Opinion
HASTINGS, J. In a six-count information defendant was charged with three violations of Penal Code section 207 (kidnaping), two violations of Penal Code section 288a, subdivision (c) (oral copulation) and one violation of Penal Code section 261, subdivision 3 (rape). It was further alleged that in the commission and attempted commission of all of the above offenses, defendant used a firearm. Defendant pled not guilty to all counts and denied the firearm use allegation. Trial was by jury. Defendant was convicted of all counts and the firearm use allegations were found to be true. He was sentenced to state prison for three years on the rape count, with the remaining counts to run concurrently. His term was enhanced by two years for use of the firearm. Defendant now appeals, claiming (1) the court abused its discretion by admitting into evidence the testimony of a modus operand! witness, and (2) prosecutorial misconduct denied him a fair trial.
On the evening in question, December 4, 1977, Victoria B., Kelly C. and Tonia W. visited several bars in the City of Glendale. At the Round Robin bar they encountered defendant. He initiated a discussion about the Hillside Strangler killings; there was some talk about what a girl could do to protect herself.
Later on defendant mentioned something about a ride home and Tonia agreed to give him a lift. He said he wanted to be dropped off last, but Tonia said it would be easier if he was dropped off first.
After leaving the bar, the three women and defendant went to a coffee shop. They left the coffee shop at around 2:45 or 3 a.m. and [454]followed defendant’s directions to his home. Victoria testified he directed them in an “awkward direction.”
Upon arrival, defendant said, “Wait here. I want to give you something. I want to give you a couple of joints for taking me home.” The women waited. Tonia was in the driver’s seat, Victoria in the right front, and Kelly in back. They sat with the motor running and the lights on.
After 10 or 15 minutes, defendant returned. Tonia lowered her window. Defendant pulled a gun out and put it in Tonia’s face. He told her to park her car. He opened the door and pointed the gun at her ribs. She floored the accelerator in an attempt to leave, but defendant climbed in and put his foot on the brakes and his hand on the wheel.
Defendant ordered the women up to his apartment. Once there, he tied up Victoria and Kelly in the living room. Defendant took Tonia to the bedroom where he raped her and forced her into two acts of oral copulation.
Afterwards, defendant returned to the living room. He untied the two other women. He said, “I don’t know what I’m going to do now. I don’t want to pay for this.” He had the gun in his pants. Kelly promised they wouldn’t tell the police when he asked if they would.
Tonia agreed to take him to work as he requested because he still had the gun. On their way she said she needed gas and they stopped at a gas station. While there, defendant walked away and the three women took off. They went directly to the police station and Kelly spoke first, saying they had been kidnapped and Tonia had been raped.
Tonia was examined at Glendale Memorial Hospital and the doctor concluded that it was certainly a possibility that she had been raped.
On December 7, 1977, the police served a search warrant on defendant’s home. They discovered a gun between the bed sheets which was subsequently identified by Tonia as looking like the one he used. They also found a white cord similar to the one used on Victoria and Kelly.
Denise B., defendant’s girl friend at the time of trial, testified that she saw defendant at the Round Robin about two weeks before the night in question and that he asked her for a ride home. She had seen [455]defendant before at the Round Robin and agreed to take him home. When they arrived at his apartment, Denise said “Good night” with the motor running, but defendant wanted her to come upstairs and he became “overly aggressive.” He reached over and turned the ignition off, taking the key out. He tried to push her out of the car and she wrapped her arms around the wheel to prevent him from succeeding. She cried and was upset. She was worried about being raped. Finally, he stopped trying to coerce her and said something like, “I didn’t mean to hurt you, you are a lady.”
While sitting in the car they talked about sex; they talked about his wanting to tie her up in his house. At some point he touched her breasts or attempted to do so. Denise drove off at around 3 a.m.
After the incident Denise went to the police because this was during the Hillside Strangler investigation and a friend told her “everybody should be checked out.” Denise testified she would like her boy friend, defendant, to be acquitted and denied making certain statements to the police about her evening with defendant.
