Opinion
B160201.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO JOEL CRUZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Alberto Joel Cruz, of felony willful infliction of corporal injury upon a spouse, cohabitant, or parent of ones child in violation of Penal Code section 273.5, subdivision (a) (count 1); misdemeanor disobedience of a domestic relations court order in violation of Penal Code section 273.6, subdivision (a) (count 2); and felony assault with a deadly weapon or by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1) (count 3). As to counts 1 and 3, the jury found true the allegation that appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). Appellant admitted the allegation that, pursuant to Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), he had suffered a prior conviction of a serious or violent felony, i.e., a 1997 conviction of willfully discharging a firearm in a grossly negligent manner, for which he served a prison term within the meaning of Penal Code section 667.5, subdivision (b).
The trial court denied probation and sentenced appellant to state prison for a total term of nine years. The sentence consisted of three years (the midterm) on count 1, doubled pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d); and a consecutive three-year enhancement pursuant to Penal Code section 12022.7, subdivision (a). The Penal Code section 667.5, subdivision (b), prior prison term allegation was stricken. The court sentenced appellant on count 2 to county jail for 136 days (the equivalent of time served). The court imposed a nine-year prison term on count 3 and stayed the sentence pursuant to Penal Code section 654.
On appeal, appellant contends: (1) the trial court denied appellant his due process right to present a defense by excluding evidence of Denise S.s prior acts of aggression toward appellant; (2) the trial court erred by improperly limiting appellants right to cross-examine Denise about her drug use; (3) the trial court abused its discretion under Evidence Code section 352 by allowing the introduction of evidence of appellants prior domestic abuse; (4) reversal is required because CALJIC No. 2.50.2, regarding the prosecutions burden of proof for prior allegations of domestic violence, undermined appellants federal constitutional rights to the presumption of innocence and to have the jury make a determination of guilt beyond a reasonable doubt; (5) appellants convictions should be reversed because the jury was improperly instructed with CALJIC No. 17.41.1; and (6) the cumulative effect of the errors deprived appellant of a fair trial.
FACTS
On March 21, 2002, Denise S. went to the 1200 block of West Grand Avenue in Pomona to visit Amy Galindo. Appellant, the father of Denises two sons, lived next door to Galindo. Denise and appellant were "pretty much" separated at that time.
Denise had a part-time business decorating home interiors and making homemade crafts. She went to Galindos to pick up some of her home interior display materials and crafts. Steven Morales, a friend of Denises from work, drove her in his truck to pick up the items. Denise arrived without calling beforehand. There were two passengers in the back of Moraless truck.
Upon arriving at the U-shaped driveway in the apartment complex, Denise saw Galindo and her daughter outside. Appellant was also outside, in front of his apartment. Denise and Morales got out of the truck and walked towards Galindos residence. Appellant walked over, greeted Denise, and shook Moraless hand. Galindo told Denise she would bring Denises property over to the truck, and she entered her unit.
Appellant and Denise conversed about their children and how Denise was doing. Denise told appellant she was busy working and going to school while they walked back to the truck. Appellant commented on Denises leather outfit by saying, "Youre dressed like that going to work?" Appellant also asked Denise why she kept coming around, and Denise explained that the only reason she had come that morning was to pick up her things. When they reached the truck, Denise and Morales got back inside it.
Denise and appellant continued to converse while Denise sat in the passenger seat and appellant stood within the opening of the passenger door of the truck. They discussed visiting their children together, but there was an apparent disagreement when Denise said she could not do so on a certain day. Appellant wanted to agree on a certain date, and the two continued to disagree. Finally, Denise told appellant she had to go, and she tried to close the door of the truck. Denise reached for the door handle but could not close the door because appellant was standing in the way.
Galindo arrived with a large picture of Denises, which was all she had of Denises property. Morales got out of the truck and helped load the picture in the truck. Morales said to appellant, "Come on, bro, whatever, we have to go so just let her go. Talk to her later." When appellant paid no attention to this, Morales said, "Why dont you just leave her alone[?] Were getting ready to go." He also said, "Just get away from my truck. Leave her alone."
When she heard Morales tell appellant to leave her alone, Denise tried to turn around and look toward Morales. She saw him shut the back door and, just as she began to turn her head back, she "blacked out." At appellants trial, Denise remembered something hitting the right side of her head by her ear. She could not remember anything else happening before she got dizzy and blacked out. She did remember that, just before she felt something hit her head, appellant was still standing next to her in the open passenger door, and she was still sitting in the passenger seat.
The prosecutor confronted Denise with passages from Denises preliminary hearing testimony. At that hearing, Denise said she tried to shut the passenger door to the truck but was unable to do so because appellant was standing in the way. Morales went to the back of the truck. Denise turned to call Morales so that she could shut the door, and she asked appellant to calm down. Denise looked to the back of the truck for a couple seconds, while appellant was standing less than a foot away from her. When Denise turned back around, appellant hit her a few times and grabbed her out of the truck. Denise said she could not recall how many times appellant hit her. She remembered that afterwards she had a bruise on her ear, and two of her teeth had gone through her lip. Denise knew it was appellant who had hit her because, two seconds before, he had hold of her arm, and he was the only one standing right next to her.
At trial, Denise said that the next thing she remembered after being hit was getting up off the ground by the passenger side of the truck and picking her shoe up from the ground. She felt weak and experienced hot and cold flashes. She managed to get back into the truck, where she leaned back into the passenger seat and blacked out again.
Morales drove Denise to work. When Denise walked into her place of employment, the receptionist asked what had happened to her and said she was going to call the police. Denise turned around and walked back out.
Morales then drove Denise to the home of her mothers best friend, Emma. Denise remembered walking into Emmas house towards its living room, where she sat down and passed out. Emmas sister called the police.
Denise did not realize the extent of her injuries until she woke up on the couch and found it was covered with blood. She was in a lot of pain, and blood was coming from her chin and lip. She had no further recollection until she woke up the following evening at her mothers house.
