Opinion
A099357.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOHN ELLIS, Defendant and Appellant.
I.
INTRODUCTION
Appellant Edward John Ellis was convicted by jury of first degree residential burglary (Pen. Code, § 459); making terrorist threats ( § 422); and false imprisonment (§ 236). He appeals, contending (1) the court improperly admitted evidence of his prior history of domestic violence against his estranged wife, Nicole Long; (2) the court erred in instructing the jury that his wifes address constituted property; and (3) the court erred in refusing to give a voluntary intoxication instruction. We affirm.
All undesignated statutory references are to the Penal Code.
II.
FACTS AND PROCEDURAL HISTORY
At trial, the prosecutions chief witness was 20-year-old Eric Chavez, the half brother of Nicole Long, who was in the process of divorcing appellant. On August 19, 2001, at about 8:30 p.m., Chavez went to the home of Elizabeth Chavez, his mother, to feed his dog. Chavez noticed that the back gate was open, which was unusual. He also noticed a light on in his mothers bedroom.
Chavez proceeded down the hallway, calling his mothers and sisters names. Appellant stepped out of Elizabeths bedroom carrying her address book. The address book contained the current address for Long, who was keeping her whereabouts secret from appellant. Appellant said, "Caught me. Im a burglar. Im robbing your house." Chavez noticed that the drawers were open in Elizabeths bedroom, there were items on her bed, and her jewelry box was open.
Chavez was fearful because he knew of appellants history of violence, not only against his sister but also against other members of the Chavez family. As of August 19, 2001, Chavez was aware of Longs no-contact order against appellant. Appellant asked Chavez if anyone was with him. Chavez assured him he was alone. Chavez tried to leave through the front door. Appellant got in front of Chavez, grabbed his hand off the doorknob, pushed him away from the door, and shut it. Appellant threatened Chavez, telling him that he was going to "take [his] wind;" "make [him] bleed;" and hurt him, his sisters, brother, and father. Chavez understood that appellant probably intended to kill him.
Appellant pushed Chavez on the couch. Appellant asked Chavez, "Why are you laughing behind my back?," "Why are you letting this go on with your sister?," and told Chavez that he could hurt him. Appellant had one hand in his shorts pocket. Chavez saw his mothers rings fall out of appellants pocket.
Appellant told Chavez that he was going to cut him and went into the kitchen, where Chavez could hear appellant opening the silverware drawers. Chavez testified at trial he decided to take "my chances" and ran out the front door. Appellant followed him out the front door holding a six-inch steak knife. Chavez ran to a neighbors house and called 911.
Sometime after 9:00 p.m., Chavezs mother, Elizabeth, arrived home. She noticed the broken lock on her jewelry box, the damage to the gate, and the damage to her daughters bedroom window. Elizabeth also noticed that the items from the two drawers of her nightstand, including her address books, had been dumped onto her bed. In addition, Elizabeth noticed that two of her gold rings, worth a combined total of about $ 1,000, were missing.
Nicole Long testified at trial that she was married to appellant and they had three children. In 1993, appellant committed an act of domestic violence against her. Long subsequently obtained a no-contact court order, which appellant violated four times. Long was fearful. In 1999, Long moved to another state to protect herself and her children. Long gave only her immediate family her new address. Long did not want appellant to know her whereabouts.
Appellant did not testify at trial. The prosecutions theory was that appellant broke into Elizabeths home in order to find out Longs new address. The defense argument focused on the credibility and reliability of Chavez, the prosecutions chief witness. The defense pointed out discrepancies between Chavezs trial testimony and his report to the police at the time of the crime, which the defense claimed raised a reasonable doubt that Chavezs trial testimony was credible.
On May 16, 2002, the jury found appellant guilty as charged. In a bifurcated proceeding, the court found it true that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b). On June 26, 2001, the trial court sentenced appellant to a total term of seven years eight months in state prison. This appeal followed.
III.
DISCUSSION
A. Prior Acts of Domestic Violence
Appellant contends the trial court erroneously admitted evidence of his prior domestic violence against his estranged wife, Nicole Long, because (1) his prior history of domestic violence was not admissible to show his motive under Evidence Code section 1101, subdivision (b); and (2) the trial court abused its discretion under Evidence Code section 352 by allowing the jury to hear about inflammatory prior acts of domestic violence.
