[REVIEW GRANTED BY CAL. SUPREME COURT]

[Reprinted without change for tracking pending review and disposition by the Supreme Court.]

Superior Court of Riverside County, No. RIF70804, Russell F. Schooling, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez and Nancy L. Palmieri, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GAUT, J.

1. Introduction

Defendant Mark Anthony Hoover appeals from a judgment against him for enhanced aggravated assault under circumstances involving domestic violence. (Pen. Code, sections 245, subd. (a) (1), 12022.7, subd. (d).) Defendant was sentenced to a total prison term of 21 years.

We reject defendant's constitutional challenge to Evidence Code section 1109, which permits the admission of character evidence to prove disposition to commit a criminal act of domestic violence, subject only to the restrictions of Evidence Code section 352. We also reject defendant's contentions regarding instructional and sentencing error and affirm the judgment. 2. Facts

Mary Theresa Seals (Seals) testified that she had dated and lived with defendant for several years. On September 18, 1996, she accompanied defendant to a Riverside motel room because she wanted to explain that she was involved in another relationship. Shortly after they entered the room, defendant made a comment about her new boyfriend and then hit her in the nose. When she yelled and tried to leave the room, he grabbed her arms to prevent her. Seals went into the bathroom and screamed for help. Defendant opened the motel room door. Seals then called 911 and defendant left the motel room.

Seals also testified to several other incidents, beginning in 1993, in which defendant hit her in the face or choked her or threatened to kill her. She also told how on one occasion defendant attacked her male companion with a beer bottle. During her testimony, the court briefly admonished the jury that evidence of defendant's past conduct could only be considered for a limited purpose.

On cross-examination and redirect, Seals admitted to being a convicted felon, who was often in legal trouble. She also admitted that, in order to help defendant, she had not always told the truth about previous incidents involving him. She acknowledged that, when she testified at the preliminary hearing, she had blamed the subject incident on a dispute involving the motel room's bed sheets. She had also previously testified that she and defendant had shoved one another before he hit her.

On September 18 at 6:30 p.m., Joseph Miera (Miera), a Riverside police officer, responded to a call from the motel regarding a possible assault with a deadly weapon. When he arrived at the location, Seals was standing outside room 19 holding a bloody towel against her nose. She was crying and had difficulty speaking because of her injury. She told Miera that defendant, her former boyfriend, had punched her in the face. Seals also stated that she and defendant had been drinking beer with some friends. She told defendant that she had met someone else while defendant was in prison and she no longer wanted to date defendant. Defendant became angry, pushed her around, and then hit her. Miera observed fresh blood spattered throughout room 19. Miera arrested defendant, who was in the motel parking lot.

Dr. Greg Michaels, a radiologist, testified that he reviewed Seals' X-rays and observed a multiple fracture of her nasal bones, which had been caused by a blunt trauma. Defendant did not testify.

3. Evidence Code section 1109

During trial in January 1997, the prosecution sought to have admitted evidence of other acts of domestic violence by defendant against Seals under section 1101, subdivision (b), as evidence of and relevant to the issues of intent, motive, common scheme or plan, knowledge, and absence of mistake or accident. After the court had admitted such evidence, subject to a preliminary limiting instruction, the prosecutor discovered that section 1109 had recently been enacted. He asked the court to admit the same evidence of defendant's past conduct under that code section. The court did so but did not give the jury any further instruction regarding how to treat evidence of other acts of domestic violence.

The thrust of defendant's appeal is composed of various challenges to section 1109. That code section, enacted in 1996 and effective January 1, 1997, provides that evidence of previous acts of domestic violence may be admitted in a current prosecution for a domestic violence offense. Section 1109 was modeled on section 1108, which provides a similar exception for the admission of other sexual offenses in a prosecution for a sexual offense. In pertinent part, section 1109 states:

"(a) Except as provided in subdivision (e), in 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352. * * *

"(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.

"(d) As used in this section, 'domestic violence' has the meaning set forth in Section 13700 of the Penal Code."

Section 1109 thus supplants the usual rule of evidence that character evidence is not admissible to prove a defendant's conduct on a specified occasion. (section 1101, subd. (a).)

