Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FVA015233, Raymond L. Haight, III, Judge.
Richard Jay Moller, 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, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Guadalupe Tovar was convicted of first degree murder, attempted premeditated murder and shooting at an inhabited dwelling. He contends the court prejudicially erred by admitting evidence of prior domestic violence he inflicted on the murder victim. We disagree and affirm the judgment.
FACTS
Tovar dated Talethi Strong for about five years starting in the mid 90’s. During that time, they had a child together. One afternoon in May 1999, Strong walked into the Fontana sheriff’s department crying, disheveled and out of breath. She had a large red mark on the upper part of her chest, and her wrists and forearms were scratched and bleeding. She claimed Tovar had poured a cup of hot soup down her back because she had been talking to another man. Then he followed her outside, grabbed her and shoved her into a tree stump. She made a run for it, and Tovar chased her across the street. However, her mother, Sharon McGee, arrived and took her to the police station.
McGee testified Strong was crying and upset when she picked her up that day. Strong told her she and Tovar had gotten into a fight and he had thrown her up against a tree trunk. She also said her chest hurt and she was having trouble breathing. McGee could tell she was in pain. After taking her to the police station, she took her to the hospital, where Strong was treated. The prosecution introduced documentary evidence showing Tovar pleaded guilty to inflicting corporeal punishment on a cohabitant in connection with this incident.
Strong’s friend Vicki Bruckler testified that one day in 1998 or 1999, she and Strong were talking in Bruckler’s driveway when Tovar came over and began screaming at Strong. He then pushed her and threw her belongings on the driveway. Following this incident, Strong moved out of Tovar’s house and began living with Bruckler. However, Tovar would sometimes come over to their house and spy on them. On various occasions, Bruckler saw him ducking underneath their windows trying to hear what she and Strong were talking about. Over the course of Tovar and Strong’s relationship, Bruckler also heard Tovar threaten to kill Strong. He told her that she was never going to leave him and that if he could not have her, nobody could.
Strong did leave, though, and in 2000 she began dating Louie Esparza. They lived together and planned to marry, but it was not to be. On the night of May 29, 2001, they arrived home to find Tovar driving erratically in front of their house. He was skidding and screeching his tires, and Esparza’s yelling at him had little effect on his behavior. It wasn’t until Esparza threw a tool at his car that Tovar finally drove away.
A couple hours later, Tovar returned to the scene. Esparza just happened to be in his driveway getting something from his van when Tovar pulled up and stopped in front of the driveway. Tovar promptly got out of his vehicle and began shooting at the house. Then he spotted Esparza crouching by his van and started shooting at him. When Esparza tried to throw a hammer at Tovar, Tovar shot him in the stomach.
At that point, Strong came running out of the house screaming at Tovar. She tried to disarm him, but it was no use. He struck her with his gun, pushed her down, and aimed his weapon at her. As she lay defenseless on the ground, he said, “I told you if I can’t have you nobody will.” Then he fired a fatal barrage of bullets into her.
The defense argued the shooting was a crime of passion and Tovar was provoked by Esparza’s actions. Hoping for a verdict of voluntary manslaughter, the defense also pointed out there was evidence Tovar had been drinking and using drugs on the night in question. However, the jury convicted him of murdering Strong in the first degree and attempting to murder Esparza with premeditation and deliberation. It also found him guilty of shooting at an inhabited dwelling.
I
Tovar contends the court violated his due process rights by admitting evidence of his prior abuse of Strong to show his propensity to commit the charged offenses. He also contends the evidence should have been excluded as being more prejudicial than probative. And, he insists the court’s instructions pertaining to this evidence were flawed. We reject each of these contentions.
Generally, evidence of the defendant’s prior bad acts is inadmissible to impugn his character and prove his propensity to commit the charged offenses. (Evid. Code, § 1101, subd. (a).) However, there is an exception to this rule in cases involving domestic violence. Section 1109 provides that in such cases, “evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a)(1).) Such evidence is admissible both to show that the defendant is predisposed to commit acts of domestic violence and that he committed the charged offenses. (See People v. Reilford (2003) 29 Cal.4th 1007, 1012-1013.)
All further statutory references are to the Evidence Code.
By its terms, section 1109 makes the introduction of prior acts of domestic violence subject to section 352, which empowers the trial court to exclude such evidence if its probative value is substantially outweighed by the danger of undue prejudice. Given this limitation on the use of propensity evidence, courts have consistently upheld section 1109 against claims it is violative of due process. (See, e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1338; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.)