In pretrial proceedings, the prosecutor made a motion to introduce evidence of appellants prior parole violations, which involved violations of the no-contact order and evidence of his July 30, 1993 felony conviction for domestic violence against Long to prove appellants "motive" and "intent" in burglarizing the residence. The prosecutor also sought to introduce this evidence to prove the "fear" element of the section 422 offense. Appellants counsel moved the court to exclude the evidence on the basis that it would prejudice appellant and was irrelevant.
Over appellants objection, the court admitted four of the seven parole violations, and admitted the evidence of appellants July 30, 1993 conviction for violation of section 273.5, willful infliction of corporal injury on a cohabitant. The court ruled the evidence was admissible to establish a motive for the burglary—appellants desire to find out Nicole Longs current address. The evidence was also admissible to demonstrate that Eric Chavez was placed in reasonable fear by appellants threats, based on his knowledge of appellants prior acts of violence.
To establish a violation of section 422, the prosecution must show "(1) that the defendant had the specific intent that his statement would be taken as a threat . . ., and (2) that the victim was in a state of sustained fear. The prosecution must additionally show that the nature of the threat, both on its face and under the circumstances in which it is made, was such as to convey to the victim an immediate prospect of execution of the threat and to render the victims fear reasonable." (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.)
The court stated that it had conducted an Evidence Code section 352 balancing test, and found that the probative value of the evidence outweighed the potential for prejudice. The court also sanitized the parole violations, referring to them as violations of the "court order not to have contact," thereby excluding any reference to appellants parole status.
In accordance with this ruling, Nicole Long testified at trial that appellant had committed an act of domestic violence against her in 1993 and had also violated a no-contact court order four times. Chavez testified that he considered appellant to be a "violent person" based on acts of violence committed against Chavezs sister, father and brother. None of these acts of violence were described for the jury.
On appeal, appellant claims "the evidence was highly prejudicial and it was error and a violation of due process not to exclude it from the trial." The court admitted evidence of prior acts of domestic violence under Evidence Code section 1101, which allows admission of prior bad acts to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (Evid. Code, § 1101, subd. (b) ; People v. Ewoldt (1994) 7 Cal.4th 380, 404, 867 P.2d 757.) Admission of evidence of other crimes can be highly inflammatory, so its admissibility must be carefully scrutinized for prejudice under Evidence Code section 352. (People v. Edelbacher (1989) 47 Cal.3d 983, 1007, 254 Cal. Rptr. 586, 766 P.2d 1.) The trial courts determinations that prior acts are admissible under Evidence Code sections 1101, subdivision (b), and 352 will not be disturbed on appeal absent a clear showing of an abuse of discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609-1610.)
Evidence Code section 1101, subdivision (b) provides in its entirety: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
When evaluating the admission of evidence of other acts or crimes under Evidence Code section 1101, subdivision (b), the trial court must consider: "(1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.]" (People v. Daniels (1991) 52 Cal.3d 815, 856, 277 Cal. Rptr. 122, 802 P.2d 906.) "To satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding, such as the defendants specific intent, or an intermediate fact, such as his [or her] motive, from which such ultimate fact may be presumed or inferred. [Citation.]" (People v. Pertsoni (1985) 172 Cal. App. 3d 369, 373, 218 Cal. Rptr. 350.)
The trial court did not err by admitting evidence of appellants history of domestic violence against Long, as this evidence was relevant to prove a motive for the current offenses. Clearly, the prior incidents of domestic violence and violation of no-contact orders that resulted in Long moving out of state and keeping her whereabouts a secret, were extremely relevant to the prosecutions theory that appellant broke into her mothers residence in order to learn her current address. The collateral offenses committed by appellant were also relevant to show that the charged crimes were part of a continuing pattern of domestic violence and were motivated by appellants anger over the breakdown of his marriage.
