P. v. Cabrera

Filed 12/2/09 P. v. Cabrera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed with directions.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Albert Cabrera reconnected with his estranged daughter, Jane Doe, in 2003, and he became her dentist. On March 17, 2007, she went to his office for a dental appointment. After the appointment, they went out to dinner and drank several beers together. They returned to defendants home, and Doe drank more beer. She became intoxicated and blacked out. She awoke to find defendant having sexual intercourse with her, and then she blacked out again. When she awoke, she immediately left the house and was picked up by her husband at a nearby pharmacy.

Defendant was found guilty of violating Penal Code section 261, subdivision (a)(3),^[1]rape of an intoxicated person, and incest within the meaning of section 285. The trial court imposed a sentence of six years on the rape of an intoxicated person and stayed the sentence on the incest. Defendant contends on appeal:

1. Insufficient evidence was presented to support his conviction for rape of an intoxicated person.

2. The trial court erred by admitting prior sexual offenses committed by him under Evidence Code section 1108, as they were more prejudicial than probative of his guilt.

3. The trial courts instruction of the jury with Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 250, the instruction on general intent, conflicted with the elements of the crime of rape of an intoxicated person, requiring knowledge on behalf of the assailant that the person is intoxicated.

4. The trial court failed to properly award defendant full presentence custody credits as required by Penal Code section 4019.

We conclude that the evidence supports defendants conviction, that defendants prior sexual offenses were properly admitted, and that the jury found all of the elements of the crime of rape of an intoxicated person. As the People concede, defendant is entitled to additional presentence custody credits, and we will so order. We otherwise affirm the judgment.

II

FACTUAL BACKGROUND

A. Current Offense Against Doe

Doe, who was 25 years old at the time of trial, saw defendant, her biological father, intermittently as she was growing up. When she was 20 years old, she began seeing defendant more regularly. Defendant was a dentist, and she began to use him as her dentist when she was about 22 years old.

On March 17, 2007, around 3:00 p.m., Daniel M., Does husband, drove Doe to defendants dentist office because she had cracked a tooth.^[2] She did not have an appointment and waited at his office until 7:00 p.m. He was unable to fix the tooth due to other patients but suggested that they go out to dinner. They went to dinner with defendants wife, Valeria.

They ordered three buckets of beer, each containing six beers. Doe drank six beers at the restaurant and ate some chips and beans. They stayed at the restaurant for about two hours and then went back to the home where defendant and Valeria lived in Norco with their three children.

They arrived at the house around 10:00 p.m. Doe was beginning to feel drunk.^[3] Doe drank one or two more beers at defendants house. Defendant had seen her drink these beers and the beers at the restaurant. Doe played some pool and then stood at the bar drinking. Valeria eventually went to sleep with her two younger children under the pool table.

Doe began to feel very drunk and was starting to black out, which she described as not remembering much. Doe recalled being in the restroom going to the bathroom; she did not recall how she got there. She saw defendant in the restroom with her while she was urinating, and then she blacked out again.

When she next woke up, defendant was having sex with her. She felt him thrusting into her vagina with his penis. Her pants and underwear were off. She was on her back on the bed in one of her sisters rooms with her feet on the floor. Defendant was standing up next to the bed. She heard defendant say, Oh, my God, I cant believe Im having sex with my daughter. She was in shock and was unable to move. She blacked out or fainted about two seconds later. She did not recall anything prior to waking up because she was drunk.

The next time she woke up, she was in a different bedroom, and her clothes were back on. She quickly picked up her cellular telephone and called Daniel to pick her up. She was still drunk but was not blacking out. She told Daniel that she thought defendant had raped her.

Doe got off the bed and realized that her leg was through a hole in her jeans. She did not stop to fix it and quickly left the house. She later noticed that her underwear was on backward.

Daniel received the call from Doe sometime around 3:00 a.m. Doe was hysterical and crying. Doe kept telling him to pick her up because something bad happened, but she did not tell him that defendant raped her. Doe told Daniel she was at a pharmacy near defendants house. When he arrived, he found her sitting in the parking lot of the pharmacy. She was hysterical. She got in Daniels car and could not stop crying. She told him to just leave the location but he refused. She finally told him that defendant had raped her. Daniel called the police because he was afraid he would hurt defendant.

