Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA055842 Darlene Schempp, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice, pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Nadja Bulajic appeals her convictions of felony elder abuse with infliction of injury, and misdemeanor assault. She contends that the trial court erred in admitting propensity evidence prohibited by Evidence Code section 1101, subdivision (a), and that she was prejudiced by the error. We agree that the court erred but find the error harmless. Thus we affirm the judgment.
STATEMENT OF THE CASE
In a two-count information, appellant was charged in count 1 with elder abuse in violation of Penal Code section 368, subdivision (b)(1), with an allegation pursuant to section 368, subdivision (b)(2), that appellant caused the 79-year-old victim to suffer great bodily injury. Appellant was charged in count 2 with assault by means likely to produce great bodily injury, in violation of section 245, subd. (a)(1).) Count 2 further alleged, pursuant to Penal Code section 12022.7, subdivision (c), that appellant inflicted great bodily injury on a victim over 70 years old.
The jury convicted appellant of elder abuse with infliction of injury as alleged in count 1, and misdemeanor simple assault, a lesser included offense of the felony assault alleged in count 2. On May 27, 2008, the court sentenced appellant to two years in prison and 180 days in jail. Appellant filed a timely notice of appeal the same day.
FACTS
1. The Incident
Theodora Halladay, the victim in this case, was a 79-year-old woman who rented out about three rooms in her house. For a little over a year, appellant Nadja Bulajic had been a tenant. Although these two individuals usually got along well, appellant got into disputes with several of the other tenants, and Ms. Halladay had to intervene and attempt to resolve some of these problems. As one example, the tenants were upset because appellant washed her dishes in the bathroom instead of the kitchen. While appellant would agree to change this behavior, she never did. On another occasion, appellant accused Halladay and another tenant of going into her room when appellant was not there. To prove that she no longer had access to the room, Ms. Halladay gave appellant her only key. When Ms. Halladay had tried to talk with appellant about these problems, appellant would get agitated. Once appellant shouted at her and called her a “crazy old woman.”
At the time she testified, Ms. Halladay had three tenants.
On the night of May 12, 2007, Ms. Halladay went to appellant’s room to talk with her about a couple of complaints from the other tenants. Appellant was there; Halladay could hear the television going and saw light coming from under the door. Ms. Halladay knocked on the door; appellant did not answer, and since Ms. Halladay no longer had a key to the room, she could not get in. Ms. Halladay knocked again. When appellant finally answered the door, Ms. Halladay said, “Nadja, we need to discuss something.” Appellant sounded agitated and ordered Halladay to leave. Halladay would not leave and said, “No, Nadja, we need to talk.” At this point, both ladies had their hands on the door knob. Appellant let go of the knob and, according to Ms. Halladay, “extended her two arms out straight in front of her and contacted my shoulders with great force, so as to hurl me across the floor,” which was concrete covered by linoleum tile. Halladay’s feet left the floor; she fell, broke her wrist, and broke her hip.
Ms. Halladay testified that although she could not get up and was in “agony,” appellant “came and stood over me and told me this was all my fault and that I deserved it, and that she had her rights.” In a “loud,” “agitated,” and “insistent” voice, appellant repeatedly told Blye, “Don’t call 9-1-1.”
Blye confirmed the exchange between appellant and Ms. Halladay when she asked him to call 9-1-1 and added that as he was about to make the emergency call, appellant “came right up in my face. I would say she was maybe six inches from my face approximately.” Then, she said, “Don’t call 9-1-1. She is okay. She is okay.” Blye made the call and went outside to meet the paramedics and guide them into the house. Fifteen minutes after the paramedics had arrived, appellant said to Blye in a “very angry” tone, “Thank you for calling 911. May God forgive you.”
The victim spent at least three days in the hospital, unable to get out of bed and dependent on pain medication. She underwent hip surgery. She had to wear a cast on her left wrist for five weeks and spent five weeks at the Tarzana Rehabilitation Center. Even six months later, Ms. Halladay continued to have symptoms from this fall: a tremor in her left arm and trouble climbing stairs and standing for long periods of time. Appellant never apologized for this incident, nor did she ever express any concern to Mr. Blye about it.
