Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF111323. J. Thompson Hanks, Judge.
Nancy L. Tetreault, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
A jury found defendant guilty of one count of making a criminal threat (Pen. Code, § 422) and two counts of spousal battery (Pen. Code, § 243, subd. (e)(1)). The jury found defendant not guilty of dissuading a witness (Pen. Code, § 136.1), severing a telephone line (Pen. Code, § 591), and assault with a knife (Pen. Code, § 245, subd. (a)(1)). Subsequently, the court suspended defendant’s sentence and granted him three years of formal probation with 360 days in county jail. On appeal, defendant contends (1) Evidence Code section 1109 violates the due process clause of the Fourteenth Amendment, and, in the alternative, (2) the trial court abused its discretion in admitting evidence of defendant’s prior acts of domestic violence. We reject these contentions and affirm the judgment.
All future statutory references are to the Evidence Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Elvira B. were married in 1992 and divorced 14 years later in 2006. They had two children, Carlos Jr. and Cassandra.
A. March 20, 2003, Incident (Count 6)
On the morning of March 20, 2003, defendant stated to Elvira that he wanted to discuss the problems they were having. Elvira said she did not feel like talking about the problems and left the bedroom. She walked into the hallway between the children’s bedrooms and began singing to them. As she stood there with her back to defendant, he kicked her twice in the lower back. Elvira walked into the bathroom and began crying from the pain.
Cassandra, who was then 11 years old, heard her mother’s singing interrupted by a loud thump. She got out of bed and went to where her mother was. She heard her mother crying in the bathroom and asked her what was wrong. Elvira told her nothing was wrong, so Cassandra returned to her bed.
Though she was experiencing pain, she did not call the police or see a doctor that day. However, the following day, she went to an urgent care clinic at Kaiser Hospital and informed the treating medical personnel that her back pain was caused by her husband kicking her. The treating medical personnel advised her that he had to report the incident to the police, as he was under a legal obligation to report acts of spousal abuse even if Elvira did not want to report the incident. A medical report reflected a “contusion in the lumbar-dorsal area of the back.” At some point, the medical personnel became aware that defendant was at the reception area of the urgent care demanding to see his wife. His angry demeanor prompted the hospital staff to call the police. The treating medical personnel filed a state-mandated domestic violence report regarding Elvira’s condition.
B. May 10, 2003, Incidents (Counts 1 and 5)
On May 10, 2003, Elvira spent the day with Cassandra at Elvira’s mother’s house to celebrate Mother’s Day. When they returned home around 10:00 p.m., defendant was upset because Elvira had been gone all day. Defendant repeatedly called her names such as “whore.” Elvira tried to get into her bedroom without speaking to defendant, but he blocked her way. Elvira told defendant that all she wanted to do was to go to sleep and tried to pass him. Defendant grabbed her by the arm with both hands, pushed her, and told her to leave the house. He appeared very angry, and Elvira was afraid that he was going to hurt her. In the past, defendant had kicked her, pulled her hair, hit her with a closed fist, and pushed her. Elvira felt neither she nor the children were safe when defendant went into violent rages.
Elvira knew she had to call the police. As she tried to get away from him, he grabbed Elvira’s arm with both hands and began pulling her to the front door. Cassandra saw her father pushing her mother out the front door and her mother falling back. Elvira told her to call the police, so Cassandra reached for the telephone.
Cassandra had observed her father, drinking, in front of the house when they arrived home, and he was angry that Elvira had been out late at her mother’s house. Defendant did not like them to be at Elvira’s mother’s house. Cassandra tried to separate her parents because she worried that defendant would do something violent to her mother, as he had done in the past.
Defendant stopped the 911 call, pushing at both Elvira and Cassandra and finally breaking the telephone and pulling it off the wall. The telephone was also a printer-facsimile machine combination, and defendant destroyed the face plate to prevent any dialing. Thereafter, defendant walked out of the apartment. Afraid, Cassandra immediately locked the front door behind defendant. Carlos Jr. also appeared afraid. Elvira told Cassandra they were going to leave and call the police. Carlos Jr. was hesitant to leave out of fear.
