Opinion
C079421
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES COKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F01933)
Following a jury trial, defendant James Coker was convicted of various felonies and related enhancements arising out of five separate incidents of domestic abuse involving his spouse, Heather, and a girlfriend, Crystal. The trial court sentenced defendant to 25 years in prison. On appeal, defendant contends the trial court prejudicially erred by (1) admitting two audio recordings of 911 calls made by Heather, (2) admitting evidence that he had committed a prior uncharged assault against another woman, Kelly, (3) admitting evidence that he had been convicted of prior acts of domestic violence against two other women, Kristie and Erin, and (4) denying his request for a mistrial. Finding no error, we affirm.
I. BACKGROUND
A. The Charges
An amended information charged defendant with assault with a deadly weapon (i.e., a bat) against Heather (Pen. Code, § 245, subd. (a)(1)—count one), corporal injury upon a spouse (Heather) (Pen. Code, § 273.5, subd. (a)—count two), criminal threats against Heather (Pen. Code, § 422—count three), assault with a deadly weapon (i.e., a hammer) against Crystal (Pen. Code, § 245, subd. (a)(1)—count four), and assault with a deadly weapon (i.e., a knife) against Crystal (Pen. Code, §245, subd. (a)(1)—count five).
As to count two, the information alleged that defendant personally inflicted great bodily injury on Heather. (Pen. Code, § 12022.7, subd. (e).) As to count three, the information alleged that defendant personally used a deadly and dangerous weapon. (Pen. Code, § 12022, subd. (b)(1).) Defendant was also charged with having suffered two previous serious felony convictions, and having served three prior prison terms. (Pen. Code, §§ 667, subds. (a) & (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) B. The Prosecution's Case
1. Crystal's Testimony
Defendant and Crystal met sometime in 2012 or 2013 and started dating shortly thereafter. Defendant first became violent with Crystal approximately one week after they started dating, when he hit her in the face with a closed fist. Defendant regularly abused Crystal during the course of their yearlong relationship. Among other things, defendant burned Crystal with cigarettes and a barbeque torch lighter, kicked her in the ribs, threw things at her, and hit her with hammers and bats.
Crystal never went to the hospital or called 911, but her mother, Janette, knew she was being abused and took photographs of Crystal's injuries on several occasions. Janette's photographs were introduced into evidence at trial. Janette testified that she once asked defendant why he beat Crystal, and he responded, " 'She just makes me mad. She don't listen, and I got an anger problem, and I just snap.' "
Crystal suffered a particularly vicious beating at defendant's hands on December 23, 2013. On the day of the beating, Crystal and defendant discussed their relationship and agreed to go their separate ways. Some time later, defendant and Crystal left the house defendant shared with his aunt and got into Heather's car. The estranged couple, accompanied by Heather, drove around for several hours. Defendant was driving, Heather sat in the passenger seat, and Crystal sat in the backseat. All three had been using drugs.
After some time, defendant stopped the car at a stop sign. He accused Crystal of lying to him about something, and instructed her to place her hand on the seat. Defendant then struck Crystal on the hand with either the claw side of a framing hammer (which Crystal described as larger than a regular household hammer) or a knife. Defendant also struck Crystal on the back and shoulder with the hammer, and slashed her wrist with a knife. As he was beating her, defendant told Crystal, " 'I'm going to break your kneecaps. I'm going to rip your collar bone out with the claw side of the hammer. I'm going to do your kid a favor. You are going to kill yourself tonight. You are going to die.' " Later that night, upon returning to the house, defendant beat Crystal again, hitting her in the head and kicking her in the ribs.
The next day, Officer Matthew Nichols of the Sacramento Police Department arrived at the house to conduct a welfare check on Heather. Nichols encountered Crystal and inquired about her fresh injuries. Crystal responded that she had been jumped by a group of girls. During the trial, Crystal testified she did not feel safe telling Nichols the truth about her injuries.
Heather's mother requested the welfare check.
Several months later, Detective Craig Harmon of the Sacramento County Sheriff's Department, who was investigating separate incidents involving Heather (described below), interviewed Crystal at the El Dorado County jail, where she was detained in connection with an unrelated criminal matter. As before, Crystal claimed she was attacked by a group of girls. Later, Crystal agreed to testify against defendant in exchange for favorable dispositions in the pending case in El Dorado County, and another case in Yolo County.
During the trial, Crystal, a regular methamphetamine user, acknowledged that drug use has probably affected her memory. Nevertheless, she insisted that her testimony was truthful. She also claimed that she still loves defendant, and testifying against him was "the worst thing [she has] ever been through in [her] life."
2. Heather's Testimony
Heather met defendant in the summer of 2012. She entered into a romantic relationship with him approximately one year later, in August or September of 2013. Heather, like Crystal, has a criminal record and a drug habit.
Defendant's relationships with Heather and Crystal overlapped for a brief period of time.
