Opinion
A148440
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. BOBBY RAY HARDEMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR225280)
A jury found defendant Bobby Ray Hardeman guilty of assault by means likely to produce great bodily injury, and inflicting corporal injury upon the mother of his children for the second time within seven years. (Pen Code, §§ 245, subd. (a)(4), 273.5, subds. (a),(f)(1).) After the trial court found true allegations that defendant had three prior felony convictions (Pen Code, § 667.5, subd. (b)), it sentenced defendant to state prison for an aggregate term of six years. The major theme of defendant's contentions on this timely appeal is that the jury was improperly exposed to evidence of his history of domestic violence. The minor theme is that the trial court erred in closing an avenue of impeaching the victim. We reject all of defendant's contentions, and affirm.
TRIAL EVIDENCE
Neither the victim nor defendant testified at the trial. The evidentiary phase of the trial required only one day for the four prosecution witnesses—the victim's mother, two police officers, and the victim's treating physician.
The victim's mother testified seeing defendant holding her daughter by her hair and slamming her head against a doorknob. When defendant relaxed his grip on the victim's hair, and she fell to the ground, he kicked her, and then choked her. When the attack was over, defendant announced, " 'She had that coming.' "
The victim's mother summoned police while defendant waited for them on the front porch. The responding officers found the victim "crying and hysterical." Photographs taken of the victim's injuries were shown to the jury and received in evidence.
After the victim was done with the officers, her mother took her to the hospital, where she was examined by Dr. Betty Chu. Dr. Chu wrote in her case file what she was told by the victim, namely that "the father of her children who she lives with came in and assaulted her, that he kicked and choked her." The victim had facial injuries, bruises to her neck and back, a concussion, and multiple contusions. In Dr. Chu's experience, these injuries were "consistent with someone that had been assaulted."
Defendant's "conviction packet [see Pen. Code, § 969b] for prior conviction, felony, 273.5," was received in evidence. It was stipulated for the jury that "defendant is the person named" in that exhibit.
DISCUSSION
I
Defendant's 2014 conviction for violating Penal Code section 273.5—on the same victim—was one of the priors specified in the information. Among the court's in limine rulings were granting the prosecution's motion to put evidence of that conviction before the jury, as permitted by Evidence Code section 1109 (section 1109), while denying defendant's motion to bifurcate that conviction, along with the other priors, saving it for the post-verdict bench trial.
In granting the prosecution's motion, the court overruled two objections made by the defense. The first objection was that the evidence of defendant's prior conviction should be excluded under Evidence Code section 352 (section 352) as unduly prejudicial. The second objection was that section 1109 "refers to prior conduct," and does not authorize admission of "the conviction itself." Defendant renews these arguments, attacking both the admission and refusal to bifurcate.
"Section 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section is essential to protect a defendant's due process right to a fundamentally fair trial. . . . [¶] . . . [¶] The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] 'The [trial] court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.' . . . . [¶] Thus, as the Supreme Court has repeatedly and recently reaffirmed, 'when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.' " (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1315.)
Defendant's 352 objection, and the court's ruling, were as follows:
"MR. HELLMAN: . . . I oppose that. I listed that in—that's kind of under one of my motions in limine. That would be Motion Number 6. I think that 352, given that this is a domestic violence trial, we should disallow that evidence from coming in. It's unduly prejudicial.
"THE COURT: Having been here through the whole OJ thing and the legislature's response, specifically Evidence Code 1109, I would agree with you that it is prejudicial, but it's this specific type of evidence that the legislature chose to allow."
Defendant acknowledges "appellate courts 'are willing to infer an implicit weighing [under section 352] by the trial court on the basis of record indications well short of an express statement,' " but he claims even this lenient approach cannot operate here, because he maintains there was "no . . . balancing" done. The record is skimpy, but not as empty as defendant believes.
It is also clear that the ruling was made in response to the context of a written in limine motion by the prosecution, which generated written opposition from the defense. Those papers were not included in the record on appeal, but it is reasonable to presume that the parties set forth their respective positions in those papers. Also, as noted from the excerpt quoted above, Judge Bowers was statutorily required to make his section 1109 ruling at "a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time." (§ 1109, subd. (d)(3); see id., subd. (a)(1) ["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 Section 352"].) In light of these circumstances, we conclude, " 'on the basis of record indications,' " there is an adequate basis for this court to " 'infer an implicit weighing by the trial court.' " (People v. Villatoro (2012) 54 Cal.4th 1152, 1168.)