In addition, the California Supreme Court has upheld section 1108 — an analogous provision that allows evidence of prior sex offenses to be used as propensity evidence in sex crime cases — against a challenge that it violated due process. (People v. Falsetta (1999) 21 Cal.4th 903.) In Falsetta, the court held that although section 1108 “represents a deviation from the historical practice of excluding . . . ‘propensity’ evidence (see § 1101, subd. (a)), the provision [comports with due process because it] preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352).” (People v. Falsetta, supra, 21 Cal.4th at p. 907.)
Despite these decisions, Tovar argues section 1109 violates due process because it allows a defendant to be convicted for “who he is,” as opposed to “what he did.” He relies heavily on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, in which the court found that the admission of evidence of the defendant’s prior involvement with knives at his trial for murder violated the tenets of due process. But as our Supreme Court pointed out in Falsetta, McKinney predated the enactment of sections 1108 and 1109. (See People v. Falsetta, supra, 21 Cal.4th at pp. 911, 921-922.) Therefore, it has limited utility with respect to those provisions. (Ibid.)
In any event, because McKinney was decided by a lower federal court, we are not bound to follow it. (People v. Madrid (1992) 7 Cal.App.4th 1888, 1895.) We are obliged to follow our own Supreme Court, however. (Ibid., citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) While Falsetta did not address the exact provision at issue here, our Supreme Court’s conclusion in that case is inescapable: The admission of evidence regarding a defendant’s prior conduct is constitutionally permissible in certain legislatively prescribed cases, so long as the court retains its discretion to exclude such evidence under section 352. Given Falsetta’s holding that the admission of prior sex crimes in a sex offense case does not violate due process, we conclude the admission of Tovar’s prior acts of domestic violence toward Strong did not violate due process.
The question remains whether the trial court abused its discretion under section 352 by admitting such evidence. In answering this question, we must consider such factors as “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 (2004) 124 Cal.App.4th 467, 479-480.)
We must also remember, “The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in . . . 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.)
The evidence of Tovar’s prior abuse of Strong was highly relevant because, while it was less serious than the charged offenses, it demonstrated he consistently resorted to violence in dealing with her. The evidence was a powerful antidote to the defense claim that Tovar’s actions were impulsive and emotional as opposed to deliberate and premeditated. Yet, there was little danger the jury would blend the past and present offenses because the latter occurred at a different time and place than the charged crimes. The evidence concerning the prior acts of domestic violence was very distinct in this regard. It also involved events that had occurred within a few years of the charged offenses. Therefore, it was not unduly remote.
Moreover, compared to the evidence on the charged offenses, which was extremely violent and disturbing, the evidence of Strong’s prior bad acts was relatively tame. It was also corroborated by multiple sources, thus enhancing its reliability. And the fact Tovar was convicted of domestic violence for pouring soup on Strong and throwing her into a tree stump lessened the possibility the jury would be inclined to find him guilty of the charged offenses simply to punish him for these prior acts: he had already been punished for them. All things considered, we cannot say the court erred in admitting evidence of Tovar’s prior abuse of Strong. No abuse of discretion has been shown.
Tovar also argues the court erred in instructing the jury it could use the evidence of his prior misconduct to infer guilt. He contends this allowed the jury to convict him based solely on the basis of his prior conduct, without regard to whether he committed the charged offenses. But that is not what the jurors were told. The court properly instructed them that the evidence of Tovar’s uncharged domestic violence was but a single factor in the case and that it was not sufficient by itself to find him guilty. Thus, the instructions did not, as Tovar contends, allow the jury to substitute proof of his prior domestic violence for proof of the charges offenses. Rather they permitted — but did not require — the jury to consider his prior domestic violence in assessing his propensity for violence, and, in turn, his guilt of the charged offenses. This was a proper use of the challenged evidence; no instructional error occurred. (See People v. Reilford, supra, 29 Cal.4th at p. 1013.)
II
The remaining issue pertains to one aspect of the prior domestic violence evidence, i.e., the statements Strong made to the police when she reported that Tovar had abused her. Tovar argues the statements were inadmissible because he did not have the opportunity to confront Strong at trial, and he may be right. But given all the other evidence of Tovar’s prior domestic violence that was properly admitted into evidence, and the overall strength of the case against Tovar, any error in admitting Strong’s police statement was surely harmless.
At the time of trial, the judge properly determined that this issue was governed by People v. Giles (2007) 40 Cal.4th 833, in which our Supreme Court ruled that a defendant who is charged with murder automatically forfeits his right to confront the victim. However, the United States Supreme Court recently overruled the California Supreme Court on this point. In Giles v. California (2008) __ U.S. __ (2008 D.A.R. 9491), the high court held that the forfeiture rule applies only when the defendant engages in conduct designed to prevent the witness from testifying. For example, where the evidence indicates the defendant’s motive for murder was “to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution,” her prior statements about domestic violence would be admissible under the forfeiture doctrine. (Id. at p. __.)
