People v. Flores CA1/1 ( 2022 )

Filed 10/21/22 P. v. Flores CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A162384
v. (San Mateo County
LUIS FLORES, Super. Ct. No.
18SF009754A)
Defendant and Appellant.
Defendant Luis Flores, following a jury trial, was found guilty of raping
an intoxicated person, attempted rape of an intoxicated person, and sexual
penetration by a foreign object. On appeal, defendant contends the trial court
abused its discretion by: (1) excluding a DNA report on the ground it was
inadmissible under California’s rape shield law; (2) denying motions to
continue and (3) denying motions for mistrial. We affirm.
BACKGROUND
The victim testified that on a night in August 2018, she and two
coworkers went out to drinks at a downtown San Francisco bar. The victim,
who weighed a little over 100 pounds, had at least two cocktails and a shot of
vodka. Afterwards she was “really, really drunk,” and she called an Uber to
take her to her Foster City home.
After entering the wrong address, the Uber driver dropped the victim
off, alone, a couple of miles from the bar and still in San Francisco. Before
1
leaving, the driver and the other passenger attempted to call the victim a
second Uber.1 They had to type in her destination because she “wasn’t
capable” of doing it herself. They informed her the next Uber would arrive in
approximately five minutes and departed. The subsequent Uber was not able
to locate her, and the victim attempted to call a third Uber.
Defendant, who was driving a red car, stopped near the victim, and
asked where she was going. The victim remembered seeing an “Uber label”
in his car. Thinking this was her driver, she got into the car and told him her
address.
The victim remembered falling asleep at different points of the ride.
When she awoke one time, defendant was touching her “under” her pants and
touching her vagina. At another point, closer to her home, defendant “said
come over here and sit on me, and I will take you home.” The victim, not
knowing where she was, felt unsafe getting out of the car and said, “I wanted
to go home, and I did not know where we were, and I just feel I was so drunk
and I didn’t want to be asked to get out of the car again and standing on the
street. And I feel if this happened again this night then I probably never
would get home. . . .” Defendant then “helped” or “dragged” her over to him,
from the passenger’s to the driver’s side of the front seat, and proceeded to
have sex her.
By this time, the victim’s then-husband—who had tracked her location
using a cell phone application—found the victim and defendant. He opened
the car door and saw the victim “sitting on top of [defendant]” and that she
“was drunk.” He “pulled” her out of the car and slapped her because she was
1The victim had called for an Uber “pool,” a ride with “multiple
numbers of passengers” who are picked up or dropped off along a common
route.
2
“very drunk” and he “wanted to wake me up.” He also told defendant not to
leave and called the police. Defendant told the husband “don’t hit her, she’s
drunk” and apologized, saying “she’s okay with it or she agree with it or
something.”
Foster City Police Officer John Choi, Sergeant Pierre Morrison and
Corporal Marcus Terry arrived on the scene. All three found the victim to be
“intoxicated,” and “unable to care of herself.” Her speech was “slurred,” she
was unable to “maintain herself upright,” “smelled like alcohol,” and had
“glossy and red” eyes. The victim told officers defendant “put his finger in
her vagina” and raped her.
Officer Vuong Phan was also on the scene, and he along with Corporal
Terry and Sergeant Morrison, spoke with defendant and inspected his
vehicle. The victim was menstruating at the time, and the officers noticed
blood stains on the steering wheel, driver’s seat, and passenger’s seat.
Initially, defendant denied having sex with the victim. He told Officer
Phan the victim was “really drunk,” and that they “were just making out
kissing.” He said the victim “was the one that was trying to have sex with
him.” Later, he said he had just come home from work and was parking his
car, when she approached his vehicle and asked if he was her Uber driver.
She asked twice, “because she was so drunk.” When she initially approached
him, “she was like stumbling,” and he told her he was not an Uber driver and
could not take her home because she lived “too far, but she looks too
intoxicated” and “was really drunk.” Defendant then decided to drive “35-40
minutes” out of his way to take her home because he was “tr[ying] to be a nice
guy.”
According to defendant, sometime during the ride, the victim “tried to
have sex” with him. She said she “wanted to” and “was horny,” and she
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started kissing and touching him. Defendant claimed she said if he did not
have sex with her, she was going to “have sex with somebody.” He then
admitted to having sex with her.