As to the merits of the section 352 ruling, no abuse of discretion is shown. The conviction was less than two years in the past. Although defendant makes much of the fact that the evidence was in the form of his "conviction packet," for section 352 purposes it eliminated the prejudicial possibility that the jury would be tempted to punish defendant for not being convicted for the 2014 attack (see People v. Ewoldt (1994) 7 Cal.4th 380, 405), thus relieving him "of the . . . unfair burden of defending against both the charged offense and the other uncharged offenses." (People v. Falsetta (1999) 21 Cal.4th 903, 915.) The bland way in which the jury was advised of the conviction—via official documents—had the benefit of not exposing the jury to possibly inflammatory details of the prior attack.
Moreover, and as will be shown, the jury was instructed on the precise and limited use that could permissibly be made of the evidence, and there is nothing to establish that the jury did not follow that instruction. (See People v. Jablonski (2006) 37 Cal.4th 774, 834.) It is also important to keep in mind that this was a pretrial ruling and could be revisited if the evidence became relevant for an additional purpose. For example, if defendant had testified, and raised an issue concerning his identity, intent, lack of mistake, or his credibility, his prior conviction would, as we have previously noted, have additional relevancy. (See People v. Johnson (2010) 185 Cal.App.4th 520, 541-542.) No abuse of discretion is shown by Judge Bower's denial of defendant's section 352 objection. (People v. Jennings, supra, 81 Cal.App.4th 1301, 1314-1315.)
As for defendant's second objection, he argues flatly that "Section 1109 does not permit the admission of a charged offense based only on a record of conviction." According to defendant, section 1109 authorizes admission of propensity evidence, which is constitutionally permissible only if, using the weighing process of section 352, it is not unduly prejudicial, and (impliedly) only if the evidence is in a particular form. And, defendant goes on, "[h]ere no such balancing was possible because the existence of the prior conviction was proved only by a conviction packet, and neither the court nor the jury had any idea what conduct the conviction involved. The jury learned from the conviction packet only that appellant was predisposed to commit domestic violence—the essence of impermissible character evidence."
Nothing in the plain language of the statute suggests it is limited to uncharged offenses that have not resulted in a criminal conviction. (Cf. People v. Quintanilla (2005) 132 Cal.App.4th 572, 584 (conc. opn. of Pollak, J.) ["There is no justification in the language of section 1109 for restricting its application to prior offenses that are not charged in the case on trial. . . . The terms of the statute apply equally to other charged and uncharged acts of domestic violence."].) Defendant's conduct vs. conviction distinction would make the statute a dead letter for recidivist domestic violence abusers who had prior convictions, or if the prior victim was unable to testify.
Defendant's considerable reliance upon People v. Quintanilla, supra, 132 Cal.App.4th 572, and People v. Cruz (2016) 2 Cal.App.5th 1178, proves misplaced. The error in both was a faulty instruction, and—more significantly, and as pointed out by the Attorney General—in Quintanilla no prior conviction was involved, and there were no uncharged domestic violence offenses because "the propensity evidence was the commitment of the charged offenses themselves." No such bootstrapping was present here—not to mention that Quintanilla was later disapproved on its major point. (People v. Villatoro, supra, 54 Cal.4th 1152, 1163, fn. 5 [Evid. Code, § 1108 permits evidence of charged offenses to show propensity to commit other offenses charged in the same case ].)
In a related argument, defendant contends if the trial court erred in admitting evidence of his 2014 conviction, it also erred in denying his motion to bifurcate the validity of that conviction from the remaining elements required for conviction of a second violation of Penal Code section 273.5. This contention fails because it relies on a nonexistent predicate, namely, that section 1109 does not allow for evidentiary use of a prior conviction. In any event, Judge Bowers's statutory power to order bifurcation (Pen. Code, § 1025) is reviewed according to the lenient abuse of discretion standard. (E.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) Having already conducted the evaluation required by sections 1109 and 352, Judge Bowers was asked to conduct the identical analysis, namely, whether the jury was prejudiced against defendant once it learned of his prior conviction. As already established, Judge Bowers did not abuse his discretion according to the Evidence Code, and the same conclusion obtains according to the Penal Code.
II
The trial court instructed the jury with CALCRIM No. 852 (now 852A) that "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: a prior conviction of Penal Code section 273.5(a). [¶] . . . [¶] 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 from 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 the evidence that the defendant was disposed to or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Corporal Injury to Child's Parent in Count 1, 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 Corporal Injury to Child's Parent in Count 1. The People must still prove the charge and allegation beyond a reasonable doubt."
This was immediately followed by CALCRIM No. 3100: "If you find the defendant guilty of Corporal Injury to Child's Parent in Count 1, you must also decide whether the People have proved the additional allegation that the defendant was previously convicted of another crime. It has already been determined that the defendant is the person named in exhibit # 14. You must decide whether the evidence proves that the defendant was convicted of the alleged crime.
