Use of charged offenses as propensity evidence regarding other charged offenses is appropriate and furthers the Legislature purpose of Evidence Code section 1108. A jury convicted appellant of kidnaping, robbery, rape and other offenses committed against five women. Personal use of a gun was found as to several offenses; use of a stun gun was found as to some of the rapes. Appellant challenged the trial court’s giving of a modified version of CALCRIM 1191, which allowed the jury to consider evidence of a charged offense in determining appellant’s propensity to commit other charged crimes. The appellate court acknowledged a current split of authority on whether the jury may consider charged as well as uncharged offenses for propensity evidence. The court found that section 1108 does not reference uncharged offenses and in a multiple victim sex offense case, allowing a jury to use charged offenses it first found true beyond a reasonable doubt as evidence of propensity to commit other charged offenses furthers the legislative purpose of section 1108, of easing the victim’s burden of engaging in a credibility contest. Even so, a trial court should conduct an Evidence Code section 352 analysis regarding the relationship of the offenses to determine whether it is appropriate to allow the jury to consider the charged offenses as propensity evidence.
Allowing a nurse to testify about rape exams she did not perform does not deny the right of confrontation. Nurse Wilson, who performed the rape exams on several victims, testified about those exams, as well as the rape exams conducted by other nurses. This testimony did not violate the confrontation clause, as recently discussed in Melendez-Diaz (2009) 129 S.Ct. 2527, because the exams performed by other nurses were not used directly as proof, as were the ex parte out-of-court affidavits in Melendez-Diaz. Rather, Nurse Wilson rendered an independent expert opinion based on the rape examinations conducted by other nurses she supervised and she was subject to cross-examination by appellant.
The trial court did not err in allowing the preliminary hearing testimony of a uncooperative victim to be read at trial. One of the victims refused to testify at trial and was declared unavailable. The trial court allowed her preliminary hearing testimony to be used. Appellant argued the trial court should have used other methods to force her to testify. However, as a sexual assault victim, the witness could not be incarcerated following a contempt finding (Code Civ. Pro., §1219, subd. (b)), and it was obvious from the witness’ behavior that ordering fines or community service would have been unavailing. The defense motives and interest in cross-examination at preliminary hearing need be only similar, not identical, to those at trial. On this record, the motives were sufficiently similar to protect appellant’s right of confrontation.
Sufficient evidence supported the finding appellant’s stun gun was a deadly or dangerous weapon. Appellant used a stun gun during the rapes of three victims and the true findings of this use subjected appellant to One-Strike sentencing (Pen. Code, §667.61, subds. (a)(e)(3)). Appellant maintained the stun gun did not qualify because his expert testified the stun gun was incapable of inflicting severe harm and he did not actually stun the victims. However, the display of the stun gun in a menacing manner was sufficient to find appellant “used” the weapon (Pen. Code, §12022). There was prosecution expert testimony that stun guns may cause injury or death and the defense expert conceded that the stun gun could cause painful burns and serious injury if applied to sensitive areas of the body. This evidence was sufficient to support the weapon use finding.