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People v. Abdi

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E043598 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. SWF017756 Duane M. Lloyd, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Dennis L. Cava, 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, and Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

King J.

I. INTRODUCTION

In an amended information, defendant was charged with assault with a deadly weapon, a motor vehicle, upon Jonathan White (Pen. Code, § 245, subd. (a)(1); count 1), unlawfully possessing a controlled substance which had not been furnished to her upon the prescription of a physician, a misdemeanor (Bus. & Prof. Code, § 4060; count 2), and unlawfully driving a motor vehicle while her driving privileges were suspended and revoked, a misdemeanor (Veh. Code, § 14601.1, subd. (a); count 3). A jury found defendant guilty as charged on all counts.

The trial court reduced defendant’s felony assault conviction in count 1 to a misdemeanor (Pen. Code, § 17, subd. (b)(5)), and sentenced her to five years’ probation plus one year in the county jail, suspended, upon the condition she serve nine months. On this appeal, defendant claims the trial court erroneously allowed the People to introduce evidence of her character to prove she intentionally assaulted White with a vehicle in count 1. (Evid. Code, § 1101, subd. (a).) We conclude that the evidence was properly admitted, and affirm the judgment.

All further statutory references are to the Evidence Code unless otherwise indicated.

II. FACTS AND PROCEDURAL HISTORY

In August 2006, defendant and White had been dating “off and on” for eight months. Around 11:30 p.m. on the evening of August 21, White left a friend’s house near Highway 79 south in Temecula and began driving northbound on Interstate 15 (I-15) in his 2001 Buick Sentry. White and defendant began arguing on their cell phones, while driving in separate cars. They were arguing because White had accused defendant of cheating on him and defendant wanted White to return her cell phone. White told defendant where he was on the I-15, and later saw that defendant was following him in her Mazda hatchback. Defendant flashed her headlights at White, and he sped up in an effort to get away from her.

White and defendant continued arguing on cell phones, while driving northbound on the I-15 at speeds in excess of 90 to 100 miles per hour. Defendant pulled her car to the left of White’s car, and both cars exited onto northbound Interstate 215 (I-215), side by side. White was in the far right lane and defendant was in the left lane beside him. White hung up on defendant, and defendant’s car struck White’s car. Both cars spun out and came to rest on the side of the I-215. Both cars were badly damaged. The roadway where the collision occurred was straight and flat, and the road conditions that night were clear and dry.

After the collision, defendant got out of her car, ran over to White, and slapped him across the face. Two men who had stopped near the scene of the collision pulled defendant off of White and took her back to her car. White called 911. White told the operator that defendant had intentionally pushed his car off the freeway, and that he had called the police on defendant “a couple of times” before. California Highway Patrol officers arrived on scene and observed that White was distraught and appeared to have been crying. White told Officer Oscar Valdez that he and defendant had been arguing on cell phones while they were driving. White also told Officer Valdez that defendant intentionally rammed her car into his car, and he was afraid of her because of prior incidents in which she had become “physical” with him.

The officers inspected the vehicles and concluded that the damage to the vehicles was consistent with White’s statement that defendant intentionally struck his vehicle with hers. The right front of defendant’s vehicle had made contact with the left front of White’s vehicle. The officers also observed that skid marks left by defendant’s vehicle on the I-215 made a sudden sharp turn to the right near the point of the collision. Defendant was in possession of 12 tablets of Lexipro, an antidepressant for which she had no prescription, and her driver’s license had been suspended.

III. DISCUSSION

Defendant claims the trial court erroneously admitted (1) White’s statement to the 911 operator that he had “called the cops” on defendant “a couple of times”; and (2) White’s statement to Officer Valdez that he was afraid of defendant because she had previously been “physical” with him. Defendant maintains that both statements constituted inadmissible character evidence. (§ 1101, subd. (a).) We disagree. As we explain, both statements were properly admitted on the issue of defendant’s intent in count 1, that is, whether defendant intentionally or accidentally rammed her car into White’s car. (Id., subd. (b).) In addition, White’s statement to Officer Valdez was properly admitted to impeach White’s trial testimony that he did not recall making the statement. (§ 770.)

A. Forfeiture

We first address the People’s preliminary contention that defendant has forfeited her claim that White’s “called the cops” statement to the 911 operator was erroneously admitted as character evidence. The People rely on the settled principle that an objection is forfeited unless it is timely made at trial on the ground urged on appeal. (§ 353; People v. Morris (1991) 53 Cal.3d 152, 187-188, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Here, defense counsel moved in limine to exclude the 911 statement on the ground it constituted inadmissible character evidence. The motion was denied without prejudice, but defense counsel did not renew the objection when the statement was introduced at trial.

Defendant moved in limine to exclude White’s statement to the 911 operator that, “I may probably have this on file with the Temecula Police Department. I’ve called the cops on her a couple of times.” Defense counsel argued, “I think that’s going to lead to improper character evidence on the part of my client.” The trial court denied the motion without prejudice to renew it during trial “according to what the evidence shows. . . .” The court told defense counsel, “You may have some valid points at that time, but at this point in time your motion is denied.”

Generally, when a trial court rules in limine that evidence is admissible, the party seeking to exclude the evidence must object at the time the evidence is actually offered to preserve the issue for appeal. (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3.) “The reason for this rule is that until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.” (Ibid.)

