Filed 5/6/15 P. v. Rankin CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

SHAWN L. RANKIN, 

 Defendant and Appellant. 

 B252821 

 (Los Angeles County 

 Super. Ct. No. BA329452) 

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Sam Ohta, Judge. Affirmed. 

 Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and David 

Zarmi, Deputy Attorneys General, for Plaintiff and Respondent. 

___________________________________________________ 
2

 A jury convicted defendant Shawn L. Rankin of two counts of forcible rape (Pen. 

Code, § 261, subd. (a)(2))1 (counts 5, 6) and one count of forcible oral copulation 

(§ 288a, subd. (c)(2)) (count 7).2 The jury found that in the commission of the offenses, 

defendant committed two or more sex offenses against more than one victim in violation 

of section 667.61, subdivision (e)(4). 

 Pursuant to the one-strike finding, the trial court sentenced defendant to 15 years 

to life in counts 5 and 6, to be served consecutively. The court imposed the high term of 

eight years in count 7, to be served concurrently. 

 Defendant appeals on the grounds that: (1) the trial court’s response to the jury’s 

notice of deadlock resulted in a coerced verdict and deprived him of his rights to due 

process and a jury trial; (2) section 261.6 and CALJIC No. 1.23.1 violate due process by 

creating a presumption that a victim has not consented unless she positively cooperates in 

the sexual acts alleged; (3) the trial court committed prejudicial error in failing to provide 

the jury with optional instruction on withdrawal of consent given the testimony of 

defendant’s former girlfriend; (4) defendant’s convictions should be reversed due to the 

trial court’s admission of prior sexual offense evidence under Evidence Code section 

1108; (5) defendant’s conviction should be reversed because consideration of the 

uncharged offenses as propensity evidence under Evidence Code section 1108 deprived 

him of equal protection and his due process right to a fair trial; (6) defendant was 

deprived of his due process right to a fair trial as a result of the erroneous admission of 

other sex offense evidence to show common plan or scheme; (7) the trial court committed 

prejudicial error in refusing to take judicial notice that defendant had pleaded guilty to 

sexual battery in one of the uncharged acts; (8) CALJIC No. 2.50.01 interfered with the 

presumption of innocence and defendant’s right to have the jury make a determination of 

guilt upon proof beyond a reasonable doubt; and (9) if the court finds any of the 

 

1 All further references to statutes are to the Penal Code unless stated otherwise. 

2 The jury acquitted defendant of the 1997 murder (count 1), rape (count 2), 

penetration by a foreign object (count 3), and torture (count 4) of Wyesser Ann Cook. 
3

instructional or evidentiary arguments forfeited, trial counsel provided ineffective 

assistance. 

FACTS3

Prosecution Evidence 

K. W. (Count 5) 

 On May 6, 2001, at 10:00 p.m., K. W. was standing at a bus stop near the 

intersection of Crenshaw Boulevard and Vernon Avenue. K. had drunk a bottle of wine 

and was carrying a second one. A man began talking to her from his car. He drove a 

Durango SUV and asked K. if she needed a ride. K. accepted the ride, since she often 

accepted rides from strangers. Prior to that date, she had never had a bad experience 

doing that. 

 Defendant began driving K. home in the direction that she told him. He then said 

he had to tell his wife he was driving K. home. He continued driving away from the 

direction of her home. He eventually parked at the curb near an apartment building. 

 K. recalled that she was in the back seat and defendant got in the back seat. K. 

asked him why he was there. Defendant grabbed her by the neck and began choking her 

and pulling her to him. K. almost lost consciousness. When she could breathe again, she 

said, “Please don’t kill me.” Defendant said something that K. did not remember and 

ripped off her pants. The pants and K.’s shirt were shown to the jury. 

 Defendant told K. to do as he said. He proceeded to have sexual intercourse with 

her, although she did not want to. She was too afraid to resist. She told him, “no” 

several times. Defendant told her to act as if she liked it. After defendant finished, K. 

reached for the door, which was unlocked. She got out of the car, leaving behind her 

purse and alcohol. K. ran screaming toward some nearby apartments. A woman helped 

her and gave her a blanket to cover up. The police came and took her for an examination. 

She later received her identification and Social Security card in the mail. 

 

3 The factual summary omits evidence related to counts 1 through 4, which charged 

defendant with the crimes against Wyesser Ann Cook, since defendant was acquitted of 

all of those counts. 
4

 Angeline Sims heard loud cries coming from the grassy area in front of her 

condominium. She saw K. running and screaming. Sims went outside and saw that K. 

was “half-clothed” and appeared scared. The police arrived and spoke to them. Another 

neighbor, Gail Oliver, had been driving home when she noticed an SUV parked in a dark 

area near a closed nursery. She heard a woman screaming a couple of minutes later. 

 Elizabeth Tighe examined K. at the rape treatment center at Santa Monica 

hospital. Tighe saw redness to the neck and a laceration on the left breast. Tighe 

collected swabs from different parts of K.’s body. The swabs and K.’s clothing were 

turned over to law enforcement. 

 On April 15, 2002, Stephanie McLean, a criminalist with the Los Angeles Police 

Department’s crime lab, analyzed K.’s rape kit. She detected spermatozoa on the vaginal 

sample and external genital sample. She prepared samples and sent them to a DNA 

laboratory. 

 The parties stipulated that Matthew Quartaro was employed as a DNA analyst for 

Orchid Cellmark. On August 9, 2002, the laboratory received items from K.’s rape kit 

that were submitted for DNA typing. On October 31, 2007, Quartaro received a sample 

from defendant. It was stipulated that “the DNA profile from the female fraction of the 

external genital swab . . . from K.’s rape kit [was] identified as originating from 

[defendant].” 

 N. M. (Counts 6 and 7) 

 In the afternoon of April 29, 2002, N. M. was walking on Jefferson Boulevard 

with her two daughters, ages four and two, when a man drove up and commented on her 

shirt. He asked for her name. He then parked and got out. He seemed kind and 

respectful. He asked for her phone number after a short conversation, and she gave it to 

him. 

 Defendant offered N. a ride, and she allowed him to drive her and her children 

home. N. had regularly accepted rides from strangers, but that was the last time. 

Defendant stayed in N.’s living room for a few minutes and then left. 
5

 Defendant called N. that night. N. told defendant that she wanted cookies, and 

defendant asked if she wanted him to come over. He also asked if she wanted to smoke 

marijuana. She agreed. Her daughters were asleep when defendant arrived at 10:45 p.m. 

N. and defendant went into the front bedroom because the living room had no light. 

There was a daybed in that bedroom, and N. and defendant watched television and 

smoked. Defendant showed her his tattoos, which included a tattoo of a sun on his arm. 

Defendant told N. he owned a carpet cleaning business and “never had a record.” At one 

point, she and defendant drove to get some cookies, leaving the children asleep in the 

house. When they returned, they continued smoking. N.’s daughter woke up, and N. told 

defendant it was time to go. 

 As defendant was leaving, he asked N. if he could have a kiss. At first she said 

“no” but then she kissed him on the cheek. She led him through the kitchen to the back 

door because the front door did not work. Defendant’s whole demeanor changed, and he 

asked N. if she wanted to have sex. When she refused, he offered her $100 for sex. 

When N. declined again, defendant threatened to kill her with a gun. 

 N. froze, and defendant grabbed her around the neck and led her into the living 

room. Defendant pushed her onto the couch and told her to take off her clothes. When 

she took too long, defendant started to strangle her. N. could not breathe and did not 

remember if she lost consciousness. When N. was completely naked, defendant removed 

his pants and pulled her bandana over her eyes. Defendant asked N. to perform oral sex 

on him. She said, “No,” and he responded, “Yeah. Yeah. You’re right.” He began 

performing oral sex on her. He stopped and began having sexual intercourse with her. 

Afterwards, defendant wiped N.’s body with baby wipes he found in her home. 

 Defendant took the cordless hand receiver from N.’s telephone. He moved N. into 

the room with the daybed and put her in the closet. Defendant came back to get N. 

because he could not open the front door. N. told him she could not open it. Defendant 

put her back in the closet, and she waited until she saw the lights from his car through the 

closet window. She came out and called 911 by using the speakerphone. She realized 

that the dirty baby wipes and her bandana were not in the house. 
6

 The police came and took N. to the hospital for examination. Nurse Danielle 

Blum examined her and prepared a rape kit with swabs from N.’s genitals. N. gave a 

police sketch artist a description of the man who raped her. N. told the artist that 

defendant had a bald spot behind his ear and a tattoo of the sun on his left shoulder. The 

sketch was shown to the jury. 

 On August 22, 2007, N. was shown a photographic lineup that included defendant, 

and she was unable to identify him. At trial, N. appeared to identify defendant in court 

by pointing to him when describing the perpetrator’s haircut. She later stated that 

although she was referring to the defendant, she could not see the man who raped her in 

the courtroom. She said she did not recognize the defendant “the way he looks now.” 

The man in court looked old to her. N. did not know K. 

 On May 16, 2002, Los Angeles Police Criminalist Meghan Cirivello prepared 

DNA samples from the vaginal swab taken during N.’s examination and sent them for 

analysis. The parties stipulated that on October 31, 2007, Quartaro examined the DNA 

samples taken from N. and determined that “the DNA profile from the male fraction of 

the vaginal swab . . . [was] identified as originating from [defendant].” 

Keisha H. (Uncharged Act) 

 Keisha H. was defendant’s girlfriend in 1994 and 1995. At that time, defendant 

lived near the intersection of Avalon Boulevard and Florence Avenue in Los Angeles. 

