IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
GARY DEAN STORY,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. 210711
When a defendant is accused of a “sexual offense,” Evidence Code section
11081 gives the trial court discretion to admit evidence of other sexual offenses
the defendant committed. As relevant here, the statute defines sexual offense as a
crime or attempted crime that “involve[s]” “[a]ny conduct proscribed by” various
other penal provisions, including Penal Code section 261, which defines the crime
of rape. (§ 1108. subd. (d)(1).) We granted review primarily to decide whether a
defendant tried for first degree felony murder, with rape the underlying felony, is
accused of a sexual offense under this definition.
Because a murder during the course of a rape involves conduct, or at least
an attempt to engage in conduct, proscribed by Penal Code section 261, we
conclude that a defendant accused of such a murder is accused of a sexual offense
within the meaning of section 1108. Accordingly, we reverse the judgment of the
All statutory references are to the Evidence Code unless otherwise
Court of Appeal, which had found the trial court prejudicially erred in admitting
evidence of other sexual offenses.
The Court of Appeal also concluded insufficient evidence supported the
jury’s finding that defendant murdered the victim while raping her. We conclude
the Court of Appeal erred in this respect also. Ample evidence supports the jury’s
verdict of first degree felony murder.
I. FACTS AND PROCEDURAL HISTORY
A. Evidence Presented at Trial
On October 22, 1976, 26-year-old Betty Yvonne Vickers was found dead,
lying on her stomach on the right side of the bed in the bedroom of her apartment
on Dana Street in Mountain View. She was wearing only a football jersey; the
bottom half of her body was covered with bed covers. Panties were under the
pillow on the bed and a bloody tampon was on the bed beside her body. A large
semen stain was found on the bottom sheet. The rest of the apartment contained
no evidence of a struggle.
An autopsy revealed that Vickers had been strangled to death. Her body
had many abrasions and other injuries, some caused by the victim struggling while
she was being strangled. The pathologist testified that the injuries were most
consistent with the victim “being face up and someone applying their hands to her
neck and either their elbows on to the collar bones or the chest or perhaps even
their knees to straddle her and immobilize her.” The vagina contained a white
discharge but no sign of injuries. The pathologist testified that the absence of
injury to the vagina did not rule out a sexual assault. There was no evidence of
sperm, which is what would be expected if the assailant had had a vasectomy.
(Defendant had had a vasectomy.) The victim was menstruating when she died.
The pathologist estimated the time of death as shortly after the victim’s friends last
saw her alive, which was around 1:30 a.m. the morning her body was found.
Defendant and Vickers had been coworkers in Palo Alto. A friend who
lived with Vickers in the summer of 1976, before Vickers moved into the Dana
Street apartment, testified that defendant was once at her and Vickers’s home.
Another time, Vickers told the friend that defendant had spent the night at their
home but, Vickers told the friend, “ ‘Nothing happened. I just let him sleep here
but nothing happened. I’m on my period.’ ”
One Sunday morning in September 1976, around the time Vickers moved
into the Dana Street apartment, a man later identified as defendant appeared at the
sliding glass door of an apartment near Vickers’s apartment. He told two women
in the apartment that he was looking for Vickers. The women, who had not
previously known defendant, told him they did not know her. Defendant became
persistent and even hostile, making the women uneasy, before he finally left. That
evening, when one of the women was alone in the apartment, defendant knocked
on the door. He told the woman something like “Betty had stood him up.” He had
alcohol on his breath, which made the woman uncomfortable. Eventually
Before her death, Vickers and some of her friends often socialized at the
Saint James Infirmary, a Mountain View bar about two and a half miles from
Vickers’s Dana Street apartment. Defendant sometimes joined the group,
although he was not a regular. Vickers introduced him to the others as a
coworker. On the evening of October 21, 1976, the night of her death, Vickers
had dinner with her sister in Pacifica, then went to the Saint James Infirmary,
arriving sometime around 8:30 to 10:00 p.m. She sat with some of her friends,
including Shirley Kovach and Patricia Courter. Kovach had driven Courter to the
bar and expected to drive her home at the end of the evening.
During the course of the evening, defendant joined the group. At one point,
defendant asked Courter if she wanted to have breakfast with him at Denny’s. She
said no, she was not interested. She felt defendant was trying to “hit on” her.
Courter then observed defendant talk to Vickers and saw Vickers shake her head
no. Courter could not hear what they were talking about, but she saw Vickers turn
her back on defendant as if she did not want to talk with him any more.
The group left the bar shortly after 1:00 a.m. that morning. As they were
leaving, Vickers asked Kovach if she, Kovach, could go home with her. Kovach
said she could not do so because she had to give Courter a ride home. Outside the
bar, Courter observed defendant approach Vickers and say something in what
appeared to be a whisper. Courter could not hear what it was, but she saw Vickers
shake her head no. Vickers then got into her car and drove away alone in the
direction of her apartment. Defendant also drove away in his car, going in the
same direction. It was the last time her friends saw Vickers alive.
