P. v. Hayes

1
Filed 7/1/02
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CLARENCE JOSEPH HAYES,
Defendant and Appellant.
C032730
(Super. Ct. No.
98F00835)
Throughout his trial for various sex crimes, Clarence Hayes
believed he was defending against charges that would amount to
his second strike for purposes of sentencing under the “three
strikes” law. (Pen. Code, §§ 667, 1170.12.1) The jury convicted
him of first degree burglary (§ 459), oral copulation (§ 288a,
subd. (c)), robbery (§ 211), forcible digital penetration
(§ 289, subd. (a)), two counts of rape (§ 261, subd. (a)(2)),
and various enhancements (§ 667.61, subds. (d)(4), (e)(6)).
The trial court thereafter allowed the prosecution to add to
1 All further statutory references are to the Penal Code unless
otherwise indicated.

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the information an allegation that defendant had been convicted
of robbery in Nevada in 1982, a conviction amounting to his
third strike. The court sentenced defendant to state prison
for an aggregate indeterminate term of 175 years to life, to be
served consecutively to a 10 year determinate term.2 The court
also imposed the maximum $10,000 restitution fine. On appeal,
defendant urges us to reverse the third strike conviction on
any number of grounds. He asserts instructional and evidentiary
error as well.
The Attorney General concedes the prosecution did not
introduce sufficient evidence to support the court’s finding
that defendant had suffered a third strike. We accept the
concession. The case is remanded for retrial to determine
whether there is sufficient evidence that the out-of-state
conviction qualifies as a strike under California law. Both
the United States and California Supreme Courts have recently
held there is no double jeopardy bar to a second prosecution
(Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615]
(Monge II); People v. Monge (1997) 16 Cal.4th 826 (Monge I)),
and on this record, principles of equitable estoppel do not
apply. In recalculating the sentence following the retrial,
the Attorney General also concedes the trial court must stay
imposition of sentence on the burglary count pursuant to
section 654. In all other respects, the judgment is affirmed.
2 We need not examine how the sentence was calculated, or
whether it is correct, because the case must be remanded and
defendant will be resentenced.

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FACTS
The victim lived with her boyfriend and their two toddlers
in a Sacramento apartment. During a quarrel on the afternoon
of January 23, 1998, the victim threw a Sunny Delight juice
drink bottle at her boyfriend. He took the children to his
mother’s house. They left the Sunny Delight bottle lying on
its side in the hallway inside the apartment.
The victim, drinking a 40-ounce beer, went outside her
apartment to visit with friends. Defendant, known in the
neighborhood as “Pops,” approached and attempted to hug her.
A few days earlier she had rejected similar unwelcome advances
from him. He persisted and, according to a neighbor, the victim
became visibly uncomfortable and attempted to distance herself
from him. The neighbor took a walk with the victim and advised
her to lock her doors. She locked the dead bolt on her front
door.
Some time later, defendant came to the victim’s door,
knocking and demanding that she open it. She saw him through
a peephole, ignored him, and went into her bedroom. She later
heard rocks hitting her bedroom window. The victim went to bed
and eventually fell asleep.
The victim was awakened when defendant, shoving her face
into the pillow, shouted, “‘Shut up, bitch.’” She recognized
his voice although she did not see his face. As she struggled
and screamed, he ripped off her sweatpants and underwear.
Unable to physically resist the rape, the victim asked the
defendant to use a condom, which he apparently did. He

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attempted to put his penis in her vagina; angry and frustrated
because he was unable to get an erection, he socked her in the
head.
Defendant grabbed the victim by her hair, forced her to
turn over, and covered her face with a pair of sweatpants. He
bound her feet with a shirt, tied her hands with a cord, and
digitally penetrated her vagina. Trying again and failing to
penetrate her with his penis, he forced her to orally copulate
him. She gagged. She heard him moan and breathe hard.
Defendant took $70, some cigarettes, and a VCR from the victim.
She saw the back of his head and his flannel jacket as he left
the apartment.
Investigating sheriff’s deputies found a shopping cart
underneath the victim’s balcony. Shoe prints left on the cart
were consistent with shoes belonging to defendant. A fire
extinguisher box on the side of the building provided a ledge
for someone to reach the balcony, and a rain gutter provided
a handhold. There was also a broken branch in the tree outside
the apartment. The Sunny Delight bottle was standing open and
upright in the hallway. A latent fingerprint from the bottle
matched defendant’s right middle finger.
Defendant gave a false name to the arresting officers.
The victim identified him in a photographic lineup and at trial.
She had no doubt defendant was her assailant. Semen on the
vaginal swab taken from the victim at the hospital after the
incident was consistent with defendant’s blood type. Defendant