Defendant was arrested, taken to the police station, read his Miranda
rights,2 and interviewed by Sergeant David Orlando. Defendant largely
repeated what he had told the other officers. He again stated he “saw that
she was drunk.” He also admitted to having intercourse with her, and this
time said he had sex with her twice and she “said she would give him sex for
a ride home.” He told Sergeant Orlando the first time he had sex with her
was “approximately 11 blocks away” from where he picked her up, while they
were still in San Francisco. The second time was in Foster City, where they
were “interrupted by the victim’s husband.” He added that when the
husband opened the door and slapped the victim, he intervened saying, “ ‘Hey
sir don’t—don’t slap her.’ But she’s kind of—she’s just—she’s kind of drunk.”
Sergeant Orlando noticed defendant had “what looked like dry blood around
like the bottom of his fingernails and the nailbeds.”
Around 2:00 a.m., approximately two hours after the police had arrived
on the scene, the victim’s blood-alcohol level measured .121 percent and .124
percent, which is “one and half times” above the legal limit of .08 percent.
That meant that around the time of the sexual assaults, the victim’s blood-
alcohol level would have been .20 percent at 11:00 p.m. and .18 percent at
midnight.
The district attorney filed a felony information charging defendant with
two counts of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3))
and one count of sexual penetration by a foreign object of an intoxicated
person (id., § 289, subd. (e)). It was further alleged as to counts 1 and 3 that
2 Miranda v. Arizona (1966) 384 U.S. 436.
4
the offenses were committed in more than one jurisdiction (id., § 784.7, subd.
(a)).
On the day jury selection began, defense counsel inquired about the
DNA report from the victim’s SAR examination. Although the SAR
examination had been disclosed more than a year earlier, the DNA lab report
had not been included “with the initial discovery.” The prosecutor provided
the report.
The lab report, dated November 14, 2018, stated in pertinent part: “A
mixture of DNA from at least three individuals was developed from the
sperm cell fractions of the DNA from the red/brown stain on the rear
crotch/lower buttocks area on the interior surface of the underwear. . . .
Assuming the victim is included as a contributor of DNA to her own
underwear, a foreign DNA profile was deduced. Assuming one contributor to
the deduced profile, Unknown Male 1 is included as a possible contributor to
the deduced profile. This profile is a duplicate and will not be entered into
CODIS. No conclusions can be drawn in regards to the remaining low-level
alleles in this mixture.”
The following day, the defendant moved for a continuance based on the
late production of the report, which the trial court denied. The court also
granted the prosecutor’s pending in limine motion to exclude all evidence of
other sexual activity of the victim and denied the defense motion to continue.
During the course of trial, defendant made two additional motions to
continue and two motions for mistrial based on the belated production and
exclusion of the lab report, which the court also denied.3
We discuss the motions in detail in connection with our discussion of
3
the issues on appeal.
5
The jury convicted defendant of all charges, and the trial court
sentenced him to six years in prison.
DISCUSSION
First Motion to Continue4
Additional Background
The day before the case was sent out for trial, the prosecutor moved in
limine under Evidence Code section 11035 to preclude the defense from
4 “ ‘The trial court’s denial of a motion for continuance is reviewed for
abuse of discretion.’ [Citation.] ‘There is no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the
request is denied.’ ” (People v. Muniga (2008) 44 Cal.4th 1101, 1118
(Muniga).)
5 Evidence Code section 1103, subdivision (c) states in pertinent part:
“Notwithstanding any other provision of this code to the contrary, and except
as provided in this subdivision, in any prosecution under Section 261 . . . of
the Penal Code, or under Section . . . 289 of . . . the Penal Code . . . evidence of
specific instances of the complaining witness’ sexual conduct . . . is not
admissible by the defendant in order to prove consent by the complaining
witness. [¶] . . . [¶] (4) If the prosecutor introduces evidence, including
testimony of a witness, or the complaining witness as a witness gives
testimony, and that evidence or testimony relates to the complaining witness’
sexual conduct, the defendant may cross-examine the witness who gives the
testimony and offer relevant evidence limited specifically to the rebuttal of
the evidence introduced by the prosecutor or given by the complaining
witness. [¶] (5) This subdivision does not make inadmissible any evidence
offered to attack the credibility of the complaining witness as provided in
Section 782.” (Evid. Code, § 1103, subd. (c)(1), (4) & (5).)
All further statutory references are to the Evidence Code unless
otherwise indicated.