They had a sexual relationship, and he never forced her to have sex with him against her 

will. On one occasion, they were having intercourse and she asked him to stop, but he 

continued. This occurred in the middle of their relationship when things were “going 

downhill.” 

Yolanda C. (Uncharged Act) 

 On February 6, 2000, at midnight, Yolanda C. was walking on a street near her 

home in Los Angeles. Yolanda saw defendant, whom she had seen four or five times 

before in the neighborhood. He was sitting in a parked car. Yolanda and defendant 

exchanged a greeting, and she told him she needed a ride. Yolanda had smoked cocaine 

approximately two hours earlier. It had worn off and she was on her way to get more. 
7

Defendant told Yolanda to get in. She told him where she needed to go, but he drove to a 

dead-end street. He parked and told her to get in the back seat, and she did so because 

she was scared. Defendant then pulled out a gun. Yolanda testified previously that 

defendant offered her money for sex and she told him that was entrapment. She also 

testified previously that she told defendant she was not interested because she had 

somewhere she needed to go. At trial, she did not recall her prior testimony very well. 

 After defendant threatened her with a gun, Yolanda said, “Please don’t hurt me, do 

what you got to do, and let me go.” He told her to remove her clothing. Defendant had 

sexual intercourse with her and then told her to put her clothes on. He drove a bit and 

told her to unlock the door at an intersection and get out. When she opened the door, he 

pushed her out of the car. 

 Yolanda saw a police patrol car and flagged it down. She told the officers to 

follow defendant’s truck and said, “that man just raped me.” The officers put her in the 

back seat of the patrol car and followed defendant. After a chase, the officers pulled 

defendant over. They showed Yolanda a toy gun they found in the car. The police took 

her to a hospital where swabs were taken from her body. Yolanda testified against 

defendant in court in that case. She did not want to have sex with defendant. She 

believed the gun he had was a real gun. 

 Yolanda acknowledged she had been convicted of forgery. 

Investigation 

 Former Los Angeles Police Detective Gregory Stone began investigating 

defendant in connection with the crimes against K. and N. in September 2007. Detective 

Stone ascertained that defendant’s home was a mile and a half from the intersection of 

Vernon and Crenshaw and the intersection of Jefferson and Crenshaw, which were near 

the areas where the women were picked up. Defendant drove an SUV at the time of 

those incidents. Detective Stone met with defendant on September 26, 2007, and 

obtained DNA swabs from inside his cheek. 

Defense Evidence 
8

 Defendant did not testify. The defense called two witnesses whose testimony was 

relevant only to counts 1 through 4, of which defendant was acquitted. 

Rebuttal Evidence 

 The two witnesses called in rebuttal were also relevant only to counts 1 through 4. 

DISCUSSION 

I. Trial Court’s Actions with Deadlocked Jury 

 A. Defendant’s Argument 

Defendant contends that, although the trial court made no expressly coercive 

remarks, its comments to the jurors when rejecting their unanimous consensus of 

deadlock, and its offers of assistance to reach a verdict, constituted undue coercion of the 

minority jurors. Defendant argues that his convictions in counts 6 and 7 must therefore 

be reversed. He also claims he was denied due process because the court’s conduct and 

comments resulted in a de facto Allen4 charge. 

 B. Proceedings Below 

On the morning of April 29, 2013, the jury began deliberations anew after an 

alternate juror was selected to replace a juror who was ill. The jurors deliberated for the 

rest of the day and recessed that evening. Deliberations continued the following day, 

during which the jurors’ request for certain exhibits was granted. Before leaving at 

4:00 p.m., the jurors submitted a note saying that they had reached verdicts on all but two 

counts. Proceedings resumed the following day, May 1, 2013. On that morning, the third 

day, the court read a note from the jurors stating, “We have come to a verdict on five 

counts except for two. We are divided on the other two. What do we do now?” The 

court brought out the jurors, and the following exchange occurred: 

“THE COURT: The record will reflect that the regular jurors, those that are deliberating 

on this case, have entered the courtroom and are now seated. So defendant and both 

counsel are also present. Juror No. 18, you’re the foreperson; correct? 

 

4 Allen v. United States (1896) 164 U.S. 492 (Allen). 
9

“JUROR NO. 18: Yes. 

“THE COURT: You’ve sent out a note, and I have it here. It indicates, ‘We have come 

to a verdict on five counts except for two. We are divided on the other two. What do we 

do now?’ I’m going to talk to you just a little bit here, but in talking to you, the attorneys 

and I are not permitted to know what the jury is discussing or thinking about or is doing 

in the back; so I don’t want you to offer anything about what’s happening back there 

except for the question that I seek clarification on. All right, sir? 

“JUROR NO. 18: Uh-huh. 

“THE COURT: Is that a yes? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. So on this case seven counts were alleged against the defendant: 

count 1, murder; count 2, rape; count 3, penetration; count 4, torture; count 5 and 6, 

again, rape; and then count 8, forcible oral copulation. Of these counts which has the 

jury reached verdicts on? 

“JUROR NO. 18: On those counts. 

“THE COURT: On every single one of them? So on which count has the jury—let me 

ask it in the negative then. Which one have you not been able to reach a verdict on? 

“JUROR NO. 18: On the last two, forcible rape and oral copulation. 

“THE COURT: 6 and 7? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. So the jury has been able to reach a verdict on counts 1 

through 5? 

“JUROR NO. 18: Yes. 

“THE COURT: Is that right? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. Now, again, I don’t want you to offer anything beyond what I’m 

asking you so don’t tell me anything beyond the question I pose. But are you saying to 

me in this note that you’ve given here that you have done all that you can on counts 6 and 
10

7 and that you think that you are no longer able to proceed any further, that you are at an 

impasse? Is that what you’re saying to me on counts 6 and 7? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. Now, you have asked for readback of testimony on counts 6 and 

7 and you’ve gotten that. Is there anything else the court can do for you, like give you 

further readback of testimony, clarify any points of law, anything like that to assist you 

with respect to count 6 and 7? Is there anything else that you think the court could do? 

“JUROR NO. 18: We would— 

“THE COURT: Let’s do this then. You’re all kind of looking at each other thinking 

about it. Let’s do this. Consider what I have just said and see if there is anything else 

that can be done to assist you and then let me know if you think that there’s something I 

can do to help you or you think now because of what I said there’s something more to 

talk about, then you ought to continue deliberating. If, on the other hand, you think there 

is something I can do for you to help you, then you may send out another note indicating 

that there’s something that I can do for you. If, on the other hand, you do not think that 

there’s anything else that can be done, then you may send out another note indicating that 

you’re at an impasse on counts 6 and 7, and at that point I’ll bring you out and have 

further additional discussions with you. Okay? 

“JUROR NO. 18: Okay. 

“THE COURT: So I’m going to ask you to go back into the deliberating room for now 

and we will buzz you out to allow you to go to lunch. Okay? All right.” 

 After lunch, the jurors sent the court another note. The court stated, “They are 

telling me that they think they are at an impasse on those two counts. So I need to bring 

them out and determine whether or not they are deadlocked.” The court addressed the 

foreperson and, after repeating the contents of the note, it stated, “I need to ask you some 

questions now.” 

 The court summarized the actions taken to that point, i.e., two readbacks of 

testimony of the alleged victim in counts 6 and 7. The court stated, “So the trial took 

awhile . . . it was a month-long trial almost, not quite. But it took a little bit of time. And 
11

you as a group have been deliberating since . . . Monday. . . . And let me just say that I 

don’t know what the numerical breakdowns are, and you may truly be at an impasse. I 

don’t know. But it isn’t unusual for jurors to come to a point where it appears they are at 

a place where there may be firmly entrenched differences of opinion. It is not unusual for 

jurors to get to that point yet not truly be at an impasse. You all know what human 

beings are like and what human interactions are like, and that’s what is going on in the 

back. You are all talking about something. So it’s 12 people attempting to reason things 

out. And there are instances where jurors think that they are at an impasse, but they 

really are not. And you’ve had arguments with people where you felt that the person was 

of a particular mind. And then later on, they changed their mind, and things changed. So 

that’s what I need to ascertain whether or not you are at that point where you are firmly 

entrenched to a degree that there isn’t going to be any further changing of anyone’s 

minds. Or if this is one where, you know, there are instances where people feel like they 

are at an impasse, but they are really not at an impasse and things change. So I need to 

make that decision here about this situation. So first of all, Juror No. 18, I’m going to 

talk to you as the foreperson. So I am not talking to you as an individual juror. But I am 

talking to you as sort of the facilitator of the discussions that have taken place in the back. 

As that person who served as a facilitator, do you think that if the court was to ask the 

jury to continue deliberating that there is a reasonable probability that the jury might be 

able to reach a verdict on counts 6 and 7? The question is ‘reasonable probability.’” The 

foreperson answered, “No.” 

 The court stated, “Okay. All right. So you consider the issue of additional 

readback testimony. You consider the issue of explanation on the law. There are 

additional things that the court could do. For example, the court could allow the 

attorneys to argue again. So let’s say that the jury had a question, and you pose a 

question. And if you wanted to hear argument from attorneys, I could then turn to the 

lawyers and allow them to argue the case to you one more time. There are various 

different things that the court could do, can do. But in any event, you might not know [] 

[t]hat so I am just letting you know that. Does that change your mind in any way, Juror 
12

No. 18, or are you still as the facilitator the person who served as the foreperson still of 

the mind that there is no reasonable probability that the jury could reach a verdict on 6 

and 7?” The foreperson answered, “No.” 

