Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09NF1629 M. Marc Kelly, Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The trial court sentenced defendant Richard Mark Rice to eight years in prison after a jury convicted him of domestic battery causing injury (Pen. Code, § 273.5, subd. (a); all further statutory references are to this code unless otherwise stated), with findings that he had suffered a prior conviction for the same offense, personally used a deadly or dangerous weapon to commit the crime (§ 12022, subd. (b)(1)), and inflicted great bodily injury on Georgina Martinez, the victim (§ 12022.7, subd. (e)). Defendant appeals, challenging the sufficiency of the evidence supporting the jury’s guilty verdict and the deadly weapon and infliction of great bodily injury findings. He also contends the trial court erred by admitting evidence of his prior conviction. We affirm.
FACTS
Martinez and defendant, both transients, met each other in November 2008. Thereafter, they became romantically involved, sleeping together and sharing resources.
One afternoon in early June 2009, Martinez, defendant, David Dry, and David Watts went to the residence of defendant’s brother. Both Martinez and defendant had been drinking. Defendant entered the apartment, but Martinez and the others remained outside. Martinez began yelling for defendant to come out. She picked up defendant’s bicycle and threw it. Defendant re-appeared and Martinez threw the bicycle a second time.
At trial, Martinez testified to the following scenario. Defendant calmly picked up the bicycle, inspected it, took out a knife, and, with Dry’s help, repaired the bicycle. She continued to yell at defendant, but lost her balance and began to fall into some bushes. As she fell, defendant grabbed her by the neck. Believing defendant intended to hurt her, Dry pushed him. Martinez continued screaming at defendant. He attempted to calm her down by holding her arms. But she pushed him away, thereby causing the knife to slip and accidentally cut her on the arm. Martinez claimed she then “went ballistic” and rode away on her own bicycle. Someone saw her bleeding and called the police. The wound exceeded two inches and required eight stitches to close. Martinez denied giving the police a different version of the events that afternoon, claiming “they turned this whole thing around.”
Police officer Cynthia Mendez testified she contacted Martinez about a mile and a half from where the altercation occurred. Mendez described the victim as “crying, ” “hysterical and... bleeding from her left bicep, ” with scratches on her neck, and having a “moderate smell” of alcohol. Using an audio recording device, Mendez recorded the conversation with Martinez. Portions of the interview were played at trial.
Martinez told Mendez that upon leaving his brother’s apartment, defendant called her “a fucking idiot, ” grabbed her by the neck, and pushed her into the bushes. Dry attempted to intervene, but defendant pulled out a small pocketknife, held it against Dry’s neck, and said “[s]tay out of my business.” When Martinez “tried to intervene... [defendant] sliced her bicep....” Mendez demonstrated Martinez’s description of the manner in which defendant cut her. As explained in the trial transcript, defendant held the knife in his right hand and “mov[ed] it across the left under portion of [Martinez’s] arm in a... [¶]... [¶]... perpendicular manner.”
Watts testified for the defense, giving a different version of the incident. He claimed defendant calmly used the knife to repair the bicycle while Martinez stood next to him yelling continuously. After repairing the bicycle, the two began to walk away together. Martinez then threw the bicycle into some bushes and again began screaming at defendant. Defendant, who was still holding the knife, began to yell at Martinez, grabbed her by the neck and pushed her, causing her to trip over the bicycle and fall into the bushes. Martinez “jump[ed] up, ” grabbing defendant by the neck, thereby “knock[ing] him back. The hand with the knife came up a little, her arm came down a little, [and] it sliced her arm.” Watts denied defendant pointed the knife at Dry.
DISCUSSION
1. Sufficiency of the Evidence
Citing the necessity of proving he acted “willfully, ” defendant claims the evidence is insufficient to support the jury’s verdict and findings. He argues “the evidence suggests [Martinez] was injured as a result of her own movements” when she “grabbed [defendant] by the neck and pushed [him] backward, ” thereby “caus[ing his] hand with the knife to move and cut [her]... arm.” This contention lacks merit.
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence─that is, evidence that is reasonable, credible, and of solid value─from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The same standard of appellate review applies to the jury’s personal use of a deadly or dangerous weapon (People v. Burton (2006) 143 Cal.App.4th 447, 451, 457) and infliction of great bodily injury findings (People v. Frazier (2009) 173 Cal.App.4th 613, 618-619).