6
questioning the victim about her prior sexual history without first submitting
an offer of proof pursuant to section 782.6
The day after jury selection commenced, defendant filed a motion for
continuance based on delayed receipt of the DNA lab report. Defendant
maintained his version of events was that the victim was “sexually aggressive
towards him,” that she was “having issues with her husband and that she
wanted to have sex,” and that if defendant “did not have sex with her she was
going to find someone else to have sex with.” He claimed this went directly to
his defense that he had a “reasonable and good faith belief” the victim was
capable of consenting. The DNA report, he asserted, was “potentially
consistent” with his version of events because the “results revealed a mixture
of DNA from at least three individuals.” “Should the complaining witness
have the DNA of multiple men in, or about, her sexual region,” it would
“contradict[] that [the victim] was merely a victim to [defendant’s] taking
advantage of her intoxication. Such a result would go directly to the
6 Section 782 “imposes a procedural limitation upon the admissibility
of evidence of sexual conduct of the alleged victim of rape or a related offense
offered to attack her credibility.” (People v. Blackburn (1976) 56 Cal.App.3d
685, 691 (Blackburn).) It requires (1) that the defendant submit a written
motion “stating that the defense has an offer of proof of the relevance of
evidence of the sexual conduct of the complaining witness that is proposed to
be presented and of its relevance in attacking the credibility of the
complaining witness,” (2) that the motion “be accompanied by an affidavit in
which the offer of proof shall be stated,” (3) that the court shall determine if
the “offer of proof is sufficient,” and if so, “order a hearing” to “allow the
questioning of the complaining witness regarding the offer of proof made by
the defendant.” (§ 782, subd. (a)(1)–(3).) If the court determines, following
the hearing, the evidence is relevant under section 780 and not inadmissible
under section 352, then the court may make an order stating what evidence
may be introduced by the defendant and the nature of the questions allowed.
(§ 782, subd. (a)(4); People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).)
7
credibility of her description of the event, as well as being relevant to a
reasonable good belief.”
The prosecution opposed the motion, pointing out the report was “clear
that there are at least three people whose DNA was found during analysis.
One is the Confidential Victim herself. The other is Unknown Male 1. Then
there is a third donor with a low level profile. The report does not indicate
whether the third donor was male or female or whether the DNA was from a
sperm cell or simply an epithelial (skin) cell.” But even if the victim had
engaged in prior sexual encounters, “it would not,” argued the prosecutor,
“ ‘support [defendant’s] statement that the complaining witness was the
sexual aggressor and that she told him if he did not have sex with her, she
would find someone else to have sex with.’ ” Nor was the evidence relevant to
the charged crimes, because the “elements of the crimes are [she was] too
intoxicated to give consent and did he know that at the time. Even if [the
victim was] throwing herself at him and begging him to have sex with her, if
those elements are met then the Defendant is guilty of the crimes charged.”
After an in-chambers discussion, where the court indicated an intent to
deny the motion, the court heard argument from counsel on the record.
Defense counsel argued:
“[The] rape shield laws are intended to prevent the defense from
arguing [that the victim] has sex with other men; therefore, ladies and
gentlemen, that goes directly to her credibility. You can’t trust her.
She’s loose. . . . That is not my intent. [¶] My intent is . . . to offer
evidence such that it goes directly to the various versions on what
happened that night. My client’s version, which he stated to the police
that night, or the complaining witness’ version. If as she indicated my
client merely took advantage of her. . . . She had to have sex with him,
so he would take her home. That’s a completely different scenario than
the one he described. The one of her actively being the aggressor; the
one actively coming on to [him]; the one saying if you don’t want to
have sex with me, I will find someone else to have sex with. [¶] The lab
8
report I got yesterday indicates there is at least three people’s DNA in
an area in your underpants. There was at least two people’s DNA in
several other places. I just got that yesterday. And the argument as I
presented to the Court and what I believe to be true is we believe this
was a marriage in trouble. We believe this was a young woman who
went out, had some drinks, and was, quite frankly, out to have sex.
Either get back at her husband, make herself feel better for whatever
reason. Okay. And that she had been engaging in this kind of conduct
and that is what my client ran into if you will.”
“I am in no way going to say she had sex, therefore you can’t believe
her. . . . What I am merely trying to do is present facts are consistent
with my client’s version of events to give the jury a way to consider
whose version to adopt, what weight to give. And for that reason, I
think that it is relevant. For that reason I don’t believe it is protected
by the rape shield law. [The statute] clearly says that this is in no way
intended to prohibit evidence as it relates to credibility. That is exactly
what I am trying to do here. Who do you believe, ladies and gentlemen
of the jury; whose version of events? [¶] And I just got this report
yesterday. I shouldn’t be in a position where we have to guess, you
know . . . and if the Court grants the continuance here, what will
happen, I will do a test. If it comes back in a way I think is beneficial, I
will have to file procedures of 782 and the judge in your position can
decide whether it can come in or not.”
The district attorney responded, “first off I would like to read a short
portion from the significant report that counsel is referring to in which it
states, ‘Assuming the victim is included as a contributor of DNA to her own
underwear, a foreign DNA profile was deduced. Assuming one contributor to
the deduced profile, Unknown Male 1,’ who I think counsel and I both agree
is the defendant, ‘is included as a possible contributor to the deduced profile.
