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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.
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Defendant Terry Glen Shorts sexually assaulted and murdered 13-year-old 

Jessica S. in 1996, shooting her in the head and leaving her half-naked body in a park 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 body. 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 to 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) improperly excluded evidence of Rodriguez’s propensity for violence, 

and (3) improperly admitted lay opinion testimony that 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 being 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 heard 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 

screaming stopped. 
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Vaginal, rectal, and oral swabs were taken during an autopsy of Jessica’s body. 

Sperm was found on the vaginal and rectal swabs 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 offered 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 Evidence 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, and forced her to have oral and anal sex 

with him. 

The defense conceded that defendant had sexual relations with Jessica but claimed 

that 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 she 
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was a gang 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 blamed Rodriquez for 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 Enhancement 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 prior conviction allegation, and a jury found defendant 

guilty on all counts and found all special circumstances and enhancement allegations 

true. 
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The trial court sentenced defendant to an indeterminate term of life without 

possibility of parole for the special-circumstance first degree 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 terms for the sex offenses against Jessica, but it stayed those terms under 

section 654 because they were alleged as special 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 evidence of vaginal or anal 

trauma, and the circumstantial evidence permits a reasonable inference that the sex 

offenses and the homicide did 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 defendant to the location. According to the 

defense, someone 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 cling 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, given the evidence 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.
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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 exercised its 

discretion in admitting the evidence.

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.” Evidence Code 

section 352 provides: “The court in its discretion may exclude evidence if its probative 

value is substantially outweighed by the probability that its admission will (a) necessitate 

undue consumption of time or (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.”

In People v. Harris (1998) 60 Cal.App.4th 727 (Harris), this court identified five 

factors 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 Evidence Code section 352. The trial court engaged in a thorough 

analysis of Evidence Code sections 352 and 1108 and the due process factors noted in 

Harris. The court believed that defendant’s strongest argument for exclusion was that the 
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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 

nature. 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, 

such 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 

offenses and the special circumstances 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 propensity 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 those 
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crimes was violent and defendant’s propensity for committing violent sex offenses 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 Evidence Code section 352 objection: (1) the evidence of the sex 

offenses against J.P., an adult who was not murdered, was not more inflammatory than 

the evidence of the crimes against Jessica; (2) there is little probability that admission of 

the J.P. evidence confused the jury as it was a completely separate incident; (3) the prior 

offense was not remote, occurring in October 1993, less than three years before the 

murder of Jessica; (4) admission of the evidence did not consume an unwarranted amount 

of trial time; and (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 Evidence Code Sections 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 was allowed to present 

propensity evidence against him under Evidence 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 requires 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 facts 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.
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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 judges ‘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, 326-327 [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 abuse that discretion, the 

exclusion of the evidence (including proffered third 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.) Defendant 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. Defendant 

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 conviction.” 

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, defendant should be 

able to present evidence concerning Rodriguez’s propensity for violence, even if that 

evidence is prohibited under Evidence Code section 1101. 
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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 evidence, 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 defendant 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 discovery 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 even if Wardius applied to evidentiary 

questions.
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“Our elected Legislature has determined that the policy considerations favoring 

the exclusion of evidence of uncharged sexual offenses 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 often 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 hand, 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 concerning 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 because 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 Evidence Code section 1109. “Domestic violence” in Evidence 

Code section 1109 refers to violence against someone with whom the perpetrator has or 

had at 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 characterized 
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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. 

Finally, 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 twoway 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 

propensity 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 

while 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 at 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. 
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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 on

the stairway from her bedroom if someone left through the front door, and she did not 

remember hearing it that weekend. 

The prosecutor 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 objection. 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 the 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 opinion 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” that 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.]” 
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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.
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DISPOSITION

The judgment is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 BUTZ , J.