When, however, the motion in limine satisfies the requirements of section 353, the motion is sufficient to preserve the evidentiary issue for appeal. (People v. Morris, supra, 53 Cal.3d at p. 190.) An in limine motion satisfies the requirements of section 353 and is therefore sufficient to preserve the evidentiary issue for appeal when: “(1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context.” (People v. Morris, supra, at p. 190.)

Here, the first and second requirements of section 353 have been satisfied. The forfeiture question thus turns on whether the third requirement was satisfied—or whether at the time of the motion in limine, the trial court was in a position to determine the admissibility of White’s 911 statement in its proper context. As noted, the trial court denied the motion, without prejudice, “to bring the motion . . . at the appropriate time according to what the evidence shows at the time on the record.” It thus appears the motion was not brought at a time when the trial court was able to determine the admissibility of the statement in its proper context. In any event, we address the merits of defendant’s claim below, and conclude that the statement was properly admitted on the issue of defendant’s intent in count 1.

B. Section 1101

Defendant claims that White’s statement to the 911 operator that he had “called the cops” on defendant “a couple of times,” and White’s statement to Officer Valdez that he feared defendant because she had previously been “physical” or physically violent with him, constituted inadmissible character evidence in violation of section 1101, subdivision (a). Section 1101, subdivision (a) prohibits the admission of evidence of a person’s character or a trait of his or her character, when offered to prove the person’s conduct on a specific occasion.

Section 1101, subdivision (b) sets forth several exceptions to this general rule. It provides, in pertinent part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . . absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Italics added.) The People argue that White’s statements were properly admitted, pursuant to section 1101, subdivision (b), to show that defendant intentionally rammed her vehicle into White’s vehicle and that the collision was not an accident. We agree with the People.

“‘“[A]s with other types of circumstantial evidence, . . . admissibility [of evidence of other crimes or prior acts] depends on three principal factors: (1) the materiality of the fact sought to be proved; (2) the tendency of the uncharged crime to prove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” [Citation.]’” (People v. Miller (2000) 81 Cal.App.4th 1427, 1447, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.)

The first factor was plainly satisfied. Whether defendant rammed her car into White’s car or whether the collision was an accident was a material, disputed issue on count 1. At trial, defendant claimed she lost control of her car and accidentally collided with White’s car, and did not have the requisite intent to commit assault. Evidence of a defendant’s other crimes or prior acts is admissible “‘“where the proof of [the] defendant’s intent is ambiguous, as when he [or she] admits the acts and denies the necessary intent because of mistake or accident.”’ [Citation.]” (People v. Miller, supra, 81 Cal.App.4th at pp. 1447-1448, quoting People v. Robbins, supra, 45 Cal.3d at p. 879.)

The second factor is also satisfied. The evidence that defendant had been physically violent toward White on prior occasions had a tendency in reason to show she intentionally rammed her vehicle into White’s vehicle, particularly when coupled with the evidence that White and defendant were arguing on cell phones while defendant was pursuing White at high rates of speed.

Furthermore, it is settled that, “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The evidence that defendant had been physically violent toward White in the past was sufficiently similar to the allegation that she intentionally rammed her vehicle into White’s vehicle to be admissible on the issue of her intent at trial.

Finally, the principle rule or policy requiring the exclusion of relevant evidence, namely, section 352, did not require the statements to be excluded. The evidence was highly probative on the issue of defendant’s intent, and its probative value was not substantially outweighed by the probability that it would consume undue time, mislead the jury, confuse the issues, or prejudice defendant. (§ 352.) Thus here, the trial court did not abuse its discretion in admitting the evidence. (See People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405 [applying § 352 analysis to other crimes evidence].)

C. Impeachment

Finally, White’s statement to Officer Valdez that he feared defendant because she had been “physical” with him in the past was properly admitted for another reason, that is, to impeach White’s trial testimony that he was not afraid of defendant. Evidence of a statement made by a witness that is inconsistent with his testimony is admissible to impeach the witness, provided the witness is given an opportunity to explain or deny the statement. (§ 770.)

During direct examination by the prosecutor, White claimed he was not afraid of defendant that evening. At one point, White claimed he was not speeding in order to get away from defendant and that he was planning to suggest they exit the freeway to meet. The prosecutor confronted White with his prior statement to Officer Valdez that he was afraid of defendant because she had been physical with him before, and that he was trying to get away from her by speeding. White denied making the statement.

The prosecutor later called Officer Valdez and asked him what White told him regarding the collision. Officer Valdez responded, “They had prior incidents where she became physical with him. He was afraid of her, and he did not want to see her that night. So he figured that he’d let things cool off and maybe see her the next day.” Thus here, White’s statement to Officer Valdez that he feared defendant because she had been physical with him in the past was properly admitted to impeach White’s inconsistent trial testimony. (§ 770.)

III. DISPOSITION

The judgment is affirmed.

We concur: McKinster Acting P.J., Miller J.

During White’s trial testimony, the prosecutor played a tape of the 911 call after White testified that a transcript of the tape recording would not refresh his recollection concerning what he said at the scene. At that time, defense counsel did not renew her objection that White’s statement to the 911 operator constituted inadmissible character evidence.


Summaries of

People v. Abdi

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E043598 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Abdi

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FIROUZEH ABDI, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 9, 2008

Citations

No. E043598 (Cal. Ct. App. Sep. 9, 2008)