1

Filed 3/6/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. TERRY GLEN SHORTS,

Defendant and Appellant. C078041 (Super. Ct. No. 12F02050)

APPEAL from a judgment of the Superior Court of Sacramento County, Michael A. Savage, Judge. Affirmed. Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant Terry Glen Shorts sexually assaulte d and murdered 13

- year

- old
Jessica S

. in 1996, shooting her in the head and leaving her half

- naked body in a pa rk in the middle of the night. Sixteen years later, he was connected to the crime when his DNA was identified in samples taken from Jessica’s bo dy. At trial, defendant conceded
that he had sexual relations with Jessica, but claimed he did not kill her. Instead, he argued that Sammy Rodriguez did it. The jury convicted defendant of the murder and sex
offenses , and the trial court sentenced him t o life without possibility of parole, as well as
other terms

. On appeal, defendant contends the trial court: (1) improperly admitted evidence of his prior sex offenses against J.P., his ex

- girlfriend, over his Evidence Code section 352 objection, (2) i mp roperly excluded evidence of Rodriguez ’s propensity for violence, and (3) improperly admitted lay opinion testimony t hat Rodriguez did not commit the murder. Finding no prejudicial error, we affirm.
FACTS AND PROCEDURE On the morning of February 12, 1996 , 13

- year

- old Jessica S

. ’s body was found in
Florin Creek Park in Sacramento. She was five feet, one

- and

- a

- half inches tall, and she weighed 90 pounds. Jessica died of a single gunshot contact wound to the head. She also had injuries consistent with bei ng hit in the head with the butt of a gun and being strangled. Her pants and underwear were off, and her bras (she wore two) were hiked up, exposing her breasts. Jessica’s mother said that Jessica left their home the night before at around 11 p.m. or midnight with a 14

- year

- old boy to go to her grandmother’s house. Between 2 and 4

a.m., a woman who lived adjacent to Florin Creek Park hear d a “horrible scream” from a female. She also heard a man say “stop” and “don’t,” as well as more screaming from the young female. About 10 minutes after the first scream, a gunshot rang out, and the

s creaming stopped.3

Vaginal, rectal, and oral swabs were ta ken during an autopsy of Jessica ’s body. Sperm was found on the vaginal and rectal sw abs but not on the oral swab. No trauma
was noted to Jessica ’s vagina or anus. Sixteen years after the murder, in 2012, the vaginal and rectal swabs were analyzed again, and defendant’s DNA was collected from the sperm. Additionally, three sperm heads were found on the oral swab, but the sample did not contain enough DNA to identify or exclude defendant.
Defendant was interviewed after his DNA was identified from Jessica’s autopsy

. He denied knowing Jessica. When told that his DNA was found, he of fered a hypothetical about girls in an abandoned house “putting themselves in situations.” He said: “[W]e’re all capable of things that we don’t believe we would do,” but he did not admit killing Jessica. The prosecution presented evidence under Evide nce Code section 1108 that defendant sexually assaulted his ex

- girlfriend , J.P., less than three years before the
murder of Jessica. He dragged J.P. to a car and took her to a park. Pointing a gun at her and threatening her, he strangled her, beat her , a nd forced her to have oral and anal sex
with him.
The defense conceded that defendant h ad sexual relations with Jessica but claimed
tha t he did not kill her.
A man who lived with Jessica’s mother at the time of Jessica’s murder testified
that another man threatened to shoot at the house if he was not allowed to sleep with
Jessica. Mainly, however, the defense sought to cause the jury to have doubt about defendant’s guilt by introducing evidence incriminating Sammy Rodriguez, also known
as “ Coyote, ” who was 18 years old at the time of the murder. Rodriguez testified that he
had sex with Jessica once or twice before December 1995. She had told him that her name was Veronica and that she was 17 years old. In December 1995, Jessica said she4

was a gan g member at a party, and she was beaten. Rodriguez stayed away from her
after that because he believed that the boyfriend of Jessica’s mother was angry with him
because Jessica blame d Rodriquez f or the beating.
After Jessica’s murder, Jessica’s mother told the police that Rodriguez had set up
Jessica to be jumped in December 1995. Rodriguez heard that Jessica’s family was blaming him, so Rodriguez’s attorney had him write down who he was with the weekend
of Jessica’s murder so that he would not forget. Rodriguez had a .22

- caliber handgun at the time Jessica was murdered

. The district attorney charged defendant by information with the following:

 Count one

— murder ( Pen. Code, § 187 ; hereafter, unspecified code citations are to
the Penal Code ).

o Special circumstances

— murder while committing a lewd and lascivious act on a child (§ 190.2, subd. (a)(17)(E)); murder while committing sodomy on a child (§ 190.2, subd. (a)(17)(D)); and murder while committing oral copulation on a child (§ 190.2, subd. ( a)(17)(F)).

o Enhancement allegation

— personal use of a firearm (§ 12022.5).

