Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE252366, Christine K. Goldsmith, Judge.
McCONNELL, P. J.
A jury convicted Deangelo Baptista Cardenas of burglary of an inhabited building involving the personal use of a dangerous and deadly weapon as well as the personal infliction of great bodily injury (Pen. Code, §§ 459, 460, 667.5, subd. (c)(21), 12022, subd. (b)(1), 12022.7, subd. (a), 1203.075, subd. (a)) and aggravated assault involving the personal use of a deadly weapon and infliction of great bodily injury (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23), 12022.7, subd. (a)). The court sentenced him to an eight-year prison term.
All statutory references are to the Penal Code unless otherwise specified.
Cardenas contends his convictions must be reversed because the court improperly admitted a prior incident that was based on inadmissible hearsay and admitted metal knuckles and a photograph of metal knuckles that were not used in the crimes. We affirm the judgment.
FACTS
In the early evening of July 17, 2005, Larry Sutton talked with Cardenas's wife, Tamara Banegas Cardenas, about ongoing problems between his girlfriend, Gina Osuna, and Tamara. Cardenas, his brother Robert Boerner, and teenager Kevin Morreo were present during the conversation. Tamara became angry, hit Sutton and tore his shirt. Eventually, another person grabbed Tamara. Sutton got in his truck and drove to his nearby home.
Because Tamara Banegas Cardenas shares the same last name as defendant Cardenas, we use her first name for clarity.
Within minutes, Tamara, Boerner, Morreo, and a woman drove in Tamara's truck to Sutton's home. Cardenas rode to Sutton's home in another vehicle. Cardenas, Boerner and Tamara rushed up to the front door of Sutton's house and started yelling. Osuna took her infant son to the back bedroom while Sutton tried to keep the front door shut.
Cardenas, Boerner and Tamara pushed into the house, followed by Morreo and the woman. Tamara fought with Osuna while Cardenas and Boerner punched Sutton. Osuna saw Cardenas using metal knuckles. The assault on Sutton moved out of her field of view. Morreo also joined in the assault on Sutton. The assault ended when Sutton and Osuna's infant son started crawling down the hallway toward the living room.
Sutton suffered serious head injuries and bled profusely. When the paramedics arrived, they asked if he had been hit with a baseball bat. He answered that he had been punched only with fists and believed his attackers had used metal knuckles. A few days later, while still hospitalized, Sutton told the authorities Cardenas and Boerner had hit him very hard and that while he did not see any metal knuckles, he believed they had been used. At trial, Sutton testified that his memory became vague after the group entered his home. He had vague recollections of trying to crawl away from Cardenas and Boerner who were hitting him, hearing someone say, "All right, Kevin, now you got to go hit him," and then Morreo hitting him. They did not hit him with a pipe, bat, or other object.
An expert in blood stain analysis testified the blood splatter in the residence showed at least four blows and up to nine blows had been struck. If a bat, flashlight, or pipe had been used, there would have been "cast-off blood pattern[s]" but those were not present.
Sutton's injuries were potentially life-threatening. He had a blood clot in his brain, swelling in his brain, multiple scalp lacerations, and multiple skull fractures. In one fracture, a piece of bone had broken loose from the fracture line, a rare situation that the treating neurosurgeon had last seen when treating a patient who had been hit with a ball-peen hammer. The neurosurgeon testified this bone chip injury would have required a very localized, almost pinpoint application of force, could not have been caused by the use of fists alone and was consistent with the use of metal knuckles. The treating neurosurgeon also concluded the injuries could not have been inflicted with a flashlight, which would have left a signature mark that was not present.
A San Diego police detective, who had expertise in weapons and the use of force, explained how metal knuckles are used and how they allow a person to strike harder than with a fist alone. Metal knuckles allow a person to localize the force of impact and can cause skull fractures and lacerations. Based on his review of the case file, his training in blood stain pattern analysis, and the severity of the wounds including the chipped bone in the skull, the detective believed that metal knuckles were used in this assault. He testified the injuries could not have been caused by fists alone, noting that the suspects had no injuries to their hands. He also testified the blood evidence was inconsistent with the use of any kind of long object such as a bar, flashlight or hammer.
The detective testified the correct term is "metal knuckles" rather than "brass knuckles."
Prior Incident
In late May or early June 2005, Sutton confronted Tamara at a party about Tamara previously yelling at Osuna. Tamara responded by spraying Sutton with mace. Sutton rinsed the mace out of his eyes. When Sutton returned to the party, he punched Cardenas. Cardenas then hit Sutton two or three times with metal knuckles.
Sutton explained at trial that he punched Cardenas "[b]ecause I'm not going to punch Tam[ara] because she's a girl."
Defense
Cardenas's defense was that he was not present during the assault, which he attempted to show by pointing out inconsistencies in Sutton's and Osuna's prior statements, including their failure to mention to anyone that Kevin Morreo was one of the assailants until April 2006. Tamara and the other woman who were present during the assault testified that Cardenas was not part of the group who went to Sutton's house. Tamara additionally testified that when Boerner came out of the house, he was carrying a flashlight that was between 12 and 16 inches long.
