Opinion
D052607
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. JOHN R. VAUGHN, Defendant and Appellant.
Not to be Published in Official Reports
John Vaughn appeals from a judgment convicting him of criminal threat with a true finding that he used a deadly weapon, misdemeanor battery, and two counts of misdemeanor vandalism. He argues: (1) the evidence is insufficient to support the criminal threat conviction; (2) the trial court abused its discretion in admitting uncharged domestic violence evidence under Evidence Code section 1109; and (3) Evidence Code section 1109 is unconstitutional on its face. We reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Erika Barabas began dating Vaughn in about February 2006. Their relationship was marred by domestic violence, and they repeatedly terminated and resumed their relationship. As detailed below, Vaughns count one criminal threat conviction and count two vandalism conviction were based on incidents occurring on November 25, 2006, during which he threatened to kill Barabas as he swung a golf club, and also broke her car windows. His count three battery conviction was based on an incident occurring on January 4, 2007, in which he hit Barabass former boyfriend (Brian Hatfield) in the face. His count four vandalism conviction was based on an incident occurring on February 21, 2007, when he broke the door to Hatfields residence and damaged Barabass vehicle.
Criminal Threat and Vandalism Involving Barabas (November 25, 2006)
Much of the evidence for the count one criminal threat charge was provided by the testimony of the law enforcement officers who interviewed Barabas during and after the incident; Barabass recorded call to 911; and the testimony of eyewitness Michael Gobeli. At trial, Barabas for the most part claimed she could not remember her pretrial statements about the threat, and stated she had not been afraid of Vaughn during the incident.
During the day on November 25, 2006, Vaughn and Barabas had an argument, and Vaughn threw a drill tool through Barabass rear car window. That night, Vaughn called Barabas and told her to pick him up at a location in Clairemont. Barabas did not want to go because they had been fighting. Vaughn was angry at Barabas because she had "cheated on him." Vaughn told her that if she did not come pick him up he was going to "send her to the hospital."
When Barabas picked Vaughn up, he stated he wanted to go to Pacific Beach to the house of the person she had cheated with so he could beat up the person. At that point, Barabas pulled into a Vons parking lot and told Vaughn to leave the car. Barabas and Vaughn were yelling at each other in the car. Vaughn took a golf club from the back seat, told her he was going to break her car window, and exited the car. He smashed the passenger side window of the car with the golf club.
Gobeli was outside at the Vons parking lot during the altercation. He testified that he heard Vaughn and Barabas in their car arguing loudly. He saw them exit the vehicle, and he was "50 percent sure" he heard Vaughn state to Barabas, "I am going to kill you." When Vaughn made this statement, he was holding the golf club like a baseball bat and making hitting movements in Barabass direction. The couple argued for a bit longer, and Vaughn then hit the passenger side window with the golf club. When Vaughn broke the window, Barabas was outside on the other side of the car. Gobeli walked closer, pointed at Vaughn, and told him he "better get out of here because there will be trouble." Vaughn complied and left.
Barabas went to a nearby pay phone and called 911. In the recorded 911 call, Barabas told the operator that Vaughn threatened to kill her and "put [her] in the hospital." She told the operator that Vaughn was now walking away, but that he had smashed her car windows with a golf club and had threatened to "smash [her] in the face with it." She repeated that he had threatened her life, and stated he had also threatened her familys life.
Gobeli stayed with Barabas until the police arrived about 15 to 20 minutes later. Officer Christopher Tighe interviewed Barabas at the scene. Barabas told Officer Tighe that before Vaughn broke the car window, he held the gulf club in a threatening manner and threatened to kill her. Detective Dean Way interviewed Barabas over the phone about one month after the November 25th incident. Barabas confirmed the information she had provided Officer Tighe.
