Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BA290708, David M. Mintz, Judge.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant Juan Tejeda guilty of the second degree murder of Gladys Quinones in violation of Penal Code section 187, subdivision (a), with the jury specially finding defendant personally used a deadly weapon, a putty knife (§ 12022, subd. (b)(1)), to kill her. The trial court imposed a sentence of 15 years to life for the murder plus an additional year for the weapon enhancement. In his timely appeal, defendant contends the trial court prejudicially erred in applying Evidence Code sections 1109 and 1101, and violated his constitutional right to due process by admitting evidence of defendant’s prior act of domestic abuse against the victim. He also contends the application of Evidence Code section 1109, which permits the admission of other acts of domestic violence under specified conditions, violated his federal due process rights. Finally, defendant contends the trial court improperly instructed the jury concerning the manner in which to consider the prior act of domestic violence.
All further statutory references are to the Penal Code, unless indicated otherwise.
We affirm.
STATEMENT OF FACTS
Prosecution
At approximately 4:10 p.m. on Friday September 23, 2005, victim Quinones received a call on her cell phone from her eldest son, Armando. In the background, Armando heard defendant yelling at her. Quinones told her son that she was “having problems” with defendant and needed to hang up.
Quinones’s youngest son, five-year-old Alex, was in the car with defendant and Quinones on the day of the murder. Alex had been sick that day and was dressed in pajamas. Quinones was late in picking up defendant from work. Once they were in the car, defendant and Quinones began to argue. When the car was parked, defendant choked her, pushed her out of the car, pulled a putty knife out of his back pocket, and began to stab her.
Albert Cortez was in his Mount Washington apartment when neighbors called for him to go outside because someone needed help. From his balcony, Cortez saw Alex standing by the fence at the back of the apartment complex. The boy was screaming that someone was hurting his mother. Cortez ran out of the apartment and up a hill where he saw defendant stabbing Quinones in her head with a putty knife. She was trying to get away, but defendant pursued her and continued to stab her in the head, even as she tried to block the blows with her hands. Defendant appeared to be enraged, “not caring that he’s hurting this person.”
Cortez, who had been joined by his friend Robert Solorzano, told defendant to stop, but defendant threatened them with the putty knife. Cortez and Solorzano ran to a nearby construction site to get some wooden boards. When they returned, defendant was seated on the curb over the now supine Quinones. She was covering her face with her hands as defendant continued to stab her. Cortez and Solorzano told defendant to stop. Defendant stabbed her head one more time, before throwing the knife away in the bushes. Cortez and Solorzano ordered defendant to lie down and spread his arms out. Defendant complied. Quinones could be heard saying in Spanish that she was dying and drowning in her blood. She also expressed concern for her son. As they awaited the paramedics and police, defendant appeared to calm down, but expressed no remorse and mentioned no provocation. During the stabbing incident, defendant told them not to get involved and to mind their own business
Consistent with Cortez’s testimony, Solorzano recalled hearing a male and female arguing and screaming outside his residence. When he investigated, he saw defendant stabbing Quinones. She was supine and bleeding. Defendant stabbed her face and her arms as she tried to fend him off. Solorzano called to defendant to stop, but defendant continued to attack Quinones. They quickly retrieved the wood from the construction site and threatened defendant to stop, but defendant stabbed Quinones in the forehead. Eventually, defendant threw the knife in the bushes and got down on the ground as ordered.
Officer Juan Amancio and his partner responded to the scene. Defendant had dried blood on his hands and clothing, but was uninjured. He appeared neither upset nor angry. The officer was directed to the murder weapon, the putty knife defendant had thrown away.
Quinones’s son Armando, who was 14 years old at the time of the murder, testified that defendant was his mother’s only boyfriend. She and defendant were always arguing about finances, particularly about defendant’s tendency to spend his pay “on bars and stuff.” Defendant was a jealous person. He would not allow Quinones to have male friends or business clients—he made her quit her job of “selling gold.” Armando never saw defendant strike Quinones, but he saw her often with bruises on her arms and a “couple” of times with bruises on her face. Defendant did not live with Quinones and her children, but he repeatedly called their home looking for her.
