Opinion
E075933
02-15-2022
THE PEOPLE, Plaintiff and Respondent, v. VANDALLAS SMALLS, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI19003329, Tony Raphael, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
A jury convicted defendant and appellant Vandallas Smalls of domestic violence and making a criminal threat. He contends the trial court prejudicially erred by admitting evidence that he had abused three domestic partners and by declining to stay his sentence for the criminal threat conviction. We reject defendant's contentions and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The victim, D.S., began dating defendant in 2013 or 2014. They married in 2019 and had two sons together.
Defendant's first act of violence against D.S. was strangling her in 2017. D.S. called the police, but when they arrived, they told D.S. they could not do anything because she did not have any marks on her body. After they left, defendant told D.S. she should not have called the police. When defendant abused her again, D.S. did not call the police.
Defendant strangled D.S. a second time in March 2019. Defendant strangled her until she lost consciousness. When she regained consciousness, defendant was standing over her with a knife. Defendant told D.S., "'You know they have the saying, love kills.'"
The third and last time defendant strangled D.S. was in December 2019, when she was eight months pregnant. Defendant called her and said he was outside of their apartment in the car and that one of their sons was in the hospital. When D.S. got into the car, both of her sons were in the car and appeared fine.
Defendant then grabbed D.S. by the hair, pushed her head onto the center console, and held it there for five to 10 minutes as he drove into the desert. Defendant accused D.S. of cheating on him and said he would kill her if she did. Defendant parked the car and began strangling D.S. while saying that he should kill her. D.S. was afraid that she was going to lose consciousness and that defendant was going to kill her. Defendant then dragged D.S. out of the car and kicked and punched her.
After forcibly putting D.S. back into the car, defendant drove to a gas station. While there, defendant yelled at D.S. She opened the door to try to escape, but defendant grabbed her as she screamed for help. Someone at the gas station called 911.
Barstow Police Officer Juan Zepeda responded to the gas station and observed that D.S. was upset, crying, and fearful. She told Officer Zepeda that defendant grabbed her by the hair, strangled her, and told her that he should kill her. D.S. also showed Officer Zepeda how defendant strangled her.
D.S. married defendant shortly after this incident. She did so because she was afraid of him and he told her that he would hurt her if she left him.
A jury convicted defendant of making criminal threats (Pen. Code, § 422, subd. (a)) and battery against a cohabitant (§ 243, subd. (e)(1)). The trial court sentenced defendant to three years for the criminal threat conviction and one year for the domestic battery count. The trial court then denied defendant's motion under section 654 to stay his sentence for the battery conviction.
Unless otherwise indicated, all further statutory references are to the Penal Code.
III. DISCUSSION
Defendant asserts the trial court prejudicially erred by admitting testimony about defendant's abuse of three domestic partners and denying his section 654 motion. We disagree.
A. Evidence of Prior Domestic Abuse
1. Background
K.W. was in an on-again, off-again relationship with defendant for about 16 years. They married, but got divorced, yet continued to live together. K.W. estimated that defendant tried to choke her about 50 times during their relationship. He frequently threatened and punched her, bent her arms behind her back, and stomped her while she lay on the floor.
In 1994, defendant strangled K.W. and put her face under running water in the sink. In 1995, he pushed her into a door. In 1998, when she was living at a friend's house, defendant told her to come to their house so she could fix their daughter's hair for school picture day. When K.W. arrived, their daughter was not there and defendant held a knife to her throat. In 2006, defendant duct-taped K.W.'s mouth and hands and carried her into their house wrapped in a rug. In 2007, defendant threatened to hit K.W. with a hammer, picked her up by her neck, slammed her to the ground, pushed her head into the ground, and punched her in the face. Later that year, defendant put a pillow over K.W.'s face while she was sleeping and tried to choke her. In 2009, he punched K.W.'s back and head.
In 2011, defendant picked up K.W. in his car. K.W. and defendant were separated at the time, so defendant asked if she was seeing anyone. When she tried to get out, he grabbed her, told her she was not going anywhere, and drove about 10 minutes into the desert while pulling clumps of her hair out. When they stopped, defendant told her to get out of the car and take her clothes off. He then picked up a rock and said he would hit her with it, but he punched her in the stomach and kicked her about five times. He told K.W. that it was the last day she would be alive and that he would kill her. K.W. reported the incident to the police and defendant was convicted of domestic violence (§ 273.5, subd. (a)).
N.S. and defendant married in 2004 and stayed together until 2013. During most of the time N.S. and defendant lived together, K.W., then defendant's ex-wife, lived with them as well. K.W. saw defendant abuse N.S. about 20 times.
