Opinion
F074875
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. BRYAN CHARLES BLAIR, Defendant and Appellant.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the opinion filed herein on November 4, 2019, be modified as follows:
1. On page 2, the second full paragraph beginning with "The court sentenced defendant to an aggregate term ..." is deleted and the following paragraph inserted in its place:
The court sentenced defendant to an aggregate term of 12 years four months, comprised of the following: four years on count 7, plus four years for the great bodily injury enhancement (§ 12022.7, subd. (e)); four consecutive terms of eight months on each of counts 1, 2, 3, 5, and 8; and one year on count 6. The court also imposed a stayed (§ 654) sentence of three years on count 4.
2. The phrase "as we discussed in section I, ante," is deleted from the sentence spanning pages 17-18 of the opinion.
There is no change in the judgment. Except for the modification set forth, the opinion previously filed remains unchanged.
Appellant's petition for rehearing filed on November 18, 2019, is denied.
POOCHIGIAN, Acting P.J. WE CONCUR: SMITH, J. SNAUFFER, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF165243A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In an information filed September 7, 2016, the Kern County District Attorney charged defendant with the following crimes: criminal threats (counts 1-3; § 422); dissuading a witness (count 4, § 136.1, subd. (b)(1)); violating a restraining order with a credible threat of violence within seven years of a prior conviction (counts 5 & 8, § 273.6, subds. (a) & (d)); stalking in violation of a restraining order (count 6; § 646.9, subd. (b)); and inflicting corporal injury on a person in a dating relationship (count 7; § 273.5, subd. (a)) with a great bodily injury enhancement (§ 12022.7, subd. (e)).
All further statutory references are to the Penal Code unless otherwise stated.
After trial, a jury convicted defendant on all counts and found true the great bodily injury enhancement to count 7.
The court sentenced defendant to an aggregate term of 12 years four months, comprised of the following: four years on count 7, plus four years for the great bodily injury enhancement (§ 12022.7, subd. (e)); and four consecutive terms of eight months on each of counts 2, 3, 5, and 8. The court also imposed a stayed (§ 654) sentence of three years on count 4.
FACTS
Kimberly B. dated defendant for about two years, beginning around January 2014. They began living together in Kimberly's apartment about a month after they started dating. Kimberly's dog, Duke, lived with them as well. Later, Kimberly and defendant bought a bulldog puppy named Chase. Later still, they got another dog name S'mores, which they considered to be defendant's daughter's dog.
Kimberly's relationship with defendant was "good" at first but began to go "up and down" around summertime of 2014. However, defendant did not become violent with Kimberly until one night in October 2014 when Kimberly and defendant went out to dinner with defendant's daughter. When they returned home, they found that the bulldog puppy had "gotten into some stuff and was chewing." Defendant began hitting the dog. Kimberly "stepped in" to stop defendant from hitting the dog. Defendant punched Kimberly in the face, knocking her unconscious. When Kimberly regained consciousness, she was in significant pain. The pain was "between an eight and a nine" on a 1 to 10 scale, and lasted "for a good 24, 48 hours." Her face was swollen for a week and bruised for weeks after.
Defendant's daughter testified defendant hit Kimberly in the midst of an argument.
The next day, defendant was "very apologetic." The two remained in a relationship, but it was "tense" going forward, according to Kimberly.
In August 2015, defendant threw a cup at Kimberly, cutting her lip. Kimberly decided she was "done" with the relationship and needed to "figure out a way to end it amicably." Kimberly was concerned with how to end the relationship because she wanted to maintain a relationship with defendant's daughter. In the meantime, defendant and Kimberly continued to live in the same house but "didn't really talk."
Kimberly testified:
"I would tell him, when I tried to bring up to him that I was done, I didn't want anymore, he would be apologetic ... telling me ... how much he cared for me, and he wanted to be with me, and how he was just really stressed out. And that's why he was acting the way that he was. And that he promised that he would get better and - and all of that. It was always that."
Over time, defendant became more "disgruntled." Kimberly became scared and, in December 2015, sought a protective order in court.
