P. v. Boutta

Filed 12/17/09 P. v. Boutta CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Michael Edward Boutta (appellant) appeals from a judgment entered after a jury convicted him of forcible rape (Pen. Code,  261, subd. (a)(2)). He contends the trial court erred in: (1) admitting evidence of his prior sexual offenses; (2) admitting evidence of Rape Trauma Syndrome; (3) instructing the jury with CALJIC No. 10.64; (4) denying his motion to strike a prior strike; and (5) imposing a sentence that constituted cruel and unusual punishment. We reject the contentions and affirm the judgment.

Factual and Procedural Background

On May 24, 2007, the Alameda County District Attorney filed an amended information charging appellant with one count of forcible rape (Pen. Code,  261, subd. (a)(2)). The information alleged appellant had previously been convicted of a serious felony (Pen. Code,  667.61, subd. (c)) and had suffered the following nine prior strike convictions, all of which were alleged to be serious felonies (Pen. Code,  667, subd. (a)(1)): (1) first degree residential burglary; (2) first degree residential robbery; (3) forcible rape; (4) first degree residential burglary; (5) first degree residential robbery; (6) forcible rape; (7) forcible sodomy; (8) second degree robbery; and (9) second degree robbery.

At a jury trial, S. Doe (Doe)[1] testified she was homeless in June 2006. She was using walking sticks and also had a pair of crutches because she had broken her leg. At about 3 p.m. on June 24, 2006, she was at a bus stop waiting for the bus when a man, whom she identified in court as appellant, approached her and said, Hi, [S.] Do you remember me? He told her he had brought her some food in the motel. He tried to jog [her] memory and she recalled meeting appellant at a grocery store when she was staying at the Islander Motel and was taking a taxi cab between the motel and the store because she was unable to walk very far. She remembered appellant had brought her some food at the motel and that she had thanked him for the food.

Doe asked him, Whats your name again? and he responded, They call me B. Appellant asked three or four times if she wanted a ride, and each time, she said, no, thank you. Finally, appellant said, My cars right there, No problem. Ill give you a ride. My cars right there, and pointed to his car in the parking lot. Doe accepted the ride, saying, Okay. I guess, you know, okay, because it was a hot day, she had a backpack and her crutches and it just seemed easier and his car was right there. Doe got into appellants black, four-door, Volkswagen Jetta through the passenger side, and appellant asked her if she wanted something to drink. Doe responded, Yeah, Ill take a beer, and told him there was a 7-Eleven store on the way. Appellant bought some beer at the 7-Eleven store and put the beer in the back seat. Doe then directed him to the camp at which she was staying. When they arrived, he handed her backpack to her and she got out of the car and started walking.

After Doe walked towards her camp for a few minutes, or maybe five, between five to 10 minutes, appellant walked up to her. He was just real excited like he had never seen that area before and was looking around. She thought [they] were just going to sit down for a while and have a beer. She walked over to a clearing[2] where there usually are other people around and sat down on a eucalyptus tree branch. That day, no one else was around. Appellant, who had a blue tarp with him, placed it on the ground and said, Come and sit down. He also had with him a bottle of brandy that was almost empty. She told him, I cant. You know, I cant bend my leg that way. Its too hard for me to get down there. Appellant then yanked her down by pulling on her left leg, and her tailbone hit the ground and she fell on her back. Appellant got on top of her, put his hand on her face, and said, If you scream, Im going to kill you. She screamed a total of three times. After the last time, appellant told her, Its the last time Im going to tell you. If you scream, Im going to kill you. Appellant pulled down Does pants, spread her legs apart and raped her. Doe testified, There was nothing I could do. Im 63 years old . . . Im not strong anyway, but there is no way I could have knocked him over. She said, No, dont, and screamed for help and felt helpless, out of control and angry. After penetrating her for [m]aybe a couple minutes . . . [m]aybe five minutes, maybe three minutes, he stopped.

Doe was scared to death and thought she had to get him off his anger path, change the mood a little bit, and throw him off, so she said, You know what? Thats the best sex I ever had ever. She [a]bsolutely did not mean what she said but the statement changed the mood and appellant kind of laughed, said, Huh, really? and was just more at ease. She made small talk with appellant until he left. Before leaving, appellant said, If . . . you tell anybody about this . . . I will kill you. Ill find you and kill you. Doe said appellant also talked about knives and guns. After appellant left, Doe was initially kind of frozen, then cried hysterically as she called her daughter and told her she had been raped. Her daughter immediately said, Mom, youve got to call the police. Call the police. Doe did not call the police because she thought they would not believe her because she could not pinpoint . . . what his identity was. After talking to her daughter, she just sat there for about 10 to 15 minutes, trying to gather [her] senses and think about what had just happened. She then saw Ricky Martin, who used to be her boyfriend and she had known for six or seven years. She told Martin she had been raped by a black man, and Martin also told her to call the police. As she told Martin she did not know how to identify appellant, Martin walked back to his camp. She thought it was typical for him to walk away because [h]es not real emotional and just . . . went about his own business. Doe walked into her tent and felt terrible but tried to sleep as it was starting to get dark.