 Count two

— lewd and lascivious act on a child (§ 288, subd. (a)).

o Enhancement allegation

— personal use of a firearm (§ 12022.5).

 Count three

— sodomy on a child (§ 286, subd. (c)).

o Enhan cement allegation

— personal use of a firearm (§ 12022.5).

 Count four

— oral copulation on a child (§ 288a, subd. (c)).

o Enhancement allegation

— personal use of a firearm (§ 12022.5).

 Strike allegation

— prior conviction for aggravated assault involving great bodily injury (§ 1170.12). Defendant admitted the prio r conviction allegation , and a jury found defendant guilty on all counts and found all special circumstances and enhancement allegation s
true

.5

The trial court sentenced defendant to an indeterminate term of life without possibility of parole for the special

- circumstance first d egree murder of Jessica S

. (§§ 187, subd. (a); 190.2, subd. (a)(17) (d ) , ( e ) & ( f )) with a consecutive term of 10 years for personal use of a firearm (§ 12022.5, subd. (a)). The court sentenced defendant to
determinate term s for the sex offenses against Jessica, but it stayed those terms under section 654 because they were alleged as sp ec ial circumstances.
DISCUSSION Before we consider defendant’s contentions on appeal, it is helpful to understand defendant’s trial strategy in order to better comprehend his arguments on appeal. His trial strategy is best revealed in defense counsel’s closing argument. Counsel noted that the killing of Jessica was first degree murder. Whoever killed her was guilty of that
crime. Defendant had sex with Jessica but there was no evide nce of vaginal or anal trauma, and the circumstantial evidence permit s a reasonable inference that the sex
offenses and the homicide di d not occur at the same time and that defendant was not
involved in the homicide. Except for his DNA in Jessica’s body, no evidence was found in the area of the homicide connecting defendan t to the location. According to the defense, s omeone else killed Jessica, possibly Sammy Rodriguez. Even on appeal, defendant concedes the evidence presented “a strong prosecution case.” However, his strategy at trial and on appeal is to c ling to the scenario that the sex offenses against Jessica and her murder were committed by two different people

— in other words, that he committed the sex offenses but someone else unconnected to him committed the murder. That is a very difficult task , gi ven the evid ence that the sex offenses and murder were virtually contemporaneous. A witness heard Jessica screaming for several minutes before she was shot. And she was found in a state that suggested that she had just been sexually assaulted.6 I Evidence Code section 352
Defendant contends that admission under Evidence Code section 1108 of the evidence concerning his sex offenses against J.P. over his Evidence Code section 352 objection was an abuse of discretion. We conclude the trial court properly exercise d its discretion in admitting the evidence.
Evidence Code s ection 1108, subdivision (a) provides: “ In a criminal action in
which the defendant is accused of a sexual off ense, evidence of the defendant’ s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmi ssible pursuant to Section 352.” Evidence Code

s ection 352 provides: “ The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probabil ity that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or o f misleading the jury.”
In People v. Harris (1998) 60 Cal.App.4th 727 ( Harris ) , this court identified f ive
fact ors relevant to the trial court’ s consideration of whether the probative value of prior
sexual misconduct evidence is substantially outweighed by its prejudicial effect under
section 1108: (1) the inflammatory nature of the prior offense evidence; (2) the probability that admission of the evidence will confuse the jury; (3) the remoteness of the prior offense; (4) the consumption of time necessitated by introduction of the evidence; and (5) the probative value of the evidence. ( Id . at pp. 737

- 740. ) The trial court’ s ruling under Evidence Code section 1108 is subject to review for abuse of discretion. ( People v. Loy (2011) 52 Cal.4th 46, 61.) Before trial, defendant moved to exclude the evidence of defendant’s sex offenses against J.P., citing Ev idence Code section 352. The trial court engaged in a thorough analysis of Evidence Code section s 352 and 1108 and the due process factors noted in
Harris . The court believed that defendant’s strongest argument for exclusion was that the7

offenses against J.P. were sex offenses against an adult, while the victim in this case was
a 13

- year

- old child. However, the court noted that Jessica, though young, was physically
mature and previously involved in adult