Riverside County Deputy Sheriff Patrick Walls arrived at the pharmacy in response to Daniels call. Doe was in the passenger seat in the fetal position, crying heavily. When Deputy Walls started to question Doe, she rocked back and forth, continuing to sob.^[4] Doe recounted to Deputy Walls that she was drunk and had gone back to defendants house after they had gone to a restaurant, and they had sexual intercourse. Doe refused to give defendants name on the recording; she disclosed his name after Deputy Walls turned off the tape recorder. Deputy Walls did not notice any signs that would indicate Doe was intoxicated.

Doe was taken to the hospital in order for a rape examination to be done. Riverside County Sheriffs Senior Investigator Carla Gordon responded to the hospital. Doe was very distraught and difficult to communicate with. She was rolled up into the fetal position on the examination table.

The rape examination was performed on Doe on March 18, 2007. She had several abrasions and lacerations on the outer lips of her vaginal area. The nurse examining Doe surmised the abrasions and lacerations were caused by a blunt object hitting that area with enough force to cause abrasion and the skin to split. The lacerations could be seen with the naked eye. The injuries appeared to have occurred within the prior 48 hours. There was no way of knowing if this occurred during a consensual sexual encounter.

Sergeant Michael McConville went to Does home on March 25, 2007, in order for Doe to make a pretext phone call to defendant in order to get him to talk about the incident. Doe called defendant.^[5]

In the phone call, Doe initially told defendant that she was not doing well and accused him of acting like he did not know what happened. Defendant immediately asked if she was recording the conversation, which Doe denied. Doe told defendant that she needed to go the hospital because she could not stop bleeding since he had sex with her. Defendant responded, Oh my God. She asked him what she should do, and he offered to help her with whatever she needed. When she first accused him of raping her, he responded, Oh no. No way. When she told him that she remembered what had happened, he asked to meet with her in person. When he said to her that he thought she was taking the wrong direction, and she responded that she was angry because he raped her, he again responded, Oh, my God . . . .

When Doe asked defendant what should she do if she got pregnant, he responded, [T]here must be a solution, and said that he was on her side. She asked what she should say at the hospital, and he responded, Yeah, dont  dont even  you  you dont want to, you know, talk that way, because then everybody will be, you know  you will be in trouble. I will be in trouble. Everybody will be in trouble. Doe stated, Why would I be in trouble? Because I was drunk, and my dad raped me? Why would I get in trouble? Defendant did not deny the statement but responded, Can I go speak to you?

Doe then tried to get defendant to state what he had done to her. When he refused, she told him that she remembered. He responded, Okay, . . . if you remember, why are you asking me what I did, if you already know? She told him she wanted to know because she did not understand why she was bleeding. He told her it could be because she had not had sex in a while, and her vagina had closed up.

When Doe again said to him that she remembered what happened, he again asked if she was recording the conversation. Defendant then told her that he remembered her rubbing her breasts against his arm while they were playing pool. He accused her of wanting to get closer to him, and this was a channel to get close to me . . . . He told her that she may have wanted it. He told her not to disclose what happened.

Defendant assured her it would never happen again. He also accused her of opening her legs to him. Defendant finally said, Okay. Here  here  here I go . . . . I  I do remember. And I think it was incredibly beautiful. I  I think it was just  I think in my mind, it  it  I could only see you all this time. Its weird. I I have to be honest with you, honest  just honest. I . . . cannot stop seeing you, your beautiful body . . . . Doe started sobbing uncontrollably and rolled up into a ball. The conversation ended.

B. Prior Offenses

In 1993, defendant was April P.s dentist. She had no relationship with defendant other than that. On July 30, 1993, she went to defendant to have him fill a cavity. She was wearing jeans that had several rips in them, including on her upper thigh.

When defendant came into the examination room, he commented that April was wearing nice jeans. A little while later, he said it again. While she was sitting in the dental chair, defendant commented that he had a boat and that there was a bed on the boat. Defendant asked her if she was interested in riding on the boat, and she said no.

