Opinion
H023788.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. FELIPE CORTEZ, Defendant and Appellant.
After a jury trial defendant Felipe Cortez was convicted of depriving Jennifer G. of custody (Pen. Code, § 278.5) and making criminal threats (Pen. Code, § 422). On appeal, he asserts numerous instances of evidentiary and instructional error, claims prosecutorial misconduct, and requests an in camera review of documents withheld from discovery by the defense. We find no reversible error and therefore affirm the judgment.
Background
Defendant and Jennifer G. met in 1994 and moved in together in May 1997. Their son, C., was born at the end of January 1998. After the birth defendant began using methamphetamine and exhibited mood swings. He became both physically and verbally violent toward Jennifer. On at least five occasions he would pin her down and threaten to hit her. He told Jennifer that he would use brass knuckles on her, and once he held a sledgehammer as if to strike her with it, but instead put about 20 holes in the walls of the house. He told her of past beatings he had participated in and suggested that his brother had gang connections who could "take care of" her. At first Jennifer did not take these threats seriously, but she was afraid when he threatened her with the sledgehammer, blocked her exit from the house, and pretended to slap her. When Jennifer told him she wanted to break off the relationship, he frightened her by raising a long metal pole as if to hit her with it.
When C. was a year old, Jennifer left the home she and defendant had shared. Defendant had the locks changed and refused her access so that she was unable to retrieve her belongings. She then moved in with a friend, Jason, and his family. On February 4, 1999, though she was no longer living with him and had not seen defendant that day, defendant reported Jennifer to the police, alleging that she had hit him. He obtained a restraining order and Jennifer was charged with a misdemeanor. Jennifer asked defendant why he had lied. Defendant said he "had to do what he had to do." He repeatedly promised to write a letter saying that the alleged incident had never happened. He was concerned, however, that he might be sent to jail for filing a false police report.
In March 1999 the family court granted Jennifer and defendant temporary joint custody of C., which allowed defendant to have C. at his mothers house six nights a week. Defendant, however, wanted to reunite with Jennifer. He gave her a pager, ostensibly for emergencies, but he began using it with increasing frequency to contact her "socially." By this time Jennifer and Jason had become boyfriend and girlfriend. Defendant said that he didnt really care about that relationship.
On July 26, 1999, defendant and Jennifer were engaged in mediation over custody of C. That evening, Jennifer went to drop the child off and defendant approached the car. Jennifer handed C. to defendant, who resumed talking about reconciling. An argument ensued, during which defendant, while holding C., leaned in through the passenger window and tried four or five times to punch Jennifer. He also told Jennifer that he had discovered where she lived (in spite of her efforts to keep that information secret), and that she had better watch out. Responding to Jennifers call for help, defendants mother tried to pull defendant away and take the baby. In the course of that struggle, defendant kicked the front passenger window three or four times, shattering the glass. Jennifer drove to a pay phone and called the police.
The next morning, Jennifer went to pick up C., but neither C. nor defendant was there. Defendant had threatened to take C. several times before, but not the previous day when they had argued. Defendants family did not provide any clues as to where defendant might be. On July 29, 1999, Jennifer obtained a temporary order granting her full custody of C., and on August 31, that order became permanent. Meanwhile, the court dismissed the domestic violence case that defendant had brought against her.
In spite of the assistance of the FBI, the media, and the Vanished Childrens Alliance, Jennifer was unable to find C. In January 2000, however, Agent David Schutz of the FBI informed her that defendant had contacted him. Defendant had telephoned Agent Schutz, wanting to know what federal charges were pending against him and suggesting a negotiated surrender. The agent instructed Jennifer that if defendant called her she should act as if she wanted to reconcile. Defendant did telephone Jennifer on May 23, 2000. He told her only that he was in Mexico, near the Guatemala border. Defendant had bought a house in Mexico, where he had fled with C. immediately after the July 26, 1999 argument, and he was now supporting himself by selling drugs.