The next day, a police car pulled up and two officers got out of the car. One of them said, You match the description of somebody tagging buildings around here. She knew who they were talking about because there is a woman who tags building who kind of doesnt really look like me but shes short like I am and shes old. Doe told the police officer she had been raped, using the n word to describe appellant because she was very upset. The police officer said, Well, youre going to have to go to the police station. She asked him if he could take a report, told him her leg was broken, begged him to take a statement or something for me, and said she wanted the person who raped her to be arrested, but the officer said, No, youre going to have to go take a bus. The officer then said, Well, I guess youre not the tagger, and drove off. She thought, thats why I didnt call the police in the first place because . . . they probably wouldnt have believed me. And this . . . policeman didnt even take a report . . . .

After the police car left, she saw a friend in a van and began walking towards the van when appellant drove by and said, Hi, [S.]. How you doing? She played it off and said, Oh, fine. Appellant stopped his car but said, Oh, I guess you wanted to see your friend. She responded, Yeah, Im going to go talk to my friend for a while. Doe stood by appellants car and looked at the license plate. As appellant waved and drove away, Doe said the license plate number over and over and wrote it down on a piece of paper and put it in her purse. That night, she thought about it all night and decided to call the police because this is wrong. You know, Im the victim here. She thought, I got to do something. Otherwise I would be . . . watching my back everywhere I went. She also thought she might help save others if she told her story. She called the police from a 7-Eleven store and told a police officer she had been raped. She gave the officer the license plate number she had written down. She was taken to a hospital where she waited for a long time outside the emergency, and was later taken to another hospital, Highland Hospital, where she was examined and interviewed. While at Highland Hospital, a police officer showed her some photographs and had her read and sign an admonition. One of the photographs was of the man who had raped her, so she circled that photograph. After her examination, she left the hospital and went to the police department, where her daughter was waiting for her. Doe testified the incident devastated me. I dont trust anybody and Im not close to anybody and Im going to counseling now and I resent what happened and Ive cried about it. She testified she had become real cautious and has refused other offers for rides. She was staying at a shelter and staying pretty much in one place.

Ricky Martin testified that in June 2006, he was living by a eucalyptus grove between train tracks. Doe, who he met in 2000 and dated for a year or two, was also camping in that area at the time. On the last Saturday in June, he ran into Doe, who told him she had just been raped. Doe was mad, upset and said the man put his hand over her face, said if she said anything he would kill her, and that she screamed three times. Martin testified, I kind of kept on walking by her because I didnt want to hear the drama. He was also upset that she had brought someone to the camp because it is his spot.

Fremont Police Officer Michael Gebhardt testified he responded to a 7-Eleven store at about 3:45 p.m. on June 26, 2006, after receiving a call from dispatch to conduct a welfare check on a woman who said she had been raped. He met with Doe, who told him she had been raped at a homeless encampment. He and Doe drove to an area by some train tracks and walked over to the encampment. It took about 12 minutes for them to walk about 100 yards because Doe had two large walking sticks and appeared to be in pain. Doe pointed to a large tree and said she was raped on a blue tarp. They were there for about 10 minutes when Doe started complaining of stomach pain and pain in her vaginal area. He took her to a hospital in Fremont where they waited for about 45 minutes or an hour. He then took her to Highland Hospital in Oakland for an examination to determine whether there were any signs of rape or penetration. While he was with her, he talked to her in more detail about the incident. Doe told him the suspect was a black male, about 5 feet 8 inches, 160 to 180 pounds, with a clean shaven head and two earring holes in his left ear. She said the suspect was driving a black Jetta and provided a license plate. Gebhardt passed on the information to Detective Robert Alexander so Alexander could research the car for possible suspects associated with it. Gebhardt also r[a]n the plate and learned the car was registered to a Michael Boutta and a woman at the Islander Motel. Alexander sent Gebhardt a six pack photo lineup with a picture of appellant and five other similar matching headshots. Gebhardt showed the lineup to Doe after giving her a statement from an admonition form and having her sign the form. Doe immediately pointed to appellants photograph and said, thats him.

Marcia Blackstock, executive director of Bay Area Women Against Rape, testified that rapes mainly do not occur between strangers, but between acquaintances, somebody that you know somewhat, have met a few times or been around a few times, to actually your spouse and everything in between. She testified that rape is not about sex but about power and control in that it is the ultimate way of controlling and dominating and degrading another person outside of murdering them. She testified there is no typical rape victim. She testified that Rape Trauma Syndrome explains the emotional and physical reactions a person has as a result of being sexually assaulted. She testified regarding the three phases of Rape Trauma Syndrome. The first phase, the acute crisis phase, often starts before the crime occurs and includes denial, giving people the benefit of the doubt, and moving closer to a dangerous situation. The phase also includes physical shock, extreme fear, guilt, shame, anger, hopelessness, helplessness and powerlessness. There are many different reactions people can have during a sexual assault, including fighting back, freezing and doing exactly what they are told, and that the bottom line is to survive. Immediately after the assault, the victim is still in shock and can experience disorientation, disassociation, great fear of retaliation or of not being believed, and tries to analyze what to do to not be harmed again. During and after the assault, the rapist is viewed as all powerful and capable of killing.