After Vickers’s body was found, defendant told the police that he had been
at the Saint James Infirmary the night she died and left around 1:30 a.m. He said
he went directly home without making any stops and arrived home no later than
2:00 a.m. His wife at the time testified that he was not home that night between
the hours of 2:00 and 4:00 a.m. Later defendant told her that he had been “out
driving around,” but he did not say where. Defendant’s first wife, who had been
married to him from 1971 to 1973, testified that on the day of Vickers’s funeral,
defendant asked her to have lunch with him. At lunch, defendant told her that the
police might ask her questions regarding his whereabouts. He asked her to give
him a false alibi for the early morning hours of the night Vickers died. He also
told her he had been at the Saint James Infirmary that night with a group of
people, including Vickers. He said that after he left the bar, he drove around for a
while. A couple of days later, defendant again asked his former wife to provide a
false alibi. She told him she would not do so. Defendant never denied killing
One of defendant’s coworkers testified that defendant called her on the
telephone and accused her of telling the police that he had admitted killing
Vickers. She told him she had not done so, then also told him that he had never
denied the killing. Defendant responded immediately, “just don’t worry about it.”
Two women who were married to defendant after Vickers’s death testified
that on a number of occasions before they were married, defendant told them that
he had killed before and had gotten away with it. He was serious. One of the
former wives testified that she and defendant lived in Arizona at the time. In
connection with his statement that he had killed before and gotten away with it, he
told her “why do you think I had to leave California.” He also said that he had
been arrested in connection with the killing he had gotten away with, but he was
then released because of insufficient evidence. In fact, defendant had been
arrested for the Vickers killing and subsequently released for lack of evidence.
A criminalist examined the semen stain on the bedsheet using techniques
available in 1976. He concluded that defendant could not be excluded as a donor
of the semen, but neither could most of the population. In 2001, when
investigation into this case was reopened, and since then, the physical evidence,
including the bedsheet, could not be located.
Over objection, the trial court admitted evidence of four other sexual
assaults that defendant committed, two before and two after Vickers’s death.
Maureen E. testified that she met defendant in August 1973. He was
interested in dating her but she was not, although they did have one date. Around
8:00 p.m., February 13, 1974, defendant appeared unexpectedly at her apartment
“reek[ing] of alcohol.” He entered the apartment, then struck her on the head with
a gun, rendering her unconscious. When she regained consciousness, defendant
dragged her into the bedroom and ripped her clothes off. At some point, defendant
left the bedroom. Maureen broke open a window and screamed, but defendant
returned, grabbed her, threw her onto the bed on her back, pinned her down with
his legs, and strangled her “into unconsciousness.” When she regained
consciousness again, defendant was gone.
Jayne H. testified that she met defendant on one occasion at her home in
July 1975. She next met defendant in early 1976 as part of a group that included
Vickers at the Saint James Infirmary. Defendant engaged Jayne in a conversation
that made her uncomfortable, and she left the group. Later that evening, he
knocked on the door of her home, asked her why she had left the bar without
saying goodbye, and then entered the house uninvited. He began to kiss her and,
despite her protests, forced her to have sexual intercourse against her will.
Andrea H. testified that in 1980 she met defendant in Arizona. The day
after she met him, she went on a date with him. In his car, he tried to kiss her;
when she asked him to stop, he choked her. As a result, she did not want to see
him again. Less than a month later, on May 29, 1980, around 11:00 p.m.,
defendant entered her apartment uninvited. She told him to leave, but defendant
pulled out a gun and raped her. Afterwards, defendant straddled her and began to
strangle her. After a while defendant stopped and got dressed. She got her dress,
fled to the bathroom, and climbed out the window to get help.
Peggi N. testified that in 1986, she lived in Phoenix, Arizona. She and
defendant were coworkers. Defendant expressed a romantic interest in her even
though she was married. She was not interested in him and, in fact, quit her job to
avoid him. On June 15, 1986, in the middle of the night, when her husband was
away at work, defendant appeared uninvited at her house. He then raped her at
gunpoint and left.
Defendant did not testify at trial. He presented one witness — a serologist
who testified that, in her opinion, approximately 88 percent of the population
could have contributed the semen stain on the bedsheet.
B. Procedural History
In 2002, defendant was indicted for Vickers’s murder. The trial court
denied defendant’s motion to exclude evidence of his other sexual assaults,
although it limited the nature and duration of the testimony. After the presentation
of evidence, the trial court denied defendant’s motion to dismiss the charges due to
precharging delay. The jury found defendant guilty of Vickers’s first degree
murder, and the court sentenced him accordingly.
The Court of Appeal reversed the judgment. It held that the trial court
prejudicially erred in admitting evidence of defendant’s other sexual assaults,
finding that he was not accused of a sexual offense within the meaning of section
1108, and that the trial court abused its discretion in admitting it under section
1101. It also found the evidence did not support a first degree murder verdict
because there was insufficient evidence that defendant entered Vickers’s
apartment with the intent to rape or that he killed Vickers in the course of rape or
We granted the Attorney General’s petition for review.
A. Admission of Evidence of Defendant’s Other Sexual Offenses
Over objection, the trial court admitted the evidence of defendant’s four
other sexual assaults. In careful and thorough discussions, it found the evidence
admissible under both section 11012 and section 1108. It also found the evidence
Subdivisions (a) and (b) of section 1101 provide: “(a) Except as provided
in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s
character or a trait of his or her character (whether in the form on an opinion,
not unduly prejudicial under section 352.3 The Court of Appeal concluded that
section 1108 did not apply to this murder charge and further held that the trial
court abused its discretion in admitting the evidence under section 1101. We
conclude that section 1108 does apply here and the trial court properly admitted
the evidence under that section.