The jury was shown three Polaroid photographs of Denises injuries. Two were taken on the date of the incident, and one was taken a week later on March 28, 2002.
Denise testified that she continued to suffer intermittent blackouts and dizziness, memory loss, blurred vision, difficulty reading, and ringing in her ears from the March 21, 2002, incident. She had two scars at the time of her testimony that were caused by the blows to her face having forced her lower teeth through her lip. One scar was about an inch long and crescent shaped, and the other was about half an inch long. Denise did not seek any medical treatment for her injuries because she does not like doctors.
At trial, the prosecutor asked Denise about an incident that occurred on the morning of June 14, 2001. Denise had gone to appellants home that day to visit with their son. After visiting for a while, Denise had to go and make a telephone call. She was waiting for someone to pick her up and drive her to work and had to use a pay phone. Appellant walked with her to the pay phone, and the two ended up between some church buildings. At that time, Denise was staying with a long-time friend, and appellant questioned her about whether she was "with" the friend. Appellant and Denise argued with each other about his jealousy and suspicions. Because it was a hot day and she had asthma and was pregnant, she began to get dizzy. She was holding her son in her arm, and she started to faint. She said that appellant, in an attempt to catch her, grabbed her from behind in "kind of a choke hold" and the police "went after" appellant "because someone had seen the wrong thing." A woman came out of an office at the church and saw appellant with his hand around Denises neck. As a result of this incident, Denise suffered redness to her throat and neck, and she hurt her knee when it hit a small rock on the ground. At trial, Denise did not remember what she said about that incident to police officers who responded to the scene and interviewed her that day. Denise described what happened that day by saying she "got dizzy but that was it."
Appellant was prosecuted for the June 14, 2001 incident at the church. The court issued a restraining order against appellant, a copy of which was provided to Denise by the deputy district attorney handling the matter. The restraining order ordered appellant not to annoy, harass, strike, threaten, sexually assault, batter, or stalk Denise, or to destroy her personal property or disturb her peace.
Denise acknowledged that, among the members of the audience at trial were appellants mother and other relatives, as well as friends and neighbors of his family with whom she was acquainted. Denise said she had never made up things to get appellant into trouble, and she admitted she had lied to cover up for appellant in the past.
Denise admitted to having used drugs. She was neither proud nor ashamed of having done so. At the time of trial she was in recovery. Denise had not been using drugs on March 21, 2002. Her employer at that time had tested her every week for drug use. Denise had suffered dizziness and fainting spells both before she began using drugs and after she stopped using them. The dizziness and fainting did not result from her drug addiction.
Amy Galindo testified that she lived at 1239 West Grand Avenue in Pomona, and appellant lived at 1241 West Grand Avenue with his mother, father, sister and brothers. Denise and a man arrived at Galindos on March 21, 2002, to pick up a picture that belonged to Denise. Galindo and appellant were standing in front of Galindos home when Denise and her friend arrived. Denise asked Galindo for the picture, and Galindo said she would get it for her. Galindo saw Denise, her male friend, and appellant walk down the driveway. Galindo took the picture to the truck. She saw Denise in the passenger seat, and appellant was standing at the open passenger door talking to her. Denises male friend was seated in the drivers seat. The friend got out of the truck and put the picture in the back when Galindo gave it to him. Galindo then went back to her home, walking with her back turned toward the truck. Galindo did not hear what was being said between appellant and Denise. Galindo did not see any hitting or reaching between them. Galindo did not see Denise trying to close the door to the truck, nor did she hear a commotion as she walked back to her home.
Upon entering her home, Galindo heard what sounded like a car "tak[ing] off really fast." She saw appellant with scratches across his neck and asked him what had happened. Appellant said he had a fight with "a guy." Galindo asked him why, but then decided not to ask any more questions so as not to upset appellant.
Approximately one-half hour later, an Officer Pickering came to speak with Galindo. He asked her to describe what happened between appellant and Denise. Galindo did not tell Officer Pickering that she had seen scratches on appellants neck because she did not remember seeing them, although the interview was only an hour after she saw them. Galindo denied telling Officer Pickering that she heard Denise and appellant discussing children and their child custody arrangements. She denied telling Officer Pickering that she had heard appellant say to Denises friend, "Why are you with her? Shes no good. Shes a doper. Shell get you in trouble." Galindo also denied telling Officer Pickering that she saw appellant punch Denise twice.
Galindo was confronted with her preliminary hearing testimony, when she testified that she had seen Denise reach for the door of the truck to close it, and appellant had stood in the way and kept the door open. Galindo had also testified that she did not see any marks on appellant. Galindo admitted that she had never said she saw scratches on appellant until she volunteered it at trial.
Officer Brian Pickering was on patrol on March 21, 2002, when he responded to a call originating from appellants residence. When he arrived at the location, Officer Pickering saw appellant walking away from his residence. Appellant flagged Officer Pickering down. Appellant said he had had a fight with his girlfriend who had slapped him. Appellant claimed that he had been grabbed and scratched at his neck. Officer Pickering looked at appellants neck and saw no marks on appellants skin. There was no indication that appellants shirt had been stretched or pulled away.
Officer Pickering received a second call approximately seven minutes after the first. As a result of the call, Officer Pickering responded to 389 East 11th Street, the home of Denises mothers best friend. Officer Pickering found Denise sitting in the living room of the home. She was holding a cloth to her face and head, and she had blood on her.
Denise was upset and told Officer Pickering that her injuries were a result of appellant punching her. She said she had gone to a friends home to pick up some of her crafts. The friend lived adjacent to appellant. Appellant wanted to speak with her, but Denise told appellant she did not want to talk to him. As Denise walked away, the conversation with appellant became heated. Denises male friend, Steve, had taken her to the location in his truck. Appellant told Steve he should get away from Denise. Appellant said Denise was "no good" for him. As the conversation became even more heated, appellant hit Denise on the side of her head.