- type activities, including those of a sexual

natur e. From this, the court concluded that a propensity to commit sex offenses against a physically mature and sexually active 13

- year

- old can be reasonably inferred from
commission of such crimes against an adult woman. The court found that the similarities
between the attack on J.P. and the attack on Jessica, such as nonconsensual sex , attack in a park, strangulation, oral sex, anal sex, and use of a gun, outweighed the differences,

s uch as adult versus child. And the court concluded that the probative value of the J.P. evidence was strong. The possible prejudicial effect of the J.P. evidence, along with possible confusion of issues and possible misleading of jury, did not outweigh its probative value. On appeal, defendant asserts that this admission of evidence was an abuse of
discretion because the charges against defendant did not require the prosecution to prove that defendant committed forcible sex offenses against Jessica. Both the substantive sex
off enses and the special circumst ances were predicated on lack of consent based on age,
rather than use of force. In defendant’s argument, this difference in whether lack of consent was necessary makes the J.P. evidence superfluous, misleading, and legally confusing. We disagree.
The J .P. evidence established that defendant has a propensity for committing sex offenses. While the circumstances negating consent are different between the J.P. case (force) and this case (age) , many other circumstances are similar and support the propensity inference. The J.P. evidence established that defendant, in committing a sex offense, is prone to use a gun , isolate the victim in a park, strangle the victim, and engage
in oral and anal sex . That prope nsity is relevant to this case, regardless of how the lack of
consent is established. Also, even though the special circumstance allegations were premised on age as the cause of lack of consent, the murder in commission of those8

crimes was violent and defendant’s propensity for committing violent sex off enses was relevant to whether he committed the special circumstance murder. Furthermore, the Harris factors support the trial court’s admission of the evidence over defendant’s Evid ence Code section 352 objection: (1) t he evidence of the sex offenses aga inst J.P., an adult who was not murdered , was not more inflammatory than
the evidence of t he crimes against Jessica; (2) t he re is little probability that admission of
the J.P. evidence confuse d the jury as it was a completely separate incident ; (3) t he pri or offense was not remote, occurring in October 1993, less than three years before the
murder of Jessica; (4) a dmission of the evidence did not consume an unwarranted amount of trial time ; a nd (5) as the trial court concluded, the probative value of the evidence was strong . ( See Harris, supra, 60 Cal.App.4th at pp. 737

- 740.) The trial court did not abuse its discretion in admitting the J.P. evidence over defendant’s Evidence Code section 352 objection.
II Defense Use of Evid ence Code S ections 1108 and 1109 Defendant contends that the trial court’s exclusion of defense evidence that Sammy Rodriguez had a propensity for violence interfered with his right to present a
defense of third party culpability because the prosecution w as allowed to present propensity evidence against him under Eviden ce Code section 1108. He claims that this
circumstance violated his due process right to symmetry in the proceedings, citing Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d 82] ( Wardius )

. Whether or not
Wardius require s a court to allow a defendant to introduce propensity evidence under Evidence Code section 1108 or 1109 in a case in which the prosecution has been able to
do so is not an issue we need to decide in this case because the fa cts of this case, even assuming defendant can take advantage of Evidence Code section 1108 or 1109, do not support admission of evidence that Rodriguez had a propensity for violence.9

Although a defendant is constitutionally entitled to present “a complete defense” ( California v. Trombetta (1984) 467 U. S. 479, 485 [81 L.Ed.2d 413, 419 ]), that right does not encompass the ability to present evidence unfettered by evidentiary rules ( People v.
Brown (2003) 31 Cal.4th 518, 538). “[T]he Constitution permits jud ges ‘to exclude evidence that is “repetitive . . . , only marginally relevant” or poses an undue risk of “harassment, prejudice, [or] confusion of the issues.” ’ [Citations.] ” ( Holmes v. South
Carolina (2006) 547 U.S. 319, 32 6

- 327 [164 L.Ed.2d 503, 510, 510 ] [stating evidentiary rules that preclude the admission of third party culpability evidence insufficiently connecting the third person to the crime are “widely accepted”].) When a trial court
exercises its discretion to exclude evidence and does not a buse that discretion, the exclusion of the evidence (including proffered th ird party culpability evidence) does not impermissibly infringe on a defendant’s federal constitutional rights. ( People v. Prince (2007) 40 Cal.4th 1179, 1243.)
Under the abuse of discretion standard, we will not disturb a trial court’s ruling unless discretion was exercised in an arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice. ( People v. Rodriguez (1999) 20 Cal.4th 1,
9