Section 1108, subdivision (a), provides: “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 Section 1101, if
the evidence is not inadmissible pursuant to Section 352.”
Section 1108, subdivision (d)(1), defines “sexual offense”: “ ‘Sexual
offense’ means a crime under the law of a state or of the United States that
involved any of the following:
“(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1,
266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of
Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of the Penal
“(B) Any conduct proscribed by Section 220 of the Penal Code, except
assault with intent to commit mayhem.
evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted sexual act did not reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit such
Section 352 provides: “The court in its discretion may exclude evidence if
its probative value is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
“(C) Contact, without consent, between any part of the defendant’s body or
an object and the genitals or anus of another person.
“(D) Contact, without consent, between the genitals or anus of the
defendant and any part of another person’s body.
“(E) Deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on another person.
“(F) An attempt or conspiracy to engage in conduct described in this
The original indictment in this case, filed in April 2002, charged defendant
with Vickers’s murder. It specifically alleged that defendant “did with malice
aforethought and during the perpetration and attempt to perpetrate rape and
burglary, kill Betty Yvonne Vickers, a human being.” Defendant was not also
charged with Vickers’s rape, no doubt because the limitations period on rape had
expired by 2002. Later, an amended indictment — the one in operation at trial —
simply alleged that defendant “did unlawfully and with malice aforethought, kill
Betty Yvonne Vickers, a human being.” The reference to rape and burglary was
deleted. At trial, the prosecution sought and obtained a first degree murder verdict
based on felony murder with rape and burglary the underlying felonies. (Pen.
Code, § 189.) The burglary was based on defendant’s entering Vickers’s
apartment with the intent to commit rape.
Section 1108’s language makes clear that it “is limited to the defendant’s
sex offenses, and it applies only when he is charged with committing another sex
offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 916.) Thus, the question
before us is whether, under the circumstances of this case, defendant was “accused
of a sexual offense” within the meaning of section 1108. The Court of Appeal
held that he was not so accused because murder “is not found in any of the
enumerated Penal Code sections nor does it include as a necessary element
nonconsensual sexual contact.” We disagree.
Penal Code section 189 defines various types of first degree murder,
including any “murder which is . . . committed in the perpetration of, or attempt to
perpetrate, . . . rape, [or] burglary . . . .” First degree felony murder with rape and
burglary (based on entry with the intent to rape) was the only theory of first degree
murder presented at trial. This type of first degree murder unquestionably
involves conduct proscribed by Penal Code section 261, the statute defining rape,
or at least an attempt to engage in that conduct. The amended indictment deleted
any specific reference to rape and simply included an open charge of murder. But
a pleading that contains an open charge of murder adequately notifies the
defendant of the possibility of conviction of first degree murder on a felony-
murder theory, including rape felony murder. (People v. Geier (2007) 41 Cal.4th
555, 591.) Defendant was not only prosecuted for, he was convicted of, first
degree murder on this felony-murder basis. Accordingly, he was accused of a
sexual offense as defined by section 1108.
In concluding otherwise, the Court of Appeal relied heavily on the decision
in People v. Walker (2006) 139 Cal.App.4th 782 (Walker), another murder case
where the trial court admitted evidence of other sexual offenses under section
1108. The Walker court summarized the issue before it as “whether section 1108,
subdivision (d)(1)(E)’s inclusion in the definition of sexual offense of crimes that
involve ‘[d]eriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on another person’ authorizes use of evidence of
other sexual offenses when the circumstances under which a violent crime has
been committed suggest the defendant derived sexual pleasure or gratification
from the victim’s pain, even though sexual pleasure or gratification is neither a
necessary element of the charged offense nor alleged in the information as an
enhancement or aggravating factor.” (Walker, supra, at p. 799.) The appellate
court interpreted section 1108 as requiring “that the requisite sexual transgression
must be an element or component of the crime itself without regard to the
evidence establishing a specific violation.” (Walker, supra, at p. 800.) Under this
standard, the court held that the trial court erred in admitting the evidence under
section 1108. (Walker, supra, at p. 802.)
Walker is distinguishable because the defendant in Walker, although
charged with first degree murder, was convicted of second degree murder, and the
opinion gives no indication the prosecution sought a first degree murder
conviction on a rape-felony-murder theory. It appears the only theory in that case
that would have made the charged crime a sexual offense under section 1108 was
that the evidence suggested the defendant had killed for sexual pleasure or
gratification. Walker recognized that sometimes murder can qualify as a sexual
offense under section 1108, for example, if rape-related special circumstances are
alleged. (Walker, supra, 139 Cal.App.4th at p. 798.) (Here, no special
circumstances were alleged, no doubt because the law in effect in 1976 providing
for special circumstances had been declared unconstitutional. (Rockwell v.
Superior Court (1976) 18 Cal.3d 420, 426.)) Walker did not involve, or discuss,
the question whether an open murder charge prosecuted as first degree murder on
a rape-felony-murder theory is a sexual offense under section 1108. Nevertheless,
the Court of Appeal extended Walker to this case.
