheme to commit counts 3 and 4.

Evidence Code section 1108 provides that in cases in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to Evidence Code section 352.

Evidence Code such 1101 provides in relevant part:

"(a) Except as provided in this section and in . . . [Evidence Code, section] 1108 . . . evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

In Falsetta, supra, 21 Cal.4th 903, the Supreme Court described the factors a court should consider in determining whether to admit evidence under Evidence Code section 352 that is otherwise admissible under Evidence Code section 1108:

"[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.)

Harris claims the trial court erred in failing to exclude the evidence of uncharged sexual offenses, pursuant to Evidence Code section 352. Harris also claims admission of this evidence violated his constitutional rights to due process and equal protection.

A trial court's ruling pursuant to Evidence Code section 352 is reviewed for an abuse of discretion. (People v. Guerra, supra, 37 Cal.4th 1067, 1113.)

The trial court issued a detailed, thoughtful, and complete Evidence Code section 352 analysis in which it addressed each of the factors outlined in Falsetta. The court properly noted that while the uncharged and charged offenses were not identical, they shared similarities, and the uncharged offenses had significant probative value in proving Harris's commission of the charged sexual offenses. The trial court correctly noted the uncharged offenses were not too remote in time to be relevant.

With respect to the certainty of the commission of the charged offenses, the trial court was in a better position to assess the credibility of the witnesses than we are. However, our own review of the Evidence Code section 402 transcript does not indicate that the witnesses' testimony was inherently unbelievable. While the fact the victims of the uncharged offenses did not promptly report the offenses to the police may have weakened the probative value of the evidence, the trial court did not abuse its discretion in concluding this fact did not warrant exclusion of the evidence.

We agree with the trial court's observation that the fact that Harris had not been convicted of the uncharged offenses increased the possibility of undue prejudice. However, the trial court properly instructed the jury regarding its consideration of the evidence. In this regard, we reject Harris's argument that the jurors were required to perform "Herculean mental gymnastics," and follow "conflicting instructions" in considering the uncharged offense evidence. The trial court properly instructed the jury it was to consider the evidence for the limited purposes of propensity, common plan or scheme, and intent.

Finally, while Harris correctly notes a significant amount of trial time was devoted to the uncharged offenses, and both of the uncharged offenses had inflammatory aspects, we cannot conclude either factor, alone or in combination with the other relevant factors, required the evidence be excluded.

In short, the trial court carefully considered the probative value of the evidence of the uncharged offenses against the possibility of prejudice stemming from its admission. We conclude the trial court did not abuse its discretion in admitting the evidence of the uncharged sexual offenses.

Moreover, even if we were to conclude the prior offenses should have been excluded, we would not reverse because the error was harmless. The prior offenses were relevant to show Harris had an intent to engage in sexual conduct with Jacqueline. This, however, was clear from the evidence presented at trial, including his kissing her twice while in the bar, kissing her on the chest after raising her shirt while in his truck, his willingness to pursue this sexual interest even after Jacqueline complained to her friend that he would not leave her alone, and his attempt at putting his hand down her pants. Further, it is apparent the jury, by acquitting Harris of attempted forcible rape and convicting him of assault with intent to commit rape or penetration with a foreign object,[5] gave little weight to the prior offenses and instead focused on Jacqueline's testimony that he attempted to put his hand down her pants.

Harris claims the trial court's admission of uncharged sexual offense propensity evidence pursuant to section 1108 violated his federal and state constitutional rights to due process and equal protection.

The California Supreme Court has concluded the admission of uncharged sexual offense evidence pursuant to section 1108 does not violate a defendant's constitutional right to due process. (See Falsetta, supra, 21 Cal.4th at p. 922.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, the Falsetta court strongly suggested that section 1108 does not violate a defendant's right to equal protection (Falsetta, supra, 21 Cal.4th at p. 918). Other courts have expressly held as much. (People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v.Fitch (1997) 55 Cal.App.4th 172, 184-185.) Accordingly, we conclude the admission of evidence pursuant to section 1108 did not violate Harris's constitutional rights to due process or equal protection.

III

Denial of Constitutional Right to Confront Adverse Witnesses

Harris claims the trial court violated his federal constitutional right to confront adverse witnesses by restricting his cross-examination of Monique regarding a possible motive she may have had for fabricating her claim that her sexual encounter with Harris was nonconsensual.

The California Supreme Court has held that appellate courts should generally apply the de novo or independent standard of review to claims that implicate a defendant's constitutional right to confrontation. (People v. Seijas (2005) 36 Cal.4th 291, 304 [concluding that "independent standard of review" applies because "the ruling we are reviewing affects the constitutional right of confrontation"].) Accordingly, we apply the de novo standard of review to Harris's claim.