Heather testified to two incidents of domestic violence against her. The first such incident took place in late October 2013. At the time, Heather's youngest child, a girl, was approximately two months old. Heather testified that she was holding her infant daughter in the bedroom of her house. Defendant pointed a loaded gun at mother and child, and threatened to kill them both if Heather "ever went against him." Heather did not immediately report the crime to police because she believed that defendant may have been suffering from some kind of mental breakdown, and she wanted to help him. Although she eventually called police (and spoke, coincidentally, to Officer Nichols), no charges were filed at that time.
Heather stayed away from defendant for a brief period. The couple reconciled in December 2013. As noted, Heather was seated in the passenger seat of her car when defendant attacked Crystal with a hammer and knife on December 23, 2013. Heather admitted to having fought with Crystal in the past, and allowed that she might have participated in the assault on December 23, 2013. Like Crystal, Heather suffers from memory loss as a result of her drug use. Even so, Heather emphatically denied striking Crystal with a hammer or cutting her with a knife, stating she was "one-hundred percent certain" that defendant committed those crimes. Although Heather testified that she had "nightmares" about the attack on Crystal, she nevertheless married—or attempted to marry—defendant some three weeks later, on January 17, 2014.
The record indicates that Heather may have been married to another man, Dale, at the time of her purported marriage to defendant.
The second incident of domestic violence against Heather took place over the course of three or four days in February 2014. The trouble began on February 7, 2014. Defendant and Heather were driving in Heather's car. Both had been using methamphetamines. Defendant accused Heather of infidelity, and struck her in the face with a closed fist. That night, Heather was sitting on the sofa in the living room of the house the couple planned to occupy with three of Heather's six children, ages five, two, and five months. Heather was holding her infant daughter on her lap. Defendant accused Heather of infidelity again, and began hitting her legs and the top of her head with an aluminum baseball bat. During the trial, Heather described the blows as "jabbing," stating, "I wouldn't say that he was swinging full force one-hundred percent, because if he was, I probably wouldn't be sitting here right now, but it was enough." Heather attempted to protect her daughter and demanded that defendant stop, noting the danger to the baby. Defendant responded, " 'I don't fucking care. I'll kill you and that baby.' "
The evidence was inconsistent as to whether the incident ended on February 10, 2014, or February 11, 2014. Heather testified that the incident ended when Child Protective Services (CPS) appeared on her doorstep on February 11, 2014; another witness testified that CPS arrived on February 10, 2014. We need not resolve this inconsistency, as it is not dispositive of any issue before us.
Later, defendant threatened Heather with a knife, stating, " 'You are going to die, you are going to die. You are a liar. You are a slut. You are a whore. You are going to die.' " As he spoke, defendant stood above Heather, who was still seated on the sofa with the baby on her lap, and made stabbing motions with the knife. Although the knife did not touch her, Heather still took defendant's threats seriously, and believed she was in danger of losing her life.
Defendant beat Heather repeatedly over the next several days. Heather testified that she could not leave or call 911, as defendant had taken her car keys, money, and cell phone. Heather further testified that she believed defendant would kill her if she tried to escape or get help.
The next morning, February 8, 2014, Heather invited defendant to take a shower with her, thinking an intimate encounter might help to defuse defendant's rage. Defendant continued to abuse Heather in the shower, punching her in the kidneys and stomach. That night, Heather and defendant drove to the home of defendant's cousin, Cara. Cara had been babysitting Heather's five- and two-year old children. Heather waited in the car with the baby while defendant went into Cara's house to retrieve the older children. During the investigation, Cara told Detective Harmon that she saw Heather waiting in the car on the night of February 8, 2014, and she looked scared. Cara also told Harmon that she saw defendant backhand Heather across the face two times. Cara offered a different version of the facts at trial, as we shall discuss momentarily.
Defendant returned with the children after approximately twenty minutes. He backhanded Heather and, when she asked why he'd hit her again, told her to "[s]hut the fuck up, bitch." The couple then drove the children back to the house, where the abuse resumed. According to Heather, "I was continuously punched and, you know, slapped and called names and threatened, you know. It was a period of chaos the whole time."
The abuse continued the next day, February 9, 2014. Defendant accused Heather of taking some tattoo equipment. He punched and slapped her, then grabbed her by the throat with both hands and lifted her off the ground, nearly causing her to lose consciousness. Heather broke free and ran into the children's room, waking them in hopes defendant would stop hitting her if they were watching him. Defendant hit Heather "a couple more times," causing the children to cry. Defendant yelled, " 'Shut them up. If I go to prison, I swear to God that none of us are going to make it out of here alive.' " According to Heather, "He threatened to kill all of us, including himself, that day."
Defendant's anger eventually subsided long enough for Heather to put the children back to bed. The couple then had sex. As Heather would later explain, "I thought maybe he would remember I loved him, and that I wasn't going to be like everybody else in his life and turn my back on him, but it didn't change anything."
