Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF117496A, Michael G. Bush, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Marlon Vincent Adams was convicted of inflicting corporal injury on the mother of his child. On appeal, he contends (1) the trial court erred by admitting evidence of his prior acts of domestic violence, (2) the trial court erred by instructing the jury on proximate cause, (3) the trial court erred by failing to instruct on an element of the great bodily injury enhancement, (4) the rap sheet was unreliable and therefore served as insufficient evidence to support the prior conviction finding, (5) the trial court erred by imposing the upper term and (6) the trial court erred by imposing the upper term on the enhancement. We will affirm.
PROCEDURAL SUMMARY
On October 24, 2007, the Kern County District Attorney charged defendant with corporal injury to the mother of his child (the victim) (Pen. Code, § 273.5, subd. (a); count 1). The information also alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence in the commission of count 1 (§ 12022.7, subd. (e)), that defendant had suffered a prior serious and violent felony conviction for first degree robbery (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(e)), and that defendant had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty as charged and found the great bodily injury enhancement true. The trial court found the remaining allegations true.
The trial court denied probation and sentenced defendant to 19 years in prison, as follows: eight years (double the four-year upper term) on count 1, plus two five-year enhancements and a one-year enhancement.
FACTS
The victim testified that she had been in a relationship with defendant since 1998 and they had a seven-year-old son together. They lived separately for a while, but on October 15, 2006, defendant moved back in with the victim. The next day, the victim went to work, and then she and their son went to the store to get food for dinner. She was expecting defendant and his friend that evening for a barbeque dinner and a movie. She had told defendant that she wanted no alcohol at the barbeque, but defendant brought vodka with him and he was already intoxicated when he and his friend arrived.
The victim told defendant not to bring the vodka in, but he ignored her. They started arguing and she told him to leave their son alone. The victim screamed at defendant to get out of their son’s room and she told defendant to leave. As they argued, defendant pulled the victim’s hair and grabbed her face. She pushed away from him and walked away toward the back door. As she did, defendant pushed her from behind, causing her to fall. When she fell, her finger got caught in the doorway and the tip of it was severed. She found the tip and went to the hospital, but the tip could not be reattached.
An investigator spoke to defendant in jail. Defendant was very remorseful and started crying. He told the investigator he got angry that day because the victim was “mouthing off in front of his friend.” Defendant pulled the victim’s ponytail. As she walked toward the kitchen, defendant pushed her and her finger got caught in the door. Defendant told the investigator he was sorry for what had happened and he wanted to keep his family together.
DISCUSSION
I. Evidence of Prior Domestic Violence
Defendant contends the admission of evidence of his prior domestic violence was an abuse of discretion because the evidence was unduly prejudicial under Evidence Code section 352. He explains that the evidence likely misled jurors to conclude the victim’s finger injury was the result of yet another episode of domestic violence rather than an accident. He asserts that the evidence of the prior acts was more inflammatory than the charged offense and that evidence of his prior use of a knife might have led some jurors to speculate that he intentionally cut off the victim’s fingertip with a knife. He also argues the evidence of prior domestic violence essentially required two mini-trials with two witnesses, thereby confusing the issues by focusing the jurors on collateral issues rather than the charged offense. Lastly, defendant contends the evidence violated his constitutional right to due process.
A. Prior Acts
The prosecution presented evidence that defendant had committed two prior acts of domestic violence, one against the victim and one against another woman, X., with whom he had a brief, intimate relationship.
In 2002, defendant and X. were arguing because X. asked defendant to leave her home. Defendant became verbally abusive, then threw a spice rack at X. as she stood at the stove. He knocked a cup of coffee from her hand, chased her as she ran to the bathroom, and then forced his way into the bathroom. He squeezed her head hard with both his hands. When responding police knocked on the door, X. ran from defendant.
In 2005, the victim contacted a deputy and told him she was being abused and needed help getting defendant to leave her house. The victim and the deputy went to the house, but defendant was gone. When defendant returned, the victim told him she had contacted the deputy and defendant was not supposed to be there. Defendant produced a knife, cut off the top of the Christmas tree and waived the knife at the victim. He grabbed her by the arms, causing bruising, and pushed her onto the couch. He was angry she had contacted the deputy. He called her a snitch and a whore. He told her that if she called law enforcement again, he would make her life miserable and she would have to move out of the state. Defendant later acknowledged to the deputy that he and the victim had argued and he had pushed the victim away because she was trying to strike him. He said he had showed her the knife. He said he told her not to contact law enforcement because he wanted to reconcile with her and keep their family together.