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has a DNA pattern consistent with a semen stain found on the
fitted sheet removed from the victim’s bed.
Defendant did not testify. The defense pointed to
inconsistencies in the victim’s testimony and the
inconclusiveness of the scientific evidence, including the
possibility that samples were contaminated. In particular,
the defense emphasized the victim never saw her assailant’s face
during the assault and DNA testing excluded him as the source of
semen found in the vaginal swab. The jury convicted defendant
on all counts.
We agree with defendant that the sentencing issues are
the most important issues raised in this appeal, and for this
reason, we discuss sentencing before the evidentiary and
instructional issues. The Attorney General contends defendant
waived many of the issues asserted on appeal by failing to
object in the trial court. We choose to address each of the
issues on the merits rather than to confront the inevitable
claim that defense counsel was inadequate for failing to assert
the various objections.
DISCUSSION
I
Sentencing Issues
A. Remand for Retrial of the Prior Conviction Allegation
The prosecution introduced documentary evidence that
defendant pled guilty to robbery, a violation of “NRS 200.380.”
(Nev. Rev. Stat., ch. 200.) The Nevada robbery statute, unlike
California’s, requires only general intent and does not require

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the victim to be the owner or possessor of the stolen property.
(Litteral v. State (1981) 97 Nev. 503, 505-508 [634 P.2d 1226,
1227-1229], overruled on other grounds in Talancon v. State
(1986) 102 Nev. 294, 301 [721 P.2d 764, 768-769]; People v.
Morris (1988) 46 Cal.3d 1, 19, disapproved on other grounds in
In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6; People v.
Dillon (1983) 34 Cal.3d 441, 456-462.) To qualify as a strike,
however, a prior foreign conviction must include “all of the
elements of the particular felony as defined in subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7.”
(§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Hence, as the
Attorney General essentially concedes, documentary evidence
confirming the simple fact of conviction of NRS 200.380 is
insufficient to establish the Nevada offense as a serious felony
or strike. The record herein consists of nothing more.
The fact finder is permitted in determining the truth of an
allegation of a prior serious felony conviction “to go beyond
the least adjudicated elements of the offense and to consider,
if not precluded by the rules of evidence or other statutory
limitation, evidence found within the entire record of the
foreign conviction.” (People v. Myers (1993) 5 Cal.4th 1193,
1201.) Here, the evidence presented by the People failed to
disclose that the facts of the prior offense actually committed
would qualify as a strike. The question is whether the
prosecution should be accorded a second opportunity to supply
evidence it failed to muster in the first trial.

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In Monge II, supra, 524 U.S. 721, the United States Supreme
Court affirmed the California Supreme Court’s holding that the
double jeopardy clause of the federal Constitution does not bar
retrial of a sentencing allegation. (Id. at p. 734.)
Nevertheless, defendant asserts the California Supreme Court
left open other grounds upon which a challenge to a second
prosecution might be waged. “[W]e express no opinion about
whether section 1025 (or some other applicable provision) might
in some cases bar retrial of the prior conviction allegation as
a statutory matter irrespective of constitutional constraints.
Finally, we express no opinion about whether due process
protections preclude the prosecution from retrying the prior
conviction allegation.” (Monge I, supra, 16 Cal.4th at p. 845.)
Cases following Monge I and Monge II have routinely ordered a
second trial of a prior conviction when the evidence is found
to be insufficient to sustain a true finding. (People v.
Cortez (1999) 73 Cal.App.4th 276; People v. Henley (1999)
72 Cal.App.4th 555.)
Defendant, in a supplemental letter to this court, relies
on the more recent case of People v. Mitchell (2000)
81 Cal.App.4th 132 (Mitchell III). He argues Mitchell III
supports his position that a second prosecution of the prior
conviction allegation is barred by equitable principles. While
Mitchell III did indeed prohibit a remand and retrial based on
the application of res judicata and law of the case, the case

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does not stand for the broad propositions asserted by defendant.3
Nor is the case factually similar to the matter before us.
Richard Mitchell’s case had a very long life in the Court
of Appeal, Fourth Appellate District, as recounted by the
opinion in Mitchell III, supra, 81 Cal.App.4th at pages 136-137.
Following the initial trial, the court found the defendant had
previously suffered a prior serious felony conviction and
sentenced him to state prison for nine years. On appeal,
appointed counsel raised only the amount of the restitution
fine, and the judgment was affirmed. (People v. Mitchell
(July 26, 1995, D022353) [nonpub. opn.] (Mitchell I).) Shortly
thereafter, People v. Superior Court (Romero) (1996) 13 Cal.4th
497 was decided, and Mitchell filed a petition for a writ of
habeas corpus seeking resentencing without the strike prior.
The writ was granted, but because the trial court refused to
strike the prior and added an enhancement the court had missed
the first time he was sentenced, Mitchell was resentenced to a
prison term of 12 years.
Mitchell obtained new counsel, who filed another appeal
and a second petition for a writ of habeas corpus. (People v.
Mitchell (Jan. 7, 1999, D028246) [nonpub. opn.] (Mitchell II).)
In Mitchell II, the court granted the defendant’s petition
3 Mitchell III has been criticized and/or rejected in several
cases. (People v. Sotello (2002) 94 Cal.App.4th 1349, People v.
Franz (2001) 88 Cal.App.4th 1426, Cherry v. Superior Court
(2001) 86 Cal.App.4th 1296, People v. Scott (2000)
85 Cal.App.4th 905.)