After the acute phase is the reorganization phase, also called the  Im fine phase in which victims force themselves into trying to normalize everything. They go back to work or take care of their homes in order to feel safe and to appear normal. The third phase, the integration phase, resembles the first phase. All of the emotions come up very strongly again and people actually are in crisis. The difference is that enough time has passed from the incident that they are more stable and better able to handle and process the emotions in order to move forward. Blackstock testified that the phases are very fluid so people can go from one phase to another, and back and forth between phases. She testified that some people never move out of the second phase and just completely reorganize their lives to not have to deal with the feelings.

Blackstock testified she did not meet with Doe and does not know the detailed facts of Does case. She testified it did not surprise her that the victim in the case was homeless because homeless people are extremely vulnerable to sexual assault. She did not find it surprising that the victim got into the perpetrators car and allowed him to accompany her to the encampment because once we have encountered somebody a couple of times and they appear to be friendly and safe, we dont assume that theyre going to be dangerous. She also believed that with the vulnerability and the needs of homeless people, they are sometimes . . . quick to befriend other people to not be alone and to receive assistance with what they need. She testified it also does not surprise her that after being raped, the victim said, That is the best sex I have ever had, because victims go into survival mode and try to get out of the situation with the least amount of harm. She stated victims often use a defense mechanism of acting like it was something that they wanted or enjoyed. A victim will even agree to meet the perpetrator again or do whatever seems necessary to get away without arousing anger or suspicion that the attack will be reported. She testified it did not surprise her that the rape was not immediately reported to the police because the overwhelming majority of rapes are not reported to law enforcement. It also did not surprise her that the victim did not point out the perpetrator in public when she saw him the next day because of the fear of retaliation.

Fremont Police Detective Robert Alexander testified he was working as a detective in the sex crimes unit on June 26, 2006, when he received information from Gebhardt regarding the rape of Doe by suspect Boutta. He testified he knows Boutta and pointed to appellant in the courtroom. He testified that Gebhardt provided him with a vehicle description and license plate number and said there were electric blue floor mats in the car. He was also told that a tarp was used. Alexander asked another police officer, Jason Franchi, to go to the Islander Motel to determine if the car, a Volkswagen Jetta, was there. Franchi called back and told him the car was there. Franchi called again later to say the car was moving and that the possible suspect was inside. Alexander asked Franchi to make an investigative stop and prepared a photo lineup for Gebhardt and faxed it to him at Highland Hospital. Alexander then went to a parking lot of a shopping center and made contact with appellant who was sitting in his car. Alexander immediately recognized the floor mats that Gebhardt had told him about. He searched the car and found a blue tarp in the trunk. He placed the tarp in a large paper bag using latex gloves and forwarded it to a crime scene investigator. He testified that items that are collected in a sexual assault case are not sent to a crime lab and tested in every case because of the expense involved. He explained that an item is more likely to be tested if there are no known suspects in the case.

Fremont Police Officer Terry Sasser testified he was on duty at about 1:30 p.m. on June 25, 2006, when he received a callout that a 50-year-old man wearing a mint green shirt and a cowboy hat was tagging signs with spray paint. He searched the area for possible suspects and came across Doe, who was wearing a mint green shirt and a large, brown, cowboy type hat. He explained why he had stopped her, and she responded, Im no tagger. Sasser looked at her fingers for spray paint remnants and did not find anything indicating she was involved in tagging or vandalism. Doe spontaneously said, I was raped last night at the Islander Motel, then started rambling on about Ricky Martin and also talked about her walking sticks. When Sasser redirected her to the statement regarding the rape, Doe said something to the effect of being raped by a black guy with a shaved head at the Islander and she had reported it to the Islander manager. She then ramble[d] on again about Ricky Martin and did not mak[e] a whole lot of sense. Sasser asked Doe what she wanted done in regard to the rape, and she said, I want the guy arrested, and walked away. Based on her demeanor, Sasser thought it was something that she didnt want to pursue any further at that point. Sasser testified Doe did not display any signs of being under the influence of drugs or alcohol, other than the rambling and not making sense at times. There was no odor of alcohol, no slurred speech, no watery, bloodshot eyes. Sasser prepared a report of his contact with Doe the next day after he heard a detail come out in regard to a rape incident involving Doe. In retrospect, he believed he made the wrong judgment call in thinking Doe didnt want to pursue it for whatever reason.

John Gaziano testified he is a lab technician/police officer/crime scene investigator for the Fremont Police Department. He took photographs of Doe with a two-centimeter abrasion on the right side of her nose, a bruise on the outside portion of her left bicep, and an eight-centimeter-by-four-centimeter bruise on her tailbone and a smaller bruise below it.

