Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Super. Ct. No. VCF194503
Roberta Lee Franklin, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Lloyd G. Carter and William K. Kim, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
STATEMENT OF THE CASE
On February 11, 2008, the Tulare County District Attorney filed an information in superior court charging appellant as follows:
Count 1--corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) with personal use of a deadly weapon (§§ 1192.7, subd. (c)(24), 12022, subd. (b)(1)), a strike prior (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)), and a prior serious felony (§ 667, subd. (a)(1)); and
All further statutory references are to the Penal Code unless otherwise stated.
Count 2--assault with a deadly weapon (§ 245, subd. (a)(1)) with a strike prior (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)) and a prior serious felony (§ 667, subd. (a)(1)).
On February 19, 2008, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On April 15, 2008, jury trial commenced.
On April 17, 2008, the jury returned verdicts finding appellant guilty of count 2 and finding the special allegations relating to that count to be true. The court declared a mistrial as to count 1 due to the jury’s inability to reach a verdict as to that count.
On May 2, 2008, appellant requested the court to exercise its power under section 1385 to strike her prior strike conviction. On May 9, 2008, the prosecution filed written opposition to the request.
On May 15, 2008, the court denied appellant’s request to strike the prior, denied her probation, and sentenced her to a total term of nine years in state prison. The court imposed a four-year lower term on count 2 and a consecutive five-year term for the related prior serious felony. The court awarded appellant 202 days of custody credits, imposed a $500 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).
On May 23, 2008, appellant filed a timely notice of appeal.
FACTS
On Thanksgiving Eve, November 21, 2007, J. Battle resided with his girlfriend, the appellant, in an apartment on Laurel Street in Visalia. Appellant’s daughter rented the apartment and lived there with Battle, appellant, appellant’s sister, and appellant’s grandchildren. Battle and appellant shared a bedroom in the apartment and Battle kept his possessions in bags. Battle said he and appellant had a four-year relationship during which they lived separately. He also said he moved his “stuff” from Fresno to Visalia about two months before Thanksgiving Eve 2007.
Battle said he finished work at 5:00 p.m. and went to the apartment, where appellant was preparing food for Thanksgiving Day. He left the apartment and returned with a beer, which he drank. Battle said he spent the next eight hours departing from and returning to the apartment and drinking about 15 alcoholic drinks. Each time Battle returned to the apartment, he was more intoxicated than the time before and he and appellant would argue. Battle returned to the apartment for the last time between 1:30 and 2:30 a.m.
During his return visits to the apartment, appellant told Battle he had a curfew and also said she wanted him to stay home. At some point in the evening, Battle suggested he was going to leave his relationship with appellant. According to Battle, this occurred during an argument in which appellant may have been “talking crap” which “hit him” when he was in an intoxicated state. Battle maintained she did nothing to provoke him that evening, although she might have asked him to leave the premises.
Battle returned to the apartment between 1:30 and 2:30 a.m. He was drunk, cursed, acted in a belligerent manner, and awakened everyone in the household, including the children. Battle said appellant opened the door but he claimed he might have forced his way into the apartment. Appellant wanted Battle to stay in the bedroom and go to bed. Appellant tried to close the bedroom door but he kept opening it because he did not want to stop arguing or go to bed. Battle said he was fired up from the alcohol he consumed and was “raising hell.”
Appellant left the bedroom and went to the kitchen. Battle followed a few seconds later. He cussed, ranted, and raved as he followed her. En route to the kitchen, Battle heard a drawer open. He quickly went around a corner and entered the kitchen. Battle said appellant turned around and was “right there” as he entered the room. He walked into a knife that penetrated his chest. Battle could not remember if appellant was simply holding the knife or was swinging the knife prior to penetration.