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because his first lawyer was ineffective for failing to
challenge the sufficiency of the evidence to support the prior
conviction. The court, relying on Monge I, supra, 16 Cal.4th
826 and Monge II, supra, 524 U.S. 721, remanded the case for a
retrial of the prior conviction allegations on condition that
the new sentence not exceed nine years.
Mitchell, like defendant here, argued Monge I and Monge II
held only that double jeopardy did not bar a retrial but left
open the question whether equitable principles might create such
a bar. Mitchell, who had been through two trials, two appeals,
and two habeas corpus proceedings, contended he was entitled to
“not true” findings on the prior conviction allegations under
the law of the case. Thus, according to Mitchell, those
findings became res judicata as to the merits in any subsequent
litigation of the same controversy. (Mitchell III, supra,
81 Cal.App.4th at pp. 137-138.) The trial court, although
acknowledging Mitchell II raised an “‘interesting issue,’”
rejected the equitable arguments and resentenced him. (Id.
at p. 138.) The Court of Appeal in Mitchell III reversed.
(Id. at p. 157.)
The court explained: “[F]inality is a cornerstone of
both the res judicata and the law of the case doctrines.
Because the issue of legally insufficient evidence to support
the prior convictions allegations in Mitchell II was fully
presented and was considered essential to our decision
Mitchell’s first appellate counsel was ineffective, when the
People’s petition for review of such decision was denied, it

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became a final decision on such merits. Then, when the People
on remand did not show there was newly discovered evidence which
they, in due diligence, could not have presented at the first
trial on the truth of the priors, that decision and its
necessary resolution of the legal sufficiency of the evidence
for the prior allegations became the law of the case as between
these parties. [Citations.] [¶] . . . [¶] Under these
circumstances, we believe res judicata principles, independent
of their constitutional double jeopardy aspect and as a
fundamental principle of justice, also apply and preclude
retrial of the prior allegations in this case.” (Mitchell III,
supra, 81 Cal.App.4th at pp. 155-156.)
Unlike Mitchell, who garnered three appellate opinions
and three trials, this is defendant’s first appeal. Hence,
the doctrine of law of the case does not apply. Moreover,
Mitchell’s prosecutor did not introduce any new evidence on
remand on the truth of the priors. It was under “these
circumstances,” the court held, that res judicata applied
and precluded retrial of the prior allegations. (Mitchell III,
supra, 81 Cal.App.4th at p. 156.) Here, there has been no
previous remand. The prosecutor has not had the opportunity to
show newly discovered evidence on the truth of the priors. As
a consequence, neither of the equitable principles pivotal to
the court’s decision in Mitchell III are applicable to proof of
defendant’s prior allegation.
Nor are we persuaded by defendant’s more generic equitable
estoppel argument. He speaks in terms of a “windfall” to the

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prosecution and the waste of judicial resources. But the
doctrine of equitable estoppel is a rule of fundamental
fairness. Defendant ignores the essence of the doctrine --
that the party seeking an estoppel must have detrimentally
relied on the other party’s conduct. He has made no effort to
demonstrate the requisite detrimental reliance when he
presumably was well aware of his own criminal history. Nor does
he claim he had insufficient time or resources to mount a
credible defense. He has not stated a compelling case to invoke
the doctrine of equitable estoppel.
In light of our conclusion that remand is appropriate, we
need not address the constitutionality of defendant’s sentence.
He will be resentenced following his retrial.
B. Amendment of the Information After the Jury Was
Discharged
The trial court granted defendant’s motion to bifurcate
the issue of the truth of his 1988 rape conviction from the
trial for the current offenses. The jury convicted defendant
on all charges. After defendant waived his right to a jury
trial on the previous rape conviction, the jury was discharged.
A bench trial followed. The court took the matter under
submission and referred the case to the probation department for
a presentence investigation and report. The probation report
disclosed the 1982 Nevada conviction for robbery.
The prosecutor requested and was granted a continuance to
investigate the newly discovered conviction. The prosecutor
then moved the court to amend the information. In a lengthy

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conversation with the court, defendant expressed bewilderment
that he could be punished again for a crime for which he had
previously completed a prison term.
The trial court granted the prosecutor’s motion to amend
the information to allege the Nevada robbery conviction.
Defendant did not assert his statutory right to have the same
jury decide guilt and the truth of the priors allegations.
Defendant personally waived his right to a jury trial as to
the truth of the amended allegation. Following a second bench
trial, the court found the allegation to be true.
Section 969a states in pertinent part: “Whenever it shall
be discovered that a pending indictment or information does not
charge all prior felonies of which the defendant has been
convicted either in this State or elsewhere, said indictment or
information may be forthwith amended to charge such prior
conviction or convictions . . . .” The statutory language is
quite broad, expressly allowing amendments “[w]henever it shall
be discovered” that a defendant has suffered prior felonies.
There is nothing in the statutory language allowing amendments
only until the jury is discharged.
On appeal, defendant contends the trial court abused its
discretion by allowing the amendment after the jury was
discharged. In People v. Tindall (2000) 24 Cal.4th 767
(Tindall), the Supreme Court held that the trial court may not
permit the prosecution to amend an information to add alleged
prior convictions if the jury has been discharged unless the
defendant waives or forfeits the right to have the same jury try