Martin Moran, a physicians assistant on the sexual assault response team in the emergency department of Highland Hospital, testified he has performed between 400 and 500 sexual assault examinations, which includes documenting any injuries, collecting evidence, treating patients with antibiotics to prevent infection, testing for sexually transmitted diseases, and conducting pelvic examinations. He conducted a sexual assault examination of Doe on June 26, 2006. He tested for semen by shining a lamp over Does body to see if anything that might fluoresce or light up. An area around Does right thigh lit up. He also found injuries in Does vaginal area consistent with her having been raped. The severity of the injuries indicated the sex was nonconsensual.

Appellant testified he was in prison from 1990 to 1999. After being released, he got a job, took some college classes and became a reverend in training at a church. He testified he met Doe in May 2006 at a grocery store and learned she was staying at the Islander Hotel, where he lived. Later, he saw Doe from his window and went over to where she was to see if she needed help and to give her some food. They ate and drank some beer together and she mentioned she had broken her legs. He gave her some ointment for her legs and went back to his room.

Appellant testified he saw Doe again the following month. She was sitting by a bus stop and he said, Hello, do you remember me? He reminded her about the time he had brought her some food, and she said she remembered. He offered her a ride and she said yes. It was a nice day so he asked if she would like some beer. She said yes and he purchased two bottles of beer at a 7-Eleven store. He drove her to where she was staying, they got out of the car, and she started walking off. He got one of the beers out of his car and a tarp out of his trunk, and when he caught up with her, she directed him to an area where there was a eucalyptus tree. He put the tarp down on the ground and she sat on a stump. They drank a little beer and were enjoying the day and he told her, If you want to, you can sit down on the tarp. He testified, its funny because the person got down on her own. I didnt have to force her down there. She got down there by herself. As they sat on the tarp, drinking and talking, one thing led to another and they were engaged in foreplay a little bit when she reminded him there was another beer in the back seat of his car. He stopped whatever was going on, returned to the car, walked back to where she was, and they drank a little more. They each had a sip of brandy as well. He asked her if its okay, she said, yes, and they had sex. She told him, That was the best sex I ever had, and he said thank you, and they talked about how he was trying to turn his life around and was going to go to church the next day. He said, Listen, I really enjoyed you, and left.

Appellant testified he went to church the next day and was driving home when he saw Doe again. He left because she said she was visiting a friend who was sitting in a van. About two days later, he was stopped by the police and was asked to go to the police department. He complied and drove to the police station. When the police questioned him, he was not very candid about it in the very beginning because in his experience, the police sometimes . . . take what you say and twist it around. He was in the room with two police officers for roughly a couple hours. At some point, he admitted he and Doe had had sex, and the police arrested him.

On cross-examination, appellant testified he and his girlfriend were the registered owners of a two-door Volkswagen Jetta with electric blue floor mats. He testified Doe made the first move by touching his leg. He acknowledged he has two prior rape convictions from 1990. He acknowledged he was also convicted of residential burglary and first-degree robbery along with his first rape conviction, and of residential burglary and first-degree robbery along with his second rape conviction.

The prosecutor asked appellant whether he knows Fern Doe, who was 84 years old on June 6, 1990. Appellant testified he remembered her. Appellant also remembered entering her home and grabbing her by the neck, demanding money from her, taking money, taking her to the bedroom, pushing her down on the bed, pulling off her clothing, putting his hand over her face and raping her. He did not recall whether he told her after raping her, Dont call the police or Ill kill you. The prosecutor asked appellant whether he remembers Elise Doe, who was 83 years old on June 24, 1990. Appellant testified he think[s] he remembers her. He remembered knocking on her door and saying he had lost his ball behind her garage. He then went to her back door, asked for a glass of water, which she gave him, grabbed her by the neck, demanded money from her, took her to the bedroom, pushed her on the bed, and raped her. He did not remember whether he slapped her and did not remember grabbing a knife. He did not know whether she screamed that it hurt, and he denied trying to sodomize her. He might have told her not to get up until he left the house.

Some portions of a police interview in which appellant said he did not have sex with Doe were played for the jury. Appellant admitted he lied to the police when he said he did not have sex with Doe. He admitted he also lied when he told the police that he gave Doe his tarp and left, and that Doe returned the tarp to him when he ran into her the next day. He also admitted he told the police that Doe never got in his car and that he did not drive her anywhere. He also lied to the police when he said he was nowhere near the eucalyptus grove. Appellant testified that he later admitted to the police that he gave Doe a ride. The prosecutor asked, is the sex that you had with her consensual? Is that your position? Appellant responded, I believe so, yes. The prosecutor asked, Or is she just another victim of a serial rapist? Appellant responded, No, sir.

On redirect examination, appellant testified he did not know his initial statements to the police were being recorded. After learning his statements were being recorded, he changed his statement. He explained that in his experience, if statements are not being recorded, the police can always take things out of proportion. . . . Thats why I didnt say anything until afterwards. He said he told the police the truth in the end, i.e., that he had consensual sex with Doe.

The jury found appellant guilty of forcible rape. Appellant waived his right to a jury trial on the priors and the court found true all nine prior convictions. The court denied appellants motion to strike a prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced him to 90 years to life in state prison.

