Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CF3780. Patrick Donahue, Judge.
John L. Dodd & Associates, 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, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
David Barela was charged with multiple offenses based on two incidents of domestic violence occurring in 2002 and 2004. Over his objection, the trial court granted the prosecution’s motion to admit evidence of five prior acts of domestic violence. Barela was convicted by a jury of arson of personal property, criminal threats, attempted murder, child abuse, and two counts of domestic battery. On appeal, he attacks only the attempted first degree murder conviction, arguing it must be reversed because the trial court abused its discretion when it admitted evidence of four (of the five) prior abuse incidents. We disagree and affirm the judgment.
I
FACTS
Counts 1 through 3
In August 2002, Barela moved into Esther J.’s mobile home, where she lived with her six-year-old grandson. He kicked her arm, leaving a bruise (count 1, domestic battery). The following month, he and Esther had a horrendous fight. It began when Esther told Barela not to pick her up from work. When she arrived home, Barela accused her of being with someone else and left the residence. Esther went to bed, but at 5:00 a.m., the next day, was confronted by Barela wielding a beer bottle and asking who she had been with. He struck Esther on her neck, and she testified he threatened to “shove this bottle up me.” Barela ordered her to change her clothes and get into the closet. She complied. He then called her a liar and handed her a lit match saying “this is what he was going to use to burn [her].”
Barela proceeded to “tear[] the house apart” and then let Esther out of the closet. He then gathered some of her nightgowns and threw them on the lit burners of the kitchen stove (count 2, arson). Esther recalled he “started yelling at me that I was going next” (count 3, criminal threat). She thought he intended to burn her and she ran out of the house, seeking help from neighbors until the police arrived.
Counts 4 through 6
In 2004, Esther and her grandson rented two bedrooms and a living room in a split-level house. Lisa Rosofski, the owner, and her family, occupied the upstairs level of the home. In December, the owner’s mother, Dolly Baker, was also living there. On December 24, Esther went to work and left her grandson in Barela’s care. Baker saw Barela drink “a couple shots of whiskey” and a beer between noon and 2 p.m. When Esther returned from work at 2:15 p.m., she found Barela drinking brandy. Barela was angry with her because he suspected she was planning to meet her ex-husband that night at her parents’ house. He repeatedly asked questions about her plans. In reality, Esther testified she only intended to drop off her grandson at her parents’ house to celebrate Christmas Eve. She and Barela had plans to go out to dinner and buy one more Christmas gift.
Later that afternoon, Barela drove Esther and her grandson to a store, where they quickly made a purchase. When they returned home, Barela “was still mad[]” and became more enraged after Esther told him she did not want him drive with her to drop off her grandson. They began having a heated argument, and she was afraid he would make a scene at her parents’ home.
By the time Esther was ready to leave, Barela had finished the bottle of brandy. He followed Esther out to her car and yelled at her. Esther and her grandson quickly entered the car and locked the doors. Barela continued to yell at her, “kept banging on the door,” and hit the window. Rosofski, watching from an upstairs window, saw Barela grab Esther to try to stop her from leaving, and heard him say “‘if you leave, I will kill you.’” But, Esther said she could not testify as to what exactly Barela yelled.
After Esther dropped of her grandson, she drove around because she “just didn’t know what to do.” Meanwhile, Barela placed some clothes and tools in his truck. When Esther eventually returned to the house and found Barela passed out on the bed, the room was a mess, and “he had [vomited] everywhere.” When Barela woke up, Esther told him she wanted to end their relationship. Barela said he was sorry and repeatedly said, “‘please don’t leave.’”
A few hours later, Esther returned to her parents’ house to pick up her grandson. She returned home at approximately 10:30 p.m., and found Barela outside the house waiting for her, yelling and demanding to know why it had taken so long. Later in the evening, Barela attempted to be affectionate with Esther, but she kept pushing him away. She and her grandson sat on the couch and watched television. The last thing Esther remembers from that evening is telling Barela she was going to sleep, and she lay down on one side of the couch and her grandson lay down on the other side.