The maelstrom came to an end on the morning of Monday, February 10 or Tuesday, February 11, 2014, when social workers from CPS and Detective Zach Hatch of the Sacramento County Sheriff's Department arrived to investigate a missing person report regarding three of Heather's children. When Hatch asked about the bruises on her face, Heather responded that her ex-husband, Dale, had sent a group of four girls to beat her up with baseball bats. Heather was arrested on an outstanding warrant. Hatch sat Heather in the backseat of an unmarked police car, which was parked outside the house. At one point, Hatch looked up from his paperwork and saw defendant with his hands clasped together in front of his face, as though praying, and looking directly at Heather. When defendant realized that Hatch was watching, he stopped "praying." He started again as soon as Hatch appeared to look away.
As noted, the testimony was inconsistent as to whether CPS arrived on February 10 or February 11.
Heather was transported to jail. Blood was found in Heather's urine during the medical screening, and she was taken to Kaiser Hospital. A CT scan revealed that she had facial contusions, a fractured rib, and probable splenic lacerations. These injuries were consistent with a blow to the left side of the rib cage. Heather told medical personnel at Kaiser that she had been beaten by a group of girls sent by Dale. Following a brief stay at Kaiser, Heather was medically released and returned to jail.
Heather remained in jail until Friday, February 14, 2014. When the time came for Heather to be released, she called defendant. During the trial, Heather was asked, "why, after all this abuse, did you call [defendant] to come get you?" She responded, "He had everything I owned. You know, he had my car. He had everything. I didn't have anybody else."
Following her release, Heather and defendant returned to their home. The next morning, Heather awoke with a sense of foreboding. As she would later explain, "I knew that morning when I woke up that it was going to be me escape [sic] or things were going to get—Like, I felt like, that morning, either I was going to lose my life or I was—I had to find a way to get away." With the children gone (they had been removed by CPS), Heather felt that she could finally attempt to get away from defendant.
Defendant did not let Heather out of his sight for most of the day. He followed her from room to room, and would not allow her to walk to a nearby gas station to buy cigarettes. That evening, defendant and Heather went to the home of one of defendant's friends, known to Heather as "Sis." Upon arriving, defendant instructed Heather to wait in the car, taking her cell phone and car keys with him. Later, Sis invited Heather to join them in the house for dinner.
As the evening wore on, the discussion turned to the subject of tattoos. Defendant wanted to retrieve some tattoo equipment from the house he shared with Heather, and then return to Sis's house. Heather, not wanting to be alone with defendant, asked if she could remain with Sis and several other people while defendant retrieved the equipment. Defendant said, "No, you can't fucking stay. Get the fuck up and let's go."
Defendant and Heather got into the car. Defendant accused Heather of looking at another man at Sis's house, and then punched her in the face. When they reached their home, Heather got out of the car to open the garage door. Defendant remained in the car. Another car pulled up to the stop sign in front of their house, and the driver looked in defendant's direction. Defendant jumped out of the car, and angrily approached the other motorist, shouting, " 'What the fuck are you looking at?' " Sensing her opportunity, Heather jumped in her car and drove away.
Heather drove to a nearby Wal-Mart. She ran into the store and approached a loss prevention officer, Tobias Williams. During the trial, Williams testified that Heather was crying and "seemed extremely scared." Williams also observed that Heather was "bruised up pretty good." Williams called 911, and told the operator, "I have a woman here that's—that's stating that she just got away from her husband that's been beatin' her." He then handed the phone to Heather, who explained, "It started on Friday and it didn't end—end—well yeah, it stopped on Monday but that's only because I was taken to jail for some—somethin' that—it was a wrong—mixed, you know, wrong identity and I was released yesterday. And he was gonna start again. And I got an opportunity to jump in the car when he left it runnin'. " When the operator asked Heather when defendant hurt her last, Heather responded, "Monday," referring to Monday, February 10, 2014. The operator agreed to send an officer to take a report.
We have been provided with a transcript of the 911 call. We have not been provided with an audio recording of the call.
Heather waited for police for several hours. When no one came, she called 911 again. During the second call, Heather told the operator that she was hiding in the store and waiting for police. Eventually, Heather gave up on the police and called her ex-husband, Dale. Dale directed Heather to drive to a gas station, where he joined up with her.
Again, we have been provided with a transcript, but no audio recording, of the 911 call.
The next day, after spending the night at Dale's cousin's house, Heather and Dale drove to the house Heather shared with defendant. Heather waited in the car while Dale entered the house. Moments later, defendant emerged from the garage with a bat in his hand. Eventually, defendant put the bat down and left on foot. Heather called 911. Police arrived a short time later. Responding officers canvassed the neighborhood, located defendant, and arrested him. Detective Harmon, assigned to investigate the case, interviewed Heather. During the trial, Harmon described Heather as "visibly upset," adding that "she cried a couple of times while we were there." In Harmon's opinion, Heather "was still in fear."
Police took photos of Heather's injuries, some of which were now nine days old. The photographs, which depict injuries to Heather's face, rib cage, shoulder blade, knee, leg, arm and foot, were shown to the jury.
Despite her ordeal, Heather testified that she still sees good qualities in defendant. Although Heather was reluctant to report defendant's abuse to police, and waited until February 16, 2014, to do so, she ultimately concluded that she needed to testify against him for the sake of her children, and in hopes that defendant might receive "the help that he needs to be the man that [Heather has] seen."