 The court stated, “Okay. That’s fine. Now I am going to go through the group 

individually. And I am not asking you as a group now because each juror is duty-bound 

to make a decision for him or herself. This is not a democracy where the group vote 

wins. This is about individual deliberations. So I am going to ask each of you whether or 

not you believe there is a reasonable probability that the jury might be able to reach a 

verdict on counts 6 and 7.” The court then asked each juror individually whether he or 

she believed that there was “a reasonable probability” the jury could reach a verdict on 

counts 6 and 7. Each one answered in the negative. 

 The court stated, “Okay. All right. Well, that’s not the end of it. There’s more. 

Okay. Now I am going to ask you . . . how many times you voted. I need to know how 

many times you voted on counts 6 and 7. And I need to know when. So when and how 

many times. Okay. And then I am also going to ask you for the numerical breakdown, 

but I don’t need to know which way it’s leading. I just want a number. So I want to 

know when, how many times, and what the numerical breakdown was. You think you 

can give that to me right now, or do you need to reflect? The foreperson said he needed 

some time to reflect. 

 The court continued: “Okay. Well, let’s do this. You all can go in the back for 

just a moment, talk about this, and get that organized for me. I am going to, you know, 

go through each and every single one of the ballots you took on 6 and 7, not on 

everything because you may not have taken ballots at the same time on everything. I just 

want to know about counts[s] 6 and 7. So go into the back and talk about that, and then 

we’ll buzz you back out.” 

 After the jury returned from the deliberation room, the following exchange 

occurred: 

“THE COURT: So did you vote on count[s] 6 and 7 on April 29 on Monday? 

“JUROR NO. 18: Yes. 
13

“THE COURT: And when did you do that? What time? 

“JUROR NO. 18: After lunch. 

“THE COURT: Okay. Give me a ballpark. 

“JUROR NO. 18: About 1:30, after 1:30. 

“THE COURT: Just ate, came back, and voted? 

“JUROR NO. 18: No. We had been deliberating and discussing. 

“THE COURT: You just kind of knew you were going to vote after lunch? 

“JUROR No. 18: Yes. 

“THE COURT: Okay. So let’s say 1:30 p.m. on April 29. Did you vote on 6 and 7 at 

the same time? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay, so first of all, on count 6, what was the numerical split? Again, 

don’t tell me which way it is leaning. Just tell me what the numerical split was. 

“JUROR NO. 18: 9, 3. 

“THE COURT: 9 to 3. And then count 7? 

“JUROR NO. 18: 9 to 3. 

“THE COURT: Did you vote again on Monday on count[s] 6 and 7? 

“JUROR NO. 18: We voted twice on Monday. 

“THE COURT: Okay. What time did you vote again? 

“JUROR NO. 18: Towards the end. 

“THE COURT: Near 4:00? 

“JUROR NO. 18: Yes. 

“THE COURT: I will just say 4:00 p.m. And did you follow the same format of taking a 

vote on both counts 6 and 7 at the same time? 

“JUROR NO. 18: Yes. 

“THE COURT: What was the numerical split on count 6? 

“JUROR NO. 18: 9, 3. 

“THE COURT: And what was the numerical split on count 7? 

“JUROR NO. 18: 9, 3. 
14

“THE COURT: Okay. Now the readback of testimony, you received that yesterday 

morning? 

“JUROR NO. 18: Yes. 

“THE COURT: Right? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. You also asked for something else, the diagram on the DNA on 

the gloves. We gave that to you yesterday afternoon. 

“JUROR NO. 18: Yes. 

“THE COURT: On April 29 then, this is Monday again, you voted twice. And that’s it, 

correct? 

“JUROR NO. 18: Yes. 

“THE COURT: And then on April 30, did you vote again on counts 6 and 7? 

“JUROR NO. 18: No. 

“THE COURT: You did not vote at all? 

“JUROR NO. 18: No. 

“THE COURT: So no votes yesterday on count[s] 6 and 7 at all? 

“JUROR NO. 18: No. 

“THE COURT: Did you vote on count[s] 6 and 7 at all yesterday? 

“JUROR NO. 18: No. 

“THE COURT: Okay. So no votes on April 30. Today, May 1, Wednesday, you came 

back to it, I take it? 

“JUROR NO. 18: Yes. 

“THE COURT: And so you voted again today; is that right? 

“JUROR NO. 18: No. 

“THE COURT: You did not vote today? 

“JUROR NO. 18: No. 

“THE COURT: No vote at all? 

“JUROR NO. 18: Oh, yes, yes. Sorry, sorry. Yes, we did. 

“THE COURT: Did you formally take a vote on counts 6 and 7? 
15

“JUROR NO. 18: Yes. 

“THE COURT: At what time did you take a formal vote on count[s] 6 and 7? 

“JUROR NO. 18: It was early in the morning. 

“THE COURT: No, you didn’t get here early in the morning. 

“JUROR NO. 18: 10:00. Sorry. 

“THE COURT: So first thing in the morning when you came and on count 6 what was 

the numerical breakdown? 

“JUROR NO. 18: Still 9, 3. 

“THE COURT: And then how about on count 7? 

“JUROR NO. 18: 9, 3. 

“THE COURT: 9, 3. Okay. Now did you—you sent out a note around 11:00. We 

weren’t able to get to you right away because I was in trial, and I had to assemble 

everybody. So that meant that you took a vote early in the morning, and then you might 

have spent time discussing it afterwards a little bit? 

“JUROR NO. 18: Yes. 

“THE COURT: But that maybe you spent another hour, hour and a half discussing it this 

morning after taking the vote? 

“JUROR NO. 18: Yes. 

“THE COURT: Did you take another vote? 

“JUROR NO. 18: No. 

“THE COURT: No. No votes since the early vote. So you have actually voted on it 

three times; is that correct? 

“JUROR NO. 18: Yes. 

“THE COURT: The bulk of the rest of the time you spent talking about the other counts? 

Because you all started on Monday, Monday morning. You had seven counts to deal 

with, three separate transactional events. So you talked about the other counts for the 

bulk of the time. Would that be accurate to say? 

“JUROR NO. 18: Yes. 

“THE COURT: How much time have you actually spent talking about these two counts? 
16

“JUROR NO. 18: When we got our first juror on Monday, we spent— 

“THE COURT: Okay. So let’s say you started on Monday, oh, two hours in the morning 

and then two and a half hours in the afternoon. So you had about four and a half hours 

yesterday. I’m sorry. The day before. And then let’s say about the same period of time 

yesterday. So four and a half yesterday or thereabouts. And then today, you have had an 

additional two or so. So you have been talking about this maybe, oh, 11 hours. Of the 11 

hours or so, how much of it have you devoted to talking about count[s] 6 and 7? Three 

hours? 

“JUROR NO. 18: About three hours, yes, around. 

“THE COURT: Is that a fair, rough estimate? About three hours? 

“JUROR NO. 18: Yes. 

“THE COURT: Okay. You know, it’s my reason to judgment [sic] that you need to 

spend a little more time on this. There are a lot of counts and a lot of things for you to 

discuss. There are over 20 witnesses that were presented and scientific evidence as well. 

And you are talking about three separate transactional events that you had to talk about. 

And I am not saying that three hours or so is not, is insubstantial. That is a bit of time. 

But I think some more time needs to be spent talking about it. So I am not going to 

declare that you are hopelessly deadlocked at this point. And I am going to send you 

back to talk some more about count[s] 6 and 7. Okay? 

“JUROR NO. 18: Okay. 

“THE COURT: Okay. If you have a question, write it out for me. Okay. All right. 

Thank you.” 

 After the jury left, the court informed counsel, “I am not going to take the verdict. 

I am going to let them talk some more. If they can’t, the next time they tell me, that is 

probably going to be it. But they need to work a little more.” Defense counsel did not 

object. 
17

 Approximately an hour later, the jury sent out a note requesting that counsel 

reargue counts 6 and 7, and that Steve Renteria’s testimony be read back.5 They also 

requested a latex glove and testimony from N. M. The court again confirmed with Juror 

No. 18 that the jury had reached verdicts on counts 1 through 5 and asked the jury to 

deposit the completed verdict forms with the court in a sealed envelope. The jury asked 

to hear reargument before any readback. The court stated it could not guarantee 

reargument, but that it would consult with counsel and then exercise its discretion. 

 On the following day, May 2, 2013, the court stated for the record that both sides 

were agreeable to making further argument. After hearing additional argument from both 

sides, the jury retired to continue deliberation and listen to readback. Apart from a lunch 

break, the jury continued with readback and deliberations until the end of the day. 

 On May 3, 2013, a Friday, the jury deliberated all day. They requested and 

received the verdict forms from the court. The jury met again the following Monday, 

May 6, 2013, and spent a further two hours in deliberation before reaching its verdicts. 

 C. Relevant Authority 

 Section 1140 provides that “the jury cannot be discharged after the cause is 

submitted to them until they have agreed upon their verdict . . . unless, at the expiration 

of such time as the court may deem proper, it satisfactorily appears that there is no 

reasonable probability that the jury can agree.” In the event of a deadlock, “[t]he court 

may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a 

‘reasonable probability’ of agreement.” (People v. Pride (1992) 3 Cal.4th 195, 265; see 

People v. Howard (2008) 42 Cal.4th 1000, 1029-1030.) Even where the jury has 

deliberated for a substantial amount of time and indicates that it is unable to reach a 

verdict, the trial court still retains discretion to require further deliberation. (People v. 