Baker remembered more details about what transpired that night. Standing on the staircase, she observed the couple fighting and Barela’s attack. Baker testified she first saw Barela attempt to force himself on Esther, and she pushed him away. She then saw Barela become very angry when Esther accused him of hitting her grandson. Barela went to the boy’s room to speak with him, but Esther told Barela to leave him alone and brought the child into the living room to sit on the couch with her. Barela accused Esther and the child of lying. Baker also heard Esther tell Barela to “leave them alone, and she didn’t want him around anymore.” He replied in a mean voice, “‘If that is what you want, then that is what you are going to get.’” Baker recalled Barela was very angry.
Next, Baker saw Barela leave the room, and when he returned, he stood behind the couch holding a two-by-four piece of wood like a baseball bat. Baker saw him take a full swing and hit the back of Esther’s head. After several more blows, the wood broke. Esther fell to the floor. During the attack, Esther’s grandson had tried to shield her with his body and was also hit. She heard the boy tell Barela, “‘Please don’t hit my grandmother anymore.’” Barela then moved to the front of the couch and pushed the child away. Baker heard Barela say to Esther, “‘this is what you get.’” When he struck Esther again, Baker shouted loudly, “that is enough of that.” Baker yelled for her daughter to call the police, and Barela ran out of the house.
Esther’s left arm and skull were fractured during the attack. At the time of trial, Esther testified she was still experiencing problems with the left side of her face, including pain and numbness. Her grandson had a splinter in his thumb removed, but was otherwise uninjured.
The Evidence of Prior Acts Admitted
(1) September 1995—Annette B.
Barela had been dating Annette for three years, and they were living together. In September 1995, Annette hid Barela’s alcohol in the freezer after finding him intoxicated and “hibernating in his garage.” She went to bed and locked the bedroom door. Early in the morning, Barela started banging on the bedroom door, demanding the return of his alcohol. He eventually broke down the door and dragged Annette by her hair from the bedroom to the kitchen. When she refused to say where the alcohol was hidden, he held the back of her neck and slammed her head against the floor until she passed out. When Annette woke up, she ran to the bathroom and locked the door. Barela followed her and tore down the bathroom door and continued to strike Annette. She eventually managed to get to a phone, but Barela took it away from her and hit her over the head with it. Annette testified “then [Barela] kind of freaked out, and then he just took off back to the garage.” She called 911 for help. A few days after the fight, Barela called Annette and accused her of seeing other men. Annette said it was a constant theme in their relationship. During one telephone conversation, Annette recalled being frightened when Barela “threatened to cut off [her] fingers and mess up [her] face so no one else would want [her.]”
(2) July 2002—Esther
One night, Barela awoke Esther who had been asleep on the couch. He angrily asked her where she had been. He accused her of just returning home because he felt the hood of her car was hot. He then angrily said he knew who she had been with. He hit and kicked her face, chest, and arms. Barela then pulled her into the bedroom, forcibly removed her clothing, and raped her. He yelled at her that she was not going to be with anybody else. The next morning, he acted surprised to see her bruises and apologized. He made her stay in a hotel room for several days “because he said nobody could see me like that.”
(3) August 2002–Esther
Barela showed Esther a rifle. Barela claimed he was hiding guns underneath her trailer. She recalled, “He told me that . . . he could get a gun any time he wanted, and he showed me that . . . he was telling me the truth by bringing the gun out.” She said he threatened to kill her, and “[h]e was always telling me that I was going to pay for what all the women had done to him.” She told Barela to get the gun out of the house, and she believed he later sold it.
(4) September 2004–Esther
Barela convinced Esther to help him paint some rooms in his parents’ house. Esther was reluctant to go, and Barela became upset with her. He started to question her about her plans, asking who she wanted to meet rather than help him paint. She remembered that when they arrived at the house, Barela was already mad at her. After Esther helped Barela paint, they took a shower together. He again started to yell and accuse her of wanting to be with someone else. He put his hands around her neck and squeezed it until she passed out on the shower floor. When she awoke, Barela said he knew how far he could choke her to make her pass out and not kill her. He then threatened to kill her and would not let her leave the bathroom. Barela opened the door only after Esther’s grandson knocked on the door and she told him to run and get help.
