Opinion
C086024
06-18-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LAWRENCE MCGARRY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 14F05046.
MAURO, Acting P. J.
A jury found defendant Daniel Lawrence McGarry guilty of assault by force likely to cause great bodily injury. On appeal defendant contends (1) his counsel rendered ineffective assistance; (2) an instruction on self-defense was erroneous; (3) an instruction on the use of force likely to cause great bodily injury was also erroneous; (4) the jury was likely to have misinterpreted the instruction on actual injury; (5) his constitutional right to confrontation was violated; (6) a juror introduced prejudicial evidence from outside the record; and (7) two uncharged incidents of misconduct should not have been admitted.
Although defendant's fifth contention has merit, the error was harmless beyond a reasonable doubt. Accordingly, we will affirm the judgment.
BACKGROUND
Defendant attacked the victim, a customer at defendant's vehicle smog shop. Witnesses at trial included the victim, a mother and daughter who witnessed the assault, several responding officers, defendant, an employee of defendant's smog shop, and a manager of a nearby tire store. Defendant said the victim was the aggressor and defendant acted in self-defense. Evidence of defendant attacking customers in 2012 and 2016 was also introduced at trial.
The victim testified that he took his sports utility vehicle for a smog check in 2014. When he returned that afternoon with his wife and children to pick up the vehicle, defendant told him it failed its smog test. The victim asked if he could get a discount because the test had taken longer than anticipated. Defendant looked unreceptive and appeared to grow upset. The victim testified that he could not remember if he had called defendant a name, but a responding officer who interviewed the victim testified that the victim reported calling defendant a douche. The victim was five feet five inches tall and weighed 198 pounds, whereas defendant was six feet five inches tall and weighed 240 pounds. As the victim glanced down to retrieve money from his wallet, he was hit multiple times. Defendant and the victim then grabbed each other. Defendant punched the victim once more in the head and walked off. Police arrived soon after. The victim was taken to the hospital by ambulance and had three chipped teeth along with bruising and swelling.
Other prosecution witnesses confirmed a possible douche comment and the attack by defendant. Defendant testified that he previously held a professional boxing license and was a bouncer for a number of years. Responding officers testified that the victim was bleeding but defendant was not injured. On cross-examination, an officer testified the victim reported trying to reach into defendant's pocket for his vehicle keys.
Defendant testified the victim became angry when told his vehicle failed the smog check. According to defendant, the victim insisted the testing machine was faulty, refused to pay, and threatened to call police. Defendant told the victim he couldn't leave without paying. The victim then asked for a discount and reached for the vehicle keys defendant was holding. When defendant put the keys in his pocket, the victim tried to reach into defendant's pocket, all the while accusing defendant of stealing his car. Defendant testified that he pushed the victim back but the victim kept going for defendant's pocket. Eventually defendant pushed the victim hard and they wrestled. Defendant put the victim in a headlock. When the victim grabbed defendant's genitals, defendant punched him in the face many times. A smog shop employee offered similar testimony, adding that the victim punched defendant approximately 30 times.
The prosecution also introduced evidence of incidents occurring two years before and two years after the charged incident. A witness to a 2016 incident testified that he went to the tire shop next to the smog shop for new tires. There, he heard arguing. He turned to see defendant lunge forward and punch another man. The other man raised his hands and said, “Call the police.” The witness did not see the other man throw any punches. The victim in that 2016 incident testified that after taking his car for a smog check, he and defendant got into a disagreement, exchanged words, and defendant punched him in the left eye.
The victim in a 2012 incident testified that when defendant told him his car had failed a smog check, he called defendant an idiot and said either that he would not or should not pay. Defendant punched him in the nose and said, “Now you don't have to pay me.” That victim had a broken nose and cracked sinus. Defendant had claimed he only punched that victim after the victim first punched him in the right eye.