We need not and, accordingly, do not decide whether Walker, supra, 139
Cal.App.4th 782, correctly interpreted section 1108. Even under Walker,
defendant was accused of a sexual offense. As we have explained, first degree
felony murder with rape the underlying felony involves, as an element, conduct
proscribed by Penal Code section 261, the statute defining rape, or at least an
attempt to engage in that conduct. Accordingly, even assuming, without deciding,
that Walker was correct in limiting the applicability of section 1108 to offenses in
which sexual misconduct is an element or component of the crime itself, the Court
of Appeal erred in extending its holding to this case.
The Court of Appeal tried to bolster its conclusion by invoking “a familiar
maxim of statutory construction: expressio unius est exclusio alterius. That is, to
specify one thing in a statute is to impliedly exclude other things not specified.” It
concluded that because section 1108, subdivision (d)(1)(E), specifies only killing
for sexual pleasure or gratification and not other forms of sexual killing, such as
killing during a rape, it impliedly excluded all other forms of sexual killing from
its definition of a sexual offense. But this analysis simply assumes the
conclusion — that other types of sexual killings are not included elsewhere. If
other forms of sexual killing, such as killing while raping, are included in section
1108, subdivision (d)(1)(A), there would be no need to repeat those types of
sexual killings elsewhere. It seems most reasonable to conclude, as the Attorney
General puts it, that section 1108, subdivision (d)(1)(E)’s “role is to capture a
unique type of sexually motivated homicide not otherwise identified in other parts
of the statute.”
The Court of Appeal also believed the legislative purpose behind section
1108 supports its restrictive interpretation. It quoted language from People v. Soto
(1998) 64 Cal.App.4th 966, 983, stating that in enacting section 1108, “the
Legislature ‘declared that the willingness to commit a sexual offense is not
common to most individuals; thus, evidence of any prior sexual offenses is
particularly probative and necessary for determining the credibility of the
witness.’ ” (Quoting Review of Selected 1995 Cal. Legislation (1996) 27 Pacific
L. J. 761, 762; see also People v. Falsetta, supra, 21 Cal.4th at p. 912.) Focusing
on “determining the credibility” of witnesses and ignoring the reference to the
“particularly probative” nature of this evidence, the Court of Appeal believed the
legislative purpose does not apply here. It observed, “Here, there was no witness
whose credibility needed to be determined.” The observation is factually
correct — because defendant killed Vickers, she could not testify — but it hardly
supports the Court of Appeal’s conclusion. The necessity for admitting this
particularly probative evidence that exists when the alleged victim’s credibility
might be questioned can be no greater than the necessity that exists when the
victim was killed and thus cannot even tell her story. To help determine what
happened in Vickers’s home the night defendant strangled her, it was particularly
probative for the jury to learn of defendant’s history of sexual assaults. Neither
section 1108’s language nor its purpose supports the conclusion the Legislature
wanted to permit this evidence when the alleged sexual assault victim survives and
can testify but not when the victim dies and cannot speak.
The conclusion that section 1108 applies here finds support in the holding
of People v. Pierce (2002) 104 Cal.App.4th 893. In Pierce, the issue was whether
assault with intent to commit rape under Penal Code section 220 was a sexual
offense under section 1108. The defendant was tried before section 1108,
subdivision (d)(1), was amended to add to the list of qualifying crimes assault with
the intent to commit rape. (People v. Pierce, supra, at pp. 898-899.) The Court of
Appeal held that assault with intent to commit rape was a qualifying sexual assault
even before the amendment, noting that assault with intent to rape “involves”
conduct proscribed by the offenses listed in section 1108, subdivision (d)(1)(A).
(People v. Pierce, supra, at p. 898.) The court concluded its discussion of the
issue by noting that “[u]nder Pierce’s interpretation of the statute, if he had
committed attempted rape, section 1108 would apply. But because he committed
the more serious offense of assault with intent to commit rape, it does not. We are
confident the Legislature did not intend such an absurd result.” (Id. at p. 899.)
Similarly, we are confident the Legislature did not intend that section 1108 would
apply when a sexual assault victim survives but not when the defendant kills the
Defendant argues that the “rule of lenity” requires us to interpret section
1108 as not governing this situation. “[W]e have repeatedly stated that when a
statute defining a crime or punishment is susceptible of two reasonable
interpretations, the appellate court should ordinarily adopt that interpretation more
favorable to the defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57, italics
added.) The purpose of this rule is to ensure that criminal statutes provide fair
warning of what behavior is considered criminal and what the punishment for that
behavior will be. (Ibid.) But section 1108 governs the admissibility of evidence;
it defines neither a crime nor punishment. The rule of lenity that applies to
criminal statutes does not apply to rules of evidence. (See Jauregi v. Superior
Court (1999) 72 Cal.App.4th 931, 943 [the rule of lenity applicable to forfeiture
statutes does not apply to a section of the Evidence Code].) Moreover, “although
true ambiguities are resolved in a defendant’s favor, an appellate court should not
strain to interpret a penal statute in defendant’s favor if it can fairly discern a
contrary legislative intent.” (People v. Avery, supra, at p. 58.) Here we can fairly
discern a legislative intent to define murder committed during the course of a rape
as a sexual offense under section 1108.