One day, in December 2015, shortly before Kimberly filled out the paperwork for the protective order, defendant threatened to kill Kimberly's dog if she left him. Later that day, Kimberly and defendant's daughter went on an outing together. When they returned home, they discovered that the three dogs living at the home - Duke, Chase, and S'mores - had been let out of the yard.
Kimberly understood defendant to be referring to Duke.
Duke and Chase were eventually found down the street and returned home. Both of their collars had been removed and were inside the house. A combination lock on a gate that opens to the front yard was still on the gate with no indication of being unlocked.
Kimberly put Duke's collar back on him. She did not notice anything unusual.
The third dog, S'mores, was nowhere to be seen, so Kimberly and defendant's daughter walked the neighborhood to find it. When they returned, defendant said to Kimberly, "Well, you better go check your dog; because he's got stuff running down his face." Kimberly observed blood running between Duke's eyes and on his back. Duke had puncture wounds on his back and a wound to his head. Kimberly took pictures of the injuries. A veterinarian used sutures to treat the wounds. Kimberly thoroughly inspected the other dog, Chase, and found no injuries. S'mores was never found.
Defendant's daughter also testified about this incident. The ways in which her testimony arguably differs from Kimberly's with respect to certain details are described below in the Discussion section of this opinion.
Kimberly was successful in obtaining a court order requiring defendant to move out. Defendant moved out shortly before Christmas 2015. Kimberly and defendant had no contact in January 2016. Kimberly had a company install surveillance cameras and alarms at her home. She did so to protect her home and her animals from defendant.
In mid-February 2016, defendant sent Kimberly text messages. Kimberly ignored the first couple text messages. However, the text messages "kept coming," so Kimberly made a police report.
Kimberly answered one of the calls from defendant while a police officer was present. Kimberly told defendant there was a restraining order in place and he was not supposed to be contacting her. Defendant said, "I just want to talk to you." Defendant was then arrested. While in jail, defendant again called Kimberly a "couple" times. On February 17, 2016, defendant was convicted of violating a domestic violence court order.
In March 2016, defendant sent Kimberly a text message "through" his daughter. The message was an image of defendant holding a ring with a Bible in the background, with a caption that read: "I'm ready to be the best boyfriend ever." Kimberly did not respond to the message.
A couple days later, defendant sent several more text messages. The messages said "[v]arious things as to why I won't respond to him, that I need to stop acting like a man ... I need to talk to him, those various types of things." Kimberly responded "one time" with a message in April that read: "Do not text me. Your text messages are not wanted." Yet, defendant continued to send text messages. Defendant also left voicemails for Kimberly.
Kimberly read one of the text messages that defendant sent in court: "F, Kim. I will never get into another relationship. Hate me, that's cool. Ignore my daughter, I'm going to f[**]k you up."
Kimberly reported the messages to police. Several pictures were taken of her phone's screen, depicting messages sent from defendant. However, even after Kimberly reported the messages to police, defendant's attempt to contact her continued. "It was phone calls, voice mails, text messages, just nonstop."
Kimberly eventually received a call from an unknown number. When she answered, she heard defendant's voice and hung up. Kimberly then began receiving messages from that number that were "similar in theme" to the messages she had been previously receiving from defendant.
Events of April 7-8, 2016
On April 7, 2016, Kimberly's surveillance camera showed defendant coming to her home during the day, walking up to the front door, and knocking. The surveillance footage showed a green truck parked in Kimberly's driveway. Kimberly knew defendant "had access to" the green truck.
Defendant began peeking through the windows of Kimberly's home. Kimberly was scared and did not answer her door. Kimberly contacted police. Defendant left, but later returned. He began knocking on the door and pounding, saying he wanted to talk with Kimberly. Kimberly went into her bedroom, locked the door, and called police. Eventually, defendant left again. Kimberly later left for work.
A police officer came to Kimberly's place of work to get her statement. During that time, she was continuing to get phone calls and voice mails. While Kimberly was still at work, defendant left the following voicemails.