 

5 Steve Renteria, a forensic scientist with the Los Angeles County Sheriff’s 

Department, testified regarding the results of testing Wyesser Cook’s sexual assault kit 

and certain items of evidence. He stated that the DNA profile of the male contributor to 

Cook’s external genital sample and some of the evidence from the crime scene matched 

the DNA profile from defendant. As noted, the jury acquitted defendant of all charges 

regarding the offenses against Cook. 
18

Sandoval (1992) 4 Cal.4th 155, 194-197; People v. Breaux (1991) 1 Cal.4th 281, 319-320 

[jury informed court it had reached an impasse after four days of deliberation, answered 

in the negative as to whether there was a chance of verdict upon further deliberation, and 

was properly asked twice to deliberate further]; People v. Rodriguez (1986) 42 Cal.3d 

730, 775-776 [after 11 days of deliberation and five expressions of impasse, trial court 

asked jury to resume deliberation].) 

 “‘Although the court must take care to exercise its power without coercing the jury 

into abdicating its independent judgment in favor of considerations of compromise and 

expediency [citation], the court may direct further deliberations upon its reasonable 

conclusion that such direction would be perceived “‘as a means of enabling the jurors to 

enhance their understanding of the case rather than as mere pressure to reach a verdict on 

the basis of matters already discussed and considered.’”’” (People v. Bell (2007) 40 

Cal.4th 582, 616.) A defendant’s right to due process is violated if a trial court coerces 

jurors into reaching a verdict. (Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 978-980.) 

 D. Verdict Not Coerced 

 Defendant appears to argue that simply because the jury stated that it was 

deadlocked, the trial court was obligated to cease deliberations. We disagree. “‘[Section 

1140] clearly commits to the trial judge, not to the jury, the determination of the question 

whether or not “there is no reasonable probability that the jury can agree.”’” (People v. 

Finch (1963) 213 Cal.App.2d 752, 763.) The trial court is required to determine in its 

“sound discretion” whether there is a reasonable probability of agreement by the jury. 

(People v. Miller (1990) 50 Cal.3d 954, 994.) 

 Defendant asserts that the trial court “subtly coerced the jury to reach a verdict.” 

In analyzing a claim of coercion, the relevant inquiry is whether the trial court’s 

comments imposed such pressure on jurors to reach a verdict that the accuracy and 

integrity of the jury’s stated conclusion cannot be assured. (People v. Gainer (1977) 19 

Cal.3d 835, 850 (Gainer), disapproved on another point in People v. Valdez (2012) 55 

Cal.4th 82, 163.) “The question of coercion is necessarily dependent on the facts and 

circumstances of each case. [Citation.]” (People v. Sandoval, supra, 4 Cal.4th 155, 196; 
19

People v. Pride, supra, 3 Cal.4th at p. 265; People v. Breaux, supra, 1 Cal.4th 281, 319.)

 We find nothing coercive in the trial court’s actions here. It did not urge the jury 

to reach an agreement, only to deliberate a bit longer. Far from being coercive, the trial 

court’s inquiries as to whether it could do anything to aid the jurors in their deliberations 

was a commendable exercise of discretion under Evidence Code section 1140. The trial 

court realized through its questioning of the foreperson that the jury had seemingly given 

up and had ceased deliberating on counts 6 and 7. When the jury was asked if the court 

could do anything, the jury members were apparently looking at each other, which would 

indicate to the court that there was some uncertainty among them. The trial court would 

have been remiss if it had not sought to ascertain whether the jury would benefit from any 

of the means available to the court. 

 We perceive nothing in the trial court’s comments that could be construed as 

pressuring the minority jurors to give more credence to the majority than to their own 

opinions. The court emphatically pointed out that it was not a democracy where the 

majority rules. The court had instructed the jurors with CALJIC No. 17.40, which 

provided, “The People and the defendant are entitled to the individual opinion of each 

juror. Each of you must consider the evidence for the purpose of reaching a verdict if 

you can do so. Each of you must decide the case for yourself, but should do so only after 

discussing the evidence and instructions with the other jurors. Do not hesitate to change 

an opinion if you are convinced it is wrong. However, do not decide any question in a 

particular way because a majority of the jurors, or any of them, favor that decision.” The 

jury indicated specifically that further argument and a readback of testimony would assist 

it in reaching a verdict. The trial court obliged without imposing its own opinion or 

pressuring jurors to reach a verdict. We note that it is not improper to require continued 

deliberation even when there is only one holdout juror. (People v. Pride, supra, 3 

Cal.4th 195, 265 [requiring jury divided 11 to 1 to continue deliberating is not necessarily 

coercive]; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254 [not coercive to require 

jury to resume deliberations when verdict is 11 to 1 in favor of guilt].) Here, there were 

three minority jurors, leading to a reasonable conclusion they would not be easily 
20

intimidated by further discussion and direction from the trial court. As long as the court’s 

inquiry and instruction are neutral and the holdout jurors are not singled out, the court 

properly exercises its discretion in requiring further deliberations. 

 Contrary to defendant’s assertion, the problems identified in Gainer are lacking 

here. Gainer rejected the so-called “‘Allen charge,’” which was approved by the United 

States Supreme Court in Allen, supra, 164 U.S. 492, 501-502, as a means of “‘blasting’ a 

verdict out of a deadlocked jury.” (Gainer, supra, 19 Cal.3d at p. 844.) Gainer held, “it 

is error for a trial court to give an instruction which either (1) encourages jurors to 

consider the numerical division or preponderance of opinion of the jury in forming or 

reexamining their views on the issues before them; or (2) states or implies that if the jury 

fails to agree the case will necessarily be retried.” (Id. at p. 852.) 

 Unlike the Allen charge, the trial court’s comments here did not suggest that the 

minority jurors should consider the position of the majority, thereby avoiding any undue 

pressure on the minority jurors to consider that factor. The trial court stressed to the jury 

members that each juror was duty-bound to make his or her own decision and that the 

majority vote does not win. The court’s comments about the length of the trial was not a 

de facto Allen charge, but merely an observation made to encourage the jurors to try 

again, since they had devoted a substantial amount of time to the task. The trial court did 

not advise the jury that it was required to reach a verdict, did not indicate that a retrial 

would be required if a verdict was not reached, and did not suggest that the minority 

jurors should reconsider their positions in light of the majority. 

 Finally, it is proper to permit counsel to reargue a case after the matter has been 

submitted and deliberations have commenced. As noted in People v. Young (2007) 156 

Cal.App.4th 1165 (Young), California Rules of Court, rule 2.1036, provides: “If the trial 

judge determines that further action might assist the jury in reaching a verdict, the judge 

may: (1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit 

attorneys to make additional closing arguments; or [¶] (4) Employ any combination of 

these measures.” (Cal. Rules of Court, rule 2.1036(b); see Young, at p. 1171, fn. 7.) 
21

 Thus, the trial court was well within its discretion in polling the jury to determine 

the extent of the impasse and in asking the jury to see if it could agree on some assistance 

from the trial court. The court mentioned the option of argument in passing as one of the 

tools that could be used and by no means urged it upon the jury. Defense counsel did not 

object to this suggestion. Moreover, although a quick verdict following a trial court’s 

intervention may suggest “the possibility of coercion,” (Lowenfield v. Phelps (1988) 484 

U.S. 231, 240), we have no such circumstance here. The jury deliberated for a substantial 

amount of time after hearing reargument. Significantly, the trial court acknowledged to 

the attorneys the last time he sent the jury back before their argument request that if the 

jury came back announcing deadlock again, “that is probably going to be it.” The trial 

court showed no intention of pressuring the jurors to reach a verdict but only of doing all 

it reasonably could do to assist the jurors rather than to “‘figuratively throw up its hands 

and tell the jury it cannot help.’” (Young, supra, 156 Cal.App.4th at p. 1171.) 

 We conclude the trial court’s actions in managing the jury’s impasse are 

reasonably perceived as a means of providing the jurors with the means to enhance their 

understanding of the case and not as a way of pressuring the jury members to arrive at a 

verdict based on considerations they had already discussed. (See People v. Bell (2007) 

40 Cal.4th 582, 616.) The court did not abuse its discretion or err in ordering further 

deliberations. 

II. Jury Instruction on Consent 

A. Defendant’s Argument 

Defendant argues that CALJIC No. 1.23.1 is defective in two ways. First, it 

relieves the prosecution of its burden of showing that intercourse was against the will of 

the alleged victim by establishing a presumption that the victim did not consent if there is 

no “positive cooperation.”6 The instruction ignores the possibility that an alleged victim 

 

6 The trial court read CALJIC No. 1.23.1, which tracks the language of section 

261.6, as follows: “In prosecutions for the sexual offenses in this case, the word 

‘consent’ means positive cooperation in an act or attitude as an exercise of free will. The 
22

may passively assent. Secondly, it operates as a mandatory presumption. Defendant 

adds that the instruction deprived him of his due process right to a trial by jury, since it is 

akin to the failure to instruct on an essential element of an offense, and his convictions 

therefore should be reversed. 

 B. Relevant Authority 

Section 261.6 provides: “In prosecutions under Section 261, 262, 286, 288a, or 

289, in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation 

in act or attitude pursuant to an exercise of free will. The person must act freely and 

voluntarily and have knowledge of the nature of the act or transaction involved. [¶] A 

current or previous dating or marital relationship shall not be sufficient to constitute 

consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 

289. [¶] Nothing in this section shall affect the admissibility of evidence or the burden of 

proof on the issue of consent.” 

 “A trial court has no sua sponte duty to revise or improve upon an accurate 

statement of law without a request from counsel.” (People v. Lee (2011) 51 Cal.4th 620, 

638 (Lee).) “‘[T]he correctness of jury instructions is to be determined from the entire 

charge of the court, not from a consideration of parts of an instruction or from a particular 

instruction.’” (People v. Wade (1995) 39 Cal.App.4th 1487, 1491.) 