Discussion

1. Prior Sexual Offenses

Appellant contends the trial court erred in admitting evidence of his prior sexual offenses. We reject the contention.

Evidence Code[3] section 1108 provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.[4] Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that propensity evidence is per se unduly prejudicial to the defense. [Citation.] (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)

a. Due process and a fair trial

Appellant contends section 1108 is unconstitutional because it violates a defendants right to due process and a fair trial. He concedes this contention is foreclosed by Falsetta, supra, in which the California Supreme Court held that admission of propensity evidence under section 1108 does not violate a defendants right to due process and a fair trial. (21 Cal.4th at p. 911.) Appellant states he is making the contention only to preserve [it] in the event of further post-conviction review . . . . Thus, we need not discuss the contention further.

b. Equal protection

Appellant contends section 1108 is unconstitutional because it violates a defendants right to equal protection by treating those charged with sexual offenses differently from those charged with other crimes. People v. Fitch (1997) 55 Cal.App.4th 172, 177-185 (Fitch) upheld section 1108 against such an equal protection challenge, holding, The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendants commission of other sex offenses. (55 Cal.App.4th at pp. 184-185.) Further, although equal protection was not at issue in Falsetta, supra, the California Supreme Court cited Fitch with approval, stating, Fitch likewise rejected the defendants equal protection challenge, concluding that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests. (21 Cal.4th at p. 918, citing Fitch, supra, 55 Cal.App.4th at p. 184.)

Appellant contends the reasoning in Fitch is flawed because other crimes such as murder, burglary and robbery are also serious, done in secret, and depend upon witness credibility. However, [n]either the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same. The equal protection clause simply requires that, in defining a class subject to legislation, the distinctions that are drawn have some relevance to the purpose for which the classification is made.  [Citation.] Absolute equality is not required; the Constitution permits lines to be drawn. [Citation.] (People v. Jennings (2000) 81 Cal.App.4th 1301, 1311, italics added.) The legislature determined that sex offenses were different from other crimes such as murder, burglary and robbery because they result in trials that are primarily or largely credibility contests. (Fitch, supra, 55 Cal.App.4th at p. 184; Falsetta, supra, 21 Cal.4th at p. 918.) This distinction is reasonable.[5] We agree with Fitch and conclude appellants equal protection challenge to section 1108 fails.

c. Fifth amendment

Appellant contends the trial court violated his fifth amendment right against self-incrimination by allowing the prosecutor to cross-examine him about the circumstances underlying his prior sex offense convictions. It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination. (People v. Farnam (2002) 28 Cal.4th 107, 187.) A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of all inquiries which would be proper on cross-examination and is subject to impeachment the same as any other witness. [Citations.] Thus, the defendant waives the privilege with respect to any matter to which he testified expressly or impliedly on direct examination and that is relevant to impeach his credibility as a witness. [Citation.] (People v. Stanfill (1986) 184 Cal.App.3d 577, 581, disapproved on another ground in People v. Pokovich (2006) 39 Cal.4th 1240, 1253, fn. 4.) [W]hen a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide. [Citations.] (People v. Saddler (1979) 24 Cal.3d 671, 679.)

Here, appellant took the stand and denied forcing Doe to the ground and raping her. He claimed they engaged in foreplay and had consensual sex. In light of this testimony, the facts relating to the rapes of Fern Doe and Elise Doe were relevant to impeach appellants credibility as a witness, i.e., to show he was not being truthful when he stated the sex was consensual, and to show appellants propensity to commit sexual offenses. Appellant contends it is only the fact of a prior felony conviction, and not the circumstances that led to the conviction, that is admissible in impeaching a witnesss credibility. He relies on People v. Allen (1986) 42 Cal.3d 1222, 1270 and People v. Malloy (1974) 41 Cal.App.3d 944, 951-952, but the cases are inapposite because they do not involve the admission of prior sexual offenses under section 1108. In fact, there are numerous cases in which courts have upheld the admission of detailed facts relating to prior charged or uncharged sexual offenses under section 1108. (See, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 660 [defendants uncharged sex offense of caressing a minor girls thigh was properly admitted in prosecution for lewd acts on a minor girl to demonstrate the defendants disposition to commit such crimes]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [details of prior rape conviction, including the fact that the defendant attacked a young woman at night, put his hand over her mouth, dragged her away and raped her, was properly admitted under section 1108].) The prosecutors questions were permissible because they related to the matter[s] to which [appellant] testified expressly or impliedly on direct examination and were relevant to impeach his credibility as a witness. (See People v. Stanfill, supra, 184 Cal.App.3d at p. 581.) There was no fifth amendment violation.

d. Abuse of discretion

Appellant contends the trial court abused its discretion in admitting evidence of his prior sexual offenses because the evidence was more prejudicial than probative under section 352. Under section 352, [t]he 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 evaluating whether to admit evidence of prior sex offenses, the trial court 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Falsetta, supra, 21 Cal.4th at p. 917.) The determination under section 352 to admit or exclude evidence of a prior sexual offense is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] (Id. at pp. 917-918.)