"Hey! I hope you don't mind that, when you come home in the morning I'll be sleeping on your, on your, um patio (unintelligible). For damn sure dude. Hey, I'm in this f[*****]g' mess. It is what it is. Umm. Hey, you know what you did. Mm. So if you can live with that, if you can't, you call the police. Hey. At least I'll have a place to go. But I'm not gonna out of town. I'll love the girl and it's not gonna happen dude. I know who I care for. Myself. And that's f[**]kin' it. But ya, you're gonna come home and I'm gonna be at your house so call me. You know what the f[**]k it is what it is, because (unintelligible). So f[**]k dude. You are a f[**]kin, I should f[**]kin' kill you. I really should just f[**]kin' just pry you down. Am I really in this position? With a f[**]kin' hot body (laughing) and a small dick. Am I really in this position? Wow. Wow. Dude, Kim. I need to f[**]king wake up dude. You're f[**]king crazy. You are a f[**]king (unintelligible). Well anyways, I'll be at your house so. I'm not going out of town, it's not gonna f[**]kin' happen. I can't get your f[**]kin" little, little p[***]y out of my f[**]kin' mind. Well, you f[**]kin' stupid bitch. I'm broke down like f[**]kin' big p[*****]s, which you don't have. Ah. My goodness, ya. That f[**]ks with me. Even though she's a teacher, but it is what it is and (unintelligible) you up, naw (unintelligible) really why not be so f[**]king good? Why am I staying in town when I have these opportunities to get the -? You know what, I'm out. Exact words. What the f[**]k is the matter with me, dude? Wake the f[**]k up, Bryan."
The parties stipulated this voicemail was left at 9:57 p.m. on Thursday.
Approximately one and a half hours later, defendant left the following voicemail:
"Hello? 'Cause I'm in our living room. It is what it is dude. Just accept it. Dude. Dude. (Background noise) Just, dude, you're not gonna do any better than me. Seriously wake the f[**]k up. Are you serious? So keep havin' dinner with a f[**]kin' 65 year old. You can't. You know you like my c[**]k and you know what I gotta do to satisfy your p[**]s and get it done. (Unintelligible) Seriously, if you come home tomorrow and if you call the cops. Ya. I'm sure I'll probably get a f[**]kin' year, two years. But when I get out you know I'm gonna have to kill you. That's for damn sure. Ya. Move to f[**]kin' Oklahoma. Move anywhere. You get me f[**]kin' get caught up for you f[**]kin' clean this f[**]kin' mess (unintelligible) Ya, Kim. I hate to say this but I will do what I have to do.
It's that f[**]ked up. But it is. I already got fourteen days in jail. I lost a lot. Hey. Hey you wanna play games? We can play games. I'd usually f[**]kin' hop in your backyard and stabbed the f[**]kin' dogs cuz that's what you think that I'm a f[**]in dog beater. You know what, Kim? You got my f[**]kin' family played. You got [my daughter] played and hey I'm not talkin' to [my daughter]."
The parties stipulated this voicemail was left at 11:33 p.m. on Thursday.
After receiving this voicemail, Kimberly checked her cameras remotely. The camera in her home showed no signs he was inside.
About a half hour later, defendant left the following voicemail:
"When you get home, I'm gonna show up and my truck is gonna be in the driveway. And that's either gonna be (unintelligible) the girl I fell in love with or your gonna get me the year (unintelligible) prison. I never ever wanna go to prison [...] but once I get out, I will kill you. Either here in Bakersfield or Oklahoma and that's just plain and simple. Yeah, I said that on the phone, but, dude, I should kill your situation because I care for you with my - with my c[**]k and my body, I should be playing the field, but, dude, I gotta be attracted to ah - (unintelligible) you suck. I f[**]kin' hate you you f[**]kin'. I will see you when you get home. Alright I love you. Bye."
When she got off work later that morning, Kimberly checked her cameras. Kimberly saw the same green truck that had been in her driveway on the day prior was again in her driveway. Kimberly contacted the police. She watched the surveillance footage remotely until she saw the police arrive and arrest defendant.
Kimberly received "a couple" calls from the Kern County Jail after defendant's arrest.