Evidence Code section 1109 is an exception to the rule prohibiting evidence of prior acts to demonstrate that the defendant has a propensity to commit those acts. “‘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.’ [Citation.]” (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.)
Admission of such evidence remains subject to a section 352 analysis, which permits the trial court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The trial court’s exercise of discretion under section 352 will not be disturbed on appeal unless the court clearly abused its discretion, that is, unless the prejudicial effect of the evidence clearly outweighed its probative value. (People v. Lucas (1995) 12 Cal.4th 415, 449.)
We see no abuse here. The probative value of defendant’s prior act of violence against the victim was compelling. The evidence was strongly indicative of, and tended logically to establish, defendant’s propensity to commit physically and verbally abusive acts against her. (See People v. Hoover, supra, 77 Cal.App.4th at p. 1029 [similar conduct against the same victim is highly relevant]; People v. Harris (1998) 60 Cal.App.4th 727, 739-740 [other crimes evidence must tend to prove logically and by reasonable inference the issue upon which it is offered, it must be offered on an issue material to the prosecution’s case, and it must not be merely cumulative].) Furthermore, the evidence that defendant had committed similar acts against another woman with whom he was romantically involved tended to prove he had the propensity to treat his intimate partners in an aggressive manner.
Furthermore, the prejudicial factors in this case clearly did not outweigh the compelling probative value of the evidence. (People v. Harris, supra, 60 Cal.App.4th at pp. 737-741 [inflammatory nature of the evidence, probability of confusion, remoteness, and consumption of time are factors to be weighed against probative value of evidence].) The prior acts were not particularly more inflammatory or shocking than the charged act. The prior acts and the charged act all involved an argument that ensued after the women asked defendant to leave. In all cases, defendant became angry, aggressive and physically violent. The charged act, which resulted in a fingertip being severed, might be considered more gruesome or shocking than the prior acts. As for the knife, there was no evidence defendant intentionally cut off the victim’s finger and it is pure speculation that the jurors might have considered that possibility in light of defendant’s prior knife use. Finally, the testimony of two witnesses did not require an undue consumption of time, and there is nothing in the record to indicate that the evidence so distracted the jurors that they were unable to focus on the fact that the question before them was whether defendant committed the charged offense.
C. Due Process
Defendant claims the admission of evidence of his prior domestic violence violated his right to due process. The appellate courts have consistently rejected due process challenges to Evidence Code section 1109. (E.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313; People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover, supra, 77 Cal.App.4th at pp. 1027-1028; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) These cases relied on People v. Falsetta (1999) 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, does not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. For the reasons explained in these cases, we reject appellant’s due process challenge to the statute.
II. CALCRIM No. 840
Defendant contends the trial court erred when it instructed with CALCRIM No. 840 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)) because the instruction informed the jurors that defendant could be liable for a traumatic condition that was merely the natural and probable consequence of the injury, which he maintains conflicts with the direct liability required of section 273.5, subdivision (a).
Section 273.5, subdivision (a) provides: “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony ….”
In this case, however, there was overwhelming evidence that defendant’s application of physical force on the victim directly, not just proximately, caused the victim’s finger injury (the “traumatic condition”). (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Indeed, defendant himself admitted he pushed the victim and her finger got caught in the door as she fell. There was no evidence whatsoever that the victim’s injury was proximately but not directly caused by defendant’s act.
Our use of proximate cause terminology is partly for convenience, because the phrase “direct, natural and probable consequence” is often too unwieldy or grammatically difficult to utilize, and partly because case law generally uses proximate cause terminology. But, we recognize that “proximate” has long been disfavored as an arcane and misleading term of art, which is particularly troublesome when presented to a jury. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1050.) “Proximate” has been disapproved for use in both civil (Mitchell v. Gonzales, supra, at pp. 1050-1054) and criminal (People v. Roberts (1992) 2 Cal.4th 271, 313) jury instructions.