As Elvira and the children headed toward her car, defendant angrily threatened, “I’ll kill you if you call the police.” Cassandra heard him say something like, “You’re going to be six feet under.” Elvira and the children feared for their safety.
Elvira and the children got to the car and drove to a market to call the police from a pay phone. Officer Patrick Watters responded to the call and met Elvira at the market. Officer Watters noticed Elvira and the children appeared upset; Elvira was scared and tearful. The officer then escorted Elvira and the children to the apartment. They heard music and saw lights in the home but found no one there upon entry. Officer Watters did see the smashed telephone and noted that it looked inoperable. Elvira gathered her personal belongings and left the home with the children. The officers obtained an emergency protective order on behalf of Elvira and the children out of concern for their safety.
Though Elvira and the children moved back in with defendant following the above incidents, Elvira eventually obtained a restraining order against defendant and then filed for divorce in April, 2003.
C. Prior Uncharged Incidents
In addition to the charged offenses, Elvira described how defendant had a history of domestic violence. For example, in 1991, while Elvira was pregnant with Cassandra, defendant struck her hard in the back twice with a closed fist after they argued. Elvira went into labor the next day but did not report the incident.
In 1992, defendant beat Elvira up in the parking lot of a hospital. The events leading up to the beating began earlier that day at a cousin’s home after Carlos Jr. got his fingers caught in a chain; his fingers began bruising, and Elvira wanted him seen by a doctor. Defendant was drunk, so someone else offered to drive. Defendant refused and, intoxicated, drove the family to the hospital. By the time they got to the hospital parking lot, Carlos Jr. was able to move his fingers. Elvira decided they did not need to wait several hours to see a doctor. Defendant remembered something Elvira had said at the family gathering and became increasingly angry at her. Because of his escalating anger, Elvira moved herself and the children to the back of the truck under the camper shell. Defendant walked to the back of the truck and began alternately kicking and punching Elvira through the camper shell’s back hatch. Because she hunched over the children to protect them, defendant’s blows struck her back. Elvira did not report this incident, as defendant’s grandmother died the following day, and she felt sorry for defendant.
In 1994 or 1995, as the family was leaving a wedding reception, defendant asked Elvira to drive the truck because he had been drinking. Elvira refused, as she did not know how to drive a stick shift. Defendant became furious. He got into the driver’s seat and began punching Elvira and pulling her hair as they drove home. He failed to stop at a red light and blamed Elvira. He continued to hit her on her upper back, pull her hair, and call her demeaning names all the way home.
In 1997 or 1998, while visiting Elvira’s family in Mexico, defendant became angry at Elvira for spending a night at her grandmother’s home. Defendant, who had been drinking, attacked her while she slept. Elvira woke to defendant punching and kneeing her in the back.
Several more incidents occurred in Riverside. In one incident, defendant pinned Elvira down and started fondling her and forcing himself on her sexually after coming to bed drunk. This force caused Elvira’s back to crack. She was in pain.
In January 2001 after Elvira joined her sister for a birthday celebration. She had reluctantly agreed as defendant did not like her to go out without his knowing. Elvira’s parents babysat the children. When she returned home, defendant confronted her and, in the presence of the children, called her a “whore” and a “bitch” and moved as if to strike her. Each time defendant approached, Cassandra intervened and told him, “You’re not going to hurt my mommy . . . .” Cassandra stood in between them because she feared defendant was going to hurt her mother. Carlos Jr. threatened he would call the police, but he became frightened after defendant cursed at him.