Defendant does not deny that he hit Seals in the face. But defendant contends that section 1109 is unconstitutional on its face and particularly as applied in this case because it could not be used to show that defendant committed an aggravated assault involving great bodily injury rather than a lesser crime.

We first observe that it was probably unnecessary for the prosecution to have sought recourse in either section 1101 or section 1109. (1) Even before the enactment of section 1109, the case law held that an uncharged act of domestic violence committed by the same perpetrator against the same victim is admissible: "Where a defendant is charged with a violent crime and has or had a previous relationship with a victim, prior assaults upon the same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon the consideration of identical perpetrator and victim without resort to a 'distinctive modus operandi' analysis of other factors." (People v. Zack (1986) 184 Cal.App.3d 409, 415 [229 Cal.Rptr. 317].) That rule was not altered by People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757], which sets forth the general principles governing the use of character evidence. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1612-1614 [38 Cal.Rptr.2d 868]; People v. McCray (1997) 58 Cal.App.4th 159, 171-173 [67 Cal.Rptr.2d 872].) The evidence of defendant's previous attacks on Seals was therefore admissible to show that he intended to inflict great bodily injury upon her on this occasion. (People v. McCray, supra, 58 Cal.App.4th at p. 172; Pen. Code, sections 245, subd. (a) (1), 12022.7, subd. (d).)

In the alternative, however, the subject evidence was also admissible under section 1109. In determining the constitutionality of section 1109, we adopt the reasoning put forth by the Court of Appeal for the Third Appellate District in People v. Fitch (1997) 55 Cal.App.4th 172, 178-185 [63 Cal.Rptr.2d 753]. Fitch was a prosecution for rape in which defendant asserted the defense of consent. Under sections 1101, subdivision (b), and 1108, the court allowed evidence that defendant had pleaded guilty to the rape of another woman. The appellate court declared that section 1108 is constitutional on both equal protection and due process grounds and that the previous rape was properly admitted.

In his appellant's brief, defendant calls Fitch muddled, rambling, and poorly reasoned. Nevertheless, defendant has quoted large portions of Fitch word for word without proper attribution and defendant is apparently making virtually the same arguments, based on the same cases, as did the defendant in Fitch.

In contrast to defendant, we find Fitch soundly reasoned. As discussed below, defendant's criticisms of Fitch are readily answered. We also hold that Fitch is properly applied here. A prior rape was used in Fitch as evidence that another rape, not consensual sex, had occurred. Similarly, the history of defendant's acts of domestic violence against Seals could be used to show that, on this occasion, defendant acted with the intent to cause her great bodily injury.

Fitch begins its analysis with a pronouncement on the difficulty of raising a due process challenge to a state criminal evidence statute:

"In reviewing a statute against constitutional challenge, '... we are mindful that it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. [Citations.]' (Mills v. Superior Court (1986) 42 Cal.3d 951, 957 [232 Cal.Rptr. 141, 728 P.2d 211].)

"Preventing and dealing with crime is more the business of the states than of the federal government. Accordingly, the state has power to regulate the procedures under which its laws are carried out, and a rule of evidence in this regard 'is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Citations.]' (Patterson v. New York (1977) 432 U.S. 197, 201-202 [97 S.Ct. 2319, 2322-2323, 53 L.Ed.2d 281, 286-287].)" (People v. Fitch, supra, 55 Cal.App.4th at pp. 178-179.)

The Fitch court further observed that: "Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. 'In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]' (People v. Jones (1954) 42 Cal.2d 219, 223 [266 P.2d 38].) Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. 'It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.' (1A Wigmore on Evidence (Tillers rev. 1983) section 58.2, p. 1212.)" (People v. Fitch, supra, 55 Cal.App.4th at p. 179.) Similarly, evidence of a history of domestic violence, especially against the same victim, is relevant to a prosecution for another domestic violence offense.