At trial, Barabas testified that Vaughn was still her boyfriend. She stated that she was not worried or afraid when he threw the drill tool through her rear car window. She testified she did not remember if Vaughn threatened her when he told her to pick him up in Clairemont or when they were at the Vons parking lot, and she did not remember what she told the 911 operator or the police. She claimed that when she called 911 from the Vons parking lot she was only concerned about her car windows and was not afraid of Vaughn. She acknowledged that Vaughn had made verbal threats during their relationship, but stated she also had made threats and they both had been "physical" with each other. She claimed he had never physically hurt her, she knew he would never do so, and she did not take his threats seriously.
Battery of Hatfield (January 4, 2007)
In 2006, when Hatfield was living in Pacific Beach, Barabas came and visited him and told him she was living nearby with Vaughn. In July 2006 Hatfield began receiving aggressive phone calls from Vaughn during which Vaughn threatened to come to Hatfields home. During this time period, Barabas told Hatfield she was afraid of Vaughn. In an attempt to remove himself from this situation, Hatfield moved from Pacific Beach to Clairemont. In mid-October 2006 Barabas asked Hatfield if she could stay with him for awhile at his apartment in Clairemont because she had no place else to go. Hatfield agreed. Barabas claimed that she was no longer in a relationship with Vaughn.
In November 2006, Hatfield again started receiving calls from Vaughn during which Vaughn asked for Barabas and threatened to come over. In December 2006, Vaughn came to Hatfields apartment on several occasions and pounded on his door, threatening to beat him up. On January 2, 2007, Hatfield noticed a flaming newspaper in his courtyard. When he went outside to put the flames out, Vaughn, who was standing about 50 feet away, told him to "come outside." Hatfield told Vaughn to leave and reentered his residence.
On January 4, 2007, Hatfield saw Vaughn in the parking lot of Hatfields apartment complex. Vaughn stated to Hatfield, "I want to see [Barabas], bring out that fucking bitch. . . . [¶] . . . [¶] I am going to fuck her up." Hatfield told Vaughn to leave the area and not return, and to leave Barabas alone because he had caused enough damage. Vaughn returned to his car. As Hatfield was walking to his apartment, Vaughn pulled up in his car, exited, and "socked" Hatfield in the face. Vaughn returned to his car and drove away, and Hatfield summoned the police.
Vandalism on February 21, 2007
On February 21, 2007, Vaughn and Barabas had an argument because Barabas refused to write a letter to the district attorney stating that Vaughn was innocent of the charges arising from a previous incident. At the time of this argument, Vaughn went to Hatfields residence while Barabas was at home and Hatfield was at work. Vaughn demanded entry into the residence, but Barabas refused to let him in. Vaughn began cursing and trying to kick the door down.
Crying and sounding terrified, Barabas called Hatfield at work and told him to come home right away. Hatfield could not leave work at that time and he told Barabas to call the police. Meanwhile, Vaughn kicked in the front door of Hatfields residence. He entered the residence, picked up an object, and acted as if he might throw it at Barabas. Barabas started crying. Vaughn threw the object down, told Barabas he was going to vandalize her car, and left.
As with the count one criminal threat charge, many of the facts associated with the count four vandalism charge were presented via the testimony of law enforcement officers who interviewed Barabas. At trial, Barabas acknowledged that Vaughn kicked in the front door when she would not let him in, but she testified she could not remember what happened when he was in the residence.
Barabas, crying and sounding "very scared," again called Hatfield at work and told him that Vaughn had broken the front door. Hatfield called 911 and went home When Hatfield arrived home, he saw that the deadbolt of the front door was kicked through the doorjamb; the doorjamb was shattered on the floor; and the door could not be closed. Hatfield noticed that his dog was missing, and Barabas told him that she had seen the dog go into Vaughns car. As Hatfield was looking for his dog at the apartment complex, Vaughn drove up in his car. Vaughn started "bad mouthing" Hatfield and stated "you must be looking for your dog." Hatfield told Vaughn the police were coming. Vaughn got out of his car and "tried to chase [Hatfield] to [his] house." Hatfield found his dog about one hour later. When the police arrived and examined Barabass vehicle, two of her tires were flattened and her side mirrors were broken.
