Filed 3/6/17
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----




THE PEOPLE,                                                      C078041

                 Plaintiff and Respondent,               (Super. Ct. No. 12F02050)

        v.

TERRY GLEN SHORTS,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County, Michael
A. Savage, Judge. Affirmed.

      Mark David Greenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.

       Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.



                                              1
       Defendant Terry Glen Shorts sexually assaulted and murdered 13-year-old
Jessica S. in 1996, shooting her in the head and leaving her half-naked body in a park in
the middle of the night. Sixteen years later, he was connected to the crime when his
DNA was identified in samples taken from Jessica’s body. At trial, defendant conceded
that he had sexual relations with Jessica, but claimed he did not kill her. Instead, he
argued that Sammy Rodriguez did it. The jury convicted defendant of the murder and sex
offenses, and the trial court sentenced him to life without possibility of parole, as well as
other terms.
       On appeal, defendant contends the trial court: (1) improperly admitted evidence
of his prior sex offenses against J.P., his ex-girlfriend, over his Evidence Code section
352 objection, (2) improperly excluded evidence of Rodriguez’s propensity for violence,
and (3) improperly admitted lay opinion testimony that Rodriguez did not commit the
murder. Finding no prejudicial error, we affirm.
                               FACTS AND PROCEDURE
       On the morning of February 12, 1996, 13-year-old Jessica S.’s body was found in
Florin Creek Park in Sacramento. She was five feet, one-and-a-half inches tall, and she
weighed 90 pounds. Jessica died of a single gunshot contact wound to the head. She also
had injuries consistent with being hit in the head with the butt of a gun and being
strangled. Her pants and underwear were off, and her bras (she wore two) were hiked up,
exposing her breasts.
       Jessica’s mother said that Jessica left their home the night before at around 11 p.m.
or midnight with a 14-year-old boy to go to her grandmother’s house. Between 2 and 4
a.m., a woman who lived adjacent to Florin Creek Park heard a “horrible scream” from a
female. She also heard a man say “stop” and “don’t,” as well as more screaming from
the young female. About 10 minutes after the first scream, a gunshot rang out, and the
screaming stopped.



                                              2
       Vaginal, rectal, and oral swabs were taken during an autopsy of Jessica’s body.
Sperm was found on the vaginal and rectal swabs but not on the oral swab. No trauma
was noted to Jessica’s vagina or anus.
       Sixteen years after the murder, in 2012, the vaginal and rectal swabs were
analyzed again, and defendant’s DNA was collected from the sperm. Additionally, three
sperm heads were found on the oral swab, but the sample did not contain enough DNA to
identify or exclude defendant.
       Defendant was interviewed after his DNA was identified from Jessica’s autopsy.
He denied knowing Jessica. When told that his DNA was found, he offered a
hypothetical about girls in an abandoned house “putting themselves in situations.” He
said: “[W]e’re all capable of things that we don’t believe we would do,” but he did not
admit killing Jessica.
       The prosecution presented evidence under Evidence Code section 1108 that
defendant sexually assaulted his ex-girlfriend, J.P., less than three years before the
murder of Jessica. He dragged J.P. to a car and took her to a park. Pointing a gun at her
and threatening her, he strangled her, beat her, and forced her to have oral and anal sex
with him.
       The defense conceded that defendant had sexual relations with Jessica but claimed
that he did not kill her.
       A man who lived with Jessica’s mother at the time of Jessica’s murder testified
that another man threatened to shoot at the house if he was not allowed to sleep with
Jessica.
       Mainly, however, the defense sought to cause the jury to have doubt about
defendant’s guilt by introducing evidence incriminating Sammy Rodriguez, also known
as “Coyote,” who was 18 years old at the time of the murder. Rodriguez testified that he
had sex with Jessica once or twice before December 1995. She had told him that her
name was Veronica and that she was 17 years old. In December 1995, Jessica said she