According to N.S., defendant beat her at least twice a week. In 2004, N.S. was upset and slammed a door. Defendant grabbed her by the hair, jerked her around, slammed her head against the door about 10 times, and choked her so hard that she began to lose consciousness. Defendant stopped the abuse because his sister arrived at the house. Defendant told N.S. not to tell his sister about the abuse. He also told her, "'Don't even think about calling the police while you're in here by yourself because if you do, when I get out, I'll finish you.'"
Defendant abused N.S. several times in 2006 and 2007, including while she was pregnant. He choked her, hit her head against the door, and locked her outside for a couple of hours. He hit her on the head, picked her up by the neck, shook her around, and slammed her on the floor. He also threw objects at her and punched her.
A.H. did not testify. Instead, the parties stipulated that defendant was convicted of domestic violence (§ 273.5, subd. (a)) in 2012 for abusing A.H. The prosecution did not move to admit facts about defendant's offense against A.H.
Over defendant's objection, the trial court admitted testimony from K.W. and N.S. that defendant abused them and evidence of defendant's conviction for domestic abuse of A.H. The trial court ruled that K.W. and N.S.'s testimony and evidence of defendant's conviction for abusing A.H. was admissible under Evidence Code section 1109. The trial court also found that evidence of the incidents where defendant strangled, threatened, and physically abused K.W. and N.S. was admissible under Evidence Code section 1101, subdivision (b). The trial court also found that none of the evidence was unduly prejudicial under Evidence Code section 352.
2. Applicable Law and Standard of Review
"'Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving . . . domestic violence (Evid. Code, § 1109).' [Citation.] . . . [Evidence Code] [s]ection 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]' . . ." (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
"'"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."'" (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706 (Cabrera), italics added.)
"Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown, supra, 192 Cal.App.4th at pp. 1232-1233.)
Evidence Code section 1101, subdivision (a) provides (with a few inapplicable exceptions) that evidence of a person's character or a character trait is inadmissible when offered to prove the person's conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, allows the admission of evidence that a person committed a crime "when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act."
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citations.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, superseded by statute on other grounds as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911-913.) "'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]'" (People v. Kelly (2007) 42 Cal.4th 763, 783.)
"'[T]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Kelly, supra, 42 Cal.4th at p. 783.) In other words, "[t]here must be sufficient evidence for the jury to find defendant committed both sets of acts, and sufficient similarities to demonstrate that in each instance the perpetrator acted with the same intent or motive." (People v. McCurdy (2014) 59 Cal.4th 1063, 1097.)
The admissibility of other crimes evidence thus "turns largely on the question whether the uncharged acts are sufficiently similar to the charged offenses to support a reasonable inference of the material fact they are offered to prove." (People v. Erving (1998) 63 Cal.App.4th 652, 659-660.) But because "other-crimes evidence is so inherently prejudicial, its relevancy is to be 'examined with care, '" must be "received with 'extreme caution,' and all doubts about its connection to the crime charged must be resolved in the accused's favor." (People v. Alcala (1984) 36 Cal.3d 604, 631, abrogated by statute on another ground as explained in People v. Falsetta, supra, 21 Cal.4th at p. 911.)
Even if evidence of a prior crime is admissible under Evidence Code section 1101, the trial court may exclude it under Evidence Code section 352 if it is unduly prejudicial. Evidence that is unduly prejudicial "'"uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'" (People v. Doolin (2009) 45 Cal.4th 390, 439.)
We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Jefferson (2015) 238 Cal.App.4th 494, 502; People v. Rogers (2013) 57 Cal.4th 296, 326.) The trial court abuses its discretion if it exercises its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rogers, supra, at p. 326.)
3. Analysis
The trial court's evidentiary rulings were not arbitrary, capricious, or patently absurd and thus were not an abuse of discretion. To begin with, all of the evidence about defendant's abuse of K.W., N.S., and A.H. was relevant because "evidence of prior acts [of domestic abuse] is particularly probative in demonstrating the propensity of the defendant." (Cabrera, supra, 152 Cal.App.4th at pp. 705-706.)
K.W. and N.S.'s testimony about defendant's abuse was highly probative because it tended to show a pattern of consistent, abusive behavior by defendant toward his cohabitating partners. K.W., N.S., and D.S. all claimed that defendant frequently choked, kicked, and hit them. Both K.W. and D.S. alleged that defendant drove them out to the desert in his car, beat them, and tried to prevent them from escaping while threatening them. The similarity between the incidents tended to prove that defendant had the same intent when committing the acts. (See People v. Morton (2008) 159 Cal.App.4th 239, 246-247 [evidence of prior uncharged offense admissible because "there were substantial similarities between the charged and uncharged incidents, . . . [where defendant] is described as first striking his victim in the face with a closed fist, and then choking her"].)