In November 2001, Elvira asked defendant to go with her to the gas station to fill a flat tire on their car. They drove to the gas station on the flat tire, which ruined the tire. Because there was no way to repair the tire, Elvira decided to drive the car back home. On the way home, the car ran out of gas. Defendant was very drunk at the time and started laughing at the situation. Elvira told defendant to stay in the car so she could walk home and get the second car. Defendant told Elvira to wait for him. She did not. Defendant tried to catch up with her and became more upset, calling her names. Defendant eventually caught up to Elvira and threw her into some bushes. He pinned her down and said, “If I wanted to, I could kill you.” Defendant kicked her in the back and pushed her down again after she freed herself. He left Elvira on the ground and walked home. Elvira had to limp home because of the back pain. Elvira’s children were waiting for her on the front lawn. She gathered her children and drove to the spot where defendant had knocked her down to collect the contents from her purse, which had spilled into the bushes. Elvira did not call the police that day but filed a police report about a week later.
In November or December 2002, Elvira obtained a restraining order against defendant after he threatened to kill her, and she began staying at her mother’s home. Defendant became angry because Elvira was not at work when he stopped by and accused her of “cheat[ing]” on him.
By January 2003, Elvira had the restraining order lifted and returned home to work things out so they could be a family. Defendant placed conditions on her return, such as no cell phone, job, or visits with her mother, and stated that if he saw one thing he was going to kill her. Elvira admitted on cross-examination that she did not believe defendant would actually kill her, but she did believe defendant was capable of physically hurting her.
Elvira suspected that defendant stalked her. Throughout their relationship, defendant offered observations about events attended by Elvira at which he was supposedly not present. Elvira also caught him parked near her mother’s home once.
In September 2003, defendant rammed Elvira into Cassandra’s bedroom door as she was getting ready to sleep in Cassandra’s bedroom. He injured Elvira’s elbow, and she called the police. Defendant tried to act as if he had been playing when he thrust the door open.
Carlos Jr. testified on behalf of the defense. He stated that he never saw his father physically abuse his mother or threaten to kill her. He recalled that they did argue a lot. Carols Jr. admitted that he tried to stay away at these times, but he denied being afraid of defendant. The only incident he recalled was the Mother’s Day incident. He recalled that while he was in another room, he heard an argument and a sound like something dropped; then his father went outside. As he and his mother and sister walked to the car, defendant appeared upset and cursed, but Carlos Jr. did not hear defendant threaten his mother. He admitted, however, that his mother wanted to call the police and appeared frightened. He also admitted that when Elvira left to go to her mother’s home, he did not heed his father’s request that he stay.
II
DISCUSSION
A. Constitutionality of Section 1109
Defendant contends that the provisions of section 1109, authorizing the admission of propensity evidence in domestic violence cases, is unconstitutional on its face, as it offends traditional notions of due process and fair play. He relies on Cooper v. Oklahoma (1996) 517 U.S. 348 [116 S.Ct. 1373, 134 L.Ed.2d 498] in support of the contention. We reject the contention.
Section 1109, subdivision (a)(1), provides: “Except as provided in subdivision (e) or (f), 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
People v. Escobar (2000) 82 Cal.App.4th 1085, 1095 explained: “In order to establish a due process violation, appellant bears a heavy burden of showing that admission of evidence pursuant to section 1109 unduly offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. [Citations.] As our Supreme Court recently observed: ‘The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.’ [Citations.]”
In Cooper, the United States Supreme Court addressed whether Oklahoma’s statutory requirement that a defendant establish incompetency by clear and convincing evidence placed such an onerous burden on the defendant that it denied him due process. (Cooper v. Oklahoma, supra, 517 U.S. at p. 350.) The court examined the historical and contemporary procedures for determining competency and found a near uniform application of a standard that a defendant was required to prove incompetence by a preponderance of the evidence. (Id. at pp. 355-362.) Based upon this near uniformity in procedures, the court concluded that a criminal defendant has a fundamental right not to stand trial when it is more likely than not that he lacked the capacity to understand the proceedings against him or to communicate effectively with counsel. (Id. at pp. 362-364.) It struck down the Oklahoma statute, finding that Oklahoma’s heightened statutory standard for establishing incompetency offended a principle of justice that was deeply “‘rooted in the traditions and conscience of our people.’” (Id. at p. 362.)
