Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA 090280, Carol Williams Elswick, Judge.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
A jury convicted appellant Tommy Ray Belin of corporal injury to a cohabitant, forcible rape, and kidnapping. Appellant contends that the trial court violated his constitutional rights in admitting evidence of prior domestic violence offenses and in sentencing him to the upper term for corporal injury to a cohabitant. We affirm.
STATEMENT OF FACTS
1. Prosecution Evidence
Jane Doe lived in the same apartment complex as appellant and his family. She knew appellant for approximately six months. They were in a relationship, and he had been living in her apartment for approximately a week. Jane Doe was aware that appellant had a child with another woman, Meredith Coombs. She did not believe that appellant was still in a relationship with Coombs when she was in a relationship with him. Her first encounter with Coombs was when she and appellant were walking into a store and Coombs tried to hit them with her car.
Approximately a week after the incident with the car, on April 10, 2010, Jane Doe and Coombs exchanged text messages. Coombs asked what was going on between Jane Doe and appellant and indicated that she was not “going to let a relationship happen.” Jane Doe responded that she did not want to get involved in what she viewed as a “family issue” between them. She told appellant to leave her alone and leave her out of his “family drama” with Coombs.
On April 11, 2010, Jane Doe’s friend William visited her at her apartment. Appellant often watched what was going on at her apartment from inside his family’s apartment; he could see her door from his window. William hugged Jane Doe and was there for four or five minutes, talking to Jane Doe outside her apartment. Later that night, at approximately 11:00 or 11:30 p.m., appellant began banging and kicking Jane Doe’s door, waking up Jane Doe and her daughter, who was three years old at the time. Jane Doe opened the door and appellant pushed his way in. He was drunk and in a rage. He said, “Why are you talking to my enemies... [¶]... [¶]... about me?” She believed that he was referring to William. He hit her with his fist on the face, and when her phone fell to the floor, he hit her in the face with her phone. He kicked and broke her glass table. Her daughter came to the bottom of the stairs and he grabbed them both by the wrists and took them to his family’s apartment. Appellant’s mother and father and some of his family members were gathered outside his apartment, and Jane Doe passed them as he pulled her and her daughter inside. Inside, he pushed Jane Doe down onto the couch and told her daughter to go upstairs. He went through all the phone numbers, phone calls, and text messages on her phone and asked her who each male was. Each time he saw something he “didn’t like, ” he hit Jane Doe in the face. Appellant’s friend B.G. came in, and appellant told him Jane Doe was “talking to our enemies.” Appellant told B.G. they should take her back to her apartment so they could “have their way.” Appellant kicked Jane Doe while she was sitting on the couch and cracked her rib. His mother came inside and saw appellant hit Jane Doe, and she told him not to do that in her house and to leave Jane Doe alone.
Appellant told Jane Doe she could not get her daughter from upstairs, and he dragged her back to her apartment. At her apartment, he told her to go upstairs, and when she asked why, he told her to “shut up” and kicked her on her lower back. Jane Doe went upstairs to her bedroom where appellant pushed her down onto the bed, took off her clothes, and raped her. Appellant then allowed her to dress and go downstairs to retrieve her daughter from his apartment. She brought her daughter back to her apartment, and appellant followed. Appellant made her sit next to him on the floor of her bedroom while he ate something. He told her that she and her daughter “didn’t deserve this treatment, ” and when she woke up, he was “going to [be] dead in one of these restrooms.” He took a belt from Jane Doe’s leather jacket and tied it around his neck and pulled. He began to drool and foam at the mouth, and Jane Doe ran outside and screamed for his family to come and get him. Appellant’s mother and brother came and carried him out of Jane Doe’s apartment.
The police came to the apartment complex that night for an unrelated shooting, and Jane Doe contemplated telling them about the incident with appellant. She did not tell them that night for fear of what his family might do to her if he was arrested. Jane Doe decided that she had to leave with her daughter and called her friend, Jennifer, to come get her the next morning. Jennifer was taking Jane Doe and her daughter to Jane Doe’s father’s when they were pulled over by the police for unrelated reasons. The police noticed Jane Doe’s physical condition and asked what had happened, and she reported that she had been beaten and raped. The officers called an ambulance, and from there it took her to the hospital. Photographs of Jane Doe taken at the hospital depicted bruising on her face, arms, and thighs, a black eye, and an abrasion on her chest.
