Opinion
C040771.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. MARK JOSEPH AIRONS, Defendant and Appellant.
A jury convicted defendant Mark Joseph Airons of violating a protective order, domestic battery, cutting a telephone line, attempted first degree burglary, vandalism (two counts), stalking, possession of methamphetamine, and resisting an officer. The trial court suspended imposition of sentence and placed defendant on probation with a county jail term condition. Defendant appeals. He asserts (1) admission of his prior acts of domestic violence violated his due process rights, (2) the court abused its discretion in admitting the prior acts of domestic violence, (3) the evidence was insufficient to sustain an attempted burglary conviction, and (4) the court erred by not staying the sentence on either the attempted burglary or the stalking conviction. We affirm.
PERTINENT FACTS
Defendant lived together with Amie Anzures from April 1999 to August of the same year and again for a brief period in April 2000. Anzures finally broke off the relationship in April 2000.
Prior Acts of Domestic Violence
On June 26, 2000, defendant burst into Anzuress apartment in a rage. He screamed at Anzures, accused her of being with someone else, and searched the apartment. Defendant hit her in the side of the head and pushed her in the chest. As Anzures called 911, defendant took some keys and left.
On July 12, 2000, Anzures went to defendants home to retrieve some of her personal belongings. When she attempted to leave, defendant blocked the door and restrained her. Defendant released her, and she ran into the garage. Defendant caught up to Anzures after she left the garage and tried to pull her back. During the scuffle, defendant pulled her shirt over her head. Anzures broke a fingernail completely off and scraped her foot. She made it to her car, but defendant followed in his car for part of the way as she drove home.
On July 25, 2000, Anzures again went to defendants home to retrieve her belongings. As she attempted to take some of her items from the garage, she and defendant began to argue. He pushed her out of the garage and down the driveway and hit her in the face, knocking her two front teeth out. She ran to her car while defendants friend restrained defendant.
Anzures obtained a protective order and a restraining order against defendant in August 2000.
Charged Acts
During the evening on December 14, 2000, Anzures responded to a knock at her door. When she opened the door, defendant pushed his way in. As they argued, defendant hit Anzures in the face, damaged Anzuress stereo, and threw some of her belongings down the stairwell. She tried to call 911, and he ripped the telephone off the wall and threw it down the stairwell.
In the early afternoon on December 24, 2000, defendant pulled into the driveway of Anzuress apartment complex in Sacramento while she was outside to check her mail. She tried to avoid him, but he followed her, inviting her to a Christmas party. She declined. She tried to run back to her apartment. Defendant, however, drove between her and the apartment, blocking her way. He opened the back passenger door, yelling at her and accusing her of seeing someone else. She got into the car because she was afraid defendant was going to hurt her. As he drove away from the apartment, Anzures yelled at him to let her go. Instead, as they argued, defendant drove to Woodland, to his grandmothers house. Anzures went into the house with defendant.
After about 15 or 20 minutes, defendant drove Anzures to another house, promising her he would take her home if she would go to a party with him. They were there for about an hour before defendant took Anzures back to Sacramento. Instead of taking Anzures home, defendant took her to his apartment. When they arrived, Anzures got out of the car and ran down the road. Defendant pursued her on foot. As they argued, it drew the attention of other people. Finally, defendant left.
During the evening of December 29, 2000, defendant came to the front door of Anzuress apartment. She would not open the door. Defendant stated that he wanted to talk to her. He shouted through the door, accusing her of seeing other people and calling her names. He went to her car and vandalized it. Back at the apartment door, he tried to force the knob. She could see the door jam getting pushed in and heard it cracking. She telephoned 911. When an officer arrived, he and Anzures discovered that the knob to the front door of Anzuress apartment was broken. In addition, defendant had scratched obscenities into the front door.
The next day, defendant again came to Anzuress apartment. He knocked on the door and yelled for her to let him in, threatening her. He left after arguing with one of Anzuress neighbors.
On December 31, 2000, defendant slashed Anzuress tires at her apartment. He was arrested soon thereafter.
Other facts, such as defendants numerous phone calls and threats, are not included here because they are not pertinent to the issues on appeal.
DISCUSSION
I
Constitutionality of Evidence Code section 1109
Defendant asserts admission of his prior acts of domestic violence pursuant to Evidence Code section 1109 to show his propensity to commit domestic violence violated his federal and state constitutional due process rights. While acknowledging we have previously rejected the proposition that Evidence Code section 1109 violates constitutional due process rights (see People v. Johnson (2000) 77 Cal.App.4th 410, 91 Cal. Rptr. 2d 596), he contends we were wrong. We decline the invitation to revisit the issue.