Section 273.5, subdivision (a) declares “[a]ny person who willfully inflicts upon a... cohabitant... corporal injury resulting in a traumatic condition, is guilty of a felony....” In People v. Jackson (2000) 77 Cal.App.4th 574, the appellate court held “the Legislature intended section 273.5 to define a very particular battery, ” and that “the section is not violated unless the corporal injury results from a direct application of force on the victim by the defendant.” (Id. at p. 580.)
Insofar as the jury’s verdict on the domestic battery charge is concerned, there is little question the evidence supports a finding of guilt. Both Martinez and Watts testified defendant grabbed her by the neck, and the evidence reflects Martinez suffered noticeable injuries to it. Martinez claimed defendant did so to stop her from falling into the bushes. But Watts, the sole defense witness, testified defendant pushed Martinez into the bushes. Since “[a] reviewing court neither reweighs evidence nor reevaluates a witness’s credibility, ” where “the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at p. 27.)
Even assuming the jury relied solely on defendant’s use of the knife, both the verdict and personal use and great bodily injury findings are supported by the record. In Jackson, the court held the “uncontradicted” evidence failed to support a conviction under the statute. (People v. Jackson, supra, 77 Cal.App.4th at p. 575.) There the defendant pushed his girlfriend into a car, but her injuries resulted only when, after turning around, she tripped over a curb and fell down. Contrary to defendant’s argument, this case does not present an “analogous” situation. Mendez’s testimony as to the victim’s recounting of the altercation shortly after it occurred, including her demonstration of how defendant wielded the knife, plus the victim’s recorded statements, support a conclusion Martinez’s arm wound occurred when defendant intentionally cut her after she attempted to intervene in his confrontation with Dry.
As noted, the mere fact Martinez’s trial testimony and the testimony of Watts support a different conclusion concerning defendant’s use of the knife does not render the jury’s verdict and findings unsupported by the record. (People v. Lindberg, supra, 45 Cal.4th at p. 27.) Consequently, defendant’s insufficiency of the evidence claims are unpersuasive.
2. Admission of Evidence Concerning Defendant’s Prior Domestic Violence
a. Background
The court conducted a pretrial hearing on the admissibility of testimony concerning a prior domestic violence incident where defendant physically assaulted a woman with whom he had fathered a child. This incident resulted in criminal prosecution with defendant entering a guilty plea to a misdemeanor charge of violating section 273.5, subdivision (a).
The court granted the prosecution’s request to allow this evidence, finding it admissible under Evidence Code sections 1109 and 352. In conducting the Evidence Code section 352 analysis, the court stated the prior “incident [was] highly probative... given the fact that this case hinges on the credibility of the alleged victim, ” plus the fact both cases “showed violence or [a] tendency to violence towards [a] woman” and involved “allegations of drinking....” While acknowledging defendant’s reliance on the factual dissimilarities between the two incidents, the court noted each “involve[d] an allegation defendant grabbed the victim by the neck, ” and found the current prosecution “more egregious” because it “involves a knife with a [great bodily injury] allegation....” The court discounted the possibility evidence of the prior incident would confuse or mislead the jury, noting “[j]urors are going to hear that... defendant was convicted” and “[t]here will be a jury instruction concerning... what the prosecution’s burden is.” Finally, the court found there were no issues concerning either remoteness of the prior incident or the “certainty of its commission....”
During trial, Carolyn S. testified she had a brief relationship with defendant in 2004 that resulted in the birth of a child. In February 2007, Carolyn S. took the child to a motel to visit defendant. She noticed defendant had been drinking and said he could not do so in front of the child. When the child refused to let defendant hold him, defendant became “agitated.” Carolyn S. placed the child behind her and defendant began hitting her, unsuccessfully attempted to remove her pants, and then began choking her. She bit defendant on the hand, causing him to break off the attack. Carolyn S. grabbed the child, fled from the room, and called the police. As a result of this assault, Carolyn S. suffered bruising, a broken lip, redness on her neck, and pain in her jaw. The parties stipulated that, as a result of this incident, defendant suffered a misdemeanor conviction under section 273.5, subdivision (a).
b. Analysis
Defendant claims the trial court abused its discretion by allowing Carolyn S. to testify as to the prior domestic violence incident, arguing it was highly inflammatory and lacked sufficient similarity to the present case to support its use. The record reflects the trial court properly exercised its discretion.