 C. Consent Adequately Defined 

At the outset, we note that Lee held that the defendant in that case forfeited his 

claim that the instructions defining consent for attempted rape were inadequate by failing 

to object. (Lee, supra, 51 Cal.4th at p. 638.) The court stated that a defendant’s failure to 

request clarification of an otherwise correct instruction forfeits any claim of error on 

appeal. (Ibid.) Since defendant makes a claim of ineffective assistance of counsel for 

any forfeiture, however, we address the merits of his argument. 

 

person must act freely and voluntarily and have knowledge of the nature of the act or 

transaction involved.” 
23

 We conclude the jury was adequately instructed on the issue of consent. The jury 

was told at the outset that it must consider the instructions as a whole and each instruction 

in light of all the others. (CALJIC No. 1.01.) The jury was instructed in the crime of 

rape with CALJIC No. 10.00, which stated that rape is committed by every person who 

engages in an act of sexual intercourse accomplished against that person’s will by means 

of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to 

that person. The instruction for unlawful oral copulation, CALJIC No. 10.10, contains 

the same language. In these instructions, the jury was told that “against the will” meant 

“without consent of the alleged victim.” 

 The jury in defendant’s case was also given CALJIC No. 10.65, which instructed 

the jury that “In the crime of unlawful forcible rape, oral copulation by force and, forcible 

sexual penetration, criminal intent must exist at the time of the commission of the 

specified crime. [¶] There is not criminal intent if the defendant had a reasonable and 

good faith belief that the other person voluntarily consented to engage in sexual 

intercourse, oral copulation, or sexual penetration. Therefore, a reasonable and good 

faith belief that there was voluntary consent is a defense to such a charge, unless the 

defendant thereafter became aware or reasonably should have been aware that the other 

person no longer consented to the sexual activity. [¶] However, a belief that is based upon 

ambiguous conduct by an alleged victim that is the product of conduct by the defendant 

that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily 

injury on the person of the alleged victim or another is not a reasonable good faith belief. 

[¶] If after consideration of all of the evidence you have a reasonable doubt that the 

defendant had criminal intent at the time of the accused sexual activity, you must find 

him not guilty of the crime.” Finally, the jury was told that the presumption of 

reasonable doubt places on the prosecution the burden of proving the defendant guilty 

beyond a reasonable doubt. (CALJIC No. 2.90.) 

 Given these comprehensive instructions, defendant cannot assert that he was 

denied the “longstanding and meritorious defense” of passive assent. Juries are presumed 

to follow instructions, and had the jury believed the victims passively consented to have 
24

sex with defendant, and that it was not against their will, under these instructions, the jury 

would have acquitted defendant. (See People v. Morales (2001) 25 Cal.4th 34, 47-48.) 

As in Lee, where the defendant also argued that an instruction on passive consent was 

lacking, “[t]hese instructions were sufficient to apprise the jury of the relevant principles 

of law on the issues of intent and consent.” (Lee, supra, 51 Cal.4th at pp. 637, 640.) The 

instructions allowed the jury to consider defendant’s arguments that although he had sex 

with the alleged victims, they were not forced, and both victims were suffering from 

something akin to buyer’s remorse. To the extent defendant attempted to portray that he 

had a good faith belief that they consented, this defense was specifically addressed in 

CALJIC No. 10.65. Accordingly, defendant’s passive consent defense was not vitiated 

by CALJIC No. 1.23.1 because that instruction, as well as the other instructions, 

adequately informed the jury that the offenses had to be against the alleged victim’s will 

to be unlawful and had to have been accomplished “by force, violence, duress, menace, 

or fear of immediate and unlawful bodily injury.” 

 Under Lee and in this court’s prior opinion in People v. Gonzalez (1995) 33 

Cal.App.4th 1440 (Gonzalez), we also conclude there was no creation of a mandatory 

presumption that consent should be presumed absent evidence of positive cooperation in 

an act or attitude, thus relieving the prosecution of its burden of proving an essential 

element of the offense. (Lee, supra, 51 Cal.4th at p. 641; Gonzalez, at p. 1443.) That 

contention was rejected by this court in Gonzalez, and the reasoning of that case applies 

here. Gonzalez stated, “CALJIC No. 1.23.1 did not shift the burden of proof on consent 

to the defense or create a presumption of lack of consent. The instruction merely defined 

consent.” (Gonzalez, at p. 1443.) Gonzalez concluded that, when read in light of other 

relevant instructions defining the crime, the instructions “clearly indicated the 

prosecution had the burden of proving lack of consent.” (Id. at p. 1443.) Moreover, the 

fact that the instructions also stated that the act must be accomplished by “force, violence, 

duress, menace, or fear of immediate and unlawful bodily injury on the alleged victim” 

indicated that no confusion would be created in the minds of the jurors. (Id. at p. 1444.) 

Lee, citing Gonzalez, also held that that the mandatory presumption claim lacks merit, 
25

since the instruction does not “tell a jury that it must presume lack of consent if the 

alleged victim has not actively expressed consent.” (Lee, supra, at p. 641.) In fact, the 

jury was told that the defendant was presumed innocent until the prosecution proved him 

guilty beyond a reasonable doubt. (Ibid.) In the instant case, as in Lee and Gonzalez, all 

of the instructions considered together “clearly indicated the prosecution had the burden 

of proving lack of consent.” (Gonzalez, at p. 1443; see also Lee, at p. 642.) 

III. Lack of Instruction on Withdrawal of Consent 

A. Defendant’s Argument 

Defendant contends the trial court erred in failing to give sua sponte an instruction 

on withdrawal of consent because, in order for the jury to determine whether defendant 

had committed a sexual offense against his ex-girlfriend, the jurors had to decide if she 

withdrew consent prior to defendant’s continued penetration. Defendant maintains the 

error was prejudicial in that it is reasonably probable there would have been a more 

favorable outcome in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 

836 (Watson).) 

 B. Proceedings Below 

 The prosecutor filed a motion under Evidence Code section 1108 to introduce the 

testimony of defendant’s ex-girlfriend, Keisha H. The court found under Evidence Code 

section 352 that the incident with Keisha was probative and not substantially outweighed 

by prejudice. 

 With respect to the evidence of prior sex crimes, the trial court instructed the jury 

with CALJIC Nos. 2.50.01, and 2.50.1.7 

 

7 CALJIC No. 2.50.01 stated: “Evidence has been introduced for the purpose of 

showing that the defendant engaged in a sexual offense on one or more occasions other 

than that charged in the case. [¶] ‘Sexual offense’ means a crime under the laws of a state 

. . . that involves any of the following: [¶] Any conduct made criminal by Penal Code 

section 261, subdivision (a)(2). The elements of this crime are set forth elsewhere in these 

instructions. [¶] If you find, by a preponderance of the evidence, that the defendant 

committed a prior sexual offense, you may, but are not required to, infer that the 

defendant had a disposition to commit sexual offenses. This evidence, if believed, does 
26

 C. Relevant Authority 

The trial court has a sua sponte duty to instruct the jury “on general principles of 

law that are commonly or closely and openly connected to the facts before the court and 

that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 

Cal.4th 1027, 1047.) On the other hand, absent a request by the defense, the court has no 

duty to give a “‘pinpoint instruction’ relating specific facts to the elements of the offense” 

in support of a defense. (People v. Barton (1995) 12 Cal.4th 186, 197.) 

 Although the initial focus is on the specific instruction challenged, a reviewing 

court must review the instructions as a whole to determine if the entire charge to the jury 

delivered a correct interpretation of the law. (People v. Fonseca (2003) 105 Cal.App.4th 

543, 549.). 

 D. No Sua Sponte Duty to Instruct on Withdrawal of Consent 

 

not establish a disposition to commit any other crime. If you find that the defendant had 

a disposition to commit a sexual offense, you may, but are not required to, infer that he 

was likely to commit and did commit the . . . crimes of which he is accused. The 

uncharged evidence pertaining to Yolanda [] and Keisha [] may be considered by you 

only for the purpose of deciding whether the defendant is guilty of the crimes charged in 

counts 5, 6 and 7. . . . [¶] However, if you find by a preponderance of the evidence that 

the defendant committed [a] prior sexual offense, that is not sufficient by itself to prove 

beyond a reasonable doubt that he committed the charged crimes. If you determine an 

inference properly can be drawn from this evidence, this inference is simply one item for 

you to consider, along with all other evidence, in determining whether the defendant has 

been proved guilty beyond a reasonable doubt of the charged crime. 

 CALJIC No. 2.50.1 stated: “Within the meaning of the preceding instructions, the 

prosecution has a burden of proving by a preponderance of the evidence that a defendant 

committed sexual offenses other than those for which he is on trial. [¶] You must not 

consider this evidence for any purpose unless you find by a preponderance of the 

evidence that the defendant committed the other uncharged sexual offenses. [¶] If you 

find other uncharged sexual offenses were committed by a preponderance of the 

evidence, you are nevertheless cautioned and reminded that before a defendant can be 

found guilty of the crimes charged for which this evidence may be considered in this trial, 

the evidence as a whole must persuade you beyond a reasonable doubt that the defendant 

is guilty of that crime. 
27

 Defendant points out that CALJIC No. 1.23.1 contains optional language8 related 

to withdrawal of consent. Because the jurors had to decide whether Keisha effectively 

withdrew consent before defendant’s continued penetration, failure to read this optional 

language to the jurors was prejudicial error. Defendant cites People v. Ellis (1999) 69 

Cal.App.4th 1334 for the proposition that the trial court has a sua sponte duty to give 

clarifying instructions where the terms used in an instruction have a technical meaning 

peculiar to the law. (Ellis, at pp. 1338-1339 [trial court had sua sponte duty to define 

“speeding” when the conviction was based on a violation of the “basic speed law” statute, 

which contained several legal terms, such as “reasonableness”].) 