Defendant's Testimony
Defendant testified at trial and acknowledged the following convictions: violating a restraining order in 2016, petty theft in 2011, misdemeanor cashing a check with insufficient funds in 2009, and inflicting injury on a spouse in 2006. Defendant testified the 2006 incident involved the mother of his child and that he broke through a window of his home during the incident.
Defendant testified he remembered the morning of the December 2015 incident. Defendant was throwing out a pizza box when the dogs saw a cat and "got out" through a garage door. Defendant looked for the dogs but could not catch up to them.
Defendant testified that, as far as he knew, his relationship with Kimberly was "awesome" prior to December 2015.
Defendant said he would never intentionally let the dogs out. Defendant also denied threatening or actually harming the dogs
Defendant saw that Duke had been injured but did not see how the injury occurred. However, Kimberly believed defendant had harmed the dogs. When asked what Kimberly said to defendant, he testified: "You've got to get out, blah, blah, blah, and - crazy, you know."
Kimberly got Duke before her relationship with defendant began. However, over time, defendant came to consider Duke his dog as well.
Later that day, sheriff's deputies came to the door and executed a "kick-out order." They told defendant he had 10 minutes to leave the house. Defendant was "shocked."
Defendant said he had not remembered the October 2014 incident Kimberly testified about until he heard her describe it in court. Defendant acknowledged that the puppy had "tore up" some of his daughter's belongings. However, defendant testified he has never punched Kimberly.
Defendant also denied ever throwing a cup at Kimberly.
Defendant admitted he violated the restraining order by contacting Kimberly between February 14, 2016 and March 27, 2016. In defendant's view, they were working on their relationship.
Around March 2016, defendant began drinking alcohol heavily. Defendant testified that he was not sober when he sent text messages to Kimberly on April 7, 2016. Defendant also testified that he never remembered Kimberly telling him that she did not want to see him or have contact with him.
Defendant also admitted he went to Kimberly's house on the afternoon of April 7th, as depicted in the surveillance video. However, he claimed Kimberly called him and asked him to bring her a Rockstar drink and to pick up his dog. Defendant also claimed he had a conversation with Kimberly at her house that day and gave her flowers.
Defendant said that when he heard his voicemails played in court, he was "shocked" and that they were "completely out of character." Defendant testified he did not intend to threaten Kimberly to make her afraid, nor did he intend to harm her that day. Defendant said he had been drinking "[a] lot" and did not remember everything that happened on April 7th and April 8th.
Defendant admitted to calling Kimberly from jail, but claimed he was still intoxicated at the time. Later, defendant testified he "tried to call her the first couple days I was in jail." (Italics added.)
DISCUSSION
I. Evidence Concerning Injury to Dogs
Defendant contends the court prejudicially erred in admitting evidence he injured Kimberly's dog, Duke.
A. Background
Before trial, defendant filed a motion to exclude "any reference to or allegation that the Defendant harmed the alleged victim's dog as this uncharged allegation will serve to unduly prejudice the jury and is without foundation." Conversely, the prosecution filed a pretrial request to use "acts of violence know[n] to the victim, Kimberly [], to show their effect on her knowledge as to why she believed the defendant's threats were credible and that he was capable of carrying out the threats."
At a pretrial hearing, defense counsel argued (1) that there is insufficient evidence defendant is the one who hurt the dog, and (2) that the probative value was minimal. The prosecutor argued that since defendant threatened the dogs on one of his phone calls to Kimberly, it is relevant to show that her fear was based not only on his violence against her, but also against the dogs. The prosecutor also argued that defendant was also charged with stalking, which includes not just verbal threats but also "implied threats through someone's behavior." And defendant's violence towards the dogs goes to the extent of his harassment of Kimberly.
The court declined to exclude the evidence concerning the injury to the dog.
B. Law
Evidence of a person's character is inadmissible when offered to prove his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) However, evidence a person committed a crime or other act is admissible when relevant to prove some fact other than propensity. (Evid. Code, § 1101, subd.(b).) Additionally, Evidence Code section 1101 does not affect the admissibility of impeachment evidence. (Evid. Code, § 1101, subd. (c).) Finally, with certain exceptions, evidence defendant has committed other offenses "involving" domestic violence is relevant to prove his propensity to commit acts of domestic violence. (See Evid. Code, § 1109, subd. (a)(1).) However, even if evidence is not rendered inadmissible by operation of Evidence Code section 1109, it must still satisfy the requirements of Evidence Code section 352.