3. Expert Witness Testimony
Detective Dennis Prizmich, an expert on intimate partner battery, testified about the behavior of domestic violence victims and the cycle of abuse. He explained that abusers frequently manipulate their victims, using fear, love, guilt, friends, and family, including children. He described a "cycle of violence," in which tension builds in a relationship, the tension causes the abuser to commit a violent act, the parties reconcile, and the cycle begins again. He explained how victims of domestic violence frequently exhibit "counter-intuitive behavior" by, for example, refusing to report abuse, refusing to cooperate with law enforcement, minimizing their injuries, lying about how they received their injuries, and returning to their abusers. Prizmich also testified that victims may be more likely to speak candidly with law enforcement in follow up interviews, when their fear may have dissipated.
4. Other Victims
The prosecution introduced evidence of two prior acts of domestic violence by defendant against former girlfriends. Kristie dated defendant for ten months between 2010 and 2011. Kristie testified that defendant slapped her, punched her, grabbed her hair, and dragged her on the floor over the course of three days in February 2010. Kristie also testified that defendant threatened her with a knife, told her she was going to die, and threatened to harm her son. Kristie explained that she could not call 911, because defendant confiscated her cell phone and refused to let her out of his sight. After three days, defendant returned Kristie's cell phone and allowed her to leave the house. Kristie sought refuge with a friend, who persuaded her to call police. The parties stipulated that defendant suffered a conviction for criminal threats as a result of the incident involving Kristie.
The parties also stipulated that defendant suffered a conviction for assault against Erin, a person with whom defendant had a dating relationship, on or about July 30, 2007. Erin did not testify.
Finally, the prosecution introduced evidence that defendant assaulted another woman, Kelly, with a hammer in April 2009. Kelly testified that defendant, a friend who sometimes stayed with her, struck her in the forehead with a hammer while she was "tied up" in her bed. Kelly reported the incident to police. The parties stipulated that defendant suffered a conviction for assault with a deadly weapon (a hammer) as a result of the attack on Kelly. C. The Defense Case
Defendant's cousin, Cara, testified for the defense. Cara testified that Dale, who was deceased by the time of trial, told her he had "whooped" Heather because she allowed CPS to take her children. Cara also testified that she lied to Detective Harmon when she told him that Heather looked scared when she was waiting for defendant on the night of February 8, 2014.
Another cousin, Estella, testified that Heather carries a knife and brass knuckles and has been violent towards Crystal and others in the past.
Defendant's aunt, Jennifer, testified that she had seen Crystal hit herself a dozen times. Specifically, Jennifer testified that Crystal hit herself in the face using both fists and threw herself against the bathroom door. According to Jennifer, Crystal pleaded with defendant to " 'knock [her] out,' " but he refused. Jennifer also testified that Crystal once came home with a black eye, which she claimed to have received from Heather. Jennifer further testified that Heather threatened her over the phone, stating that she was responsible for sending Heather's husband to jail and intimating that she played a role in the removal of her children by CPS. According to Jennifer, Heather said, "[Do] [y]ou know what happens to people like you?" D. The Prosecution's Rebuttal
On rebuttal, Detective Harmon explained that he interviewed Cara in person, when Heather was not present, thereby minimizing the possibility that Heather may have influenced Cara's statements. Harmon added that Cara had previously reported that she had seen defendant backhand Heather a couple of times, and heard him tell her, " 'You are being a whore in front of my family.' " E. The Verdict and Sentence
The jury found defendant guilty as charged and found all enhancements true. The trial court imposed an aggregate term of imprisonment of 25 years. Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Admission of Heather's 911 Calls
Prior to trial, the prosecution moved to admit the audio recordings of Heather's 911 calls from Wal-Mart, arguing that they were admissible as spontaneous declarations pursuant to Evidence Code section 1240. Defense counsel disagreed, arguing that the passage of time between the alleged abuse and the 911 calls gave Heather an opportunity to reflect, depriving the statements of spontaneity. The trial court admitted the recordings of both calls (but not the third 911 call, made the following day), stating:
Undesignated statutory references are to the Evidence Code.
"Now, in this case, the statements were made two days after the assault. The alleged assault was made with a deadly weapon. The victim, I find, was still under the effect of the traumatic event. I say that because she had been continuously in the presence of the [d]efendant during that period of time. There was some suggestion that he had taken away her cell phone. I have not had a [section] 402 [hearing], so I'm not really relying upon that allegation, but it did come up.
As we shall discuss, the trial court appears to have miscalculated the interval between the three to four day period of continuous beatings beginning on February 7, 2014, and ending on Monday, February 10, 2014, or Tuesday, February 11, 2014, and the 911 calls made on Saturday, February 15, 2014.
"On the day that she actually made the call, she was with the [d]efendant. They had driven around. And the proffer is that when they came back to the garage, she was still in fear of further assault from the [d]efendant. So when the [d]efendant's attention was diverted, she fled in a car and drove to Wal-Mart. And when she went to Wal-Mart, she had contact with a loss prevention officer who dialed the 9-1-1 number for her and then handed over the telephone.