Accordingly, under the facts of this case, we need not determine whether the instruction was error. If it was, any error was harmless because there is no reasonable probability that a result more favorable to defendant would have been reached had the court not instructed with the challenged language. (People v. Watson (1956) 46 Cal.2d 818.)
We note that CALCRIM No. 840 does contain language of both direct and proximate causation. (See People v. Jackson, supra, 77 Cal.App.4th at p. 580; People v. Rodriguez (1999) 69 Cal.App.4th 341, 346-352.) In that regard, we believe the instruction is potentially confusing and might benefit from further examination by the instruction committee.
III. CALCRIM No. 3163
Defendant contends the trial court erred by failing to instruct the jury that defendant had to have personally inflicted great bodily injury for the section 12022.7 enhancement to apply. The People concede the error but maintain that it was harmless because the jurors necessarily found he personally inflicted great bodily injury when it found defendant directly applied force to the victim resulting in a traumatic condition, an element of corporal injury. The People further state that the evidence that defendant personally inflicted the injury on the victim was overwhelming; indeed defendant admitted pushing her and causing her finger to get caught in the doorway.
The relevant enhancement under section 12022.7, subdivision (e) states:
“Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years....”
The trial court instructed with CALCRIM No. 3163, which does not use the word “personally,” although the authorities cited for the instruction include those for the requirement that the defendant must personally inflict the injury.
The trial court instructed as follows:
“If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant inflicted great bodily injury on [the victim] during the commission of that crime under circumstances involving domestic violence.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. Domestic violence means abuse committed against an adult who is a person with whom the defendant has had a child. Abuse means ... intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent and serious bodily injury to himself or herself or to someone else.
“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
The trial court has a sua sponte duty to instruct the jury on every element of an enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Failure to instruct on an element of an enhancement merits reversal unless such error is harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327; Chapman v. California (1967) 386 U.S. 18, 24.) The failure to instruct on an element of an offense or an enhancement is harmless when we conclude “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” (Neder v. United States (1999) 527 U.S. 1, 17.)
Here, personal infliction was an element of the charged enhancement and therefore the trial court had a duty to instruct on it. The CALCRIM instruction, however, did not include the personal infliction requirement. “Commonly understood, the verb, ‘to inflict,’ means ‘to lay (a blow) on: cause (something damaging or painful) to be endured: impose.’ [Citations.] A blow is ‘inflict[ed]’ as long as it hits or strikes its target, or is administered or delivered thereto. [Citations.]” (People v. Modiri (2006) 39 Cal.4th 481, 493.) However, “[t]he term ‘personally’ ... refers to an act performed ‘in person,’ and involving ‘the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc).’ [Citation.] Such conduct is ‘[c]arried on or subsisting between individual persons directly.’ [Citations.] Framed this way, the requisite force must be one-to-one, [though it] does not foreclose participation by others.” (Ibid., italics added.)
In this case, we therefore conclude the trial court erred, but we agree with the People that any error in the omission of the word “personally” was harmless beyond a reasonable doubt. “Personally,” as used in the section 12022.7 enhancement, was intended “to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim.” (People v. Cole (1982) 31 Cal.3d 568, 579, italics added.) Here, the evidence was uncontested and overwhelming that it was defendant and no other person who had direct physical contact with the victim and whose act caused her injury. Defendant falls within the intended category of persons subject to the enhancement. No other person was directly or indirectly involved with causing the victim’s injury. There is no doubt the verdict would have been the same had the jurors been instructed that defendant must have personally inflicted the injury.
The enactment of section 12022.7 established that an aider and abettor who does not personally inflict the great bodily injury cannot be held liable for the enhanced penalty. (People v. Cole, supra, 31 Cal.3d at p. 578.) “Indeed, the legislative changes [that section 12022.7 embodies] express an intent to reject enhancement liability even in cases where the defendant directs the attack, or otherwise manifests the specific intent to cause the injury.” (Id. at pp. 578-579.)
IV. Sufficiency of Evidence of Prior Conviction
Defendant lastly contends the trial court erred by relying on a certified California Law Enforcement Telecommunications System (CLETS) rap sheet to support the finding that defendant suffered a prior conviction for robbery. He argues the rap sheet contains at least one significant error regarding another conviction and therefore the evidence was insufficient to prove the conviction.