Furthermore, the trial court also properly admitted the evidence to show Chavezs knowledge of appellants violent nature for the purpose of proving the "fear" element of the section 422 offense, the terrorist threat charge. In People v. Garrett, supra, 30 Cal.App.4th 962, the defendant was prosecuted under section 422 for threats to kill his wife. The court held that evidence that the wife knew the defendant had killed a man in the past was "extremely relevant and probative" in establishing the intent and sustained fear elements of section 422, and was properly admitted under Evidence Code section 1101, subdivision (b). (Id. at pp. 967-968.)
Evidence of appellants prior acts of harassment and intimidation toward Long, as well as Chavezs knowledge of appellants violent history, was relevant to establishing the circumstances under which the threats were made, thereby establishing that Chavezs sustained fear of appellant was reasonable. (People v. Garrett, supra, 30 Cal.App.4th at pp. 967-968; see also People v. McCray (1997) 58 Cal.App.4th 159, 172-173.)
However, "there is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371, 956 P.2d 1169.) This standard is, of course, codified in Evidence Code 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."
Given the relevance and probative value of the evidence of appellants past history of domestic violence, we reject his contention that the evidence should have been excluded under Evidence Code section 352. The testimony describing appellants prior acts was not stronger or more inflammatory than the testimony describing the charged offenses, and, therefore, was not unduly prejudicial. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405.) In addition, the evidence of prior threats and violence was not excessive; the prosecutor did not belabor the point by eliciting long or detailed testimony about these issues. Moreover, the court minimized any prejudicial impact of this evidence of prior misconduct by limiting the evidence of appellants seven parole violations of the court order to just four incidents, and none of them were described to the jury. In addition, the trial court sanitized the parole violations as violations of the "court order not to have contact," thereby excluding any evidence that appellant was on parole at the time of the violations.
The court also instructed the jury that this evidence could only be considered for the limited purpose of determining intent and motive, and the jury was further instructed not to consider this evidence as proof that defendant was a person of bad character or had a disposition to commit the charged offenses. (See People v. Lewis (2001) 25 Cal.4th 610, 637.) We presume the jury followed the courts instructions. For all of the above reasons, we find no error in admitting this evidence.
B. Instructional Error-Address as Property
Appellant next contends that an address is not "property" and, therefore, does not fall within the ambit of "the property subject to the theft element of burglary." More specifically, appellant contends that the trial court erred by giving a special instruction which defined "property" to include intangible things such as an address in an address book. He also claims the courts instruction on the definition of property directed a verdict on a factual issue, causing him prejudice.
The trial court instructed the jury pursuant to CALJIC No. 14.50 that a burglary is committed when a person enters an inhabited dwelling with the specific intent to steal, take, and carry away the personal property of another. The jury was also instructed: "Property is defined as the exclusive right to use or possess a thing or the exclusive ownership of a thing. The term property is all-embracing and includes all tangible and intangible things. The property can have either intrinsic or extrinsic value. The value of each need only be slight. [P] Personal property including jewelry, address book, and a specific address contained in the address book are, in fact property and fit within the description defined above."
As a preliminary matter, we observe that appellant failed to object at trial to the instruction. "The failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]" (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Determining whether or not instructional error affected substantial rights of the defendant necessarily requires that we examine the merits of the claim, at least to the extent of determining if the claimed error resulted in any prejudice to the defendant. (Ibid.) We therefore proceed to the question whether the asserted error of instructing the jury that "personal property" includes an "address book, and a specific address contained in the address book" prejudicially affected appellants substantial rights.
Appellant maintains he preserved the objection during in limine motions by arguing that the act of stealing Longs address could not support the burglary charge. That, however, is quite a different point than his current assertion that the special instruction defining property in effect directed a verdict. Review of the record discloses that no such objection was raised below.
Because we conclude that the subject instruction did not affect appellants substantial rights, his claim of error in this regard has been waived. There was no instructional error because the court was correct when it instructed the jury that an address constitutes property for purposes of a burglary charge. As was recently explained in In re L. T. (2002) 103 Cal.App.4th 262, " "The word property has been subjected to innumerable and various definitions. Courts have said that the word property is all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition." [Citations.] [P] . . . [P] The construction of the word property depends on the context with which it is used and signifies any valuable right or interest protected by law. " [Citations.] Property thus has been broadly defined to include anything subject to ownership. [Citations.]" (Id. at p. 265.) "In theft-based offenses, the term property includes the right to use or possess a thing or the exclusive ownership of a thing [citation], because theft is the taking or stealing of personal property of another. ( § 484.)" (Ibid.)