                                              3
was a gang member at a party, and she was beaten. Rodriguez stayed away from her
after that because he believed that the boyfriend of Jessica’s mother was angry with him
because Jessica blamed Rodriquez for the beating.
        After Jessica’s murder, Jessica’s mother told the police that Rodriguez had set up
Jessica to be jumped in December 1995. Rodriguez heard that Jessica’s family was
blaming him, so Rodriguez’s attorney had him write down who he was with the weekend
of Jessica’s murder so that he would not forget.
        Rodriguez had a .22-caliber handgun at the time Jessica was murdered.
        The district attorney charged defendant by information with the following:
    Count one—murder (Pen. Code, § 187; hereafter, unspecified code citations are to
        the Penal Code).
           o Special circumstances—murder while committing a lewd and lascivious act
              on a child (§ 190.2, subd. (a)(17)(E)); murder while committing sodomy on
              a child (§ 190.2, subd. (a)(17)(D)); and murder while committing oral
              copulation on a child (§ 190.2, subd. (a)(17)(F)).
           o Enhancement allegation—personal use of a firearm (§ 12022.5).
    Count two—lewd and lascivious act on a child (§ 288, subd. (a)).
           o Enhancement allegation—personal use of a firearm (§ 12022.5).
    Count three—sodomy on a child (§ 286, subd. (c)).
           o Enhancement allegation—personal use of a firearm (§ 12022.5).
    Count four—oral copulation on a child (§ 288a, subd. (c)).
           o Enhancement allegation—personal use of a firearm (§ 12022.5).
    Strike allegation—prior conviction for aggravated assault involving great bodily
        injury (§ 1170.12).
        Defendant admitted the prior conviction allegation, and a jury found defendant
guilty on all counts and found all special circumstances and enhancement allegations
true.

                                             4
       The trial court sentenced defendant to an indeterminate term of life without
possibility of parole for the special-circumstance first degree murder of Jessica S.
(§§ 187, subd. (a); 190.2, subd. (a)(17)(d), (e) & (f)) with a consecutive term of 10 years
for personal use of a firearm (§ 12022.5, subd. (a)). The court sentenced defendant to
determinate terms for the sex offenses against Jessica, but it stayed those terms under
section 654 because they were alleged as special circumstances.
                                        DISCUSSION
       Before we consider defendant’s contentions on appeal, it is helpful to understand
defendant’s trial strategy in order to better comprehend his arguments on appeal. His
trial strategy is best revealed in defense counsel’s closing argument. Counsel noted that
the killing of Jessica was first degree murder. Whoever killed her was guilty of that
crime. Defendant had sex with Jessica but there was no evidence of vaginal or anal
trauma, and the circumstantial evidence permits a reasonable inference that the sex
offenses and the homicide did not occur at the same time and that defendant was not
involved in the homicide. Except for his DNA in Jessica’s body, no evidence was found
in the area of the homicide connecting defendant to the location. According to the
defense, someone else killed Jessica, possibly Sammy Rodriguez.
       Even on appeal, defendant concedes the evidence presented “a strong prosecution
case.” However, his strategy at trial and on appeal is to cling to the scenario that the sex
offenses against Jessica and her murder were committed by two different people—in
other words, that he committed the sex offenses but someone else unconnected to him
committed the murder. That is a very difficult task, given the evidence that the sex
offenses and murder were virtually contemporaneous. A witness heard Jessica screaming
for several minutes before she was shot. And she was found in a state that suggested that
she had just been sexually assaulted.




                                              5
                                              I
                                 Evidence Code section 352
       Defendant contends that admission under Evidence Code section 1108 of the
evidence concerning his sex offenses against J.P. over his Evidence Code section 352
objection was an abuse of discretion. We conclude the trial court properly exercised its
discretion in admitting the evidence.
       Evidence Code 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.” Evidence Code
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.”
       In People v. Harris (1998) 60 Cal.App.4th 727 (Harris), this court identified five
factors relevant to the trial court’s consideration of whether the probative value of prior
sexual misconduct evidence is substantially outweighed by its prejudicial effect under
section 1108: (1) the inflammatory nature of the prior offense evidence; (2) the
probability that admission of the evidence will confuse the jury; (3) the remoteness of the
prior offense; (4) the consumption of time necessitated by introduction of the evidence;
and (5) the probative value of the evidence. (Id. at pp. 737-740.) The trial court’s ruling
under Evidence Code section 1108 is subject to review for abuse of discretion. (People v.
Loy (2011) 52 Cal.4th 46, 61.)
       Before trial, defendant moved to exclude the evidence of defendant’s sex offenses
against J.P., citing Evidence Code section 352. The trial court engaged in a thorough
analysis of Evidence Code sections 352 and 1108 and the due process factors noted in
Harris. The court believed that defendant’s strongest argument for exclusion was that the