In this case, there is no such evidence. Rather, the record indicates Tovar murdered Strong out of personal vengeance and to keep anyone else from “having her.” Therefore, Strong’s statements to the police did not qualify for admission under the forfeiture doctrine.
The Attorney General argues the statements were nevertheless admissible under the Sixth Amendment because they were nontestimonial in nature. (See Crawford v. Washington (2004) 541 U.S. 36 [Sixth Amendment’s Confrontation Clause precludes the introduction of testimonial hearsay unless the declarant is unavailable for trial and the defendant had a prior opportunity for cross-examination].) He relies on People v. Saracoglu (2007) 152 Cal.App.4th 1584, which like this case, involved statements made to the police by the victim of domestic violence. However, one of the chief reasons the Saracoglu court found the victim’s statements admissible in that case is because the defendant had threatened to kill the victim if she went to the police, meaning the “emergency was ongoing.” (Id. at p. 1597.)
Here, in contrast, there is no evidence that Tovar had threatened to harm Strong if she reported him to the police. And because Strong was with her mother following the incident, the risk of danger to Strong was diminished. (Compare People v. Saracoglu, supra, 152 Cal.App.4th at p. 1597 [victim’s only companion at time of police report was a small child].) Like the victim in Saracoglu, Strong was no doubt distraught and scared when she talked to the police, but it is questionable whether the circumstances constituted an ongoing emergency such as to make her statements nontestimonial.
Regardless of this issue, it is clear to us that any error that occurred by virtue of admitting Strong’s police statements into evidence was harmless beyond a reasonable doubt. (See People v. Cage (2007) 40 Cal.4th 965, 991-994 [finding erroneous admission of testimonial hearsay harmless beyond a reasonable doubt].) That’s because nearly every aspect of Strong’s police statement was imparted to the jury through the testimony of other witnesses. Sharon McGee testified that when she picked up Strong on the day in question, Strong told her that she and Tovar had gotten into a fight and that he had thrown her up into the trunk of a tree. Strong also told her that her chest hurt and that she was having trouble breathing. These statements by Strong were not testimonial because they were not the product of police interrogation; rather, they were made for the purpose of enlightening McGee as to what was going on at the scene. Accordingly, their admission did not violate Tovar’s confrontation rights. (See id. at pp. 987-991.)
McGee’s testimony was corroborated, in turn, by the documentary evidence showing that Tovar pled guilty to inflicting corporeal punishment on a cohabitant in connection with this incident. It was also corroborated by the sheriff’s deputy who took Strong’s report. While it is debatable whether he should have been allowed to testify as to what Strong told him, his description of her tearful demeanor and physical injuries was admissible and right in line with McGee’s version of events.
There was one aspect of Strong’s police report that McGee did not testify about, and that relates to the allegation Tovar poured hot soup on her. However, this incident was not materially different from the tree trunk incident McGee testified about. Both incidents occurred as part of the same fracas McGee spoke of. And both incidents reflected a high degree of violence and hostility on Tovar’s part. In that sense, the evidence regarding the soup incident was largely cumulative of the evidence regarding the tree trunk incident. It was also cumulative of the prior acts described by Strong’s friend Vicki Bruckler, who testified that she witnessed Tovar physically abuse and threaten to kill Strong.
In assessing the issue of prejudice, we must also consider that the evidence against Tovar was nothing short of overwhelming. Tovar impugns the strength of the identification evidence, noting Esparza did not identify him as the shooter at trial. However, Esparza did positively identify Tovar to the police and others in the wake of the shooting. And there was evidence Esparza purposefully refrained from identifying Tovar at trial for fear of being labeled a “rat” in prison, where Esparza has spent time. Also telling is that Christina Acosta, who described Tovar as her “best friend,” told police Tovar implicated himself to her following the shooting. Taken together, the identification evidence was so strong that in closing argument, defense counsel hardly even talked about it. He pretty much conceded the issue of identity and instead focused on Tovar’s state of mind during the shooting.
For all these reasons, we do not believe the admission of Strong’s statement to the police made any difference in the case. In fact, because the essence
of her statement (that Tovar abused her) was properly admitted through other evidence, and because there was considerable evidence apart from the statement showing Tovar’s propensity for violence, we conclude any error in admitting the statement was entirely harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.