Offenses "involving" domestic violence is a broader concept than the specific offense of domestic violence. (See People v. Megown (2018) 28 Cal.App.5th 157, 165-166.)
Evidence Code section 352 grants trial courts the discretion to 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." (Evid. Code, § 352.)
Defendant's assertions of evidentiary error in this case are reviewed for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437.)
Improper admission of evidence under Evidence Code section 352 may be harmless if there is overwhelming evidence of defendant's guilt. (See, e.g., People v. Doolin, supra, 45 Cal.4th at p. 439.)
C. Analysis
Defendant first argues the evidence he harmed Duke had little probative value because there was insufficient evidence he committed the prior acts alleged. To support his claim, defendant notes that Kimberly's account of the circumstances surrounding Duke's injuries differs in some ways from defendant's daughter's account:
? Kimberly said she and defendant's daughter had left the house in the early morning. Defendant's daughter said they left "[m]aybe around 12:00" noon.
? Kimberly testified she and defendant's daughter had been out of the house for about two hours before returning. Defendant's daughter testified they had been gone for "[m]aybe 45 minutes, I'm not sure."
? Defendant's daughter testified that when she and Kimberly returned to the house, they saw Chase and Duke "a few houses down." They called the dogs, but they did not come so they grabbed the dogs by their "skin." In contrast, Kimberly testified that she called to the dogs from the driveway and they came.
? Kimberly testified that defendant shrugged his shoulders and said the dogs "just got out." Defendant's daughter said defendant claimed the dogs "had just run out" the garage door as he was getting something.
? Defendant's daughter testified that she and Kimberly then left to get food for about 20 minutes before returning home. Defendant's daughter did not remember how they were alerted to the fact that Duke had been injured. In contrast, Kimberly testified that she and defendant's daughter had left to look for S'mores. Kimberly also testified that defendant had alerted them to Duke's injury, saying, "Well, you better go check your dog; because he's got stuff running down his face."
We do not find defendant's citations to the purported discrepancies compelling. Some of the cited portions of testimony are not contradictory at all. The majority of the discrepancies are irrelevant, like when the two left that morning, or how long they had been gone. And the two accounts do not conflict on the material aspects of the story. The most salient aspects of Kimberly's account were not directly contradicted by defendant's daughter.
For example, Kimberly said defendant told her to check her dog, while defendant's daughter testified she did not remember how they came to know Duke was injured.
For example, defendant's daughter did not contradict Kimberly on the fact that they left for some period of time and returned to defendant in the home with a now-injured Duke.
Certainly, the jury was free to consider the fact that defendant denied hurting the dog and that certain details of Kimberly's account conflicted with defendant's daughter's account. But that is not grounds for excluding the evidence altogether. Evidence need not "conclusively prove[]" a fact to be admissible. (People v. Peggese (1980) 102 Cal.App.3d 415, 420.) " '[To] be admissible, evidence need not absolutely confirm anything. It is axiomatic that its weight is for the jury.' [Citation.]" (Ibid.)
Even assuming the inconsistencies between the two accounts and defendant's denial marginally decrease the probative value of the evidence, we still would not say it was substantially outweighed by the danger of undue prejudice. Defendant was charged with making criminal threats, an element of which is that the threat causes the victim to "reasonably ... be in sustained fear for ... her own safety ...." (§ 422, subd. (a).) "The element has both an objective and subjective component; [the victim's] fear must have been reasonable, and it must have been real. [Citation.]" (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) Evidence that defendant threatened to kill Kimberly's dog - and that very shortly thereafter Kimberly's dog was injured under highly suspicious circumstances that implicate defendant - is relevant to show why Kimberly's fear of subsequent threats was reasonable. We therefore disagree with defendant's assertion that the connection between the uncharged offense (i.e., injuring Duke) and the ultimate facts in dispute as to the charged offenses is unclear. To the contrary, the circumstances of the alleged uncharged offense were quite probative on the issue of Kimberly's fear of subsequent threats.