Between May 23 and June 7, 2000 defendant called Jennifer more than 30 times. At first he wanted information about bail and jail time, but eventually he expressed concern about police or FBI involvement. Defendant told Jennifer that if she "told the authorities about anything," he "would come snatch back [their] son, or he would kill [Jennifer] and bury [her] in the desert in Mexico." He also threatened to hurt her family and close friends, and he told her his "connection" could "take care of [her]" for just a little cash. Even if he went to jail he could make contacts there who could easily make her disappear. At one point he said he trusted her 95 percent of the time, but if she betrayed his trust, she would "not live to regret it." Jennifer tried to assure defendant that she still loved him, and she told him that she and Jason had split up, although none of this was true.
FBI agents listened to about a third of these telephone conversations. Agent Schutz heard defendant say that he would hurt Jennifer "bad" if she was lying, and that he would make Jennifer or Jason disappear. Another agent heard defendant tell Jennifer that "if anybody got in his way he wouldnt think about putting a bullet in [that person]." Jennifer appeared to be afraid as a result of this conversation. As these calls progressed, Jennifer seemed to become increasingly fearful. Schutz wanted to transfer the negotiations from Jennifer to the FBI agents to reduce the stress on her.
On June 5 and 6, 2000, defendant talked to Agent Schutz in an effort to negotiate a surrender. Agent Schutz said that his job was to "arrest the bad guy," and defendant responded, "That would be me." Agent Schutz agreed to have the federal charges dropped, and defendant agreed to allow his mother to fly to Mexico and take C. back. Defendant told Jennifer he would kill Agent Schutz if the agent failed to get the arrest warrant dropped.
When C. returned on June 7, 2000, he did not recognize his mother, and he spoke only Spanish. After C.s return defendant threatened several times to abduct C. again. He said he would do whatever it took to be with C. or "go over whoever he has to go over," which Jennifer interpreted to mean that he would make her "disappear." He reminded Jennifer that he had other people in the San Jose area who were available to him for whatever he needed.
Defendant and Jennifer finally agreed to meet at the Pruneyard Inn on July 4, 2000. At the instruction of a law enforcement team, Jennifer did not go there. Instead, she was moved to a hotel near the police department for several days while defendant returned to the United States. Defendant was arrested at the Pruneyard Inn on July 4, 2000.
Jennifer met with defendant in the courtroom on July 31, 2000. Defendant was angry and reminded her of his connections to the Hells Angels. He said the Hells Angels "were very upset, that they had to get involved now and that anything that might happen was out of his hands, out of his control. And that they had been investigated and they were not very happy about that." Later that day they met again. This time defendant "was emotional. He seemed maybe to be pretending to be sincere." However, defendant "pretty much said the same thing but just like as if it was out of his control and sorry, but this is just how it is."
Defendant was charged by information with depriving Jennifer of her right to custody between July 26, 1999 and June 7, 2000 (count 1, Pen. Code, § 278.5), making criminal threats to Jennifer between May 1, 2000 and July 4, 2000 (count 2, Pen. Code, § 422), dissuading or attempting to dissuade a witness by force or threat of force (count 3, Pen. Code, § 136.1, subd. (c)(1)), and misdemeanor vandalism (count 4, former Pen. Code, § 594, subds. (a), (b)(4)). The jury found him guilty of depriving Jennifer of custody and making criminal threats but not guilty of the other two counts. The trial court sentenced him to three years and eight months in prison.
Discussion
1. Impeachment of Jennifer
Before trial the prosecutor moved to preclude evidence that Jennifer had a recent misdemeanor conviction of welfare fraud. The charges had resulted from Jennifers continuing to receive AFDC while C. was in Mexico with defendant. Jennifer had pleaded guilty and had paid restitution in full. The prosecutor believed that in light of all that was going on, it was understandable for Jennifer to fail to notify the Department of Social Services that C. was not with her. The prosecutor also sought exclusion of assaults defendant had accused Jennifer of committing against him.