The forensic pathologist testified that Quinones suffered approximately 100 slash wounds and cuts, many of them to her scalp and forehead. She died of shock and loss of blood from those wounds. There were at least 6 cutting wounds to the back of her head, and 14 on her face and neck. She had also been cut 12 times in her chest and received a penetrating stab wound in her stomach. Three of her front teeth had been knocked out. He also identified defensive wounds on her arms and hands. Defendant’s putty knife could have caused her injuries.
Prior Act of Domestic Abuse
Angel, one of the victim’s children, was nine years old when he testified. Defendant had been his mother’s boyfriend. When Angel was seven years old, he was watching television on the couch while his mother slept in a bed with defendant. They were at the residence of Quinones’s friend, Claudia. Defendant went to the kitchen to “get something.” Angel fell asleep, but he awoke when his mother screamed. She was on the bed next to the couch and was bleeding from her chest and stomach. The knife was found under her bed. Defendant left the apartment and fled to Las Vegas. Quinones spent two weeks in the hospital. She later took Angel with her to visit defendant in Las Vegas.
Armando was 13 years old at the time of the stabbing. He was not present at the time of the stabbing, but returned to Claudia’s apartment to see his bloodied mother. There was also blood in the bed she shared with defendant. Approximately one or two months afterwards, Quinones went to Las Vegas with Alex and Angel to see defendant. They stayed for approximately two weeks. Defendant returned to Los Angeles a month later.
Quinones’s daughter Holariz testified that in April 2004, defendant was her mother’s boyfriend. At that time, Holariz and her daughter, along with Quinones’s three sons, were living together in Quinones’s Wilmington apartment. Quinones’s friend Claudia lived in a nearby apartment building. The stabbing occurred in Claudia’s apartment. When Holariz arrived at Claudia’s apartment, her mother had already been taken to the hospital. In the back of the refrigerator, which was 12 feet away from the bed where Quinones and defendant slept, she found a long kitchen knife, spotted with blood. The police were called and took the knife with them after making a report. Five months after the stabbing incident, Holariz noticed bruising on her mother’s arm. A few months after that, there was bruising around her mother’s eye. Quinones attributed the bruising to accidents not involving defendant.
Officer Michael Fairchild and his partner responded to the 2004 stabbing incident. Quinones had been stabbed three times—once in her left shoulder and twice in her stomach.
Defense
Isidro Rojas worked as a maintenance person at a jobsite where defendant was a painter. Rojas recalled that a woman “would come [to the jobsite] to yell at him,” typically on Fridays, which were paydays. She only heard the female yell. Once, the woman came to a restaurant where the workers were eating. She screamed at defendant to come outside and told him, “You will pay for this one day.” The owner told her to leave because she was screaming. Defendant responded “in an appropriate manner” that he would speak to her after work. Defendant was a good worker—honest, hardworking, and responsible.
Carlos Castellanos had been a friend of defendant for approximately six months before the Quinones killing. He also remembered a female visiting defendant regularly at the work site. She would yell at defendant and demand money in a rude, disrespectful manner that included swearing and pushing. Defendant remained calm; he did not become violent. He would walk away with the woman in order not to “make a scene.” Sometimes he would leave; other times he would return to work. Defendant was generous and a good friend. Defendant had a reputation as a heavy drinker. Castellanos had seen him “hung over” at work two or three times. At the end of each workday, the painters would typically return their tools, including putty knives, to a warehouse for storage.
Manuel Alonzo, another work associate, remembered a female showing up to the worksite “once or twice” and being “abusive” to defendant. She usually came by on paydays. He never saw her physically abuse defendant, nor did he see her talk with other men at the site. Defendant remained “well-behaved,” calm, and peaceful in response to the woman’s conduct.
Ruben Martinez worked with defendant for five years, painting houses and buildings. At times, Martinez was defendant’s supervisor. Defendant was respectful, honest, and hardworking. A female would visit the worksite weekly, usually on payday. She would scream and order defendant to come to her. Defendant would remain calm. Once she came to the restaurant where the workers ate lunch. She appeared at the door and shouted for him to come outside. He refused, saying he would speak to her later, at home. The owner asked her to leave, and she did so. The workers would watch for her visits to the worksite. They would warn defendant so he could hide from her. Tools like the murder weapon are typically left at the jobsite. Defendant often arrived at work “hung over.”