"I find, under the circumstances, that the passage of two days does not render the statements—other than the subject of the triggering event. So I find that the triggering event actually is a continuing triggering event, beginning with the alleged assault and then continuing through the period two days later when she's out with the [d]efendant and comes back and had a sufficient feeling that she felt that she had to escape. And I find that the escape, in and of itself, could be a triggering event; but certainly in combination with the alleged assault, I find that the circumstances suggest that the triggering event was still alive in the victim's mind.
"She went to Wal-Mart, which suggests a lack of real contemplation as to what she should do, because it appears to be the first place that perhaps she thought that she might be safe, in that it was public, and if the [d]efendant were to follow her, that would be a good public place and reduce the likelihood of any assault taking place.
"I did listen to the tapes. I found that there was a marked difference in the voice of the caller on the first two calls from that of the third call. I found that the voice seemed much more anxious and suggested to me some anxiety. Whereas, the call the following day, I found to be noticeably different, suggesting that the difference in the tone of the voice and the anxiousness of the voice suggested to me that there was still, in effect, the triggering event when she made the 9-1-1 calls on the first day.
"Accordingly, I find the triggering event did occur. I find that the calls took place under the effect of the triggering event. I find, under the circumstances, this particular set of circumstances, that there is no significant fear of fabrication."
Defendant contends the trial court abused its discretion by admitting the 911 calls as "spontaneous statements" under section 1240. We disagree.
"A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and '[w]as made spontaneously while the declarant was under the stress of excitement caused by' witnessing the event." (People v. Gutierrez (2009) 45 Cal.4th 789, 809 (Gutierrez); see § 1240 ["Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception"].)
" ' "To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." ' " (Gutierrez, supra, 45 Cal.4th at pp. 809-810; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 416 (Bryant).) "Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because ' " 'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " ' " (Gutierrez, supra, at p. 810.) "The crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker." (Id. at p. 811.) Thus, " '[t]he nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.' " (Ibid.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (People v. Merriman (2014) 60 Cal.4th 1, 65.)
Defendant contends Heather's 911 calls do not qualify as spontaneous statements because they were made "four days after the alleged abuse." Relying on People v. Pirwani (2004) 119 Cal.App.4th 770, defendant argues that Heather's time in custody gave her ample opportunity to regain her reflective powers, thereby depriving her subsequent statements of spontaneity. (Id. at pp. 789-790 [trial court abused discretion in admitting out-of-court statements under § 1240 where statements were made two days after triggering event].) We need not consider whether Heather regained her reflective powers in custody because, on the record before us, the trial court could reasonably conclude that, unlike the declarant in People v. Pirwani, she was terrorized anew following the initial triggering event.
As noted, the trial court appears to have miscalculated the length of time between the three to four day period of abuse beginning on Friday, February 7, 2014, and ending on Monday, February 10, 2014, or Tuesday, February 11, 2014, and Heather's escape to Wal-Mart on Saturday, February 15, 2014. By our count, the 911 calls were made four to five days after the three to four day period of abuse, and not two days later, as the trial court appears to have believed. Even so, the trial court's miscalculation does not convince us that the court abused its discretion, for the reasons stated in the text.
As previously discussed, defendant beat Heather for a period of three or four days, beginning on February 7, 2014, and ending on February 10, 2014, or February 11, 2014. Heather was then taken into custody for a period of three to four days. During this period, Heather received medical care and a respite from defendant's abuse. Heather was released from custody on February 14, 2014. She spent the night with defendant and awoke the next morning with a premonition that, "either I was going to lose my life or I was—I had to find a way to get away."
Heather spent the day under defendant's control, unable to run a simple errand or use her phone or car. She was ordered to remain in the car while defendant visited Sis and others, and only allowed to join the group at Sis's invitation. She was then ordered to accompany defendant when he decided to run home to retrieve his tattoo equipment. On the way, she was accused of infidelity (a precursor to past beatings), and punched in the face. She was then witness to defendant's angry confrontation with a passing motorist (another signal that defendant was losing control of his temper). She jumped in the car and fled to Wal-Mart, where she hoped to find help. There, Heather encountered Williams, who described her as "crying" and "extremely scared," an impression that was apparently reinforced by the audio recordings (which we were not provided).
On this record, the trial court could reasonably conclude that Heather was mortally afraid defendant would beat her again, and therefore, under the stress of nervous excitement when she made the 911 calls. Indeed, Heather specifically told the 911 operator, "he was gonna start again." Although Heather may have had an opportunity to recover her reflective powers in custody, we need not consider this possibility, as the trial court could reasonably conclude that she was subjected to a new reign of terror following her release. We therefore perceive no abuse of discretion in the trial court's decision to admit the 911 calls as spontaneous statements under section 1240. B. Admission of Kelly's Testimony
During oral argument, defendant's counsel raised the possibility that a declarant's otherwise spontaneous statement could refer to remote or unrelated events, about which the declarant had an opportunity to reflect, leading to a situation in which section 1240's hearsay exception could effectively swallow the rule. We need not consider this possibility, which was not discussed in defendant's appellate briefs, as the record before us does not present such a scenario.