While April was lying down in the chair, defendant moved close to her face and kissed her, whispering in her ear that he wanted to take her to his boat. He then put his hand in the tear on her jeans in the thigh and started rubbing her thigh. She pushed his hand away and told him not do that. Defendant started rubbing her inner thigh again. He gave her at least two more short kisses and was whispering in her ear. He finished the work on her teeth, and she left. She reported the incident to police.

In 1992, defendant was Wilhelmeina W.s dentist. On August 26, 1992, Wilhelmeina went to defendants office to make an appointment. Defendant was able to see her that day. Defendant started cleaning her teeth. As he cleaned her teeth with one hand, his other hand moved up her leg and touched her crotch. At first she thought it was an accident, but when he touched her more than once, she knew it was intentional. He touched her on her vaginal area and inner thigh. Wilhelmeina did not say anything because she was scared.

After defendant was done cleaning her teeth, Wilhelmeina went over to the sink to rinse her mouth. As she did, defendant grabbed her buttocks. She quickly left the room. She went to straight to the police department.

The parties stipulated that defendant was charged in 1993 with misdemeanor sexual battery against Wilhelmeina and simple battery against April. A plea was negotiated; he was convicted of simple battery, and the sexual battery charge was dismissed.

C. Defense

Defendants nephew, Jose Miguel Alvarez Cabrera, was at defendants home on March 17, 2007. Defendant arrived home with Valeria and Doe about 11:00 p.m. Doe did not seem intoxicated. Defendant and Jose played pool. Doe talked on her cellular telephone for over an hour.

At one point, Valeria and Doe joined in playing pool. While they played, Doe put the pool stick between her legs and danced provocatively with the stick. Jose also saw Doe rub her breasts on defendants arm. She also came up close to Joses face as though she was going to kiss him. He backed away. Around 3:20 a.m., Doe did not appear to be drunk.

Around 3:30 a.m., Doe came behind defendant and put her arms around his waist. She then pushed defendant toward the back of the house that had bedrooms and restrooms. Valeria was asleep under the pool table, and Jose stayed in the pool room. Defendant came back alone about 20 minutes later and told Jose to go to bed. Defendant woke Valeria and took her to their bedroom.

Defendant testified on his own behalf. He started his practice as a dentist in 1991. Defendant first admitted that he touched April, but claimed he was young, and she was flirting with him. He then denied that he did anything with her. He did not touch Wilhelmeina. Defendant claimed that Wilhelmeina was upset with him about her dental care.

Defendant insisted the buckets of beer at the restaurant contained only four beers each, and they bought three buckets. While at the restaurant, Doe and Valeria kept going to the bathroom together, and Valeria encouraged him to dance with Doe. Doe moved in close to defendant while they danced. He did not think she was intoxicated. Doe ate a large amount of food at the restaurant.

Doe did not seem drunk on the ride home or at their house. They arrived home around 11:30 p.m. Doe drank about two beers at defendants house.

Defendant also indicated that Doe put a pool stick between her legs and moved it back and forth in a flirtatious manner. After Valeria went to sleep under the pool table around 3:00 a.m., Doe came toward defendant and rubbed her breasts on his arm. Defendant did not react, and she sat down on a stool.

About 20 minutes later, Doe came up to him and hugged him. She then gave him a very short kiss on the lips. It was very quick, and he did not have time to react. She had never done this before, but he still did not think that she was drunk. Doe went back and sat down. She then got on her cellular telephone until 4:30 a.m. She was not staggering or falling when she walked.

After Doe got off the phone, she came up behind defendant and put her arms around his waist. She then put one arm around him and pushed him toward the bedrooms. She directed him into one of the bedrooms. Doe immediately took off her pants and underwear. She laid down on the bed with one leg on the bed and one on the floor. Defendant remained standing nearby. Doe rubbed her private area and said, I thought I had a tampon. Defendant told her to put back on her pants and that she could sleep in another bedroom. Defendant left the room and did not have sex with Doe.

Defendant was scared during the pretext phone call because he had seen Doe naked. He was afraid she was going to accuse him of something. He asked if she was recording him because he was shocked and scared by the incident of her taking off her pants. He told Doe that she may be in trouble because of what she did. He said he was trying to appease her when he mentioned her beautiful body. He admitted it was the wrong thing to say, but he was in shock.