This profile is a duplicate and will not be entered into CODIS. No
conclusions can be drawn in regards to the remaining low-level alleles in this
mixture.’ And that is the conclusion where it states a mixture of DNA from
at least three individuals was found.”
9
The prosecutor continued, “that this woman was coming on to him; she
was the aggressor . . . [s]he was out to have sex with people” is simply not
relevant to the charged crimes. “[G]iven the crimes that are charged it does
not matter whether she consented or not. It actually has absolutely no
relevance on these charges. If this was a case of a forcible rape, I can concede
that it would matter whether or not she actually consented. But that’s not
what we have here. [¶] What we have here is somebody who is too
intoxicated to give consent and whether the defendant knew or reasonably
should have known that. The defense is trying to backdoor in the fact that
there may be, may be, some other person’s DNA, not even a sperm cell
because that’s not what the report says. It is not that there are two different
sperm cells found on her underwear. But there may be two men’s DNA that
were found in her underwear to show that she is not a credible witness in a
way that doesn’t make sense in these facts in this case.”
While agreeing the “discovery might have been late,” the court denied
the motion to continue, stating “from what you [defense counsel] have
described as the information that you might be able to gain by having to
reevaluate it or having your own expert take a look at it, the results of that in
the Court’s mind at this point would not be relevant to these charges and
that it would fall within the rape shield protections. [¶] I think your
argument comes down to if it showed there were other men involved with her
that it would just—it doesn’t really go to credibility. It goes to an argument
that she had a propensity to actively engage in sex, and I don’t think that in
and of itself is protected by the rape shield protections. So it is for that
reason that the Court is denying the motion.”
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Discussion
Defendant maintains the trial court erred in excluding the DNA lab
report on the basis of the rape shield law and, in turn, erred in denying his
initial motion for a continuance.
Under the rape shield law, “[e]vidence of the sexual conduct of a
complaining witness is admissible in a prosecution for a sex-related offense
only under very strict conditions. A defendant may not introduce evidence of
specific instances of the complaining witness’s sexual conduct, for example, in
order to prove consent by the complaining witness.” (Fontana, supra,
49 Cal.4th at p. 362.)
That said, in a prosecution for enumerated sex crimes, a defendant
may, in accordance with the procedures set forth in section 782, seek to admit
evidence of the complaining witness’s prior sexual conduct to attack the
witness’s credibility. (§§ 782, subds. (a), (c)(1), 1103, subd. (c)(5).) “[S]ection
782 requires a defendant seeking to introduce evidence of the witness’s prior
sexual conduct to file a written motion accompanied by an affidavit
containing an offer of proof concerning the relevance of the proffered evidence
to attack the credibility of the victim. [Citations.] The trial court is vested
with broad discretion to weigh a defendant’s proffered evidence, prior to its
submission to the jury, ‘and to resolve the conflicting interests of the
complaining witness and the defendant.’ [Citation.] ‘[T]he trial court need
not even hold a hearing unless it first determines that the defendant’s sworn
offer of proof is sufficient.’ [Citations.] [¶] If the offer of proof is sufficient,
the court must conduct a hearing outside the presence of the jury and allow
defense counsel to question the complaining witness regarding the offer of
proof. [Citations.] ‘The defense may offer evidence of the victim’s sexual
conduct to attack the victim’s credibility if the trial judge concludes following
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the hearing that the prejudicial and other effects enumerated in . . . section
352 are substantially outweighed by the probative value of the impeaching
evidence.’ ” (People v. Mestas (2013) 217 Cal.App.4th 1509, 1514 (Mestas).)
Defendant never filed a motion under section 782; instead, he moved
for a continuance. However, the trial court apparently considered his motion
sufficient to constitute an offer of proof under section 782, and although the
formal procedure set forth in section 782 was not followed, the trial court and
counsel essentially followed the sequence set forth in the statute. The court
appeared to consider defendant’s motion (and his subsequent motions) as an
offer of proof. The motions were argued outside the presence of the jury. And
the court balanced the purpose of, and interests protected by, the rape shield
law and the defendant’s claim that the DNA lab report went to the victim’s
credibility. The court did not make an express finding under section 352.
However, on appeal, we presume that the trial court made all findings
required to support its rulings. (See Denham v. Superior Court (1970)
2 Cal.3d 557, 564 [“A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively
shown.” Italics omitted.]; People v. Sanghera (2006) 139 Cal.App.4th 1567,
1573 [“Perhaps the most fundamental rule of appellate law is that the
judgment challenged on appeal is presumed correct, and it is the appellant’s
burden to affirmatively demonstrate error.”].)