Here, Doe accused appellant of raping her, there were no witnesses, and appellant denied the charge, claiming instead that he and Doe had consensual sex. Under the circumstances, the facts relating to the rape of Fern Doe and Elise Doe were highly probative in determining Does and appellants credibility and whether appellant was disposed toward committing sexual offenses. Appellant contends the offenses were not sufficiently similar because Fern Doe and Elise Doe were very elderly women. However, all three victims were older and vulnerable, as Fern Doe and Elise Doe were in their 80s and Doe was in her 60s and physically challenged by her previously broken leg and her need for walking sticks. Appellant also states the offenses were different because the other two rapes occurred after a home invasion perpetrated by ruse. Although the instant rape did not occur after a home invasion because Doe was homeless, appellant raped Doe after invading her living space, i.e., following her to her homeless encampment, and leading her to believe they were going to sit down and have a beer. Appellant attacked all three victims when he was alone with them. As he did with the other victims, he forced Doe to lay down on her back and raped her.

The prior rapes were also not remote, especially in light of the years appellant spent in prison and his recent discharge from parole. The certainty of appellants commission of the prior rapes was established because he was convicted of both offenses. Further, the jury learned that appellant had been punished for his past offenses and it was therefore not likely to lose sight of the issues in this case and convict him to prevent him from escaping punishment for his prior misconduct. Appellant asserts the evidence was unduly prejudicial because [i]t is most difficult to imagine any more prejudicial, emotionally charged evidence than that featured here, i.e., the sexual assaults of two women in their 80s. However, we do not believe the prior rapes were so much more inflammatory than the instant rape that admission of evidence relating to the prior rapes led the jury to be unfairly prejudiced against appellant. In any event, the trial court reasonably could have concluded that any potential inflammatory prejudice would be ameliorated by the standard instruction informing jurors that the prosecution had the burden to prove appellants guilt of the charged offenses beyond a reasonable doubt; they could, but were not required to, find that appellant was disposed to commit sexual offenses; and, insofar as the prior offenses showed a propensity, that was only one factor to consider in determining appellants guilt, and the prior offenses were not enough by themselves to find him guilty. In sum, the record does not support appellants contention that his prior sexual offenses were potentially more prejudicial than probative or that the trial court abused its discretion in admitting the evidence under section 352.

2. Rape Trauma Syndrome

Appellant contends the trial court erred in admitting evidence of Rape Trauma Syndrome (RTS) as substantive evidence of guilt. We reject the contention.

RTS explains the physical, psychological and emotional reactions that are common to rape victims. (People v. Bledsoe (1984) 36 Cal.3d 236, 241-242, fn. 4 (Bledsoe).) The California Supreme Court in Bledsoe held that expert testimony concerning RTS is not admissible to prove the alleged victim was raped, but is admissible to disabus[e] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths. (Id. at pp. 247-248.) For example, evidence on RTS may be introduced to rebut an inference that a victims delay in reporting a rape is inconsistent with her having been raped. (Id. at p. 247.) Generally, expert testimony is admissible if it will assist the fact finder, even if the fact finder has some knowledge of the subject matter of the expert opinion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) The determination of whether expert testimony is admissible is consigned to the trial courts discretion. (Ibid.)

Here, much of Blackstocks testimony involved explanations regarding the emotional and physical reactions a rape victim has, and the three phases of RTS. Appellant does not dispute these aspects of Blackstocks testimony was proper but contends the trial court erred in allowing the prosecutor to cross[] way over the line and effectively affirm[] the veracity of the victim by posing a series of questions to [Blackstock] which perfectly fit the particular factual scenario which had been attested to by the victim. The resultant testimony improperly invaded the province of the jury by effectively furnishing pseudo-expert opinion that [Doe] was telling the truth. The prosecutor in this case did elicit responses from Blackstock through hypothetical questions that incorporated the facts of this case. For example, as noted, Blackstock responded it did not surprise her that the victim was homeless, or that she got into the perpetrators car and allowed him to accompany her to the encampment. She testified it did not surprise her that after being raped, the victim said, That is the best sex I have ever had, because victims go into survival mode and try to get out of the situation with the least amount of harm. She testified it did not surprise her that the rape was not immediately reported to the police because the overwhelming majority of rapes are not reported to law enforcement.

However, we do not believe that Blackstocks responses to the hypothetical questions amounted to testimony that she believed Doe had been raped. She merely stated with respect to certain behaviors that they were not atypical or not surprising of a victim of rape. Further, information provided by Blackstock, through hypothetical questions, that acquaintance rape is common, or that it is not unusual for a victim to delay reporting the rape, were directly relevant to likely misconceptions the jury in this case might entertain. Moreover, Blackstock testified she had not met Doe, and she did not opine that Doe was truthful or that she reacted like a typical rape victim.[6] Thus, the jury was not likely to perceive her testimony as expert opinion that Doe was a credible witness. We conclude the trial court did not err in allowing Blackstock to testify regarding RTS in order to refute common myths and misconceptions identified by the prosecutor and relevant to the case.

