PEOPLE v. CASAS

OPINION

AGLIANO, P.J. —

Defendant Ovidio Casas appeals from a judgment of conviction following a jury verdict finding him guilty of a violation of Penal Code section 261, subdivision (2) (forcible rape). Defendant was sentenced to three years in state prison. On appeal, he contends the judgment should be reversed on either of two grounds: (1) his due process rights were violated by a police officer's destruction of notes taken during investigation of the crime and (2) the trial court erroneously precluded defendant from introducing evidence of the victim's prior statement concerning sexual conduct.

Celia D. and Maria S., who had known each other for about six months, were residing illegally in the United States. On May 27, 1983, they spent the evening dancing at El Cachinilla Bar. About 1 a.m., the two women went to Ms. S.'s room in a residential hotel. A number of illegal aliens lived in the hotel located above the bar. Ms. D. intended to wait in the room until Ms. S.'s daughter came to take her home. While she waited, she took off her shoes and jacket and put them with her purse on Ms. S.'s bed. The door to Ms. S.'s room was open.

About five minutes after the women arrived, defendant appeared at Ms. S.'s door. He offered the women some tacos. Ms. D. accepted a taco and ate it in Ms. S.'s room. Defendant then invited Ms. D. to his room across the hall. After she declined, he pulled her by the hand to his room. It happened so quickly, she did not have time to think. After they entered his room, he turned off the light and told her she was going to sleep with him. Ms. D. hit defendant and demanded that he let her go. A struggle ensued, and defendant hit her on her head, arms, and body. She repeatedly called for Ms. S. and scratched defendant on his face. Defendant threatened to kill her if she told her children or Ms. S. He also told her he would use a knife or gun on her if she did not cooperate. When he began to look for something in the room, she became nervous because she believed he was searching for a knife or a gun. Defendant then put her on the bed and had sexual intercourse with her.

After the incident, defendant allowed Ms. D. to use the bathroom down the hall while he waited outside. When she did not come out of the bathroom, defendant returned to his room. She was then able to leave the building. She walked for about three blocks before hailing a patrol car which took her to the police station to report the incident.

Officer Charles Ellevan encountered Ms. D. in the street at approximately 2:50 a.m. She was barefoot, her hair was messy and she had been crying. He observed bruises on her arms. Since Ms. D. spoke only Spanish, Ellevan brought her to the station for a Spanish-speaking officer to interview her.

Officer Steve Becerra spoke briefly with Ms. D. at the station. He and Officer Ellevan then went with Ms. D. to defendant's room. Since there was no response when they knocked on defendant's door, they took Ms. D. to the hospital.

About 5 a.m., Officers Becerra and Ellevan returned to defendant's room. When defendant answered the door, the officers informed him they were there to investigate a rape. Defendant waived his rights and agreed to talk with them. Officer Becerra noticed a scratch near his eye. Officer Becerra did not question him extensively in his room. He asked defendant what he was doing about 1:30 a.m. and whether there had been a woman in his room. Defendant replied he had been in a bar until about 12:30, at which time he went to a taco stand and bought three tacos. After eating the tacos, he went to his room and slept until the police officers awakened him. Later, defendant stated there may have been a woman in his room.

Officer John Lara interviewed defendant at the station. He found defendant's answers inconsistent and evasive. Initially, defendant denied that a woman had been in his room. Later he stated there might have been two women there. Defendant requested to see a picture of the victim. When a picture was shown to him, he said he might know her. He indicated that she had been hurt by someone else and was blaming him. He also said it was possible he had sex with the victim, but he did not remember.

Dr. Benjamin Hafkenschiel, the physician who examined Ms. D. on May 28, found a number of bruises and scratches on her upper arms and on her thighs. She also had some bruises over the scapula. The bruises had been produced by a moderate amount of force. The multiple injuries and trauma were consistent with a sexual assault. Dr. Hafkenschiel remembered this particular case, because the majority of cases in his experience do not involve multiple injuries and a great deal of trauma. However, he did not express any opinion as to whether a rape had occurred.

Defendant testified he met Ms. D. two months before the incident when she, Ms. S., and another friend went to a restaurant. After dinner, he drove Ms. D. to a location near her house. He also saw her twice at the hotel where he lived when she was looking for Ms. S.

On the evening in question, defendant drank three to four beers in various bars. On his way home he purchased some tacos. When he returned to the hotel and saw Ms. S.'s door open, he entered and offered the tacos to the women. Two men were also in the room when he entered. Ms. S. asked him to get them to leave.