Next, defendant challenges the trial court's admission of Kelly's testimony that defendant struck her on the forehead with a hammer. The trial court found that Kelly's testimony was probative of defendant's intent, noting, "It's entirely possible that someone could injure someone with a hammer without having any criminal intent. For instance, they could be carrying a sledge hammer from doing some construction work and, bringing it back to the house or the garage, might drop it on someone's foot and break their foot. Clearly, a person would be injured, but everyone would agree that there was no crime committed because the person accidentally drops a sledge hammer on someone's foot." The trial court continued: "If the jury were to find that the charged victim was hit by the [d]efendant with a hammer, and if the jury were to find that the [d]efendant hit [Kelly] with a hammer, they could then conclude that when [d]efendant hit the charged victim with a hammer, it was an intentional act and not done by accident or mistake." Defendant argues Kelly's testimony was irrelevant, because the defense theory was not that defendant struck Crystal with a hammer accidentally, but that he did not strike her at all. We conclude that any error in admitting Kelly's testimony was harmless.
Section 1101, subdivision (a) "generally prohibits the admission of a prior criminal act against a criminal defendant" for the purpose of showing that he or she acted similarly on the occasion in question. (People v. Cole (2004) 33 Cal.4th 1158, 1194.) Section 1101, subdivision (b), however, provides that such evidence is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (§ 1101, subd. (b).) Section 1101, subdivision (c) further provides that evidence of past conduct is admissible to "support or attack the credibility of a witness." Thus, under section 1101, "[i]f an uncharged act is relevant to prove some fact other than propensity, the evidence is admissible, subject to a limiting instruction upon request." (Bryant, supra, 60 Cal.4th at p. 406.)
We question the trial court's determination that evidence of the prior assault was relevant, particularly in view of the fact that Kelly was not a romantic partner. Although defendant's not-guilty plea placed all of the elements of the crime at issue, including intent (People v. Brandon (1995) 32 Cal.App.4th 1033, 1049, fn. 12), the charged offenses were general intent crimes, and defendant did not raise an accident defense. Under the circumstances, Kelly's testimony does not strike us as particularly relevant. We need not reach this question, however, because even assuming that the trial court erred in admitting Kelly's testimony, the error was harmless.
Here, the evidence was overwhelming that defendant savagely beat Heather, threatened her, and assaulted her with a bat. The evidence was equally overwhelming that defendant assaulted Crystal with a hammer and knife. Although Heather and Crystal both suffer from memory problems as a result of their drug use, their testimonies corroborated one another, and were further corroborated by independent evidence, including defendant's admission against interest to Janette and the evidence of defendant's prior acts of domestic violence, all of which was properly admitted. On this record, we conclude that the admission of Kelly's testimony, though arguably more prejudicial than probative, did not change the outcome of the trial and was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) C. Admission of Prior Convictions
Before trial, the prosecution moved to admit evidence of defendant's prior domestic violence against Kristie, Kelly, and Erin pursuant to section 1109, which authorizes the admission of such evidence to establish a defendant's propensity for domestic violence. The prosecution indicated that Kelly and Kristie would be testifying live, but Erin would not. Instead, the prosecution planned to offer a certified record of conviction for the incident involving Erin. Defendant made no objection. The trial court granted the prosecution's motion, and Kelly and Kristie testified to the incidents of domestic violence against them.
As noted, the trial court ultimately admitted Kelly's testimony pursuant to section 1101, rather than 1109.
Following Kelly and Kristie's testimony, the prosecution proffered certified records of conviction for all three incidents. Defendant objected, arguing that the prosecution should be required to prove domestic violence through live testimony regarding the underlying conduct, rather than documentary evidence of the resulting conviction. The trial court overruled the objection, reasoning that certified records of conviction are competent evidence to prove the existence of the prior acts of domestic violence. The parties then read a stipulation to the jury that defendant suffered a conviction for assault as a result of the incident involving Kelly, a conviction for criminal threats as a result of the incident involving Kristie, a person with whom defendant had a dating relationship, and a conviction for assault as a result of the incident involving Erin, another person with whom defendant had a dating relationship.
Section 1109 allows for the admission of "evidence of the defendant's commission of other domestic violence . . . ." (§ 1109, subd. (a)(1), italics added.) Under section 452.5, subdivision (b)(1), "[a]n official record of conviction certified in accordance with subdivision (a) of Section 1530 . . . is admissible under Section 1280 to prove the commission . . . of a criminal offense." (Italics added; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1460 ["section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred"].) Accordingly, certified records of conviction are admissible under section 1109 to prove that the defendant committed prior acts of domestic violence.
