Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS051160A
Bamattre-Manoukian, ACTING P.J.
Defendant Ronald Lewis Barter was convicted after jury trial of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The court suspended imposition of sentence and placed defendant on probation for three years under various terms and conditions. On appeal, defendant contends that (1) CALJIC No. 4.45, the instruction the court gave on the defense of accident, is constitutionally deficient; (2) the court erred in admitting evidence that defendant watched pornography; and (3) the cumulative impact of these two errors compels reversal. Defendant also requests review of the trial court’s finding that nothing in two deputy sheriffs’ personnel records was discoverable. As we find no prejudicial error, we will affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by information filed May 13, 2005, with two counts of inflicting corporal injury on a spouse (§ 273.5, subd. (a); counts 1 and 2), misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 3), and misdemeanor battery on a peace officer (§ 243, subd. (b); count 4). On September 20, 2005, defendant filed a motion for discovery of the personnel records of Deputy Sheriffs Timothy Krebs and Frank Duenas. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Following an in camera review of the records on October 13, 2005, the trial court denied the motion, finding nothing discoverable. On June 19, 2006, the court ruled in limine that it would allow the prosecutor to admit evidence that Jane mentioned defendant’s viewing of pornography during their argument leading to the charges at issue, but it would disallow other evidence that defendant sought to exclude.
The victim was referred to as “Jane Doe” in the information and throughout the trial. We will refer to her hereafter as Jane.
The Prosecution’s Case
Jane and defendant married in October 2001. They separated beginning in 2002 for nine months to a year, but got back together in late 2003. Jane admitted that she once slapped defendant before their separation because he would not leave her Carmel Valley home after they had agreed to a divorce and the move. In 2005, Jane and defendant lived in Jane’s home with his son and her youngest son. Jane’s oldest son and his wife lived in a cottage in the back of the home.
They were divorced by the time of defendant’s trial.
On March 29, 2005, Jane and defendant went to the Baja Cantina after arriving home from a trip. They sat at the bar for about one and one-half hours and ordered some appetizers and drinks. While talking with a male friend of hers and that friend’s two visiting nephews about things they could do in the area, defendant said that the most beautiful women he knows are in Toronto. When one of the nephews asked how to contact them, defendant responded that he could give him their numbers. Defendant used to live in Toronto with his former wife, who had told Jane that defendant had not been faithful to her, and Jane thought that maybe defendant was talking about the women in some pornography he watched on his computer. Although Jane was upset about what defendant had said and where he had said it, defendant and Jane left the restaurant without discussing the issue.
At home, Jane changed into her nightgown upstairs in their bedroom and defendant went into the kitchen to make some soup. Jane’s youngest son was in the living room watching television. When defendant came upstairs, Jane was on the landing at defendant’s desk. Defendant asked Jane what she was doing and she said that she was writing him a letter. Defendant said that she could ask him whatever she wanted, and he then went back downstairs. Jane followed him into the kitchen and asked him if he had been unfaithful to his former wife in Toronto. Defendant responded, “So you’ve been drinking again.” He told her that she was sick, and he poured his soup into a bowl. Jane said that she could not take any more and that she wanted to be alone for awhile. Defendant angrily said that he had had it. They both raced up the stairs. Defendant bumped into Jane’s left side and screamed at her that she should find another place to go. Jane stepped in front of defendant and ran towards the bedroom door. When she was about two feet from the door, she felt heat on her back and then defendant shoved her into the door from her right side. She staggered out to the landing and tried to move her nightgown fabric away from her back. Defendant stood in front of her and said, “ ‘Now I’m going to hit you before you can hit me.’ ” He then hit her on the right side of her mouth.
Jane’s youngest son heard his mother moan, so he ran up the stairs, got between defendant and Jane, and said stop. Jane’s lip was a little swollen and there was soup on the floor. Defendant did not apologize or attempt to assist Jane. Jane told her son what had happened, and he went downstairs to call his brother. Defendant went to the bedroom closet and Jane called 911 from the phone next to the bed. Defendant lay on the bed after the call. Jane complained about her back hurting but defendant just smiled. Jane went downstairs and was met by her oldest son and daughter-in-law. Jane waited in the living room with her daughter-in-law for the police to arrive.