The CLETS system was established in 1965; the Legislature’s purpose and intent in establishing the criminal recordkeeping system was codified in Government Code section 15151. According to that section, the CLETS system was established in order to provide “an efficient law enforcement communications network available to all [public agencies of law enforcement]. It is the intent of the Legislature that such a network be established and maintained in a condition adequate to the needs of law enforcement. It is the purpose of this chapter to establish a law enforcement telecommunications system for the State of California.” (Gov. Code § 15151; People v. Morris (2008) 166 Cal.App.4th 363, 371, fn. 9.)
Defense counsel objected to the admission of the rap sheet, as follows: “I know the current state of the law, but I do object to using rap sheets for the Court’s consideration in the trial.” The court overruled the motion. The court later stated: “As far as the rap sheet, which is [exhibit] No. 22, I’m only going to consider those entries that relate to these two charges that are in issue in front of the Court, the burglary and the robbery. I’ve had a chance to review the documents.” At that point, the court asked for argument. Defense counsel submitted and the court found the prior conviction allegation true.
As defendant acknowledges, a CLETS record is admissible to prove a prior conviction. (See People v. Martinez (2000) 22 Cal.4th 106, 116; People v. Dunlap (1993) 18 Cal.App.4th 1468, 1471-1481.) “‘[Evidence Code] [s]ection 1280 ... permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.’ [Citations.]” (People v. Dunlap, supra, at p. 1477.) “A trial court has broad discretion in determining whether a party has established these foundational requirements [under Evidence Code section 1280]. [Citation.] Its ruling on admissibility ‘implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. [Citation.]’ [Citation.] A reviewing court may overturn the trial court’s exercise of discretion ‘“only upon a clear showing of abuse.”’ [Citations.]” (People v. Martinez, supra, at p. 120; People v. Dunlap, supra, at p. 1479 [whether trustworthiness requirement has been met is a matter within the trial court’s discretion]; People v. Beeler (1995) 9 Cal.4th 953, 978-979 [trial court’s finding that a document is trustworthy can be overturned only upon a clear showing of abuse].)
Defendant contends that the rap sheet was unreliable because it contains an error regarding a different prior conviction. Defendant failed to object to the evidence as unreliable and therefore has forfeited the claim. (Evid. Code, § 353.) Furthermore, the trial court cannot abuse its discretion by failing to consider information or objections not presented to it. (See People v. Box (2000) 23 Cal.4th 1153, 1195 [trial court’s ruling on motion is reviewed for abuse of discretion on the basis of facts known to the court at the time of ruling].) In addition, we note that even if there was an error in the rap sheet, defendant has made no argument that the rap sheet was inaccurate with regard to the prior conviction in question or that he did not suffer that conviction.
As for the sufficiency of the evidence, to establish a prior conviction, the prosecutor must prove “the defendant was convicted and the conviction was of an offense within the definition of the particular statute invoked ....” (People v. Henley (1999) 72 Cal.App.4th 555, 562.) “The state has the burden ‘to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant.’ [Citation.] In reviewing the sufficiency of the evidence of the prior convictions, we determine ‘“... whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, [we] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [trier’s conclusion], not whether the evidence proves guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Jones (1995) 37 Cal.App.4th 1312, 1315; see People v. Tenner (1993) 6 Cal.4th 559, 566-567.)
Although the prosecution could have offered other or additional evidence to prove defendant’s prior conviction, the certified CLETS rap sheet alone was sufficient and defendant offers no authority to the contrary.
V. Upper Term
Defendant contends the trial court’s imposition of the upper term violated the ex post facto clause of the Fourteenth Amendment and Cunningham v. California (2007) 549 U.S. 270. He acknowledges that his arguments were rejected by People v. Sandoval (2007) 41 Cal.4th 825 and People v. Black (2007) 41 Cal.4th 799, and that we are bound by those decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but he raises the issue to preserve it for federal review.
VI. Upper Term on Enhancement
Defendant also raises the claim that the trial court similarly erred by imposing the upper term on the great bodily injury enhancement. Again, he concedes we are bound by People v. Black, supra, 41 Cal.4th 799, providing that a single valid aggravating factor is sufficient. He again raises the issue to preserve it for federal review.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Dawson, J.