Further, were we to conclude that the trial court had erroneously admitted RTS evidence, we would nevertheless conclude any error was harmless. We evaluate the erroneous admission of expert testimony, including that of RTS and analogous evidence, under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Bledsoe, supra, 36 Cal.3d at pp. 251-252.) Appellant has failed to demonstrate that it is reasonably probable a result more favorable to him would have been reached absent such error. (Ibid.; People v. Watson, supra, 46 Cal.2d at p. 836.) The evidence against appellant was strong, even apart from Blackstocks testimony on RTS. Doe testified to appellants forcible acts of rape. Her statements to others and her reactions were largely consistent with her account, and the medical evidence also supported her account. Appellant made inconsistent statements to the police, initially denying having given Doe a ride or going to the homeless encampment or having sex with her. Appellant has failed to demonstrate prejudice.

3. CALJIC No. 10.64

Appellant contends the trial court erred in instructing the jury with CALJIC No. 10.64 because it enabled the jury to find him guilty without finding that there was proof beyond a reasonable doubt of every fact necessary to constitute the crime [with] which he was charged. We disagree.

Before Blackstock testified, the trial court instructed the jury with CALJIC No. 10.64, as follows: Ladies and Gentlemen, youre going to hear evidence now from Miss Blackstock. It will be presented to you and it concerns whats called the Rape Trauma Syndrome. [] This evidence is not received and it must not be considered by you as proof that the alleged victims rape claim is true. Rape Trauma Syndrome research is based upon an approach that is completely different from that which you must take to this case. [] The Syndrome research begins with the assumption that a rape has occurred and it seeks to describe and explain common reactions of females to that experience. [] As distinguished from that research approach, you are to presume that the defendant is innocent and, of course, the People have the burden of proving his guilt beyond a reasonable doubt. You should consider this evidence concerning the Syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions as demonstrated by the evidence are not inconsistent with her having been raped.

Appellant contends the instruction is internally inconsistent, allows for unconstitutional conclusive presumptions and/or shifts the burden of proof. Specifically, he takes issue with the last sentence in the instruction that states, You should consider this evidence concerning the Syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions as demonstrated by the evidence are not inconsistent with her having been raped. He states the sentence creates a mandatory presumption that a rape occurred if the victims reaction is consistent with RTS. He asserts: This is reinforced by the second paragraph, which tells the jury to presume at the outset that a rape has occurred. The presumption is further reinforced because it negates the cautionary warnings . . . on the burden of proof and presumption of innocence. He contends that even if the last sentence does not create a mandatory presumption, it has the effect of shifting the burden of persuasion to the defendant . . . . He relies on Sandstrom v. Montana (1979) 442 U.S. 510, 512, 524 (Sandstrom), which held that when intent is an element of the crime charged, a jury instruction that  the law presumes that a person intends the ordinary consequences of his voluntary acts  violates the requirement that the state prove every element of a criminal offense beyond a reasonable doubt because it may have been interpreted to create either a burden-shifting or a conclusive presumption.

We disagree with appellants interpretation of CALJIC No. 10.64. Unlike the Sandstrom instruction (the law presumes), the RTS instruction contains no language a reasonable juror could construe as mandatory. (See Sandstrom, supra, 442 U.S. at pp. 514-515.) Rather, it expressly warns the jury not to consider the evidence as proof that the alleged victims rape claim is true, and to presume that the defendant is innocent and, of course, the People have the burden of proving his guilt beyond a reasonable doubt. Those admonitions prohibited the jury from presuming anything based on Does behavior and the experts testimony. The last sentence of the instruction is fully consistent with those admonitions. It tells jurors that RTS evidence should be considered only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with her having been raped. (Italics added.) The qualifying phrase if it does makes it clear the jury is not required to rely on the RTS testimony or find that the victims reactions fit a profile or are consistent with having been raped. We do not believe the instruction created a presumption that the rape occurred or caused the jury to misapply the evidence. Accordingly, we conclude there was no instructional error.

4. Prior Strike

Appellant contends the trial court abused its discretion in denying his motion under Romero, supra, 13 Cal.4th 497, to strike a prior strike. We reject the contention.

Under Penal Code section 1385, subdivision (a), a judge may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. Romero, supra, 13 Cal.4th 497, held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, in furtherance of justice pursuant . . . to section 1385[, subd.] (a). (People v. Williams (1998) 17 Cal.4th 148, 158.) When a trial court considers a motion under Romero, it must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [spirit of the three strikes law] scheme[] . . . in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Id. at p. 161.) The three strikes law establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike unless the trial court deems the defendant falls outside the three strikes scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 337, 338.) Only under extraordinary circumstances can a trial court find a defendant fall[s] outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack. (Id. at p. 338.)

A trial courts decision not to strike a prior conviction allegation is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.)  The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.  (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at p. 377.) A decision  will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] [Citation.] (Alvarez, supra, 14 Cal.4th at p. 978.)