We also find unpersuasive defendant's argument that the injury to Duke occurred outside the "time frame" of the charged offenses. When someone is threatened with physical violence, the reasonableness of their fear response can be informed by events that occurred several months prior.
Defendant also argues that the evidence concerning Duke's injuries was merely cumulative to other evidence that his threats were credible. First, he points to the October 2014 incident where he struck Kimberly causing her to lose consciousness; and the August 2015 incident where he threw a cup at Kimberly. But those incidents are quite different in that they were not the consummation (or attempted consummation) of a specific threat. There is little evidence defendant threatened Kimberly with violence prior to the incidents. So, while the two incidents were relevant in other regards, they did not tend to establish the credibility of defendant's threats in the way that the circumstances of Duke's injuries do.
Neither is the evidence of Duke's injuries cumulative to the evidence of defendant's 2006 conviction for inflicting corporal injury on the mother of his child. There is little evidence defendant made a specific threat of violence against his child's mother before injuring her.
Finally, the evidence of Duke's injuries is not cumulative to evidence he violated a court order in 2016, because there was no evidence that prior offense involved violence.
Certainly, evidence defendant injured an animal is damaging. But much of that "damage" to defendant's case is warranted. If the jury concluded defendant does in fact carry out his violent threats on living things, that fact should be damaging to defendant's case because it bolsters the reasonableness of Kimberly's subsequent fear. " 'In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] The prejudice that [Evidence Code] section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.]' " (People v. Doolin, supra, 45 Cal.4th at p. 439.)
While dogs are sympathetic victims, so are human beings. We remain unpersuaded that the jury convicted defendant of his crimes against Kimberly merely to punish him for hurting a dog.
Accordingly, we conclude the court did not abuse its discretion under Evidence Code section 352, nor did it violate defendant's right to a fair trial.
II. Defendant has Not Shown That Trial Court Prejudicially Erred in Failing to Ensure Instructions Limited Jury's Use of Propensity Evidence
Prior to the trial court's instructions to the jury, the court and counsel discussed instructional issues. The court and counsel had instruction packets with them as they went through the various planned instructions before arriving at CALCRIM No. 852, concerning propensity evidence. The court asked, "Any problems with 852?" Defense counsel responded, "No, Your Honor."
The court subsequently instructed the jury with CALCRIM No. 852, as follows:
"The People presented evidence that the defendant committed domestic violence that was not charged in this case. Domestic violence means abuse committed against an adult who is a cohabitant or a person who dated or is dating the defendant.
"Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
"The term cohabitants means two unrelated persons living together for substantial period of time resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to: one, sexual relations between the parties
while sharing the same residence; two, sharing of income or expenses; three, joint use or ownership of property; four, the parties holding themselves out as domestic partners; five, the parties registering as domestic partners; six, the continuing - I'm sorry, six, the continuity of the relationship; and seven, the length of the relationship.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit domestic violence as charged here.
"If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence.
"It is not sufficient by itself to prove that the defendant is guilty of the offenses charged in this case. The People must still prove each charge and allegation beyond a reasonable doubt. Do not consider this evidence for any other purpose, unless specifically referenced in another instruction."
Defendant argues the court should have added language to this instruction or should have given a separate limiting instruction, specifically identifying which uncharged offenses the jury could use to make a propensity inference, and which it could not. Because defense counsel failed to make these requests to the trial court, defendant claims his counsel was ineffective.
Defendant notes that only two prior incidents were admitted as propensity evidence: his 2006 conviction for inflicting corporal injury on his spouse and the mother of his child; and his 2016 conviction for violating a domestic violence court order. However, these were not the only "uncharged offenses" for which evidence was adduced at trial. There was also evidence of defendant's prior convictions for petty theft, cashing a check with insufficient funds, and misdemeanor battery; his prior arrest for being intoxicated in public; his alleged infliction of injury on the dog, Duke; and the alleged incident where he threw a cup at Kimberly. Therefore, defendant argues, the court should have ensured the jury knew which uncharged offenses were subject to limited use. Otherwise, the jury could have made propensity inferences based on evidence admitted for non-propensity purposes.