In People v. Kunkin (1973) 9 Cal.3d 245, 248, 107 Cal. Rptr. 184, 507 P.2d 1392, the court assumed without deciding that copies of a list of undercover narcotics agents maintained in the attorney generals office was property for purposes of receiving stolen property. In People v. Parker (1963) 217 Cal. App. 2d 422, 426-427, 31 Cal. Rptr. 716, and People v. Dolbeer (1963) 214 Cal. App. 2d 619, 622-624, 29 Cal. Rptr. 573, the court held that confidential telephone subscriber lists were tangible property subject to theft. In People v. Kozlowski (2002) 96 Cal.App.4th 853, 868, the court found a personal identification number (PIN) code was property for purposes of the kidnapping for extortion offense.
The decision in People v. Kwok (1998) 63 Cal.App.4th 1236 is also instructive here. In Kwok, the defendant was convicted of two counts of residential burglary. The defendant had gone to the victims home while she was gone. Without her knowledge, he removed a lock from her door, had a key made for the lock, retained the newly made key, and replaced the lock on the victims door. (Id. at p. 1243.) A month later, the defendant returned to the victims home and entered through the unlocked door without having to use the unauthorized key. (Id. at p. 1244.) When the victim returned home, the defendant assaulted her. (Id. at pp. 1244-1245.)
On appeal, the defendant contended that there was insufficient evidence of his intent to commit a theft or felony at the time of the first entry, claiming that he had no intent to permanently deprive the victim of her lock as he only temporarily removed it in order to make a key for it. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1245-1246, 1248.) By this contention, Kwok was implicitly claiming that his act of making and retaining the unauthorized key to the victims home did not constitute a theft. (Id. at p. 1249.)
The appellate court disagreed and found that the house key was property. (People v. Kwok, supra, 63 Cal.App.4th at p. 1251.) The court found that by making an unauthorized key, the defendant deprived the victim of something valuable, i.e., her right to have exclusive access to her home and to keep unwanted persons from having access to it. (Ibid.) The court reasoned that even if the victim retained a copy of the key to her house, the defendants unauthorized possession of the stolen key impaired her right of ownership by impeding upon her exclusive possession and use of her house. (Ibid.)
Appellant claims "an address contains no attributes similar to the key in Kwok or the PIN number in Kozlowski. An address is simply a description of the location where a person resides and nothing more." We disagree. The foregoing cases amply demonstrate that courts have shown no hesitation in broadly defining property in an effort to protect privacy and confidentiality in something that is deserving of being safeguarded from disclosure. In this respect, Longs address, which was being scrupulously safeguarded by her family, was similar to the key in Kwok or the PIN number in Kozlowski. Certainly, a person, such as appellant, who obtains such an address without consent, is in a position to reap the benefits of this information by having unwanted access to the residence. The knowledge that appellant gained through his unlawful actions destroyed Elizabeths ability to limit those who knew Longs new out-of-state address solely to family members, as Long intended. The prosecutor argued that while the extrinsic value of the piece of paper containing the address was negligible, the true intrinsic value of the address could not be measured: "Do you really think Elizabeth held anything more cherished to her heart that [sic] her daughters address and keeping it away from [appellant]?" Thus, in accordance with the above-cited authorities, we conclude Longs address constituted "property" for purposes of the burglary charge.
Appellant further contends that the trial courts instruction on the definition of property improperly directed a verdict on a factual issue to his prejudice. First, given our conclusion that a specific address in an address book can constitute property for purposes of burglary, appellant identifies no misstatement of law in the special instruction. To the extent appellant believed the instructions needed amplification or explanation, it was his burden to request appropriate clarifying language. (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal. Rptr. 238, 414 P.2d 366; People v. Earnest (1975) 53 Cal. App. 3d 734, 744-745, 126 Cal. Rptr. 107.) Furthermore, assuming for purposes of this opinion that there was error and the applicable standard of prejudice is that most favorable to appellant, i.e. the more rigorous federal constitutional standard of review, we are satisfied "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; see People v. Flood (1998) 18 Cal.4th 470, 493-494, 957 P.2d 869; People v. Molina (2000) 82 Cal.App.4th 1329, 1334-1336.) Appellant also took Elizabeths rings during the course of the burglary, which constituted theft of property under any definition.