Officer Pickering noticed that Denise was "in and out" during their conversation. She nodded off a couple of times. Officer Pickering took Polaroid photographs of Denises injuries. He told Denise to go to the hospital. Denise said her mother would take her.
Officer Pickering was unable to determine if Denise was under the influence of drugs. He was more concerned with her injuries, and he believed that the hospital would determine if she had taken drugs. He did not take her pulse or examine her pupils. He did not see any obvious signs that Denise had used drugs or alcohol. He attributed her lapses of consciousness to having been punched in the head. Officer Pickering acknowledged that victims of domestic violence often refuse medical treatment.
Officer Pickering interviewed Galindo, who told him that she was standing outside of her home talking to appellant when Denise approached them. Denise said she was there to pick up her crafts. Galindo was still outside as appellant and Denise were walking back to the truck. Galindo said she had heard appellant and Denise arguing over child custody as they walked away. Galindo heard appellant say to Denises friend, "Shes not good for you; you should stay away from her." Galindo said that she saw appellant punch Denise, possibly twice, by the passenger door of the truck. Galindo did not see Denise swing at appellant. After appellant punched her, Denise got in the truck and left.
At appellants trial, Officer Pickering recalled the incident on June 14, 2001, when Officer Pickering responded to a church and took photographs of Denises injuries. Two other officers, Sergeant Baker and Officer Serpan, were already present at the church with Denise. Denise told police that she had screamed for help when appellant grabbed her. When people came out of the church in response, appellant told them everything was okay, that Denise was his wife, and they were going home. Denise told the people this was not true and that she wanted help.
The parties stipulated at appellants trial that appellant was present in court and personally served with a protective order effective through July 13, 2004. The order named appellant as the person restrained and Denise as the person protected.
Appellant presented no witnesses or evidence on his behalf.
DISCUSSION
I. Exclusion of Victims Prior Acts of Aggression Toward Appellant
A. Proceedings Below
At a pretrial hearing pursuant to Evidence Code section 402, the court noted that there were several incidents regarding section 1103, subdivision (a) evidence and section 1102 evidence that the parties had discussed in chambers.
All further references to statutes are to the Evidence Code unless stated otherwise.
The first was an incident on September 15, 2001, where Denise allegedly assaulted appellant and broke his hand. Appellant had apparently indicated he might testify to that incident as section 1103, subdivision (a) evidence to show that, in the currently charged incident, Denise was acting in conformance with her character trait for violence. The courts indicated ruling in chambers had been to admit evidence of that incident. The prosecutor argued there was no nexus between the former incident and the current incident.
The court stated it had assumed the incident was relevant because the defense was going to be that Denise was the aggressor and appellant had acted in self-defense. Defense counsel confirmed that this was correct. Counsel said that on September 15, 2001, appellant had suffered a fracture in his hand when he put up his hand to ward off a blow from Denise, and he had X-rays to show this.
The prosecutor argued that the fact that Denise may have struck him with a bag over a year before the currently charged incident did not necessarily give appellant cause to believe he was acting in self-defense on the current occasion. Defense counsel argued that "the offer of proof is that my client was in fear of the victim because of a prior conduct."
The court asked defense counsel to define precisely what aspect of Denises conduct on March 21, 2002 (the charged incident), he was referring to. Counsel replied: "The conduct of the victim toward the defendant is this, and according to the defendants version of what occurred. And that version is the fact that the victim on previous occasions has come over to his house to harass him and molest him with no purpose, no legal purpose. Thats number one. [¶] Number two, on that particular date that these charges result in, that the defendant was in fact defending himself from the victim and her boyfriend and thats when she got hurt."
The court asked what Denise had done to make appellant believe he was about to be attacked or was being attacked. Counsel replied that Denise approached appellant in an aggressive manner. He then stated that "the line of the defense" was that appellant was involved in an altercation with one of Denises boyfriends when Denise tried to break it up or jump into the fight.
The court stated it had been swayed by the prosecutions argument that section 1103, subdivision (a) evidence required some foundation as to what conduct in the current incident was the conduct in conformity with the prior bad acts. Defense counsel interjected that the conduct was "[n]umber one, she came to his house," and "[n]umber two, she came to his house with no legitimate purpose but to harass him." Although on September 15, 2001, she went to appellants house alone, during the current incident she went with a boyfriend to harass him. She confronted appellant and began not only a verbal altercation but a physical one. The prosecution argued that verbal abuse is not sufficient to create a need for self-defense, and the question was whether Denise attacked appellant or not.
The court reiterated that there had to be a foundation, and that the September 15, 2001 incident could not come in if there had not been evidence of the conduct that defense counsel claimed had occurred on March 21, 2002. The court stated it would reserve judgment on the September 15, 2001 incident. Assuming the evidence played out as counsel suggested, the incident could come in. When the prosecutor inquired as to whether harassing verbal language would be a sufficient foundation, the court stated, "[i]t depends." If the conduct were assertive and aggressive enough on March 21, 2002, then that would be sufficient.
With respect to a September 2, 2001 incident, the courts ruling was the same. It could come in providing there was a foundation as to what Denises conduct was on March 21, 2002, that constituted the aggressive conduct towards the defendant. Defense counsel argued that during the September 2, 2001 incident, Denise made criminal threats against appellant, saying she was going to kill him. Therefore, he did not need to prove any other conduct except those actual criminal threats. Counsel said that, because of the threats, appellant had reason to believe that he was in fear of bodily injury, and this was sufficient for appellant to act in self-defense. The threats should come in "as to the conduct of why he feels that the victim when she came in to break up the fight in March of 2000 [sic] was endangering his well-being."
The court asked the prosecutor to respond to counsels argument. The prosecutor stated that the issue was how many times the two had had peaceful contact — such as child visitation — since the September 2, 2001 threats. She questioned whether appellant had experienced sustained fear, and the threats appeared to be part of the "usual talking" that went on between the two of them.