The admission of evidence under section 1109 is explicitly subject to section 352. (§ 1109, subd. (a)(1).) As noted, the trial court's discretion under section 352 is broad. A trial court abuses its discretion in admitting evidence only where the probative value of the evidence is insignificant and the prejudicial impact is quite substantial. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) An appellate court will not overturn a trial court's exercise of its discretion in the absence of manifest abuse or upon a finding that the trial court did not appear to understand and fulfill its duties. (People v. Williams (1997) 16 Cal.4th 153, 213; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We find no such abuse of discretion on the record before us. The prior convictions were relevant section 1109 evidence, and the presentation of the stipulation to the jury did not necessitate an undue consumption of time or create a substantial danger of undue prejudice. We therefore reject defendant's claim of error. D. Denial of Motion for a Mistrial
Prior to the trial, defendant moved to exclude any evidence regarding his parole status or prior imprisonment. The trial court granted the motion, which was unopposed. During the trial, the following references were made to defendant's prior imprisonment:
First, in describing the events leading up to the assault with a hammer on direct examination, Crystal testified that defendant thought she was lying about something and feared she was "going to send him back for life." The prosecutor asked Crystal to "say that again," and Crystal responded, "That I was going to send him back to prison for life." Defense counsel did not object to Crystal's testimony or ask that it be stricken. At a recess, defense counsel acknowledged that the comment "kind of slid through" and "didn't draw much attention," but asked the prosecutor to remind the witness not to talk about "things like prison and parole." The prosecutor responded that she would "absolutely remind the witness again."
Second, in describing an earlier altercation with defendant (in which he also hit her with a hammer) on redirect, Crystal explained that they were fighting because "[o]ur stuff came up missing while we were both in jail." Defense counsel did not object, move to strike the testimony, or request a curative instruction.
Third, in response to the prosecutor's question as to whether she was living with defendant in February 2014, Heather testified on direct examination, "I went and got us a house on February 1st of 2014. He was released from custody in Sacramento County Jail on February 7, and we were to live together in that home, yes." Later, out of the presence of the jury, the trial court admonished Heather that "there should be no discussion about the [d]efendant having been in prison or going back to prison or going to jail." When the jury returned, the trial court admonished them as well, stating: "You are to disregard any references that this witness has made about the [d]efendant ever having been in jail or in prison or going back to jail or going back to prison, or anything like that. . . . You may not consider for any purpose whatsoever whether or not the [d]efendant may have ever been in jail or prison at any time in the past. And if any other witness during the course of this trial makes a similar reference, you are to disregard that, as well."
Fourth, in response to a question from defense counsel on cross-examination about how police obtained the knife that defendant used to threaten her with, Heather responded that she gave it to them, adding, "He left it at the house. Whenever he was taken into custody, it was left there at the house."
Officer Nichols, who was looking for Heather on December 24, 2014, testified that he eventually found Heather and defendant near the river. Nichols indicated that he was accompanied by "a parole agent," and defense counsel objected. Defense counsel moved for a mistrial during the next recess. The motion was denied on the ground that the information was offered in response to a question posed by the defense. Defendant does not challenge—and we do not consider—the denial of the first motion for a mistrial.
Finally, in response to the prosecutor's question on direct examination on rebuttal about Cara's original account of the night of February 8, 2014, when she saw defendant backhand Heather, Detective Harmon testified that, according to Cara, defendant "was upset about Heather possibly cheating on him while he was in custody, and she had been hanging out at Cara's place." Defense counsel requested a sidebar, and the trial court admonished the jury as follows: "Ladies and gentlemen, I think I mentioned to you earlier that if any witness mentions anything about custody or jail or prison or parole or probation or anything like that, you are to disregard that for all purposes. [¶] So to the extent that you might have any memory of this witness having used a word like that in any of his answers since he has been on the stand this afternoon, I'm striking that from the record and you should disregard it for all purposes."
Defense counsel moved for a mistrial at the next recess. Defense counsel stated he had "every faith" that the prosecutor properly instructed Harmon to refrain from mentioning defendant's time in custody. Nevertheless, defense counsel argued that Harmon's statement, in combination with the earlier references to defendant's prior imprisonment, was "the straw that breaks the camel's back." The trial court responded: "I don't know what was in Detective Harmon's mind, but I did not get the impression that this was one of those times where he was looking for an opportunity to say the word 'custody' in response to a question. . . . [¶] The question he was asked was, you know, a fairly straightforward question: Did someone—Was there some information as to what the argument was about? And he just gave a very straightforward answer, that he thought—that the [d]efendant thought that Heather was cheating on him when he was in custody. It would have been better if he just said that the argument apparently was about the [d]efendant thought that Heather was cheating on him for a period there. But it didn't strike me that he was going out of his way to influence the jury in that regard."
The trial court continued: "When I look at all of the evidence that's been presented at trial and all of the evidence that the [d]efendant has been convicted in the past of offenses, I find that the fact that the officer in this case improperly used the word 'custody' would have a de minimis impact upon the jury, and, accordingly, I don't find that it rises to a violation of the Fifth or Fourteenth Amendments to the United States Constitution or the California Constitution's guarantee [of] due process." Accordingly, the trial court denied the motion.
