Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06ZF0132, Frank F. Fasel, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Rylaarsdam, Acting P. J., Fybel, J., and Ikola, J.
A jury found appellant Miguel Angel Cervantes guilty of first degree murder in the shooting death of his estranged wife, Teresa. It also found him guilty of the attempted murder of a former neighbor, Guadalupe Santana, who he thought was having an affair with Teresa, and assault with a firearm on Santana’s son. The court sentenced him to 25 years to life on count 1 for first degree murder and to the same term for a firearm enhancement, to be served concurrently. It sentenced him to life on count 2 for attempted murder, and life plus 20 years for the firearm enhancement, to be served concurrently. It sentenced him to the aggravated term of 9 years on count 3 for the assault with a firearm and 10 years for use of a firearm within the meaning of Penal Code section 12022.5, subdivision (a), to run consecutively with the aggravated term for a total term of 19 years. Finally, the court ordered the sentence on count 3 to run concurrently to the sentence on count 2.
Cervantes raises two issues on appeal. He argues (1) the trial court abused its discretion in admitting evidence of a prior uncharged offense that he raped his wife a few weeks before the murder, and (2) it prejudicially failed sua sponte to instruct the jury that his out-of-court statements should be viewed with caution. In the alternative, he asserts that if the judgment is not reversed then the abstract of judgment should be corrected to reflect the sentence actually imposed on count 2. We affirm the judgment and direct the superior court to correct the abstract of judgment.
I
Cervantes was charged with the premeditated murder of his wife and two other crimes. He conceded at trial that he shot Teresa to death and later shot at Santana and Santana’s son, with a semi-automatic weapon. His defense was that the shootings were not premeditated but the result of having been provoked by Teresa during a heated argument. In other words, as to Teresa his primary defense was that whatever lesser crime he was guilty of he was not guilty of first degree murder.
In 2003, Cervantes and his wife had two pre-teen sons. Their marriage had been rocky. Differences, many marked by heated arguments over trivial matters, had festered for years. They finally separated and Teresa and the children moved into an apartment in Anaheim which they shared with Angelica Escalante-Mass. The separation did not mark a permanent break, however. Cervantes stayed in contact with her. He hoped to reunite and she expressed an interest in saving the marriage. Even so, the old pattern inevitably played out whenever they got together: they would end up arguing about minor things and he would accuse her of having an affair with Santana, which she would deny.
A few weeks before the murder, Cervantes took Teresa out for a night of dancing. She returned home early the next morning with blood on her face. Her lips and one eye were swollen and she had bite marks on her hand. She told her son, Miguel, Jr., that on the way home from dancing Cervantes had stopped the vehicle on a quiet back street and raped her. Pictures were taken of her injuries. She also told him Cervantes had lost a tooth when he bit her hand. When the son next saw his father he noticed a tooth was missing. Around this same period, the son heard his father threaten his mother on several occasions, saying she should watch herself and her “little lover.” The father also threatened him, saying “you never know what’s going to happen to you, your mom or her lover.”
The murder occurred late in the afternoon on October 27, 2005. Cervantes went to Teresa’s apartment carrying a concealed semi-automatic weapon. Escalante-Mass let him into the living room and she went to her bedroom. He and Teresa began arguing loudly about the usual things, including Cervantes’s suspicion that she was cheating on him. After about 15 to 20 minutes Escalante-Mass heard Teresa scream and four shots fired in fairly rapid succession. She rushed in and found Teresa on the couch with several bullet wounds, including a fatal bullet wound to the head, fired from very close range. Cervantes was nowhere to be found.
Later that day, Santana was driving to his home in Riverside when he saw Cervantes walking away from his house. Santana turned his vehicle around and started driving towards him. Cervantes jumped behind a wall and fired five shots at the vehicle, just missing Santana and his son who was riding in the front passenger seat. Cervantes fled to Arizona where the police apprehended him the next day.
II
A. Prior Acts of Domestic Violence
Cervantes first argues that the trial court abused its discretion in admitting evidence of a prior uncharged offense, that Cervantes had raped Teresa a few weeks before the murder. Prior to trial, and pursuant to Evidence Code sections 1101, subdivision (b), and 1109, the prosecution moved in limine to admit evidence of the domestic violence that occurred the night the two had gone dancing. Their son, Miguel, Jr., testified at the hearing as to what he had seen and what his mother had told him had happened. Cervantes objected and moved to exclude all prior domestic violence evidence pursuant to Evidence Code section 352. The court overruled Cervantes’s objection and found the evidence admissible under sections 1109 and 352.
Evidence Code section 1109, subdivision (a)(1) provides in relevant part that, “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 not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”
On appeal, Cervantes concedes evidence of a prior uncharged act of domestic violence, including a prior uncharged offense of rape, is admissible. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138-1139.) He attacks the trial court’s ruling, therefore, from a far narrower scope than trial counsel did. Although conceding the court properly admitted evidence of the assault, he asserts it still should have excluded evidence of the rape. The rape, he asserts, “ultimately added precious little to the prosecution’s case other than to make [Cervantes] appear more of a despicable person than he already did. This rape evidence was exactly the type of evidence ‘which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,’ and [] which should have been excluded [under] Evidence Code section 352.”