(5) December 2004—Esther
Esther and Barela believed a rented video had damaged the VCR. Esther called the video store to complain, but Barela took the phone away from her and shouted at the clerk. Meanwhile, Esther removed a piece of tape label from inside the VCR and was able to play the tape. Thereafter, Esther refused to follow Barela’s orders to ask the store clerk for a new VCR. Barela yelled at her, grabbed her by the neck, and knocked her down. He stopped hurting her when Rosofski “heard the noise and she hollered at us.”
Defense Case
Barela presented evidence he had never threatened to kill Esther, and that Esther was unstable. In the hospital, after the December 2004 beating, Esther told the police Barela had hit her arm one time in the past, and failed to mention he had ever threatened her life. One of Barela’s brothers testified he knew the couple had arguments, but Esther never revealed she was physically injured or afraid of Barela. Three times the brother gave her money to help her leave Barela, and he told her they shouldn’t be together, but she always returned. Another of Barela’s brothers testified Esther would frequently call his house looking for Barela, and she would leave angry messages threatening to harm Barela and his family. He recalled Esther would also call him and ask for money or property. He said Esther sometimes came to his house unannounced looking for Barela. A friend of Barela’s recalled an incident in which Barela was speaking to a female customer in a house he had painted, and Esther became enraged when the friend told her it was not a good time to speak to Barela. Esther cursed, yelled, and threatened to hurt the woman inside. She hit Barela on the head with a metal bar the size of a broom handle, and then received a cut on her hand from the bar. Eventually, she left the premises.
Procedural History
Barela was charged with: (1) domestic battery causing injury to Esther between August and September 2002; (2) arson of her personal property; (3) making criminal threats in September 2002; (4) attempted murder; (5) domestic battery causing injury to Esther in December 2004; and (6) child abuse as to Esther’s grandson. As to the last three counts, it was alleged Barela used a deadly weapon (a piece of wood). As to counts 4 and 5, it was alleged Barela caused Esther great bodily injury. It was also alleged Barela had a prior conviction under Penal Code section 667, subdivision (a)(1).
Before trial, the prosecution filed a motion to admit several prior acts of domestic violence under Evidence Code sections 1101, subdivision (b), and 1109, subdivision (a)(1). The court ruled against the admission of one, but allowed the others subject to certain limitations. It granted Barela’s motion to bifurcate the trial on the issue of the prior conviction.
The jury found Barela guilty of all the counts as charged, and determined all the special allegations to be true. The court found the prior conviction true. The court imposed concurrent terms for counts 1, 2, and 6, and stayed the sentence imposed for count 5 pursuant to Penal Code section 654. Consequently, Barela received an indeterminate life term of 14 years to life with the possibility of parole plus 11 years, plus a determinate sentence of 9 years.
II
DISCUSSION
Barela correctly notes evidence of prior acts is generally inadmissible to show guilt (Evid. Code, § 1101, subd. (a)), and he acknowledges the Legislature has identified certain categories of prior acts evidence which may be probative on material issues and therefore admissible. (Evid. Code, §§ 1101, 1108, 1109.) These categories include facts in issue such as motive, intent, preparation, plan, knowledge, and identity. (Evid. Code, § 1101, subds. (a) & (b).) He focuses on legal authority holding evidence in the identified categories is only admissible if relevant and material. “If an accused has not actually placed that [ultimate fact] in issue, evidence of uncharged offenses may not be admitted to prove it. [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 315, internal quotation marks omitted; superseded by statute on other grounds as stated in Clark v. Brown (9th Cir. 2006) 442 F.3d 708, 714, fn. 2.)
It is Barela’s primary contention on appeal that certain issues were not in dispute, and therefore, the prior acts evidence should not have been admitted to prove uncontested facts. For example, he maintains the identity of the perpetrator was not seriously contested. In the opening and closing statements, defense counsel admitted Barela struck Esther. In pretrial discovery, his witness list presented no evidence to support an alibi theory. Barela asserts the defense had “taken some action to narrow the prosecution’s burden of proof.” (Citing People v. Daniels (1991) 52 Cal.3d 815, 858.)
In addition, Barela asserts the defense conceded the issue of willful (but not premeditated) criminal behavior. Of the six charged crimes, two required proof of specific intent: (1) criminal threats alleged in count 3, and (2) attempted murder alleged in count 4. Arson and domestic violence are general intent crimes. He points out the defense did not raise any affirmative defenses of self-defense or mistake, which “greatly limited the scope of the issues in dispute.”