Estanislao Garcia owned the restaurant where defendant and his coworkers ate lunch. He had to “reprimand” the woman who came inside to insult defendant. Garcia had to insist repeatedly that she leave.
Defendant testified in his own behalf. He was born and attended school in Mexico, but left school in the second grade. His knowledge of English was very limited, as was his ability to write in Spanish. He had been in a relationship with Quinones for two years prior to her death. After two to three months, the relationship changed, and Quinones began to “mistreat” and “hit” him. When he returned from work, she would throw objects at him and falsely accuse him of seeing other women. Her blows would leave bruises on him. He would leave the apartment, but she would follow and yell and swear at him. He did not respond in kind. He stayed in the relationship because he loved her. Defendant gave his paychecks to Quinones, who came to his worksite to pick them up. From his pay, she would give him $40 to $60 for sodas.
Quinones frequently visited him at the worksite, where she would yell and swear at him. He would not yell back. Once, Quinones and her friend Claudia attacked him in a restaurant. They hit and scratched him. He did not retaliate, but just tried to run away. She told him that if he “wasn’t hers [he] would never be anybody else’s.” Another time, while he was painting on stilts, she tried to attack him with a hammer, swearing at him and threatening to break his legs.
Defendant once caught Quinones in a compromising situation with another man. Quinones infected defendant with Gonorrhea. When he told her, she responded, “that’s nothing compared to what you have coming” and laughed at him. After that, he stopped having sexual relations with her, but continued to give her his paychecks. Defendant remembered an incident in which Quinones attacked the father of her children. She swore at the man and shattered his passenger side window with her hand when he drove away from her.
On the day of the Quinones killing, defendant arrived late at work. His supervisor was angry with him and told him to leave. Defendant did not listen and began to prepare a room for painting, using his company putty knife on the wall. When it was almost lunchtime, he heard Quinones whistling and honking for him. He went downstairs to see her, with his putty knife in the back pocket of his pants because he planned on returning to work. He smelled beer when he opened the car door. She was “all dirty, and her eyes were red.” Her little son appeared not to have slept. When she asked why they looked that way, Quinones became verbally abusive and called him by another man’s name.
By that time, the other workers had gone to lunch. Quinones and defendant bought beer, at Quinones’s request. They returned to the worksite and drank three “big cans” of beer each. They drank and argued in the car until 3:30 or 4:00 that afternoon, when the paychecks were distributed. During that time, she was cursing him and hitting him, but did not retaliate in any way. Quinones drove him toward the freeway, yelling insults at him all the while. As they drove up a hill, defendant tried to leave the car, but Quinones accelerated. Soon afterward, she stopped the car and she yelled at him, “You’re no good as a man.”
Defendant got out of the car, but Quinones caught up with him on foot. She “threw [him] back and [he] hit her twice.” At that point, defendant “lost consciousness” and “everything happened.” He did not know what he had done to Quinones until he saw a “metallic instrument” in his hand. He threw it “off to the side,” and waited for the police to arrive. Defendant only remembered hitting Quinones with his hand a few times. He had no intent to harm her and did not know how the putty knife found its way into his hand. He did not recall attacking her with the knife, but testified that he felt “bad” for what happened to Quinones and was “ready to pay for it.”
Regarding the stabbing incident in 2004, defendant explained that he returned from work to find Quinones in bed with two men, and her young son on the sofa next to them. He left the apartment, but at her insistence he returned and went to the kitchen for something to eat. Quinones accused him of being unfaithful. She yelled at him and hit him. As he tried to escape through the window, he grabbed a knife “in desperation” and accidentally stabbed her in the stomach and ran away. Quinones later found him when he was working in Playa Vista.
On cross-examination, defendant admitted that he waived his Miranda rights and made statements to the investigating officer concerning the killing. Defendant said that he did not recall describing the stabbings he inflicted, but that his “head wasn’t right” at the time. When interviewed, he told Detective Carrillo that “hit her with the tool I work with.” He also admitted pulling her hair.
Miranda v. Arizona (1966) 384 U.S. 436.