Osuna explained that she did not know Morreo at the time of the attack. She did not know who he was until she saw him at an Easter Sunday church service in April 2006 and asked Sutton who he was. Sutton testified that he only remembered Morreo being present during the attack after Osuna saw Morreo at the Easter Sunday service. That night, he "woke with this flash" and remembered seeing Kevin coming out of the truck. He later had a vague memory of Cardenas or his brother telling Morreo it was his turn and Morreo putting on "brass knuckles."
DISCUSSION
I Admission of Prior Act
The court admitted the prior act under Evidence Code section 1101, subdivision (b) and found the probative value of the evidence outweighed any danger of undue prejudice. Cardenas contends the court should have excluded the prior incident because it was based on inadmissible hearsay that Cardenas had used metal knuckles during the prior incident. Therefore, the evidence of the prior use of metal knuckles was based only on "speculation and conjecture" and had "no real basis in reality." He asserts the prior act was improper propensity evidence. The evidence presented at trial, however, supported a finding that Cardenas's use of metal knuckles was based on Sutton's own observations, rather than the hearsay statements of third parties.
At trial, Sutton testified that Cardenas "had brass knuckles" during the prior incident. Sutton also testified he was "aware" Cardenas had them during that fight and Cardenas used them two or three times to hit him. During cross-examination, Sutton was asked about statements he had made to a detective about the prior incident suggesting he had learned about Cardenas's use of metal knuckles from other people. Sutton testified he was not sure what he had told the detective but thought he had told him Cardenas used metal knuckles. The detective testified Sutton told him that he did not see metal knuckles but believed that they had been used because he knew the difference between being hit with a fist and a tool and because a relative who had viewed his injuries had noted there were indentations and the marks were spread apart further than a normal sized fist.
This evidence was sufficient to support a finding that Sutton's knowledge of Cardenas's use of metal knuckles was based on his own personal observations and that his relative's comments, at most, confirmed his observations. Thus, the prior act was not based on inadmissible hearsay. Nor was it improper propensity evidence.
Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a prior bad act by the defendant if its only relevance is to prove the defendant has a propensity to commit crimes. However, section 1101, subdivision (b) permits prior bad act evidence to be admitted if relevant to prove some other fact, such as intent, motive or identity or a common plan or design. (People v. Balcom (1994) 7 Cal.4th 414, 422.) The determination that a prior bad act is relevant does not end the inquiry. (Id. at p. 426.) To be admissible, the bad act " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.' " (Ibid.) The court must examine whether the probative value of the prior bad act evidence is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (Id. at p. 427.)
The erroneous admission of prior bad act evidence will support a reversal of the conviction only if it is reasonably probable that the jury would have reached a more favorable result if the evidence had been excluded. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) This determination "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
Here, the prior act was relevant to show motive, that is, the animosity among Cardenas, Tamara, Sutton, and Osuna, and to show a common plan of using metal knuckles in physical confrontations. Cardenas contends the prior act "prejudiced and undermined [his] defense that he was not at the scene of the crime and did not participate in Larry Sutton's beating." " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) The prior act undermined his defense not because it was prejudicial, but because it was probative. The prior act was not likely to evoke an emotional bias against Cardenas since it was not unduly inflammatory compared to the charged acts. In the prior act, Sutton was the aggressor while in the charged acts, Cardenas participated in a savage and unprovoked beating that caused extremely serious injuries.
II Photograph and Viewing of Other Metal Knuckles
The prosecutor showed the jury a set of metal knuckles during his examination of the expert on weapons. These metal knuckles had not been used in the crimes. At the prosecutor's request, the court admitted a photograph of generic metal knuckles and agreed that if the jury requested, the bailiff would show them the metal knuckles. The defense objected to the admission of the photograph and metal knuckles. At the defense request, the court instructed the jury about the limited use of these items.
The instruction stated: "The prosecution used a picture of metal knuckles and a sample of metal knuckles as demonstrative aids to assist in illustrating testimony. These items have been prepared to assist in explaining testimony. The picture and sample metal knuckles may be based on assumptions which you are free to accept or to reject. The testimony of the witness is evidence. Please note that the demonstrative or visual aids were not seized as evidence in this case.
"It is entirely proper for a prosecutor to use objects similar to those connected with the commission of a crime for purposes of illustration." (People v. Barnett (1998) 17 Cal.4th 1044, 1135.) This includes the presentation of a weapon similar to one used in the commission of the offense if the actual weapon is not available. (People v. Roldan (2005) 35 Cal.4th 646, 708-709.) The prosecution must lay a foundation that the weapon is substantially similar to the weapon used in the crime. (Id. at p. 708.) Once a proper foundation is laid, it is within the court's discretion to admit the evidence. (Ibid.)
Cardenas does not argue the metal knuckles were too dissimilar to those used in the crime to warrant admission. Instead, he argues admission was improper because there was insufficient evidence to show metal knuckles were used in the crimes. We disagree. There was abundant evidence showing metal knuckles were used. Osuna testified she saw Cardenas using them during the assault. Sutton told the paramedics he believed he had been hit with "brass knuckles." There was also compelling expert testimony that the nature of the injuries and the blood splatter evidence indicated the use of metal knuckles. We find no abuse of discretion by the court in deciding to admit the photograph and metal knuckles.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., McINTYRE, J.
"The demonstrative aid picture of metal knuckles will be available to you for consideration during your deliberations. If you wish to look at the demonstrative aid sample of metal knuckles, call for the bailiff, who will bring them to you."