In the current case, the jury found defendant guilty of assault by force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The trial court suspended imposition of judgment and sentence, and placed defendant on probation for five years with 364 days in jail.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends his trial counsel (his mother) rendered ineffective assistance. He argues his counsel's situation gave rise to a presumption of prejudice under United States v. Cronic (1984) 466 U.S. 648 (Cronic), ineffective assistance is shown under Strickland v. Washington (1984) 466 U.S. 668 (Strickland), and his counsel breached her fiduciary duty and also had a conflict of interest.
A
During much of the time before trial, including the preliminary hearing, defendant was represented by a public defender, although he represented himself at times. On the day trial was set to commence, defendant moved to continue trial and asked that his mother, an attorney, be appointed to represent him. His mother explained that certain witnesses had not been located, reports were missing, and several important motions had to be prepared along with a pinpoint instruction. She said she needed time to get up to speed on discovery items, but also stated in a declaration that she was prepared to defend defendant at trial.
At a hearing on the motion, the deputy public defender said the purported missing witnesses had been subpoenaed or were about to be, no reports were missing, and that he was preparing the pinpoint instruction. Defendant's mother said she had been representing defendant in a civil suit filed by the victim. The trial court suggested beginning jury selection in seven days, and opening statements five days after that, to give the mother time to prepare. Defendant's mother said that would be very difficult, referencing the prosecution's 500-page trial binder. The trial court replied it was just “standard stuff” and the prosecutor explained most of the binder consisted of medical records. The trial court said granting the motion would be contingent on jury selection and opening statements starting as proposed. Defendant's mother agreed with the proposed timeline and the trial court granted the motion.
After the jury returned its guilty verdict, defendant's mother moved for a new trial, claiming, among other things, ineffective assistance of counsel. She argued her performance was deficient because (1) her mental condition deteriorated during trial, (2) defendant wrote the closing argument for her, which she read, (3) she rested her case without calling important witnesses, (4) she failed to submit certain pinpoint instructions, (5) she failed to make appropriate objections or request admonishments, (6) she failed to argue “force likely” in closing argument, and (7) the trial court was not happy with defense counsel.
The mother submitted a declaration stating: “Due to my age [68] and declining memory, my ability to respond quickly and remember things as well as a trial attorney... is greatly compromised.” She described her trial experience as “minimal” and wrote that between trial and caring for her mother she was getting only two to three hours of sleep, and all the while, she was recovering from a compression fracture suffered a month before trial. She said she had been forgetful, disorganized, and inept, asserting that defendant would have done a much better job in closing argument than she did and she “totally dropped the ball and closed the case abruptly” without bringing out important points or calling two particular witnesses. Just prior to the hearing, defendant's mother filed a supplemental declaration, stating that not calling those witnesses to the stand and not objecting during the end of the defendant's testimony were not tactical decisions.
At the hearing, defendant told the trial court: “I wrote 90 percent of the motion for new trial.” He added: “the only reason [my mother] is representing me right now is because I feel that it's much more beneficial to have [her]... agreeing and working with me on this than.... getting a public defender or hiring another attorney, and then being kind of having me... pushed away further, and then maybe not working with me so well, admitting to these things so much.”
The trial court denied the motion. It noted that no factor cited as ineffective assistance had occurred in front of the court. And mental state alone is not a proper basis for an ineffective assistance claim -- there must be a specific act or omission.
As to failing to call a witness, the trial court noted the witness would have testified to uncharged acts -- not the charged incident. And as to those uncharged acts, the witness “would not have helped defendant show that he had not engaged in [a] prior bad act.”
As to the pinpoint instructions, one pertained to personal infliction of great bodily injury under section 12022.7, with which defendant was not charged. The other duplicated a part of CALCRIM No. 875, which the jury received. Thus, according to the trial court, defendant failed to show the trial court would have given the proposed instructions. The trial court said there was also little likelihood the proffered objections would have been sustained. And defense counsel had in fact argued “force likely” in closing, though she had elected to spend more time discussing self-defense, which the trial court deemed a reasonable tactical decision. Finally, the trial court noted that defense counsel's perception of her relationship with the trial court was not relevant to effectiveness in representation.