Rebuttal
Solorzano testified that the little boy at the scene of the stabbing was “well dressed” in a flannel shirt and jeans. He did not appear dirty. Solorzano was trying to offer aid to Quinones. He was approximately five feet away from defendant during the confrontation. Solorzano smelled alcohol on neither one.
DISCUSSION
All of defendant’s appellate claims concern the admission of evidence of his prior act of domestic abuse, when he stabbed Quinones three times in April 2004. First, he challenges the trial court’s refusal to grant his motion to exclude the evidence on state evidentiary and federal due process grounds. Next, he contends Evidence Code section 1109, as applied to him, violated the federal Due Process Clause. Finally, defendant contends the trial court improperly modified the standard jury instruction concerning the admission of criminal propensity evidence (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 852). As we explain, there is a fundamental failing to all those arguments. Contrary to defendant’s repeated assertions, the prior act evidence was not admitted to show a propensity to commit acts of domestic violence. The trial court instructed the jury to consider the evidence for two limited purposes—to determine whether defendant’s mental state in committing the killing supported murder or manslaughter, and to assess defendant’s credibility. As the evidence was highly probative and nonprejudicial for those purposes, and the prosecution never argued otherwise, we reject defendant’s appellate claims.
The relevant procedural history is as follows: Prior to the taking of evidence at trial and outside the jury’s presence, defendant objected to the admission of prosecution testimony that defendant stabbed Quinones in April of 2004, asserting that the anticipated evidence was “unfairly prejudicial and not relevant.” The prosecution represented that it intended to offer the testimony pursuant to Evidence Code sections 1109, and 1101 subdivision (b). The trial court found the anticipated testimony admissible under both of those Evidence Code sections. In so doing, it applied the balancing test under Evidence Code section 352 and found the challenged evidence “highly probative and not substantially outweighed by any prejudicial effect or undue consumption of time.” The court found the prior act relevant to disprove defendant’s “heat of passion” manslaughter theory—that the killing was a single, aberrant violent explosion. It was also relevant to show defendant premeditated and deliberated the killing, and that defendant had reason to know his actions were likely to cause great bodily injury or death. Among the pertinent factors weighing against prejudice, the court found the prior stabbing was not remote in time from the charged offense and the nature of the prior act was significantly less inflammatory than the extreme brutality of the subsequent stabbing. The prompt manner in which the crime was reported tended to show the reliability of the witness statements. Further, there would be no undue consumption of time involved and no substantial danger or juror confusion between the charged and uncharged conduct.
“[I]n 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] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1109, subd. (a)(1).)
“Nothing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
At the close of evidence, the jury was instructed, pursuant to a modified version of CALCRIM No. 852, that the prosecution “presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: the stabbing that was alleged to have been committed in April of 2004.” The key terms of “domestic violence,” “abuse,” and “cohabitants” were defined. The jury was permitted to consider the evidence only if the prosecution had proved by a preponderance of the evidence that defendant committed the uncharged act of domestic violence. The uncharged act was admissible solely for two purposes: (1) to help determine (along with all other evidence admitted at trial) whether defendant committed murder or manslaughter; and (2) for determining defendant’s credibility. The court cautioned the jury that the uncharged act was insufficient alone to support a finding of murder or manslaughter. Rather, the prosecution was still required to prove each element of the charged offense beyond a reasonable doubt.
Challenge to Admission of Prior Act of Domestic Violence
Initially, defendant asserts the trial court abused its discretion by admitting the evidence of the 2004 stabbing because the evidence’s probative value was negligible and “grossly outweighed by the highly inflammatory evidence of a propensity [by defendant] to do violence.” According to defendant, the trial court’s admission of such propensity evidence created the danger the jury would convict defendant based on an inference that defendant was a person of bad character, who had a predisposition to commit crimes.