Jury Verdict and Sentence
The jury convicted Vaughn of criminal threat with a true finding that he personally used the golf club as a deadly weapon (count one), misdemeanor vandalism on November 25, 2006 (count two), misdemeanor battery of Hatfield (count three), and misdemeanor vandalism on February 21, 2007 (count four). The trial court found allegations of a serious felony prior conviction and a strike prior conviction to be true. The trial court sentenced Vaughn to 10 years in prison, consisting of four years for the criminal threat conviction (the two-year middle term, doubled based on the strike prior), one year for the deadly weapon use, and five years for the serious felony prior.
DISCUSSION
I. Sufficiency of the Evidence for Criminal Threat Conviction
Vaughn asserts the evidence is insufficient to support the criminal threat verdict because the record shows that his statements were mere empty threats and emotional outbursts, that he solely intended to damage property and not to seriously threaten Barabas, and Barabas did not actually experience fear from his statements. He contends that at most the evidence supports an attempted criminal threat conviction.
To establish the offense of criminal threat, the defendant must intend that the statement be taken as a threat; the threat must be so unequivocal, unconditional, immediate and specific as to convey a gravity of purpose and immediate prospect of execution; and the threat must cause the victim to actually and reasonably experience sustained fear. (Pen. Code, § 422; People v. Toledo (2001) 26 Cal.4th 221, 228; In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860.) Penal Code section 422 " `was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. " (In re Ryan D., supra, 100 Cal.App.4th at p. 861.) The crime of attempted criminal threat is committed when the threat does not cause the victim to be in sustained fear even though a reasonable person would have been placed in such fear. (People v. Toledo, supra, 26 Cal.4th at p. 231.)
When reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the jurys findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
The criminal threat charge was based on Vaughns statement to Barabas, made while they were at the Vons parking lot, that he was going to kill her. Eyewitness Gobeli testified that he was "50 percent sure" that he heard Vaughn say he was going to kill Barabas while making hitting movements with the golf club in Barabass direction. Officer Tighe confirmed the accuracy of Gobelis observation when he testified that Barabas told him that Vaughn held the golf club in a threatening manner and threatened to kill her. Providing further corroborative evidence, in the recorded 911 phone call Barabas stated that Vaughn had threatened to kill her and threatened to smash her in the face with the golf club. After making this statement, Vaughn used the golf club to break the passenger window of Barabass vehicle. Earlier that day, Vaughn had broken her rear car window by throwing a drill tool and then later had threatened to "send her to the hospital" if she did not pick him up. Eyewitness Gobeli testified that when he approached Barabas in the Vons parking lot, she appeared "nervous [and] scared," and that he stayed with her until the police arrived. Officer Tighe testified that when he arrived at the scene (about 15 to 20 minutes after the golf club incident), Barabas appeared calm, but she told him she took Vaughns threats seriously and that he made her fear for her life. Detective Way testified that when he interviewed Barabas about one month after the incident she told him that she was afraid of Vaughn; he was "scary"; he had threatened to kill her in the past; and she had moved to another part of town to get away from him. Detective Way stated that Barabas sounded fearful and afraid to talk.
From this evidence, the jury could reasonably infer that Vaughn intended his threat to kill Barabas on November 25 to be taken seriously and that Barabas was in sustained fear during the incident. On that date, Vaughn engaged in two incidents of violent vandalism on Barabass car and threatened to seriously hurt and kill her. Gobeli, a neutral eyewitness, observed Barabass frightened demeanor at the time of the golf club incident. Barabas told the police she was afraid. The jury was entitled to credit these observations and statements and conclude that the statement was intended to be taken as a serious threat and Barabas actually experienced fear.
Contrary to Vaughns assertion on appeal, Barabass trial testimony that she was not afraid does not defeat the jurys verdict. The jury credited the various items of evidence supporting her fear and rejected her denials at trial, and we may not second guess this determination. Notably, the jurys rejection of her trial testimony was supported by her own apparent bias in favor of the defendant at trial and her admitted inability to remember what occurred. She testified she was still in love with the defendant and she did not support the prosecutions pursuit of the case. She stated that she was using methamphetamine during the time period of the charged offenses and it was very difficult to remember what occurred. She acknowledged that her memory was fresher when she spoke to the police than it was at the time of trial, and even admitted that she might have told the police that she took Vaughns threats seriously (although she could not remember).