Jane Doe spoke to officers at the hospital. At first, she did not tell them that she and appellant had a romantic relationship because she feared they would not take her allegations seriously. She later told the officers the truth at the police station.
Coombs text messaged and left a voicemail for Jane Doe after the incident with appellant. In her messages, she claimed to have beaten Jane Doe and told Jane Doe she was putting an innocent man in jail, and she was not going to let her “get away with it.” But Jane Doe testified she had never been in a physical altercation with Coombs.
Estela Samaniego has a child with appellant and testified to prior incidents of domestic violence on appellant’s part. Samaniego was in a relationship with appellant for three years, and they lived together. On New Year’s Eve in 2000, appellant hit Samaniego in the face with his fist, causing a black eye. He hit her once again after that, but she could not remember the date. After that time, she left appellant. Appellant was mean and angry and arguing with her when he hit her, but she did not think he was under the influence of alcohol.
2. Defense Evidence
Jane Doe told appellant’s mother, Laddie Wimberly, that she loved appellant but she could not “deal with the baby’s mama because she’s causing problems.” On the afternoon of April 11, 2010, Wimberly saw appellant and Jane Doe at appellant’s family apartment, and Wimberly talked and laughed with them briefly. She did not see them fighting that evening. Later that night, Wimberly received a text message saying that something was wrong with appellant. She ran outside to see appellant’s brother carrying him down the walkway.
Wimberly thought that Jane Doe and Coombs were having a dispute over appellant’s affections. Wimberly saw Coombs in the early morning hours of April 12, 2010. Coombs said that she had gotten into a fight with Jane Doe and she had a scratch on her face, but Wimberly told her she did not want to hear about it because she did not want “to get in the middle of that stuff.”
Coombs invoked her Fifth Amendment right against self-incrimination outside the presence of the jury and did not testify at trial. The defense investigator testified that he interviewed Coombs and she told him that she and Jane Doe had gotten into a verbal confrontation over appellant, and it had escalated into a fistfight. She did not tell him the precise date of the confrontation.
3. Prosecution Rebuttal Evidence
Coombs visited appellant in jail on April 13, 2010. The visit was audio and video recorded and played for the jury. Coombs appeared to tell appellant to say to investigators that she hit Jane Doe:
“[Coombs]: Tell them I fuckin’ *** hit her with the phone.
The transcript of the jail house conversation used asterisks to indicate unintelligible sounds.
“[Appellant]: Huh?
“[Coombs]: Tell them I hit her with the phone.
“[Appellant]: What?
“[Coombs]: I hit her with the phone. I did that. You know what I’m sayin’? This bitch out there telling me she fuckin’ my dude, know what I’m sayin’? I hit the bitch with the phone. Please, you need to do that ‘cause *** you’re goin’ down you stupid ass. *** You gotta dude. Do you hear me? Do you?
“[Appellant]: Yeah. Meredith, Meredith.
“[Coombs]: Tito, I’m not playing with you. You need to do that, ‘cause if you don’t, *** gonna fuck you up for the rest of your motherfuckin’ life. I shouldn’t do anything, but I can’t do that, ‘cause I’m not like you. You gonna get your ass outta jail, because ***?... [¶]... [¶]
“[Coombs]:... Tell them that I hit her with the phone. She lyin’, that I hit you with the phone, or I hit her with the phone. I don’t know what else is on her. I don’t give a fuck. [¶].... [¶]
“[Appellant]: They’re saying her bruises and stuff, on her, on her arm where somebody grabbed her, and where her arm, her eye and whatever, is, they saying that I did that.
“[Coombs]: Okay[.]
“[Appellant]: They saying her bruises, right here where somebody grabbed her and where her arm or her eye is... they saying I did that[.]
“[Coombs]: I did it[.]
“[Appellant]: They saying she got a bruise right here. Right here. That’s from her being, that’s from her being grabbed like how uh, I’m not trying to...
“[Coombs]: Tito. Where else where the fucking bruises?
“[Appellant]: Huh?
“[Coombs]: Where else are the bruises?
“[Appellant]: What?
“[Coombs]: Tito. She *** more than that.
“[Appellant]: On her arms. They just told me.
“[Coombs]: And what else? Tito, *** need to understand they *** this shit on you, too. Where the fuck else are they?
“[Appellant]: ***
“[Coombs]: Where are they?
“[Appellant]: That’s it, I think. *** The man just told me.”