In enacting Evidence Code section 1109, the Legislature created a domestic violence exception to the evidentiary rule that prior criminal acts are generally inadmissible to prove a defendant’s propensity to commit the charged offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911; People v. Reyes (2008) 160 Cal.App.4th 246, 251; see People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) Pursuant to that statute, evidence of a defendant’s prior commission of domestic violence was admissible to show defendant’s propensity to commit the charged crime unless its probative value was outweighed by its prejudicial effect under Evidence Code section 352. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1309, 1313-1314.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Ledesma (2006) 39 Cal.4th 641, 705.) Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the likelihood of confusing or distracting jurors from the main inquiry before them, the remoteness of the prior acts, and whether the defendant has already been convicted and punished for the prior offense. (People v. Rucker, supra, 126 Cal.App.4th at p. 1119; People v. Falsetta, supra, 21 Cal.4th at p. 917 [discussing Evid. Code, § 352 analysis in regard to admission of prior sex crime evidence under Evid. Code, § 1108].) Our review of the record shows the trial court engaged in a careful and reasonable consideration of those factors in conducting its Evidence Code section 352 analysis.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
As shown above, however, and contrary to defendant’s appellate arguments, the prior act evidence was not admitted to show a propensity to commit acts of domestic violence. The trial court did not give the propensity aspect of the instruction contained in CALCRIM No. 852, which directs that, if the jury finds defendant committed the uncharged domestic violence, the jury may conclude from that evidence that defendant was “disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit [and did commit]” the charged offense. (CALCRIM No. 852.) Instead, the trial court instructed that the jury could consider the evidence only to determine whether defendant committed murder or manslaughter and whether defendant’s testimony was credible. “[W]e presume the jury adhered to the trial court’s limitations on this testimony.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; see also United States v. Olano (1993) 507 U.S. 725, 740.) Defendant offers no plausible reason to disregard that presumption.
The prosecutor never argued or implied that defendant had a criminal propensity or character. Consistent with the trial court’s ruling, the prosecutor invoked the 2004 stabbing to show that defendant had a “plan” to kill Quinones. Not only was the manner of committing both stabbings inconsistent with an “accident,” as defendant sought to characterize them at trial, but defendant learned from the 2004 incident that it would require numerous stab wounds to kill Quinones. In short, the homicide was not reconcilable with manslaughter because defendant intended “[t]o finish the job he started a year and a half before.” Of course, the jury was not obliged to credit defendant’s version of either stabbing incident, especially his uncorroborated assertions that Quinones attacked him first on both occasions.
We agree with the trial court that the evidence of the 2004 stabbing was highly probative as to whether defendant’s mental state comported with the premeditation and malice requirements of first and second degree murder—or whether defendant could establish that he was provoked and acted rashly, in a “heat of passion” consistent with voluntary manslaughter. From his actions in 2004, the jury could infer that defendant was not provoked, but intentionally armed himself with the putty knife and stabbed Quinones repeatedly in order to insure that he killed her. Nor can defendant seriously dispute that his prior act served to impeach his testimony that he took the putty knife from the worksite because he planned to return to work, and that he acted unconsciously in committing the fatal stabbing. The manner of both stabbings strongly evidenced an intent to harm, while there was no evidence to corroborate defendant’s testimony that the first stabbing was accidental and the second was unconsciously committed. Accordingly, the jury could reasonably infer that defendant’s testimony was false.
Nor do we perceive anything unreasonable in the trial court’s finding as to a lack of prejudice. There was no dispute that defendant committed the prior stabbing. The prosecution testimony was relatively straightforward, well-corroborated, and largely admitted by defendant. There was no significant danger of jury confusion. Additionally, although there was no evidence that defendant had been punished for that conduct, the nature of the charged offense was so much more vicious that there would have been little danger of the jury’s convicting him of the subsequent offense to punish him for the first. (See People v. Morton (2008) 159 Cal.App.4th 239, 248; People v. Jennings, supra, 81 Cal.App.4th at p. 1315.) In comparison, the prior act was not unduly inflammatory. (See People v. Williams (2008) 159 Cal.App.4th 141, 147; People v. Jennings, supra, at p. 1315; cf. People v. Morton, supra, at pp. 247-248.) As the prior incident occurred within two years of the charged offense, it was not remote in time. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [prior acts 30 years old not remote as a matter of law]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior offenses between 15 and 22 years old not too remote].)
In sum, defendant suffered no prejudice in the legal sense. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ Citation.” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Morton, supra, 159 Cal.App.4th at p. 249.) Moreover, the trial court instructed the jury with regard to the prior act evidence that such evidence was insufficient by itself to prove his guilt of the charged offense and that the prosecution was still required to prove each element of the charged offense beyond a reasonable doubt.