C. Instructions on Voluntary Intoxication
Appellant claims the court prejudicially erred in refusing his requested instructions pertaining to voluntary intoxication (CALJIC Nos. 4.21; 4.21.1; 4.22). These instructions inform the jury of the effect voluntary intoxication can have upon a persons ability to form the requisite criminal intent. (People v. Ramirez (1990) 50 Cal.3d 1158, 1179, 270 Cal. Rptr. 286, 791 P.2d 965 disapproved on another ground in People v. Saille (1991) 54 Cal.3d 1103, 1118-1119, 820 P.2d 588.) Appellants counsel requested that the trial court give a voluntary intoxication instruction because the officers report stated that appellant was "intoxicated." The prosecutor argued against the instruction because the officer only paraphrased what Chavez had told him and the fact that appellant "smelled of alcohol" was insufficient evidence of intoxication. The trial court denied the request, concluding that there was insufficient evidence to warrant such an instruction.
At the outset, we emphasize that an intoxication instruction is not automatically required whenever the evidence shows that a defendant ingested drugs or was drinking prior to committing the criminal act. A defendant is entitled to a requested instruction on voluntary intoxication as a defense to a specific intent crime only when there is substantial evidence both of the defendants voluntary intoxication and that the intoxication affected the defendants actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677, 941 P.2d 752.) Absent substantial evidence informing the jury of the effect of a defendants intoxication on his actual formation of the relevant specific intent and mental state, the court does not err in rejecting instructions on voluntary intoxication. (People v. Horton (1995) 11 Cal.4th 1068, 1119-1120, 906 P.2d 478.) Illustrative is People v. Williams, supra, 16 Cal.4th 635, in which one witness testified that the defendant was "probably spaced out" on the morning of the charged killings, and the defendant made statements to police that around the time of the killings, he was "doped up" and "smokin pretty tough then." (Id. at p. 677.) The Supreme Court held that the trial court correctly refused a requested instruction on voluntary intoxication. Characterizing the evidence of voluntary intoxication as "scant," the Supreme Court reasoned that even if that evidence qualified as substantial, there was no evidence at all that the intoxication had any effect on the defendants ability to formulate intent. (Id . at pp. 677-678.) In People v. Ivans (1992) 2 Cal.App.4th 1654, the court found insufficient evidence to support an intoxication instruction in spite of the defendants own testimony that at the time of the shooting, he had been high on speed for a month and had been awake for three or four days. (Id. at p. 1662.) The court concluded there was insufficient evidence to show that defendants drug use affected his mental state, noting the defendant "gave detailed testimony" about his activities at the time of the offense and other witnesses did not observe any specific symptoms of drug usage. (Ibid.)
Similarly, in People v. Greenberger (1997) 58 Cal.App.4th 298, no error was found in the trial courts refusal to instruct on the effects of intoxication although evidence was presented that the defendants had consumed a bottle of wine prior to the homicide and one of the defendants was described as drunk. (Id . at p. 378.) The court noted there was no evidence presented that any of the defendants drank enough wine to have any effect on their mental states. (Ibid.) If anything, the evidence of intoxication in the instant case falls far short of the evidence in other cases which have been held to be insufficient to support an instruction on voluntary intoxication. In this case the only evidence conceivably pointing toward intoxication is the police report that described appellant as "intoxicated." However, in his trial testimony, Chavez testified that he smelled alcohol on appellants breath. However, he made it clear that appellant was not intoxicated. Chavez never heard appellant slur his words, nor did he observe him staggering. The officer who prepared the report admitted that Chavez told him only that he thought appellant "had been drinking" and that Chavez never used the word "intoxication." Also, appellant presented no evidence relating to his voluntary intoxication at the time of the crimes, e.g., there was no evidence as to how much appellant drank before committing the crimes. Thus, this scant evidence of appellants alleged intoxication did not warrant the giving of instructions on voluntary intoxication.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., and Haerle, J.