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both guilt and priors. (Id. at p. 776.) Since the court did
allow a postdischarge amendment, the question thus posed is
whether the defendant waived or forfeited his statutory right to
have the same jury decide both guilt and priors. We conclude
that, on the record before us, defendant expressly waived his
right to a jury trial both before and after the amendment.
Unlike his counterpart in Tindall, therefore, he is not entitled
to a reversal.
In every expression of the holding in Tindall, the majority
qualified its ban on postdischarge amendments with a reference
to the exception of waiver or forfeiture. (Tindall, supra,
24 Cal.4th at pp. 776, 782.) The majority relied on the
rationale of People v. Saunders (1993) 5 Cal.4th 580 (Saunders),
wherein the court found such a forfeiture of the statutory right
to have the same jury. The jury was discharged, without
objection by the defendant, before determining the truth of the
allegations of prior convictions. Justice George, writing for
the majority, explained: “Thus, although sections 1025 and 1164
prohibit a trial court from discharging a jury until it has
determined the truth of any alleged prior convictions, a
defendant may not complain on appeal of a departure from this
procedural requirement unless the error has been brought to the
attention of the trial court by means of a timely and specific
objection. We do not believe that the Legislature, in enacting
sections 1025 and 1164, intended to create a procedural trap
that would enable defense counsel to ambush the trial judge and
deprive the People of their statutory right to prove one or more

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alleged prior convictions for the purpose of enhancing the
punishment of the repeat offender.” (Saunders, supra, 5 Cal.4th
at pp. 590-591.)
Defendant relies on his dialogue with the trial court
wherein he complained about the apparent inequity of serving
time twice for the same offense and his inability to dispute a
conviction to which he pled guilty in 1982. But his frustration
is not the equivalent of a “timely and specific objection” as
required in Saunders, supra, 5 Cal.4th at p. 590. There is
absolutely no indication in this record that defendant objected
on the grounds of his statutory right to have the same jury
decide the truth of the allegations of prior convictions.
Rather, he waived a jury at each opportunity and insisted on a
court trial both before and after the amendment. He therefore
forfeited his right to complain on appeal.
C. The Consecutive Sentence on the Burglary Count is
Barred
According to the prosecution, defendant broke into the
victim’s home for the purpose of sexually assaulting her.
The information alleged the burglary was committed with specific
intent to commit one or more of the sexual offenses specified in
section 667.61. Pursuant to section 667.61, subdivision (d)(4),
the jury found the burglary was committed with the specific
intent to commit one or more of the charged sexual offenses.
Nevertheless, the court imposed consecutive sentences on the
sex counts as well as the burglary count. The Attorney General
concedes that, on the facts of this case, the trial court should

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not have imposed sentence on the burglary count. On remand,
therefore, the trial court is directed to stay imposition of
sentence on count one.
D. Restitution
At defendant’s sentencing hearing, the victim testified
she lost her job and incurred unreimbursed medical expenses.
She did not, however, have the documentation with her itemizing
her medical expenses. The trial court ordered defendant to pay
the victim restitution. Affording the victim the opportunity
to obtain evidence of her medical expenses, the court referred
“this matter to the Office of Revenue Recovery for a
determination to be made relative to the expenses. I order
that all legitimate expenses be paid by way of restitution
from Mr. Hayes to the victim, and the first dollars collected
from Mr. Hayes by way of his prison work or other resources be
provided to the victim to recompense the victim for any economic
losses caused by Mr. Hayes.”
Defendant contends the court improperly delegated its
statutory authority to order restitution to the Office of
Revenue Recovery. We rejected the same argument in People v.
Lunsford (1998) 67 Cal.App.4th 901 (Lunsford). Section 1202.4
allows for flexibility in the very circumstances of this case.
It provides: “If the amount of loss cannot be ascertained at
the time of sentencing, the restitution order shall include a
provision that the amount shall be determined at the direction
of the court.” (§ 1202.4, subd. (f).)

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In Lunsford, the sentencing judge indicated he did not know
whether or not there were actual restitution costs “‘such as for
the final medical bills, or burial expenses, but if there are
such costs, I do assess those and order restitution to be paid
by the defendant in an amount to be determined by the Office of
Revenue [Recovery] . . . .’” (Lunsford, supra, 67 Cal.App.4th
at p. 903.) We held the restitution order complied with
section 1202.4, subdivision (f) in that it “‘direct[ed]’” the
Office of Revenue Recovery to “‘determine’” the amount of victim
restitution “because the proper amount could not be ascertained
at the time of sentencing.” (Lunsford, supra, 67 Cal.App.4th
at p. 903.)
Lunsford, and not the earlier cases cited by defendant,
is controlling. The restitution order directing the Office
of Revenue Recovery to determine the amount of the victim’s
restitution was properly entered. As we advised in Lunsford,
“If defendant is dissatisfied with the agency’s determination,
he may obtain judicial review in accordance with Penal Code
section 1202.4, subdivision (f)(1) . . . .” (Lunsford, supra,
67 Cal.App.4th at p. 904.)
Defendant also complains the $10,000 restitution fine
imposed pursuant to section 1202.4 violates the excessive
fines clause of the federal Constitution because it is grossly
disproportionate to the gravity of defendant’s offense and
deprives him of any spending money in prison. His argument
is utterly without merit.