B
Defendant argues his counsel's situation gave rise to a presumption of prejudice under Cronic, supra, 466 U.S. 648. In Cronic, a young lawyer with a real estate practice was appointed to represent a criminal defendant charged with mail fraud and given only 25 days to prepare, whereas the prosecution had taken over four years to investigate the case and its thousands of documents. (Id. at p. 649.) In holding the circumstances made it unlikely the defendant received effective assistance of counsel, the United States Supreme Court identified three circumstances so likely to prejudice the accused that ineffective assistance is presumed: (1) “the complete denial of counsel”; (2) where “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing”; and (3) where “counsel is available to assist the accused during trial, [but] the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” (Id. at pp. 658-660; see id. at p. 666.) The Court added that not every refusal to postpone trial gives rise to the presumption. (Id. at p. 661.)
This case does not fit any circumstance described in Cronic. Defendant was afforded counsel; indeed his eleventh hour request to substitute his mother as counsel was granted. His counsel subjected the prosecution's case to meaningful adversarial testing, including offering numerous witnesses and vigorously cross-examining the prosecution's witnesses. And the circumstances were not such that no competent lawyer could likely provide effective assistance. Counsel represented that she was prepared to defend defendant, a continuance was granted, and as the trial court noted, the trial binder was not particularly onerous. Further, before taking on defendant's criminal case, defendant's mother had been representing defendant in the civil suit arising out of the same incident. See also Dows v. Wood (9th Cir. 2000) 211 F.3d 480, 485 [mental deterioration has not been recognized by the United States Supreme Court as a basis for an automatic presumption of prejudice].) On this record, we do not presume prejudice.
C
Nevertheless, defendant argues ineffective assistance is shown under the Strickland test, averring he has established that his mother's representation fell below a reasonable professional standard because she admitted that many of her mistakes were not tactical. Defendant claims his counsel allowed the abrupt shutdown of the defense's case, failed to call a witnesses to the 2012 incident, forced defendant to write the closing argument, failed to submit certain pinpoint jury instructions, inadvertently introduced a 2012 incident of violence and arrest, failed to impeach the victim with his admission to an officer that he grabbed for the keys and that defendant punched him after he grabbed defendant's genitals, and failed to report her condition to the trial court.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland, 466 U.S. at pp. 687-688, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘Surmounting Strickland's high bar is never an easy task.' ” (Harrington v. Richter (2011) 562 U.S. 86, 105 .) “It is ‘all too tempting' to ‘second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” (Ibid.) Further, “if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....' ” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Defendant asserts that his trial counsel was exhausted and suffered a breakdown and memory failure. But the Strickland test requires a showing “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” (Strickland, supra, 466 U.S. at p. 687; see Smith v. Ylst (9th Cir. 1987) 826 F.2d 872, 876 [“a defendant must point to specific errors or omissions which prejudiced his defense, because if a mental illness or defect indeed has some impact on the attorney's professional judgment it should be manifested in his courtroom behavior and conduct of the trial”].)
Although defendant's mother claimed her acts and omissions were not tactical, self-proclaimed inadequacies on the part of trial counsel in aid of a client on appeal are not necessarily persuasive (People v. Beagle (1972) 6 Cal.3d 441, 457, superseded by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209), and we are not obligated to accept them. (Edwards v. Lamarque (9th Cir. 2007) 475 F.3d 1121, 1126.) Defendant asserts that his trial counsel suffered a mental breakdown so severe that defendant had to write the closing argument, but nothing in the record supports that assertion, and the assertion was not mentioned until after the guilty verdict.
In any event, defendant has not established prejudice. “A factual basis, not speculation, must be established before reversal of a judgment may be had on grounds of ineffective assistance of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 933.) Because defendant does not explain how the asserted errors would have yielded a more favorable result, he has not met his burden on appeal.