Defendant asserts that "much of the prior acts evidence" involving defendant's abuse of K.W. and N.S. was dissimilar to his abuse of D.S., and thus that evidence was inadmissible. We disagree. Although some of the incidents differ in their specifics, defendant's abuse of K.W., N.S., and D.S. revealed a continued theme of dominance and control, illustrated defendant's temperament and behavior, and showed his propensity to commit repeated acts of domestic violence, particularly when a domestic partner tried to leave him (physically or romantically). (Cabrera, supra, 152 Cal.App.4th at pp. 705-706.) Defendant's alleged consistent abuse of K.W. and N.S. was sufficiently similar to be probative in this case. The trial court reasonably found this similarity between the incidents and their repetition over the decades created a strong inference that defendant had a propensity to commit the charged acts.
Defendant asserts evidence about incidents involving K.W. and N.S. that occurred more than 10 years before his current offenses was inadmissible under Evidence Code section 1109, subdivision (e). That provision provides: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible . . . unless the court determines that the admission of this evidence is in the interest of justice." (Evid. Code, § 1109, subd. (e).) "[T]he 'interest of justice' exception is met where the trial court engages in a balancing of factors for and against admission under [Evidence Code] section 352 and concludes . . . that the evidence was 'more probative than prejudicial.'" (People v. Johnson (2010) 185 Cal.App.4th 520, 539-540.)
The trial court properly admitted the evidence under [Evidence Code] section 352 here. "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The trial court rationally found that K.W. and N.S.'s testimony about defendant's consistent abuse between 1994 and 2011 was highly probative because it highlighted the "repetitive nature" of defendant's abuse. The trial court also reasonably found that K.S. and D.S.'s testimony about the incidents was not unduly inflammatory because defendant's abuse of them was no worse than the abuse he inflicted on D.S., who was eight months pregnant at the time. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1315-1316 [no abuse of discretion in admitting evidence of a prior domestic violence incident no more egregious than the charged offense].) The fact that defendant was convicted of abusing A.H. also reduced any prejudice from the evidence about the conviction. (People v. Balcom (1994) 7 Cal.4th 414, 427.)
And although some of the incidents involving K.W. and N.S. occurred more than 10 years before defendant's current offenses, the trial court rationally found that the probative value of the incidents outweighed the prejudice arising from their remoteness. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 278, 281, 284 [evidence of uncharged sex offenses committed over 30 years prior was properly admitted under Evidence Code sections 1101 & 1108]; People v. Waples (2000) 79 Cal.App.4th 1389, 1392-1393, 1395 [evidence of uncharged sex offenses committed 18 to 25 years prior was properly admitted under Evidence Code section 352]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 990-992 [evidence uncharged sex offenses that occurred 20 to 30 years prior was properly admitted under Evidence Code sections 1108 & 352].)
In sum, the trial court did not abuse its discretion by admitting K.W. and N.S.'s testimony about defendant's abuse and evidence of defendant's conviction for domestic abuse against A.H.
B. Section 654
Defendant contends the trial court erred in declining to stay his sentence for the criminal threat conviction under section 654. We disagree.
In the trial court, defendant argued the trial court should stay his sentence on the domestic battery conviction (§ 243, subd. (e)(1)). On appeal, defendant contends the trial court should have stayed his sentence on the threat conviction. We conclude the trial court properly imposed both sentences irrespective of which sentence defendant argues should have been stayed.
1. Applicable Law and Standard of Review
Section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) "'"'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.'"' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
We review a trial court's ruling on whether section 654 applies for substantial evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
2. Analysis
The trial court "could reasonably have found that [defendant] committed the [battery] with the objective of inflicting physical harm on [D.S.], whereas [defendant] criminally threatened [D.S.] with the separate objective of inflicting mental or emotional harm." (In re Raymundo M., (2020) 52 Cal.App.5th 78, 95.) As the Raymundo M. court observed, "[c]ourts routinely recognize similar distinctions." (Ibid. [collecting cases holding section 654 did not apply when the defendant orally threatened the victim and then committed a separate, physically threatening offense like assault].)
Like the Raymundo M. court, we conclude that defendant's domestic battery and "criminal-threat counts arose from separate conduct that the [trial] court could reasonably have concluded were undertaken pursuant to separate objectives." (In re Raymundo M., supra, 52 Cal.App.5th at p. 95.) As in Raymundo M., the trial court could have reasonably found that defendant threatened D.S. with the intent to cause her emotional or mental harm (whether at that time or in the future) and battered her with the intent to cause her immediate physical harm. (Ibid.) In other words, the trial court could have reasonably found that defendant's objectives in threatening and battering D.S. were independent of, and not merely incidental to, each other. (See People v. Brents (2012) 53 Cal.4th 599, 618.)
Substantial evidence thus supports the trial court's finding that defendant acted with separate objectives when he battered and threatened D.S. (See People v. Brents, supra, 53 Cal.4th at p. 618 ["A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence."].) We therefore conclude the trial court did not err by declining to stay defendant's sentence for the criminal threat conviction under section 654.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., RAPHAEL J.