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The trial court best characterized the nature of his
conduct. Defendant, according to the court, committed “a
horrible crime involving great violence” and “putting [the]
victim in absolute fear for her life. . . .” Moreover,
defendant displayed a “high degree of cruelty, viciousness
and callousness.” He was convicted of forcible oral copulation,
digital penetration of the victim’s genitalia, burglary,
robbery, and two counts of rape. Hence, the seriousness of
the crimes, as the Attorney General argues, cannot be
overstated. The victim suffered the brutal assault as she lay
sleeping in her own home. A mere $10,000 can hardly be said to
be grossly disproportionate to the brutal sexual assault on such
a vulnerable victim.
Defendant laments the length of time it will take him to
earn $10,000 in prison. He insists it is cruel and unusual
punishment to deprive him of toiletries and books in prison.
Hence, the real thrust of his argument is that he does not have
the ability to pay a $10,000 fine.
Defendant bore the burden of proving to the trial court his
inability to pay. (People v. Frye (1994) 21 Cal.App.4th 1483,
1487.) This he did not do. The court was entitled to consider
his future ability to earn income, including prison wages.
(People v. Staley (1992) 10 Cal.App.4th 782, 785.) His
indigency alone is not sufficient to preclude an order to pay a
restitution fine. Moreover, the fine is less than the formula
provided in section 1202.4, subdivision (b)(2): “In setting a
felony restitution fine, the court may determine the amount of

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the fine as the product of two hundred dollars ($200) multiplied
by the number of years of imprisonment the defendant is ordered
to serve, multiplied by the number of felony counts of which the
defendant is convicted.” Hence, defendant benefited from the
$10,000 statutory cap. (§ 1202.4, subd. (b)(1).)
Defendant cites no authority to support his asserted
entitlement to personal items. Certainly, these items would
make life in prison more tolerable. But their absence is not,
as defendant contends, Dickensian. His desire for some of the
simple pleasures of life does not trump his obligation to pay
restitution for the horrible crimes he committed. There is,
quite simply, nothing unconstitutional about imposition of the
fine.
II
Evidence Code Section 1108 Issues
Defendant objects to the admission of evidence of his prior
rape. We need not reiterate his due process and equal
protection challenges to Evidence Code section 1108 as they have
been soundly rejected. (People v. Falsetta (1999) 21 Cal.4th
903 (Falsetta); People v. Fitch (1997) 55 Cal.App.4th 172.)4
4 Defendant contends his case is distinguishable from Falsetta
because the jury was not instructed that he was convicted and
punished for his prior rape offense. As a consequence,
according to defendant, the admission of the evidence pursuant
to Evidence Code section 1108 impermissibly diluted the
prosecution’s burden of proof. We consider defendant’s claim
of instructional error at pages 19-22 and 25-26, post. The
instructional error, if any, however, is a separate question
from a constitutional attack on Evidence Code section 1108.
Because the court carefully weighed the probative value of

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Defendant contends the trial court failed to instruct the jury
sua sponte not to convict him solely on the testimony of the
victim of the prior rape and abused its discretion by admitting
the propensity evidence. We find neither instructional nor
evidentiary error.
The victim of the 1988 rape testified she met defendant at
her sister’s home. He volunteered to help her sell a camera.
He drove her to a purported buyer’s house, but when she knocked
on the glass back door of the dark house and no one answered,
defendant grabbed her by the throat and threatened her with a
knife. He promised to stab her in the heart if she screamed.
He forced her to remove her clothing and orally copulate him.
He dragged her into the back yard, had intercourse with her,
threw her on a picnic table, and had intercourse with her again.
Throughout the ordeal, defendant kept slapping her and
threatening to kill her if she screamed. After he finally
ejaculated, defendant yelled, “‘You, bitch. You broke my
rubber.’”
Defendant acknowledges a trial court generally does not
have an obligation to instruct on the limited purposes for
which evidence of prior crimes is admissible. (Falsetta, supra,
21 Cal.4th at p. 924.) “In the absence of a request, a trial
court generally has no sua sponte duty to give a limiting
the prior crime against the potential for undue prejudice as
compelled by Falsetta, we conclude Falsetta’s disposition of
the due process challenge is dispositive of defendant’s
constitutional challenge.

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instruction. Under [Evidence Code] section 355, ‘[w]hen
evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct
the jury accordingly.’ (Italics added.) Under this provision,
a court has no duty to give a sua sponte instruction limiting
the purpose for which evidence may be considered. [Citations.]
This principle has been held specifically to apply to limiting
instructions regarding the admission of a defendant’s previous
uncharged misconduct. [Citation.] We conclude it applies as
well to a limiting instruction on the use of evidence admitted
under [Evidence Code] section 1109 [the propensity for domestic
violence version of [Evidence Code] section 1108].” (People v.
Jennings (2000) 81 Cal.App.4th 1301, 1316.) Defendant insists
this is the type of extraordinary, albeit unusual, case that
requires a sua sponte instruction. We disagree.
Defendant grossly overstates the significance of the
evidence of the prior rape in this trial. The victim described
how defendant, an acquaintance she met through her sister,
forced her to orally copulate him and then proceeded to rape
her. It was, therefore, highly relevant to proving his
propensity to rape again, a purpose the Legislature has
determined is legitimate. But the prior rape did not dominate
the trial; it was hardly more than a footnote. The testimony
was short, taking a mere nine pages of reporter’s transcript.
It merely corroborated the otherwise overwhelming evidence of
defendant’s guilt, including the victim’s positive