The prosecution then called Officer Lorraine Curry who testified that she interviewed Denise concerning the report she had made against the defendant. Officer Curry recounted the following statements made by Denise during that interview: Denise said that when she took defendant home and refused to go upstairs, he became violent and grabbed her neck and applied pressure to her throat. During the struggle a light came on in the neighborhood and neighbors came out on their porch; he told her not to say or do anything and he appeared frightened. At some point his attitude suddenly changed and he said, “I’m sorry, I didn’t mean to hurt you, you’re a lady. I thought you were like the rest of them.” (Italics added.) He told Denise that women abused him and didn’t treat him right. Defendant told her not to tell anyone about what happened or she would be in trouble.
Defendant testified on his own behalf. According to him, he and Tonia had sexual relations prior to the night in question. Defendant claimed that on the night of the incident, when they met at the Round Robin, Tonia expressed an interest in buying his gun for protection from the Hillside Strangler, and that they discussed having sexual intercourse that evening. He testified further that when they arrived at his [456]apartment he brought out the gun to show it to Tonia, that the women went upstairs to “smoke the numbers,” that Tonia consensually participated in the sexual acts, and that he tied Kelly’s left thigh to Victoria’s right thigh as part of a joke.
Defendant said he knew the police were looking for him several days later but did not make direct contact with them until April, four months later. He was hoping that they would catch the Hillside Strangler first.
Defendant’s first contention is that the court abused its discretion by admitting the testimony of a modus operandi witness. As we note above, Denise and Officer Curry testified regarding a prior evening in which defendant attempted to coerce Denise up to his apartment. The gist of defendant’s argument appears to be that the prejudicial effect of this testimony outweighed its probative value because the testimony didn’t go to prove a prior rape,1 and because there was little similarity between the uncharged act and the charged offenses. (Evid. Code, § 352.)
It is established by case law that if two offenses or acts have a sufficiently high degree of common features, the uncharged prior is admissible because it warrants an inference that if defendant committed the former act, he committed the crime charged. (People v. Haslouer, 79 Cal.App.3d 818, 827-828 [145 Cal.Rptr. 234].) We conclude that although there is a difference in defendant’s degree of success with Denise and Tonia, there was a sufficient similarity between the two evenings to make the testimony admissible. Defendant’s conduct toward Denise, Tonia, Victoria and Kelly was similar in the following respect: (1) he at least casually knew the victims before the incidents, (2) he met them at the same bar, (3) he asked for a ride home, (4) he tried to force them up to his apartment when they refused to go, (5) he warned them to keep quiet about the incidents, and (6) he either discussed tying them up or did so in fact. Admittedly, defendant did not get Denise into his apartment or succeed in sexually attacking her, but this failure could be attributed to defendant’s lack of a weapon in face of Denise’s resistance and the neighbors’ proximity rather than to his good intentions. (People v. Pendleton, 25 Cal.3d 371, 377 [158 Cal.Rptr. 343, 599 P.2d 649].)
[457]Defendant’s second contention on appeal is that he was denied a fair trial when during the course of trial the prosecution inferred that he might be the Hillside Strangler.2 This contention is meritless. Not only was it apparent defendant had been dismissed as a suspect in those stranglings,3 but also the acts charged were not similar to those much-publicized crimes.
The judgment is affirmed.
Ashby, J., concurred.
A prior act need not be a crime to be admissible under Evidence Code section 1101. (People v. James, 62 Cal.App.3d 399, 407 [132 Cal.Rptr. 888].)
He notes that the topic of the Hillside Strangler was raised 16 times during the course of trial. The court has reviewed the record, and it is clear that defense counsel and defendant himself were responsible for at least 6 of the 16 times. And, in at least six or more instances the topic of the Hillside Strangler was independently raised by a witness. The questions of defense counsel and the answers of defendant and other witnesses can hardly be chalked up as misconduct by the prosecutor.
Firstly, the prosecutor stressed the past tense when he asked Officer Curry, “At one time was [defendant] suspected of being the Hillside Strangler, or possible suspect?” (Italics added.) Secondly, Officer Curry’s testimony made it clear she did not pursue defendant for his connection with the Hillside Strangler slayings but rather for his own crimes; it is not logical to argue the jury believed defendant was considered the strangler since they knew the police focus was elsewhere.