Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1277675 of Santa Barbara, James F. Rigali, Judge
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Jose Manuel Casares, Sr., appeals from the judgment entered following his conviction by a jury of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The jury found true allegations that appellant had committed the offense during the commission of a burglary and that he had personally used a deadly or dangerous weapon. (Id., §§ 667.61, subds. (e)(2) & (e)(4), 12022, subd. (b)(1).) Appellant admitted two prior prison terms. (Id., § 667, subd. (b).) He was sentenced to prison for 27 years to life.
Appellant contends that the trial court abused its discretion and violated his due process rights by admitting evidence of his prior acts of domestic violence against the victim of the rape. The evidence was admitted pursuant to Evidence Code section 1109. Appellant also contends that sections 1108 and 1109 are unconstitutional because they violate due process and equal protection. We affirm.
All further statutory references are to the Evidence Code.
Facts
The victim, Rebecca C., testified as follows:
Rebecca C. was never married to appellant, but she had an "[o]ff and on" relationship with him for 20 years. They had four children together. At the time of trial, she was "in a relationship with him." Rebecca C. did not want to testify against appellant because she loved him and because both she and the children "need[ed] him at home."
On August 30, 2007, Rebecca C. was in the bathroom of her home. She had unbuckled her pants when appellant surprised her by stepping out of the shower. Appellant was not holding a knife. While Rebecca C. was using the toilet, appellant stood in the doorway. He was laughing and said, "I scared you." Rebecca C. was mad because appellant was laughing and had been drinking. "He smelled like [a] beer still."
Rebecca C. got up from the toilet, pushed appellant, slapped him, and "told him it wasn't funny." Appellant and Rebecca C. fell onto the bed in the bedroom. While on the bed, Rebecca C. kicked and scratched appellant. Appellant held her down on the bed in an effort to calm her and prevent her from scratching him.
Rebecca C. eventually calmed down, and appellant started kissing her. The kissing culminated in consensual sex with appellant.
On August 30, 2007, appellant did not break into Rebecca C.'s home. She had given him the key to her home and had authorized him "to come into [her] house anytime he wanted."
Rebecca C. was impeached by prior inconsistent statements that she had made to law enforcement officials. As recounted to these officials, her version of events was as follows:
Rebecca C. went into the bathroom, pulled down her pants and panties, and sat on the toilet. Appellant suddenly "came out from... the shower behind a closed shower curtain." Appellant was holding a knife. Appellant said, "I told you I'd catch you alone, bitch." Appellant "picked her up, carried her to the bedroom and threw her on top of her bed." Appellant "jumped on top of her and began to force himself sexually on her." Rebecca C.'s pants and panties were around her ankles, and appellant removed them. Rebecca C. "tried to fight him off, " but he "kept poking her" in her chest with the knife. Appellant said that "if he couldn't have her, nobody would, and he was going to... stab her and then stab himself." When Rebecca C. told appellant to stop, he slapped her. When Rebecca C. tried to yell for help, appellant covered her mouth and said that he was "going to knock her out." Rebecca C. eventually "gave up fighting him, and let him force himself on her sexually." She did not want to have sexual relations with appellant.
Appellant was never given a key to Rebecca C.'s house, and he did not live with her. About a week before the incident, Rebecca C. gave her keychain to appellant so that he could drive her van to the store. The keychain had two house keys on it. After the incident on August 30, 2007, Rebecca C. noticed that one of the house keys was missing from the keychain.
A police officer testified that, when appellant was taken into custody, the police seized his key ring. One of the keys on the key ring opened the front door of Rebecca C.'s house.
Admission of Evidence of Appellant's Prior Acts of Domestic Violence Pursuant to Section 1109
At trial, Rebecca C. testified that appellant had neither raped nor physically abused her on prior occasions. She denied that he had strangled her.
Before trial, appellant moved to exclude evidence of prior incidents of domestic violence that the People sought to admit pursuant to section 1109. The trial court ruled that it would admit Rebecca C.'s statements to Mary Brizzolara, a district attorney investigator, concerning acts of domestic violence committed by appellant in 2006 and 2007. The trial court also admitted Rebecca C.'s statement to Officer Jesse Magana that appellant had committed prior acts of domestic violence. The trial court declared that, in determining whether to admit this evidence, it had "been weighing and balancing the prejudicial [impact] versus the probative value" pursuant to section 352.
Defense counsel contended that the trial court should exclude the following statements by Rebecca C. to Brizzolara because they did not relate to any "bad act" of domestic violence: (1) "On one occasion, she called the police to get [appellant] to leave. He left before the police arrived." (2) " 'She told [appellant] that she was going to get a temporary restraining order, but she didn't follow through.' " In rejecting counsel's contention, the trial court reasoned that "[p]icking up the phone and calling 9-1-1 and getting TROs" are "intrinsically intertwined with the domestic violence reality."