The Attorney General argues any ineffective assistance was not prejudicial. We agree.
The Attorney General also argues defendant forfeited his contention that CALCRIM No. 852 should have been modified by failing to object or ask for a modification of the instruction. We agree.
When a defendant fails to object to the court's proposed wording of an instruction, that claim of error is forfeited. (People v. Bolin (1998) 18 Cal.4th 297, 326; see also People v. Bittaker (1989) 48 Cal.3d 1046, 1098, disapproved on another point by People v. Rices (2017) 4 Cal.5th 49, 76.) Here, defense counsel not only failed to object to the court's proposed wording of CALCRIM No. 852, but affirmatively denied any "problems" with the instruction as worded. Therefore, this claim of instructional error is forfeited.
We will proceed to address defendant's contention that counsel was ineffective for failing to object or request additional limiting instructions.
A. Prejudice
Establishing prejudice on a claim of ineffective assistance of counsel requires a showing that there is a reasonable probability the outcome would have been different without counsel's errors. (In re Valdez (2010) 49 Cal.4th 715, 729.) When overwhelming evidence negates prejudice from the underlying failure to object, a claim of ineffective assistance fails. (See, e.g., People v. Denard (2015) 242 Cal.App.4th 1012, 1020-1021 & fn. 2.)
Inadequately instructing a jury on how to use propensity evidence is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818. (See e.g., People v. Falsetta (1999) 21 Cal.4th 903, 924-925.) Accordingly, such errors may be deemed harmless where the other evidence against defendant is overwhelming. (See e.g., ibid.)
"A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 670; accord In re Fields (1990) 51 Cal.3d 1063, 1079.)
Here, the evidence against defendant was indeed overwhelming. " 'Without cataloguing everything pointing toward [the defendant's] guilt, we will note some of the more obvious pieces of evidence[.]" (People v. Falsetta, supra, 21 Cal.4th at p. 924.) The three criminal threats defendant was alleged to have committed were made on recorded voicemails played for the jury. In one, defendant clearly says, "I will kill you." In another, he says, "I should f[**]kin' kill you. I really should just f[**]kin' just pry you down." In another, he says, "I hate to say this but I will do what I have to do. It's that f[**]ked up. But it is. I already got fourteen days in jail." Unsurprisingly, defendant concedes on appeal that "in regard to most of the counts, [defendant] admitted doing many of the acts, and [Kimberly's] testimony was corroborated in many respects."
The Attorney General argues that statements made by the jury during deliberations suggest they were wrestling with the verdict on count 7, rather than simply accepting a propensity inference. Because we find harmlessness on other grounds, we do not address this contention.
Defendant's daughter plainly testified that he "punched" Kimberly, knocking her unconscious.
1. Defendant Fails to Persuade that Evidence Against Him was Not Overwhelming
Defendant's counterarguments do not persuade us the evidence was less than overwhelming.
Defendant argues that count 7, based on the October 2014 incident in which he allegedly hit Kimberly rendering her unconscious, was a "close" call. He points to the purported discrepancies between the accounts of his daughter and Kimberly. However, as we discussed in section I, ante, we find these purported discrepancies to be largely immaterial. The fact remains that defendant's daughter testified that he hit Kimberly and rendered her unconscious. Kimberly also testified she was rendered unconscious. These material aspects of their testimony were contradicted only by defendant's self-serving testimony, which we (and the jury, apparently) have found thoroughly unpersuasive.