On the evening of the incident, Battle told police the wound was an accident. He did not remember telling the police he knew that appellant was getting a knife. The knife pierced Battle’s jacket and shirt and the prosecution introduced the weapon, jacket, and shirt into evidence. The wound was located in the center of his chest. While Battle was in the apartment, he applied pressure to the wound. He then waited outside the apartment for an ambulance to arrive. Battle was admitted to Kaweah Delta Hospital at 2:00 a.m. on Thanksgiving day. Hospital personnel applied gauze and the wound stopped bleeding after a time without the need for stitches. Battle said he left the hospital against medical advice but returned on Friday because the wound started to ooze. He stayed at the hospital until 3:00 p.m. on Friday but did not feel any pain.
Battle said his argument with appellant on November 22 was typical of his verbal conflicts with appellant. However, Battle said November 22 was the first time in months that he had consumed alcohol. In previous times, appellant would ask him to leave the apartment but she would ask him to come back once he cooled off. On the previous occasions, they had engaged in pushing and shoving. On one occasion, Battle threw beer in appellant’s face. On five other occasions, Battle hit appellant. Battle said that appellant hit him about the same number of times on prior occasions. Willie Butler saw Battle throw a couple of beers in appellant’s face on one occasion and appellant responded by slapping Battle’s face. Battle said appellant had talked about a time in the past when she used a knife, but Battle thought she was simply bluffing.
Visalia Police Officer Dirk Alfano interviewed Battle at 1:50 a.m. on November 22. Battle told Alfano that his girlfriend stabbed him. Battle did not say that he walked into a knife held by his girlfriend. Rather, Battle said he knew appellant was getting a knife and that he walked into the knife. Battle said his statements varied because he was scared. Battle said he did not want appellant to go to jail and that she did not deserve to go to jail because the incident was his fault. Battle told Officer Alfano he had time to think about the incident and did not want appellant to go to jail. Battle said he was intoxicated when he gave both statements.
Appellant’s daughter, Shonta Carrington, testified that Battle awakened her when he arrived at the apartment and banged on the front door. Appellant opened the door in response to Battle’s banging. Carrington later opened her bedroom door and heard Battle loudly say that he had been stabbed, it was an accident, and “she didn’t mean to -- I ran into it.” Carrington saw her mother pick a knife from the floor and place it on the counter behind a dish rack. Appellant’s son, Deshon Carrington, lived in the apartment below appellant’s apartment. He confirmed that Battle was intoxicated on the evening in question, that he returned to the apartment three times to speak with appellant, and that appellant refused to do so because Battle was drunk.
Visalia Police Officer Robert Gilson interviewed appellant and she said Battle bothered her, harassed her, and would not shut up. Appellant said she acted in self-defense because Battle was “getting crazy” with her. Gilson did not ask follow-up questions to determine the basis of her belief in self-defense or the nature of Battle’s “crazy” conduct. Before tape-recording an interview with appellant, Gilson spoke with her for five to 10 minutes and then recorded an interview in which he summarized her statements. The jury watched the recorded portion of the interview with the aid of a transcript that was not admitted into evidence. In the interview, appellant said she did not know what happened. She claimed the events happened so quickly that she was unaware that she “stuck him.”
Willie Butler, a longtime friend of appellant, testified he and appellant were drinking, playing around, and having a friendly argument in 1999. Butler slapped appellant hard in the face, although he was attempting to be playful. After he slapped appellant, she shoved him down in a closet and stabbed him. Butler’s injuries required a few days of hospitalization. Butler said there were no other instances of violence between them. The parties stipulated the 1999 assault occurred on June 1, 1999, and that appellant sustained a conviction under sections 273.5, 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23) on June 13, 1999.
DISCUSSION
I.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY ADMITTING EVIDENCE OF PRIOR CONDUCT UNDER EVIDENCE CODE SECTION 1109?
Appellant contends the admission of evidence arising from the June 1, 1999 incident constituted an abuse of discretion, was unduly remote and prejudicial, and resulted in a miscarriage of justice.