During an Evidence Code section 402 hearing, Monique testified on cross-examination regarding the circumstances under which she told her ex-boyfriend, William Viltz, about the February 2005 incident with Harris. Monique stated that Viltz was one of the first people to whom she reported the incident. Monique explained that in December 2004, she obtained a restraining order against Viltz after Viltz had grabbed her by the neck and lifted her off the ground. Monique learned that while she was believed to be missing during the time she was with Harris, police had talked to Viltz in an attempt to determine whether Viltz was responsible for her disappearance. Defense counsel asked Monique the following questions regarding Viltz:

"[Defense counsel]: Were you concerned that Mr. Viltz might be upset that he was being blamed for you being missing?

"[Monique]: I felt badly that his family and him were all affected by something I knew was not because of him.

"[Defense counsel]: Did you go to see him to talk to him about what had happened?

"[Monique]: No. I had called.

[] . . . .[]

"[Defense counsel]: Was he angry that he was being blamed for involvement in your disappearance?

"[Monique]: Actually, no. He was more upset and concerned.

"[Defense counsel]: Were you afraid that he might be angry at you─

"[Monique]: No.

"[Defense counsel]: Because he was blamed?

"[Monique]: No.

"[Defense counsel]: You were never concerned about that?

"[Monique]: No. I was more concerned about his family being disrupted.

"[Defense counsel]: And you told him the details of what happened, correct?

"[Monique]: Yes.

"[Defense counsel]: Similar to what you told us here today?

"[Monique]: Not at first, but yes.

"[Defense counsel]: He pressed you to provide details to him ─

"[Monique]: Yes.

"[Defense counsel]: and you did[?]

"[Monique]: Yes.

"[Defense counsel]: Did he tell you to go to the police?

"[Monique]: I don't recall if he told me to go to the police."

At trial, Monique testified that Viltz may have been the first person to whom she related the details of the incident with Harris. Monique acknowledged that she had previously told police that Viltz was the first person she told what had really happened during the Harris incident. Monique also testified that she and Viltz had broken up in 2004, and that she had obtained a restraining order against him. Thereafter, the following colloquy occurred:

"[Defense counsel]: That was a domestic violence restraining order; yes?

"[Monique]: Yes.

[Prosecutor]: Objection. Irrelevant.

"The Court: Sustained.

"[Defense counsel]: As of February ─ as of your birthday in 2005 ─ was Mr. Viltz facing criminal charges?

"[Prosecutor]: Objection. Relevance.

"The Court: Sustained.

"[Defense counsel]: Were you afraid of Mr. Viltz in February, 2005?

"[Prosecutor]: Objection. Relevance.

"The Court: Sustained."

Pursuant to defense counsel's request, the trial court held a sidebar conference at this point. Outside the presence of the jury, defense counsel made the following offer of proof regarding the relevance of his cross-examination of Monique:

"In December 2004, [Monique] obtained . . . a domestic violence civil restraining order against Mr. Viltz for alleging that there had been unreported acts of physical violence by him upon her person, and then a series of threatening phone calls. [] It was reported by her to the police. [] Charges were not filed at that time. [] On January 1st 2005, Mr. Viltz was arrested for felony carjacking and felony assault charges. [] He calls [Monique]. Tells [Monique], basically, "I'm sorry" and he thinks he's going to jail. [] He goes to jail. While in jail, he's booked on domestic violence charges against her . . . and a criminal restraining order is filed as part of his bail conditions prohibiting him from contacting her.

"Go forward to February 17, 2005. [] This incident happens. She's told a missing persons report has been filed against her. The first person she contacts is her ex-boyfriend, fearing that he is going to be blamed for her missing person status, and . . . he's the first person she tells about what happens.

"The relevance is that she has reason to say that she had nonconsensual sex with my client because she's afraid that her . . . ex-boyfriend, Mr. Viltz, who has apparently been contacted by the police with respect to her disappearance, is going to be upset with her for putting him in this situation. He's going to be upset with her that she's engaging in sex with someone else, because he's still jealous, and, therefore, she has a motive to fabricate what happened with respect to Micah Harris to protect herself from William Viltz. [] And that's the proffer and that's my relevance."

The prosecutor argued the evidence was irrelevant because Monique had testified during the Evidence Code section 402 hearing that Viltz was concerned about her welfare and there was no evidence Viltz was jealous or that Monique was fearful of Viltz. The prosecutor further noted that the evidence did not demonstrate a motive to fabricate because it was not until several months later that Monique reported the incident with Harris to the police. The prosecutor argued the evidence was prejudicial in that it would bring out the fact Monique had broken up with a boyfriend who was "doing all this bad stuff."

Defense counsel responded, "Motive to fabricate is always relevant." The trial court ruled the evidence was irrelevant and more prejudicial than probative under Evidence Code section 352.

Two days later, outside the presence of the jury, the court heard further argument regarding the propriety of defense counsel's proffered cross-examination of Monique. Among other arguments, defense counsel suggested that a restriction of cross-examination on this topic would violate Harris's constitutional right to confrontation. After hearing argument, the trial court ruled, "The long and short of it, the way I see this, is this is a way to dirty up that witness, but it has nothing to do ─ because it's too remote. There's no tie in here except, ah, fanciful imaginations by counsel, which I'm impressed with[,] but shouldn't be the source of the ruling." The trial court then reiterated its ruling that the cross-examination would be excluded as irrelevant and pursuant to Evidence Code section 352.