The trial court did not abuse its discretion in concluding defendant had
not made a sufficient showing that the DNA lab report was relevant to the
victim’s “credibility.” As the court explained, at bottom, defendant wanted to
use the lab report as proof the victim had a prior sexual encounter so he could
argue that, given that prior sexual encounter, the jury should disbelieve her
12
testimony that she was falling-down drunk, and defendant raped her. The
court correctly concluded this was improper under the rape shield law and
therefore did not abuse its discretion in disallowing use of the DNA lab
report. It also, in turn, did not abuse its discretion in denying defendant’s
motion to continue to further examine the lab report. (See Muniga, supra,
44 Cal.4th at p. 1118 [denial of motion to continue is reviewed for abuse of
discretion].)
Second and Third Motions to Continue and First Motion for Mistrial7
Additional Background
On direct examination, the victim testified she had not engaged in any
“promiscuous behavior” outside of her marriage, it was not her “common
practice to engage in sexual intercourse” with her husband while she was
menstruating, and she did not want to have sex with defendant.
Following this testimony, defendant made a second motion to continue
and also moved for a mistrial. Counsel asserted, “We know that there is a
DNA test that has at least three people’s DNA in it. That is what the test
results were and this is exactly what I was anticipating. And given that the
District Attorney opened the door, asked those questions, I am now in a
position where I can’t properly respond because I got that document after we
started trial. And I believe good cause exists. If it didn’t exist before good
cause now exists. There were two specific questions. The answer would go
directly to her credibility given the test results, which is not protected by the
rape shield law.”
7 “The denial of a mistrial motion is reviewed for abuse of discretion.”
(People v. Ng (2022) 13 Cal.5th 448, 561.) A motion for mistrial should be
granted only when “ ‘a party’s chances of receiving a fair trial have been
irreparably damaged.’ ” (People v. Schultz (2020) 10 Cal.5th 623, 673.)
13
The prosecutor opposed both motions, asserting the “DNA report talks
about epithelial cells, not necessarily multiple sperm cells or anything of that
nature. It talks about a low level cell deposit that was made, that was found
not even inside of the victim.” There was no indication that there was
“semen from another person found inside her,” and since the victim lived with
“at least four other people” the epithelial or skin cells could have come from
any of them.
The court denied both motions—while the “question about her
promiscuousness” brought defense counsel “closer,” it was not “enough to
overcome the statute.”8
On redirect, the victim similarly testified she did not have sex “outside
of marriage.” Defendant made a third motion to continue. The court denied
the motion on the same grounds as it had the previous motions.
Discussion
“While strictly precluding admission of the victim’s past sexual conduct
for purposes of proving consent, Evidence Code section 1103, subdivision
(c)(4), allows the admission of evidence of prior sexual history relevant to the
credibility of the victim. Because the victim’s credibility is almost always at
issue in sexual assault cases, Evidence Code section 782 specifies a procedure
requiring an in camera review of the proffered evidence to diminish the
potential abuse of section 1103, subdivision (c)(4). The defense may offer
evidence of the victim’s sexual conduct to attack the victim’s credibility if the
trial judge concludes following the hearing that the prejudicial and other
8 As defendant repeatedly states in his briefing, the court appeared to
assume for purposes of argument that defendant was correctly interpreting
the lab report, i.e., that it indicated the victim had had sex with several
sexual partners.
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effects enumerated in Evidence Code section 352 are substantially
outweighed by the probative value of the impeaching evidence.” (People v.
Chandler (1997) 56 Cal.App.4th 703, 707–708, fn. omitted (Chandler).) “By
narrowly exercising the discretion conferred upon the trial court in this
screening process, California courts have not allowed the credibility exception
in the rape shield statutes to result in an undermining of the legislative
intent to limit public exposure of the victim’s prior sexual history.
[Citations.] Thus, the credibility exception has been utilized sparingly, most
often in cases where the victim’s prior sexual history is one of prostitution.”
(Id. at p. 708.)
Defendant maintains credibility was a “central issue” in the case and
the lab report was pivotal evidence in this regard. He asserts the report
established “there had to be at least three males that had sexual contact with
the [victim]”—contrary to the victim’s testimony that she had never had sex
“outside of marriage” and never had sex, even with her husband, while she
was on her period. Defendant therefore concludes the lab report “tend[ed] to
directly corroborate [his] version of events that the [victim] was out looking
for casual sex that night,” contrary to her testimony she had gone out for
drinks and gotten drunk, and then wanted to go home.