 We do not believe withdrawal of consent involves legal terminology peculiar to 

the law. The jury was instructed in the meaning of consent with CALJIC No. 1.23.1, and 

to “withdraw” something (such as consent) has a common sense meaning that is 

“‘commonly understood by those familiar with the English language.’” (People v. Ellis, 

supra, 69 Cal.App.4th at p. 1338.) The instruction on consent was sufficient for the 

jurors to determine from Keisha’s testimony whether she withdrew her consent during the 

incident to which she testified. 

 Furthermore, the offense against Keisha constituted uncharged conduct. People v. 

Cottone (2013) 57 Cal.4th 269 recently stated, “We have long recognized that ‘the trial 

court ordinarily has no sua sponte duty to instruct the jury as to the admissibility or use of 

other crimes evidence.’ [Citations.] This principle is consistent with [Evidence Code] 

section 355, which provides that the trial court, ‘upon request,’ shall instruct the jury 

 

8 The optional language is as follows: “A person who initially consents and 

participates in the act of ______ has the right to withdraw that consent. To be effective 

as a withdrawal of consent, the person must inform the other person by words or conduct 

that consent no longer exists, and the other person must stop. The words or conduct must 

be sufficient to cause a reasonable person to be aware that consent has been withdrawn. 

If the other person knows or reasonably should know that consent has been withdrawn, 

forcibly continuing the act of ______ despite the objection, is against the will and without 

the consent of the person.” 
28

about evidence admitted for a limited purpose.” (Cottone, at p. 293.) The same 

reasoning applies in defendant’s case. 

 The Cottone court noted that a defendant, for tactical reasons, may not want the 

jury “overloaded” with instructions on the elements of alleged other crimes out of fear 

that such instructions could place undue emphasis on those crimes. (People v. Cottone, 

supra, 57 Cal.4th at p. 294.) This consideration would appear to be appropriate in the 

instant case, where there were several charged sexual offenses with detailed instructions, 

and the language defendant claims was lacking had relevance only to one uncharged, and 

briefly mentioned, act. 

 Finally, any error in not including the language on withdrawal of consent was 

harmless under any standard. As noted, other instructions adequately covered the 

concept of what constituted consent. The fact that Keisha asked defendant to stop, if 

believed by the jury, left no ambiguity that required clarification by means of the omitted 

optional language. Furthermore, defendant’s conduct with Keisha was not inflammatory, 

as defendant asserts. The conduct involved sex that was initially consensual between 

defendant and his girlfriend—not a stranger to whom he had offered a ride. Nor did 

Keisha say that defendant used violence or the threat of violence. Therefore, the jury’s 

consideration of what happened with Keisha would not have adversely affected the 

verdicts on the charged sexual offenses.

IV. Evidence Admitted Pursuant to Evidence Code Section 1108 

A. Defendant’s Argument 

Defendant contends the evidence of the alleged prior offenses was inadmissible 

under Evidence Code section 1108. Its probative value on the question of propensity to 

engage in the charged offenses was substantially outweighed by the undue confusion and 

prejudice resulting from testimony regarding the prior incidents, particularly Keisha’s 

testimony about defendant’s refusal to promptly cease intercourse when requested to do 

so. According to defendant, the prejudicial evidence rendered his trial fundamentally 

unfair in violation of his due process rights, and reversal is required. 
29

 B. Relevant Authority 

 Evidence Code section 1108, subdivision (a) provides: “In a criminal action in 

which the defendant is accused of a sexual offense, evidence of the defendant’s 

commission of another sexual offense or offenses is not made inadmissible by Section 

1101, if the evidence is not inadmissible pursuant to Section 352.” Subdivision (d)(1)(A) 

of Evidence Code section 1108 provides that, for purposes of this section, a sexual 

offense includes “[a]ny conduct proscribed by Section . . . 261, . . . 288a, . . .289, . . . of 

the Penal Code.” 

 With the exception of Evidence Code section 1101, Evidence Code section 1108 

“does not supersede other provisions of the Evidence Code, such as normal hearsay 

restrictions and the court’s authority to exclude evidence presenting an overriding 

likelihood of prejudice under [Evidence Code] section 352. [Citation.]” (People v. Soto

(1998) 64 Cal.App.4th 966, 984.) Under Evidence Code section 1108, evidence of prior 

sexual offenses to show disposition is “‘“no longer treated as intrinsically prejudicial or 

impermissible.”’” (Soto, at p. 984.) As with other forms of relevant evidence not subject 

to an exclusionary rule, the presumption is in favor of admitting the evidence. (Ibid.) 

 The “determination as to whether the probative value of such evidence is 

substantially outweighed by the possibility of . . . unfair prejudice or misleading the jury 

is ‘entrusted to the sound discretion of the trial judge who is the best position to evaluate 

the evidence.’ [Citation.]” (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.) 

“‘A trial court’s exercise of its discretion under section 352 ‘“must not be disturbed on 

appeal except on a showing that the court exercised its discretion in an arbitrary, 

capricious or patently absurd manner that resulted in a manifest miscarriage of 

justice.’”’” (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.) 

 C. Evidence Properly Admitted Under Evidence Code Section 1108 

 In the instant case, the charged and uncharged offenses are all sex offenses, and 

the uncharged offenses were therefore presumed admissible. (People v. Frazier (2001) 

89 Cal.App.4th 30, 41 [“It is enough the charged and uncharged offenses are sex offenses 

as defined in section 1108.”].) In arguing to the contrary, defendant reviews several 
30

cases in which the trial court’s admission of evidence under Evidence Code section 1108 

was held to be a proper use of discretion and contrasts these cases with People v. Harris

(1998) 60 Cal.App.4th 727 (Harris). In that case, the reviewing court found reversible 

error in the trial court’s admission of evidence of a prior sex offense under Evidence 

Code section 1108. According to defendant, as in Harris, the probative value of the 

evidence in his case was outweighed by the prejudicial impact and risk of jury confusion. 

Harris was a mental health nurse who was charged with sexually molesting two 

female patients. (Harris, supra, 60 Cal.App.4th at p. 730-732.) His defense to the 

charges relating to one of the victims was that the victim was hallucinating. With respect 

to the second victim, his defense was a combination of consent, reasonable belief in 

consent, and the victim’s attempt to excuse her previous adultery with Harris. (Id. at p. 

732.) The prosecution introduced other-crimes evidence of a 23-year-old offense in 

which Harris had raped, beaten, and mutilated the victim, who was not a patient of his. 

(Id. at pp. 733-735) The jury convicted Harris of several offenses against the two female 

patients. (Id. at pp. 731-732.) Harris contended on appeal that the admission of the prior 

offense was unduly prejudicial, and the Court of Appeal agreed. (Id. at pp. 730, 741.) 

 The Harris court believed the defendant’s defense to each count was strong. 

(Harris, supra, 60 Cal.App.4th at p. 733.) The court then reviewed the redacted 

description of the prior offense that was given to the jury and concluded that it may have 

caused the jury to speculate about the true nature of the crime. (Id. at pp. 733-735.) The 

court stated, “This altered version of a 23-year-old act of inexplicable sexual violence 

while heavy with ‘undue prejudice’ and dangerous in the hands of a jury was not 

particularly probative of the defendant’s predisposition to commit these ‘breach of trust’ 

sex crimes.” (Id. at pp. 740-741.) 

Harris is not instructive in the instant case. There was no altered or redacted 

version of defendant’s prior offenses presented to the jury such that it would cause the 

jury members to speculate about what defendant had really done. Moreover, as discussed 

infra, neither of the two uncharged offense descriptions were “heavy with ‘undue 

prejudice’” so as to be dangerous to defendant’s case. (Harris, supra, 60 Cal.App.4th at 
31

pp. 740, 741.) Defendant’s case is clearly unlike Harris, where the defendant had strong 

defenses to the crimes charged and the prior offense was far more serious and egregious. 

People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) established criteria for courts 

to consider when ruling on the admissibility of evidence of prior sexual offenses. (Id. at 

pp. 916-917.) The factors to be considered in conducting the analysis depend on the 

unique facts and issues of each case. (Ibid.; People v. Nguyen (2010) 184 Cal.App.4th 

1096, 1116.) Factors that are particularly significant in an Evidence Code section 1108 

case are: “(1) whether the propensity evidence has probative value, e.g., whether the 

uncharged conduct is similar enough to the charged behavior to tend to show defendant 

did in fact commit the charged offense; (2) whether the propensity evidence is stronger 

and more inflammatory than evidence of the defendant’s charged acts; (3) whether the 

uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to 

confuse or distract the jurors from their main inquiry, e.g., whether the jury might be 

tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether 

admission of the propensity evidence will require an undue consumption of time. 

[Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative 

value, against the evidence’s prejudicial and time-consuming effects, as measured by the 

second through fifth factors.” (Nguyen, at p. 1117.) 

 The evidence given by Keisha was probative in that it had a tendency to show 

defendant’s predilection for forcing sex on a woman who says “no.” Evidence Code 

section 1108 has no requirement that the offenses be so similar that evidence of the prior 

acts would be admissible under Evidence Code section 1101. If such strict similarities 

were required, “Evidence Code section 1108 would serve no purpose.” (People v. 