The court allowed the defense to introduce an alleged stabbing of defendant by Jennifer in November 1998 and an alleged battery in February 1999, but it excluded the evidence of welfare fraud under Evidence Code section 352. During trial, Jennifer testified that she was on welfare in early 1999 and that defendant had refused to pay child support. Defense counsel believed that the prosecutor had opened the door to introducing the welfare fraud conviction. Counsel argued that the evidence was relevant to Jennifers credibility and might counteract the evidence regarding defendants failure to pay child support. The prosecutor responded that he had introduced the evidence about defendants failure to support C. because defense counsels opening statement had characterized defendants relationship with C. as a loving and caring one.
All further statutory references are to the Evidence Code unless otherwise specified.
The court recalled that it had exercised its discretion under section 352 in light of the other "bad acts" it had allowed in evidence. This conduct was "probably the least impressive to the Court in terms of attacking credibility because of the events surrounding the commission of that crime." The court disagreed that Jennifers testimony opened the door for defendants cross-examination on that subject, and accordingly denied defense counsels request.
On appeal, defendant argues that the court deprived him of his right to due process and his right to confront witnesses against him by restricting his cross-examination of Jennifer. He contends that welfare fraud is "as a matter of law more directly probative of a lack of credibility than assault or battery," and its exclusion in favor of the assaultive conduct was "contrary to law, arbitrary, capricious, and demonstrative of an abuse of discretion. " The discretion afforded to a trial court in section 352 rulings is necessarily broad. (People v. Wheeler (1992) 4 Cal.4th 284, 296, 841 P.2d 938.) We see no abuse of that discretion in the case before us. "In general, a misdemeanor-or any other conduct not amounting to a felony-is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297.) The trial court was entitled to take into account the special circumstances that made Jennifers conduct less probative of her credibility and instead admit evidence of her violent conduct toward defendant. No error is shown.
2. Instruction on "Immediate"
Penal Code section 422 defines a criminal threat as one that is "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat." (Italics added.) The trial court instructed the jury on this concept with CALJIC No. 9.94, which tracks the language of Penal Code section 422. During deliberations, the jury requested a definition of the word "immediate" as used in the statute and the instruction. The court provided the following amplification: "Threats often have by their very nature some aspect of conditionality: A threat is made to convince the victim to do something or else. The word immediate means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met. [P] Conditional threats are true threats if their context reasonably conveys to the victim that they are intended. [P] A threat may be sufficient even though it does not communicate a time or precise manner of execution. Those details need not be expressed." (Italics added.)
Defendant contends that this supplemental instruction was "confusing, misleading and inaccurate, and there is a reasonable likelihood that the jury misunderstood the applicable law." Defendant recognizes that the challenged definition was taken from People v. Melhado (1998) 60 Cal.App.4th 1529, 1538. He insists, however, that the Melhado court did not intend to define "immediate" for purposes of Penal Code section 422, but was only attempting to identify the time period to which "immediate" was intended to refer in the context of a conditional threat. Indeed, defendant argues, the court would not have needed to define the term because it is plain enough on its face.
The Melhado explanation of "immediate" was incorporated into the current version of CALJIC No. 9.94.
Defendant does not convince us that error occurred. According to the prosecution, these were conditional threats. The prosecutor argued and presented evidence that defendant had threatened harm to Jennifer if she lied, if she reported him to the police, if she blocked his access to C., and, later, if she testified against him. The trial court responded appropriately to the jurys request for clarification of the term by including the complete language used by the Melhado court, including all references to conditions in which threats may occur. The jury knew from other instructions that if it found that no conditions were attached to the threats defendant had made, it was free to reject the courts definition of "immediate" as being inapplicable to the facts. We find no error in the supplemental instruction.
The court read CALJIC No. 17.31, which instructed the jurors that the applicability of some instructions would depend on what they found to be the facts. They were directed to "disregard any instruction [that] applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts."
3. Actual Intent to Carry Out the Threats
In reading CALJIC No. 9.94 the court advised the jury that "it is immaterial whether the person who made the threat actually intended to carry it out." Defendant contends that this statement violated his rights to due process and a jury trial because it was misleading and prevented the jury from considering evidence favorable to the defense. Such evidence was not immaterial, defendant argues; on the contrary, it was relevant to the question of whether the threat was sufficiently immediate or unequivocal, whether it conveyed an immediate prospect of execution, whether the victim reasonably experienced sustained fear, or whether the defendant had the specific intent that the victim interpret the statement as a threat. But for the error, defendant argues, the jurors would have felt free to discuss defendants intent in relation to the elements of the charge.