Unfortunately, the Attorney General offers little to address Barela’s main contention on appeal. Citing People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610 (Linkenauger), the Attorney General states Barela pled not guilty and “offered no formal concession that would limit the issues, and at the time of trial sought to show that he had acted impulsively and without premeditation. Accordingly, his willfulness, deliberation and premeditation; his specific intent to kill, and his general intent to inflict harm on Esther . . . were all facts in dispute.”
We note, the Attorney General offers no record references to support its argument. Moreover, we noticed the factual discussion contained on a single page, failed to discuss counts 4 through 6. Perhaps this was just an oversight on the Attorney General’s part, but it should keep in mind it is each parties’ duty to present reasoned argument with supporting record references in an appeal. It would be unwise to “assume” minimal briefing is acceptable (or would go unnoticed) by this court.
As discussed at length in the opening brief, there are several Supreme Court cases holding a plea of not guilty does not necessarily put everything material in issue. For example, in People v. Daniels (1991) 52 Cal.3d 815, 857 (Daniels), defendant argued evidence of a prior bank robbery was “irrelevant because intent was not ‘at issue’ in the case.” Defendant asserted “his defense contested only the issue of identity [in the current murder case] and that the robbery evidence is not probative on that point.” (Ibid.) The Supreme Court rejected this argument, citing to its earlier decision People v. Rodriguez (1986) 42 Cal.3d 730, 756-758 (Rodriguez), where it “held that when the defendant did not isolate the issue of identity until after the prosecutor had completed his case-in-chief, the court did not err in permitting the prosecutor to present evidence of prior criminal conduct to prove premeditation, willfulness, and malice aforethought.” (Daniels, supra, 52 Cal.3d at p. 857 .) The Daniels court concluded a defendant’s plea generally “put[s] the elements of the crime in issue for the purpose of deciding the admissibility of evidence under Evidence Code section 1101, unless the defendant has taken some action to narrow the prosecution’s burden of proof.” (Id. at pp. 857-858, fns. omitted.) Analyzing the case before it, the court noted defendant had not offered any “concession which limited the issues, so the prosecution had the burden of proving all the elements of the crime.” (Id. at p. 858.)
Barela asserts People v. Demetrulias (2006) 39 Cal.4th 1, is instructive. There “[d]efendant admitted having stabbed [the victim], but denied having tried to rob him and claimed he acted in self defense. . . . [T]he identity of the killer was not seriously contested, but defendant’s motive in attacking and killing [the victim] most certainly was.” (Id. at p. 15.) Barela asserts neither his identity nor willful criminal behavior was seriously contested. He claims he expressly conceded he “snapped” and willfully hit her. However, his specific intent to kill Esther certainly cannot be proven by past acts of domestic violence.
We have carefully reviewed the reporter’s transcript. The opening statements were not included in the record, and we found no other statement made by the defense that would support Barela’s claim on appeal that he “expressly conced[ed] the issues of identity and willful behavior[.]” Although we agree the issue of identity was never seriously contested, the defense did not take any affirmative steps to otherwise limit any of the remaining issues. (Daniels, supra, 52 Cal.3d at p. 858.)
As for any alleged concessions made during the closing argument, we conclude such admissions came too late. The prosecution, and the trial court, would require notice of the conceded issues before the prosecution presented its case. The complaint charged Barela with (1) attempted first degree murder, with premeditation and deliberation, and (2) making a criminal threat with the specific intent his statement be taken as a threat. “The prosecution had the burden of proving those elements before the close of its case-in-chief. (Pen. Code, § 1118.1.)” (Rodriguez, supra, 42 Cal.3d at p. 758.) Whether Barela’s acts and threats were willful was an issue in dispute.