To bolster his claim that this “case was, at its core, a credibility
contest,” he points to several statements by the prosecutor during closing
arguments.9 However, these selected and out-of-context statements do not
9 These are: (1) “And as to the veracity of defendant saying she was
horny and she came onto me I will ask you to use your common sense and
look at all the evidence in the totality”; (2) “The only way the defense theory
makes sense is if you believe that the confidential victim in this case
somehow became amorous, became horny, wanted to have sex with the
defendant once she was in his car”; (3) “You have to believe that she wanted
nothing more from him than just a ride home in her state. You have to
15
show that the victim’s credibility was the “central issue” in the case. The
prosecutor’s closing argument consumes almost 50 pages of the reporter’s
transcript, and she repeatedly emphasized that the principal issues were
whether the victim’s condition at the time of time of crimes precluded her
from giving consent and whether, given her condition, defendant could
reasonably have believed she could give consent.10
Defendant also asserts that in order for the jurors to believe the victim
was not “ ‘able to understand and weigh the physical nature of the act, its
moral character, and probable consequences,’ ” they “had to believe [the
victim’s] entire account.” However, “if [the victim] had a sexual encounter
earlier in the evening, her entire account of the evening would have been
impeached and the jury could have reasonably concluded that she did
remember what happened. From that, a reasonable juror could conclude that
if she was less than truthful about what she had been doing prior to meeting
believe that at the point where he was having sex with her, given everything
else you know about her state, and given what he himself had said about how
she presented, that she couldn’t exercise reasonable judgment”; and (4) “Do
you believe him when he says that that is what she wanted? You can’t
believe him. It is ridiculous, it is ludicrous . . . [¶] . . . [¶] . . . all of a sudden
she got in his car and decided to have sex with him not once but twice? You
have to judge the credibility of the evidence that has been presented to you.”
10 The People had to prove “defendant knew or reasonably should have
known that the effect of the intoxicating substance prevented the woman
from resisting.” (Pen. Code, §§ 261, subd. (a)(3), 289, subd. (e); CALCRIM
No. 1002.) A defendant “is not guilty of [these] crimes if he actually and
reasonably believed that the woman was capable of consenting to sexual
intercourse, even if that belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually and
reasonably believe that the woman was capable of consenting.” (CALCRIM
No. 1002.)
16
with appellant, she could also be less than truthful about whether she was
capable of providing consent.”
There is no basis for defendant’s sweeping assertion that to find the
victim was incapable of giving consent, the jury was required to believe her
“entire account” of the evening. To the contrary, all the jury had to find was
that she was so intoxicated by the time she climbed into defendant’s car that
she could not have consented to having sex with defendant, and the jury
could have so found on the basis of the testimony of all the other witnesses,
the blood alcohol tests, and the body cam tapes.
Defendant additionally asserts that “evidence of a prior sexual
encounter with another person would be evidence that there were other
potential witnesses that the prosecution was not presenting,” which
defendant could potentially “use to show that there are holes in the
prosecution theory of the case.” Not only is this sheer speculation, but
defendant also fails to explain what “holes” in the “prosecution theory”
(namely, that the victim was too drunk to have consented and defendant
could not have reasonably believed she could consent) could be illuminated by
such a hypothetical witness.
In short, evidence the victim lied about not having a prior sexual
encounter was not relevant to what, in fact, were the most important issues
in the case—whether the victim was so drunk she could not have consented
to the sex with defendant, and whether given her condition, defendant could
not have reasonably believed she could give consent.
Defendant also contrasts the instant case with Fontana, supra,
49 Cal.4th 351. In Fontana, the defendant was convicted of forcible digital
penetration, forcible oral copulation, assault with intent to commit rape,
digital penetration, and oral copulation, all by use of a deadly weapon. (Id. at
17
p. 361.) At trial, he admitted he had lashed out violently at the victim but
denied any sexual contact with her, claiming a “lifelong fear of having his
penis bitten off during oral sex” and his “disgust[]” when he saw what
appeared to be semen between the victim’s legs. (Id. at pp. 355, 359, 368.)
The defendant sought to introduce evidence of the victim’s sexual encounter
with her boyfriend earlier that day, asserting it would corroborate his
testimony that he saw semen between the victim’s legs. (Id. at pp. 354, 362.)
The trial court denied the motion without a hearing, stating the alleged
encounter “ ‘was earlier in the day. As such, it’s not specifically corroborative
of the defendant’s claim of visible semen in the afternoon. . . . Furthermore,
it’s offered to apparently corroborate the defendant’s utterly fantastic and
inherently unbelievable and incredible claim” that the victim came on to him
in an effort to substitute sex for payment for an item which the defendant
rejected out of disgust. (Fontana, supra, 49 Cal.4th at pp. 368–369.) The
Court of Appeal reversed, concluding the trial court had abused its discretion
in “rejecting defendant’s version of events as incredible and unworthy of
belief.” The Supreme Court reversed the appellate court. (Id. at p. 369.)
