Opinion
A155550
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID LACEY DOUGLAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-170790-0)
Defendant David Lacey Douglas appeals a judgment entered upon a jury verdict finding him guilty of misdemeanor domestic battery (Pen. Code, § 242) and felony assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). He contends the trial court abused its discretion in admitting evidence of a prior act of domestic violence and excluding evidence of the victim's statement against penal interest. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Case
Around 6:00 on the morning of June 12, 2016, defendant's neighbor, Mr. Meza, heard a man yelling, "Come over here," outside his house. Meza looked outside and saw defendant grabbing a woman by the hair as she lay sideways on the ground. He saw defendant let her go, and the woman went to a car and got inside it. Defendant yelled at the woman not to leave and got inside the car with her, calling the woman "[b]itch." Defendant began punching the woman with his closed fist, striking her in the face three times, and tried to get her out of the car. He told her not to drive because they had been drinking and she was in no condition to drive, and to give him the keys. The woman defended herself by pushing him away and hitting at him with her open hand on the chest and arms. She appeared to be under the influence of alcohol, swaying as she moved.
Defendant and the woman got out of the car, and defendant grabbed the woman by the neck and started strangling her from behind, his arm extended across her neck, and his other hand on the top of her head. The woman appeared to be losing consciousness. Meza put on some clothes and went outside to help the woman, but by the time he emerged no one was there.
Officer Cory Brady of the Pittsburg Police Department arrived at defendant's home in response to a report of the incident. Defendant answered the door; he told Brady there was no woman inside the house, and said, " 'She probably jumped out the back window and took an Uber. She's done that before.' "
Brady and other officers looked through the house and found a woman, identified as Jackie Baldinger, in the closet of a back bedroom under a large pile of clothing. She was wearing only her underclothes. She had blood on her nose, her face was swollen, and she had bruises to her cheek and "right shoulder to the neck area" and abrasions to her elbows and feet. Her hair was "matted," or "stuck together towards her neck," which appeared consistent with having been choked from behind with an arm. An officer who took pictures of Baldinger's injuries testified that she appeared frightened and apprehensive, she spoke in a low tone, and she was crying. The officer thought she might be under the influence of alcohol.
Defendant had a cut or pain at the back of his head, and the middle knuckle of his left hand was slightly swollen. He had a cut above his right eye that required stitches, which defendant told an officer he had received during a professional fight the previous evening.
Defendant was arrested and taken to the police station. After being advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he told Brady that he had been in a boxing match in San Francisco the previous evening, and that afterward Baldinger "went berserk" because she thought he had been looking at other girls. They argued all the way home. When they got to his home, she threw his clothes and "went crazy." As they fought, Baldinger hit him about eight times in the face and back of his head, and kicked his face.
Defendant and Baldinger spoke on the telephone several times while defendant was in jail, and the calls were recorded. The following exchanges took place during the calls: After Baldinger said her tongue was swollen, her tooth was chipped, she had two black eyes, and she could not hear out of her left ear, defendant asked if she had gone to the hospital and whether pictures had been taken. When Baldinger said she had gone to the hospital, defendant asked if they had taken pictures of "all that," then said, "Oh, oh. They didn't, you didn't tell . . . Baby. Okay. Fuck this is fucked. That wasn't even me, that was the adrenaline." Baldinger said she did not know if she would be able to hear again, and defendant answered, "Don't talk like that over the phone." At another point, defendant told Baldinger, "that wasn't me . . . . I was pumped up full." Baldinger later told defendant he had almost killed her, and defendant told her to stop saying that on the phone because the call was being recorded. He then said, "I'm sorry. I'm sorry. I fucked up. Don't wanna lose you. Fucked up. You're all I got. You all I want." In a different exchange, Baldinger confronted defendant for his behavior, and he said, "I had adrenaline in me," and that he was "not trying any excuses, I was fucked up," and that "[i]t wasn't me."
Inspector Rickey Rivera of the Contra Costa County District Attorney's Office was the prosecution's expert on strangulation and domestic violence. He testified that 50 percent of strangulation victims have no visible injuries, and another 35 percent would have injuries too minimal to be photographed. A person could be seriously injured or killed by strangulation without incurring visible marks on the neck. Strangulation victims may urinate or defecate on themselves, and might change clothes afterward; thus, the fact that a victim had changed clothes could be significant in determining whether strangulation had taken place. Victims often scratch at the hands, arms, and face of the assailant in the struggle. It takes about five to ten seconds for a person to become unconscious from strangulation.