On March 29, 2005, Deputy Sheriff Frank Duenas was dispatched in uniform to the Carmel Valley home where Jane and defendant lived. Deputy Timothy Krebs responded separately in uniform. Jane’s two sons came out to the gate and let the officers in. Jane’s sons said that Jane had been involved in an argument with their stepfather, defendant, and that defendant had hit Jane in the mouth and thrown soup on her. The officers followed Jane’s sons into the home. Deputy Duenas found Jane in her nightgown sitting on a couch in the living room with her daughter-in-law. Jane was wet and pale, and she had blood dripping from her mouth. Deputy Krebs stayed near the front door and watched defendant, who was visible up a flight of stairs.
Deputy Duenas asked Jane what had happened to her. Jane responded, “ ‘My husband threw hot soup on me, then, punched me in the mouth.’ ” When a phone call came for defendant, he came downstairs, walked past Deputy Krebs, and talked on the phone for a short while before returning to Deputy Krebs. Jane became frightened, so Deputy Duenas asked her if there was some place they could go to talk privately. Jane stood up and said that she wanted her husband to leave that night. Deputy Duenas responded that an arrest was mandatory for a spousal battery that caused injuries such as hers. As Deputy Duenas and Jane left the living room and headed for the stairs, defendant was standing next to Deputy Krebs. Deputy Duenas and Jane walked upstairs while Deputy Krebs asked defendant for identification. Defendant said he did not have it in the house. Defendant’s response was angry and aggressive, so Deputy Duenas signaled Deputy Krebs to place defendant in custody.
Deputy Krebs told defendant that he was under arrest, and he told defendant to turn around and place his hands behind his back. Defendant did not comply. He stepped back, raised his hands slightly, stared at Jane and swore at the deputy. Deputy Krebs reached out to grab defendant’s arm, but defendant pulled away. Deputy Krebs struggled with defendant. Deputy Duenas came down the stairs and grabbed defendant’s right arm while Deputy Krebs grabbed defendant’s left arm. Deputy Duenas told defendant to put his hands behind his back. He tried to force defendant’s hands behind his back and his body to the floor. Defendant again tried to pull away and he dragged the officers with him. Deputy Krebs used his taser on defendant’s back but it seemed to have no effect; defendant appeared more angry and continued to struggle with the officers.
Deputy Krebs said that he was going to discharge taser darts at defendant. Defendant swung his arm at Deputy Krebs a number of times when the deputy moved away from defendant. Deputy Krebs yelled at Deputy Duenas to “clear,” so Deputy Duenas ducked behind defendant. The taser fired as Deputy Krebs was loading the darts. The darts did not hit defendant, they hit Deputy Krebs’s hand. Deputy Krebs cried out in pain. He tried to remove the darts from his hand, but was not able to. He used the taser on defendant again. Deputy Duenas continued to struggle briefly with defendant, but was able to handcuff him, take him to the floor, and sit on his arm. Deputy Krebs tried to use his portable radio to call for backup, but the radio did not work in the house. Deputy Duenas yelled for somebody to call 911. Jane’s youngest son called 911 and Deputy Duenas yelled at him to request two ambulances. After a few minutes, defendant calmed down and Deputy Duenas took defendant out to a police car. Jane’s daughter-in-law found a bowl containing soup residue on the landing after defendant was taken from the house.
Other officers and two ambulances arrived. Deputy Duenas seized all of Deputy Krebs’s weapons before Deputy Krebs was taken by ambulance to the hospital. At the hospital, doctors removed the taser darts from Deputy Krebs’s hand. His hand was swollen and required surgery due to nerve damage and a severed artery. He was off work for about three months, and was then on light duty for three weeks. At the time of defendant’s trial, Deputy Krebs could use his hand but his ring finger was still numb.
Jane was also taken by ambulance to the hospital. Her back was red and blistered and her lip was cut, bruised, and swollen. She also sustained a bruise on her left arm. Jane spoke on the phone to and saw defendant a few times after this incident, until she was informed that it violated her restraining order.
Deputy Brian Irons has instructed other deputies on the proper use of a taser since August 2003. Deputy Krebs completed his training with Deputy Irons and received his certificate on October 23, 2004. The training includes review of the department’s policies regarding the use of force and the general order regarding the use of a taser. One department policy is that, if the officer determines that a taser or any type of force being used is not working, the officer needs to use a different type of force. The policy does not state the number of times a taser should be used before it is determined that it is not working.