Defendant believed that his wife Valeria and Doe were working together against him. He believed they had set him up in order to accuse him of rape. He based his opinion on the fact that Doe visited his wife at least three times after he was in jail. In addition, since he was in jail, Valeria had disappeared. He did not know where she had gone, and she had taken his cash.

III

SUFFICIENT EVIDENCE OF RAPE OF INTOXICATED PERSON PURSUANT TO PENAL CODE SECTION 261, SUBDIVISION (A)(3)

Defendant contends that the evidence was insufficient to support his conviction of rape of an intoxicated person because there was no evidence supporting that Doe was intoxicated to the point that she was unable to exercise the judgment required to decide to consent to intercourse or that defendant knew or should have known the extent of her intoxication.

A. Standard of Review

We often address claims of insufficient evidence, and the standard of review is settled. A reviewing court faced with such a claim determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] We examine the record to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Moon (2005) 37 Cal.4th 1, 22.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)

B. Analysis

Section 261, subdivision (a) provides that [r]ape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under certain circumstances, including [w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. ( 261, subd. (a)(3).)

In People v. Giardino (2000) 82 Cal.App.4th 454, 462 [Fourth Dist., Div. Two] (Giardino),^[6]the court found that section 261, subdivision (a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. (Giardino, at p. 462.) [T]he statute requires only that the level of intoxication be such that the victim is incapable of exercising the judgment required to decide whether to consent to intercourse. (Id. at p. 464.)

In deciding whether the level of the victims intoxication deprived the victim of legal capacity, the trier of fact must consider all the circumstances, including the victims age and maturity. [Citation.] It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victims sexual inhibitions. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. [Citations.] Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue. (Giardino, supra, 82 Cal.App.4th at pp. 466-467, fn. omitted.) Whether the victim possessed sufficient mental capacity to give legal consent despite her intoxication is a question of fact for the jury. [Citation.] (Id. at p. 470.)

Defendant contends that Does testimony that she was so intoxicated that she blacked out could not support the verdict in light of other testimony from defendant and Jose that she did not appear intoxicated. Further, Doe was able to make her way to the pharmacy after the rape and was able to direct her husband to the location. Also, since Doe drank the eight beers over a long period of time, the evidence did not support that she was intoxicated.

The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. The rule is applicable to sex cases. (People v. Scott (1978) 21 Cal.3d 284, 296; see also People v. Young, supra, 34 Cal.4th at p. 1181.) Here, Doe testified that she had had six beers at the restaurant and had eaten very little. She then drank two more beers at defendants home. The amount of alcohol she consumed reasonably could support that she was impaired, especially in light of Does testimony that she became intoxicated, as discussed, post. (See Giardino, supra, 82 Cal.App.4th at pp. 467, 470 [consuming five ounces of bourbon was evidence from which the jury could have concluded that the victim was not capable of exercising reasonable judgment].)

Doe began to feel very drunk and was not remembering much at defendants house. She recalled being in the bathroom and then ending up on a bed, but she had no knowledge of how she got there. When she woke up to defendant thrusting his penis into her vagina, she was unable to move and immediately blacked out again. She was unable to resist because she felt too drunk to do so.

When Doe first spoke with Deputy Walls, she immediately recounted that she had been drunk and that defendant had had sexual intercourse with her. In her conversation with defendant, she stated several times to him that she had been intoxicated and had blacked out but that she remembered what had happened. Doe was very consistent in her statement that she had blacked out and could not resist defendant due to intoxication. There was nothing impossible or inherently improbable about her testimony, and the jury could have reasonably relied upon Does testimony in finding that she was intoxicated and could no longer exercise reasonable judgment in resisting her own father, who was having sex with her. (Giardino, supra, 82 Cal.App.4th at pp. 466-467.)

In addition, defendant claims the evidence was insufficient to establish that he knew or should have known that Doe was too intoxicated to resist sexual intercourse.