At the time of the incident in question here, defendant was subject to a domestic violence protective order issued five months earlier, on January 6, 2016, requiring him to stay at least 300 yards from Baldinger. By the time of trial, he had been convicted of domestic battery against Baldinger based on the January incident that led to the protective order. (Pen. Code, § 243, subd. (e)(1).)
The parties stipulated that Baldinger was deceased at the time of trial and that defendant did not cause her death.
II. The Defense Case
The defense presented evidence that Baldinger was physically aggressive toward defendant on the night in question and that he did not strike or strangle her.
Specifically, defendant testified as follows: Defendant had participated in a boxing match, after which he and Baldinger, with whom he was in a romantic relationship, went to a bar with defendant's friend Johnny Dominguez and Dominguez's girlfriend, Vanessa. There, Baldinger drank heavily; she became angry because she thought defendant was looking at other women, and she "ran off." At about 1:30 a.m., the others left the bar and went to Vanessa's house. Baldinger arrived and threw a large rock at defendant, missing him, when he went outside. Defendant got into the back seat of another friend's car, and Baldinger got into the car as well, climbed over him, kicked him in the face, and hit him, as he "just took it." They went to defendant's house; during the drive, Baldinger "ripped her clothes off and went frantically crazy," before putting her clothes back on. When they arrived at the house, Baldinger ran around the street, "flailing and calling [him] all sorts of names." Baldinger got into her car and turned the engine on; defendant did not want her to drive because she was drunk, and he tried to get the keys. Baldinger hit him, and when he obtained the keys and got out of the car, she crawled to the ground and grabbed at his legs; he hugged her and talked to her to stop her from taking the keys. After Baldinger calmed down, they went inside the house and undressed for bed. Defendant suffered bruises, cuts, and lacerations in the attack, and had blood coming from the side of his face.
On cross-examination, defendant denied that he struck Baldinger with a closed fist or strangled her that night. He testified the cut above his eye occurred during the boxing match, and the cut was reopened when Baldinger kicked him. He said Meza, the witness who testified he saw defendant strangling Baldinger, had "issues" with defendant's brother and did not like the family.
Defendant's friend Dominguez testified that Baldinger was drinking and appeared under the influence of alcohol that night; that at the bar she was angry, pulled defendant's hair, hit him, stabbed him with a fork, and threw a candle at him; that when Baldinger joined the others at Vanessa's house, Baldinger yelled and screamed at defendant outside the house; and that he saw Baldinger strike defendant multiple times and kick him. He did not see defendant defend himself.
Vanessa's mother testified that in the early hours of June 12, 2016, defendant was in her home with Vanessa and Vanessa's boyfriend. When Vanessa's mother was in her bedroom sometime after 3:00 in the morning, she heard crying, screaming, and slapping outside her home. She went outside and saw a woman in a vehicle crying and continuously slapping a man sitting in the back seat of the vehicle in the face. The man "just sat there and took it," not lifting a hand. The driver of the vehicle drove away with the two passengers still inside, the woman still slapping the man. At trial, she identified a picture of Baldinger as resembling the woman and a picture of defendant as resembling the man.
Expert testimony showed that a blood sample taken from Baldinger at 10:00 a.m. on the day of the incident had a blood-alcohol content of 0.06 percent. Her blood-alcohol content at 4:00 a.m. would have been about 0.15 percent, nearly twice the legal limit for driving, 0.135 percent at 5:00 a.m., and 0.12 percent at 6:00 a.m. A person under the influence of alcohol could become aggressive and angry.
III. The Verdicts and Sentencing
Defendant was charged with two felonies, in count 1 with injuring a person with whom he had a past or present dating relationship (Pen. Code, § 273.5, subd. (a)), and in count 2 with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). As to count 1, the jury found defendant not guilty of violating Penal Code section 273.5, subdivision (a), but guilty of the lesser included offense of misdemeanor battery against a person with a dating relationship (Pen. Code, §242). The jury found him guilty of count 2. The trial court placed defendant on probation for three years, one of those years to be served in county jail. Sentence on count 1 was stayed pursuant to Penal Code section 654.