D
Defendant further argues that his counsel breached her fiduciary duty by failing to report her condition to the trial court or to do anything to rectify the situation, such as seeking medical attention. He also argues her disability constituted a conflict of interest, and his own failure to disclose his mother's condition to the trial court did not constitute a waiver of the conflict. He maintains that had his mother informed the trial court of her condition, the trial court would have declared a mistrial or called a recess.
We decline to speculate on what the trial court might have done if defendant or his mother had mentioned to the trial court that the mother was not feeling well during trial. All we know is that the record does not evidence any illness, and defendant has not established a presumption of prejudice under Cronic or made a showing of prejudice under Strickland. Under the circumstances, defendant has not convinced us that he is entitled to relief based on a breach of fiduciary duty or conflict of interest.
II
Defendant next contends the trial court failed to instruct the jury on what to do if it found some force was used in self-defense and some force was not. He challenges the following instructions given by the trial court:
“To prove that the defendant is guilty of this crime, the People must prove that, A, the defendant did an act that by its nature would directly and probably result in the application of force to a person. And, B, the force used was likely to produce great bodily injury.... And... the defendant did not act in self-defense.”
“The defendant acted in a lawful self-defense if... three, the defendant used no more force than was reasonably necessary to defend against that danger.”
Defendant argues those instructions did not prevent the jury from finding that part of the force was used in self-defense but the total force used was likely to produce great bodily injury. He says the defense theory was that some punches were in self-defense and some were not, noting that his trial counsel argued that the jury would “have to determine which of the punches were made in self-defense and which were not.”
Whether a jury instruction correctly states the law is reviewed de novo. (People v. Quinonez (2020) 46 Cal.App.5th 457, 465.) And in situations such as this, we determine “whether there is a ‘reasonable likelihood' that the jury understood the charge as the defendant asserts.” (People v. Kelly (1992) 1 Cal.4th 495, 525.)
Here, the trial court instructed the jury that a finding of guilt required proof that defendant used force likely to produce great bodily injury, and that the prosecution must prove that defendant did not act in self-defense. Given those instructions, it is not reasonably likely that the jury would nevertheless conclude that force found to be in self-defense could be considered in determining whether defendant was guilty of using force likely to produce great bodily injury.
Defendant's reliance on People v. Ross (2007) 155 Cal.App.4th 1033 does not assist him. In Ross a victim slapped the defendant during an argument and the defendant responded by striking the victim and fracturing her cheekbone. (Id. at p. 1036.) The defense theorized that the defendant initially acted in self-defense and his subsequent hits, which were not in self-defense, were simple assaults or battery. (Id. at p. 1051.) Over the defense's objection, the jury was instructed on mutual combat. (Id. at pp. 1041- 1042.) On appeal, the court held the evidence did not support a mutual combat instruction as no reasonable juror could conclude that the defendant and the victim were engaged in mutual combat when he punched her. (Id. at pp. 1050, 1054.) The court further concluded the error was prejudicial as it removed the defense's theory from the jury's consideration. (Id. at pp. 1054-1055.)
Although Ross illustrates that an individual can act in self-defense and then not in self-defense during an incident, the case does not support defendant's argument that the jury in this case considered force he purportedly used in self-defense in determining whether he used force likely to inflict great bodily injury.
III
Defendant further claims the jury instruction for assault with force likely to cause great bodily injury allowed the jury to eliminate the requirement that the force used be likely to produce great bodily injury.
The trial court instructed the jury with CALCRIM No. 875. The instruction states in pertinent part:
“To prove that the defendant is guilty of [assault with force likely to cause great bodily injury], the People must prove that: [¶]... The defendant did an act that by its nature would directly and probably result in the application of force to a person;... [¶]... The force used was likely to produce great bodily injury; [¶]... [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his clothing, is enough.” (CALCRIM No. 875.)