Moreover, we found the closing argument contained conflicting statements about whether Barela ever admitted he acted willfully. Counsel’s first statement in closing argument was to tell the jury, “My closing argument is not going to be as lengthy as [the prosecutor’s.] [¶] As the court told you this morning before we started closing argument that the burden, as I know you are all aware, the burden of proving each and every count, each and every element is on the prosecutor, so he needs to take you through everything step-by-step.” From this statement, it can be inferred the defense made no concessions about any elements of the charged crimes. Later during the argument, counsel conceded Barela “just snapped and did this horrendous thing[,]” and several reasons were given for why it was not a preplanned murder. Certainly, a jury could imply Barela was admitting his actions were willful, but not premeditated. But, as explained above, the prosecution was not given adequate notice the defense intended to narrow the issues in dispute, and it had a duty to prove every element of the crimes charged.
Alternatively, Barela also argues the prior acts evidence, even if slightly relevant, was inadmissible as propensity evidence under Evidence Code section 352. Relying extensively on People v. Ewoldt (1994) 7 Cal.4th 380, 404 (superseded by statute on other grounds as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505), Barela offers several reasons why each prior act was not sufficiently similar to the charged acts to justify their admission.
We find Linkenauger, supra, 32 Cal.App.4th at pp. 1611-1612, is instructive. There the court considered and rejected a similar argument. The court examined pre-Ewoldt Supreme Court precedent, and “distilled the following rule: ‘Where a defendant is charged with a violent crime and has or had a previous relationship with a victim, prior assaults upon the same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon the consideration of identical perpetrator and victim without resort to a “distinctive modus operandi” analysis of other factors.’ ([People v.] Zack [(1985])184 Cal.App.3d 409, 415 [(Zack)].” (Ibid.)
The Linkenauger court cited several examples: “In Zack, the defendant had a ‘stormy’ two-year romantic relationship with his girlfriend, the decedent. [The defendant,] physically assaulted her on several occasions. When she moved out, [he] threatened to kill her. Thereafter, he beat and strangled her to death.” (Linkenauger, supra, 32 Cal.App.4th at pp. 1611-1612.) In Zack, the defendant sought to exclude evidence of his prior assaults on the decedent. That court reasoned, “A trial is a search for the truth. [Citations.] . . . [Defendant] was not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim’s relationship and their parting were peaceful and friendly.” (Zack, supra, 184 Cal.App.3d at p. 415.)
Recognizing the rule in Zack and the other case, defendant in Linkenauger argued “Ewoldt, supra, 7 Cal.4th 380[,] compel[led] a different rule. In Ewoldt, defendant was convicted of molesting his stepdaughter. The trial court admitted testimony that defendant had committed prior uncharged sexual offenses against the victim and victim’s older sister. The Supreme Court affirmed the judgment, and indicated that the prior molestations and charged offenses were sufficiently similar to support the inference that they were manifestations of a common design or plan. [Citation.] . . . [¶] Ewoldt indicated that varying degrees of similarity are required when evidence of prior misconduct is offered to show intent, common design or plan, or identity. ‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation] . . . [¶] A greater degree of similarity is required in order to prove the existence of a common design or plan.’ [Citation.] The [Ewoldt] court stated that ‘[t]he greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.’” (Linkenauger, supra, 32 Cal.App.4th at pp. 1612-1613, fn. omitted.)
The Linkenauger court concluded, “The general rules promulgated in Ewoldt are not here controlling because the instant factual context is fairly distinguishable. [¶] First, Ewoldt did not involve a ‘violent crime’ as was the case in Zack, whose holding is strictly limited to a charged ‘violent crime.’ [Citation.] Second, in Ewoldt, the issue was common design or plan which was not the case in Zack. Third, not even newly written Supreme Court precedent can alter the fact that no one can kill the same victim twice in a distinctive or ‘signature’ fashion. [Citations.]” (Linkenauger, supra, 32 Cal.App.4th at p. 1613.) It determined evidence of Linkenauger’s prior assaults and marital discord were admissible under Evidence Code section 1101 to show ill will and motive to commit a premeditated murder. (Ibid.)
Thus, although Barela’s prior acts of domestic violence are not exactly like the charged crimes, the fact he had previously and repeatedly assaulted the same person he tried to kill was probative as to his state of mind and relevant to prove motive, intent, deliberation, and premeditation. We agree with the Attorney General’s assertion the prior incidents were no more inflammatory or egregious than the charged offenses and any dissimilarity would not increase the potential for prejudice.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: ILLS, P. J., FYBEL, J.