Defendant urges us to examine the historical and contemporary precedents barring the use of propensity evidence and find that section 1109 is unconstitutional on its face, as the use of propensity evidence offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. However, in People v. Hoover (2000) 77 Cal.App.4th 1020 (Hoover), this court rejected a similar challenge. We adopted the California Supreme Court’s reasoning in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), which addressed the constitutionality of a similar statutory provision, section 1108, concerning evidence of prior sex offenses. (Hoover, at pp. 1026-1027.) We held that despite the general rule against the use of evidence of a defendant’s propensity to commit crimes, the Legislature’s intent to permit such evidence in certain limited and compelling circumstances, and a trial court’s application of section 352 to safeguard a defendant’s right to a fair trial, supported the conclusion that section 1109 did not violate the due process clause. (Hoover, at pp. 1027-1028.) Other appellate courts have arrived at the same conclusion. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 714, and cases cited therein.) We decline defendant’s invitation to reconsider Hoover. We agree with Hoover and Falsetta and with their progeny. Historical and contemporary precedents do not lead us to conclude that the jury’s consideration of any prior instances of domestic violence violated defendant’s fundamental constitutional rights on the issue of his guilt.
The Legislature made the choice that in a limited type of case propensity evidence was probative and necessary to attack the difficulties in prosecuting domestic violence. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334.) The legislative history of the statute is set out for us in Hoover: “‘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. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.’ (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)” (Hoover, supra, 77 Cal.App.4th at pp. 1027-1028.) Cooper does not preclude us from considering contemporary policies supporting the admission of such evidence at trial.
Furthermore, the careful weighing process required pursuant to section 352 serves to protect defendants from the use of propensity evidence that would deprive him of a fair trial. (Falsetta, supra, 21 Cal.4th at pp. 917-922.) Nonetheless, defendant argues that section 352 is inadequate protection against the unfair admission of uncharged acts. As he acknowledges, this argument was expressly rejected by our Supreme Court in Falsetta. Accordingly, we do not find the statute unconstitutional on its face.
B. Admission of Priors Uncharged Acts of Domestic Violence
Defendant also contends that the trial court abused its discretion by admitting the propensity evidence at trial. We disagree.
“‘Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.’” (People v. Brown, supra, 77 Cal.App.4th at p. 1337.) The trial court’s exercise of such discretion will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.) “‘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.)
Defendant claims that the decision in People v. Harris (1998) 60 Cal.App.4th 727 (Harris) compels a reversal. In Harris, the defendant, an older male mental health nurse, was convicted of fondling and kissing two mental health patients, one of whom was incapacitated and the other of whom was a former sex partner. At trial, the defendant claimed one victim was hallucinating and the other victim had consented to his sexual overtures. The People used uncharged propensity evidence at trial, introducing evidence that in the defendant’s youth, he had violently raped a woman living in the apartment complex that he managed. The prior incident was redacted to the point that the jury was misled about exactly what had occurred during the rape. (Id. at pp. 730-733.)
The Harris court held that the trial court abused its discretion in permitting the jury to consider the prior rape as evidence of propensity. The court observed that the offense was not similar and thus not probative, and it was highly inflammatory: There was a significant difference between the sexual assaults of fondling an incapacitated woman and a former sexual partner and the earlier violent and bloody rape that the defendant committed on a stranger. (Harris, supra, 60 Cal.App.4th at pp. 737-738, 740-741.) The court said that the jury may have concluded from the evidence that the defendant was convicted only of burglary, and otherwise escaped punishment. Because the prior incident was so brutal, the jury may well have convicted him in the current case since he had earlier escaped punishment for the rape. (Id. at pp. 738-739.) The rape occurred 23 years prior to the current offense. From the time of his parole in 1978, he had suffered only one conviction, for misdemeanor drunk driving. The use of the propensity evidence involved complicated jury instructions and admonitions, and comment on the rape by the attorneys occupied a good portion of final argument. (Id. at p. 739.) After examining all these factors, the court noted that the consumption of time was the only factor supporting use of the 23-year-old rape offense and found the trial court abused its discretion by admitting the evidence. The court concluded that because the evidence was so critical and unfairly prejudicial, the defendant was denied a fair trial. (Id. at p. 741.)