Preliminarily, we reject appellants contention that the trial court erred in refusing to exercise its discretion. In denying the motion to strike a prior strike, the trial court stated, I believe given Mr. Bouttas extensive record of convictions for violent crimes, that its not appropriate for the Court to exercise discretion in this case. Appellant interprets this statement to mean the court was refusing to exercise its discretion, i.e., to make a determination on the issue, and argues the court was required [to exercise its discretion], even if that discretion went against the appellant. The courts own words indicate an awareness of its discretion, under Penal Code section 1385, subdivision (a) and Romero, supra, 13 Cal.4th 497, to do what appellant requested: strike a prior strike. Here, the court clearly exercised this discretion by declining to strike appellants prior strike.

Further, the record fully supports the trial courts decision not to strike a prior strike. Appellant contends the record does not suggest that [the trial court] considered all of the factors, including his background, character, and prospects, in reaching its decision. He states the court also did not consider the fact that the two prior rapes occurred within a few weeks of each other. However, the trial court stated it had reviewed the probation officers report and recommendation. The report provided relevant information regarding appellant, including appellants criminal history, age, prior performance on parole and probation (unsatisfactory), and discussed appellants representation that he spent six months working as a forklift operator, served in the Army for two years, and earned a GED certificate. In addition, the court listened to argument relating to whether the two prior rapes occurred during a single period of abhorrent behavior such that they should be treated as one strike. In denying the motion, the court stated it had also considered appellants extensive record of convictions for violent crimes. (See People v. Williams, supra, 17 Cal.4th at p. 161 [the nature of appellants prior offenses is relevant to the courts consideration of a Romero motion].) Appellant has not shown that the trial court failed to consider all relevant factors or abused its discretion in denying the motion.

5. Cruel and unusual punishment

Appellant contends the trial court erred in imposing a sentence that constituted cruel and unusual punishment. He asserts his sentence violates the federal constitution because it is grossly disproportionate to the offense and violates the California constitution because the One Strike law and three strikes law are unconstitutional on their face and as applied to this case. We reject the contention.

Grossly disproportionate

Under the Eighth Amendment of the United States Constitution, a sentence constitutes cruel or unusual punishment if it is  grossly disproportionate to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Appellant contends that his sentence of 90 years to life and the unavailability of parole for 90 years make his sentence the equivalent of a life term without possibility of parole even before he even begins to serve the life portion of the sentence. He urges that the ordinary punishment for forcible rape is three, six or eight years, and that his sentence is therefore excessive by any rational measure. He fails to acknowledge, however, that he is also being punished for his recidivism. Appellants current offense involved forcible rape. In 1990, he had two convictions for forcible rape, one conviction for forcible sodomy, two convictions for residential burglary, and two convictions for robbery. He also had convictions in 1978 and 1976 for second degree robbery and had performed unsatisfactorily on parole and probation. The United States Supreme Court has held that sentencing recidivists does not violate the Eighth Amendments prohibition against cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11, 30.) Given appellants violent history and recidivism, his sentence was not grossly disproportionate to the crime.

One Strike law

Appellant contends that Penal Code section 667.61, subdivision (a)also known as the One Strike law (People v. Miralrio (2008) 167 Cal.App.4th 448, 454-455; People v. Alvarado (2001) 87 Cal.App.4th 178, 183 (Alvarado))under which the trial court imposed a 25-year-to-life term for rape, which was tripled to 75 years to life under the three strikes law, is unconstitutional and constitutes cruel and unusual punishment on its face and as applied. He argues the statute does not recognize significant gradations of culpability depending on the severity of the current offense and it fails to take mitigating factors into consideration.

Courts of appeal rejected essentially the same argument in Alvarado, supra, 87 Cal.App.4th at pp. 200-201 and People v. Estrada (1997) 57 Cal.App.4th 1270, 1280 (Estrada) and held the One Strike law does not indiscriminately mete out the same punishment to a broadly defined class of offenses but singles out crimes involving sexual violence and expresses the legislatures zero tolerance toward the commission of these crimes. As pointed out in Alvarado and Estrada, the penalties outlined in Penal Code section 667.61 apply only to specific sex offenses. (Alvarado, supra, at p. 186; Estrada, supra, at p. 1274; Pen. Code,  667.61, subd. (c).) The statute does not apply to all rape convictions, for example, but only to those rapes committed by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (Pen. Code,  261, subd. (a)(2), 262, subd. (a)(1), 667.61, subds. (c)(1), (2).) The statute also distinguishes between aggravating circumstances that trigger the increased penalties, and the length of the sentence imposed depends on the type and number of aggravating circumstances in the given case. (Pen. Code,  667.61, subds. (a), (b).) The statutes structure and provisions therefore recognize gradations of culpability, and appellants facial challenge to its constitutionality fails.

Further, as applied to this case, the One Strike law did not constitute cruel and unusual punishment. Under the California constitution, a punishment is excessive if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in the process unless a statute prescribes a penalty out of all proportion to the offense [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment. (Id. at pp. 423-424.) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) A defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)

Under the three-prong test for cruel and unusual punishment, courts (1) consider the nature of the offense and/or the offender, (2) compare the punishment to other punishments imposed in the same jurisdiction for more serious offenses; and (3) compare the punishment to other punishments impo