Defendant argues the definition of “application of force” conflicted with the requirement that the force used be likely to produce great bodily injury. He posits that there was a reasonable chance the jury interpreted the instruction to eliminate the requirement that the force used be enough to cause great bodily injury. But we must assume that jurors are intelligent and capable of understanding the jury instructions given. (People v. Covarrubias (2016) 1 Cal.5th 838, 915.) Because defendant has not established otherwise, we presume the jurors understood the instruction to say that defendant could not be found guilty unless the People proved that defendant did an act that by its nature would probably result in the application of force and the force he used was likely to produce great bodily injury. We will not presume without evidence that the jury read the instruction to mean something else. (People v. Kelly, supra, 1 Cal.4th at p. 525 [there must be a “ ‘reasonable likelihood' ” the jury understood the instruction as asserted].)
The contention lacks merit.
IV
Defendant next challenges another portion of CALCRIM No. 875: “No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.” Focusing on the words “that fact, ” defendant claims the jury likely misinterpreted the instruction to mean it could only consider whether an injury occurred, not the nature and extent of the injury.
Again, however, we assume jurors are able to understand and correlate jury instructions. (People v. Covarrubias, supra, 1 Cal.5th at p. 915.) Nothing in the challenged instruction precluded the jury from considering the nature of the injuries in deciding whether the assault was likely to produce great bodily injury. Indeed, the instruction expressly directed the jurors to consider all the other evidence. The contention fails.
V
In addition, defendant contends the trial court violated his right to confront witnesses when it allowed the prosecution to present evidence from a police report containing statements of third-party witnesses who claimed defendant kicked someone on the ground during a prior altercation. We agree but find the error harmless beyond a reasonable doubt.
A
Mid-trial, after defendant's direct examination, the prosecution referenced defendant's testimony that he was a puncher, not a kicker, and asked the trial court to permit impeachment with a 2000 misdemeanor battery conviction in which defendant was alleged to have kicked the victim. The prosecutor told the trial court: “The People would only be able to show that he has a prior conviction for battery and confront the defendant with the police report. [The] People do not have [the victim] under subpoena or... any of the other witnesses who observed this being done.”
The trial court denied the request, explaining “if you had [the victim] available to testify, that might change my ruling. But given the fact that there is no way for the People to prove the underlying conduct.... [¶]... [¶] I'm not going to allow the People to impeach [defendant] with the fact that he kicked [the victim].”
Later, while defendant was being cross-examined, he testified that once he had the victim in the current case on the ground, he did not beat him in the back of the head, explaining “if I was truly in a fit of rage, that is what I would have done, because I had him pinned.” The prosecutor asked if defendant had ever, in a fit of rage, punched someone on the ground repeatedly. Defendant testified: “Not that I ever remember.”
The prosecutor then asked to approach the bench, and an unreported sidebar discussion occurred. After the sidebar, the prosecutor asked defendant to think back to the year 2000. Defense counsel objected, noting the year 2000 was many years prior when defendant was in his twenties. The trial court allowed the prosecutor to proceed, and the prosecutor inquired about an altercation in 2000, asking: “at one point [the victim] was laying on the ground and you punched and kicked him multiple times; isn't that true?” Defendant responded, “That is false.”
The prosecutor then had defendant read from a police report and asked defendant, “according to [the victim], you kicked him several times while laying on the ground?” Defendant replied, “That's what it says there, but he had other statements too.” The prosecutor then had defendant read another portion of the police report and asked, “[a witness] said that you were kicking [the victim] in the head on the side; isn't that true?” Defendant answered: “That is what it says there, but that's not true.”
The prosecutor directed defendant to a different portion of the police report and the prosecutor asked, “What she said was that you stomped on [the victim's] head with your right foot at least two times and you punched him in the head at least 20 to 30 times; that is what she said?” Defendant replied, “That is what she said. That is not correct.” At that point defendant's counsel interjected, “I would like to renew the hearsay objection.” The trial court overruled the objection.
B
Defendant argues the use of witness statements from the police report violated his right of confrontation. Although the People respond that the contention is forfeited for failure to object on confrontation clause grounds, we will address the merits of the contention.