For these reasons, we conclude that section 1108 applies at least when the
prosecution accuses the defendant of first degree felony murder with rape (or
another crime specified in section 1108, subdivision (d)(1)), or burglary based on
the intent to commit rape (or other sex crime), the underlying felony. This
conclusion avoids a difficulty inherent in the Court of Appeal’s interpretation. If,
as will often be the case of a killing prosecuted as a rape felony murder, the rape is
separately charged, then section 1108 would certainly apply and evidence of other
sexual offenses would be admissible but, under the Court of Appeal’s view, only
on the rape charge and not also on the murder charge. It would be difficult to
instruct a jury meaningfully that it could consider the other sexual offenses in
determining whether the defendant was guilty of rape, but it could not consider
those offenses in determining whether the defendant was guilty of murder in the
course of rape. This difficulty is avoided by interpreting the applicable sexual
offenses to include murder during the course of a rape.
The conclusion that section 1108 applies does not end the inquiry into
whether the trial court correctly admitted the evidence. Section 1108 preserves the
trial court’s discretion to exclude evidence under section 352 if its prejudicial
effect substantially outweighs its probative value. (See People v. Falsetta, supra,
21 Cal.4th at pp. 916; People v. Pierce, supra, 104 Cal.App.4th at p. 900.) In
deciding whether to exclude evidence of another sexual offense under section
1108, “trial judges must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on the jurors, the
burden on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the offense.” (People v.
Falsetta, supra, at p. 917.) Like any ruling under section 352, the trial court’s
ruling admitting evidence under section 1108 is subject to review for abuse of
discretion. (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Pierce, supra,
104 Cal.App.4th at p. 901.)
The court did not abuse its discretion in this case. It carefully considered
the evidence, found it had significant probative value — as it did — and took steps
to minimize any undue prejudice. It limited the evidence to what was relevant.
For example, as in People v. Pierce, supra, 104 Cal.App.4th at page 901, the court
“disallowed inflammatory evidence about [the victims’] injuries.” It also ensured
that the evidence would not take long to present. The ruling came well within the
Because the trial court properly admitted the evidence under section 1108,
we do not consider whether, as the Court of Appeal also concluded, the trial court
abused its discretion in further finding that the evidence was admissible under
section 1101. (See generally People v. Kelly, supra, 42 Cal.4th at pp. 782-787.)
B. Sufficiency of the Evidence
As previously noted, murder committed in the perpetration or attempt to
perpetrate rape or burglary is first degree murder. (Pen. Code, § 189.) The trial
court instructed the jury on felony murder, with both rape and burglary as the
underlying felonies. The burglary was based on defendant’s entering Vickers’s
apartment with the intent to rape her. The court instructed the jury on no other
theory of first degree murder. The Court of Appeal found the evidence
insufficient to support a felony-murder finding. Presumably, the reason it did so
in addition to reversing the judgment on other grounds is that “an appellate ruling
of legal insufficiency is functionally equivalent to an acquittal and precludes a
retrial.” (People v. Hatch (2000) 22 Cal.4th 260, 272, citing Burks v. United
States (1978) 437 U.S. 1, 16-17.) Because the Court of Appeal found insufficient
evidence to support the only theory presented at trial for first degree murder, when
it reversed the judgment, presumably it intended to limit any retrial to second
degree murder, although its opinion does not specifically so state.
The standard of appellate review of the sufficiency of the evidence to
support a jury verdict is settled. “In assessing a claim of insufficiency of evidence,
the reviewing court’s task is to review the whole record in the light most favorable
to the judgment to determine whether it discloses substantial evidence — that is,
evidence that is reasonable, credible, and of solid value — such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 578.) . . . The standard of review is the same in
cases in which the prosecution relies mainly on circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it
is the jury, not the appellate court[,] which must be convinced of the defendant’s
guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment.” ’ [Citations.]” ’ (Id. at pp. 792-793.)” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
The Court of Appeal agreed there was sufficient evidence to support a
finding that defendant was Vickers’s assailant, and that the two had sexual
intercourse before defendant strangled her. The semen stain on the bed and the
white discharge in the vagina virtually compel the latter conclusion. But it held
that there was no evidence from which a reasonable jury could conclude that
defendant entered Vickers’s apartment intending to rape her, or that Vickers failed
to consent to the intercourse, or that she resisted defendant in the way it believed
the law of rape required in 1976. We disagree.
The Court of Appeal ignored the evidence of defendant’s other sexual
offenses, presumably because it had concluded that the trial court should not have
admitted the evidence. If so, the Court of Appeal erred in two respects. First, as
previously discussed, the trial court properly admitted the evidence. Second, when
reviewing the sufficiency of the evidence for purposes of deciding whether retrial
is permissible, the reviewing court must consider all of the evidence presented at
trial, including evidence that should not have been admitted. “[W]here the
evidence offered by the State and admitted by the trial court — whether
erroneously or not — would have been sufficient to sustain a guilty verdict, the
Double Jeopardy Clause does not preclude retrial.” (Lockhart v. Nelson (1988)
488 U.S. 33, 34.) Accordingly, “a reviewing court must consider all of the
evidence admitted by the trial court in deciding whether retrial is permissible
under the Double Jeopardy Clause . . . .” (Id. at p. 41.) We have followed the
high court in this regard. (People v. Venegas (1998) 18 Cal.4th 47, 94-95, quoting
Lockhart v. Nelson, supra, 488 U.S. at p. 40 [“ ‘retrial of this case is not
precluded, since the erroneously admitted evidence was sufficient to permit a
finding of guilt beyond a reasonable doubt’ ”]; People v. Mattson (1990) 50
Cal.3d 826, 853, fn. 16 [“The high court held there that mere trial court error in the
admission of evidence does not preclude retrial if, with the erroneously admitted
evidence, there was sufficient evidence to support the judgment of conviction.”].)
