Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN237658, Joel M. Pressman, Judge.
O'ROURKE, J.
A jury convicted Thomas John Filippone of assault with intent to commit rape (count 1, Pen. Code, 220, subd. (a) ); rape by a foreign object (count 2, § 289, subd. (a)(1)); forcible oral copulation (count 3, § 288a, subd. (c)(2)); and corporal injury to a spouse (count 4, § 273.5, subd. (a)). The trial court sentenced him to six years in prison.
All further statutory references are to the Penal Code unless otherwise stated.
Filippone contends the trial court erred and also violated his state and federal constitutional due process rights by (1) admitting evidence regarding his prior domestic violence; (2) instructing regarding propensity evidence; (3) admitting into evidence his text messages and voice mails; and (4) permitting a detective to testify as an expert regarding domestic violence. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Filippone and Jennifer L. were married from June 2004 to May 2007. Between October 29, 2007 and November 15, 2007, after they were no longer living together, Filippone left several voicemail messages on her answering machine at home. Recordings of the messages were played for the jury. One representative message stated: "So kids your mom just told me she's having sex with somebody while she's still married. Whether she filed for divorce or not I guess that's the legacy she wants you to to [sic] learn that it's ok to do that kind a [sic] shit. Just do whatever you want while she's trying to teach you about God. You know what we make mistakes when we're going on our path but that's a big no no. That's — that's just you don't do that shit and she's tried to accuse me of doing it because she's doing it. I'll — I'll pray for you guys. I'll pray for you guys. You got a fucked up leader in your household. Fucked up."
On approximately November 15, 2007, Jennifer retained text messages that Filippone had sent on her cell phone. Over his objection, the trial court admitted those text messages into evidence. The text messages respectively stated: "I should be the one you're loving on." "Was he the one who gave you the heart ring?" "Are you fucking right now?" "Do you remember recently you still enjoyed my cock?" "It's the Verizon dude." "Now I know how you got the phone." "Did you take down our wedding pictures?"
Jennifer testified that on November 16, 2007, she was alone at her condo when Filippone arrived and forced his way inside, yelling, "Where is he? Where is he?" He asked "Who are you fucking?" She started dialing 911, but he grabbed the phone from her. She screamed for help and tried to get away from him; however, he put his hand over her mouth and nose. He grabbed her from behind and pulled her arm; she fell, he lay on top of her, removed her pants and underwear and said, "If he gets to fuck you, then I get to fuck you too." He removed his pants and tried to insert his penis in her vagina; however, he could not get an erection. He inserted his tongue in her vagina. She tried to scoot away from him but he resumed orally copulating her and managed to partially insert his penis in her vagina. He stroked his penis to get an erection and digitally penetrated her vagina, thereby hurting her. She cried and begged him to stop. He went to her bedroom and returned with a vibrator, which he tried to insert in her vagina. She screamed, "no" and hit it out of his hand. He put his penis in her face and told her to put it in her mouth, but she kept turning her face away. She told him to stop and she kept praying. He said, "I don't care if I go to jail. I'm going to fuck you before I do." When he went to another room, she dialed 911 and threw the phone into a guest room. She ran out of the condo half-dressed and spoke to a 911 dispatcher from a neighbor's house.
Over Filippone's objection, and under Evidence Code section 1108, the trial court admitted into evidence Jennifer's testimony regarding a November 20, 2004 incident. It stated: "In doing [an Evidence Code, section] 352 analysis in terms of the weighing of the evidence that's coming in, it's clear to this court and in reading the legislative history of [Evidence Code section] 1108 that this is probably exactly what they had in mind at the time. The statute has been found to be constitutional. The... [Evidence Code, section] 1108 evidence is admitted for exactly that propensity. [¶] And despite its powerful effect, it nonetheless, is evidence that's clearly relevant and falls within the statute. I think that it's — the evidence should be coming in in light of [Evidence Code section] 1108, and that there isn't any prejudice that would overcome the — the intention of the legislature."
Evidence Code section 1108, subdivision (a) states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code, s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code, s]ection 352."