The court stated that it would reserve judgment on the September 2, 2001 and September 15, 2002 incidents, until there was a foundation laid by the evidence. And, until the foundation was laid, the court stated there would be no reference to them.
The court then addressed an incident that occurred on May 10, 2001. On that date, Denises friend — a Mr. Noblet — and appellant had a verbal confrontation. Depending on who described the incident, either Noblet pulled a knife and appellant cracked a bottle over Noblets head, or appellant cracked a bottle over the Noblets head and then knives were found on Noblet. The court stated it did not see the relevance of this incident.
Defense counsel argued that the Noblet incident was relevant to demonstrate that the victim had previously shown up with a boyfriend, a fight ensued, and appellant was stabbed. It went specifically to the defense case-in-chief, which would show that appellant was in fear for his life. Counsel said it needed to be shown that appellant was stabbed at one time and that there was an altercation when he was with the victim and she was with her boyfriend.
Without the court making a ruling on the May 10, 2001 incident, the discussion then turned to an incident on November 1, 2001, when a Carlos Omar Mesa, now deceased, committed a battery on appellant, and appellant contended that he was set up by Denise. The prosecution argued that the incident was remote, and the People would be deprived of cross-examination of Mesa. The prosecutor also believed that exclusion of this incident was called for because appellant and Mesa were both listed as victims after smacking each other around. The court ruled that the November 1, 2001 incident would be excluded, finding it was not relevant and did not fall under section 1103, subdivision (a).
The court next discussed an incident on Benson Avenue in Chino, which would be the subject of testimony by a Marie Flores. In this incident, Denise allegedly struck appellant with a box. The date was unspecified. The court stated it would exclude the evidence pursuant to section 352. Defense counsel argued that the testimony should be admitted for opinion as to character. The court replied that there was no indication if the incident occurred 10 years ago or two days ago, and it would be excluded unless counsel came up with a specific date.
The next proffered testimony by the defense was that of a Miss Palacio, whom Denise allegedly called a "bitch" at a birthday party. No date was given for the incident. The court excluded the evidence on relevancy and section 352 grounds. Defense counsel argued that the incident showed Denises character for causing fights. Even though appellant attempted to make the testimony more relevant by specifying a date for the incident, the court excluded the evidence.
Defense counsel argued that Palacio could also testify about the September 15, 2001 incident that led to appellants hand injury because Palacio was a percipient witness. She saw appellant tell Denise to leave, and Denise started yelling and hitting appellant with a black bag. The court said Palacio could testify about September 15, 2001.
The next proffered testimony was by Rose Gonzalez and Fernando Macias. Gonzalez would testify that Denise "makes trouble at the Watkins house." Given the nonspecific nature of the proffered testimony, the court would not allow the testimony. Macias was going to testify that he is a neighbor of appellant and that Denise in general makes trouble and walks into the house without permission and causes supposedly horrible ordeals. The court stated that without more specifics, the testimony would not be allowed. Counsel argued that Macias was the only truly independent witness to see Denises conduct, and the testimony had extensive probative value for the jury, even though appellants conduct would also be described. The court stated that it needed more specifics, since "making trouble" could mean playing loud music or other things that do not relate to section 1103. Counsel offered to get a more specific statement from Macias. The court reiterated that the evidence was excluded without more specifics, and defense counsel requested permission to have Macias on call and to have a section 402 hearing before he takes the stand. The court agreed to reconsider if specific testimony was proffered.
The court next addressed an incident on May 14, 2000, when Denise made harassing telephone calls and an incident on October 13, 1998, when Denise committed a domestic battery on appellant. The court excluded the evidence on section 352 grounds as cumulative. Counsel argued that Denise made 30 to 40 phone calls on May 14 and told appellants girlfriend, a Ms. Rivera, that she would kill appellant and Rivera. Counsel argued that the jury should be aware of the type of character Denise had in order to judge her credibility and bias. The prosecution pointed out that the police report stated that neither appellant nor his girlfriend desired prosecution because Denise had made similar threats in the past, and the matter went no further. Subsequent to the calls, appellant was convicted of an act of violence against Denise. The incident was also remote and not particularly probative. The court reiterated its exclusion of the May 14, 2000 incident and the October 1998 incident.
The court stated that everything discussed in chambers had been covered, and both counsel agreed. The discussion turned to the evidence of appellants medical records regarding his hand injury inflicted by Denise. The prosecutor stipulated to admission of the diagnosis and the X-rays. Defense counsel said he would have a witness to interpret the X-rays.
The trial began, and during direct examination of Denise, defense counsel called for an evidentiary hearing on "the September incident" and on Denises drug use, since Denise had opened the door on the issue by mentioning her past drug use. The court replied that counsels opening statement had made the relevance of the September incident even more dubious by indicating "basically it was the boyfriend and the defendant who were about to engage in a scuffle and then it sounded more like along the lines of an accident that [Denise] comes between them and is struck so I wasnt sure. There still hasnt been any foundation to the 1103(a)." Defense counsel stated that the incident went "to the fact when she went to the residence and wasnt supposed to be there." The prosecutor interjected that this was not criminal misconduct, and the order of protection was against appellant. The court reiterated that without foundation, the September 15 incident was not relevant. When pressed by the court to state what Denise did on March 21, 2002, that demonstrated conformity with section 1103 conduct, counsel replied that it was the act of bringing a boyfriend over to antagonize appellant. In the September 15, 2001 incident, Denise brought a boyfriend over, and the boyfriend and appellant got into a fight and the boyfriend had knives and attempted to stab appellant. Counsel also reiterated that he wished to bring in the prior violence between appellant and Denise where she set him up "and the X-rays and everything else."
Defense counsel appeared to be confusing the occurrences on September 15, 2001, and those of May 10, 2001 (the Noblet incident).