DISCUSSION
I. Prior Acts of Domestic Violence
A. Trial Court Proceedings
Before trial, the prosecution moved in limine to admit evidence of several prior acts of domestic abuse under Evidence Code section 1109. One of these acts, which took place on January 1, 2016 and resulted in a conviction under Penal Code section 243, subdivision (e)(1), was against Baldinger. According to the motion, Baldinger told a police officer after the January incident that defendant became angry with her during an argument, that she hit him on the arm, and that he responded by punching her in the face, putting both hands around her neck, and threatening to kill her, causing her to lose consciousness. The trial court allowed the prosecution to introduce the record of defendant's conviction.
All undesignated statutory references are to the Evidence Code.
Defendant was questioned about the incident at trial and acknowledged that at the time of the June 2016 events at issue here, he was subject to a protective order issued in January 2016. When asked if he had ever strangled Baldinger, he said that during the January 2016 incident, he didn't "forcely" strangle her, but that he was "getting her off of [him]," and pushed her away "by her neck" after she hit and choked him. He described his relationship with Baldinger as "toxic," and said that the couple's January 1, 2016 altercation began because Baldinger thought defendant was getting too much attention because he was an athlete, and that during the incident she hit, scratched, and slapped him and pulled his hair while calling him names.
B. Analysis
Defendant contends the trial court should not have admitted evidence of the January 2016 incident.
Section 1109 provides that, with exceptions not at issue here, where a defendant is charged with an offense involving domestic violence, " 'evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.' " Thus, under this provision, as an exception to the general rule against using prior acts to show character or propensity, evidence of prior acts of domestic violence may be used to show a defendant's propensity to commit the charged act of domestic violence. (People v. Johnson (2010) 185 Cal.App.4th 520, 528-529 (Johnson); § 1101.)
Defendant's first challenge is to the constitutionality of section 1109: he argues admission of the January 2016 incident violated his constitutional rights to due process and equal protection by denying him a fair opportunity to defend against the charged crime. As defendant acknowledges, California courts have consistently rejected constitutional challenges to section 1109. (People v. Merchant (2019) 40 Cal.App.5th 1179, 1194; see People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; Johnson, supra, 185 Cal.App.4th at p. 529; see also People v. Falsetta (1999) 21 Cal.4th 903, 910-922 [considering section 1108].) As our colleagues in Division Two have explained, the trial court's retention of power to exclude evidence of prior domestic violence under section 352 "provides 'a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.' " (People v. Brown (2000) 77 Cal.App.4th 1324, 1334 (Brown).) We agree, and reject defendant's constitutional challenge.
Defendant next contends that the evidence should have been excluded under section 352 because it was more prejudicial than probative. In reviewing this contention we bear in mind that the trial court enjoys broad discretion in assessing whether the probative value of evidence is outweighed by concerns of undue prejudice, and we do not disturb the trial court's ruling on appeal unless the court acted in an arbitrary, capricious, or patently absurd manner. (Brown, supra, 77 Cal.App.4th at p. 1337.) "Evidence is not 'unduly prejudicial' under the Evidence Code merely because it strongly implicates a defendant and casts him or her in a bad light, or merely because the defendant contests that evidence and points to allegedly contrary evidence. Instead, undue prejudice is that which 'uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.)
In determining whether the prejudice caused by propensity evidence under section 1109 outweighs its probative value, courts consider such factors as the similarity of the prior incidents to the charged offense, whether the evidence of the prior acts comes from independent sources so as to reduce the danger of fabrication, whether the prior act is more inflammatory or egregious than the current offense, the remoteness in time of the prior act, and the possibility of confusion. (People v. Wang (2020) 46 Cal.App.5th 1055, 1075-1076; Brown, supra, 77 Cal.App.4th at pp. 1337-1338; Johnson, supra, 185 Cal.App.4th at p. 533, citing People v. Ewoldt (1994) 7 Cal.4th 380, 404-405 (Ewoldt).)
On these standards, we find no abuse of discretion. The earlier incident was similar to the current offense, providing a high probative value; the evidence of the earlier conviction was independent of the eyewitness testimony regarding defendant's current offense; and the January 2016 incident was not remote in time. Also, the prior act was no more inflammatory than the charged offense, thus decreasing the possibility of prejudice. The trial court weighed the possibility of undue prejudice, and as a result excluded evidence that in 2011, defendant pointed a shotgun at a different woman in a threatening manner; the court concluded that, although the evidence of the 2011 incident was relevant under section 1109, it was more prejudicial than probative. As to the January 2016 incident against Baldinger, the trial court could reasonably find it was not more prejudicial than probative under section 352.