On April 14, 2008, defense counsel moved in limine to exclude the 1999 acts of domestic violence. Defense counsel maintained the evidence “should be kept out based on [Evidence Code section] 352, similarity to the current offense has a high probability of perfecting the jury and prejudicing the jury against our client.” The court admitted the evidence, finding “the probative value outweighs the prejudicial effect. And given the statement to the witness during the preliminary hearing, I’m going to admit it under [Evidence Code sections] 1108 and 1101(b).”
Evidence Code section 1109 provides that evidence of a defendant’s commission of prior acts of domestic violence may be used in a criminal action in which the defendant is accused of an offense involving domestic violence if the evidence is not unduly prejudicial. (Evid. Code, § 1109.) This code section reflects the Legislature’s determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in new prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335.) The admission of prior acts of domestic violence, subject to the limitations of Evidence Code sections 1109 and 352, does not violate a defendant’s rights to due process and equal protection. (People v. Falsetta (1999) 21 Cal.4th 903, 917-918.) A trial court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) This standard also applies when reviewing a court’s decision regarding the admissibility of evidence under Evidence Code section 1109. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.)
The appellate courts have repeatedly rejected challenges to Evidence Code section 1109 on due process grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095- 1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings, supra, 81 Cal.App.4th at pp. 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419.) These cases relied on People v. Falsetta, supra, 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, did not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. To the extent appellant is implicitly raising a due process challenge to Evidence Code section 1109, we likewise conclude Falsetta’s analysis is applicable to section 1109 and, for the reasons explained in these cases, reject appellant’s challenge to the statute.
As to remoteness of the earlier offenses, section 1109, subdivision (e) states:
“Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
Appellant’s earlier offenses occurred within 10 years of the instant offense and subdivision (e) is not directly applicable. Appellant nevertheless contends the lapse of eight and one-half years between offenses was close to the 10-year mark, there were no intervening incidents to demonstrate a relationship with escalating violence, and the 2007 offense was much more spontaneous and far less serious than the 1999 offense. Appellant further contends the trial court abused its discretion by failing to conduct a section 352 analysis of the remoteness and unique facts of the case, thereby abusing its discretion.
Under Evidence Code sections 1108 and 1109, due process is not offended when a trial court determines the probative value of propensity evidence outweighs its prejudicial effect and properly instructs the jury on the presumption of innocence and the prosecution’s burden of proof. (People v. James, supra, 81 Cal.App.4th at p. 1353.) Here, appellant submits the trial court failed to engage in a careful weighing of prejudice against probative value engendered by the facts of the case. The admission of propensity evidence under section 1108 is subject to the court’s weighing process under section 352. The latter section provides a safeguard against undue prejudice. (People v. Johnson, supra, 77 Cal.App.4th at p. 420.)
Under section 352, the court has the discretion to exclude relevant evidence if its probative value is outweighed by the probability that its admission will consume an undue amount of time or would create a substantial danger of undue prejudice, of confusing the issues or of misleading the jury. In the context of section 352, prejudice refers to evidence that uniquely tends to evoke an emotional bias against a party as an individual and only has slight probative value with regard to the issues. (People v. Scheid (1997) 16 Cal.4th 1, 19.)
“[A] trial court decision pursuant to Evidence Code section 352 is subject to [review for] abuse of discretion analysis. [Citations.] ‘The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.…” (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) An appellate court will not disturb the trial court’s exercise of its broad discretion under Evidence Code section 352 unless the court’s decision was arbitrary, capricious, and patently absurd or exceeding the bounds of reason, all circumstances considered. (People v. Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.)