As the Fitch court further noted and defendant acknowledges: "One raising a due process claim to exclude relevant evidence must sustain a heavy burden. (Montana v. Egelhoff (1996) [518] U.S. [37], [41-42] [116 S.Ct. 2013, 2017, 135 L.Ed.2d 361, 368]; Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 7 ['If the evidence is probative, it will be very difficult to find a ground for requiring as a matter of constitutional law that it be excluded.'].) The due process clause has limited operation beyond the specific guarantees of the Bill of Rights, and the category of infractions that violates 'fundamental fairness' is defined very narrowly. (Dowling v. United States (1990) 493 U.S. 342, 352 [110 S.Ct. 668, 674, 107 L.Ed.2d 708, 720] [holding admission of evidence relating to alleged crime of which defendant had been acquitted did not violate due process].) The due process clause does not permit courts to engage in fine-tuning of state evidentiary rules. (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6 [103 S.Ct. 843, 852-853, 74 L.Ed.2d 646, 661]; Spencer v. Texas (1967) 385 U.S. 554, 564 [87 S.Ct. 648, 653-654, 17 L.Ed.2d 606, 614].)" (People v. Fitch, supra, 55 Cal.App.4th at p. 179.)

Just like in Fitch, to succeed on his due process claim, defendant "... must show that his right not to permit the jury to use character evidence to show disposition to commit the charged offense is a fundamental principle of justice. Our guide in making this determination is historical practice. (Montana v. Egelhoff, supra, [518] U.S. [37], [41-42] [116 S.Ct. 2013, 2017, 135 L.Ed.2d 361, 368].)" (People v. Fitch, supra, 55 Cal.App.4th at p. 180.) In imitation of the Fitch defendant, defendant here "asserts this right is grounded in Anglo-American jurisprudence and is based on fundamental principles of fairness." (Ibid.) Defendant relies upon the dissenting and concurring opinion of Chief Justice Warren in Spencer v. Texas (1967) 385 U.S. 554 [87 S.Ct. 648, 17 L.Ed.2d 606], the case of McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, and on People v. Ewoldt, supra, 7 Cal.4th 380.

In Spencer, Warren wrote: "While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause." (Spencer v. Texas, supra, 385 U.S. 554, 572-575 [87 S.Ct. 648, 658-660], fns. omitted (conc. and dis. opn. of Warren, C. J.).)

In McKinney v. rees, supra, 993 F.2d 1378, the murder victim's throat was slit by a knife and the prosecution introduced evidence linking defendant, the victim's son, with knives, evidence which the Ninth Circuit found to be probative only of defendant's character. It said "the prohibition against use of such character evidence 'is based on such a "fundamental conception of justice" and the "community's sense of fair play and decency" as concerned the Supreme Court in Dowling.' (Id. at p. 1384.) The admission of this evidence deprived defendant of a fair trial. 'It is part of our community's sense of fair play that people are convicted because of what they have done, not who they are.' (Id. at p. 1386; [citation].)" (People v. Fitch, supra, 55 Cal.App.4th at p. 181.)

The answer to defendant's reliance on Spencer and McKinney can again be found in Fitch: "The United States Supreme Court has not decided whether a state law would violate the due process clause if it permitted the use of prior crimes evidence to show the defendant's propensity to commit the charged crime. (Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5 [112 S.Ct. 475, 483-484, 116 L.Ed.2d 385, 401].) Generally, however, federal courts have rejected the blanket assertion that the admission of uncharged misconduct evidence violates the due process clause. In Spencer v. Texas, supra, 385 U.S. 554 [87 S.Ct. 648, 17 L.Ed.2d 606] the high court ... recognized that the law of evidence had been chiefly developed by the states and expressed the concern that finding the admission of potentially prejudicial evidence unconstitutional 'would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.' (Id. at p. 562 [87 S.Ct. at pp. 652-653, 17 L.Ed.2d at p. 613].) [Citations.]" (People v. Fitch, supra, 55 Cal.App.4th at pp. 179-180.)

In spite of the general rule banning character evidence, "the Supreme Court has noted, '... the common law was far more ambivalent. [Citation.] Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, [citation], the common law developed broad, vaguely defined exceptions-such as proof of intent, identity, malice, motive, and plan-whose application is left largely to the discretion of the trial judge, [citation]. In short, the common law, like our decision in Spencer, implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.' (Marshall v. Lonberger, supra, 459 U.S. 422, 438, fn. 6 [103 S.Ct. 843, 852-853, 74 L.Ed.2d 646, 661].)" (People v. Fitch, supra, 55 Cal.App.4th at p. 181.)