We find no error in the instruction. The challenged sentence sufficiently conveys to the jury the Legislatures intent that the threat be punished "even if there is no intent of actually carrying it out." (Pen. Code, § 422.) The jurors were not prevented from considering immediacy, the degree of fear experienced by the victim, or the requisite intent of the perpetrator, because those elements were covered by the balance of the instruction. They were explicitly told that the threat must be accompanied by the specific intent that the communication be taken as a threat, that it be so "unequivocal, unconditional, immediate, and specific" as to convey "the gravity of purpose and an immediate prospect of execution," and that the victim consequently experience sustained fear. (CALJIC No. 9.94.) They understood that they were to consider all the instructions together and refrain from singling out any particular sentence or individual point and ignoring the others. (CALJIC No. 1.01.) Thus, the jurors were adequately equipped to evaluate the facts and reach a verdict in accordance with Penal Code section 422.
4. Instruction on Attempted Threats
Defendant next contends that the court denied him due process by failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threats. A defendant properly may be found to have committed the offense of attempted criminal threat where, "acting with the requisite intent, [he or she] makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear . . . ." (People v. Toledo (2001) 26 Cal.4th 221, 231.)
The court must give a sua sponte instruction on lesser included offenses when there is substantial evidence that would support a verdict that the defendant is guilty of the lesser, but not the greater, crime. (People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094.) Rather, "such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury." (Ibid.) In determining whether evidence is substantial, the court must not weigh the credibility of witnesses or the relative probative value of the evidence, for those tasks are the sole province of the jury. (Id. at p. 177; People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.)
Here, the evidence was such that defendant either was guilty of the greater offense or he was not guilty of any offense. There was no evidence that defendant committed only an attempt but not the completed crime. That the jury could have rejected the prosecution evidence that Jennifer was afraid does not alone compel an attempt instruction. No instruction on the lesser included offense was required on these facts.
5. Evidence of Changes in C.s Behavior
Defendant next contends that the court improperly admitted irrelevant and inflammatory testimony about C.s behavior upon his return from Mexico. Jennifer testified that C. did not recognize her when she met him at the airport. She said that he spoke only Spanish, and that it took about six months for them to be able to understand each other. She further testified that C. was still wearing diapers, although she had begun toilet training him before he left, and that he seemed to be afraid and fought her when she tried to change his diapers. Jennifer also said that C. hid his toys, in apparent fear that someone would take them. As a result of these changes, he was seeing a psychotherapist.
Defendant objected to evidence regarding the length of time it took for C. to re-learn English, the behavior changes Jennifer saw in him, and the fact that he was in therapy. The prosecutor argued that the behavior changes were relevant to show that C. returned "in worse shape than when he left," to refute defense counsels suggestion during opening statement that defendant loved his child and would do anything for him. The therapy was justified, the prosecutor stated, because "if the father really loves the child as he is claiming he would not have traumatized the child" by taking C. from his mother and grandmother and the environment he was used to. The trial court overruled the defense objections, though it refused to allow any testimony regarding the nature of the therapy. Subsequently, two FBI agents and a criminal investigator testified that C. did not appear to recognize Jennifer or to understand English.
We agree with defendant that the evidence was not directly relevant to the elements of the crimes charged. " Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." ( § 210.) The childs adjustment difficulties did not have any tendency to prove that defendant deprived Jennifer of custody, that he threatened her within the meaning of Penal Code section 422, or that he attempted to dissuade her from testifying. Nevertheless, it was for the trial court to determine whether the evidence tended in reason to rebut the defense portrayal of defendant by demonstrating that defendant acted not from love for his child, but to terrorize Jennifer and dissuade her from assisting the authorities in prosecuting him.