Defendant suggests that, because the Court of Appeal did not specifically
state that it was not considering the evidence of his other sexual offenses, maybe it
did consider it and simply found it insubstantial. If so, the opinion gives no hint of
this and no explanation why that evidence did not support the verdict. In fact, the
evidence of defendant’s other offenses provides compelling evidence that
defendant entered Vickers’s apartment intending to rape her and that he killed her
during the course of rape.
The evidence showed that defendant is a serial rapist, and that his raping
conduct began before he killed Vickers and continued afterwards. The other four
sexual assaults were quite similar in a number of respects to each other and to the
crime of this case. In each case, defendant entered an acquaintance’s home at
night uninvited, and proceeded to rape, or attempt to rape, the victim. (The first
victim, Maureen E., did not specifically testify about an actual rape — possibly
because defendant knocked her unconscious with his gun at one point and
strangled her into unconsciousness at another point — but the jury could
reasonably have found that he entered the home with the intent to rape and had at
least attempted to rape her.) The victims had generally previously spurned
defendant’s sexual advances, as the jury could reasonably have found Vickers had
done. On three of the occasions, defendant used a gun to prevent resistance, and
on two occasions, he choked the victim in a manner similar to the way the
evidence showed that he strangled Vickers.
This pattern of conduct “provides ample evidence for a reasonable jury to
find that defendant intended to rape [the victim] when he killed her.” (People v.
Kelly, supra, 42 Cal.4th at p. 789.) “The chance that defendant acted with
innocent intent with [the murder victim] is sharply reduced by evidence that he
committed a forcible, nonconsensual sex act upon [a different victim] a few
months earlier.” (People v. Stitely (2005) 35 Cal.4th 514, 532, citing People v.
Carpenter (1997) 15 Cal.4th 312, 379.) This latter observation is all the more
compelling here, where defendant committed four sexual assaults, two before and
two after he killed Vickers. A reasonable jury was not required to find that the
one time defendant actually killed his victim was the one time he had no intent to
rape. “Nothing in this case required the jury to find that [the murder victim] was
an exception to this pattern . . . .” (People v. Kelly, supra, at p. 789.)
Accordingly, when the evidence of the other sexual assaults is considered, the
evidence supporting the jury’s verdict was not insufficient but extremely strong.
Moreover, even disregarding the other sexual assaults, ample evidence
supported the verdict. Defendant joined Vickers’s group at the Saint James
Infirmary the night she died. He propositioned one woman in the group (or so the
jury could reasonably conclude), then was observed speaking to Vickers. Vickers
shook her head no, then turned her back on defendant as if she did not want to
speak with him further. When the group left, Vickers asked one friend to come
home with her, but the friend declined. As they were leaving, defendant was
observed whispering something to Vickers, and Vickers again shook her head no.
Eventually, Vickers left alone in her car, driving in the direction of her home, and,
after Vickers left, defendant drove alone in the same direction. A jury could
reasonably conclude that Vickers’s asking the friend to come home with her
showed she did not intend or wish to engage in sex with defendant, or anyone, that
night. From all of this evidence, a jury could reasonably infer that Vickers had
declined defendant’s sexual overtures, or at least that she had not desired or
intended to engage in sex with him. The Court of Appeal dismissed these
inferences as mere “speculation.” They are not speculation. They are reasonable
inferences based on specific circumstantial evidence.
The crime scene presented additional strong evidence of absence of
consent. Vickers was menstruating when she died. A bloody tampon, obviously
removed from Vickers’s body before sex, was found lying on the bed next to her
body. A jury could reasonably find it highly unlikely a woman who consented to
sex would simply place a bloody tampon on the bed beside her rather than dispose
of it properly. The tampon on the bed strongly suggests a victim acting under
compulsion, not a willing partner acting consensually.
Finally, the circumstance that defendant strangled Vickers to death strongly
evidences lack of consent to sexual intercourse. It is possible, we suppose, that the
two engaged in consensual sex, then defendant strangled her for no apparent
reason. But the jury was not compelled to so find. The strangulation strongly
suggests absence of consent. “[A] rational trier of fact could have rejected,
beyond a reasonable doubt, the following scenario that defendant suggests, to wit,
that he engaged in consensual sexual intercourse and only thereafter turned to
violence: such a trier could have concluded to the requisite degree of certainty
that violence accompanied sex.” (People v. Berryman (1993) 6 Cal.4th 1048,
Rather than focus on the evidence that actually existed, the Court of Appeal
“focused on what it found lacking in the prosecution’s case . . . .” (People v.
Rodriguez, supra, 20 Cal.4th at p. 12.) “There was no sexual trauma to the
vagina,” the Court of Appeal said, “no evidence of restraints used during the sex
act and no other injuries to her body from which the jury could infer that Ms.