Fitch also noted that character evidence in sex offense cases has been more liberally allowed and that the ban on such evidence has been eliminated in federal courts under rule 413 of the Federal Rules of Evidence (28 U.S.C.). (People v. Fitch, supra, 55 Cal.App.4th at p. 181.)

The same reasoning applies in the instant case. As in sex offense cases, the use of character evidence in domestic violence cases is more justified than in a murder case or a forgery case. The legislative history of section 1109, which recognizes the special nature of domestic violence crime, supports this point:

"The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all." (Assem. Com. on Public Safety Rep. on Sen. Bill No. 1876 (June 25, 1996) pp. 3-4 (1996 Reg. Sess.).)

Based on the foregoing, the California Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.

Defendant makes an additional argument that the admission of other acts of domestic violence dilutes the due process requirement of proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 1072-1073, 25 L.Ed.2d 368].) The jury was instructed that the question it was to decide was whether defendant committed the crime charged and that he could be found guilty only if the jury was convinced beyond a reasonable doubt that he committed the crime. (CALJIC No. 2.90 (1994 rev.).) While the admission of evidence of other acts of domestic violence "may have added to the evidence the jury could consider as to defendant's guilt, it did not lessen the prosecution's burden to prove his guilt beyond a reasonable doubt. 'The courts specifically addressing the question of Winship's application to uncharged misconduct uniformly hold that the admission of uncharged misconduct does not undermine Winship.' (Imwinkelreid, Uncharged Misconduct Evidence (1986) section 10.11, ch. 10, p. 21, fn. omitted.)" (People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, italics added.)

We recognize the possibility that propensity evidence may reduce the burden of proof. In a capital murder case, the California Supreme Court commented that "if the jury used evidence of an uncharged killing to show defendant's propensity to kill, '... the prosecution's burden of proof as to the central issue in the case, the identity of [the victim's] slayer, arguably was lightened, thus raising the possibility that defendant's constitutional right to due process of law was impaired.' (People v. Garceau (1993) 6 Cal.4th 140, 186 [24 Cal.Rptr.2d 664, 862 P.2d 664].)" (People v. Fitch, supra, 55 Cal.App.4th at p.183.)

But section 1109, like section 1108, has a safeguard against the use of other acts of domestic violence "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 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. (Evid. Code, section 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. (Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1348 [32 Cal.Rptr.2d 322].) With this check upon the admission of evidence" of other offenses in prosecutions for crimes of domestic violence, we hold that section 1109 does not violate the due process clause. (People v. Fitch, supra, 55 Cal.App.4th at p. 183.)

The fundamental difficulty with defendant's attack on the facial validity of section 1109 is that it asks this court to take issue with legislative policy. Again we echo Fitch: "It is not our role to determine the 'wisdom' of legislation or to determine whether the Legislature selected the 'correct' solution to the problem. (Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1621 [20 Cal.Rptr.2d 740].) Since Evidence Code section 1108 does not implicate any of the guarantees of the Bill of Rights and it does not offend a fundamental principle of justice rooted in the traditions and conscience of our people, we find that Evidence Code section 1108 on its face does not violate the due process clause. (Dowling v. United States, supra, 493 U.S. 342, 352-353 [110 S.Ct. 668, 674-675, 107 L.Ed.2d 708, 720].)" (People v. Fitch, supra, 55 Cal.App.4th at p. 184.) Similarly we hold that section 1109 passes constitutional muster on its face.

We reach this conclusion in spite of People v. Ewoldt, supra, 7 Cal.4th 380. Ewoldt was decided in 1994, before the enactment of sections 1108 and 1109. Defendant promotes the view that section 1109 simply codified the general principles governing the use of character evidence as described in Ewoldt. Section 1109, however, like section 1108, "functions as another albeit much broader exception to the general rule of exclusion of other crimes evidence." (People v. Harris (1998) 60 Cal.App.4th 727, 737 [70 Cal.Rptr.2d 689].)