Defendant also attempts to apply the same arguments in support of his due process claim. As the Attorney General points out, however, defendant did not raise his due process concerns in the trial court. “To preserve an evidentiary issue for appeal, the complaining party generally is required to make a timely and meaningful objection in the trial court. (Evid. Code, § 353, subd. (a).) The purpose of this rule ‘is to encourage a defendant to bring any errors to the trial court’s attention so the court may correct or avoid the errors and provide the defendant with a fair trial.’ (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) Thus, an objection will be deemed sufficient so long as it ‘fairly apprises the trial court of the issue it is being called upon to decide. [Citations.]’ (People v. Scott (1978) 21 Cal.3d 284, 290.) The duty to object will be excused when an ‘objection or request for admonition would have been futile or would not have cured the [alleged] harm . . . .’ (People v. McDermott (2002) 28 Cal.4th 946, 1001.)” (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) The same rule applies to constitutional claims, such as defendant’s.
However, a “defendant may make a very narrow due process argument on appeal” notwithstanding failure to object on that ground when the appellate argument is that the “asserted error in admitting the evidence over [the defendant’s] Evidence Code section 352 objection had the additional legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 435.) That narrow claim fails in light of the foregoing analysis. “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (E.g., Id. at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta, supra, 21 Cal.4th at p. 913.) Here, the challenged evidence was properly admitted on two relevant and nonprejudicial grounds. (See People v. Falsetta, supra, at p. 913.)
Constitutional Challenge to Evidence Code Section 1109
Defendant contends that, as applied to him, Evidence Code section 1109 violated his federal due process rights because it allowed the jury to consider his propensity to commit acts of domestic violence. Once again, this contention misses the mark because the challenged evidence was not admitted as criminal propensity evidence. In any event, our appellate courts have uniformly rejected analogous due process challenges. As our colleagues in the Third District cogently explain, the California Supreme Court precedent leaves no room for serious doubt on this point: “Our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta[, supra, ] 21 Cal.4th [at p.] 915.) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of [Evidence Code] section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 (People v. Jennings[, supra, ] 81 Cal.App.4th [at p.] 1312; People v. Price (2004) 120 Cal.App.4th 224, 240) and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02. (People v. Pescador (2004) 119 Cal.App.4th 252, 261-262.) In fact, this court has held ‘[f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1097, fn. 7 [(Escobar)].)’ [Citation.]” (People v. Reyes, supra, 160 Cal.App.4th at p. 251.)
Accordingly, defendant’s invocation of Estelle v. McGuire, supra, 502 U.S. at page 75, footnote 5, for the proposition that the federal Supreme Court has yet to reach an “opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime” is beside the point raised on appeal.
Instructional Challenge
Finally, defendant contends the trial court improperly modified the standard jury instruction concerning the admission of criminal propensity evidence (CALCRIM No. 852) so that it failed to give the jury adequate direction as to the purposes for which the prior act evidence could be considered, and because the court failed to specially instruct the jury not to infer that defendant had a “bad character” and a general disposition to commit crimes. Defendant’s contention fails for two independent reasons: (1) the modification he challenges was the very same one he requested the trial court to make; and (2) the instruction as given comported with California law, clearly limited the manner in which the prior act could be considered, and effectively proscribed the jury from considering that evidence to show a propensity to commit crimes.
The trial court questioned defense counsel on the record regarding an agreement previously reached to modify CALCRIM No. 852. Counsel represented that she wanted the court to make the modification referenced in the commentary to that pattern instruction. The commentary proposed an alternative version of the pattern paragraph instructing the jurors that it was permissible to infer from defendant’s commission of the uncharged domestic violence that “defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit [and did commit]” the charged offense. (CALCRIM No. 852.) The alternative would replace that paragraph with language permitting the jury to consider the prior act evidence, together with “all the other evidence received during the trial,” to assist the jury in determining “whether the defendant committed” the charged offense. (Com. to CALCRIM No. 852, p. 660.)