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged," and we apply "the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555 (Bolden).) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).)
"A witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice." (People v. Ledesma (2006) 39 Cal.4th 641, 683.) However, the improper subject matter will rarely be " 'of such a character that its effect . . . cannot be removed by the court's admonitions.' " (People v. Allen (1978) 77 Cal.App.3d 924, 935.) Deciding "whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court." (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) Reversal is required only if it is reasonable probable that the volunteered comment could have affected the outcome of the trial. (Ibid.)
Defendant claims the prosecutor committed prejudicial misconduct by inviting improper references to his prior imprisonment. A prosecutor engages in misconduct by intentionally eliciting inadmissible testimony. (People v. Smithey (1999) 20 Cal.4th 936, 960.) Nothing in the record before us suggests that the prosecutor intentionally solicited improper testimony. With one exception (discussed momentarily), none of the questions that produced the improper responses were specifically aimed at eliciting them. (Compare People v. Valdez (2004) 32 Cal.4th 73, 123 [no misconduct where prosecutor "merely asked [the witness] how he managed to get defendant's photograph in the photographic lineup, not necessarily where he got the photograph"], with People v. Friend (2009) 47 Cal.4th 1, 33 [prosecutor committed misconduct by "directly posing a question [that] violated the trial court's prior evidentiary ruling"].) Although the prosecutor asked Crystal to "say that again" when she testified that defendant was afraid she was "going to send him back for life," nothing suggests the request was intended to amplify the improper testimony by repetition rather than clarify a confusing response. If anything, the record indicates the prosecutor did not draw attention to the improper testimony, as even defense counsel recognized. Indeed, the references to defendant's past imprisonment, though several, were uniformly brief and do not appear to have been offered in response to questions designed to solicit such information. To the contrary, the improper testimony appears to have been inadvertent. We therefore reject defendant's claim of prosecutorial misconduct.
Although there were several references to defendant's past imprisonment over the course of the trial, the trial court strongly admonished the jury not to consider the potentially prejudicial evidence, and we must presume that the jury followed those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) As one court has observed, "Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured." (People v. Martin (1983) 150 Cal.App.3d 148, 163; see also People v. Seiterle (1963) 59 Cal.2d 703, 710 [holding that it is only in "exceptional cases" where "the improper subject matter is of such a character that its effect on the minds of the jurors cannot be removed by the court's admonitions"].) Here, nothing in the record suggests the jury failed to follow the trial court's admonitions and instructions. (See, e.g., People v. Valdez, supra, 32 Cal.4th at p. 123 [a testifying detective's "fleeting reference to 'jail' was not 'so outrageous or inherently prejudicial that an admonition could not have cured it' "]; Avila, supra, 38 Cal.4th at pp. 571-574 [upholding trial court's denial of mistrial motion where any prejudice resulting from improper testimony concerning the defendant's time in prison could be cured by admonition]; Bolden, supra, 29 Cal.4th at p. 554 [police officer's testimony that the defendant's address was " 'the Department of Corrections parole office' " was curable by admonition].)
Defendant distinguishes Avila and Bolden on the grounds they each concerned a single reference to the defendant's criminality, whereas the present case involved several such references. We view the number of references as immaterial. What matters, for our purposes, is the nature and extent of the improper testimony, whether the improper testimony was the result of prosecutorial misconduct, and whether the prejudicial effect of the testimony was curable by admonition. As we demonstrate in the text, the improper testimony in this case was brief, inadvertent, and curable by admonition. --------
In any event, it is highly unlikely that defendant would have realized a more favorable result had the jury not heard the prohibited references to defendant's custodial status. (People v. Harris, supra, 22 Cal.App.4th at p. 1581 [applying reasonable probability standard of harmless error to erroneous introduction of evidence that defendant had been on parole].) The jury heard evidence of defendant's three previous criminal convictions for domestic violence, thus the disclosure that he had been under a criminal sentence before, whether incarcerated or on parole, could hardly be a prejudicial surprise. Further, the jury heard details of defendant's brutal beating of Crystal and Heather, as well as that he had previously assaulted three other women. The revelation that he had been incarcerated was much less damaging than the evidence of his charged crimes and prior domestic violence. Also, the jury was admonished numerous times by the trial court to disregard evidence of defendant's custodial status. On this record, the trial court could reasonably conclude that the admonitions were sufficient to eliminate any prejudice defendant could have suffered as a result of the references to his past imprisonment.
In sum, we conclude the record "demonstrates the absence of any incurable prejudice of the sort that would require the granting of a motion for a mistrial." (People v. Jenkins (2000) 22 Cal.4th 900, 986.) The trial court could reasonably conclude that the references to defendant's past imprisonment did not irreparably damage defendant's chances of receiving a fair trial, and did not abuse its discretion by denying the mistrial motion. Given the evidence and the trial court's admonitions, we see no reasonable probability the outcome of the trial would have been more favorable to defendant had these references not been made. (People v. Watson, supra, 46 Cal.2d at p. 836.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
DUARTE, J.