We analyze the 352 argument because that is the issue raised by the briefs, but we note Cervantes ignores People v. Hoover (2000) 77 Cal.App.4th 1020, cited by the Attorney General, which provides two additional reasons why evidence of the prior rape was admissible. “Even before the enactment of [Evidence Code] section 1109, the case law held that an uncharged act of domestic violence committed by the same perpetrator against the same victim is admissible: ‘Where a defendant is charged with a violent crime and has or had a previous relationship with a victim, prior assaults upon the same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon the consideration of identical perpetrator and victim without resort to a “distinctive modus operandi” analysis of other factors.’” (Id. at p. 1026, citation omitted.) Here, the rape was by the same perpetrator against the same victim.
Under Evidence Code section 352, it is within the trial court’s discretion to exclude admissible evidence if its probative value is substantially outweighed by the probability its admission will result in undue consumption of court time, it will cause undue prejudice or confuse the issues, or it will mislead the jury. We will not disturb the court’s ruling unless it is shown the court abused its discretion. Further, where the evidence objected to involves acts of prior domestic violence, “Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119; citations omitted.)
We reviewed the record and find no abuse of discretion. The rape was part of a violent assault Cervantes committed against Teresa just a few weeks before the murder. Testimony of the assault and rape consumed only a few pages of the reporter’s transcript and was supported by pictures of Teresa’s injuries showing blood on her face, a swollen lip, and a swollen eye; she also had bite marks on her hand. The confrontation was so violent that Cervantes lost a tooth. Evidence of the rape was part of a continuous assault and was under the facts no more inflammatory than the assault itself. Indeed, it helped explain why Cervantes had assaulted her and helped show an escalating pattern of violence by him towards Teresa. The trial court was well within its discretion to admit this evidence.
B. Duty to Instruct with CALCRIM No. 358
Cervantes next complains the court failed sua sponte to instruct the jury with CALCRIM No. 358, that evidence of Cervantes’s out-of-court statements should be viewed with caution. His complaint is directed at testimony he threatened Teresa and others in the months prior to the murder. He asserts the judgment must be reversed because the court failed to give the instruction (see People v. Beagle (1972) 6 Cal.3d 441, 455-456 [court must sua sponte instruct that “evidence of oral admissions must be viewed with caution”]), and the failure to do so was prejudicial because it went to the main issue in dispute; that is, whether there was premeditation and deliberation. The Attorney General concedes the instruction was not given but argues, and we agree, that any error was harmless.
CALCRIM No. 358 reads: “You have heard evidence that the defendant made oral [] statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give the statements.” It is the last sentence to which Cervantes’s argument refers.
In People v. Anderson (1968) 70 Cal.2d 15 at pages 26 through 27, the Supreme Court stated that, “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2). [Italics in original.]” (See also People v. Gunder (2007) 151 Cal.App.4th 412, 423-424.)
Here, Cervantes knew the victim and he had a motive (even if only in his own mind) to harm her: he suspected she was having an affair. There were also a series of escalating confrontations over the years between them: they argued constantly and loudly about her alleged affair, and he assaulted and raped her one night after they went dancing, leaving her bloodied and bruised. He then went to Teresa’s apartment the afternoon of the murder carrying a concealed semi-automatic firearm. He shot her in the head from close range after another loud argument. From this evidence a rational trier of fact could infer premeditation and deliberation, that he brought the weapon with the intention of using it to kill her because she was seeing another man. When the record is viewed as a whole, the failure to give CALCRIM No. 358, which would have addressed only how the jury should view evidence he had threatened Teresa and others, was harmless error.
A. Cumulative Error
Finally, Cervantes argues that cumulatively the errors require reversal of the judgment. Because we find no abuse of discretion in admitting prior acts of domestic violence and the failure to give a cautionary instruction harmless error, there can be no cumulative error under either state or federal law.
III
Cervantes asserts, and the Attorney General concedes, that the abstract of judgment should be corrected to reflect the term actually imposed on count 2. The abstract indicates the court imposed a term of “20 years to life.” This is incorrect. The reporter’s transcript indicates the court imposed an indeterminate term of life plus 20 years.
The trial court’s oral pronouncement of judgment controls over the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) Although the appellate court has the power to correct a clerical error in the abstract, we will remand the case to the superior court so the clerk of that court may correct the abstract of judgment to reflect that the sentence actually imposed.
IV
The judgment is affirmed. The matter is remanded to the superior court and the clerk of that court is directed to correct the abstract of judgment as to count 2 to reflect that Cervantes was sentenced to life for attempted murder and life plus 20 years for the firearm enhancement. The clerk of the superior court is also directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
Evidence Code section 352 provides that “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Second, Evidence Code section 1109 was enacted to allow admission of this type of evidence for the very reason Cervantes says it should have been excluded. The Hoover court quoted the pertinent portion of the Legislature’s report: “‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.’ (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)” (Id. at pp. 1027-1028.) Here, evidence of the prior uncharged rape showed a pattern of escalating violence.