Jennifer testified that in the 2004 incident, Filippone wanted to have sex with her but she told him she did not want to because she was menstruating. Nonetheless, he proceeded to have sex with her while she cried. Afterwards, he cleaned himself with her bathrobe and found her drug paraphernalia in the pockets. He screamed: "I knew it. I knew it. You fucking bitch." He told her he would have the authorities take her children away from her; consequently, she did not call the police. They separated temporarily and she obtained a restraining order against him. Within a day or two after that incident, Filippone called and asked her to meet him at the home of his friend, David Hanashiro. There, Filippone apologized to her, saying he and Hanashiro had been praying about the incident, which he knew was wrong. She and Filippone reconciled and resumed living together.
Hanashiro testified regarding the 2004 incident that Filippone said he had found Jennifer's drugs and used that situation to manipulate her to have sex with him. Filippone asked Hanashiro's advice as to whether that constituted rape, as Jennifer had claimed.
DISCUSSION
I.
Filippone contends the judgment should be reversed because the trial court prejudicially admitted propensity evidence regarding his previous uncharged act of domestic violence and instructed with CALCRIM No. 852, a propensity instruction, both in violation of his due process rights under the state and federal Constitutions. He also contends Evidence Code section 1109 violates his rights of equal protection.
"We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious, and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).)
Evidence Code Section 1109"Evidence Code section 1109 allows the introduction of evidence of [a] defendant's commission of prior acts of domestic violence in a criminal action charging [the] defendant with an offense involving domestic violence." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of Evidence Code section 1109 provides in part (with exceptions not applicable here): "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
The term "domestic violence" is broadly defined for the purposes of Evidence Code section 1109 as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).) For the same purposes, the term "abuse" is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a); see also Evid. Code, § 1109, subd. (d)(3).)
Evidence Code section 1109 creates an exception to the general rule codified in Evidence Code section 1101, subdivision (a) precluding admission of uncharged misconduct to show that the defendant had a propensity to commit crimes. (Evid. Code, § 1109, subd. (a)(1); see also People v. Johnson (2000) 77 Cal.App.4th 410, 417.)
The trial court has discretion to exclude evidence of prior acts of domestic violence if the probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 1109, subd. (a)(1), 352, subd. (a).) In assessing whether evidence is unduly prejudicial within the meaning of Evidence Code section 352, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues." (People v. Crew (2003) 31 Cal.4th 822, 842.) In other words, in cases involving the proffering of evidence of prior acts of domestic violence under Evidence Code section 1109, the question is whether there is a likelihood the evidence will inflame the jury so that they will base their verdict not on the evidence presented as to the charged offenses, but rather on an emotional response to the defendant's commission of other acts or crimes.
Due Process Challenge
In People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta), the court identified various factors governing the admissibility of testimony regarding a defendant's prior sexual offenses under Evidence Code section 1108, including the "nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives." (Falsetta, supra, 21 Cal.4th at p. 917.)
The Falsetta court rejected contentions that Evidence Code section 1108 violated the federal and state due process clauses, concluding: "In summary, we think the trial court's discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant's due process challenge.... '[Evidence Code S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under... [Evidence Code] section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of [Evidence Code] section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that... [Evidence Code] section 1108 does not violate the due process clause.' " (Falsetta, supra, 21 Cal.4th at pp. 917-918.)
At trial, Filippone did not challenge the admission of the evidence under Evidence Code section 1109, subdivision (a)(1); he now contends: "Despite the decision in People v. Falsetta[, supra,21 Cal.4th 903]... [Evidence Code] section 1109 is facially invalid under the federal due process and equal protection clauses."
Evidence Code sections 1108 and 1109 are virtually identical, except that the former addresses the admissibility of evidence of prior sexual offenses while the latter addresses evidence of prior acts of domestic violence. Although the California Supreme Court has not addressed the issue, the intermediate appellate courts, including our own, have consistently applied the reasoning in Falsetta, supra,21 Cal.4th 903, to reject facial federal and state constitutional due process challenges regarding the admission of propensity evidence under Evidence Code section 1109. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 (Cabrera); see also People v. Williams (2008) 159 Cal.App.4th 141, 147; People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; Jennings, supra, 81 Cal.App.4th at pp. 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027; People v. Johnson (2000) 77 Cal.App.4th 410, 417.) We agree with the reasoning and results in these cases and reaffirm our holding in Cabrera, supra, 152 Cal.App.4th 695. We also agree with the Jennings court's observation that "the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (Jennings, at p. 1310.)