2. One Month Earlier
In a 402 motion before the trial started, the court denied a defense objection under Evidence Code sections 352 and 1101, subdivision (b), to certain testimony by Blye We relate the subject testimony in the manner the jury actually heard it:
About a month before this incident, Blye was in his room, where he overheard “words being exchanged with one of the tenants outside. I couldn’t make out what was being said, but I did hear the final response from [appellant] and that was, ‘Fuck you.’” Appellant’s tone of voice “wasn’t joking.”
The court gave no limiting instruction.
DISCUSSION
1. The Trial Court Erred by Admitting Appellant’s Past Epithet
Although the defense presented no affirmative evidence, it was clear that the defense theory was that the fall was accidental. In closing argument, counsel insisted that “Mrs. Halladay fell. It was an accident. No one is to blame.” Section 1101, subdivision (b), of the Evidence Code allows the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact such as absence of mistake or accident. The problem is that the “other act” in this case proves nothing. We are left to speculate on the reason why the appellant uttered the profanity. Even if we concede that appellant cursed in anger, this only proves that she could swear, in short, a character trait. The court understood this when it said, “If he has heard her being aggressive towards other tenants, it would show perhaps a character trait and a pattern and conduct of what she does, and I would allow it under that.” The evidence fails to imply that what happened on May 12 was not an accident. Worse, there was no evidence that appellant said “fuck you” or any other vulgarity during the incident in question. The evidence should not have been allowed.
“[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).)
Evidence Code section 352 allows a court to exclude evidence if, among other things, “its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “‘Speculative inferences that are derived from a declarant’s words cannot be deemed to be relevant under the definition of relevant evidence set forth in Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a “tendency in reason” for such purpose.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1009.) Saying “fuck you” a month before an incident during which the appellant did not curse at all constitutes the precise type of conduct that the court should in its discretion have excluded. We conclude that the probative value of the exchange a month earlier can be charitably described as miniscule and should have been excluded, but for reasons discussed post, we believe the error was harmless.
2. The Error Was Harmless
Appellant contends that the judgment must be reversed unless we find the error harmless beyond a reasonable doubt under the standard of Chapman v. California (1967) 386 U.S. 18, 87 (Chapman). We disagree. Admission of evidence prohibited by Evidence Code sections 352 and 1101 is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 835 (Watson). (People v. Mullens (2004) 119 Cal.App.4th 648, 652, 656, 659.) Under the Watson test, we examine the entire cause, including the evidence, and reverse only if we are of the opinion that it is reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (Watson, supra, 46 Cal.2d at p. 835.)
Applying the Watson test as above stated to the record before us, we believe that it is not reasonably probable that a result more favorable to appellant would have been reached had the trial court not admitted the expletive. The challenged testimony was “brief and unsensational.” (People v. Wallace (2008) 44 Cal.4th 1032, 1058.) Further, it is unlikely that a jury would want to punish a defendant simply for having used a vulgar epithet in the past, particularly without explanation or reference. It is a fact of life that under certain circumstances, a large number of individuals, including those blessed with good temperament, could be goaded into profanity. That does not mean a jury would have likely concluded they have criminal tendencies.
We note that the People did not refer to this incident in their closing arguments. They did not have to. The evidence of elder abuse was solid and corroborated. The victim described what the appellant did and said. With both hands, she caused Ms. Halladay to fall on a hard floor, a fall hard enough to cause two fractures. Next, appellant said the victim deserved the injury and tried to prevent another tenant from calling the paramedics. Medical evidence confirmed that the victim was seriously hurt. There was evidence of appellant’s prior antagonistic behavior toward the victim. Indeed, we find the evidence that this was no accident to be overwhelming and thus harmless beyond a reasonable doubt even if we were to use Chapman, supra, 386 U.S. 18. (See People v. Williams (2009) 170 Cal.App.4th 587, 613.) It certainly is harmless under Watson.
People v. Deeney (1983) 145 Cal.App.3d 647, upon which appellant relies, is distinguishable. There, unlike here, the evidence had some probative value, and its prejudicial effect was considerable because it portrayed the defendant as a man who regularly abused his wife and was thus likely to have killed her. (Id. at p. 656.) In this case, the probative value of the evidence was at best minimal. It is highly unlikely that the jury punished appellant for saying “fuck you” during an argument a month earlier, an exchange that, unlike the charged incident, did not escalate into violence. In Deeney, the evidence of the charged offense was weaker than the evidence of the uncharged offense. The reverse is true here.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.