People v. Varona

California Court of Appeal Jun 2, 1983 No. Crim. 41520Published

Before: Kingsley

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Holding. The trial court abused its discretion by excluding evidence of the prosecutrix's prior prostitution conviction and probation status under Evidence Code section 782, and the prosecutor committed misconduct by arguing the absence of such evidence after successfully moving to exclude it.

Issues

Whether the trial court abused its discretion in denying a motion under Evidence Code section 782 to admit evidence of the prosecutrix's prior prostitution conviction.
Whether the prosecutor committed misconduct by arguing to the jury that there was no evidence the prosecutrix was a prostitute after successfully objecting to the admission of such evidence.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude that, in this case, on the particular facts here involved, it was an abuse of discretion to deny the Evidence Code section 782 motion.”

“The whole argument went beyond the bounds of any acceptable conduct.”

Opinion

KINGSLEY, Acting P. J.

Defendants were charged jointly with: (count I) kidnaping, in violation of section 207 of the Penal Code; (count II) rape, in violation of subdivisions (2) and (3) of section 261 of the Penal Code. Defendant Jorge Varona was also charged with: (count III) sodomy, in violation of subdivision (c) of section 286 of the Penal Code; and (count IV) oral copulation, in violation of subdivision (c) of section 288a of the Penal Code. The case was tried to a jury. At the close of the case, the trial court, on motion of the People, dismissed count HI. On count I, both defendants were found guilty of false imprisonment, in violation of section 236 of the Penal Code, a necessarily included offense; both were found guilty on count II. Jorge was found guilty on count IV. They were sentenced accordingly.

They have appealed; we reverse.

The prosecutrix testified that, on the evening in question, she had been visiting a friend, who, at 11:30 p.m., drove her to within two blocks of a bus stop where she planned to take a bus home. While walking to the bus stop, she was attacked by defendants, who took her to a nearby house where the alleged rape and oral copulation occurred. The defense was that the woman had solicited them to engage in acts of prostitution, had gone voluntarily to the house and voluntarily engaged in the alleged conduct, but had become enraged when she discovered the defendants had no money.

Defendants attempted to introduce evidence that the woman had, earlier, pled guilty to prostitution and was on probation at the time of trial. The evidence was excluded.

In his argument to the jury, the prosecutor argued there was no evidence that the woman was a prostitute.

[569]

Defendants here contend both that it was error to deny the offer of proof of the woman’s being on probation for prostitution and that it was misconduct for the prosecutor to argue that there was no proof that the woman was a prostitute when he had, by his objections, prevented the defense from proving that fact.

People v. Varona

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