"The People allege that the defendant has been convicted of a violation of Penal Code section 273.5(a), on June 2, 2014, in Solano County Superior Court, Case Number VCR 219768. The People have the burden of proving the alleged conviction beyond a reasonable doubt. If the People have not met this burden for any alleged conviction, you must find the alleged conviction has not been proved."
Defendant contends that using the same evidence—the conviction packet—for two distinct purposes amounts to a violation of his due process rights. He reasons: "The jury was instructed that the prior conviction had to be proved beyond a reasonable doubt to be found true" for the purpose of determining whether he was guilty of a second violation of Penal Code section 273.5, "but only by a preponderance of evidence for use as propensity evidence. Since the evidence for both uses was identical (the conviction packet), the jury was required to perform the impossible mental gymnastic of applying two different burdens of proof to the same evidence. When a single piece of evidence is used for both such purposes, it must be proved beyond a reasonable doubt for both purposes. The error is structural and reversible per se" because " 'for practical purposes, the instruction[s] lowered the standard of proof for the determination of guilt.' "
Although we are dealing with section 1109, mention should be made of a cognate provision, Evidence Code section 1108, which does for prior sexual offenses what section 1109 does for prior domestic violence. Calling them "parallel provision[s] governing propensity evidence," the Supreme Court has endorsed our opinion that the two provisions are " 'complimentary' " and " 'properly . . . read together.' " (People v. Villatoro, supra, 54 Cal.4th 1152, 1162, fn.4, quoting People v. Brown (2000) 77 Cal.App.4th 1324, 1333.) What was essentially the identical argument defendant now makes against the instructions for section 1109 was rejected by the Supreme Court in considering the instructions that governed a jury's use of evidence admitted pursuant to Evidence Code section 1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016; accord, People v. Lewis (2009) 46 Cal.4th 1255, 1297-1298; cf. People v. Cruz, supra, 2 Cal.App.5th 1178, 1186 ["Reliford involved the use of uncharged offenses to show propensity, not charged offenses"].) By parity of reasoning, if there are any "mental gymnastic[s]" required by CALCRIM Nos. 852 and 3100, they were not beyond the jury's capacities. (See People v. Garcia (2017) 16 Cal.App.5th 979, 998-1001.)
In any event, even if it was assumed that the claimed error did occur, it would not commend reversal. We do not agree with People v. Cruz, supra, 2 Cal.App.5th 1178 that misinstruction on this point constitutes structural error requiring automatic reversal. We do agree with People v. Garcia, supra, 16 Cal.App.5th 979, 1001-1005 that harmless error analysis is appropriate. Here, the claimed error would not qualify as prejudicial. (Cal. Const., art. VI, § 13.)
III
In allowing Dr. Chu to testify, the trial court overruled defendant's objection that recounting the victim's statements would be "testimonial" and thus "essentially a back-door around Crawford [v. Washington (2004) 541 U.S. 36]." Defendant does not renew that objection. But he does renew his objection that he should have been allowed to impeach the victim, who he states was addicted to opioids, with her medical records to demonstrate that she had "a motive to lie about her injuries to obtain drugs to which she was addicted." Judge Bowers examined the records in camera and declined to let the defense offer them as evidence.
It would have aided our analysis if Judge Bowers had said more than "I will exclude these records." We are also hindered by the absence of anything resembling an offer of proof. (See Evid. Code, § 354, subd. (a).) However, assuming, purely for purposes of this appeal, that defendant is correct that impeachment should have been allowed under Evidence Code section 1202, such error would not compel reversal. Even if the impeachment occurred, it was unlikely to overcome the unanimous testimony of the witnesses and the photographs of the victim's injuries. In other words, even if she was not a perfect person, she was still the victim of domestic violence at defendant's hands. The absence of the missing victim thus would not amount to reversible error. (Cal. Const., art. VI, § 13; Evid. Code, § 354.)
IV
Defendant claims his trial counsel was constitutionally incompetent for not impeaching the victim with evidence of her "extensive criminal record," specifically, five "incidents" (none of which appears to have resulted in a felony conviction) which Judge Bowers ruled in limine could be used "if she were to be here." On this direct appeal, defendant can secure reversal only if prejudice is apparent from an inexplicable and indefensible act or omission that is outside the range of reasonable trial tactics. (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
Defense counsel could have reasonably decided that the jury would not appreciate having a one-day trial extended by efforts to impeach the absent victim. Counsel could also conclude, as reasonable tactical choice, that even if the impeachment occurred, it would unlikely count for much in neutralizing the entirety of the prosecution's case-in-chief. Even if counsel's decision could not be put within the realm of reasonable tactical choice, it would not sustain the reasonable probability of a more favorable result, and thus would qualify as prejudicial to defendant. (Cal. Const., art. VI, § 13; People v. Vines, supra, 51 Cal.4th 830, 875-876.)
The judgment of conviction is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.