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identification of her attacker and the blood, DNA, fingerprint,
and shoe print evidence.
Defendant, like his counterpart in Jennings, supra,
81 Cal.App.4th at page 1317, contends Falsetta, supra,
21 Cal.4th 903 specifically requires the giving of a limited
instruction. We echo the First Appellate District: “Appellant
is wrong. [Fn. omitted.] The actual holding of the Supreme
Court in Falsetta was that the trial court in that case
‘properly declined’ to give a special limiting instruction
requested by the defendant, and that ‘[i]n future cases,
defendants may request an instruction . . . .’ (Falsetta,
supra, 21 Cal.4th at p. 922, italics added.) . . . [¶] . . .
[¶] In our opinion, Falsetta does not require a trial court
to give revised [limiting instructions] under the circumstances
presented in this case, in which no party requested that the
instruction be given in the first place. As the Falsetta court
noted, a trial court generally has no sua sponte duty to
instruct the jury as to the admissibility or use of other crimes
evidence. [Citations.] The Supreme Court’s opinion stands only
for the well-established rule that a court is obliged to give a
limiting instruction upon a proper request that it do so; and
where a request for a faulty limiting instruction is made, the
trial court should tailor the proposed instruction to the
standard instructions. Because no request of any kind was made
here, there was no error.” (Jennings, supra, 81 Cal.App.4th at
pp. 1317-1318.)

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In this context, defense counsel’s decision not to request
an instruction explaining the propensity evidence may have been
strategically designed to minimize the impact of the testimony.
A sua sponte instruction, however, would have highlighted what
the defense sought to neutralize. Defense counsel did not
cross-examine the victim and downplayed her significance in
closing argument. Hence, he was able to emphasize the
prosecution’s burden of proving commission of the present
offense and to criticize the prosecutor’s reliance on past
conduct to prove defendant was this victim’s assailant.
We therefore reject defendant’s contentions that the trial
court erred by failing to instruct the jury sua sponte on the
limited purpose for which propensity evidence is admissible and
that defense counsel was incompetent for failing to request such
an instruction. (Jennings, supra, 81 Cal.App.4th at pp. 1316-
1319.) There is nothing so extraordinary about the propensity
evidence admitted in this case to overcome the general rule
that the court has no obligation to give such an instruction
sua sponte. Indeed, there was arguably a strategic reason for
not requesting an instruction that would call attention to the
evidence the defense sought to minimize. (People v. Johnson
(1993) 6 Cal.4th 1, 51.) More significantly, there is no
reasonable possibility such an instruction would have made any
difference in a case in which the victim positively identified
her assailant and a vast quantity of physical evidence
corroborated her identification. Because there was no
prejudice, an inadequacy of counsel claim cannot prevail.

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(People v. Frye (1998) 18 Cal.4th 894, 979-980; Jennings, supra,
81 Cal.App.4th at p. 1318.)
Defendant also asserts the trial court abused its
discretion by admitting evidence of the prior rape pursuant to
Evidence Code section 1108, which provides in pertinent part:
“(a) 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
[Evidence Code] Section 1101, if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.”
Defendant insists the crimes were dissimilar, the prior rape
was remote, and the risk of undue prejudice was a certainty.
The scope of appellate review of a decision to admit
evidence under Evidence Code section 352 is exceedingly narrow.
The trial court’s decision cannot be disturbed on appeal absent
a showing that the court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124-1125.) The record before us
discloses no such abuse.
We disagree with defendant’s assertion that the two rapes
bear no similarities. Defendant emphasizes the first rape
involved an armed assault, whereas the second did not. He also
points out the victim in the prior rape accompanied the
defendant for some time in a car, whereas the assailant in the
second rape broke into the victim’s apartment while she slept.

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Few rapists, we venture to say, duplicate their crimes with
exactitude. Here, defendant in both cases raped young women he
knew. Prior to the first rape, he met his victim at her
sister’s home, and prior to his rape in this case, he socialized
with the victim at her apartment complex. In both cases, he
forced his victims to have oral sex before raping them. In both
cases, he used threatening language and physical violence. In
both cases, there was evidence defendant may have used a condom.
The similarity between the crimes increases the probative
value. The probative value was further supported by the
independent sources of the information linking defendant to each
crime. There is no evidence the victims knew one another or had
any connection whatsoever. In fact, the rapes were committed
over 10 years apart.
Defendant asserts the first rape was too remote to have any
probative value. We disagree. Defendant was incarcerated for
eight of those 10 years. Staleness of an offense is generally
relevant only if a defendant has led a blameless life in the
interim. (People v. Harris (1998) 60 Cal.App.4th 727, 739.)
Nor is there significant evidence of undue prejudice.
There was little chance of confusing the jury because the victim
of the first rape was not allowed to testify until the victim in
this case had completed her testimony. Moreover, the earlier
victim’s testimony was short and succinct. It did not consume
an undue amount of time nor was it more inflammatory than the
present offense. While defendant did threaten his first victim
with a knife, his second victim was equally vulnerable since he