Overall, the Falsetta factors favored the admission of Filippone's prior domestic violence, and the trial court did not abuse its discretion because such evidence was more probative than prejudicial. Filippone's conduct in the November 2004 incident showed he was controlling and manipulative, and was directly relevant to rebut his defense that he did not rape Jennifer as charged. The 2004 incident was not remote in time and as Filippone concedes, it "did not have the level of violence associated with the charged offenses." It was not likely the jury confused the 2004 incident with the charged crimes because each incident had its separate particularities. The 2004 incident occurred while Jennifer and Filippone were married and involved a discovery of Jennifer's drugs and Filippone's apology at Hanashiro's home. By contrast, the charged crimes involved Filippone's use of a vibrator on Jennifer, his grabbing the telephone from her and her flight and subsequent call to the police. (Accord, Falsetta, supra, 21 Cal.4th at p. 917 [finding that under Evidence Code section 1108, "the probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense"].) As we discuss, post, the court's instruction with CALCRIM No. 852 mitigated any prejudice to Filippone by admission of evidence regarding the 2004 incident. We conclude that trial testimony regarding the November 2004 incident did not pose an intolerable " 'risk to the fairness of the proceedings or the reliability of the outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Equal Protection Challenge
Filippone contends that Evidence Code section 1109 "singles out individuals who commit acts of domestic violence or sexual assaults and denies them protection that has been afforded for over 300 years to individuals charged with crimes." Although the California Supreme Court has not addressed the issue, the courts in Jennings, supra, 81 Cal.App.4th 130 and Price, supra, 120 Cal.App.4th 224, have persuasively rejected similar challenges. The Jennings court stated: "On its face, [Evidence Code] section 1109 treats all defendants charged with domestic violence equally; the only distinction it makes is between such domestic violence defendants and defendants accused of other crimes. Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same." (Jennings,at p. 1311.) The Jennings court concluded that domestic violence defendants are not similarly situated to all other defendants for purposes of equal protection analysis. (Ibid.)
Citing Jennings, the Price court stated that "[t]he evidentiary distinction drawn by section 1109 of the Evidence Code between domestic violence offenses and other offenses is relevant to the evidentiary purpose underlying this distinction." (Price, supra, 120 Cal.App.4th at p. 240.) We follow Jennings and Price to reject Filippone's equal protection challenge.
CALCRIM No. 852
Filippone contends that instruction with CALCRIM No. 852 violated his federal and state due process rights. The court in People v. Reyes (2008) 160 Cal.App.4th 246 (Reyes) rejected this contention, and we adopt its reasoning.
CALCRIM No. 852 states: "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 Counts one, two, three, and four 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 these counts. The People must still prove each charge beyond a reasonable doubt."
The Reyes court stated the California Supreme Court "has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of [Evidence Code] section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 [citations] and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02. [Citation.]... [¶]... there is no material difference between the language found constitutional in CALJIC No. 2.50.02 and that in CALCRIM No. 852. In fact, CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury. The reasoning of the cases analyzing CALJIC No. 2.50.02 is equally applicable to the validity and propriety of CALCRIM No. 852. [¶] CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely." (Reyes, supra, 160 Cal.App.4th at pp. 251-252, fns. omitted.)
Filippone concedes the California Supreme Court has ruled that CALJIC No. 2.50.01 did not lower the prosecution's burden of proof in violation of the federal due process clause. (Reliford, supra, 29 Cal.4th at pp. 1014-1016.) Nonetheless, he raises the issue to preserve it for further review. We are bound by the California Supreme Court's ruling in Reliford. (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450.)
II.
Filippone contends the trial court erroneously admitted into evidence the text and voice mail messages he had sent to Jennifer because they "contained numerous crude sexual references which could only have offended many of the jurors. The prosecutor offered the voice messages and text mail messages to prove [his] obsession with Jennifer... [but] could have accomplished this goal without using [them]" and they were more prejudicial than probative under Evidence Code section 352. He also contends the admission of such evidence deprived him of his due process rights under the federal Constitution.