The high court explained, the “probative value of the corroborating
evidence was slight at best. Even if a fact finder were to fully credit
defendant’s testimony that he saw semen ‘in her privates,’ that fact would not
have shed much light one way or the other as to whose version of the events,
defendant’s or [victims], was the true one. Under either version of what
occurred, [the victim] was naked, thus affording defendant the opportunity to
see ‘her privates.’ ” (Fontana, supra, 49 Cal.4th at p. 369.) The trial court
rejected “the offer not because it found defendant to be a witness who was not
credible, but because the link defendant was attempting to draw between
[the victim’s] conduct and the visible condition of ‘her privates’ several hours
18
later was unbelievable.” (Ibid.) The “probative value of evidence that is
inherently so improbable as to be unworthy of belief—or evidence that is very
close to that level—is obviously quite low.” (Id. at pp. 369–370.)
Moreover, the potential prejudice of the evidence was substantial.
(Fontana, supra, 49 Cal.4th at p. 370.) “For some jurors, the fact that the
victim has engaged in sexual conduct outside of marriage automatically
suggests a receptivity to the activity or is proof that the victim got what she
deserved—neither of which is a rational or permissible inference. [Citation.]
In addition, the Legislature has determined that victims of sexual assault
require greater protections beyond those afforded other witnesses against
surprise, harassment, and unnecessary invasion of privacy [citation], and
defendant’s inquiry would have violated those interests, particularly the state
interest ‘to encourage reporting by limiting embarrassing trial inquiry into
past sexual conduct.’ ” (Id. at p. 370.)
Defendant asserts that unlike in Fontana, “there is nothing inherently
unbelievable or incredible in [his] contention that the [victim] was legally
able to consent to having sex and that she in fact initiated sex with [him]
both times.” While that might theoretically be true, the difficulty is that the
evidence defendant sought to admit was not probative as to either the
victim’s capacity to consent to sexual contact or defendant’s reasonable belief
as to her capacity to consent. Again, even if she was fawning all over him,
that was not the issue—the issue was whether she was in any condition to
consent to sex and whether defendant could reasonably believe that she could
consent.
At best, as in Fontana, the evidence had minimal probative value on a
tangential issue. (See People v. Casas (1986) 181 Cal.App.3d 889, 897 [where
evidence of other sexual conduct was “only slightly relevant to attack
19
[victim’s] credibility,” court did not abuse discretion in excluding it].) In
addition, as Fontana explains, the evidence had the potential for being highly
prejudicial.
Accordingly, the trial court did not abuse its discretion in continuing to
exclude the DNA lab report and in denying defendant’s motions for a
continuance and for mistrial.
Even if the trial court erred in continuing to exclude the lab report, it is
not reasonably probable the verdict would have been different had the error
not occurred. As we have discussed its relevance was tangential at best.
Moreover, every witness who testified—the victim, the officers at the scene,
and the first Uber driver—all stated the victim was highly inebriated: The
victim stated she was “really, really, drunk.” The officers described the
victim as “intoxicated,” smelling of alcohol, and having “slurred” speech,
being unable “to take care of herself” and incapable of “maintain[ing] herself
upright.” The first Uber driver said she “was slumped over,” and in his mind,
“I was like this woman is drunk.” Defendant, himself, said the victim was
“really drunk.” All of this was corroborated by the blood-alcohol test results
showing the victim had a blood-alcohol level of .124 percent and .121 percent
and the parties’ stipulation that, based on the victim’s weight, her blood-
alcohol level would have been .20 percent at the time defendant encountered
the victim on the street, and .18 percent at the time the police arrived on the
scene. Given this record, we cannot conclude any error in excluding the lab
report affected the verdict.11 (See Chandler, supra, 56 Cal.App.4th at p. 711
11 Nor was there any violation of defendant’s right to conduct cross-
examination or to a fair trial. (See Mestas, supra, 217 Cal.App.4th at p. 1517
[“There is no fair trial problem with exclusion of evidence under . . . section
1103.”]; Blackburn, supra, 56 Cal.App.3d at p. 690 [exclusion of evidence
under sections 1103 and 782 does not abridge a defendant’s constitutional
20
[although trial court erred in excluding testimony of victim’s prior sexual
conduct on the sole ground the testimony was “unbelievable,” the error was
harmless; considering the “entire record,” it was “not reasonably probable the
error affected the verdict”]; see also Manai v. Valenzuela (9th Cir. 2016)
660 Fed.Appx. 502, 504 [even if California trial court erred in excluding
evidence under rape shield law, it was harmless as extensive evidence
corroborated the victims’ testimony].)