Vaughn also contends the criminal threat conviction is unsupportable because after he made the threat Barabas did not run further away from him but rather stood on the other side of the car, and he left the area when told to do so by Gobeli. These facts do not defeat the sufficiency of the evidence supporting the jurys verdict. The jury was not required to find that Barabass failure to immediately flee evinced a lack of fear; for example, the jury could infer she was in shock and/or she was concerned that flight would increase Vaughns anger. Similarly, the jury could infer that Vaughns departure did not show a lack of intent to have the threat taken seriously but rather reflected his desire not to involve himself in an altercation with Gobeli and/or an understanding that he would be arrested if he stayed at the scene.
Vaughns challenge to the sufficiency of the evidence to support the criminal threat conviction fails.
II. Admission of Domestic Violence Evidence Under Evidence Code Section 1109
A. No Abuse of Discretion
Over Vaughns objection, the trial court admitted evidence of several uncharged instances of domestic violence committed by Vaughn against Barabas. Vaughn does not dispute that the uncharged domestic violence evidence was admissible under Evidence Code section 1109. However, he contends the trial court abused its discretion in admitting the evidence because the evidence was more prejudicial and confusing than probative and thus should have been excluded under Evidence Code section 352.
Background
The uncharged domestic violence evidence consisted of the following. On May 30, 2006, Barabas and Vaughn were having an argument on a street outside an apartment complex. During the argument Vaughn grabbed Barabass hand and burned his face with the cigarette that she was holding, stating that he was going to blame this on her when he called the police. Vaughn knocked the passenger side mirror off of her car, and Barabas threw a bottle and broke the window of the car Vaughn was using. A resident of the apartment complex (Raymond McHale) saw Vaughn chasing Barabas and noticed that Barabas looked scared. Barabas ran to the managers office for safety and called 911. Barabas told the 911 operator that Vaughn had been threatening her and her family and stalking her. She stated she had agreed to meet Vaughn at a neutral area, and when she met him he vandalized her car. While Barabas was in the managers office, McHale saw Vaughn on top of Barabass car trying to "stamp the windshield in." McHale intervened and Vaughn left the area. When Officer Amber Banning arrived at the scene, Barabas came running out of the apartment complex office; she was crying and appeared scared. Barabas told Officer Banning that Vaughn had been repeatedly threatening to hurt her family unless she paid the money she owed him for rent, and that he had stated he was going "to get the ball rolling on her." Barabas stated she was afraid he was going to hurt her or her family.
On September 15, 2006, Officer Timothy Burns responded to a non-emergency call from Barabas. Barabas appeared upset and frustrated. Barabas told Officer Burns that on September 12 Vaughn had "head butted" her and then taken $200 from her. Officer Burns suggested that Barabas obtain a restraining order against Vaughn. Barabas filed papers to obtain a restraining order against Vaughn on September 15. In the restraining order documents, she declared under penalty of perjury that Vaughn had inflicted a "bump" on her face by her eye. She declared that she was afraid of him because he broke her property on a regular basis, stole and screamed "like he [was] crazy," hit her, threw her down, pulled her hair, would not leave when requested, held a "little" knife to her face and threatened to stab her and break her belongings, threatened to hurt and kill her, verbally threatened her and her family, and stalked her.
Barabas did not follow through with service of the restraining order and never actually obtained it.
On December 12, 2006, Barabas again called 911. She told the 911 operator that Vaughn was "completely destroying [her] stuff"; that he had been harassing her since last night; that he was "absolutely insane"; that he does this to her "all the time"; that he needed to be arrested "this time"; and that it was "fucking insane. `Cause he fucking tried to kill [her] or something." When Officer Antonio Ybarra arrived at the scene, Barabas was crying and appeared emotionally upset, frightened, and frustrated. She told Officer Ybarra that she had an argument with Vaughn about her not giving him a ride to El Cajon and they both used profane language with each other. When they arrived home, she hid in a closet until Vaughn found her and the argument resumed. Vaughn then went outside and scratched her car with a sharp instrument, etched the word " `bitch " on the hood of her car, and damaged the cars stereo components.