                                              6
offenses against J.P. were sex offenses against an adult, while the victim in this case was
a 13-year-old child. However, the court noted that Jessica, though young, was physically
mature and previously involved in adult-type activities, including those of a sexual
nature. From this, the court concluded that a propensity to commit sex offenses against a
physically mature and sexually active 13-year-old can be reasonably inferred from
commission of such crimes against an adult woman. The court found that the similarities
between the attack on J.P. and the attack on Jessica, such as nonconsensual sex, attack in
a park, strangulation, oral sex, anal sex, and use of a gun, outweighed the differences,
such as adult versus child. And the court concluded that the probative value of the J.P.
evidence was strong. The possible prejudicial effect of the J.P. evidence, along with
possible confusion of issues and possible misleading of jury, did not outweigh its
probative value.
       On appeal, defendant asserts that this admission of evidence was an abuse of
discretion because the charges against defendant did not require the prosecution to prove
that defendant committed forcible sex offenses against Jessica. Both the substantive sex
offenses and the special circumstances were predicated on lack of consent based on age,
rather than use of force. In defendant’s argument, this difference in whether lack of
consent was necessary makes the J.P. evidence superfluous, misleading, and legally
confusing. We disagree.
       The J.P. evidence established that defendant has a propensity for committing sex
offenses. While the circumstances negating consent are different between the J.P. case
(force) and this case (age), many other circumstances are similar and support the
propensity inference. The J.P. evidence established that defendant, in committing a sex
offense, is prone to use a gun, isolate the victim in a park, strangle the victim, and engage
in oral and anal sex. That propensity is relevant to this case, regardless of how the lack of
consent is established. Also, even though the special circumstance allegations were
premised on age as the cause of lack of consent, the murder in commission of those

                                              7
crimes was violent and defendant’s propensity for committing violent sex offenses was
relevant to whether he committed the special circumstance murder.
       Furthermore, the Harris factors support the trial court’s admission of the evidence
over defendant’s Evidence Code section 352 objection: (1) the evidence of the sex
offenses against J.P., an adult who was not murdered, was not more inflammatory than
the evidence of the crimes against Jessica; (2) there is little probability that admission of
the J.P. evidence confused the jury as it was a completely separate incident; (3) the prior
offense was not remote, occurring in October 1993, less than three years before the
murder of Jessica; (4) admission of the evidence did not consume an unwarranted amount
of trial time; and (5) as the trial court concluded, the probative value of the evidence was
strong. (See Harris, supra, 60 Cal.App.4th at pp. 737-740.)
       The trial court did not abuse its discretion in admitting the J.P. evidence over
defendant’s Evidence Code section 352 objection.
                                              II
                  Defense Use of Evidence Code Sections 1108 and 1109
       Defendant contends that the trial court’s exclusion of defense evidence that
Sammy Rodriguez had a propensity for violence interfered with his right to present a
defense of third party culpability because the prosecution was allowed to present
propensity evidence against him under Evidence Code section 1108. He claims that this
circumstance violated his due process right to symmetry in the proceedings, citing
Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d 82] (Wardius). Whether or not
Wardius requires a court to allow a defendant to introduce propensity evidence under
Evidence Code section 1108 or 1109 in a case in which the prosecution has been able to
do so is not an issue we need to decide in this case because the facts of this case, even
assuming defendant can take advantage of Evidence Code section 1108 or 1109, do not
support admission of evidence that Rodriguez had a propensity for violence.



                                              8
       Although a defendant is constitutionally entitled to present “a complete defense”
(California v. Trombetta (1984) 467 U.S. 479, 485 [81 L.Ed.2d 413, 419]), that right does
not encompass the ability to present evidence unfettered by evidentiary rules (People v.
Brown (2003) 31 Cal.4th 518, 538). “[T]he Constitution permits judges ‘to exclude
evidence that is “repetitive . . . , only marginally relevant” or poses an undue risk of
“harassment, prejudice, [or] confusion of the issues.” ’ [Citations.]” (Holmes v. South
Carolina (2006) 547 U.S. 319, 326-327 [164 L.Ed.2d 503, 510, 510] [stating evidentiary
rules that preclude the admission of third party culpability evidence insufficiently
connecting the third person to the crime are “widely accepted”].) When a trial court
exercises its discretion to exclude evidence and does not abuse that discretion, the
exclusion of the evidence (including proffered third party culpability evidence) does not
impermissibly infringe on a defendant’s federal constitutional rights. (People v. Prince
(2007) 40 Cal.4th 1179, 1243.)
       Under the abuse of discretion standard, we will not disturb a trial court’s ruling
unless discretion was exercised in an arbitrary, capricious, or patently absurd manner,
resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1,
9-10.) Defendant sought to present evidence that, earlier the same month that Jessica was
murdered, Rodriguez shot at his ex-girlfriend, trying to kill her, and, as a result of that
incident, he was convicted on a guilty plea of assault with a deadly weapon. Defendant
conceded that the evidence was not admissible as character evidence, but he sought to use
it for impeachment. Counsel said: “[E]ven if all we can do is impeach[] him with assault
with a deadly weapon conviction . . . then let the jury hear that conviction.”
       Given the chance later to further articulate the defense’s position, defense counsel
argued that, since the prosecution, under Evidence Code section 1108, would be able to
present evidence of defendant’s propensity to commit sex offenses, defendant should be
able to present evidence concerning Rodriguez’s propensity for violence, even if that
evidence is prohibited under Evidence Code section 1101.