A careful review of the record in this case does not reveal an abuse of discretion in the trial court’s admission of evidence of appellant’s prior offenses. The likelihood of confusion was not great nor the time taken excessive. The evidence was presented in a clear manner and the handful of witnesses who offered testimony did not confuse the issues of evidence. The prior offense was somewhat similar to the charged offenses, demonstrating defendant’s propensity for acting out against cohabitants. In any event, complete similarity is not required. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)
Appellant nevertheless insists the earlier offense was remote. In People v. Harris (1998) 60 Cal.App.4th 727, the court identified four factors weighing in favor of exclusion under Evidence Code section 352 -- inflammatory nature of the evidence, probability of confusion, remoteness, and consumption of time -- which should be balanced against the probative value of the evidence. (Id. at pp. 737-741.) Generally speaking, remoteness affects the weight of the evidence rather than its admissibility. The remoteness of evidence is a question for determination by the trial court and the court is clothed with wide discretion in this regard. (Casey v. Casey (1950) 97 Cal.App.2d 875, 882.) On appellate review of an Evidence Code section 352 ruling, the deferential abuse of discretion standard governs. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) By that standard of review, the record in the instant case does not show an abuse of discretion, i.e., that the court’s ruling was arbitrary, whimsical, or capricious as a matter of law. (People v. Branch (2001) 91 Cal.App.4th 274, 282). Thus, reversal is not required.
Appellant also implies that the trial court erred by failing to expressly weigh prejudicial effect against probative value. In ruling on an Evidence Code section 352 objection, the trial court need neither expressly weigh prejudicial effect against probative value nor expressly announce compliance with the statute. Where--as here--the trial court’s ruling immediately follows a colloquy among court and counsel about Evidence Code section 352 that is sufficient to establish the requisite understanding of and compliance with the statute. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080.)
II.
WAS THE PRIOR CONDUCT EVIDENCE INADMISSIBLE UNDER EVIDENCE CODE SECTION 1101, SUBDIVISION (B)?
Appellant contends the prior conduct evidence was inadmissible under section 1101, subdivision (b) because none of the exceptions were applicable.
On April 14, 2008, the prosecution filed a trial brief and motions in limine. The prosecution asserted that appellant’s prior acts of domestic violence were admissible under section 1109 and were admissible to show intent, common scheme, or plan under section 1101, subdivision (b). At the hearing on the motion, the court ruled: “Well, I’m going to admit it. I’m going to find the probative value outweighs the prejudicial effect. And given the statement to the witness during the preliminary hearing, I’m going to admit it under 1108 and 1101(b).” On appeal, appellant submits the statutory exceptions set forth in section 1101, subdivision (b) were inapplicable to the instant case and the trial court abused its discretion and denied her due process of law by admitting the prior offenses under that subdivision.
Section 1101, subdivision (b) states:
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character. However, evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code § 1101.) On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. (People v. Carter (2005) 36 Cal.4th 1114, 1147; People v. Lewis (2001) 25 Cal.4th 610, 636-637 [intent]; People v. Kipp, supra, 18 Cal.4th at pp. 369-370 [identity].) Finally, for uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence. (People v. Kipp, supra, 18 Cal.4th at p. 371; People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
Appellant submits that specific intent and motive were not elements of either offense charged in the instant case. Moreover, she contends there was no question as to the identity of the person holding the knife that injured Battle nor was there a question about common plan or scheme. Respondent concedes identity was not at issue here. Nevertheless, respondent properly points out that evidence of the 1999 incident of domestic violence tended to show that appellant reacted in the same manner when engaged in altercations with her cohabitants, thus tending to show the absence of a mistake or accident. The trial court did not err in admitting the evidence under section 1101, subdivision (b).
III.
WAS APPELLANT ENTITLED TO CUSTODY CREDITS UNDER SECTION 4019?
Appellant contends and the People concede she is entitled to conduct credits under section 4019.
DISPOSITION
The matter is remanded to the superior court with instructions to recalculate presentence conduct credits under section 4019, to prepare an amended abstract of judgment setting forth the recalculated credits, and to transmit certified copies of the amended abstract to all parties and entities. In all other respects, the judgment is affirmed.
WE CONCUR: Dawson, J., Hill, J.