The court again said there had been no foundation laid. There had been nothing so far to indicate any act by the victim to show that she was acting in conformity with prior acts. If there were testimony from appellant or someone else that Denise did something, the section 1103 evidence would be appropriate, but there had so far been no evidence that the victim did any act that was in conformity with prior bad acts. Counsel argued that the act was coming over with a boyfriend. The court said counsel had made the same argument several times, and the court did not see the relevancy and it had made its ruling.
Later on, during direct examination of Officer Pickering, defense counsel again requested an evidentiary hearing. He stated he "would like to get into with Officer Pickering the fact in the report it indicates he has been there on 1, 2, 3, 4, 5 previous occasions; that he told the victim, `What are you doing going over there?; that the victim was probably under the influence. The victim has a long history of methamphetamine use and because of her injuries he was unable to determine whether or not she was under the influence at the time also and, of course, going into what the suspect, Mr. Cruz, told her what the victim had said to him. [¶] I believe all those become relevant as to the intent of the victim, the bias of the victim and also the victims knowledge actually. It actually contradicts what she says they were, buddy/buddy, . . ." Counsel said that Denise once told appellant she would see him dead in the ground before appellant got to see his children again. Counsel then stated he also wished to go into statements appellant made to Officer Pickering that he had not hit or grabbed Denise and that he tried to show Officer Pickering the marks on his neck. Counsel acknowledged that Officer Pickering had already testified to the latter.
The court inquired of counsel why the remarks by appellant were not hearsay. Counsel did not answer this question but stated that his questions posed to Officer Pickering would also be used as an impeachment of Denise.
The court then inquired what information about Denises drug use appellant wanted in. Counsel replied it was Officer Pickerings statement in his report that he could not tell whether Denise was on drugs because of her injuries. Counsel also reiterated that the officer (in his report) referred to five prior police reports regarding Denise and appellant.
The court confirmed with counsel that the prior instances Officer Pickering mentioned discussed several of the instances the parties had already covered. Counsel stated he would not go into details of the incidents but would like to show that Denise was not the victim in some of the prior incidents. The court stated that this was section 1103 evidence and there was still no evidence that Denise had "done anything" on March 21, 2002.
The court ruled that appellants statements to the officer were inadmissible hearsay, that the history of drug abuse was not relevant, but that the drug-usage history as it related to Officer Pickerings observation or failure to observe drug usage on the day of the incident was relevant, and that the prior instances were not admissible under section 1103 and were not relevant.
Counsel did not accept this ruling, but rather argued that he could get the evidence of the five prior contacts in as the character and custom of the two individuals interacting. The court pointed out that the conduct of the victim was to just be there with another man. Counsel said that the conduct of the victim was also to lie, and he had a witness that would show Denise lied about the incident at the church. The court noted that appellant had pleaded guilty in that case. The court stated that there might be evidence of the victims conduct that would serve as a foundation if defendant testifies and says Denise "did X, Y and Z." Only then would the testimony counsel wished to elicit from Officer Pickering about prior instances be admissible.
After the court admonished Officer Pickering regarding his further testimony, counsel again requested that the information be admitted, this time under section 1102 as reputation evidence. The court reminded counsel that section 1102 applied to reputation of the defendant. Counsel then said it could come in under section 1103, subdivision (b) "reputation." The court disagreed and said that its ruling would stand.
At the close of the prosecution case, defense counsel said appellant would take the stand and testify about the incident where Denise broke his hand. Counsel indicated he had the X-rays. Appellant also wished to testify about the incident with Mr. Noblet. The court stated it had already ruled on these incidents, but counsel disagreed. When the prosecutor objected, the court stated, "Were done arguing about it" and confirmed that appellant would testify. After the lunch break, defense counsel announced that, "[b]ased on the rulings of the court and the evidence as it stands, the defendant has elected not to put on any evidence." Appellant confirmed on the record that this was true.
B. Appellants Argument
Appellant contends that, because he told the police that Denise was the aggressor, and because Denises testimony at trial differed greatly from her prior accusations in the incident, Denises character and credibility were crucial factors. The incidents that appellant wished to introduce pursuant to section 1103, subdivision (a)(1) were relevant to show that, on March 21, 2002, Denise was the aggressor and was likely intoxicated. The key witness to Denises prior intoxicated and aggressive behaviors, according to appellant, was Officer Pickering. Appellant claims that the courts ruling that Denises conduct on March 21, 2002, provided insufficient foundation to allow the introduction of her prior aggressive conduct towards appellant constituted prejudicial error because the evidence was highly relevant. Also, exclusion of this evidence was tantamount to a denial of a defense under the Sixth and Fourteenth Amendments. According to appellant, nothing in section 1103 or the cases interpreting that statute requires the foundation the court discussed. Moreover, he argues, there was ample foundation of Denises aggressive actions against appellant on March 21, 2002. First, Amy Galindo said she saw appellant with scratches on his neck, and he told Galindo he had a fight with a guy. Second, when Officer Pickering was flagged down by appellant, appellant told him that his girlfriend slapped him and that his neck had been scratched where she grabbed him. This testimony by Galindo and Officer Pickering, appellant contends, was sufficient foundation.
C. Relevant Authority
Section 1103, subdivision (a) provides: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1)."
Section 1103 authorizes the defense in a criminal case to offer evidence of the victims character to prove his or her conduct at the time of the charged crime. Consequently, in a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor. (People v. Rowland (1968) 262 Cal.App.2d 790, 797; People v. Smith (1967) 249 Cal.App.2d 395, 404-405.) "There are different traits of character, and the evidence must relate to the particular trait involved." (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 38, p. 371.)
"It is well settled that the trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal `unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. [Citations.]" (People v. Wade (1988) 44 Cal.3d 975, 992.)
D. Evidence Properly Excluded
In the instant case, the trial court was clearly awaiting some evidence that Denise had acted with aggression on March 21, 2002, in order to admit the prior incidents of her alleged character traits for violence and aggression. Defense counsel indicated that appellant would testify, and the trial court reserved its ruling several times until such time as appellant testified to Denises behavior on March 21, 2002, and made his claim of self-defense. In his opening argument, counsel stated that appellant would testify that Denises boyfriend attacked him and that Denise put herself in between her friend and appellant, and that appellant was defending himself and his property. This testimony never materialized.