The comment’s alternative was a response to criticism in People v. James (2000) 81 Cal.App.4th 1343 (James), directed at a prior version of the pattern instruction: “[T]o the degree it still suggests that other offense evidence is relevant only to infer guilt from propensity, we believe the instruction simultaneously overstates and unduly limits the use of such evidence.” (Id. at p. 1357, fn. 8.) As the James court explained, in People v. Falsetta, supra, 21 Cal.4th at page 922, our Supreme Court “acknowledged that other crimes evidence may be considered for a variety of purposes ‘such as establishing defendant’s motive, intent, or identity (if those issues remain contested), or bolstering the young victim’s credibility.’” (James, supra, at p. 1357, fn. 8.) The James court therefore proposed that “an instruction in general terms would be more appropriate, leaving particular inferences for the argument of counsel and the jury’s common sense.” (Ibid.) The Comment to CALCRIM No. 852 at page 660 referenced both the James rationale and its proposed alternative language.
Now, defendant argues the trial court erred and violated his federal constitutional right to a due process and a fair trial by making the modification he requested. “As respondent correctly points out, however, defendant is barred from challenging the trial court’s instruction because the error, if any, was invited. As we have explained, ‘[t]he doctrine of invited error bars defendant from challenging an instruction given by the trial court when the defendant has made a “conscious and deliberate tactical choice”’ to request the instruction.” (People v. Lewis (2001) 25 Cal.4th 610, 667.) As in Lewis, the record shows that counsel’s request was consciously and deliberately made as a matter of trial tactics. That choice made good sense because trial counsel avoided having the court instruct the jury that the prior act could be considered as showing a propensity to commit acts of domestic violence. Indeed, counsel achieved a better result for defendant than that necessarily dictated by the James modification because the court further restricted the bases for which the prior act could be considered to “whether the defendant committed murder or manslaughter” and “the limited purpose of determining the defendant’s credibility.”
We recognize that the James modification need not rule out propensity considerations, but based on the way it was stated and understood by the parties, it had that effect in this trial. Defendant also argues the trial court failed to give him notice or the opportunity to contest “the propriety” of the limiting instruction as to the admissibility of the evidence for the stated credibility purpose. The record makes it clear, however, that defendant had ample opportunity to interpose a timely and specific objection, but failed to do so. Accordingly, he failed to preserve that claim for appeal. Contrary to his assertion on appeal, the credibility aspect of admissibility was implicit in the trial court’s pretrial ruling under Evidence Code sections 1109 and 352 when the court found the prior act evidence admissible to refute defendant’s voluntary manslaughter defense.
In any event, defendant is mistaken in his assertion that the instruction failed to impose any limitation on the manner in which the prior act evidence could be considered, leaving the jury “free to use the evidence to convict based upon a finding that [defendant] was a bad and violent person.” To the contrary, as we have shown, the instruction delineated only two bases for which the evidence could be considered and did not list criminal propensity as an option. As we have also explained, the prosecutor respected those limitations and did not argue that the prior act showed criminal propensity, but that it tended to support a finding of premeditation and deliberation—and tended to refute a “heat of passion” mental state. Therefore, decisions such as People v. Swearington (1977) 71 Cal.App.3d 935, 947, which recognize the trial court’s obligation to tailor pattern instructions on the consideration of other crimes evidence so as to eliminate irrelevant and improper bases for consideration, have no application to this case.
Nor can defendant properly claim on appeal that the trial court erred by failing to give a special admonition from CALCRIM No. 375, which applies to consideration of evidence admitted under Evidence Code section 1101, subdivision (b), and proscribes the jury from concluding from the prior act evidence that “defendant has a bad character or is disposed to commit crime.” Defendant failed to request that special admonition and such “pinpoint instructions ‘are not required to be given sua sponte.’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 361.) Moreover, although the court initially indicated that the prior act was admissible under both Evidence Code sections 1109 and 1101, subdivision (b), the jury was not instructed on admissibility under the latter provision, and the prosecution did not argue that theory. As such, the defense had no good reason to request a special admonition based on an inapplicable theory of admissibility.
It follows that any error would have been harmless whether assessed in terms of People v. Watson (1956) 46 Cal.2d 818, 836, “which asks whether it is reasonably probable appellant would have achieved a more favorable result if the court had not given the instruction” (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7), or the harmless-beyond-a-reasonable-doubt standard for federal constitutional error under Chapman v. California (1967) 386 U.S. 18, 24. There was no reasonable probability the jury would have understood and applied the instruction in the manner he argues.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.