Section 261, subdivision (a)(3) requires proof the defendant knew or reasonably should have known the effect of an intoxicating substance. (See also CALCRIM No. 1002.) An honest and reasonable but mistaken belief the victim was able to consent is a defense to rape by intoxication. (Giardino, supra, 82 Cal.App.4th at p. 472.) [J]urors are able to resolve the factual issue of whether a defendant reasonably should have known that a given victim was too intoxicated to resist an act of sexual intercourse. [Citation.] (People v. Linwood (2003) 105 Cal.App.4th 59, 68 (Linwood).) It is not necessary that proof be present that this defendant personally knew of the victims condition if a reasonable person in like circumstances would have known. (Id. at pp. 71-72.)

Based on Does testimony, she was blacking out and unable to remember what was happening. She indicated that defendant had been with her all night and had witnessed her drinking several beers. Although defendant claimed that Doe only drank four beers at the restaurant, the jury clearly could have rejected this testimony in light of Does testimony that she drank six beers.

Doe did not recall how she got from the bathroom to one of the bedrooms but recalled that defendant was with her. Defendant had previously treated Doe for injuries to her teeth due to prior incidents where she had become intoxicated. The jury could reasonably infer from the facts that defendant saw Doe drinking several beers throughout the night, that she was not acting like herself, that she blacked out in the bathroom, and that he knew she had previously hurt herself due to excessive drinking, that he knew or reasonably should have known that Doe was intoxicated that night to the point she was unable to make a reasonable judgment about engaging in sexual intercourse with defendant.

Defendants claim on appeal is based solely on his own testimony and that of his cousin, Jose, who lived with him. The jury reasonably could have rejected that testimony and believed Doe. Accordingly, the jury could have reasonably concluded that Doe was so intoxicated that she was incapable of exercising the judgment required to consent to the sexual intercourse and that defendant knew or should have known she was too intoxicated to consent. The evidence was sufficient to support defendants conviction on rape of an intoxicated person.

IV

ADMISSION OF PRIOR SEXUAL OFFENSES PURSUANT TO

EVIDENCE CODE SECTION 1108

Defendant contends that the trial court abused its discretion by admitting defendants prior sexual offenses pursuant to Evidence Code section 1108, as they were more prejudicial than probative.

A. Additional Factual Background

Prior to trial, the trial court addressed the Peoples motion to admit the two prior sexual offenses, as outlined, ante. Defendant argued in opposition that the prior offenses were 14 and 15 years old and therefore did not show a propensity on his part to commit sexual offenses. Further, there were no similarities between the prior offenses and the current offense. The prior offenses involved touching but no sexual activity and no intoxicants, and they were in work settings; here, the offenses were in a social setting and involved alcohol. Further, the earlier cases resulted in a simple battery. The offenses were substantially different, and there was a huge time gap. The offenses would tend to confuse the jury and would not show defendant had a propensity to commit rape.

The People responded that Evidence Code section 1108 did not require a showing of consistent activity on a year-by-year basis. Although the prior incidents did not involve alcohol, they did involve defendant being in a position of control or power over the victims. It was also relevant to show his general nature of sexual deviance. Further, the fact that the prior offenses were minor showed they were not overly prejudicial.

The trial court admitted the offenses, finding that although they were somewhat remote, other courts have held that even a 20- to 25-year gap did not automatically require exclusion. There was no risk of inflaming the jury, as the prior incidents were much less egregious. The trial court ruled,  . . . I do agree with [the prosecutor] that it can show propensity because what it can show is the defendant taking advantage of individuals when he is in a position of trust. And I should note that all three incidents started at his office, at his dentist office. Even the current incident started at the dentist office, although it ended up in a restaurant, and then ultimately at his house. All three had the same pattern and he is acting as a dentist. . . .  [T]hats important for the Court.

The trial court concluded, So there is value, there is probative value, because it does show some propensity. And the Court feels that its not unduly prejudicial because they are minor compared to the case at bar. The trial court did rule that the prior offenses were not admissible under Evidence Code section 1101, subdivision (b), as there was not a mistake of fact, and the offenses were somewhat dissimilar.

B. Analysis

Evidence of prior criminal acts is ordinarily inadmissible to show a defendants disposition to commit such acts. (Evid. Code, 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, 1108) . . . . (People v. Reyes (2008) 160 Cal.App.4th 246, 251.)