It is true that section 1103 itself does not specifically state that a foundation must be laid. In the cases interpreting that statute, however, the defendants have invariably testified to a version of events wherein the alleged victim was the aggressor. (See, e.g., People v. Gonzales (1967) 66 Cal.2d 482, 490-491, 499-500 [murder defendants testified that aggression against three men (one of whom died) was in self-defense, but court ruled evidence regarding one victims aggressive acts was too remote]; People v. Blanco (1992) 10 Cal.App.4th 1167, 1170 [defendant testified he fired at victim in self-defense when victim tried to rob him and proffered evidence victim was violent man with a history of accosting people]; People v. Shoemaker (1982) 135 Cal.App.3d 442, 445, 448 [subsequent aggressive acts of victim allowed into evidence when defendant testified he stabbed victim in self-defense]; People v. Castain (1981) 122 Cal.App.3d 138, 141-144 [evidence of police officers excessive force against two men erroneously excluded when defendant charged with battery on the officer testified officer assaulted him and used excessive force]; People v. Rowland, supra, 262 Cal.App.2d at pp. 794-797 [defendant testified shooting victim made homosexual advance and proffered testimony victim was an aggressive homosexual]; People v. Smith, supra, 249 Cal.App.2d at pp. 397, 399-401 [defendant who testified he shot victim in self-defense allowed to testify about victims prior violent acts].) Here, there was no such testimony. The only evidence of a possible attack on appellant was Galindos testimony that she saw scratches across appellants neck and appellants statement to Officer Pickering that his girlfriend had slapped him and that his neck had been scratched where he had been grabbed. Officer Pickering said he saw no injuries on appellants neck. The evidence of these two statements was insufficient to establish a claim of self-defense so as to justify admission of the prior incidents.
We disagree with appellant that the exclusion of the proffered evidence infringed upon his constitutional right to present a defense. As noted, the trial court stated in essence that it would admit the evidence when it became relevant to appellants claim of self-defense. Appellant failed to make that claim. The evidence of prior incidents that he proffered, in and of itself, would not have made that claim for him, since there was no nexus between the prior incidents and that which occurred on March 21, 2002.
As noted, during opening argument the defense claimed Denise had been hurt by meddling in a fight between appellant and Morales. During closing argument, defense counsel attempted to raise doubt that appellant had hit Denise. He pointed to absence of testimony by Denise that appellant had hit her, and Galindos denial that she told Officer Pickering she saw appellant hit Denise. Counsel discussed the effects of crashing from methamphetamine and observed that a period of time elapsed between appellants 911 call and the time when Denise "[came] up with these injuries" and called 911. Counsel pointed out that appellant said to Officer Pickering that he was scratched but that he did not hit Denise. In general, counsel attacked Denises credibility and stated that appellant was clearly not guilty if his guilt depended on Denises credibility.
We conclude the trial court properly excluded evidence of prior incidents of allegedly aggressive behavior by Denise under section 1103. We also find no abuse of discretion in exclusion of those incidents the trial court did not admit based on relevancy grounds or because they were more prejudicial than probative.
II. Limitation of Cross-examination of Victim and Officer Pickering Regarding Drug Use
A. Proceedings Below
In response to a request by the People, the court indicated prior to trial that it leaned toward having the witnesses instructed not to make reference to Denises drug usage. Defense counsel stated, "thats fine." He went on to say, however, that there were witnesses who had observed Denise under the influence of drugs, and that her behavior under the influence comported with her behavior on the day of the charged incident. When under the influence of drugs or alcohol, Denise became hot-headed and irascible.
The court said it would revisit the issue as it related to specific instances but that, in general, the witnesses should not mention Denises drug use. The prosecutor pointed out that she had not been provided with any witness statements about their personal knowledge of Denises drug usage on March 21, 2002. Moreover, she had not been provided with any indications of the witnesses expertise and ability to recognize drug usage. The court reiterated that it would address each specific incident when the issue arose.
During direct examination of Denise, defense counsel asked for an evidentiary hearing because Denise had opened the door to her past drug usage. Denise had explained to the jury that when she got in the truck, appellant "stood there because we were talking to each other and sometimes hes sarcastic. I dont catch up. . . . I dont see it. Something was said like that because he does push it in my face because I was on drugs a while back." The prosecutor then asked Denise when she had last used drugs. As Denise was about to reply, defense counsel asked for a sidebar. Defense counsel stated that the door was opened for him to inquire of Officer Pickering about Denises drug use. The court replied that they would address that issue when Officer Pickering was called.
The prosecutor went on to ask Denise if she was in recovery and whether her drug use was in the past. Denise answered in the affirmative to both questions. She stated she was neither proud nor ashamed of her past drug use. She said she had to take a drug test once a week for her job, that she had not used drugs on March 21, 2002, and that there was nothing preventing her from having a clear mind when walking from Galindos house to the truck.
When the prosecutor ended her direct examination of Denise, defense counsel announced that he would like to question Denise about the September 15, 2001 incident and about her drug use. The court stated that there was no foundation with regard to the drug use and asked for an offer of proof. Counsel stated that "[t]he offer of proof is why shes passing out. She indicated that she goes into this pass-out stage and whether or not you can attribute that to drug use —" The court stated, "I think thats been opened with regard to does the witness relate the passing out to drug usage." Defense counsel then stated that he wished to put on the record that he had interviewed Denise for the last 15 minutes, and if he opened the door she would specifically indicate that it was appellant who turned her onto drugs. Counsel asked appellant on the record if he wished counsel to inquire on the drug usage, and appellant said "[i]f its going to incriminate me, no." Counsel then said he would probably not open that door.