Frazier, supra, 89 Cal.App.4th at pp. 40-41.) The evidence given by Yolanda was even 

more probative because it was more similar, given that she was a stranger picked up by 

defendant on the street. The evidence of prior misconduct in this case was not likely to 

confuse the jury, nor was the jury likely to have sought to punish defendant for his 

conduct with Yolanda. Yolanda informed the jury she had been to court in the matter, 

and the jury therefore knew the crime had been reported and adjudicated in some fashion. 
32

In any event, as discussed infra, defendant had an opportunity to inform the jury that he 

was convicted only of sexual battery on Yolanda. The prior victims’ testimony did not 

consume an overly large portion of the total trial testimony. Keisha’s testimony in 

particular was very brief. In addition, the prior acts were not more inflammatory than the 

charged conduct. The prior conduct with Keisha might be viewed by some as 

significantly less disturbing, since it involved someone with whom defendant had a 

relationship. The prior acts were not remote, since all of the offenses—charged and 

uncharged—occurred within a time span of approximately eight years. 

 Moreover, in this case, the court heard exhaustive argument from both parties and 

engaged in a lengthy discussion on admission of the uncharged offenses. The court took 

a great deal of time to weigh the evidence and explain its rulings. As in People v. Taylor

(2001) 26 Cal.4th1155, 1169, the record as a whole shows the court undertook a careful 

weighing process in reaching its decision. The type of evidence elicited in this case was 

properly admitted under Evidence Code section 1108 and Falsetta, supra, 21 Cal.4th 903. 

(See People v. Loy (2011) 52 Cal.4th 46, 60-64.) 

 Finally, we note that “[t]he 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 defendant’s 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.]” (People v. 

Karis (1988) 46 Cal.3d 612, 638.) We conclude that defendant’s prior offenses were 

highly probative, and the probativeness substantially outweighed any potential prejudice. 

Because we perceive no error, we do not address defendant’s argument that the trial 

court’s error was not harmless. 
33

V. Evidence Code Section 1108 and Constitutional Violations 

A. Defendant’s Argument 

Defendant cites Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau) for 

the proposition that using other crimes evidence to infer criminal propensity violates the 

due process clause. He urges that Falsetta, supra, 21 Cal.4th 903, should be reconsidered 

in light of Garceau. Defendant also asserts that Evidence Code section 1108 violates 

equal protection. 

 B. Falsetta Holdings Unaffected by Garceau

Defendant’s additional contention that Evidence Code section 1108 deprived him 

of equal protection and the right to a fair trial is equally unavailing. In Falsetta, our 

Supreme Court cited with approval the Court of Appeal’s rejection of due process and 

equal protection challenges in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 

(Fitch). (Falsetta, supra, 21 Cal.4th at p. 918.) Falsetta concluded that “in light of the 

substantial protections afforded to defendants in all cases to which section 1108 applies, 

we see no undue unfairness in its limited exception to the historical rule against 

propensity evidence” and that “the trial court’s discretion to exclude propensity evidence 

under section 352 saves section 1108 from defendant’s due process challenge.” (Id. at 

pp. 915, 917.) 

 With respect to equal protection, Falsetta noted that the Legislature reasonably 

could create an exception to the propensity rule in sex offense cases “because of their 

serious nature, and because they are usually committed secretly and result in trials that 

are largely credibility contests.” (Falsetta, supra, 21 Cal.4th at p. 918.) Quoting Fitch, 

supra, 55 Cal.App.4th at pages 184-185, the Supreme Court explained that “‘[t]he 

Legislature is free to address a problem one step at a time or even to apply the remedy to 

one area and neglect others. [Citation.]’ [Citations.]” (Falsetta, at p. 918; see also 

People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Jennings (2000) 81 

Cal.App.4th 1301, 1310-1311.) We agree with these authorities. 

 Defendant contends, however, that the holding in Falsetta must be reconsidered in 

light of Garceau, which held that the trial court erred in reading a jury instruction that did 
34

not limit the jury to a permissible inference based on other crimes evidence, but rather 

invited the jury to draw the additional inference of criminal propensity. (Garceau, supra, 

275 F.3d at p. 775.) Defendant asserts that under the reasoning of Garceau, other-crimes 

evidence admitted to infer criminal propensity violates the due process clause. 

Garceau is, of course, not binding on this court. (People v. Avena (1996) 13 

Cal.4th 394, 431) In any event, it is not relevant to the instant case. Garceau did not 

discuss the admissibility of prior sex offenses in a sex offense case, but rather, the 

introduction of evidence that the defendant had been convicted of murder in a prior case 

and testimonial evidence that he manufactured illegal drugs, introduced under Evidence 

Code section 1101. (Garceau, supra, 275 F.3d at p. 773.) The California Supreme Court 

held that the admission of prior crimes evidence to show Garceau’s propensity to commit 

murder violated California law, but the error was harmless. (Id. at p. 774.) The Ninth 

Circuit disagreed only with the finding that the error was harmless. (Id. at p. 775.) 

 Furthermore, in U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1031, the Ninth 

Circuit held that Federal Rules of Evidence, rule 414 (28 U.S.C.), which concerns 

admission of evidence of another offense of child molestation, is constitutional. The 

court held that rule 414 does not violate due process, equal protection, or any other 

constitutional guarantee in light of Federal Rules of Evidence, rule 403, which provides 

that relevant evidence may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice. (U.S. v. LeMay, at p. 1031.) The reasoning in LeMay

thus parallels that of Falsetta, and it contradicts defendant’s interpretation of Garceau. 

 Finally, it is clearly not our role to reevaluate Falsetta, which upheld the 

constitutionality of Evidence Code section 1108. (See Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455.) Defendant’s arguments are without merit. 

VI. Common Plan or Scheme Evidence 

A. Defendant’s Argument 

Defendant argues that the common features between the Yolanda C. incident and 

the charged crimes were insufficient to establish a common plan or scheme, and 

admission of this evidence was inappropriate under Evidence Code section 1101, 
35

subdivision (b). The admission of this evidence was a prejudicial abuse of discretion and 

a violation of his federal right to due process under the Fifth and Fourteenth Amendments 

to the United States Constitution. 

 B. Proceedings Below 

 The prosecutor moved to present the evidence of Yolanda C. under Evidence Code 

section 1101, subdivision (b) because it showed “that the defendant has a common 

pattern in the way that he commits his forcible rape crimes.”9 He would offer rides to 

women within a short distance from his residence. The women accepted, and they would 

end up being forcibly raped. The evidence would be offered specifically in relation to the 

charged crime against N. The defense argued that the incidents bore no “signature,” and 

defendant’s act of meeting women by offering them rides was not sufficiently unique. 

The court ruled that the evidence was not confusing, and the degree of similarity was 

sufficient under Evidence Code section 352. The court found there was no undue 

prejudice in that the evidence would not prompt an emotional bias against the defendant. 

 C. Relevant Authority

 “‘The presence of a design or plan to do or not to do a given act has probative 

value to show that the act was in fact done or not done.’ [Citation.] . . . The existence of 

such a design or plan also may be proved circumstantially by evidence that the defendant 

has performed acts having ‘such a concurrence of common features that the various acts 

 

9 Evidence Code section 1101, subdivision (a) provides: “Except as provided in this 

section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a 

trait of his or her character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion.” 

 Subdivision (b) of Evidence Code section 1101, provides: “Nothing in this section 

prohibits the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or accident, or whether a 

defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act 

did not reasonably and in good faith believe that the victim consented) other than his or 

her disposition to commit such an act.” 
36

are naturally to be explained as caused by a general plan of which they are the individual 

manifestations.’ [Citation.] Evidence of a common design or plan, therefore, is not used 

to prove the defendant’s intent or identity but rather to prove that the defendant engaged 

in the conduct alleged to constitute the charged offense.” (People v. Ewoldt (1994) 7 

Cal.4th 380, 393-394.) 

 “To establish the existence of a common design or plan, the common features 

must indicate the existence of a plan rather than a series of similar spontaneous acts, but 

the plan thus revealed need not be distinctive or unusual. . . . [E]vidence that the 

defendant has committed uncharged criminal acts that are similar to the charged offense 

may be relevant if these acts demonstrate circumstantially that the defendant committed 

the charged offense pursuant to the same design or plan he . . . used in committing the 

uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need 

not be unusual or distinctive; it need only exist to support the inference that the defendant 

employed that plan in committing the charged offense. [Citation.]” (People v. Ewoldt, 

supra, 7 Cal.4th at p. 403.) 

D. Evidence Properly Admitted Under Evidence Code Section 1101, 

Subdivision (b) 

 Defendant argues that, although the Yolanda C. incident bore some superficial 

similarity with the K. rape count, there was little similarity to the N. counts. The alleged 

rape and forcible oral copulation occurred in N.’s home. She had invited him over, and 

they smoked marijuana together and watched television. Also, the perpetrator used a gun 

on Yolanda and ordered her to undress, whereas K. did not mention a gun, and she 

testified that her assailant ripped off her clothes. 

 Despite the differences in the circumstances, we conclude there were sufficient 

similarities in the incidents to justify admission of the Yolanda C. incident as common 

plan evidence. In the Yolanda C. incident, as well as in the charged crimes, defendant 

was driving or sitting in his car when he saw the women and offered them a ride. He then 

interacted with them in a friendly manner until he ultimately asked them for sex. In N.’s 

case, it was logical that defendant would not attempt to have sex with her while her 
37

children were in the car. Instead, he waited until he was in her home and her children 

were put to bed. In two of the instances defendant offered to pay for sex when the 

woman initially refused. In the uncharged incident, defendant used a gun to accomplish 

the rape. In the case of N., defendant used the threat of a gun. In all of the instances, 

defendant attempted to have sex with the women consensually, but when they refused, he 

used force and fear to make them comply with his demands. Thus, the instance of 

uncharged conduct was highly probative of defendant’s scheme of trolling the streets of 

his neighborhood to pick up women for sex. 