                                              9
       The trial court ruled that the defense could present evidence that Rodriguez had a
handgun during the month Jessica was murdered and that Rodriguez was convicted of a
crime involving moral turpitude, but the court denied the defense motion as to the facts of
Rodriguez’s shooting at his ex-girlfriend. The court said: “The Evidence Code requires
me to examine each item of evidence proposed on the merits of that evidence and to
make a determination on those grounds . . . .”
       On appeal, defendant focuses on what he perceives as the lack of symmetry and
balance in what the two sides can present as evidence, relying heavily on Wardius.
       The California Supreme Court summarized the Wardius holding as follows:
       “[In Wardius], the United States Supreme Court held that an Oregon statute
violated the Fourteenth Amendment’s due process clause in requiring a defendant to
provide alibi information before trial without imposing a reciprocal discovery obligation
on the state. (Wardius, at pp. 474–476.) The Supreme Court stated that ‘[a]lthough the
Due Process Clause has little to say regarding the amount of discovery which the parties
must be afforded, [citation], it does speak to the balance of forces between the accused
and his accuser.’ (Id. at p. 474.) The high court further noted that although due process
did not require Oregon to adopt any pretrial discovery provisions, if it did, ‘discovery
must be a two-way street.’ (Id. at p. 475.)
       “Wardius, supra, 412 U.S. 470, requires only that certain discovery obligations be
reciprocal. (People v. Yeoman (2003) 31 Cal.4th 93, 154.)” (People v. Mena (2012) 54
Cal.4th 146, 159.)
       An obvious difference between this case and Wardius is that this case involves an
evidentiary question while Wardius involved pretrial discovery. We need not determine
whether that difference is dispositive, however, because there is no lack of symmetry and
balance in this case that would violate due process even if Wardius applied to evidentiary
questions.



                                              10
       “Our elected Legislature has determined that the policy considerations favoring
the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual
offense cases by the policy considerations favoring the admission of such evidence. The
Legislature has determined the need for this evidence is ‘critical’ given the serious and
secretive nature of sex crimes and the often resulting credibility contest at trial.
[Citation.]” (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182, fn. omitted.)
       Here, the prosecution presented evidence of defendant’s sex offenses against J.P.
to establish defendant’s propensity to commit sex offenses. Admission of that evidence
was permitted by Evidence Code section 1108. On the other hand, the evidence
defendant proffered to establish the propensity of Rodriguez for violence is not
admissible under Evidence Code section 1108. Even if a defendant were to be permitted
to use Evidence Code section 1108 in an attempt to establish third party culpability, the
evidence concerning Rodriguez’s shooting at his ex-girlfriend is not evidence of a prior
sex offense.
       Defendant argues that he should also be permitted to introduce propensity
evidence under Evidence Code section 1109, which allows the prosecution to introduce
evidence of a defendant’s prior domestic violence to establish a propensity for domestic
violence. This argument also fails because defendant cannot establish that, if Rodriguez
was Jessica’s killer, it was an act of domestic violence. Although there was evidence that
Rodriguez previously had sexual relations with Jessica, they were never in the type of
relationship covered in Evidence Code section 1109. “Domestic violence” in Evidence
Code section 1109 refers to violence against someone with whom the perpetrator has or
had at least a cohabitating or dating relationship. (Evid. Code, §§ 1109, subd. (d)(3),
13700; see People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.) The evidence here
established nothing more than that Rodriguez and Jessica engaged in sexual relations one
or two times and that Rodriguez thought Jessica was a 17-year-old named Veronica.
Therefore, Rodriguez’s prior shooting at his ex-girlfriend, which could be characterized