We further disagree that the admission of the testimony was prejudicial. The erroneous admission of the evidence does not require reversal of the judgment unless it is reasonably probable defendant would have obtained a more favorable result had there been no error, and the error resulted in a miscarriage of justice. (People v. Earp (1999) 20 Cal.4th 826, 878, 978 P.2d 15.) Here the testimony regarding C.s behavior and his loss of English was not surprising given the fact that he was only 18 months old when he was taken to Mexico, and only two and one-half when he returned. We do not believe, therefore, that this evidence was as "highly emotional" and distracting as defendant characterizes it. We thus see no reasonable probability of a different outcome had the evidence been excluded. No miscarriage of justice is shown.
6. Admission of Prior Convictions
During trial the prosecutor called Michael J. Santoro, an attorney who had represented C. during the family court proceedings in 1999. Santoro testified that during an interview with defendant he had asked if defendant had any prior arrests, to which defendant answered affirmatively. Defense counsel successfully objected to the mention of arrests because "only conviction is proper." Santoro then clarified that defendant had indicated that both arrests had resulted in convictions.
On appeal, defendant complains of ineffective assistance of counsel because the prior convictions were inadmissible and were likely to cause the jury to view him as a " professional criminal." But for counsels failure to object to this evidence, he argues, it is "reasonably likely that . . . the jury would have found [him] not guilty of the terrorist threat charge."
"To prevail on a claim of ineffective assistance, a defendant must show both that counsels performance was deficient — it fell below an objective standard of reasonableness — and that defendant was thereby prejudiced. (People v. Lucero (2000) 23 Cal.4th 692, 728 . . . .) Such prejudice exists only if the record shows that but for counsels defective performance there is a reasonable probability the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 . . . .)" (People v. Cash (2002) 28 Cal.4th 703, 734; People v. Jones (1998) 17 Cal.4th 279, 309, 949 P.2d 890.)
"An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540, 822 P.2d 385; People v. Carpenter (1997) 15 Cal.4th 312, 396, 935 P.2d 708.) There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; we therefore defer to counsels reasonable tactical decisions, and will reverse for ineffective assistance only if the record affirmatively demonstrates no rational tactical purpose for counsels acts or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980, 846 P.2d 704.)
Defendants burden to show error is a difficult one to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436, 907 P.2d 373.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsels perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561, 917 P.2d 1175; Strickland v. Washington, supra, 466 U.S. 668, 689.) A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Hart (1999) 20 Cal.4th 546, 976 P.2d 683.) "If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsels performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015, 945 P.2d 1197.)
Defendant fails to meet this burden. As the People point out, defense counsel apparently intended to call defendant as a witness, in which event his prior convictions could have been admitted under section 788. The record does not " affirmatively disclose the lack of a rational tactical purpose for the . . . omission. " (People v. Williams (1997) 16 Cal.4th 153, 215, 940 P.2d 710, quoting People v. Ray (1996) 13 Cal.4th 313, 349, 914 P.2d 846.)
7. Prosecutor Misconduct
Defendant contends that reversal is required based on "pervasive, patent" misconduct of the prosecutor during argument to the jury. He particularly takes issue with certain comments alluding to defendants exercise of his constitutional trial rights. Near the end of his opening argument the prosecutor asserted that he had just proved "that all four counts are true beyond any reasonable doubt. Use your reasonable and common sense and you will come to this conclusion. So you probably all heard of stand and deliver, but I have sat and delivered, but the defense has stood and not delivered. [P] I am going to talk briefly about that." The prosecutor then suggested that the defense had made "a false representation, false promises about what . . . they were going to show. And I say dont take the bait. You should not be talking about this or thinking about it because there is no evidence about all this stuff . . . . "The prosecutor attempted to discredit the defense opening statement in which defendant was portrayed as acting out of love for Jennifer and for C. He then stated, "Back to one about the last act of revenge. That is what this trial is about, ladies and gentlemen. The act of the defendant to carry out his plan of revenge, make her come to court, make her testify, make her relive this nightmare." Defense counsels objection to this last statement was overruled. The prosecutor continued, "That is why we are here. The testimony is overwhelming."