 Moreover, the evidence was not more prejudicial than probative. The uncharged 

incident was not more inflammatory than either of the charged crimes. K. testified that 

defendant attempted to choke her, and N. stated that defendant threatened her with a gun 

with her two toddlers in the house. In the uncharged incident, Yolanda actually asked for 

a ride, thereby putting herself at risk, whereas in the charged incidents, defendant offered 

the ride, and the women accepted. 

 In any event, the admission of the uncharged incident was harmless under any 

standard. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); Watson, supra, 46 

Cal.2d at p. 836.) The trial court properly admitted the evidence of both uncharged 

incidents under Evidence Code section 1108. Therefore, the jury would have learned 

about the incidents even if the prosecutor had not sought admission of the Yolanda C. 

incident as showing a common plan or scheme. 

 Defendant’s argument is without merit, and he suffered no violation of his federal 

right to due process.

VII. Exclusion of Defendant’s Prior Sexual Battery Plea 

A. Defendant’s Argument 

Defendant contends the trial court erred in refusing to take judicial notice of his 

plea to sexual battery and subsequent probation in the incident with Yolanda C. The 

court erroneously ruled that the plea was not relevant to whether defendant had raped 

Yolanda C. 
38

 B. Proceedings Below 

 During the discussion of the admission of Yolanda C.’s evidence as a common 

scheme, defense counsel suggested to the court that it “would be a lot more fair if, rather 

than the conduct being introduced, that the conviction be introduced.” The court stated 

that it was not what the person was convicted of that made the evidence probative. The 

court ruled without prejudice that the evidence of the conviction for sexual battery was 

not relevant. The court suggested that defense counsel research cases that might support 

his argument that the conviction for the lesser offense should be introduced. Counsel 

stated that perhaps he and the prosecutor could agree to a stipulation. 

 During her testimony, Yolanda stated that she had previously been to court in 

regard to the incident with defendant. No evidence was presented about the results of any 

proceedings against defendant. Defense counsel asked the court to take judicial notice 

that defendant had pleaded guilty to sexual battery against Yolanda and was given credit 

for time served and granted probation. The court stated the evidence was not relevant to 

the question at hand, which was whether or not defendant committed a rape of Yolanda. 

The fact that defendant pleaded guilty so as to avoid jail did not counter the prosecution’s 

evidence that he committed a rape. Moreover, the evidence of the nature of the 

conviction would require instruction on the elements of sexual battery, since the jury 

would not know what that was. 

 The trial court told counsel that he could introduce the prior conviction to show 

that defendant committed sexual battery. Defense counsel insisted, however, that he 

wanted the conviction to come in for a different purpose, i.e., to inform the jury that 

defendant entered the plea to avoid trial. 

 C. Relevant Authority 

 Only relevant evidence is admissible. (Evid. Code, § 350.) All relevant evidence 

is admissible, except as otherwise provided by statute. ( Evid. Code, § 351.) Relevant 

evidence is evidence “having any tendency in reason to prove or disprove any disputed 

fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) 

“The test of relevance is whether the evidence tends ‘logically, naturally, and by 
39

reasonable inference’ to establish material facts such as identity, intent, or motive. 

[Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court has wide 

discretion in determining the relevancy of evidence. (Ibid.) Evidence is irrelevant if it 

leads only to speculative inferences. (People v. Morrison (2004) 34 Cal.4th 698, 711.) 

 Where prior uncharged crimes evidence is admitted, a trial court must allow the 

defendant to present evidence of his acquittal. (People v. Griffin (1967) 66 Cal.2d 459, 

465-466 (Griffin) [other crimes evidence admissible because of similarities between the 

crimes to show victim’s injuries not accidental]; People v. Mullens (2004) 119 

Cal.App.4th 648, 667 (Mullens) [other crimes evidence admitted under Evidence Code 

section 1108].) As Griffin explains, it is logical that competent evidence of another crime 

is not inadmissible by reason of the defendant’s acquittal, but the proof of the acquittal is 

also admissible to weaken or rebut the prosecution’s evidence of the other crime. 

(People v. Jenkins (1970) 3 Cal.App.3d 529, 534.) “Accordingly, the gist of the holding 

in Griffin is that since ‘evidence of other crimes always involves the risk of serious 

prejudice, and it is therefore always “to be received with ‘extreme caution,’”’ [citation] 

any competent or otherwise admissible evidence tending to weaken and rebut the 

evidence of the other crime should be admissible.” (Ibid.) 

 D. No Abuse of Discretion or Error 

 At the outset, we note that the trial court stated it would allow defense counsel to 

present evidence of defendant’s conviction for sexual battery against Yolanda. Counsel, 

however, insisted on presenting evidence of the terms of defendant’s plea deal and his 

purported reason for taking the deal. As the trial court repeatedly stated, this evidence 

was not relevant to the issue of whether or not defendant committed the rape. 

 Defendant argues, however, that the principles pronounced in Griffin and Mullens

extend to the situation in his case, i.e., that he pleaded to a lesser included offense of rape. 

He offers no authority to support his claim that this is so. As noted, Griffin recognized 

that evidence of other crimes always involves the risk of prejudice, and that evidence of 

an acquittal should be admissible to rebut the prosecution’s evidence of the other crime. 

(Griffin, supra, 66 Cal.2d at p. 465.) An acquittal is relevant for this purpose because it 
40

addresses a defendant’s guilt or innocence. In the instant case, however, defendant’s 

innocence of his conduct with Yolanda was not shown by the fact that he pleaded to 

sexual battery in order to avoid being incarcerated. 

 We also conclude that any failure to admit evidence of the defendant’s plea was 

harmless under any standard. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 

Cal.2d at p. 836; see Griffin, supra, 66 Cal.2d at pp. 466-467 [error in excluding evidence 

of acquittal is reviewed under the standard in Watson].) As the trial court pointed out, 

evidence that defendant pleaded guilty to sexual battery could have led the jury to believe 

that defendant knew he was guilty and tried to avoid a conviction of the greater offense. 

Sexual battery is committed when the perpetrator touches an intimate part of an unwilling 

person “for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” 

(§ 243.4, subd. (e)(1).) Therefore, defendant suffered no prejudice from the court’s 

exclusion of the evidence and actually benefited from its exclusion, since it would have 

bolstered Yolanda’s credibility. 

VIII. CALJIC No. 2.50.1 

A. Defendant’s Argument 

Defendant contends that CALJIC No. 2.50.01, quoted in footnote 6 ante, which 

instructed the jury on the use of prior uncharged offenses, violates due process. It 

interferes with the presumption of innocence and makes conviction possible without 

proof beyond a reasonable doubt, calling for reversal of the convictions. He argues that, 

even under the Watson standard, reversal is called for because it is reasonably probable 

the jury misapplied the instruction in the instant case. 

 B. No Due Process Violation 

CALJIC No. 2.50.01 instructs the jury on the use of evidence admitted under 

Evidence Code section 1108. (See Falsetta, supra, 21 Cal.4th at p. 924.) The instruction 

states, in part, that the jury may infer that defendant “was likely to commit and did 

commit” the charged offenses if they find that he committed the prior offenses and infer 

that he had a disposition to commit sexual offenses. (CALJIC No. 2.50.01 (1999 rev.).) 

Defendant acknowledges that People v. Reliford (2003) 29 Cal.4th 1007 (Reliford) held 
41

that the instruction correctly states the law and does not violate due process. (Id. at p. 

1009.) He also acknowledges that this court is required to follow Reliford, and he states 

that he makes this argument for purposes of preserving the matter for federal review. He 

contends that Reliford is in error. 

 In Reliford, the prosecution presented evidence indicating the defendant 

previously had raped a different victim in a manner similar to the charged offense. The 

defendant claimed that, “having found the uncharged sex offense true by a preponderance 

of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses.” 

(Reliford, supra, 29 Cal.4th at p. 1013.) Reliford rejected the argument because the 

instruction specifically stated, “‘if you find by a preponderance of the evidence that the 

defendant committed a prior sexual offense . . . , that is not sufficient by itself to prove 

beyond a reasonable doubt that he committed the charged crime.’” (Ibid.) Reliford

concluded, “[n]o reasonable juror would believe those requirements could be satisfied 

solely by proof of uncharged offenses.” (Id. at pp. 1013-1014.) “[W]e will presume here 

that jurors can grasp their duty—as stated in the instructions—to apply the 

preponderance-of-the-evidence standard to the preliminary fact identified in the 

instruction and to apply the reasonable-doubt standard for all other determinations.” (Id. 

at p. 1016.) 

 CALJIC No. 2.50.01 does not deny a defendant due process because it does not 

allow a jury to infer guilt without proof beyond a reasonable doubt. Moreover, the 

version of the instruction read to the jury was approved in Schultz v. Tilton (9th Cir. 

2011) 659 F.3d 941, 945, as being consistent with clearly established federal law. We are 

satisfied beyond a reasonable doubt that the jury used the propensity evidence for a 

proper purpose, and that the verdict was not based on an interpretation by which the jury 

convicted defendant by a mere preponderance of the evidence. 

IX. Ineffective Assistance 

Defendant states that if this court should conclude that any of the issues he 

presents are deemed forfeited, he alternatively asserts that trial counsel provided 

ineffective assistance by failing to preserve the issue. To successfully assert a claim of 
42

ineffective assistance of counsel, a defendant must demonstrate that counsel’s 

representations fell below an objective standard of reasonableness, and but for counsel’s 

errors there is a reasonable probability that the result of the proceeding would have 

been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Since we have 

addressed the merits of all of defendant’s arguments, no claim of ineffective assistance of 

counsel lies.

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 BOREN, P.J. 

We concur: 

 CHAVEZ, J. 

 HOFFSTADT, J.