Opinion
B228231
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. BARTOLOME AYALA ALAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063509)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Bartolome Ayala Alas, was convicted of making a criminal threat in violation of Penal Code section 422. The jury found defendant personally used a deadly and dangerous weapon, a machete, in the commission of the offense. (§ 12022, subd. (b)(1).) The trial court found defendant was previously convicted of a serious felony. (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to 10 years in state prison. On appeal, defendant argues: admitting testimony about prior uncharged domestic violence incidents was an abuse of discretion and violated his due process and fair trial rights; failing to instruct the jury concerning his voluntary intoxication was error and violated his due process and fair trial rights; and it was an abuse of discretion to deny defendant's motion to dismiss the prior conviction allegation. We find no error, constitutional violations or abuse of discretion. Accordingly, we affirm the judgment.
Unless otherwise note, all future statutory references are to the Penal Code.
II. THE EVIDENCE
On January 19, 2009, at approximately 1 a.m., Officers Jorge Santander and Jader Chaves were securing a portion of a perimeter during a search for a robbery suspect. Their patrol cruiser's emergency lights were on. Defendant's wife, Nora Ayala, walked up to the officers. Her two young sons accompanied her. Ms. Ayala was crying. Officer Santander described Ms. Ayala as "distraught" and testified: "[H]er face was really red, like she had been crying for a while. She was very down . . . ." Ms. Ayala told Officer Santander she was walking to the police station because she had gotten into a fight with defendant. She said defendant had a machete. Ms. Ayala said defendant had come home "very intoxicated and belligerent" and accused her of cheating on him. He threatened to kill her and the kids. He grabbed her by the hair and shook her, causing pain in her neck. Defendant shook her violently while shouting at her, "Tell me who you were with you bitch." He stopped shaking her and said: "So you're not going to tell me. We'll see about that." Defendant walked out of the room and came back with the machete. Officer Santander testified: "[Ms. Ayala said] she [told defendant] to walk away, . . . go in the living room, and she would meet him there in a minute. She was going to put the kids to sleep, and not to hurt her in front of the kids." When defendant left the room, Ms. Ayala took the children and exited the family's trailer home through a side door. Ms. Ayala told Officer Santander the children were present during the altercation. She said defendant had the machete in his hand. She believed he was actually going to kill her. Ms. Ayala admitted there had been two prior domestic violence incidents, but neither had been reported to the police.
Officers Santander and Chaves went to the family's mobile home and arrested defendant. The arrest occurred approximately one hour after Officer Santander first spoke with Ms. Ayala. The officers found a machete in a bedroom closet. Ms. Ayala identified it as the weapon defendant had used to threaten her. Officer Santander testified defendant appeared to be under the influence of alcohol. Defendant was calm, however, and was able to understand what Officer Santander was saying, follow directions and walk without a problem.
The next day, Ms. Ayala attempted to "withdraw" the charges against defendant. Detective Faiza Arain separately interviewed the two boys, Christopher and Alexy. Christopher told Detective Arain that his mother was putting the two boys to bed. Defendant then came home drunk. Defendant yelled at their mother and pulled her hair. Christopher did not know what defendant was saying. Christopher screamed at defendant to stop. Defendant left the room but returned with a "black sword" and started yelling again. Ms. Ayala said she did not want the boys to see what was going to happen, so defendant went to the living room. Ms. Ayala told the boys to run out the back door to where the police were. Defendant had threatened to kill Ms. Ayala before. But this time Christopher felt defendant was really going to do it. Alexy told Detective Arain that defendant came home drunk. Defendant yelled at Alexy's mother. Alexy did not know what defendant was saying. Alexy's mother told him to run outside. He ran to where the police were, together with Ms. Ayala and Christopher.
At trial, Ms. Ayala claimed she had lied when she told Officer Santander defendant had threatened to kill her and the children with a machete. She testified she was angry because defendant had been drinking. Ms. Ayala decided to take her sons with her. Ms. Ayala intended to walk to her sister's house, nearly four miles away. When she encountered the police officers, she asked them to remove defendant from her home. They were unwilling to do so absent cause. Hence, she made up the story about the assault. (Ms. Ayala never told Detective Arain about lying to Officers Santander and Chaves. Had Ms. Ayala said so, Detective Arain would have included that information in a follow-up report.) Eleven-year-old Christopher testified he had no recollection of the events. He denied telling Detective Arain about the incident. Christopher further testified defendant did not even own a machete. Nine-year-old Alexy also failed to recall the incident.