In order to safely reload a taser with darts after it had been used, the taser must be turned off. Each taser has the ability to track its usage. Information from the taser can be downloaded to verify how many times the taser was used, for how long, and on what day. Deputy Krebs’s taser indicates that it was used three times on March 29, 2005.
Barbara Davies has worked in the field of domestic violence almost 20 years, and has talked to thousands of victims of domestic violence. She did not meet with Jane or know about defendant’s case. Domestic violence affects all kinds of people but victims do have some common characteristics. They either are in denial or they minimize the violence. They often make their abusers’ bail and violate their restraining orders. They often recant their accusations and try to get the charges dropped.
The Defense Case
Lynda Gates, defense counsel’s paralegal and investigator, conducted a telephone interview of Jane’s oldest son on April 27, 2005. Jane’s son said that he saw Deputy Krebs step back and defendant “ ‘swatting in the air’ ” while the other deputy was holding him. He also said that Deputy Krebs was trying to get the taser together when it went off. Gates did not show her written report to Jane’s son after she wrote it.
Benjamin Welch has known defendant for 40 to 45 years. He socialized with defendant and Jane during their marriage. In his opinion, after Jane has a couple of glasses of wine, she gets “a little testy.” Her personality changes and she becomes “on edge.” However, he has never seen her get physically violent. Welch called defendant at home on the evening of March 29, 2005, to talk about playing golf the next day. Welch could tell by defendant’s voice that he was upset, but defendant did not tell Welch what was going on.
Rebecca Kendall, defendant’s sister, testified about an incident that happened about one and one-half years before the trial. Kendall was in her kitchen cooking with her mother when Jane walked in. Jane was upset and crying. She was wearing dark glasses and a wrist brace. She asked to speak to Kendall privately. First she said that defendant had hurt her, but then she said that she was accidently hurt during the middle of the night while defendant was sleeping. Later, after everybody ate, Jane took her wrist brace off and helped with the dishes.
Defendant testified in his own defense. He started dating Jane when he relocated to California from Louisiana in 2000. When he could not find a job in the area, he took one in Delaware. After they married in October 2001, Jane told defendant she would not relocate to Delaware. Defendant returned to California and moved into Jane’s home. However, he was not able to find regular work in Monterey County. In October 2002, he moved out for a short time because Jane told him to. He lived with his sister for about one month until Jane asked him to return. He returned, but in July 2003, Jane told him again to leave. He took a job in the state of Washington, but returned within six or seven months at Jane’s request.
On March 29, 2005, defendant and Jane were going to go for a hike when Jane decided she would rather go to the Baja Cantina. They drank and talked for awhile in the restaurant before Jane waved over her male friend, who joined their conversation. The friend’s two nephews later joined them and, during their conversation, asked where they could meet nice girls. Defendant said that some of the most beautiful ladies he had seen were in the Toronto area, but he did not offer any phone numbers.
After defendant and Jane went home, defendant changed clothes, then went to the kitchen to warm up some soup. As he was pouring the hot soup into a mug, Jane entered the kitchen. She appeared agitated. She said that she was upset by the conversation at the restaurant, that the discussion of women in Toronto upset her. He told her that it was the liquor talking and that she was acting crazy. He headed up the stairs. As he approached the top, Jane bumped him as she ran by, which caused him to spill some soup on the landing. She told him to find another place to sleep. Defendant ran towards the bedroom because he wanted to get some belongings if he had to sleep somewhere else. When Jane reached the bedroom door, she stopped and thrust her hip out to block him. When she bumped him, it caused him to spill the soup. The soup splashed on defendant’s shoulder and on Jane’s back.
Jane turned around, raised her hand in a fist, and moved towards defendant. Defendant threw his hands up, because he was trying to stop Jane from hitting him, and one of his hands hit Jane in the face. They both then stopped and stared at each other. Jane’s son came up the stairs, stepped between them, and said stop. Jane said that she was calling the police. Defendant changed his clothes but could not find his wallet and keys while Jane was on the phone. Jane then went downstairs and defendant sat on the bed waiting for the police to arrive.