Coombs subsequently attended the preliminary hearing on April 27, 2010, at which Jane Doe detailed the location of her injuries. The same day of the hearing, after it had concluded, Coombs spoke with Detective Andrew Bebon. She told Detective Bebon that during the day of April 11, 2010, and prior to 9:00 or 10:00 p.m. that night, she and Jane Doe got into a fight. She said she hit Jane Doe in the face and arms and kicked her in the stomach.
PROCEDURAL HISTORY
The information charged appellant with corporal injury to a cohabitant, forcible rape, and kidnapping. It further alleged that appellant personally inflicted great bodily injury on Jane Doe. It also alleged that appellant served two prior prison terms. The jury found appellant guilty on all counts and found the great bodily injury allegation to be true. Appellant waived a jury trial on the two prior prison term allegations, and the court found one prior prison term allegation to be true. The court granted the People’s motion to strike the second prior prison term allegation. It sentenced appellant to 13 years eight months in state prison, consisting of four years for corporal injury to a cohabitant, a consecutive five years for the great bodily injury enhancement, a consecutive year for the prior prison term enhancement, a consecutive two years for forcible rape, and a consecutive one year and eight months for kidnapping. Appellant filed a timely notice of appeal.
STANDARD OF REVIEW
We review the trial court’s decision to admit or exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) We also review the trial court’s decision to impose a particular sentence for abuse of discretion. (People v. Jones (2009) 178 Cal.App.4th 853, 860.) When reviewing a claim that a defendant’s constitutional rights have been violated, our review is predominantly legal and is de novo. (In re Collins (2001) 86 Cal.App.4th 1176, 1181.)
DISCUSSION
1. The Trial Court Did Not Violate Due Process in Admitting Evidence of Appellant’s Prior Acts of Domestic Violence
Appellant contends that the court violated his right to due process when it admitted evidence from Samaniego of prior domestic violence under Evidence Code section 1109. We disagree.
Generally, evidence of a person’s character in the form of specific instances of the person’s conduct is inadmissible when offered to prove that he or she behaved in conformity with that character on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1109 constitutes an exception to that general rule. Specifically, “in 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 admissible, so long as the act occurred within 10 years before the charged offense, and the evidence is not inadmissible pursuant to Evidence Code section 352. (Evid. Code, § 1109, subds. (a)(1), (e).) “Domestic violence” for these purposes means “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (Pen. Code, § 13700, subd. (b); see also Evid. Code, § 1109, subd. (d).)
Here, Samaniego’s testimony regarding appellant’s prior acts of domestic violence was admissible under Evidence Code section 1109. There is no dispute that both the instant offense and the acts to which Samaniego testified constituted domestic violence. It is also undisputed that the prior acts occurred within 10 years of the charged offense. Appellant’s domestic violence against Jane Doe occurred on April 11, 2010, and his violence against Samaniego occurred on December 31, 2000. There was another incident after the December 2000 incident, but Samaniego could not recall the date.
Appellant urges that the admission of Samaniego’s testimony violated due process because (1) the prior acts, while within 10 years, were too remote in time, and (2) her testimony was more prejudicial than probative under Evidence Code section 352. First, appellant cites no authority for his bare assertion that acts at the outer boundary of the 10-year statutory time period are too remote to satisfy due process. The statute permits the court to admit even acts falling outside the 10-year period, so long as the court determines it is “in the interest of justice” to do so. (Evid. Code, § 1109, subd. (e).) And still, the courts have routinely rejected due process challenges to section 1109. (See, e.g., People v. Johnson (2010) 185 Cal.App.4th 520, 529; People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 417.)
Second, we disagree that Samaniego’s testimony was more prejudicial than probative. Appellant suggests that her testimony was not probative because Samaniego’s case was factually dissimilar to the instant case. Specifically, Jane Doe said appellant was intoxicated when he attacked her, and Samaniego said he was not, and Jane Doe and appellant cohabitated for a week and had no children together, while Samaniego and he cohabitated for several years and had a child. The principal factor affecting the probative value of the prior domestic violence is its similarity to the charged offense. (People v. Johnson, supra, 185 Cal.App.4th at p. 524.) “[Evidence Code s]ection 1109 was intended to make admissible a prior incident ‘similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.’ [Citation.]” (Id. at p. 532.) “[P]roponents of the bill that became section 1109 argued for admissibility of such evidence because of the ‘typically repetitive nature’ of domestic violence. [Citations.]” (Ibid., fn. omitted.) Here, the offenses against Jane Doe and Samaniego were sufficiently similar to lend Samaniego’s testimony probative value. Both involved intimate partners with whom appellant lived, and in both cases he hit the victims in the face with his fist, causing black eyes. In both instances, he was angry and mean. Even if Samaniego’s testimony had less probative value, it was no more inflammatory than Jane Doe’s testimony describing the beating and rape, which as a whole sounded much more serious than what happened to Samaniego. Thus, there was little, if any, prejudice in Samaniego’s testimony. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.)