Evidence Code section 1109, subdivision (a)(1) declares that, “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 [Evidence Code] [s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352.” “Under [Evidence Code] section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. Th[is] weighing process... 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 [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.]” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Johnson (2010) 185 Cal.App.4th 520, 531.)
“The word ‘prejudicial’ is not synonymous with ‘damaging.’ [Citation.] Rather, evidence is unduly prejudicial under [Evidence Code] section 352 only if it ‘“‘uniquely tends to evoke an emotional bias against the defendant as an individual and... has very little effect on the issues’”’ [citation], or if it invites the jury to prejudge ‘“‘a person or cause on the basis of extraneous factors’”’ [citation]. ‘Painting a person faithfully is not, of itself, unfair.’ [Citation.]” (People v. Johnson, supra, 185 Cal.App.4th at p. 534.)
As to the probative value of the prior act evidence, the court noted each involved a physical assault upon a woman when defendant had been drinking and after a verbal dispute arose between them. The probative value of another domestic violence act is strong if it is shows “substantial similarities” between the prior act and the charged offense. (People v. Morton (2008) 159 Cal.App.4th 239, 246-247, fn. omitted [claim that two domestic violence “incidents are not similar, because there was evidence [the victim] had provoked the attack in the current case, and no such evidence exists with” the prior incident, not considered “a material distinction, ” because “[i]n either case, the evidence suggests [the defendant] is prone to violent rages, and engages in punching and choking when in the throes of one”].) The trial court also noted the prior incident was probative on the issue of the credibility of Martinez’s initial report of the incident to the police.
“The probative value of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the [currently] charged offense.” (People v. Ewoldt (1994) 7 Cal.4th 380, 404; see also People v. Johnson, supra, 185 Cal.App.4th at p. 533 [“[a]lso weighing in favor of admissibility, ” is that “the evidence of the prior assault[] came from [an] independent source[], which reduced the danger of fabrication”].) That is the case here.
Another relevant factor favoring admissibility of the prior act evidence exists if “the court f[inds] presentation of the evidence would not consume inordinate time.” (People v. Johnson, supra, 185 Cal.App.4th at p. 533 [prior act “testimony consumed only seven pages of the transcript”].) Carolyn S.’s testimony was very short, covering only six pages of the trial transcript.
Defendant claims the prior incident “created a high probability the jury would confuse the issues” because “the jury was not made aware of the outcome of the incident involving Carolyn [S.]...” This argument is misleading. Carolyn S. testified the prior incident occurred at an Anaheim motel on February 11, 2007. The parties stipulated defendant was convicted a misdemeanor under section 273.5, subdivision (a) “on February 13, 2007 in Orange County Superior Court....” Furthermore, in closing argument defense counsel acknowledged defendant’s prior conviction arose from his assault on Carolyn S.
Defendant’s claim the prior incident was more inflammatory than the present case presents a debatable point. (People v. Morton, supra, 159 Cal.App.4th at p. 247 [“whatever prejudicial effect a prior uncharged crime might have is ‘decreased’ if the prior incident is ‘no more inflammatory than the testimony concerning the charged offenses’”].) Carolyn S. testified to a brutal beating where defendant hit her “[a]t least 15 to 20” times, attempted to remove her pants, and choked her. But in the present case defendant also grabbed Martinez by the throat, pushed her into some bushes, and cut her with a knife. The trial court also excluded, on a selective basis, aspects of the prior assault that it deemed inflammatory. While the assault on Carolyn S. is dissimilar because it apparently involved an unsuccessful sexual assault, the testimony on this point was very short and did not indicate sex was the primary motive of the attack. Defendant fails to cite to anything in the record suggesting the prosecution attempted to take advantage of it, and the court instructed the jury on the permissible uses of the prior domestic violence evidence in this case.
Under these circumstances, we cannot say the trial court acted in an arbitrary or capricious manner by allowing Carolyn S. to testify about defendant’s prior act of domestic violence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.