Defendant argues that the prosecutors comments, combined with his detailed description of a defendants trial rights, amounted to an exhortation to the jury to draw adverse inferences from defendants exercise of his trial rights. The comment about defendants "act of revenge" was, according to defendant, an allusion to his silence, in violation of Griffin v. California (1965) 380 U.S. 609, 613-615, 14 L. Ed. 2d 106, 85 S. Ct. 1229.
The prosecutor is permitted, however, to comment on the state of the evidence, "including the failure of the defense to introduce material evidence or to call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446, 827 P.2d 388; accord, People v. Lewis (2001) 25 Cal.4th 610, 670.) Here we believe that the prosecutors reference to the failure of the defense to "deliver" amounted to such a comment. Furthermore, we do not find a " reasonable likelihood that the jurors misconstrued or misapplied the words in question." (People v. Roybal (1998) 19 Cal.4th 481, 514, 966 P.2d 521.) The court admonished the jury that it must base its decision on "the facts and the law." The court explained that the jurors were required to determine the facts from the evidence received at trial "and not from any other source," and that they "must accept and follow the law" as the court stated the law. Specifically, the court noted, "If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions."
The jurors were further cautioned that they must not be "influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling," but instead must "conscientiously consider and weigh the evidence, apply the law and reach a just verdict." The court subsequently repeated the admonition that statements made by the attorneys during the trial, except for stipulations, were not to be considered evidence. And it told the jurors that they were not permitted to draw any inference from defendants decision not to testify and that they must not discuss or permit this fact to enter into their deliberations in any way. Finally, the jurors were instructed on all of the elements of a criminal threat, and they were told that a guilty verdict required that each fact essential to those elements be proved beyond a reasonable doubt.
"The courts instructions, not the prosecutions argument, are determinative, for we presume that jurors treat the courts instructions as a statement of the law by a judge, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. " (People v. Mayfield (1993) 5 Cal.4th 142, 179, 852 P.2d 331, quoting People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8, 828 P.2d 705.)
We must conclude, therefore, that reversal is not required as a result of the prosecutors comments during argument to the jury, even if those comments are deemed to be beyond the scope of fair comment on the evidence. For the same reasons any failure of trial counsel to object to some of the asserted misconduct was not prejudicial and therefore did not constitute constitutionally deficient representation.
8. Prior Acts of Domestic Violence
Over a defense objection the trial court admitted the testimony of Heather Cheney, who described defendants physical expressions of anger during the time she and defendant were dating. On one occasion they were arguing and defendant struck the front passenger window of his car with his fist. Though a reluctant witness, Cheney also recalled defendant grabbing her arm to restrain her when she tried to walk away from him during an argument. Cheney had ended the year-long relationship because she was not in love with him and he had become "a little . . . controlling." After the breakup she saw him at a bar, staring at her. He told her he would get her back, and he threatened to do something to her home. An investigator with the district attorney testified that Cheney had told him that defendant had grabbed her arm in anger on two different occasions. Cheney had also reported that she was in the front passenger seat and defendant was standing outside the car when he struck the car window, shattering it.
The trial court specifically determined that this evidence was relevant, that it was more probative than prejudicial, and that it was therefore admissible under section 1109. The court later instructed the jury with CALJIC No. 2.50.02, which defines "domestic violence" and explains how evidence of prior domestic violence may be used in jury deliberations. Defendant contests both the admission of Cheneys testimony and the CALJIC instruction.
Section 1109 provides an exception to the evidentiary bar of section 1101, subdivision (a), by allowing evidence of prior domestic violence, subject to section 352. Defendant contends that application of this statute violated his right to due process, because it allowed the jury to consider Cheneys testimony as evidence of his propensity to commit the charged offense.