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broke into her apartment while she was asleep. Moreover, she
was then attacked in her bed, beaten, penetrated, and was tied
and bound. In other words, the details of the first rape were
no more inflammatory than the second.
Defendant argues the evidence of the prior rape was acutely
prejudicial because the jury was not informed he was convicted
and punished for the offense. According to defendant,
therefore, the jury was likely to convict him of the current
charge, repulsed that his prior rape went unpunished. First,
we do not believe the jury was likely to draw the inference that
defendant escaped punishment simply from the absence of a
reference to his conviction. They would be just as likely to
assume that, in fact, he was tried and convicted. Second, it
was the defense that requested the court to bifurcate the prior
rape conviction from the trial despite the court’s admonition
that the prosecution could submit the evidence of the prior
misconduct. Hence, to the extent the jury was misled about
the first rape, it was at defendant’s behest.
The court properly considered both the probative value
of the 1988 rape and the risk of prejudice. Defendant’s
constitutional right to due process was thereby protected.
On this record, we can find no abuse of discretion.
Defendant complains the trial court failed to instruct
the jurors they could not consider the evidence of the prior
rape unless they found it was proved by a preponderance of the
evidence. (CALJIC Nos. 2.50, 2.50.1, 2.50.2.) Nor did the

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court restrict the use of the evidence. Defendant did not
request either instruction.
Defendant’s argument, unlike its more common cousin
challenging the propensity instruction as a dilution of the
prosecutor’s burden of proof, does not impinge on the reasonable
doubt standard. At worst, it left the jury without guidance as
to the burden of proof necessary to prove the prior rape and how
to utilize the evidence.
The jury was properly instructed on the presumption of
innocence and the prosecution’s burden to prove each offense
beyond a reasonable doubt. Since there was no instruction given
on the propensity evidence, there was no danger the jury
convicted him of the current offense based on a mere
preponderance of evidence that he committed the uncharged prior
misconduct. (See, e.g., People v. Jeffries (2000)
83 Cal.App.4th 15; People v. Escobar (2000) 82 Cal.App.4th 1085
(Escobar); People v. James (2000) 81 Cal.App.4th 1343.) We
conclude that, in light of the instructions as a whole, there
is no reasonable likelihood the jurors deviated from assessing
defendant’s guilt according to the reasonable doubt standard.
Moreover, even if the trial court erred by failing to
instruct sua sponte, the error is harmless beyond a reasonable
doubt. (Escobar, supra, 82 Cal.App.4th at p. 1101.) The
evidence of guilt, defendant’s assertions notwithstanding, was
overwhelming, including as it did a positive identification and
convincing physical evidence. Moreover, the evidence of the
prior rape paled in substance and volume to the evidence that

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defendant did indeed commit the charged offenses. The
instructional error, if any, was not prejudicial under any
standard.
III
Instructional Issues
A. Unanimity Instruction
Defendant asserts the trial court erred by failing to
instruct the jurors sua sponte that they must agree unanimously
on the facts underlying a true finding on each of the burglary
enhancements. (§ 667.61, subd. (d)(4).) As a corollary,
defendant contends the trial court erred by failing to require
the jury to make special findings on the burglary enhancements,
and his trial counsel was ineffective for failing to request
such findings. The premise to these arguments is flawed.
Defendant was charged in count one with burglary. As
enhancements, he was charged with committing forcible rape,
digital penetration, and oral copulation during the commission
of the burglary. (§ 667.61, subd. (d)(4).) The Attorney
General points out that once the jury found defendant guilty of
each sexual offense, it was required to determine whether or not
defendant committed each offense during the commission of a
burglary.
In prosecutions for burglary, the jurors need not agree on
the prosecution’s theory. (People v. Failla (1966) 64 Cal.2d
560, 569.) In other words, the jurors must agree the defendant
entered the dwelling with a felonious intent, but they need not

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agree on which particular felony he intended. (People v.
Perryman (1987) 188 Cal.App.3d 1546, 1549.)
Defendant suggests there is a fundamental difference
between a conviction for the substantive offense of burglary and
a conviction for a burglary enhancement. More specifically, he
appears to argue that the prosecution must prove, and the jury
must unanimously agree, that defendant entered the dwelling with
the specific intent to commit each of the sexual crimes in order
for the enhancement to apply to that sex crime. For example,
the jury could only sustain the burglary enhancement to the oral
copulation count if defendant entered the apartment with the
intent to force the victim to perform oral copulation. This
premise is wrong.
Section 667.61, subdivision (d)(4) provides: “The
defendant committed the present offense during the commission
of a burglary, as defined in subdivision (a) of Section 460,
with intent to commit an offense specified in subdivision (c).”
The statute does not provide, as defendant suggests, that he
entertain the intent to commit the specific sex crime at the
time of entry, but only that he intend to commit one of the
offenses specified in subdivision (c) of section 667.61.
As to the burglary, the jury was instructed: “In order to
prove [burglary], each of the following elements must be proved:
[¶] One, a person entered an inhabited dwelling house; and,
two, at the time of the entry, that person had the specific
intent to steal and take away someone else’s property and
intended to deprive the owner permanently of that property, or,