During the trial, Brizzolara testified as follows concerning appellant's prior acts:
In December 2007 Brizzolara interviewed Rebecca C. Rebecca C. said that she had been a "victim of domestic violence on prior occasions." In 2006 Rebecca C. asked appellant to leave her home. Appellant "got mad and he strangled her." In April or May 2007 appellant came to her home at about 3:00 a.m. He "was loaded, " and Rebecca C. "told him that he had to leave." Appellant "got mad" and "grabbed her by the shirt." Rebecca C. "fell down to the bed, and then he strangled her." Rebecca C. telephoned the police, but appellant left before the police arrived.
Rebecca C. told Brizzolara that she had tried to end her relationship with appellant, but "he continued calling her." Sometimes "he would end up in her backyard in the middle of the night, to the point where it was scaring her children." Rebecca C. said that "because of all the trouble that she was having with [appellant]... she was going to get a restraining order." But "she actually never went through with it."
Brizzolara interviewed Rebeccca C. again in February 2008. Rebecca C. said "that she had been raped by [appellant] on more than one prior occasion." Rebecca C. declared that, "back sometime ago when they were together, " appellant would insist on having sex with her and "would get mad and violent" if she refused. He would slap her and punch her in the head. Rebecca C. "would give in" and have sex with appellant because "[s]he was afraid... [of] being hit again." This "happened a lot."
Officer Andy Magallon testified that Rebecca C. had told him that, "[o]n more than one occasion, " appellant had "beaten and raped [her] in the past." Officer Jesse Magana testified that Rebecca C. had told him that appellant had been involved in "domestic violence on more than one prior occasion."
When a defendant is charged with an offense involving domestic violence, section 1109 allows the admission of evidence of the defendant's commission of prior acts of domestic violence provided that the evidence is not inadmissible pursuant to section 352. "The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion. [Citations.]" (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
Appellant contends that the trial court abused its discretion in admitting Brizzolara's testimony regarding "appellant's failure to leave when asked, his abuse of alcohol, and [Rebecca C.'s] decision to call police and to get a restraining order" because this evidence "did not involve 'domestic violence' " and therefore did "not meet section 1109's requirements for admission." We disagree. The trial court reasonably concluded that this evidence was admissible because it was "intrinsically intertwined with the domestic violence reality." Moreover, Rebecca C.'s prior statement that she had decided to get a restraining order was admissible to impeach her testimony that she had given appellant the key to her home and had authorized him "to come into [her] house anytime he wanted."
Appellant contends that the trial court abused its discretion under section 352 because the probative value of his prior acts of domestic violence, in particular the 2006 and 2007 strangling incidents, was substantially outweighed by the prejudicial impact of this evidence. "Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. 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 the mechanical application of automatic rules. [Citation.] We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citation.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
The trial court did not abuse its discretion under section 352. The prior acts of domestic violence had substantial probative value. They showed that appellant had engaged in a pattern of physical and sexual abuse of Rebecca C. The 2006 and 2007 strangling incidents were part of the pattern of physical abuse. Moreover, the prior acts of domestic violence tended to show that Rebecca C. was lying when she testified that, on August 30, 2007, appellant had not physically abused her and she had voluntarily consented to have sex with him. As to prejudicial impact, the acts of domestic violence were no more inflammatory than Rebecca C.'s description to the police of the charged rape. Because the trial court did not abuse its discretion, we reject appellant's contention that the admission of evidence of his prior acts of domestic violence violated his "right to due process and a fundamentally fair trial."
Constitutionality of Sections 1108 and 1109
When a defendant is charged with a sexual offense, section 1108 allows the admission of evidence of the defendant's commission of prior sexual offenses provided that the evidence is not inadmissible pursuant to section 352. Before trial, appellant moved to exclude evidence that he had raped Rebecca C. on prior occasions. The court ruled that, pursuant to section 1108, it would admit statements by Rebecca C. to law enforcement officials "that she had been raped by [appellant] previously on more than one occasion."
Appellant contends that sections 1108 and 1109 violate due process and equal protection because they authorize the admission of evidence of a defendant's prior acts to show propensity. However, appellant recognizes that in People v. Falsetta (1999) 21 Cal.4th 903, 917, "the California Supreme Court rejected a due process challenge to section 1108 and this Court is bound to follow that decision." Appellant also recognizes that "several appellate courts have found that section 1109 survives a due process challenge based on the findings in Falsetta."
For the reasons expressed in People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704, we reject appellant's due process challenge to section 1109. "As the court in Falsetta held, admission of propensity evidence is not unfair so long as the trial court is required to balance the probative value of the evidence against its prejudicial impact under Evidence Code section 352." (Id., at p. 704.)
Appellant recognizes "that several appellate courts have rejected an equal protection challenge to sections 1108 and 1109." We find the reasoning of these cases to be persuasive. (See People v. Price (2004) 120 Cal.App.4th 224, 240-241; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185.)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.