The circumstances here can clearly be distinguished from those in Harris. After conducting a section 402 hearing and considering briefing from counsel, the trial court admitted nine acts of uncharged domestic violence as more probative than prejudicial. Defendant’s prior uncharged acts of domestic violence on his wife were highly relevant, as he claimed that he never threatened his wife physically or verbally but merely argued with her. The fact that defendant repeatedly battered and verbally threatened his wife in the past, sometimes in front of their children, was highly relevant to whether defendant committed the crimes as charged. The uncharged acts also assisted in explaining why the victim took so long to call the police and/or obtain a restraining order, as well as to explain why she went back to defendant after leaving him. Through his abuse, defendant controlled her and made her feel ashamed and fearful. It was precisely how the prosecutor argued the relevance of the evidence to the jury. The prior incidents of violence were sufficiently similar to the current offenses so as to be highly relevant to show that the victim’s and her daughter’s out-of-court complaints were true. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1307, 1316.)
In addition, none of the offenses was too remote. At trial, defendant complained about the 1991 and 1992 incidents because they were over 10 years old. The court rejected defendant’s argument and implicitly found the earlier offenses provided appropriate context to defendant’s conduct in the charged offenses as well as the victim’s state of mind in not reporting defendant’s multiple attacks to police. Moreover, the jury was properly instructed on the use of propensity evidence, and the use of the prior acts of violence had no tendency to confuse, mislead, or distract the jurors from their main inquiry in the case — determining if defendant had committed the instant offenses.
Furthermore, the “testimony describing defendant’s uncharged acts . . . was . . . no more inflammatory than the testimony concerning the charged offenses.” (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The uncharged acts were of a similar nature to the charged offenses, consisting principally of defendant hitting the victim’s back and using demeaning language following his abuse of alcohol. The fact that defendant once punched the victim when she was pregnant and hit her in the back while she hunched over the children did not prove the uncharged acts were unduly inflammatory or tend to evoke an irrational emotional response.
The jury’s verdict supports the lack of inflammatory nature of the evidence. Despite undisputed evidence that defendant pointed a knife at his wife and said he could stab her with it and that he destroyed a telephone to prevent his daughter from calling the police, the jury acquitted defendant of those charges. Clearly the jury was not swayed by emotion or willing to convict defendant of charged offenses simply because they also heard evidence of defendant’s prior uncharged acts. There was little risk that defendant’s prior incidents might lead the jury to punish defendant for prior acts of violence in which he had escaped punishment.
Additionally, proving the prior incidents of violence was not time consuming, and their proof did not overshadow the evidence and issues involved in the current offenses. As defendant notes, the same amount of time was spent on the uncharged acts as the charged acts. Though defendant finds this an undue consumption of time, given the probative value of the prior acts of violence, we are satisfied that the trial court’s decision to expose defendant to a minimal risk of potential prejudice was a proper exercise of discretion.
Moreover, the victim’s claims of prior abuse were substantially corroborated by her daughter. In addition to corroborating the charged offenses, the victim’s daughter witnessed and corroborated defendant’s general willingness to use violence, defendant’s violent reaction when the victim celebrated her sister’s birthday, the effect of defendant’s attack on the victim following the running-out-of-gas incident, the time defendant thrust a door into the victim’s elbow, and defendant’s use of threats. Though the victim’s son testified on behalf of defendant, his testimony also corroborated the facts that his parents argued often, that he saw his mother afraid of defendant, and that she wanted the help of the police. Contrary to defendant’s contention, the victim’s son’s testimony did nothing to impeach either the testimony of the victim or the victim’s daughter. Carlos Jr. himself admitted that he removed himself from the scene when his parents’ frequent fights began.
On this record, we find that the trial court properly exercised its discretion by admitting the nine prior acts of violence. As such, the use of the propensity evidence did not deny defendant due process and a fair trial.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.