Vickers physically resisted her attacker during the sex act, or her attacker inflicted
physical violence on her during the sex act.” “The lack of evidence of any injury
to Ms. Vickers,” the court continued, “other than those inflicted when she was
strangled, does not allow a reasonable jury to simply know beyond a reasonable
doubt that Ms. Vickers’s murderer intended to force her to have sex with him
before killing her.” Finally, the court noted that “there was no evidence of
resistance. The bed was undisturbed on one side indicating that there was not a
struggle; the downstairs neighbor did not hear any disturbance; there was no
evidence of restraints used during the sex act; there was no bruising to her body
other than that caused by the actual strangulation; and there was no vaginal
trauma. Furthermore, there was no evidence that the murderer brandished a gun or
any other weapon with which he threatened Ms. Vickers so that she did not resist.”
The Court of Appeal erred in focusing on evidence that did not exist rather
than on the evidence that did exist. (People v. Rodriguez, supra, 20 Cal.4th at p.
12.) This is especially true here, where the absence of unambiguously sexual
injuries and evidence of a struggle can be easily explained and, hence, is of little
significance. Defendant may simply have used a gun — as he did in three other
sexual assaults both before and after he killed Vickers — or some other means to
prevent resistance and force his victim to submit quietly. The physical evidence
does not speak either way as to whether defendant used a gun; if he did he
undoubtedly removed it from the crime scene. But, under the circumstances of
this case, a jury could reasonably infer that the most likely explanation for the
absence of evidence of a struggle is that defendant did use a weapon, or other form
of coercion, to prevent such a struggle — not that it shows that Vickers engaged in
consensual sex with defendant after he came to her apartment late at night and
before he strangled her.
The Court of Appeal relied in part on the fact that this 1976 crime was
governed by the law of rape as it existed at that time. “Until its amendment in
1980, former [Penal Code] section 261, subdivisions 2 and 3 defined rape as an act
of sexual intercourse under circumstances where the person resists, but where
‘resistance is overcome by force or violence’ or where ‘a person is prevented from
resisting by threats of great and immediate bodily harm, accompanied by apparent
power of execution . . . .’ ” (People v. Barnes (1986) 42 Cal.3d 284, 292.) But
even the law in effect in 1976 did not force a person to resist a demand for sex at
the risk of death or serious injury. “In our state, it had long been the rule that the
resistance required by former section 261, subdivision 2, was only that which
would reasonably manifest refusal to consent to the act of sexual intercourse.” (Id.
at p. 297.) Moreover, the fact that defendant strangled his victim to death after the
sexual intercourse permits a reasonable jury to infer that Vickers did resist and,
indeed, died for that resistance. The fact that the law of rape was somewhat
different in 1976 than it is today provides no basis for the Court of Appeal to
substitute its interpretation of the evidence for that of the jury. The evidence of
this case fully supports the jury’s verdict.
C. Due Process Issue
In addition to the issues already discussed, defendant contended in the
Court of Appeal that the delay in bringing charges for this 1976 crime violated
“his due process right to a fair trial and the trial court erred in refusing to dismiss”
the charges. The Court of Appeal discussed the issue extensively, but ultimately
concluded that its ruling reversing the judgment on other grounds “renders moot
defendant’s contention that he was denied due process and a fair trial.”4
The Attorney General argues that portions of the Court of Appeal’s analysis
of the due process issue compel the conclusion there was no violation. (See
generally People v. Nelson (2008) 43 Cal.4th 1242, 1249-1257.) Accordingly, he
contends that the proper remedy at this point is to remand the matter to the Court
of Appeal with instructions to simply apply that analysis and affirm the judgment
of the trial court. We disagree. The Court of Appeal reached no definitive
conclusion despite its extensive discussion of the issue. It should decide the issue
in the first instance on remand.
The court erred in this regard also. A reversal on grounds that would
permit a retrial, albeit, under the Court of Appeal’s holding, limited to second
degree murder, did not make moot defendant’s argument that the charges should
be dismissed entirely.
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Story
Unpublished OpinionNP opn. filed 1/15/08 – 6th Dist.
Date Filed: April 9, 2009
County: Santa Clara
Judge: Linda R. Condron
Attorneys for Appellant:J. Frank McCabe, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan and Jeffrey M. Laurence, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):J. Frank McCabe
Post Office Box 1759
Burlingame, CA 94011-1759
Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-3664
Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issue: Was evidence of defendant's other sexual offenses admissible under Evidence Code section 1108, even though the charged crime of murder is not among the specific sex offenses listed in section 1108, because the target offense of rape for the prosecution's theory of felony murder is a listed offense?
|Thu, 04/09/2009||45 Cal. 4th 1282, 204 P.3d 306, 91 Cal. Rptr. 3d 709||S161044||Review - Criminal Appeal||closed; remittitur issued|
|1||Story, Gary Dean (Defendant and Appellant)|
Represented by J. Frank Mccabe
Attorney at Law
P.O. Box 1759
|2||Story, Gary Dean (Defendant and Appellant)|
Represented by Sixth District Appellate Program
100 N. Winchester Boulevard
100 N. Winchester Boulevard
Santa Clara, CA
|3||The People (Plaintiff and Respondent)|
Represented by Jeffrey Michael K. Laurence
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|Opinion||Justice Ming W. Chin|
|Apr 9 2009||Opinion: Reversed|
|Feb 21 2008||Petition for review filed|
The People, resp. Jeffrey M. Laurence, DAG
|Feb 22 2008||Record requested|
|Feb 26 2008||Received Court of Appeal record|
two full boxes
|Apr 16 2008||Time extended to grant or deny review|
The time for granting or denying review in the above-entitled matter is hereby extended to and including May 21, 2008, or the date upon which review is either granted or denied.