- 10.) Defe ndant sought to present evidence that , earlier the same month that Jessica was murdered, Rodriguez shot at his ex

- girlfriend, trying to kill her , and, as a result of that incident, he was convicted on a guilty plea of assault with a deadly weapon

. Defenda nt conceded that the evidence was not admissible as character evidence, but he sought to use it for impeachment . Counsel said: “[E]ven if all we can do is impeach[] him with assault with a deadly weapon conviction . . . then let the jury hear that convic tion.”
Given the chance later to further articulate the defense’s position, defense counsel argued that, since the prosecution, under Evidence Code section 1108, would be able to present evidence of defendant’s propensity to commit sex offenses, defenda nt should be able to present evidence concerning Rodriguez’s propensity for violence , even if that evidence is prohibited under Evidence C ode section 1101.10

The trial court ruled that the defense could present evidence that Rodriguez had a handgun during the month Jessica was murdered and that Rodriguez was convicted of a crime involving moral turpitude , but the court denied the defense motion as to the facts of Rodriguez’s shooting at his ex

- girlfriend

. The court said: “The Evidence Code requires

me to examine each item of evidence proposed on the merits of that evidence and to
make a determination on those grounds . . . .” On appeal, defendant focuses on what he perceives as the lack of symmetry and balance in what the two sides can present as evide nce, relying heavily on Wardius

. The California Supreme Court summarized the Wardius holding as follows: “[In Wardius ], the United States Supreme Court held that an Oregon statute violated the Fourteenth Amendment’s due process clause in requiring a defe ndant to provide alibi information before trial without imposing a reciprocal discovery obligation on the state. ( Wardius , at pp. 474

– 476.) The Supreme Court stated that ‘[a]lthough the Due Process Clause has little to say regarding the amount of discove ry which the parties must be afforded, [citation], it does speak to the balance of forces between the accused and his accuser.’ ( Id . at p. 474.) The high court further noted that although due process did not require Oregon to adopt any pretrial discovery provisions, if it did, ‘discovery
must be a two

- way street.’ ( Id . at p. 475.)

“ Wardius, supra, 412 U.S. 470, requires only that certain discovery obligations be reciprocal. ( People v. Yeoman (2003) 31 Cal.4th 93, 154 .)” ( People v. Mena (2012) 54
Cal. 4th 146, 159.)
An obvious difference between this case and Wardius is that this case involves an evidentiary question while Wardius involved pretrial discovery. We need not determine whether that difference is dispositive, however, because there is no lack of symmetry and balance in this case that would violate due process eve n if Wardius applied to evidentiary questions.11

“ Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offens es are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is ‘critical’ given the serious and
secretive nature of sex crimes and the o ften resulting credibility contest at trial. [Citation.] ” ( People v. Fitch (1997) 55 Cal. App.4th 172, 181

- 182 , fn. omitted .) Here, the prosecution presented evidence of defendant’s sex offenses against J.P. to establish defendant’s propensity to commit sex offenses. Admission of that evidence was permitted by Evidence Code section 1108. On the other han d, the evidence defendant proffered to establish the propensity of Rodriguez for violence is not
admissible under Evidence Code section 1108. Even if a defendant were to be permitted to use Evidence Code section 1108 in an attempt to establish third party culpability, the
evidence con cerning Rodriguez’s shooting at his ex

- girlfriend is not evidence of a prior
sex offense. Defendant argues that he should also be permitted to introduce propensity evidence under Evidence Code section 1109, which allows the prosecution to introduce evidence of a defendant’s prior domestic violence to establish a propensity for domestic violence. This argument also fails bec ause defendant cannot establish that, if Rodriguez

was Jessica’s killer, it was an act of domestic violence. Although there was evidence that Rodriguez previously had sexual relations with Jessica, they were never in the type of relationship covered in Ev idence Code section 1109. “Domestic violence” in Evidence
Code section 1109 refers to violence against someone with whom the perpetrator has or
had a t least a cohabitating or dating relationship. (Evid. Code, §§ 1109, subd. (d)(3), 13700; see People v. Rucker (2005) 126 Cal.App.4th 1107, 1116 .) The evidence here established nothing more than that Rodriguez and Jessica engaged in sexual relations one or two times and that Rodriguez thought Jessica was a 17