III. DISCUSSION
A. Prior Uncharged Conduct
Defendant argues it was an abuse of discretion to admit evidence of prior domestic violence. As noted above, Officer Santander testified Ms. Ayala told him there had been two prior domestic violence incidents, neither of which had been reported to the police. Detective Arain testified Christopher said defendant had threatened to kill Ms. Ayala in the past. The prior acts of domestic violence had occurred within the preceding eight or nine years. Prior to trial, defense counsel objected to admission of the prior uncharged acts evidence on Evidence Code section 352 grounds. The trial court found: the prior acts of domestic violence occurred less than 10 years before the trial; the prior and charged acts were similar in that both involved threats; and the prejudice to the defendant did not outweigh the probative value of the proffered testimony.
Evidence of prior uncharged acts of domestic violence is admissible in a domestic violence prosecution pursuant to Evidence Code section 1109, subdivision (a)(1), "[I]n 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 [precluding evidence of prior conduct to prove charged conduct] if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1109, subdivision (a)(1) creates an exception in domestic violence cases to the rule that prior acts are inadmissible to prove a propensity to commit the charged crime. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232; see People v. Falsetta (1999) 21 Cal.4th 903, 911.) The prior domestic violence acts evidence is allowed provided the trial court finds it admissible under Evidence Code section 352.
We review an Evidence Code section 352 ruling for an abuse of discretion. (People v. Thomas (2011) 52 Cal.4th 336, 354-355; People v. Brown, supra, 192 Cal.App.4th at p. 1233; People v. Johnson (2010) 185 Cal.App.4th 520, 531.) A trial court has broad discretion under Evidence Code section 352. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226; People v. Thomas, supra, 52 Cal.4th at pp. 354-355.) As the Court of Appeal for the Fifth Appellate District explained in People v. Brown, supra, 192 Cal.App.4th at page 1233: "[The trial court must determine under Evidence Code section 352] whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. ([People v.] Hoover [(2000)] 77 Cal.App.4th [1020,] 1028-1029.) The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Brown [(2000)] 77 Cal.App.4th [1324,] 1337.)" (Fn. omitted.) Our Supreme Court has held, "[A court's evidentiary ruling under Evidence Code section 352] will be sustained on review unless it falls outside the bounds of reason. (Shamblin v. Brittain (1988) 44 Cal.3d 474, 478.)" (People v. DeSantis, supra, 2 Cal.4th at p. 1226; accord, People v. Thomas, supra, 52 Cal.4th at pp. 354-355.)
With respect to prejudice, the Court of Appeal for the Fourth Appellate District has held: "'"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'"' (People v. Bolin (1998) 18 Cal.4th 297, 320.) Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139; People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Similarity to the charged offense is also a relevant consideration. (People v. Johnson, supra, 185 Cal.App.4th at pp. 531-532; People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
We find no abuse of discretion. Defendant threatened to kill Ms. Ayala and her children while intoxicated and brandishing a machete. Given the severity of that conduct, the trial court could reasonably conclude passing reference without more to prior domestic violence would not be more prejudicial to defendant than probative. The circumstances of the prior domestic violence were unknown. How recently they had occurred was also unknown. The prior incidents had never been reported to law enforcement, hence there was no evidence defendant had been convicted for any prior offenses. Consequently, the evidence was neither inflammatory nor likely to confuse the jury.
Further, the jury was instructed pursuant to CALCRIM No. 852. As the Court of Appeal for the Third Appellate District has explained: ". . . CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in [the present case]. . . . CALCRIM No. 852 clarifies that even if the jury concludes defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove defendant's guilt on the charged offense. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 . . . [includes] a clarification which inures to defendant's benefit." (People v. Reyes (2008) 160 Cal.App.4th 246, 252.) Our Supreme Court has held with respect to an analogous instruction concerning prior sexual offense evidence, "This [CALJIC No. 2.50.01] instruction will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a 'bad person' with a criminal disposition. (See Fitch, supra, 55 Cal.App.4th at p. 184.)" (People v. Falsetta, supra, 21 Cal.4th at p. 920.) Given the state of the evidence and jury instructions, the trial court did not abuse its discretion in allowing minimal evidence of prior domestic violence.
The jury was instructed in part: "If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit criminal threats, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of criminal threats. The People must still prove the (charge/ and allegation) beyond a reasonable doubt. Do not consider this evidence for any other purpose."