In response to the uncharged domestic violence evidence submitted by the prosecution, the defense introduced evidence of incidents in which Barabas engaged in violence against Vaughn. Barabas testified that she had hit Vaughn numerous times. She described an incident on May 5, 2006, when she was arrested after hitting Vaughn in the face with an ashtray; an unreported incident on May 28, 2006, when she broke Vaughns nose with her hand; and an unreported incident on November 23, 2006, when she smashed the windows of his vehicle with a golf club.
Analysis
Evidence Code section 1109 is an exception to the general rule prohibiting use of evidence of uncharged misconduct to prove that the defendant has a propensity to commit the charged offense. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1024-1026.) Under Evidence Code section 1109, when a defendant is charged with a crime involving domestic violence, evidence of other acts of domestic violence are admissible to prove the defendants tendency to engage in this type of conduct. (People v. Hoover, supra, at pp. 1024-1026.) However, to protect the defendants due process rights, the evidence is subject to exclusion under Evidence Code section 352. (People v. Hoover, supra, at pp. 1028-1029.) That is, the evidence may not be admitted if its probative value is substantially outweighed by the probability that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Ibid.) A trial courts determination under Evidence Code section 352 is reviewed for abuse of discretion. (Id. at p. 1029.)
Vaughns contention that the trial court abused its discretion in finding the uncharged domestic violence evidence was more probative than prejudicial or confusing is unavailing. The uncharged domestic violence evidence concerned the same victim and included the same type of conduct (threats and vandalism) as the charged offenses involving Barabas. Thus, it was highly relevant to show Vaughn had a pattern of engaging in this type of conduct against Barabas and thus supporting a finding that he committed the charged conduct. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 706; People v. Hoover, supra, 77 Cal.App.4th at p. 1029.)
Further, the evidence was particularly relevant to the criminal threat charge given Barabass trial testimony which sought to refute that Vaughn seriously threatened her or that she was afraid of him. She insisted that when she called 911 on November 25, it was because she was afraid for her property, and not because she was afraid of him. She claimed that she could not remember if Vaughn made any threats on November 25 and that she could not remember what she told the 911 operator or the police on this occasion. The uncharged domestic violence evidence showed that during the course of her relationship with Vaughn, she repeatedly called the police because of Vaughns behavior, she described incidents in which Vaughn aggressively vandalized her property and threatened her, and she exhibited a fearful demeanor at the time of these incidents. This evidence was highly probative to support an inference that, contrary to Barabass trial testimony, Vaughn made a threatening statement on November 25 that caused her to experience sustained fear.
Further, the evidence was not unduly prejudicial. Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues on the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) The uncharged incidents were not so egregious that they might have caused the jury to give them undue weight when deciding Vaughns guilt of the charged offenses. Although the evidence regarding the September 15 uncharged events included statements describing actual physical assaults on Barabas (rather than mere threats), this consisted only of a short recitation of Barabass allegations. The jury was not presented with a prolonged description of uncharged allegations of physical abuse, and the brief summation of the uncharged assaultive conduct was not inflammatory. Finally, Vaughn has not cited to anything in the record suggesting the uncharged domestic violence evidence might have caused the jury to be confused when evaluating the evidence concerning the charged offenses.
The trial court did not abuse its discretion in admitting the uncharged domestic violence evidence.
B. Constitutionality of Evidence Code Section 1109
For purposes of preserving federal review, Vaughn argues Evidence Code section 1109 violates his constitutional right to due process. As he concedes, the courts have repeatedly rejected this argument. (People v. Cabrera, supra, 152 Cal.App.4th at pp. 703-704.) Relying on this established precedent, we reject his argument.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.