- year

- old named Veronica

. Therefore, Rodriguez ’s prior shooting at his ex

- girlfriend, which could be characterized12

as domestic violence, could not be used to establish a propensity for domestic violence resulting in the shooting of Jessica. If Rodriguez shot Jessica, it was not domestic
violence.
Fi nally, defendant argues that he should be able to introduce any propensity evidence because the prosecution was allowed to. That argument goes well beyond the symmetry and balance required by Wardius . In Wardius , the court noted: “ [I] n the
absence of a strong showing of state interests to the contrary, discovery must be a two

way street. ” ( Wardius, supra, 412 U.S. at p. 475.) If Wardius applies to evidentiary issues, which we need not determine, then allowing a defendant to introduce any and all
propen sity evidence because the prosecution introduced propensity evidence under Evidence Code section 1108 is well beyond the “two

- way street” alluded to in Wardius

. Most propensity evidence is inadmissible under Evidence Code section 1101, which applies with equal force to the prosecution as it does to the defense. ( People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) There is no fundamental unfairness is allowing the prosecution to introduce propensity evidence that fits under a limited statutory exception
wh ile prohibiting the defense from introducing propensity evidence that fits under no statutory exception. Therefore, even assuming without deciding that Wardius applies to evidentiary issues, the trial court properly excluded evidence that Rodriguez shot a t his ex

- girlfriend to establish his propensity for violence.
III Admission of Opinion Evidence Over a defense objection, the trial court allowed Rodriguez’s ex

- wife to give her opinion that Rodriguez did not murder Jessica. On appeal, defendant contends the trial

court erred prejudicially by admitting this evidence. We conclude that, even assuming without deciding that the trial court erred by admitting the opinion evidence, there was no prejudice.13

Rodriguez’s ex

- wife, Linda Jonas , testified that she and Rodriguez lived together
in 1996. She testified that Rodriguez was with her the weekend of the murder unless he left the residence while she was asleep. She took Motrin for knee problems, which caused her to sleep lightly instead of heavily, and the only way out of the residence was through the door next to her bedroom window. She could hear squeaking of the wood o n the stairway from her bedroom if someone left through the front door, and she did not
remember h earing it that weekend. The prosecut or asked Jonas whether she remembered telling detectives that she had no doubt that Rodriguez was not involved in Jessica’s murder. The defense objected based on speculation. The court responded that it was actually lay opinion and overruled the objectio n. Jonas responded affirmatively. Asked whether she told the detectives why she felt sure, she testified: “It was just a feeling that I had, and because he had been with me and my children the whole time that I can remember.” She said that part of the reason for her feeling was that she did not hear t he squeaking wood. Defendant asserts this was inadmissible lay opinion testimony. We need not consider that question because admission of the evidence was not prejudicial. Improper admission of lay opi nion evidence is a state law error subject to the
Watson test. ( People v. DeHoyos (2013) 57 Cal.4th 79, 131 ; People v. Watson (1956) 46 Cal.2d 818, 836 .) That test asks whether it is reasonably probable the defendant would
have obtained a more favorable verdict if the improper evidence had not been admitted. ( Ibid. ) Creatively, defendant contends that admission of Jonas’s lay opinion amounted to
federal constitutional error because, in defendant’s words, the evidence was “so prejudicially misleading ” th at it “ place [d] so great an onus on the presentation of the
defense as to amount to a violation of [defendant’s] right, emanating from the Sixth and
Fourteenth Amendments, to a meaningful opportunity to present a defense. [Citation.]”14

Under the federal standard for harmless error, we ask whether the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18,
23

- 24 [17 L.Ed. 2d 705 , 710

- 711 ] .) We disagree with defendant that this asserted error in admitting lay opinion rose to a level of federal constitutional error. If it was error, it was simple evidentiary error subject to the state standard for prejudice. ( People v. Marks (2003) 31 Cal.4th 197, 226

- 227 .) Under either standard, however, the asserted error was harmless. Jonas testified
that Rodriguez was with her the weekend that Jessica was killed and that she would have heard him leave, if he did leave, because of the squeaky wood of the stairway , unless she was asleep when he left and she did not hear him

. Asked for her opinion about whether Rodriguez killed Jessica, she said she did not believe he did, basing her opinion, at least partially, on the fact that she did not hear him leave the residence. The addition of her lay opinion to the admissible evidence already given did not add much for the jury to consider. It was simply consistent with the evidence that Jonas did not think Rodriquez
left the residence that weekend. The jury was just as capable as Jonas to draw, or not draw, that inference. And there is no reason to believe that the jury relied on Jonas’s opinion in making its determination. Even assuming error in admitting the lay opinion evidence, any such error was
harmless.15 DISPOSITION The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

HULL , J.

BUTZ , J.