According to defendant, Ms. D. went voluntarily to his room. There she offered him sex for $20 and he paid her the amount. During intercourse, Ms. D. complained that her body hurt. Defendant offered to stop, but she told him to go ahead.

Later, Ms. D. threatened defendant if he wouldn't pay more than the $20 he had already paid. She then left to use the bathroom, after stating she would return to spend the night with him. When she did not return after 15 minutes, defendant decided to go out for coffee.

Defendant claimed he made inconsistent statements to the police because he was afraid of a scandal and that his wife would leave him if she discovered his infidelity. He and his wife were about to reconcile after a brief separation. However, on cross-examination defendant admitted he and his wife had been separated for two years and were divorced four and one-half months after the incident with Ms. D.

Maria S., who had been defendant's friend for many years, testified she went to the bar with Ms. D. She stated Ms. D. had planned to spend the night in her room. Ms. S. returned to the room first and was preparing for bed when Ms. D. arrived with Santos M. and another man. When defendant arrived, she asked him to get the two men out, which he did. Ms. D. then went to defendant's room. When she left, Ms. S. did not notice any bruises on her. Ms. S. stated she was not a heavy sleeper and would have heard any screaming. She did not hear screams on that particular night.

Santos M., who had been defendant's friend for seven or eight years, testified he danced with Ms. D. at El Cachinilla Bar on May 27. He left the bar with Ms. D. and a friend about one-half hour after Ms. S. did. He noticed no bruises on Ms. D. He went up to Ms. S.'s room behind Ms. D. Defendant entered the room shortly thereafter.

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(1a) Defendant contends the trial court abused its discretion by denying defendant's motion to introduce in evidence the victim's sexual solicitation of Santos M. shortly before the alleged rape.

Pursuant to Evidence Code section 782, defense counsel submitted a written motion stating that if called to testify by the defense Santos M. would testify he was in Ms. S.'s room on the evening in question at the invitation of Ms. D. and Ms. D. offered him sex for money. Outside the presence of the jury, defense counsel supplemented his declaration by stating defendant would testify he paid to engage in sexual intercourse with Ms. D. The prosecution took the position that evidence of any solicitation of an act of prostitution by the victim fell within the scope of Evidence Code section 1103, subdivision (b)(1) which provides such evidence is inadmissible to prove consent by the complaining witness and further, that the evidence was irrelevant and also prejudicial under Evidence Code section 352

The court reserved ruling on both the procedural and substantive aspects of the motion. After defendant testified, a section 782 hearing was held. Ms. D. testified she never offered to have sex with Santos M. for money; she had never been arrested for, charged with or convicted of prostitution; and no one followed her upstairs to Ms. S.'s room. The trial court ruled as follows: "First of all, I would rule that pursuant to the Rios [ sic] case I would resolve the conflicting interest of the complaining witness and the defendant, if any, in favor of the complaining witness in this case. I would rule that the evidence is not relevant. I would further rule that any slight relevancy on the proffered evidence would be totally and grossly outweighed by any prejudicial effect to the complaining witness in this case. [¶] It — testimony really doesn't go to her credibility. To the extent that it would be admissible under the code sections cited the Court in Rios [ sic] noticed the bruises on the victim. And that that was a factor in the Rios [ sic] case, as well. For those reasons the Court will deny the motion." In addition, the court ruled Mr. M. could not testify he was invited upstairs, but only that he went up behind Ms. D.

Defendant maintains solicitation of an act of prostitution is not "sexual conduct" within the meaning of Evidence Code sections 782 and 1103. He argues this court should construe "sexual conduct" as meaning only acts of sexual intercourse. We reject such a narrow construction of the statutory language. Here the proffered evidence consisted of Ms. D.'s statement that she offered to have sexual intercourse with Mr. M. for money. Such a statement reflects the speaker's willingness to engage in sexual intercourse. Thus, the evidence falls within the ambit of sections 782 and 1103.

The Legislature added section 782 and amended section 1103 to prevent a rape victim from being questioned extensively about any prior sexual history without a showing such questioning was relevant. ( California Rape Evidence Reform: An Analysis of Senate Bill 1678 (1975) 26 Hastings L.J. 1551, 1555-1556.) The Assembly Criminal Justice Committee reasoned the fear of personal questions deterred victims from filing complaints and resulted in a low percentage of reported rapes. ( Id., at p. 1554.)