Defendant saw that two deputies were there when he took the phone call from Welch. After the call, he did not know what to say to the deputies so he headed back upstairs. Deputy Krebs asked him if he had any identification on him and he responded, “No, sir.” “I don’t know where it is.” Deputy Krebs then asked him to turn around and to put his hands behind his back. He complied, but he was scared, confused, and angry. He spread his legs and said something, and something caused him to move forward and hit his head on the wall. Deputy Krebs told him that he was going to be tased, and he felt a tremendous pain between his shoulder blades. He tried to move away from the pain, and struggled with the deputies. He was trying to get away from the taser, not from being handcuffed. He was on his knees and things had calmed down before he heard Deputy Krebs cry out that his hand hurt. He told Deputy Duenas that he was okay, and to take care of his partner. Deputy Duenas stayed with defendant and asked Jane’s son to call 911. Deputy Duenas took defendant down to the floor and Deputy Krebs shot him with the taser again.
On cross-examination, defendant testified that he has watched pornography on his home computer. He had his wallet with him at the Baja Cantina on March 29, 2005. He was not angry when he changed his clothes, when he was in the kitchen, or when he retreated back up the stairs. When Jane turned towards him after the soup splashed on him, she made a loud curse; he does not remember her moaning. He did not intentionally hit Jane.
Verdicts, Motion for New Trial, and Sentencing
On June 26, 2006, the jury found defendant guilty of count 1 (inflicting corporal injury on a spouse; § 273.5, subd. (a)) and count 3 (resisting a peace officer; § 148, subd. (a)(1)), but not guilty of count 2 (inflicting corporal injury on spouse) and count 4 (battery on a peace officer; § 243, subd. (b)). On February 5, 2008, with new counsel, defendant filed a motion for new trial. Following a hearing on April 4, 2008, the court denied the motion.
On May 2, 2008, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he have no contact with Jane. Defendant filed a timely notice of appeal.
DISCUSSION
CALJIC No. 4.45
Defendant was charged with two counts of inflicting corporal injury on a spouse (§ 273.5, subd. (a)), counts 1 and 2. The prosecutor informed the jury that count 1 was based on the injury to Jane’s back caused by the hot soup, and count 2 was based on the injury to her face. Defendant’s defense to count 1 was that that the soup splashed on Jane’s back accidently when she bumped him at the bedroom door. His defense to count 2 was that his hand hit Jane’s face while he was acting in self-defense. The jury found defendant guilty of count 1 but not guilty of count 2.
The court instructed the jury in part as follows: “In the crimes charged in Count 1, 2, 3, and 4,... there must exist a union or joint operation of act or conduct [and] general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful. When a person commits an act or makes an omission, through misfortune or by accident, under circumstances that show neither criminal intent nor purpose, he does not, thereby, commit a crime.” (Italics added; see CALJIC Nos. 3.30, 4.45.)
Defendant contends that CALJIC No. 4.45, the italicized language above, is a deficient instruction because it does not clearly and specifically inform the jury that the prosecution bore the burden of proving, beyond a reasonable doubt, that defendant acted with the required intent. “In this case, the evidence clearly indicated the critical need to properly instruct the jury on accident. Even though trial counsel did not request the court to modify the incomplete language of the accident instruction used in this case, the trial court was required to give the appropriate instruction pursuant to Evidence Code section 502....” “The trial court’s failure to give an accident instruction that properly allocated the burden of proof as to this defense was federal constitutional error that deprived [defendant] of his due process right to a fair trial, and to a jury verdict as to all the elements of the charged crime.”
The Attorney General assumes that defendant proffered the instruction to the trial court because it was based on his defense. We find nothing in the record to support such an assumption.
Evidence Code section 502 states: “The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”
The Attorney General contends that, “[r]eading the instructions as a whole, it is not reasonably likely that the jury would have been misled into believing that [defendant] had to prove accident. Instead, the jury was unequivocally told that the burden to prove criminal intent beyond a reasonable doubt was on the prosecution, and that if a particular act was committed accidentally, then the defendant lacked the criminal intent needed to prove a crime.”
“A trial court must instruct the jury on the allocation and weight of the burden of proof (Evid. Code, § 502; [citations]), and, of course, must do so correctly. It must give such an instruction even in the absence of a request [citation], inasmuch as the allocation and weight of the burden of proof are issues that ‘are closely and openly connected with the facts before the court, and... are necessary for the jury’s understanding of the case’ [citation].” (People v. Mower (2002) 28 Cal.4th 457, 483-484.)