II
Evidence Code section 352 Objection
Defendant contends that, assuming admission of evidence pursuant to Evidence Code section 1109 did not violate his constitutional due process rights, the trial court abused its discretion in admitting the evidence over his Evidence Code section 352 objection. We disagree.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Evidence Code section 1109 expressly permits a trial court to exclude evidence of other crimes under Evidence Code section 352. "Under Evidence Code 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. Rodrigues (1994) 8 Cal.4th 1060, 1124, 36 Cal. Rptr. 2d 235, 885 P.2d 1.) A trial courts exercise of its discretion under Evidence Code section 352 "must 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. [Citations.] [Citation.]" (Ibid, italics in original.)
At the start of trial, the prosecution made a motion in limine to admit evidence of prior incidents of domestic violence to show defendants propensity to commit domestic violence. The trial court determined the proffered bad acts should be admitted pursuant to Evidence Code section 1109 and further held that the probative value of the prior incidents of domestic violence was not substantially outweighed by prejudice to defendant. The only record of the motion in limine and the courts ruling is an oral summary provided by the court on the record later during the trial. Other than defense counsels statement that he had made "a 352 style objection," there is no indication in the record concerning the grounds for the objection.
Considerations relevant to determining whether the trial court abused its discretion in admitting evidence over an Evidence Code section 352 objection include: (1) the inflammatory nature of the evidence, (2) the probability of confusing the jury, (3) the remoteness of the prior acts, (4) the consumption of time to admit the evidence, and (5) the probative value of the evidence. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-740, 70 Cal. Rptr. 2d 689 [listing these factors with respect to admission of prior uncharged sex offenses].)
Defendant asserts: "Rather than examining the factors articulated in Harris, the court merely concluded that the probative value outweighed any prejudice to [defendant]." This assertion is not supported by the record. The motion in limine to admit the evidence pursuant to Evidence Code section 1109 and defendants Evidence Code section 352 objection occurred off the record. What we have in the record on appeal is simply a summary of what happened. We presume the trial court fulfilled its duty to consider all relevant factors in denying the Evidence Code section 352 objection. (Evid. Code, § 664 [presumption that official duty regularly performed].)
Defendant concedes the prior acts of domestic violence here were not remote and were probative. While he claims the trial was long and was made longer by introduction of this evidence, he grants that the prior domestic violence evidence did not consume a disproportionate amount of time. Instead, he contends the evidence was too inflammatory because the prior acts involved more physical force than the acts for which he was tried. He also asserts the prior domestic violence confused the jury because it was not made known whether he was punished for those acts.
This argument is without merit. Evidence Code section 1109 itself makes past acts of domestic violence highly probative. (People v. Brown (2000) 77 Cal.App.4th 1324, 1338, 92 Cal. Rptr. 2d 433.) "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. . . ." (People v. Johnson, supra, 77 Cal.App.4th at p. 419.) The prior domestic violence in this case was against the same victim, which made the evidence highly probative of defendants propensity to commit domestic violence against her.
The fact that in prior incidents the victim sustained injuries (broken teeth and fingernail) beyond those sustained here, those incidents were not fundamentally different from the acts for which defendant was tried. In all of them, defendant acted in a fit of jealousy, trying to control Anzures. The prior acts were not so disproportionate as to be overly inflammatory. Any slight inflammatory nature of the evidence was easily outweighed by its high probative value. Furthermore, we disagree with defendants assertion the admission of the prior domestic violence evidence confused the jury. The trial court instructed the jury it could not find defendant guilty of the present charges based solely on a finding he committed prior acts of domestic violence. The trial court did not abuse its discretion in overruling defendants Evidence Code section 352 objection.
III
Sufficiency of Evidence
Defendant asserts there is insufficient evidence to support his conviction for attempted first degree burglary. Specifically, he asserts the evidence that he had the intent to commit a felony was insubstantial. We disagree.
On appeal, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal. App. 3d 810, 813, 172 Cal. Rptr. 321.)
Anyone who enters a residence with the intent to commit a felony is guilty of first degree burglary. (Pen. Code, §§ 459, 460.) The prosecution argued that, when defendant tried to break into Anzuress apartment on December 29, 2000, he intended to commit a felony assault or felony stalking. We conclude there was sufficient evidence upon which the jury could find defendant intended to commit both the assault and stalking crimes.