Evidence Code section 1108 provides, as relevant here: 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. (Evid. Code, 1108, subd. (a).) Sexual battery (Pen. Code, 243.4) is listed in Evidence Code section 1108 as a sexual offense. (Evid. Code, 1108, subd. (d)(1)(A).)

[T]rial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)

This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling falls outside the bounds of reason. [Citation.] (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)

Initially, the prior offenses were probative of the issue to be decided by the jury in this case. Clearly, as set forth, ante, the jury was called upon to decide a credibility contest between defendant and Doe. The prior-offense evidence was relevant to bolster Does credibility. She was the only witness to the offense against her. Although the medical evidence did provide some physical evidence that she had had intercourse that night, the fact that other women had been victims of defendants unwelcome advances helped to bolster her testimony that such encounter was not consensual. It was also relevant to establish that defendant was predisposed to making unwanted sexual advances on unwilling victims.

Further, the offenses were not more prejudicial than probative. The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] [Citation.] (People v. Gionis (1995) 9 Cal.4th 1196, 1214, italics omitted.)

Defendant contends the dissimilar nature of the prior offenses and his relationship with the victims of those offenses made them have little probative value, and any such value was outweighed by their prejudicial effect. The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) Here, there were similarities. All three offenses involved defendants unwanted advances on young women who clearly did not have an interest in him.^[7] In all three offenses, he took advantage of a position of trust: all persons should be able to trust their dentists and of course their fathers.

Defendant also contends that the prior sexual offenses were too remote. However, [n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284.) [T]he passage of a substantial length of time does not automatically render the prior incidents prejudicial, especially when probative of a defendants sexual misconduct. (People v. Soto (1998) 64 Cal.App.4th 966, 991-992.) It is only one factor in the weighing process. (See People v. Harris (1998) 60 Cal.App.4th 727, 739.)

Finally, defendant contends that the prior offenses were inflammatory because they show defendant taking advantage of two vulnerable women. The jury heard that the prior offenses resulted in a conviction for simply battery; this minimized any potential prejudice, by ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses . . . . (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Further, the nature of the prior offenses was clearly less inflammatory than the nature of the current offense.

Moreover, even if the trial court erred by admitting the prior offenses, it is not reasonably probable that the jury would have acquitted defendant had the prior offenses been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 60 Cal.App.4th at p. 741.)

Here, there was no dispute that Doe was present at defendants house that night and drank alcohol. Doe herself presented very damaging testimony that she blacked out and that defendant took advantage of her by having sexual intercourse with her. She was reported by several persons to have been extremely distraught after the incident. This was clearly inconsistent with having consensual sex with defendant or merely taking off her clothes in front of him. Moreover, the physical evidence supported that she had recently had sex. However, the most damaging testimony came from defendant himself during the pretext phone call. Defendant never denied that he had sexual intercourse with Doe during the conversation; rather he told her that he thought she wanted to have sex with him to get closer to him. He encouraged her not to tell anyone, advising her that they both would be in trouble. Further, he commented on how he could not stop thinking about her beautiful body, even though he knew it was wrong to do so. Defendant was unable to give any type of plausible explanation to the jury why he had made such a comment; his claim that he was in shock and trying to appease Doe by making this comment simply was not an adequate explanation.

Based on the foregoing, even had the trial court excluded that testimony of Wilhelmeina and April, the result of the trial would have been the same. Does testimony, coupled with the physical evidence that she had had sexual intercourse and defendants own damaging statements, were sufficient to convict defendant of the instant offenses without reliance on the prior offenses.

V

INSTRUCTIONAL ERROR IN GIVING CALCRIM NO. 250

Defendant contends that the trial court erred by giving CALCRIM No. 250, the instruction on union of act and general criminal intent, for the crime of rape of an intoxicated person because it conflicted with the requirement that he have knowledge that Doe was intoxicated in order to commit that crime. He claims that instructing the jury on general intent removed this knowledge element from the jurys consideration and requires reversal of his conviction of rape of an intoxicated person.