During closing argument, in discussing the uncharged offense evidence, the prosecutor stated, "The defendant has shown no motive for them [Jacqueline P. and Monique] to make any of this up." After the prosecutor completed her closing argument, outside the presence of the jury, defense counsel argued that the prosecutor's comments were misleading because the defense had offered evidence of Monique's motive to fabricate, but the trial court had sustained the prosecutor's objection to such evidence. Defense counsel requested the trial court instruct the jury to disregard that portion of the prosecutor's argument. The trial court denied defense counsel's request.

The confrontation clause of the federal constitution guarantees a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.) "That right is not absolute, however." (People v.. Cromer (2001) 24 Cal.4th 889, 892.)

In People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain), the court explained the scope of a defendant's right to confrontation in the context of examining an adverse witness on issues related to the witness's credibility:

"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]' "

Quartermain also makes clear a defendant's right of confrontation is not necessarily violated even where a trial court abuses its discretion in excluding impeachment evidence bearing on a witness's credibility. In Quartermain, the Supreme Court concluded the trial court had abused its discretion under Evidence Code section 352 in excluding evidence that a prosecution witness had bribed judges in criminal proceedings unrelated to defendant's case. (Quartermain, supra, 16 Cal.4th at p. 624.)[6] However, the Quartermain court concluded the court's exclusion of the evidence would not have caused a reasonable jury to reach a significantly different impression of the witness's credibility because the witness's credibility had been extensively impeached by his admissions that he had perjured himself numerous times in other proceedings, committed other acts of bribery, and was extensively involved in the trafficking of drugs. (Quartermain, supra, 16 Cal.4th at p. 624; accord People v. Smith  (2007) 40 Cal.4th 483, 513 [concluding defendant's federal constitutional right to confrontation was not violated where "defendant . . . failed to show that the cross-examination of [witness] sought by defense counsel ─ impeachment based upon [witness's] juvenile record ─ would have produced a significantly different impression of [witness's] testimony"].) The Quartermain court concluded that the defendant's confrontation rights had not been violated by the erroneous exclusion of the impeachment evidence. (Quartermain, at p. 624.)

We assume for purposes of our decision that the proffered cross-examination would have yielded relevant testimony regarding Monique's credibility. We further assume for the sake of argument that the trial court abused its discretion under Evidence Code section 352 in excluding the evidence.[7] However, we cannot conclude a reasonable jury might have received a significantly different impression of Monique's credibility if the trial court had permitted defense counsel to inquire further regarding whether Viltz had been the subject of a domestic violence restraining order pertaining to Monique, whether Viltz was facing criminal charges, and whether Monique feared Viltz.

Defense counsel argued that the proposed line of inquiry was relevant to demonstrate Monique may have fabricated the nonconsensual aspect of her encounter with Harris because she was afraid Viltz would be jealous, and he would be angry with her for having caused the police to suspect that Viltz was responsible for her disappearance. However, during the Evidence Code section 402 hearing, Monique testified Viltz was not angry with her for having caused the police to question him. Monique also testified she was not concerned that Viltz might be angry with her.

Monique admitted during her testimony that she had previously obtained a restraining order against Viltz. The defense provided no other evidence from which the jury would be able to infer Monique's fear of Viltz. (Cf. Olden v. Kentucky (1988) 488 U.S. 227, 232 [concluding defendant's confrontation rights were violated where defendant was prevented from presenting evidence tending to prove that victim concocted rape allegation out of fear of jeopardizing relationship with lover who saw victim getting out of defendant's car on evening of sexual encounter].) Thus, aside from perhaps eliciting additional details regarding the restraining order, the proposed cross-examination was unlikely to have produced probative evidence demonstrating that Monique was in fear of Viltz at the time of the incident with Harris.

Even assuming the proposed cross-examination of Monique would have produced evidence from which the jury could have inferred that Monique feared Viltz and she therefore had a motive to tell Viltz that her sexual encounter with Harris was nonconsensual, Monique waited more than a year to report the Harris incident to the police. Defense counsel did not proffer any evidence that Monique had had further contact with Viltz prior to contacting the police. Thus, even if the evidence had some tendency to prove Monique had a motive for initially fabricating the nonconsensual nature of the incident involving Harris, the jury was unlikely to draw such an inference because the proffered evidence did not explain why Monique would wait a year to report this purportedly fabricated incident to the police.

We conclude Harris has "failed to show that the cross-examination . . . sought by defense counsel . . . would have produced a significantly different impression of [the witness's] testimony." (People v. Smith, supra, 40 Cal.4th at p. 513.) We therefore conclude the trial court did not violate Harris's federal constitutional right to confrontation.[8]

IV

Denial of Probation

Harris contends the trial court abused its discretion when it failed to find there were unusual circumstances meriting a g