Later, the prosecutor sought to clarify with the court the kind of information that could be elicited from Officer Pickering about Denises drug use. The prosecutor noted that Officer Pickering described Denises blacking out and said he saw no sign of stimulant use, which was Denises drug of choice. The prosecutor stated that she did not wish to be barred from asking Officer Pickering what Denises drug of choice was, if made necessary by testimony elicited on defense cross-examination of Officer Pickering. The court stated that the prosecutor could ask whether Denises symptoms were consistent with her drug usage if necessary to rebut cross-examination.
During cross-examination of Officer Pickering, defense counsel requested another section 402 hearing. He stated he "would like to get into with Officer Pickering the fact in the report it indicates he has been there on 1, 2, 3, 4, 5 previous occasions; that he told the victim, `What are you doing going over there?; that the victim was probably under the influence. The victim has a long history of methamphetamine use and because of her injuries he was unable to determine whether or not she was under the influence at the time also and, of course, going into what the suspect, Mr. Cruz, told her what the victim had said to him." The court inquired what information about Denises drug use appellant wanted to bring in. Counsel replied it was Officer Pickerings statement in his report that he could not tell whether Denise was on drugs because of her injuries.
The court ruled that appellants statements to the officer were inadmissible hearsay, that the history of drug abuse was not relevant, but that the drug-usage history as it related to Officer Pickerings observation or failure to observe drug usage on the day of the incident was relevant.
B. Appellants Argument
Appellant claims that he was denied his constitutional right to confront and cross-examine witnesses when the trial court precluded him from questioning Denise and Officer Pickering about Denises drug use. Denises credibility was a central issue in the case, and trial counsel was prohibited from exploring her methamphetamine use and the extent to which the use affected her perceptions and memory. Appellant contends the error was prejudicial beyond a reasonable doubt.
C. Relevant Authority
The federal Constitution and the California Constitution both guarantee a criminal defendant the right to confront witnesses against him. (People v. Cudjo (1993) 6 Cal.4th 585, 622.) The guarantee does not encompass a cross-examination that is effective in whatever way and to whatever extent the defense might desire, however. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) The confrontation clause permits trial courts to impose reasonable limits on cross-examination to address concerns about harassment, confusion of the issues, interrogation that is only of marginal relevance, and other issues. (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3.) The right of confrontation is violated when a reasonable jury might have formed a significantly different impression of the witnesss credibility had the defendant been permitted to pursue his proposed line of questioning. (Delaware v. Van Arsdall, supra, at p. 680.)
D. No Abuse of Discretion or Constitutional Error
We disagree with appellants claim. We conclude the trial court did not abuse its discretion, and there was no constitutional error. Furthermore, even if an abuse of discretion could be found in restricting cross-examination regarding Denises drug use, appellant suffered no prejudice.
As noted, Denise herself brought out the information that she had been a drug user, and she stated she had not used on March 21, 2002. The court found no foundation existed to allow questions on cross-examination about her drug use. The court did allow counsel to ask Denise whether her passing out had anything to do with drug usage. However, counsel and appellant decided on the record that they did not wish to open the door on Denises drug use because it might incriminate appellant as the one who started Denise on drugs.
Nevertheless, counsel did ask Denise if she was at one time addicted to drugs and if she found that her passing out at times was a result of her drug addiction. Denise replied that she had the fainting spells before she began to do drugs and that they continued to occur after she stopped. Counsel asked Denise if she continued to test for drugs once a week.
As noted, before cross-examination of Officer Pickering, defense counsel asked the court if he could question Officer Pickering about his inability to determine whether Denise was on drugs. The court allowed counsel to question Officer Pickering about Denises drug history as it related to Officer Pickerings observation of or failure to observe drug usage on March 21.
During cross-examination, counsel asked Officer Pickering if he was concerned whether or not Denise was under the influence of any drug or anything else. Officer Pickering replied that it was department policy to note evidence of drug use, but in Denises case, he could not tell if she was under the influence because he was more concerned with her injuries at that point. Officer Pickering believed the hospital would ascertain if drugs or alcohol had been taken. Counsel asked if Denises passing out could be due to overdosing. Officer Pickering replied that it was possible if Denise were overdosing from a depressant, but he did not see any symptoms of that. There was no smell of alcohol and he saw no track marks. Counsel ascertained that Denise was wearing a shawl and that Officer Pickering did not check her arms. Counsel elicited that heroin could be ingested by placing it under ones tongue. When asked if an overdose of cocaine could make one pass out, Officer Pickering replied that cocaine was a stimulant and would make one more "hyper." Counsel also elicited that, because Denise was supposed to go to the hospital, Officer Pickering did not fill out the report as he normally would to indicate a subject was under the influence.
On recross-examination, counsel asked Officer Pickering if it was correct that Officer Pickering knew the victim to have a long history of methamphetamine use. Officer Pickering replied that he had heard stories and had seen Denise around houses where methamphetamine is used. He acknowledge that this was the reason he mentioned her drug use in his report. Counsel asked Officer Pickering what happened to methamphetamine users when they were coming down from a long period of using the drug. Officer Pickering described the symptoms of "crashing." These included falling asleep, passing out, dizziness, and forgetfulness. Officer Pickering stated it was similar to being under a depressant. Counsel asked if Denise could have been crashing on March 21, 2002, and Officer Pickering said it was possible, but he could not answer definitively because he had been more concerned with the injuries. Counsel explored further the effects of crashing and how people who are crashing cannot be awakened or are dizzy. He received confirmation that some of the symptoms exhibited by Denise "could have been there but she never went to the hospital."
Given counsels ability to question Officer Pickering and Denise on Denises drug usage to the degree that he wished to do so, we can perceive no abuse of discretion and no deprivation of the right of confrontation of either witness. Even if some questions regarding Denises drug usage may have been suppressed — such as Officer Pickerings description in a police report that Denise was "a doper, a druggie" — appellant was not prejudiced. Indeed, this derogatory language would reasonably have been deemed inadmissible under section 352 as more prejudicial than probative, since Denise acknowledged her use of drugs.