A. Additional Factual Background

During discussion of the jury instructions, the trial court stated that it was going to give CALCRIM No. 250 on general intent. Defendant objected because that instruction defined the crime of rape as a general intent crime. However, defendant argued that the instruction for rape of an intoxicated person in CALCRIM No. 1002 had a definition as follows: The defendant knew or reasonably should have known that the effect of (a/an) intoxicating/anesthetic/controlled) substance prevented the woman from resisting. (CALCRIM No. 1002 (Apr. 2008 ed.).) Defendant argued that this language required a mental state.

The trial court rejected that there was a mental state requirement, but rather a requirement that the People prove beyond a reasonable doubt that defendant knew or should have known Doe was too intoxicated to consent. The People stated, In fact, even if the defendant didnt have that mental state, I can still prove my case because thats what a reasonable person in the defendants shoes should have known. So we cant assume theres a mental state given to that, if its a reasonable persons standard.

The trial court responded, It says, Knew or should have known. You wouldnt have should have known if you had to have a mental state. Thats an affirmative state of mind. Should have known, he may not have had any earthly idea that she was intoxicated, no knowledge whatsoever. No intent, none. [] But, based on the circumstances of a reasonable person would have known, you have the burden of proving that. But I think that that points it out nicely. Thats why its not a specific intent crime, but rather a general-intent crime.

B. Analysis^[8]

A crime is characterized as a general intent crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a specific intent crime when the required mental state entails an intent to cause the resulting harm. [Citation.] When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intent is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some future act or achieve some additional consequence, the crime is deemed to be one of specific intent. [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 518, fn. 15; see also People v. Laster (1997) 52 Cal.App.4th 1450, 1468.)

It is well settled that rape of an intoxicated person is a general intent crime. (Linwood, supra,105 Cal.App.4th at p. 70.) Rape . . . requires only the perpetrators criminal intent to commit sexual intercourse without the partners consent. (Id. at p. 70.) Under section 261, subdivision (a)(3), the accused must either have known or reasonably should have known of the victims particular condition that precluded consent. (Linwood,at p. 71.) Further, this knowledge requirement has been described as a criminal negligence standard since a defendant can be found guilty if he reasonably should have known the victim was intoxicated. (Ibid.)

CALCRIM No. 250, as given to the jury, instructed: The crimes charged in this case require proof of the union or joint operation of act and wrongful intent. [] For you to find a person guilty of the crimes of rape by intoxication, as charged in Count 1, and incest, as charged in Count 2, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however . . . , it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime. According to the bench note to CALCRIM No. 250, this instruction should not be given if the crime requires a specific mental state such as knowledge and the crime is a general intent crime. (Bench note to CALCRIM No. 250 (Apr. 2008 ed.).)

CALCRIM No. 1002, as given to the jury provided, in relevant part, that defendant knew or reasonably should have known that the effect of the intoxicating substance prevented the woman from resisting.

We have found no cases addressing whether CALCRIM No. 250 is the appropriate instruction for rape of an intoxicated person, especially in light of the wording of CALCRIM No. 251,^[9]nor have counsel provided such authority. The People argue the instruction was proper because rape of an intoxicated person is a general intent crime. Defendant relies on several cases involving violations of section 290 for failing to register as a sexual offender to establish that CALCRIM No. 250 was improperly given.

However, as noted by the trial court and the People below, the mental state here was only that of criminal negligence. (Linwood, supra, 105 Cal.App.4th at p. 71.) CALCRIM No. 250 did not conflict with the finding of knowledge in CALCRIM No. 1002. Further, in light of the instructions as a whole, the jury would not have found defendant guilty of raping Doe while she was intoxicated simply by the act of raping her, without considering whether he had the knowledge of Does intoxication to the point she could not resist.

We review the entire charge to the jury in light of the evidence and the argument of counsel to determine whether there is a reasonable likelihood that the jury understood the instructions in the manner proposed by the defendant. (People v. Holt (1997) 15 Cal.4th 619, 677; see also People v. Clair (1992) 2 Cal.4th 629, 663.)