“When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact. [Citation.] This is so because the defense goes directly to guilt or innocence. The trial court is required to instruct the jury on which party has the burden of proof and on the nature of that burden. [Citations.] The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime. [Citation.]” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
In this case, although the trial court did not modify CALJIC No. 4.45 to reflect the various burdens of proof imposed on the parties, the court did provide other instructions that accurately informed the jury of the burden of proof imposed on the prosecution and defendant. The court instructed pursuant to CALJIC No. 9.35, which informed the jury that, in order to convict defendant of inflicting corporal injury on his spouse, the prosecution must prove each element of the crime. The prosecution’s burden included proving defendant “willfully inflicted bodily injury.” The word “willfully” was defined as “a purpose or willingness to commit the act that results in corporal injury.” The court also instructed the jury with CALJIC No. 2.90, which told the jury the prosecution had the burden of proving defendant guilty beyond a reasonable doubt, and with CALJIC No. 1.01, which informed the jury that all instructions are to be considered as a whole.
We note that CALCRIM No. 3404 states in relevant part: “The defendant is not guilty of _____ <insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of _____ unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.” (Italics added.)
When a trial court gives the standard instruction on presumption of innocence, reasonable doubt, and the prosecution’s burden of proof, the instruction is sufficient to eliminate any confusion and adequately instruct on the prosecution’s burden of proof. (Cf. People v. Earp (1999) 20 Cal.4th 826, 887; People v. Medina (1995) 11 Cal.4th 694, 745; People v. Beardslee (1991) 53 Cal.3d 68, 97.) Therefore, the jury in this case was adequately instructed that the prosecution had the burden of proving beyond a reasonable doubt that defendant willfully inflicted bodily injury on Jane.
The above instructions, when coupled with CALJIC No. 3.30 and 4.45, also adequately conveyed the parties’ respective burdens of proof. CALJIC No. 3.30 informed the jury that a person must intentionally do what the law declares to be a crime for that person to act with general criminal intent. CALJIC No. 4.45 informed the jury that if the infliction of injury on Jane was by accident and under circumstances showing a lack of criminal intent, defendant did not commit a crime. The jury received no instructions requiring defendant to prove his lack of criminal intent beyond a reasonable doubt. The jurors, following all the instructions given them, were compelled to impose a requirement of proof beyond a reasonable doubt on the prosecution but no such burden on defendant. Defendant had to only raise a reasonable doubt that the infliction of injury on Jane was done intentionally for the jury to acquit him.
While defendant is correct that an instruction the court gave on defendant’s defense of self-defense (CALJIC No. 5.15, modified for a charge of spouse beating) did specify the burden of proof in the instruction itself, this does not lead to a conclusion that CALJIC No. 4.45 is defective because it does not. Defendant has not cited, and we have not found, any case finding an affirmative defense instruction, which was accompanied by other instructions correctly describing the burden of proof, deficient because it did not contain a burden of proof specification in the instruction itself. If defendant believed that CALJIC No. 4.45 was unclear or incomplete, the burden was on him to request clarifying language. (People v. Johnson (1993) 6 Cal.4th 1, 53.)
The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions given to them. (People v. Delgado (1993) 5 Cal.4th 312, 331; see also Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9.) As we find that the trial court adequately instructed the jury on the allocation of the burden of proof as to defendant’s accident defense, we conclude that any error by the trial judge in failing to sua sponte modify CALJIC No. 4.45 was harmless beyond a reasonable doubt. (People v. Mower, supra, 28 Cal.4th at p. 484.)
Evidence of Pornography
Prior to trial, defendant moved in limine to exclude evidence that defendant watched pornography. Defendant argued that any probative value of the evidence was slight, and was outweighed by its prejudicial impact. The prosecutor argued that the evidence was relevant because the use of pornography was partially the basis for the argument leading up to the charges. “[T]he argument that night goes to show her state of mind and also the defendant’s motive for the battering incident. The more things she put on the fire, the angrier he got and then he struck out.” The court denied defendant’s request to exclude the evidence, stating, “it does appear that the mention of pornography is relevant that leads to the argument and the battery under that theory, and I will find that the prejudicial value does not outweigh the relevancy issue....”