Hearsay -- evidence of an out-of-court statement offered to prove the truth of the matter asserted -- is inadmissible except as provided by law. (Evid. Code, § 1200.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that testimonial hearsay violates the confrontation clause unless the declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant. (Id. at pp. 53-54, 59, fn. 9.)
Here, the statements in the police report appear to have been testimonial and there is no indication that defendant had a prior opportunity to cross-examine the declarants. (See People v. Sanchez (2016) 63 Cal.4th 665, 694 [a statement about a completed crime made to an investigating officer by a nontestifying declarant is generally testimonial unless an exception applies].) Nevertheless, the People argue the police report statements could be used to impeach defendant because he took the stand and put his credibility at issue. But having reviewed the record, we conclude some of the specific questions posed to defendant in reference to the 2000 police report should not have been allowed.
We further conclude, however, that any error was harmless. Crawford error is reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18 . (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.) Under that standard, reversal is required unless we find beyond a reasonable doubt that the error was harmless. (Ibid.) We make such a finding here.
Overwhelming evidence supported a finding of guilt on the charged offense. Various witnesses provided testimony that was consistent with each other, with the statements they had made to responding officers, with a 911 call, and with the circumstantial evidence. The defense witnesses offered testimony that was not consistent with each other, with statements to responding officers, or with the circumstantial evidence. Moreover, even if some of the evidence of the 2000 incident should not have been allowed, the jury properly received other evidence that defendant had attacked customers in 2012 and 2016.
Against the weight of all the evidence, the erroneously admitted evidence pertaining to the incident in 2000 was harmless beyond a reasonable doubt.
VI
Defendant argues the jury foreperson improperly introduced evidence outside of the record during deliberations. Defendant points to the declaration from another juror who reported that during deliberations, the foreperson described someone who got knocked out with one punch. Defendant claims the foreperson's statement constituted prejudicial misconduct because it “went directly to one of the defendant's only two defenses, that he did not use force likely to cause bodily injury.”
Although it is misconduct for a juror to assert expertise or specialized knowledge about a subject, jurors “ ‘ “must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts.”' ” (People v. Engstrom (2011) 201 Cal.App.4th 174, 185 [jurors' views of the evidence are necessarily informed by their life experiences]; In re Lucas (2004) 33 Cal.4th 682, 697 [where intoxication defense was raised, juror divulging personal experiences with drugs did not constitute misconduct since juror did not bring highly technical information before the jury or claim expertise].) It would be an impossible standard to require a jury to be completely sterilized from any external factors. (People v. Riel (2000) 22 Cal.4th 1153, 1219.)
Here, the foreperson merely relayed an incident he observed in his personal life. Nothing indicates he held himself out as an expert or divulged technical information about the likelihood of injuries from a single punch. Defendant has not established juror misconduct.
VII
Defendant also challenges the admission of evidence of two uncharged acts of violence. He argues the trial court failed to consider the confusing or misleading effects of multiple witnesses testifying to different evidence. And, while noting that he was never charged or arrested for the incidents, he avers the trial court failed to engage in caution or careful analysis in admitting the evidence. He further argues there are significant doubts that he acted illegally.
A
The prosecution moved in limine to admit evidence of battery arrests from 2012 and 2016. According to the motion, in the 2012 incident defendant told a customer that his vehicle had failed its smog test. When the victim told defendant he didn't think he should have to pay, defendant punched the victim multiple times. Defendant told police the victim punched first and defendant acted in self-defense.
In the 2016 incident, as described in the motion, the victim brought his car in for a smog test. Defendant refused to test the vehicle because the victim lacked proper paperwork and an argument ensued. Defendant punched the victim in the eye. Defendant claimed the victim threatened to “[b]ring his boys down to take care of him.”
The defense moved to exclude the acts, arguing defense witnesses would rebut the claims, the jury would be confused, and the evidence would consume too much time and result in mini trials.