In addition to being instructed with CALCRIM Nos. 250 and 1002, the jury was instructed to review the instructions as a whole (CALCRIM No. 200). In addition, they were instructed that they must find each element of the crime beyond a reasonable doubt (CALCRIM No.103). The jury was instructed with CALCRIM No. 225, which advised the jurors, [t]he People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent. The instruction for the crime explains the intent required. As noted, ante, the jury was properly instructed with the elements of the crime of rape of intoxicated person (CALCRIM No. 1002). The instructions as a whole clearly advised the jurors that they were to determine whether defendant knew or reasonably should have known that Doe was intoxicated to be unable to resist. It is inconceivable that they ignored all of these instructions and relied on CALCRIM No. 250 to convict him only on the basis of the act of rape.

Moreover, during closing argument, the People advised the jurors that it must find as an element of rape of an intoxicated person that defendant knew or reasonably should have known that Doe was intoxicated. Defendant argued that there was no evidence that Doe was intoxicated, as she had drunk fewer beers than the number to which she had testified, and defendant would have known how many beers she ingested. Further, the beer was consumed over an eight-hour period. Doe was showing no signs of intoxication. Further, defendant argued there was no alcohol in her system. Defendant argued that if the jury found she was not intoxicated, then he was not guilty. The People responded that there was ample evidence that Doe was intoxicated to prove the crime of rape of an intoxicated person.

The jury was fully aware that they had to determine that defendant knew or reasonably should have known that Doe was intoxicated to the point that she could not resist. CALCRIM No. 250, in light of all of the instructions and argument of counsel, would not have been interpreted by the jury to allow them to convict defendant if they found that he raped her without considering whether she was intoxicated. We therefore reject that the jury failed to find the elements of the crime beyond a reasonable doubt.

VI

PRESENTENCE CUSTODY CREDITS

Defendant contends that the trial court failed to award him full presentence custody credit under the apparent misconception that his current offense was a violent felony within the meaning of section 667.5, subdivision (c), which under section 2933.1 would limit the award of custody credits to 15 percent. The People concede the error.

At the time of sentencing, the trial court stated, Credits as follows: 519 actual, 77 [section] 4019 time, for a total of   Im sorry  [section] 2933 time for a total of 596 days. Neither the offense of section 261, subdivision (a)(3) or 285, of which defendant was convicted, is listed in section 667, subdivision (c) as a violent felony, and therefore the limitation of credits to 15 percent embodied in section 2933.1 do not apply to defendants case. Accordingly, defendant was entitled to full credits calculated under section 4019.

Both parties agree that he is entitled to 258 days of good time/work time credits, added to the 519 actual days of custody credit, for a total of 777 days of presentence custody credit. We will direct the trial court to amend the abstract of judgment and minutes of the sentencing hearing to reflect this recalculated award.

The People also note that on the abstract of judgment, the box is marked that the custody credits have been limited by section 2933.1. We agree the abstract of judgment should be modified in order to reflect credits have been calculated under section 4019 and shall so order.

VII

DISPOSITION

The Riverside County Superior Court clerk is directed to correct the sentencing minute order and abstract of judgment to reflect the appropriate presentence good time/work time custody credits of 258, for a total of 777 days of presentence custody credits, and to mark the box on the abstract that credits are calculated pursuant to Penal Code section 4019 and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Doe had cracked her tooth because she had been drinking and flipped her truck. She received a driving under the influence conviction due to the incident. There was another incident where she fell down due to her drinking and cracked her teeth. Defendant fixed them.

^[3] Doe claimed that she drank occasionally.

^[4] A tape recording of Deputy Wallss conversation with Doe was played for the jury.

^[5] The phone call was recorded and played for the jury.

^[6] Although Giardino involved instructional error, the court did review the language of the statute and case law in determining the elements and level of proof for the crime.

^[7] Defendant contends that Doe was coming on to him, but that evidence came from his own self-serving testimony.

^[8] Although defendant addressed a waiver argument in his opening brief, the People do not contend the issue was waived. Further, it appears defense counsel did make this objection.

^[9] CALCRIM No. 251 instructs the jury to determine whether a defendant acted with specific intent and/or mental state in committing the act constituting the charged crime. In the bench notes, it states, [t]his instruction must be given if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. (Bench note to CALCRIM No. 251 (Apr. 2008 ed.), boldface omitted.)