                                              11
as domestic violence, could not be used to establish a propensity for domestic violence
resulting in the shooting of Jessica. If Rodriguez shot Jessica, it was not domestic
violence.
       Finally, defendant argues that he should be able to introduce any propensity
evidence because the prosecution was allowed to. That argument goes well beyond the
symmetry and balance required by Wardius. In Wardius, the court noted: “[I]n the
absence of a strong showing of state interests to the contrary, discovery must be a two-
way street.” (Wardius, supra, 412 U.S. at p. 475.) If Wardius applies to evidentiary
issues, which we need not determine, then allowing a defendant to introduce any and all
propensity evidence because the prosecution introduced propensity evidence under
Evidence Code section 1108 is well beyond the “two-way street” alluded to in Wardius.
Most propensity evidence is inadmissible under Evidence Code section 1101, which
applies with equal force to the prosecution as it does to the defense. (People v. Villatoro
(2012) 54 Cal.4th 1152, 1159.) There is no fundamental unfairness is allowing the
prosecution to introduce propensity evidence that fits under a limited statutory exception
while prohibiting the defense from introducing propensity evidence that fits under no
statutory exception.
       Therefore, even assuming without deciding that Wardius applies to evidentiary
issues, the trial court properly excluded evidence that Rodriguez shot at his ex-girlfriend
to establish his propensity for violence.
                                             III
                              Admission of Opinion Evidence
       Over a defense objection, the trial court allowed Rodriguez’s ex-wife to give her
opinion that Rodriguez did not murder Jessica. On appeal, defendant contends the trial
court erred prejudicially by admitting this evidence. We conclude that, even assuming
without deciding that the trial court erred by admitting the opinion evidence, there was no
prejudice.

                                             12
          Rodriguez’s ex-wife, Linda Jonas, testified that she and Rodriguez lived together
in 1996. She testified that Rodriguez was with her the weekend of the murder unless he
left the residence while she was asleep. She took Motrin for knee problems, which
caused her to sleep lightly instead of heavily, and the only way out of the residence was
through the door next to her bedroom window. She could hear squeaking of the wood on
the stairway from her bedroom if someone left through the front door, and she did not
remember hearing it that weekend.
          The prosecutor asked Jonas whether she remembered telling detectives that she
had no doubt that Rodriguez was not involved in Jessica’s murder. The defense objected
based on speculation. The court responded that it was actually lay opinion and overruled
the objection. Jonas responded affirmatively. Asked whether she told the detectives why
she felt sure, she testified: “It was just a feeling that I had, and because he had been with
me and my children the whole time that I can remember.” She said that part of the reason
for her feeling was that she did not hear the squeaking wood.
          Defendant asserts this was inadmissible lay opinion testimony. We need not
consider that question because admission of the evidence was not prejudicial.
          Improper admission of lay opinion evidence is a state law error subject to the
Watson test. (People v. DeHoyos (2013) 57 Cal.4th 79, 131; People v. Watson (1956) 46
Cal.2d 818, 836.) That test asks whether it is reasonably probable the defendant would
have obtained a more favorable verdict if the improper evidence had not been admitted.
(Ibid.)
          Creatively, defendant contends that admission of Jonas’s lay opinion amounted to
federal constitutional error because, in defendant’s words, the evidence was “so
prejudicially misleading” that it “place[d] so great an onus on the presentation of the
defense as to amount to a violation of [defendant’s] right, emanating from the Sixth and
Fourteenth Amendments, to a meaningful opportunity to present a defense. [Citation.]”



                                               13
Under the federal standard for harmless error, we ask whether the error was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
23-24 [17 L.Ed.2d 705, 710-711].)
        We disagree with defendant that this asserted error in admitting lay opinion rose to
a level of federal constitutional error. If it was error, it was simple evidentiary error
subject to the state standard for prejudice. (People v. Marks (2003) 31 Cal.4th 197, 226-
227.)
        Under either standard, however, the asserted error was harmless. Jonas testified
that Rodriguez was with her the weekend that Jessica was killed and that she would have
heard him leave, if he did leave, because of the squeaky wood of the stairway, unless she
was asleep when he left and she did not hear him. Asked for her opinion about whether
Rodriguez killed Jessica, she said she did not believe he did, basing her opinion, at least
partially, on the fact that she did not hear him leave the residence. The addition of her lay
opinion to the admissible evidence already given did not add much for the jury to
consider. It was simply consistent with the evidence that Jonas did not think Rodriquez
left the residence that weekend. The jury was just as capable as Jonas to draw, or not
draw, that inference. And there is no reason to believe that the jury relied on Jonas’s
opinion in making its determination.
        Even assuming error in admitting the lay opinion evidence, any such error was
harmless.




                                              14
                                 DISPOSITION
     The judgment is affirmed.



                                               NICHOLSON   , Acting P. J.



We concur:



     HULL               , J.




     BUTZ               , J.




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