Even if the trial court had abused its discretion, it is not reasonably probable the verdict would have been more favorable to defendant had the prior domestic violence evidence been excluded. (Cal. Const., art. VI, §13; People v. Scott (2011) 52 Cal.4th 452, 492.) There was substantial, essentially uncontested evidence defendant had assaulted his wife and threatened to kill her and the children. Defendant, while intoxicated, brandished a machete. Three people observed the assault and reported it to police—Ms. Ayala, Christopher and Alexy. It is not reasonably probable the jury would have found defendant innocent had they not heard vague testimony about prior domestic violence.
Defendant contends admission of the prior domestic violence evidence under Evidence Code section 1109 violated his due process and fair trial rights under the United States Constitution. Defendant did not raise this argument in the trial court. Nevertheless, the argument is cognizable on appeal. (People v. Moore (2011) 51 Cal.4th 386, 407, fn. 6; People v. Partida (2005) 37 Cal.4th 428, 431, 434-436.) In any event, having found no abuse of discretion, we also find no constitutional violation. Moreover, our Supreme Court has held Evidence Code section 1108 does not offend due process. (People v. Lewis (2009) 46 Cal.4th 1255, 1284; People v. Falsetta, supra, 21 Cal.4th at pp. 912-922.) That reasoning extends to Evidence Code section 1109. (People v. Johnson, supra, 185 Cal.App.4th at p. 529; People v. Rucker, supra, 126 Cal.App.4th at p. 1120; People v. Jennings, supra, 81 Cal.App.4th at p. 1310.) We are bound by Supreme Court authority. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Voluntary Intoxication Instruction
Defendant asserts error and a violation of his due process and fair trial rights in that the trial court denied his request for a voluntary intoxication instruction pursuant to CALCRIM No. 3426. The trial court ruled the instruction was not warranted because there was no substantial evidence defendant's alcohol consumption had affected his actual formation of specific intent. (§ 22.) No constitutional claim was raised in the trial court; therefore any such argument was forfeited. (People v. Skiles (2011) 51 Cal.4th 1178, 1189; People v. Tafoya (2007) 42 Cal.4th 147, 166.) We conclude the trial court did not err in refusing the instruction.
CALCRIM No. 3426 states: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with
Our Supreme Court enumerated the elements of a criminal threat in the case of In re George T. (2004) 33 Cal.4th 620, 630: "The prosecution must prove '(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be "made verbally, in writing, or by means of an electronic communication device"—was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' [Citations.]" (Italics added, fn. omitted; see People v. Fierro (2010) 180 Cal.App.4th 1342, 1347-1348.)
Our Supreme Court has held: "[A] defendant is entitled to an instruction on voluntary intoxication 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's "actual formation of specific intent."' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, citing People v. Williams (1997) 16 Cal.4th 635, 677.) Our Supreme Court has further held: "[W]hen there is no evidence from which a jury could conclude that as a result of voluntary intoxication the defendant failed to form the requisite criminal intent or attain the requisite mental state, instructions on the defense of voluntary intoxication may properly be refused. [Citations.]" (People v. Williams (1988) 45 Cal.3d 1268, 1311, modified on another point in People v. Guiuan (1998) 18 Cal.4th 558, 560-561, 569, citing People v. Carr (1972) 8 Cal.3d 287, 294.) Evidence a defendant had consumed alcohol without any proof of its effect on his or her actual formation of specific intent is insufficient to require a voluntary intoxication instruction. (People v. Verdugo (2010) 50 Cal.4th 263, 295; People v. Williams, supra, 16 Cal.4th at p. 677; People v. Mayfield(1993) 5 Cal.4th 142, 205; People v. Turville (1959) 51 Cal.2d 620, 633, disapproved on another point in People v. Morse (1964) 60 Cal.2d 631, 638; People v. Price (1929) 207 Cal. 131, 133; compare, e.g., People v. Sanchez (1950) 35 Cal.2d 522, 525-528 [defendant testified he was so intoxicated he had little recollection of the event]; People v. Castillo (1969) 70 Cal.2d 264, 266-270 [a psychologist and a psychiatrist testified defendant suffered from pathological intoxication].)