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." A trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value (People v. Horning (2004) 34 Cal.4th 871, 900) and its decision to admit evidence under Evidence Code, section 352 will be reversed only upon a clear showing of abuse. (People v. Turner (1990) 50 Cal.3d 668, 703-705.) Evidence that is excessively prejudicial must be excluded under that statute. "Prejudice" does not mean harm because, generally speaking, most evidence offered against a party is harmful to the party's case. Rather, "undue prejudice" means the evidence invites a response from the jury that borders on the irrational. (People v. Garceau (1993) 6 Cal.4th 140, 178, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
As the trial court concluded, the voice and text messages were relevant to show that although Filippone was separated from Jennifer, his motive and intent, as expressed in the messages, was to exert his dominance over her by his demeaning language and manipulation of religious rhetoric, and subsequently to physically force her to have sex with him.
His use of profanities and slang in the recordings did not cause undue prejudice in this context. In People v. Edelbacher (1989) 47 Cal.3d 983, 1009, testimony was admitted from an individual who commented that the defendant in that case was a " 'crazy son-of-a-bitch,' and numerous instances of offensive language." (Ibid.) The California Supreme Court stated, "Jurors today are not likely to be shocked by offensive language and any risk of prejudice was outweighed, as the trial court determined, by the probative value of the evidence." (Id., at p. 1009.) The same reasoning applies here. In fact, the profanities Filippone used are probably more commonly heard in conversations today than when Edelbacher was decided. Filippone does not argue, and we see no evidence, that the introduction of these recordings led to an undue consumption of time, confusion of the issues or misleading of the jury. Accordingly, the trial court's admission of the evidence was reasonable, and not an abuse of discretion.
Finally, as set forth above, the jury additionally learned of Filippone's regular use of crude and offensive language through Jennifer's testimony regarding the underlying offenses. This, coupled with the overwhelming proof of Filippone's guilt, compels us to hold that any error in admitting the text and voice messages was harmless under any standard. Having found no abuse of discretion in admission of the evidence, and the matters contained in the text and voice messages not so prejudicial as to render the trial fundamentally unfair, we reject Filippone's claim of a due process violation.
III.
Filippone contends the trial court erroneously permitted a police detective to testify as an expert witness regarding domestic abuse victims' experience of the "cycle of violence," and the concept of "learned helplessness" in the context of domestic violence. He maintains the detective was not sufficiently qualified to give his opinions on the topic.
An expert witness is one who has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Id., § 801.) Evidence Code section 801 limits expert opinion testimony to an opinion that is "[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates." (Id., subd. (b).) We are required to uphold the trial court's ruling regarding an expert's qualifications unless there is an abuse of discretion, as shown by the expert's clear lack of qualifications. (People v. Williams (1989) 48 Cal.3d 1112, 1136.)
Carlsbad Police Department Detective Eric Prior was assigned to investigate the underlying crimes and testified as an expert for the prosecution. Detective Prior had been assigned to the family protection unit full time for the two years immediately prior to trial and in his career he had handled approximately a thousand domestic violence investigations and interviewed hundreds of domestic violence victims. He had attended a 40-hour training on domestic violence and a separate 40-hour training on sexual assault, and participated in updating the San Diego County 2008 domestic violence protocol. He taught criminal law subjects, specifically regarding sexual assaults and domestic violence, at Palomar College and to police academy cadets. He also taught victim advocate volunteers at a women's resource center regarding the cycle of violence and learned helplessness.
Detective Prior testified the cycle of violence starts with a romance or honeymoon phase, transforming to a build-up or tension phase — in which the male begins with controlling behavior that escalates into domestic violence — and the cycle repeats itself throughout a relationship. In the most serious cases, there is no longer a honeymoon phase; rather, the cycle goes from tension to confrontation successively. He testified that often times victims of domestic violence suffer from learned helplessness and they do not leave the abusive situation even when an opportunity to do so arises. They typically suffer from low self-esteem and believe that by leaving their relationships their situation will not improve but rather worsen.
Here, in light of Detective Prior's training and substantial experience in investigating domestic abuse cases, and having taught classes on cycle of violence and learned helplessness, the trial court did not abuse its discretion in ruling that Detective Prior was qualified to testify as an expert on those topics. Accordingly, we reject Filippone's contention that the admission of such testimony resulted in a fundamentally unfair trial in violation of his federal due process rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR HALLER, Acting P. J., AARON, J.