Defendant also posits that the issue of whether he acted with the requisite "intent" in committing the actus rei of the other counts was a "close one." We disagree. Just because a speaker is intoxicated does not mean they do not intend for their statements to be taken as a threat. And here, there is ample reason to conclude defendant did intend his statements as a threat even though he was intoxicated. First, defendant makes several clear threats of violence within hours of one another. This was not a single, stray comment that might be explained away as incoherent ramblings of a drunk. In one voicemail, defendant said: "I never ever wanna go to prison [...] but once I get out, I will kill you. Either here in Bakersfield or Oklahoma and that's just plain and simple. Yeah, I said that on the phone...." Defendant expressed a present understanding of the potential consequences of his conduct (i.e., prison), a clear threat of violence that involves elements of planning (i.e., "Either here in Bakersfield or Oklahoma"), and a present awareness of the fact that he made the statement on a voicemail (i.e., "Yeah, I said that on the phone"). His other threats were made within hours of this one. We do not find defendant's voluntary intoxication defense to be a "close call."
Nor does defendant persuade us that his voluntary intoxication defense was a "close call" with respect to the stalking, restraining order violation, or dissuading a witness counts.
Because we conclude the evidence against defendant was overwhelming, we find no prejudicial error or ineffective assistance.
III. Trial Court Did not Violate Section 654 in Sentencing Defendant
Section 654 prohibits double punishment of an act or omission. (§ 654, subd. (a).) Nothing in its language suggests an " 'intent or objective' " test. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) However, the Supreme Court has " 'engrafted' " an intent or objective test onto section 654. (People v. Latimer, at p. 1211.) Under that test, " '[I]f all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (Id. at p. 1208.)
However, if a defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation ... even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.]' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143, italics added.) Such objectives must be truly independent of one another to satisfy section 654. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.]" (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. [Citation.] " 'A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Defendant contends the court should have stayed several aspects of his sentence pursuant to section 654. He argues that his criminal threats and violation of a restraining order (count 5) were part of an indivisible course of conduct. Similarly, he contends that the stalking and violation of a restraining order (count 8) violations were part of an indivisible course of conduct. Finally, he asserts that his stalking and criminal threat crimes were part of an indivisible course of conduct.
Defendant argues his "single" objective in all three sets of crimes was: "the objective to get [Kimberly] to resume their relationship and the intent of frightening [Kimberly] into doing so." But this defines the relevant "objective" at too high a level of abstraction. "[A] 'broad and amorphous' view of the single 'intent' or 'objective' needed to trigger [section 654] would impermissibly 'reward the defendant who has the greater criminal ambition with a lesser punishment.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335-336.)
Defendant's conduct between February 18, 2016, and April 7, 2016 - the basis for his stalking conviction - evinced several objectives. Certainly, some of the text messages showed that defendant intended to convince or pressure Kimberly into dating him again. In another text message, however, defendant threatened to "f[**]k [] up" Kimberly if she ignored defendant's daughter. Consequently, there was substantial evidence that defendant's stalking was not done solely with the single objective of resuming a dating relationship with Kimberly.
With respect to the threats made in the evening of April 7th and early morning hours of April 8th, one reasonable inference is that they were not made solely with an intent to pressure or threaten Kimberly into a dating relationship, but also (or instead) to simply scare Kimberly out of vengeance. In the 9:57 p.m. voicemail, defendant says:
"Hey, you know what you did. Mm. So if you can live with that, if you can't, you call the police. Hey. At least I'll have a place to go. But I'm not gonna out of town. I'll love the girl and it's not gonna happen dude. I know who I care for. Myself. And that's f[***]in' it. But ya, you're gonna come home and I'm gonna be at your house so call me. You know what the f[**] it is what it is, because (unintelligible). So f[**]k dude. You are a f[**]kin, I should f[**]kin' kill you. I really should just f[**]kin' just pry you down." (Italics added.)
A fact-finder could reasonably conclude from this language that defendant threatened out of anger and vengeance, rather than an attempt at coercing Kimberly back into a relationship.
There was also evidence defendant brought flowers and a drink for Kimberly on his initial trip to her home on April 7th (count 8). One reasonable inference is that defendant sought to "charm" Kimberly into dating him again. However, it is also reasonable to infer that when defendant returned later and parked outside her home (count 5), after having left several explicitly threatening voicemails, his objective was to frighten Kimberly.
Because it is reasonable to infer from substantial evidence that defendant harbored multiple (even if simultaneous) objectives in committing the crimes charged, we reject his claim under section 654.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
SNAUFFER, J.