Defendant did not testify at trial. On appeal, defendant points to evidence he arrived home with his sister, but she did not enter the trailer. Further, Ms. Ayala saw defendant "walking kind of sideways" and smelled alcohol on him. And Christopher told Detective Arain that defendant had come home drunk. There was also evidence that when defendant was arrested, he appeared to be under the influence of alcohol. The arrest occurred one hour after Officer Santander first encountered Ms. Ayala. But defendant was, however, calm, understood what Officer Santander was saying, followed directions and walked without problem. There was no evidence as to the amount of alcohol defendant had imbibed or its effect on his ability to form the necessary intent. (See People v. Marshall (1996) 13 Cal.4th 799, 848; People v. Williams, supra, 45 Cal.3d at pp. 1311-1312.) This was insufficient evidence defendant was so intoxicated he could not form the specific intent that his statements be taken as a threat. Therefore, the trial court properly refused to give a voluntary intoxication instruction.
For the same reason the instruction was not required—the lack of substantial evidence defendant's alcohol consumption affected his ability to form the necessary intent—any error was harmless. The instruction, in any event, was inconsistent with the defense that the altercation never happened. It is not reasonably probable that had the instruction been given, the jury would have concluded defendant's alcohol consumption prevented him from forming the requisite intent. (See People v. Letner and Tobin, supra, 50 Cal.4th at p. 187; People v. Seaton (2001) 26 Cal.4th 598, 666; People v. Spencer (1963) 60 Cal.2d 64, 87-88.) There was no due process violation. (See People v. Avena (1996) 13 Cal.4th 394, 416.)
C. Prior Conviction Allegation
As noted above, the trial court found defendant was previously convicted of a serious felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. Defendant asserts the trial court abused its discretion in denying his motion to strike the prior serious felony conviction allegation. The trial court found, based on the totality of the circumstances, including defendant's prior criminal history, that he was not outside the alternative sentencing scheme in sections 667, subdivisions (b) through (i) and 1170.12. Defendant argues the ruling was an abuse of discretion in that: he had only three contacts with law enforcement as an adult; his criminal record was insignificant in that he had only one prior felony conviction and two misdemeanor offenses; his prior criminal activity was remote in time; he had a stable living situation and was gainfully employed prior to his arrest; his apparent alcohol problem mitigated his culpability for the crime; and his prior performance on probation was satisfactory (his prior felony accusatory pleading was dismissed under section 1203.4).
The trial court had discretion to strike the prior serious felony conviction allegation in furtherance of justice. (§ 1385, subd. (a); People v. Carmony (2004) 33 Cal.4th 367, 373; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial court's ruling on a motion to strike a prior serious felony conviction allegation is a fact-based decision. (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) Our Supreme Court has held, "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding . . . on its own motion, 'in furtherance of justice' pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony conviction, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [sentencing] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Scott (2009) 179 Cal.App.4th 920, 926.)
Our review of the trial court's decision not to strike the prior serious felony conviction allegation is for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 376.) '""In reviewing for abuse of discretion, we are guided by two fundamental precepts. '"First, the burden is on the party attacking the sentencing to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' ([People v. Superior Court (Alvarez), supra, 14 Cal.4th] at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at pp. 376-377; accord, People v. Jones (2009) 178 Cal.App.4th 853, 860-861; People v. Stuart (2007) 156 Cal.App.4th 165, 179.)
We find no abuse of discretion. Defendant's criminal history dates back to 1993, when he was arrested for discharging a firearm from a vehicle, a felony. On January 14, 1994, defendant was placed on three years' probation. On February 25, 2002, the accusatory pleading was dismissed pursuant to section 1203.4. While still on probation, on April 22, 1994, defendant was arrested for driving under the influence of alcohol or drugs. With respect to that offense, the trial court took judicial notice that a bench warrant was issued and not recalled until defendant was arrested for the present offense. Defendant pled guilty to a lesser offense, a violation of Vehicle Code section 23103, on January 13, 2010. Sentencing was set for September 29, 2010, two days after the date of the hearing on defendant's motion to strike his prior felony conviction. And on December 14, 1997, defendant was arrested for driving under the influence of liquor in Phoenix, Arizona. He was convicted on May 9, 2003—less than 6 years prior to his current arrest—and sentenced to 10 days in jail. Three of defendant's criminal offenses, including the present crime, involved alcohol consumption. There was no abuse of discretion in the trial court's factually based decision not to strike defendant's prior serious felony conviction allegation pursuant to section 1385, subdivision (a). (People v. Carmony, supra, 33 Cal.4th at p. 380; People v. Poslof (2005) 126 Cal.App.4th 92, 108109; People v. Cole (2001) 88 Cal.App.4th 850, 874.) Defendant has not shown the trial court's decision was irrational or arbitrary.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
MOSK, J.
KRIEGLER, J.