The trial court conditionally admitted the evidence, explaining that if self-defense was raised (as was anticipated), the prosecution would have to prove defendant did not act in self-defense. Therefore the uncharged conduct would be admissible as to defendant's intent. The trial court noted it had considered the defense's argument that the evidence would involve witnesses and the consumption of time. It also considered the probative value and whether it would be outweighed by prejudice.
Thereafter, in her opening argument, defense counsel argued self-defense. Afterward, defense counsel agreed the door had been opened, though she continued to express concern that the jury would be confused by the incidents.
B
Evidence of other crimes, civil wrongs, or other acts may be admitted to prove a material fact, such as intent or identity. (Evid. Code, § 1101, subd. (b); People v. Leon (2015) 61 Cal.4th 569, 597 (Leon).) It is not necessary that the conduct was prosecuted or that it resulted in a conviction. (Leon, at p. 597.) But the conduct must be relevant to prove a fact at issue, and it must not be unduly prejudicial, confusing, or time consuming. (Id. at pp. 597-598; Evid. Code, § 352.) To that end, evidence of other crimes is subjected to “ ‘extremely careful analysis.' ” (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) On appeal, we review for abuse of discretion both the trial court's decision to admit evidence of other crimes as well as its ruling under Evidence Code section 352. (People v. Harris (2013) 57 Cal.4th 804, 841; People v. Lewis (2001) 26 Cal.4th 334, 374.)
Here, the trial court acted well within its discretion in admitting the uncharged acts. As defendant's trial counsel conceded, defendant's intent as to self-defense was at issue. And the 2012 and 2016 incidents were probative of defendant's intent in the charged incident in that they involved a similar act (punching a customer) with similar claims of self-defense (or that the customer was an aggressor). (See People v. Steele (2002) 27 Cal.4th 1230, 1244 [the more often a person does something, the more likely that something was intended rather than accidental or spontaneous]; Ewoldt, supra, 7 Cal.4th at p. 402 [the least degree of similarity is required to prove intent].)
Further, under Evidence Code section 352, confusion was not inevitable, and the nature of the incidents were such that they were not likely to consume undue time. And the fact that the defense contested the uncharged incidents did not preclude admissibility. (See Leon, supra, 61 Cal.4th at p. 599 [admissibility does not require a conceded act; the jury determines the accuracy of the evidence of the prior acts].)
Defendant asserts that this case is analogous to People v. Sam (1969) 71 Cal.2d 194 (Sam). There, the defendant, while drunk, kicked the victim in the stomach. (Id. at pp. 199, 201) When the man died two weeks later, the defendant claimed self-defense, arguing the victim seemed about to hit him. (Id. at pp. 200-201) At trial, evidence of two prior acts were admitted “purportedly to show his modus operandi, or common plan or scheme.” (Id. at p. 200.) The first was that defendant had a drunken quarrel and kicked his mistress in the ribs. (Ibid.) The second was that he had knocked down and kicked a long-time friend. (Id. at pp. 200-201.) But the California Supreme Court rejected the theory of identity or common plan, explaining there was no connection between the prior acts and the charged incident. (Id. at p. 205.) It also rejected the argument that the evidence was admissible to show criminal intent and to negate a claim of self-defense. (Ibid.) As to self-defense, the Court explained: “In effect, two drunken fights over the past two years, in which defendant may or may not have acted in self-defense, were introduced to suggest that a more recent altercation was not in self-defense. If there was a concatenation of events, it was tenuous at best....” (Id. at p. 205-206.)
Here, by contrast, the uncharged acts were considerably more probative. Both involved near-identical conduct of punching a smog-shop customer, and at least one involved an explicit claim of self-defense (and defendant would later testify both were in self-defense). Hence, there was a substantial probative link, and Sam is distinguishable.
Defendant's contention lacks merit.
DISPOSITION
The judgment is affirmed.
We concur: HOCH, J. KRAUSE, J.