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three, at the time of the entry, that person had the specific
intent to commit the crime of rape or forcible oral copulation
and/or penetration by a finger. [¶] . . . [¶] If you are
satisfied beyond a reasonable doubt and agree unanimously that
the defendant made an entry with the specific intent to steal or
to commit rape or forcible oral copulation or penetration with a
finger, each felonies, you should find the defendant guilty.
You are not required to agree as to which particular crime the
defendant intended to commit when he entered.”
The court also instructed the jury on the burglary
enhancements as follows: “It is alleged in Counts two through
five that the defendant committed a burglary with the specific
intent to commit a forcible rape, in violation of Penal Code
Section 261(a)(2), or penetration by a finger in violation of
Penal Code Section 289(a), or forcible oral copulation in
violation of Penal Code Section 288a(c). [¶] If you find the
defendant guilty of one or more of the crimes charged in Counts
Two through Five, you must further make a special finding
whether the defendant during the commission of a burglary had
the specific intent to commit the crime or crimes of forcible
rape, Penal Code Section 261(a)(2); penetration by a finger,
Penal Code Section 289(a); or forcible oral copulation, Penal
Code Section 288a(c).”
These instructions properly state the law. To sustain the
burglary enhancements, defendant had to enter the apartment with
the specific intent to commit any one of the sex crimes. The
jury was not required to agree as to which one as long as each

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juror agreed defendant intended to either rape the victim,
digitally penetrate her, or force her to orally copulate him.
The jury convicted defendant of burglary and each of the alleged
sex crimes. Having been properly instructed that he must have
intended to commit at least one of the sex crimes at the time of
entry, they did not have to agree that he intended each of the
sex crimes at the time he entered the apartment.
The court, of course, had no sua sponte obligation to
instruct to the contrary. Nor would special findings be
necessary. His lawyer’s representation did not fall below an
objective standard of reasonableness under prevailing
professional norms because unanimity, as argued by defendant,
was not compelled. There was no error regarding the
instructions or the findings on the burglary enhancements.
B. Instruction That Use of a Condom Does Not Constitute
Consent
Defendant argues it was improperly argumentative to
instruct the jury that evidence the victim suggested, requested,
or otherwise communicated to the perpetrator that a condom be
used does not by itself constitute consent (CALJIC No. 1.23.1).
The court erred, contends defendant, by giving such a pinpoint
instruction on consent.
We conclude this instruction was not argumentative.
Rather, it properly explained to the jury that consent cannot be
found solely on evidence that a victim asked her attacker to use
a condom. In this context, the instruction simply defined
consent. (People v. Gonzalez (1995) 33 Cal.App.4th 1440, 1443.)

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It does not, as defendant urges, invite the jury to draw an
inference favorable to the prosecution, nor does it tell the
jury to base a finding of consent on this evidence. The
instruction is neutral in tone and content. There was no error.
C. Burglary Instruction
The jury was instructed as follows in the language of
CALJIC No. 14.59: “If you are satisfied beyond a reasonable
doubt and agree unanimously that the defendant made an entry
with the specific intent to steal or to commit rape or forcible
oral copulation or penetration with a finger, each felonies, you
should find the defendant guilty. You are not required to agree
as to which particular crime the defendant intended to commit
when he entered.” Defendant contends this instruction created
an improper mandatory presumption requiring the jury to find
guilt from the specified facts. Once again, defendant errs.
There is nothing in the challenged language inviting the
jury to draw inferences from specific items of evidence in order
to infer the existence of other facts. Instead, the “specified
facts” were the elements of the crime of burglary. Hence, the
instruction merely told the jurors that once they found the
elements of burglary to be true beyond a reasonable doubt, they
should find defendant guilty of burglary. The court did not
direct the jury to find one of those elements once they found a
certain predicate fact. Nor did the instruction limit the
jury’s freedom to independently assess the evidence or remove an
element from their determination. In short, the instruction did
not contain an impermissible mandatory presumption.

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D. Reading the Information
Defendant also complains the trial court committed
prejudicial error by reading the information to the jury at the
outset of the trial, including language characterizing burglary,
rape, digital penetration, oral copulation, and robbery as
serious felonies. He insists the jury might have punished him
for being the type of person who commits serious felonies rather
than on the basis of the evidence pertaining to the charged
offense. Defendant could not possibly have been prejudiced by
the reading of the information. (People v. Wader (1993)
5 Cal.4th 610, 646.)
First, the court expressly informed the jury the
information was not evidence of defendant’s guilt. We, of
course, must assume the jury followed the court’s instruction.
Second, the information simply recites the obvious fact that the
alleged sex crimes, burglary, and robbery are serious felonies.
The severity of the crimes does not suggest to the jury that
they convict defendant for being the type of person who commits
serious felonies. The instructions, when taken as a whole,
properly informed the jury to consider the evidence of each of
the elements of the crimes. There is no possibility on this
record that the jury convicted defendant on some attenuated
connection between “serious felonies” and the type of person he
was rather than on the strength of the evidence of each of the
elements of the offenses. There was no prejudicial error.

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DISPOSITION
The finding that defendant’s 1982 Nevada robbery
conviction constitutes a strike is reversed. The sentence
is vacated, and the matter is remanded to the trial court
for retrial of the prior serious felony enhancement and strike
allegation pertaining to the robbery conviction and for
resentencing. On resentencing, the court is directed to stay
imposition of sentence on the burglary count. In all other
respects, the judgment is affirmed.
RAYE , J.
We concur:
SCOTLAND , P.J.
NICHOLSON , J.

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