Defendant acknowledges that the Supreme Court rejected a similar challenge to admission of uncharged sexual offense priors under section 1108 in People v. Falsetta (1999) 21 Cal.4th 903, 915-922, 986 P.2d 182 (Falsetta). He also recognizes that intermediate appellate courts have applied Falsetta by analogy and uniformly found section 1109 to be constitutional. (See, e.g., People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) Section 1109 contains the same protections that prevent section 1108 from violating due process. The admissible prior offenses are limited to domestic violence offenses, and pre-trial notice is required. And, most importantly, section 1109 contains a built-in safeguard through the application of section 352 to prevent undue prejudice and preclude "inefficient mini-trials." (Falsetta, supra, 21 Cal.4th at p. 916; § 1109.) Here the court admitted Cheneys testimony only after weighing its probative value against the potential for prejudice and undue consumption of time. No due process violation is shown.
We must similarly reject defendants challenge to the courts instruction with CALJIC No. 2.50.02. Defendant contends that his due process rights were violated because the jurors might have understood the instruction to mean that propensity to commit the alleged offense alone was sufficient to find guilt, in conflict with the reasonable doubt instruction. After defendants appellate brief was filed, however, the Supreme Court issued its decision in People v. Reliford (2003) 29 Cal.4th 1007. There the Supreme Court approved the 1999 version of CALJIC No. 2.50.01, which is the same as CALJIC 2.50.02 except that it pertains to evidence of prior sexual offenses rather than domestic violence offenses. Defendants appellate argument is not based on any distinction between these two CALJIC instructions. Thus, based on Reliford, we must reject defendants challenge to the constitutional validity of CALJIC 2.50.02.
The challenged portion of the instruction states: "If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused." (CALJIC No. 2.50.02) Defendant overlooks the following language added in 1999 and given below: "However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense." (Italics added.) (CALJIC No. 2.50.02.)
9. Disclosure of Exculpatory and Impeachment Evidence
Under Brady v. Maryland (1963) 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, the prosecution must disclose to the defense any evidence that is favorable to the defendant and material to the issue of guilt or punishment. (See also Kyles v. Whitley (1995) 514 U.S. 419, 432-433, 131 L. Ed. 2d 490, 115 S. Ct. 1555.) The failure to disclose favorable evidence would deprive the jury of the opportunity to consider all material evidence, offend our standards of justice, and deny the defendant a fair trial in violation of the due process clause of the Fourteenth Amendment. (Brady, supra, at pp. 87-88.) The duty applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess, and it encompasses impeachment evidence as well as exculpatory evidence. (United States v. Bagley (1985) 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375; Strickler v. Greene (1999) 527 U.S. 263, 280, 144 L. Ed. 2d 286, 119 S. Ct. 1936.) The prosecution team includes both investigative and prosecutorial agencies and personnel. (In re Brown (1998) 17 Cal.4th 873, 879, 952 P.2d 715.)
Evidence is shown to be material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (United States v. Bagley , supra, 473 U.S. at p. 682.) However, "a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendants acquittal." (Kyles v. Whitley, supra, 514 U.S. at p. 434.) Thus, to offend Brady "the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Green, supra, 527 U.S. at pp. 281-282.)
Before trial the defense asked that the prosecutor be required to turn over all the notes Jennifer took during her telephone conversations with defendant as well as notes taken by prosecution investigators. The prosecutor had already given some of the notes to the defense, and after an in-camera review the court ordered disclosure in two instances. Defendant similarly asks this court to review those documents to determine whether they contain material that would have been discoverable under Brady. Defendant suggests that even Jennifers "doodles" might be relevant and material to his assertion that she did not actually fear defendant within the meaning of Penal Code section 422. The People have no opposition to this request.
We have thoroughly reviewed the records submitted to us under seal and have found nothing that would have been of assistance in the defense of the case.
10. Cumulative Prejudice
Defendant finally argues that reversal is required based on the "cumulative prejudicial impact" of all the errors asserted on appeal. Where few or no errors have occurred, and where any such errors were harmless, their cumulative effect does not result in the substantial prejudice required to reverse a defendants conviction. (People v. Price (1991) 1 Cal.4th 324, 465, 821 P.2d 610.)
Disposition
The judgment is affirmed.
WE CONCUR: Wunderlich, J., Mihara, J.