Moreover, assuming arguendo that Samaniego’s testimony was more prejudicial than probative, any error in admitting the evidence would not rise to a due process violation. The court of appeal has repeatedly held that it is precisely the trial court’s discretion to exclude evidence under Evidence Code section 352 that saves Evidence Code section 1109 from a due process challenge. (See, e.g., People v. Brown, supra, 77 Cal.App.4th at p. 1334.) An erroneous exercise of discretion under section 352 generally does not rise to a problem of constitutional magnitude. The “routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.” (People v. Brown (2003) 31 Cal.4th 518, 545.)
2. The Trial Court’s Sentence for Corporal Injury to a Cohabitant Did Not Violate Appellant’s Right to a Jury Trial
Appellant contends that the trial court violated his Sixth Amendment right to a jury trial in imposing the upper-term sentence for corporal injury to a cohabitant because the jury did not find any aggravating circumstances. We disagree. There is no requirement that the jury find the aggravating circumstances used in sentencing.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that a sentencing scheme violates a defendant’s right to a jury trial when the court may increase a penalty beyond the statutory maximum based on a fact, other than a prior conviction, not admitted by the defendant or found true by the jury. In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court considered the constitutionality of California’s determinate sentencing law in light of Apprendi. Prior to March 30, 2007, former Penal Code section 1170, subdivision (b), provided in pertinent part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” In Cunningham, the court concluded that former section 1170, subdivision (b), violated Apprendi, to the extent it effectively made the middle term the statutory maximum and allowed courts to impose the upper term based on a fact, other than a prior conviction, not admitted by the defendant or found true by the jury. (Cunningham, supra, at p. 275.)
The California Legislature responded to Cunningham by amending Penal Code section 1170, subdivision (b), effective March 30, 2007. (People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) The amendment effectively eliminated the middle term as the statutory presumption. After the amendment, the choice between the upper, middle, and lower terms rested “within the sound discretion of the court, ” and the court was permitted to “select the term which, in the court’s discretion, best serves the interests of justice.” (Stats. 2007, ch. 3, § 2.) The trial courts were thus free to select the upper term based on any aggravating circumstances they deemed significant, subject to certain prohibitions, whether found by the jury or not. (People v. Sandoval, supra, at p. 848.)
Appellant relies on Cunningham, but as we have just discussed, the 2007 amendment to Penal Code section 1170, subdivision (b) rendered Cunningham inapplicable. Appellant committed the instant offense and was sentenced long after the amendment became effective. The court therefore had the discretion to choose the upper term based on aggravating circumstances in the record, regardless of whether the jury found them to be true. The court stated the circumstances in aggravation, and its reasons for imposing the upper term, as follows: (1) pursuant to California Rules of Court, rule 4.421(a)(6), appellant illegally interfered with the judicial process by concocting a scheme with Coombs in which she would claim that she inflicted the injuries on Jane Doe; (2) pursuant to rule 4.421(a)(8), the manner in which appellant carried out the crime demonstrated some planning and forethought, in that he first beat Jane Doe at her apartment, and “[w]hen that was not enough, ” he moved her and her daughter to his family’s apartment, a place of relative safety from discovery; (3) pursuant to rule 4.421(b)(1), appellant engaged in violent conduct that indicates a danger to society; (4) pursuant to rule 4.421(b)(2), appellant had prior convictions or sustained juvenile petitions that were of increasing seriousness; (5) pursuant to rule 4.421(b)(3), appellant had served a prior prison term; and (6) pursuant to rule 4.421(b)(4) and (5), appellant was on probation or parole at the time of the offense against Jane Doe, and he had been sent to prison in four separate cases for parole violations. Given these circumstances, the court did not abuse its discretion in sentencing appellant to the upper term.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: BIGELOW, P. J.RUBIN, J.