In his motion for new trial, defendant contended in part that “the prosecutor behaved improperly when she continually referred to unauthenticated pornography on the Defendant’s computer.” “Unsubstantiated evidence of pornography on the Defendant’s computer in no way related to the alleged spousal abuse, resisting arrest, and battery of a police officer. This evidence was extremely prejudicial to defendant, as it tended to show him to be a coarse and decadent man, and invited speculation by the jury.” The prosecutor argued that all of the comments she made during closing arguments were based on testimony during the trial; that the testimony was used to show why Jane wanted to discuss their relationship after the conversations at the restaurant; and that it was never brought up in testimony or argued that, because defendant viewed pornography, he must be guilty of the charges against him. In addition, when defense counsel challenged Jane on cross-examination by suggesting that the pornography did not exist, even though a back-up disc from defendant’s computer had previously been discovered that did contain pornography, the prosecutor limited her rehabilitation of Jane by having defendant admit during cross-examination that he had viewed pornography on his computer. In denying the motion for new trial the court stated that it found the prosecutor’s argument to be proper based on the testimony and the discovery provided by the prosecution.
On appeal, defendant contends that the court erred in admitting evidence that defendant viewed pornography. “[Defendant] was convicted of throwing soup at [Jane] and then resisting arrest. There was an argument between [defendant] and [Jane]. Instead of arguing about pornography, they could just as easily have been disputing the theory of evolution. Simply put, pornography was neither relevant nor necessary to the allegations in this case.” “The improper use of evidence of pornography did nothing but cast aspersion upon [defendant’s] character, thereby violating his right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution.”
The Attorney General contends that the trial court did not abuse its discretion in admitting evidence regarding pornography. “[Defendant] wanted the jury to think that he had made an innocuous comment about beautiful women in Toronto, and that [Jane] irrationally flew into a rage when they got home.... If the jury believed [Jane] was acting in an irrational, vengeful manner, it would obviously be less inclined to believe her version of events. The prosecutor was entitled to counter that trial tactic by admitting evidence regarding the genesis of the fight: [Jane’s] anger over [defendant’s] penchant for pornography, and his desire to humiliate her in front of others.” The Attorney General further contends that defendant’s acquittal on one count of spousal battery “belies any claim of prejudice from the pornography.”
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence Code section 352 permits a court to exclude otherwise relevant 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.” (See also People v. Riggs (2008) 44 Cal.4th 248, 290-291.)
Evidence Code section 352 uses the word “prejudice” “ ‘ “ ‘in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]”... In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
“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. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘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.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Evidence that defendant watched pornography would not, in and of itself, necessarily create a “substantial danger of undue prejudice.” (Evid. Code, § 352.) There was no contention that defendant was responsible for the content of the pornography he watched, nor was there any contention that it involved children. Accordingly, we cannot say that the trial court abused its discretion in concluding that the probative value of the evidence was not substantially outweighed by the possibility for prejudice, as required for exclusion under Evidence Code section 352.
In any event, any error in the admission of the evidence was harmless. To justify reversal, the erroneous admission of evidence over an Evidence Code section 352 objection must be prejudicial. “[W]e evaluate whether ‘it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818, 836....)” (People v. Page (2008) 44 Cal.4th 1, 42.) Here, the jury’s acquittal of defendant on count 2, the other count of inflicting corporal injury on a spouse, and count 4, the count of battery on a peace officer, demonstrates that the jury was not inappropriately influenced by the admission of the evidence of which defendant complains. No denial of due process or a fair trial has been shown.
Cumulative Error
Defendant contends that, assuming this court finds the errors he alleges to be harmless individually, the cumulative impact of the errors nevertheless requires reversal. Our Supreme Court recognized in People v. Hill (1998) 17 Cal.4th 800, at page 844, that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” In this case, we have found that any alleged instructional or evidentiary error was not prejudicial. We also find that the cumulative impact of any alleged errors was not prejudicial.
Pitchess Motion
A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. (Pitchess, supra, 11 Cal.3d 531, 535; People v. Hughes (2002) 27 Cal.4th 287, 330.) At defendant’s request, we have examined the transcript of the in camera hearing on defendant’s motion to disclose the personnel records of deputies Duenas and Krebs. The transcript reveals that the court heard testimony from the custodian of records and reviewed the contents of the deputies’ personnel and internal affairs files, and determined that none of the information in the files was disclosable. The files did not contain any complaints about an excessive use of force or an illegal arrest as to either officer. Therefore, we conclude that the trial court did not abuse its discretion in refusing to disclose any contents of the officers’ personnel files. (Hughes, supra, at p. 330.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.