The Second Mistrial Motion
Additional Background
During closing, the prosecutor spoke of several “red herrings”
defendant would possibly focus on, including, among other things, the
victim’s “bad marriage,” a domestic violence situation with the victim’s
husband, and DNA evidence. As to DNA evidence, the prosecutor argued:
“The DNA. Where is the DNA test? How come we don’t have a DNA
test? He admitted he had sex with her twice. What is a DNA test
going to prove? Remember my job is to prove this case to you beyond a
reasonable doubt. Not beyond any doubt or all possible doubt. It is
beyond a reasonable doubt. This case isn’t about who did it. We know
who did it.”
The prosecutor then briefly discussed more “red herrings” before
moving on with the rest of with the rest of his argument.
Before defense counsel commenced closing argument, she again moved
for a mistrial, asserting “I am in a position [where] I can’t answer. . . . There
is DNA evidence and I can’t bring it in. And I think that prejudices the jury,
rights]; see also People v. Eubanks (2011) 53 Cal.4th 110, 143
[“ ‘ “[A]pplication of the ordinary rules of evidence generally does not
impermissibly infringe on a . . . defendant’s constitutional rights.” ’ ”]; People
v. Fudge (1994) 7 Cal.4th 1075, 1103 [no constitutional violation where a trial
court does not preclude a defendant from presenting a defense, but only
rejects some evidence concerning the defense].)
21
it misleads the jury on that issue and it creates an unfairness where she’s
raising issues that I can’t respond to.”
The prosecutor responded, “Your Honor, it was clear from my closing
that I was talking about this portion and the red herrings section of my
closing argument where I was saying the defense might bring up the
defendant’s DNA. Why wasn’t there results of the SAR examine published to
you? In terms of—the identity of him is not at issue here, and I still think
that is the case as I think it has been made clear on the record the fact that a
SAR exam was done well in advance. Neither party has bothered to check to
see if that unknown male, one, corresponded with the defendant because the
defendant admitted. And so I ask the court to deny the motion for mistrial at
this point.” (Italics added.)
The court denied “the motion . . . at this time,” without further
explanation.12
Discussion
Defendant contends his chances of defending the charges were
“irreparably damaged by his [trial] counsel’s inability to discuss the results of
the DNA test, especially given [the prosecution’s] explicit reference to the
lack of any DNA evidence in the case in front of the jury.” This statement, he
contends, “led the jury to believe that no such evidence existed and placed
[counsel] in the impossible position of having to defend [defendant] without
the evidence that would have been most crucial in undermining the most
important witnesses’ credibility, the victim.”
To begin with, “ ‘[t]o preserve a claim of prosecutorial misconduct for
appeal, “ ‘ “a criminal defendant must make a timely and specific objection
12 Defendant subsequently made a motion for new trial, which the
court also denied.
22
and ask the trial court to admonish the jury to disregard the impropriety.” ’
[Citation.] The lack of a timely objection and request for admonition will be
excused only if either would have been futile or if an admonition would not
have cured the harm.” [Citation.]’ ” (People v. Lima (2022) 80 Cal.App.5th
468, 478 (Lima); id. at p. 479 [defendant forfeited claims that trial court erred
in denying motion for mistrial based on alleged prosecutorial misconduct
during argument to the extent he failed to object and request that jury be
admonished].) Defendant did not object to the prosecutor’s argument he is
now claiming warranted a mistrial and has therefore forfeited the issue on
appeal.
But even assuming defendant preserved the issue and further
assuming the prosecutor went beyond the bounds of proper advocacy, any
misconduct was harmless. The challenged argument was a fraction of the
prosecutor’s closing argument. Indeed, the bulk of the prosecutor’s argument
focused on the principal issues—whether the victim’s condition at the time of
time of the crimes precluded her from giving consent, and whether, given her
condition, defendant could have reasonably believed she could consent. The
jury was also properly instructed that the attorney’s arguments were not
evidence. “We presume the jury understood and followed the court’s
instructions.” (Lima, supra, 80 Cal.App.5th at p. 481.) Finally, as we have
discussed, the evidence supporting the verdicts was overwhelming. (Id. at
pp. 480–481 [prosecutor’s misconduct during closing argument “was harmless
in light of the overwhelming evidence of guilt adduced at trial”].)
DISPOSITION
The judgment is affirmed.
23
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Devine, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A162384, People v. Flores
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