As the jury was instructed, a person is guilty of felony assault when he commits an assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) A person is guilty of stalking if he "willfully, maliciously, and repeatedly follows or harasses another person and . . . makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family . . . ." (Pen. Code, § 646.9, subd. (a).) A "credible threat" is defined as "a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family." (Pen. Code, § 646.9, subd. (g).) Stalking is a felony when the person violates a restraining order. (Pen. Code, § 646.9, subd. (b). )
When defendant came to Anzuress apartment door on December 29, 2000, a restraining order against his doing so had been in force for more than four months. He was in another jealous fit of rage. He had threatened and assaulted Anzures before under such circumstances. He had inflicted great bodily injury on Anzures before. It was reasonable for the jury to conclude he intended to do so again on that occasion. Accordingly, there was sufficient evidence he intended to commit a felony assault. As for the stalking allegation, it was reasonable to infer that defendant intended to commit felony stalking as he attempted to enter the apartment, as shown by his accusations and attempts to break into the apartment. In other words, he intended, by his conduct or words, to threaten her and place her in reasonable fear for her safety.
Defendant asserts there was no evidence of a credible threat because he merely stated he wanted to talk to her and said nothing that could be construed as a threat. To the contrary, defendants actions, considered together with his prior acts, were strong evidence that he intended to threaten and assault Anzures. Defendant claims he was not trying to "smash down the door." This assertion contradicts the record, which states that he broke the knob and that Anzures saw the door jam being pushed in and heard it cracking. Finally, defendant asserts he "had never assaulted her with sufficient force to cause great bodily injury." He states that he was only charged with misdemeanor assault for the prior incidents. The jury, however, could nonetheless conclude, consistent with its instructions, that knocking out the two front teeth with a punch to the mouth and causing a fingernail to be broken completely off constituted great bodily injury. (See People v. Hale (1999) 75 Cal.App.4th 94, 108, 88 Cal. Rptr. 2d 904 [broken and smashed teeth, split lip, and cut under eye sufficient evidence of great bodily injury].).
As can be seen from his assertions, defendants contention that the evidence of burglary was insufficient is only arguable if the evidence is considered in the light favorable to him. We cannot do so. (People v. Johnson, supra, 26 Cal.3d at p. 578.) Therefore, the contention fails.
IV
Sentencing
The trial court imposed a 365-day county jail term as a condition of probation for the attempted burglary conviction. It also imposed a concurrent 365-day county jail term as a condition for the stalking conviction. Defendant objected to the imposition of both county jail terms, arguing that imposition of terms for both offenses violated Penal Code section 654. The trial court considered and rejected the argument. Defendant renews his argument on appeal. We conclude the argument is without merit.
"[Penal Code section] 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591, 76 Cal. Rptr. 2d 255, 957 P.2d 945.)
"Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438, 5 Cal. Rptr. 2d 648.) If the offenses were not merely incidental to each other, the defendant may be punished for each even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789, 25 Cal. Rptr. 2d 469, 863 P.2d 714.) Ascertaining a defendants intent and objective is primarily a question of fact for the trial court whose express or implied finding that the crimes were divisible must be sustained on appeal if supported by the evidence. (People v. Saffle, supra, 4 Cal.App.4th at p. 438; People v. Osband (1996) 13 Cal.4th 622, 730, 55 Cal. Rptr. 2d 26, 919 P.2d 640.)
The stalking conviction was based on a three-day period, from December 29, 2000 to December 31, 2000. The attempted burglary was committed on December 29, 2000. In rejecting defendants argument that it could not punish him for both crimes, the court stated: "It would seem here that the jury, and they were given the option and instructed appropriately, that may well have found that he attempted to enter for the purposes of assaulting her as opposed to stalking, and thus avoid a 654. [P] In addition, it is possible that the jury could have found that he stalked her on different times or different acts that were unrelated to the separate intent involving the breaking and the alleged — or the attempted break in, alleged stalking or assault."
Defendant asserts this conclusion is wrong because, regardless of what defendant intended to do as he attempted to break into Anzuress apartment, it was with the ultimate objective to stalk and harass her. We disagree. It was reasonable for the court to conclude that defendant did some of the acts on December 29, 2000, such as calling her names and accusing her of seeing other people, with the intent and objective to harass and threaten her — that is, to stalk her. On the other hand, he attempted to enter the apartment with the intent to assault her with force likely to produce great bodily injury, a separate intent not involved in a stalking crime. These separate intents and objectives support punishment for both crimes.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and KOLKEY, J.