Defendant also suggests that, because he was not in jail when he committed the charged offense in June 2016, the jury might have believed he had never been incarcerated for the January 2016 act and so sought to punish him for that prior conduct. (See Ewoldt, supra, 7 Cal.4th at p. 405 [jury might have been inclined to punish defendant for uncharged acts that did not result in criminal convictions].) But since the jury knew that defendant suffered a conviction for the prior assault on Baldinger, there is no reasonable basis for this concern.
The trial court did not abuse its discretion by admitting evidence of defendant's prior act of domestic violence against Baldinger.
II. Statement Against Penal Interest
Before trial, defendant moved in limine to admit, as a declaration against penal interest (§ 1230), a statement Baldinger made to the police that defendant did not hit her, but that she instead assaulted him. It appears from the trial court colloquy that Baldinger's statement was recorded on the body camera of one of the police officers who came to the house. The trial court denied the request on the ground Baldinger's statement was unreliable hearsay.
The record does not contain a transcript of the conversation in which Baldinger made this statement, but the reporter's transcript indicates the prosecutor agreed Baldinger made a statement to the effect of "He never hit me, I hit him." --------
Defendant contends Baldinger's statement was admissible. We review the trial court's ruling for abuse of discretion. (People v. Gordon (1990) 50 Cal.3d 1223, 1251 (Gordon).)
As an exception to the rule against hearsay, section 1230 authorizes admission of a statement of an unavailable declarant that "so far subjected [her] to the risk of . . . criminal liability . . . that a reasonable [person] in [her] position would not have made the statement unless [she] believed it to be true." The focus of this exception is "the basic trustworthiness of the declaration." (People v. Frierson (1991) 53 Cal.3d 730, 745.) A party seeking admission of an out-of-court statement under this rule must show not only that the declarant was unavailable—as Baldinger unquestionably was—but that the statement was against her penal interest and that it was "sufficiently reliable to warrant admission despite its hearsay character." (People v. Cudjo (1993) 6 Cal.4th 585, 607; see People v. Duarte (2000) 24 Cal.4th 603, 614 [to satisfy requirements of § 1230, declaration " 'must be clothed with indicia of reliability' "].) In deciding whether the statement meets this standard of trustworthiness, "a trial court 'may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' " (Id. at p. 607.) This inquiry "requires the court to apply to the particular facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion." (Gordon, supra, 50 Cal.3d at p. 1251.)
We find no abuse of that discretion here. Even assuming Baldinger's statement that she assaulted or hit defendant was against her penal interest, it was made in the context of a broader statement—that defendant never hit her—that the trial court could reasonably conclude was untrustworthy, calling into question the statement as a whole. In fact, the trial court made precisely that finding, stating, "The court has to find it trustworthy before I let the jury hear it, and it's not trustworthy if you consider it in the context of her entire statement, which is, He didn't do anything to me, I hit him, all of that makes it untrustworthy."
Baldinger's statement was made to police officers who had just found her hiding under a pile of clothes in a closet, bruised, bloodied, crying, and frightened. In light of the these circumstances, the history of domestic abuse between defendant and Baldinger, and the trial court's discretion to apply its "broad and deep acquaintance with the ways human beings actually conduct themselves" (Gordon, supra, 50 Cal.3d at p. 1251), the court could reasonably conclude Baldinger's statement did not bear sufficient indicia of reliability to be admissible under this exception to the rule against hearsay.
Alternatively, even if the trial court should have admitted the portion of Baldinger's statement in which she said she hit defendant, there was no prejudice. The jury heard ample evidence—including eyewitness testimony from Meza, the prosecution's witness—that Baldinger struck defendant during the incident. Reviewing the court's ruling under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 as we must (see People v. Gallardo (2017) 18 Cal.App.5th 51, 76), we see no reasonable probability the jury would have reached a different result had it also heard that Baldinger admitted to having hit him. Defendant acknowledges that the other, potentially more helpful portion of Baldinger's statement—that defendant did not hit her—could not be admitted under section 1230 because it was not " 'specifically disserving' " of Baldinger's penal interest. (See People v. Duarte, supra, 24 Cal.4th at p. 612.) Thus, any error in the court's evidentiary ruling here was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.