(2) Evidence Code section 782 vests broad discretion in the trial court to weigh the defendant's proffered evidence prior to its submission to the jury and to resolve the conflicting interests of the victim and the defendant. ( People v. Rioz (1984) 161 Cal.App.3d 905, 916 [ 207 Cal.Rptr. 903].) In addition, the statute reaffirms the role of Evidence Code section 352 in authorizing the trial court to exclude relevant evidence which is more prejudicial than probative. ( Ibid.)

After discussing the relationship between sections 782 and 1103, subdivision (b), the Rioz court provided an example illustrating the wisdom of this statutory scheme. "A defendant charged with forcible rape makes the requisite written motion, supported by a sworn affidavit, offering to prove that the complaining witness, a convicted prostitute, agreed to have sex with the defendant for money and charged him with rape to get even with him when he refused to pay her. However, not only has the complaining witness denied that the sexual activity with the defendant was consentual [ sic], but other evidence establishes without contradiction that the complaining witness was beaten in connection with the event. Given the potentially prejudicial impact of a prostitution conviction on the victim's testimony that she did not consent, the trial court, in the exercise of its discretion, may determine that the injuries suffered by the victim are wholly inconsistent with the defendant's offer of proof and either reject the sufficiency of the offer of proof in the first instance or exclude evidence of the prostitution conviction, after a hearing, pursuant to Evidence Code section 352" ( Id., at pp. 916-917.) The court also cautioned that "[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct, i.e., Evidence Code section 1103, subdivision (b)(1), does not impermissibly encroach upon the rule itself and become a `back door' for admitting otherwise inadmissible evidence." ( Id., at pp. 918-919.)

People v. Varona (1983) 143 Cal.App.3d 566 [ 192 Cal.Rptr. 44], upon which defendant relies is not applicable. In that case, the two defendants were convicted of rape and false imprisonment and one of them was convicted of forcible oral copulation. The defendants had offered evidence the alleged victim had pled guilty to prostitution. The reviewing court found it was an abuse of discretion to exclude the evidence under section 782 However, the court acknowledged the particular facts were compelling. "We do not, here, hold that in every rape case where the prosecutrix is a prostitute, evidence of that fact must be admitted to show consent. The official records offered here show, not only that the woman was a prostitute, but: (1) that, in pursuit of her profession, she walked the night streets, in this very area, to solicit customers; and (2) that, in the practice of that profession, she not only engaged in normal intercourse, but that she specialized in oral copulation. The first fact is here of special significance in that it casts light on the woman's story that she was walking to the bus stop because the `friend' who had driven her from the friend's home had callously refused to drive two blocks further, to the bus stop because the friend had, at 11:30 p.m., an urgent appointment at home. The second fact is also very significant in that it tends to support the defense claim that the oral copulation, on which count IV was based, was voluntarily engaged in by the woman." ( Id., at pp. 569-570.)

(1b) We turn now to the facts before us. Prior to ruling on the motion brought under section 782, the trial court had heard the prosecution's case and most of defendant's testimony. Ms. D. denied that the sexual activity with defendant was consensual. Moreover, she had received multiple injuries consistent with a sexual assault to corroborate her version of the events of that night. Defendant testified he had met Ms. D. two months before, had gone to a restaurant with her and two friends, and had given her a ride after dinner. He subsequently saw her twice at his hotel when she was visiting Ms. S. On the evening in question it was he who induced Ms. D. to enter his room to eat a taco, at which point she offered him sex for $20. After they had sexual intercourse, she threatened him, but later decided to spend the night. There was no physical altercation.

The issues before the trial court were whether Santos M.'s testimony that Ms. D. had offered him sex for money shortly before defendant appeared in Ms. S.'s room was relevant to attack Ms. D.'s credibility and whether it was more prejudicial than probative. Both Varona and Rioz suggest the trial court may weigh the proffered evidence in light of all the evidence which has been received at the trial. Here, unlike Varona, the only evidence the victim was a prostitute consisted of defendant's and his friend's testimony. Further, defendant's account of his encounters with Ms. D. verges on the improbable. More importantly, however, Ms. D. had been beaten shortly after she left Ms. S.'s room and before she reported the incident to the police. In our view, the trial court's determination her injuries were inconsistent with the proffered evidence was entirely proper. Thus, defendant's offer of proof was only slightly relevant to attack Ms. D.'s credibility. Accordingly, we find no abuse of discretion by the trial court in excluding this evidence.

The judgment is affirmed.

Chang, J.,^fn_ concurred.