We also conclude that section 1109 did not violate due process as applied. Defendant bases this argument on two points. First, defendant challenges the trial court's balancing determination as made under section 352. We do not agree that the trial court abused its discretion in admitting the evidence under section 1109. Particularly in view of the fact that the subject evidence involved defendant's history of similar conduct against the same victim, the evidence was not unduly inflammatory. The subject evidence was also not remote; its presentation was not confusing or time-consuming. Instead the evidence was highly relevant and probative of the issues in this case. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405; People v. Harris, supra, 60 Cal.App.4th at pp. 737-740.)

Second, defendant argues that the jury was confused because it was incorrectly instructed with CALJIC No. 17.01 and not instructed at all regarding the use of the evidence permitted under section 1109, although during trial the jury had been given a preliminary limiting instruction based on section 1101.

We agree that the procedures followed in this case were somewhat sloppy, due in part to the prosecution's sudden discovery during trial of the newly enacted section 1109. It would certainly have been better if the trial court had explained to the jury that its preliminary limiting instruction was wrong and that the evidence of past conduct could be considered to show that defendant had a present disposition to commit domestic violence offenses. (CALJIC No. 2.50.02.)

Furthermore, the jury was apparently confused by CALJIC No. 17.01 and its reference to other acts. A question from the jury during deliberations indicated that the jurors did not understand that they were not supposed to consider CALJIC No. 17.01 at all. The jury's note to the court said: "17.01 seems to state that all acts presented into evidence may be considered. [¶] Does this mean that if we agree that 'force likely to produce bodily injury,' was used in an incident other than the motel incident (namely, the incident where the plaintiff was struck with a cast) we can find the defendant guilty of Count 1?" The court, with agreement from both counsel, responded tersely and simply to the jury's inquiry, "No." Therefore, we must assume the jury followed the court's instructions.

Since it was ultimately proper for the jury to consider defendant's past conduct as evidence bearing on his present conduct, any errors committed at the trial level were clearly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Finally, we agree with the People that the proper standard for proving past conduct is by a preponderance of the evidence, not beyond a reasonable doubt, as defendant proposes. (section 115; People v. Durham (1969) 70 Cal.2d 171, 187, fn. 15 [74 Cal.Rptr. 262, 449 P.2d 198]; CALJIC No. 2.50.2.) Therefore, the evidence of defendants' past conduct was sufficiently established by the testimony of Seals.

4. Sentencing

Part of defendant's 21-year sentence included the upper term of 5 years for the great bodily injury enhancement. (Pen. Code, section 12022.7, subd. (d).) Defendant argues that the court did not properly articulate the aggravating circumstances which justified the imposition of the upper term of five years rather than the middle term of four years. Defendant further denies that he waived the issue for appeal because he did not have a meaningful opportunity to object the sentence which was imposed. (People v. Scott (1994) 9 Cal.4th 331, 356 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) The People contend the issue was waived but, in any case, the court applied the proper aggravating factors.

On the question of waiver, we note that the sentencing hearing took place over a two-day period and that both the prosecution and the defense offered substantial argument as to why defendant should or should not receive the upper term. We agree with defendant that he did not waive the right to appeal. The trial court was fully apprised of the basis for defendant's objection to the upper term. Therefore, "the principles of Scott were satisfied." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1224 [58 Cal.Rptr.2d 165].)

We agree with the People, however, that the aggravating factors identified by the court were sufficient. The factors used by the trial court were located in the probation report and the prosecution's sentencing memorandum. The aggravating factors supporting the enhancement included that the victim was particularly vulnerable and that defendant took advantage of a position of trust or confidence to commit the offense. (Cal. Rules of Court, rule 421(a) (3), (11).) The victim was particularly vulnerable because she was in a state of "acute alcohol intoxication" and because the incident occurred in the confines of a motel room. It is also patently obvious that defendant was able to exploit his intimate relationship with the victim and to induce her to come to the motel room where she would be vulnerable to attack. The factors cited by the court justified sentencing appellant on the enhancement. (People v. Hall (1994) 8 Cal.4th 950, 958 [35 Cal.Rptr.2d 432, 883 P.2d 974].)

5. Disposition

We affirm the judgment against defendant in its entirety.

Hollenhorst, Acting P. J., and Richli, J., concurred.