|Apr 23 2008||Petition for review granted (criminal case)|
George, C.J., was absent and did not participate. Votes: Werdegar, A.C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
|May 2 2008||Counsel appointment order filed|
Under request of appellant for appointment of counsel, Frank McCabe is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|May 7 2008||Request for extension of time filed|
Respondent, the People, requesting a 30 day extension to June 23, 2008, to file the opening brief on the merits, by Jeffrey M. Laureance, Deputy Attorney General
|May 12 2008||Extension of time granted|
On application of the respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 23, 2008.
|Jun 18 2008||Request for extension of time filed|
For respondent to file the opening brief on the merits, to July 14, 2008.
|Jun 24 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 14, 2008.
|Jul 11 2008||Opening brief on the merits filed|
the People, plaintiff and respondent Jeffrey Laurence, Dep. A.G.
|Aug 1 2008||Request for extension of time filed|
to file the answer brief on the merits, to 9-11-08 Gary Story, appellant
|Aug 6 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 11, 2008.
|Sep 3 2008||Request for extension of time filed|
for appellant to file the answer brief on the merits, to 10-10-08.
|Sep 10 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 10, 2008. No further extensions of time are contemplated.
|Sep 24 2008||Change of contact information filed for:|
Address for J. Frank McCabe, counsel for appellant effective 10-01-08
|Oct 2 2008||Answer brief on the merits filed|
Gary Story, appellant J. Frank McCabe, counsel (brief submitted with white covers-should have been blue)
|Oct 10 2008||Request for extension of time filed|
for respondent to file the reply brief on the merits, to 11-21-08.
|Oct 16 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including November 21, 2008.
|Nov 21 2008||Reply brief filed (case fully briefed)|
The People, respondent Jeffrey Laurence, Dep. A.G.
|Dec 23 2008||Compensation awarded counsel|
|Feb 3 2009||Case ordered on calendar|
to be argued on Tuesday, March 3, 2009, at 1:30 p.m., in San Francisco
|Mar 3 2009||Cause argued and submitted|
|Apr 8 2009||Notice of forthcoming opinion posted|
|Apr 9 2009||Opinion filed: Judgment reversed|
We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion. Majority opinion by Chin, J. joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
|May 13 2009||Remittitur issued|
|May 18 2009||Received:|
receipt of remittitur acknowledgement form the Court of Appeal.
|Jun 3 2009||Returned record|
case record shipped to the court of appeal per the request of that court. 5 doghouses
|Jun 10 2009||Compensation awarded counsel|
|Jul 8 2009||Received:|
record back from 6th DCA. (4 doghouses and one confidential doghouse).
|Jul 11 2008||Opening brief on the merits filed|
|Oct 2 2008||Answer brief on the merits filed|
|Nov 21 2008||Reply brief filed (case fully briefed)|
|May 2, 2010|
Annotated by emissacs
Story's wife at the time testified that he was not home until after 4:00 a.m. on the night of the murder, and Story's ex-wife testified that he asked her to provide a false alibi for him. Additionally, both of the women married to Story since the murder have testified that he has boasted about getting away with murder.
More than two decades after the crime, Story was formally charged with first degree felony murder with underlying charges of rape and burglary. No separate charge was brought for the rape itself, presumably due to statute of limitation issues.
At trial, the court admitted evidence of four other sexual assaults committed by Story. Two of these instances occurred before the Vickers murder and two occurred between the murder and the reopening of the investigation in 2001. Each of these incidents involved Story entering his victim's home and forcing her to engage in sexual intercourse against her will. Two of these additional assaults involved strangulation of the type that killed Vickers, and three involved the use of a firearm.
(2) Story was prosecuted for first degree felony murder with underlying felonies of rape and burglary with intent to commit rape. While no separate charges were brought for rape or any other offense enumerated in § 1108, the felonies underlying the charge are included and defendant has therefore been accused of a sexual offense.
(3) The Court of Appeal found that § 1108 was enacted to aid in witness credibility when accusing someone of sexual assault and therefore should not apply in this case. The California Supreme Court rejected this argument, finding it unthinkable that this evidence should be excluded solely because Vickers did not survive to bring the charges for herself.
(4) Furthermore, the California Supreme Court concluded that the trial court did not abuse its discretion and that there was sufficient evidence for conviction. The trial court carefully considered the evidence and limited it to what was relevant, taking steps to eliminate undue prejudice, and the evidence from the crime scene and circumstances surrounding Vickers's death was sufficient for a reasonable jury to find Story guilty.
Search Terms: admissable, Evidence Code § 1101, Evidence Code § 1108, first degree felony murder, pattern of conduct, rape, sexual assault, sexual offense
Annotation By: Eli Isaacs