Therefore, considering the scope of the cross-examination defense counsel was able to achieve, appellants decision not to delve deeply into Denises drug history so as not to incriminate himself, and the unlikelihood that further information about Denises drug use would have aided in impeaching her, it is clear appellant was afforded sufficient opportunity to cross-examine Denise and Officer Pickering. Appellant was not denied his right of confrontation, and no reasonable jury would have formed a significantly different impression of Denises credibility had appellant been permitted to further explore Denises drug use.
III. Admission of Appellants Prior Act of Domestic Abuse
A. Appellants Argument
Appellant argues that the prejudicial effect of the evidence of his prior act of domestic violence outweighed any probative value it had. The prior act was inflammatory, especially because of the similarity of the prior act of a public battery to the current offense. Appellant claims it is reasonably probable that without admission of the prior domestic violence, the jury would have reached a result more favorable to him. In support of this claim, he points out that Denise did not recall all of the events of the instant offense, and she hesitated to blame appellant for her injuries. Also, Galindo testified she did not see appellant hit Denise and did not hear Denise and appellant arguing.
B. Proceedings Below
The People filed a motion in limine to admit evidence of the incident that occurred between appellant and Denise on June 14, 2001. At the pretrial evidentiary hearing, the court noted that the People wished to introduce evidence of this incident, for which appellant was on probation. The courts indicated ruling had been to admit the evidence pursuant to sections 1109, 1103, and 1101, subdivision (b). Defense counsel argued that the incident was too remote in time and had nothing to do with the current matter. The court allowed the evidence and stated it had also considered section 352.
On direct examination, the prosecution question Denise about the June 14, 2001 incident. Denise said she had gone to appellants to see one of her sons. When Denise left, appellant walked with her to a pay phone that Denise wanted to use. Appellant had questioned her about the fact that she was staying with a male friend. Denise kept denying anything was going on between her and the friend.
The prosecutor asked Denise if she told the police that day that appellant and she had been arguing about his jealousy, Denise said they both were saying things to each other, and she got dizzy, "but that was it." She was suffering from the adverse effects of asthma, the heat, and being pregnant. She was carrying her son in her arm and began to faint. Appellant went to grab her. He did so from behind and "went up with kind of a chokehold and all and thats how the police had went after him because someone had seen the wrong thing." She denied appellant had grabbed her by the throat and pushed her to the sidewalk. She sprained her knee when it hit a rock.
The prosecutor asked Denise if she had not previously told the prosecutor that appellant had grabbed her by the throat and choked her. In reply, Denise defended appellant at length and said she was confused about when appellant had grabbed her throat. She denied she had failed to tell the police she had been fainting. She acknowledged that she had been in court after the incident and had received a restraining order.
Later, the prosecutor questioned Officer Pickering about the June 14, 2001, incident. He had taken pictures of Denise on that occasion. He testified that Denise told another officer in his presence that appellant had told church employees who came out after Denise screamed for help: "Its okay. Shes my wife. Lets go home." Denise said she wanted help and was not going.
C. Relevant Authority
Section 1109, subdivision (a)(1) provides, in pertinent part, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"A trial courts exercise of its discretion under section 352 `"must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." [Citations.] [Citation.]" (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
D. Evidence Properly Admitted
We conclude the trial court did not abuse its discretion in allowing the jury to hear the evidence of appellants prior act of domestic violence. The prior act was clearly probative in that it involved a similar incident between the same two persons. The incident was not remote in time, and was not likely to confuse the issues or mislead the jury. Testimony regarding the incident consumed very little time during the testimony of Denise and Officer Pickering. The prior incident was not inflammatory and was not likely to evoke an emotional bias in the jury, since there was no evidence Denise sustained injuries as severe as in the current incident. There was evidence that appellant was prosecuted for the prior offense and served with a restraining order, which mitigates the danger that the jury would believe appellant went unpunished for the prior incident. (See People v. Falsetta (1999) 21 Cal.4th 903, 917 [listing factors to consider in admitting propensity evidence].) In sum, we conclude there was no abuse of discretion.
IV. Reading of CALJIC No. 2.50.02
A. Appellants Argument
Appellant contends that CALJIC No. 2.50.02 suggested to the jury that if they found appellant abused Denise beyond a reasonable doubt on a prior occasion the limitations on the use of the prior-incident evidence did not apply. Appellant acknowledges that his argument appears to be defeated by the recent California Supreme Court decision in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), which determined that the 1999 version of CALJIC No. 2.50.01 (containing the same language as CALJIC No. 2.50.02) was not constitutionally infirm. (Reliford, at p. 1009.) Appellant asserts that Reliford was wrongly decided.
The trial court read CALJIC No. 2.50.02 as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence other than that charged in the case. [¶] `Domestic violence means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship. [¶] `Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. [¶] 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 [another] offense[s] 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. [¶] 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[s]. The weight and significance, if any, are for you to decide." (CALJIC No. 2.50.02 (2000 rev.) (6th ed. 1996).)
Appellant states that due process demands that each element of a charged offense be proved beyond a reasonable doubt. He claims that the fourth paragraph of the instruction (beginning with "If you find . . .") informs the jury that it can infer that appellant committed the charged crimes solely based on his prior offense of domestic violence. The fifth paragraph (beginning with "However, if you find by a preponderance . . .") added in the 1999 revision of the instruction, merely provides an exception to the general rule of the fourth paragraph. Appellant argues that the members of the jury could have understood this to mean that, if they found appellant committed a prior crime or crimes involving domestic violence by a standard greater than a preponderance (such as beyond a reasonable doubt), then they would have disregarded the caveat contained in the second clause of that sentence. Hence, they would have believed that, because they found appellant had committed the prior acts, that finding was sufficient by itself to prove he committed the current crime. Therefore, just as in the pre-1999 version of CALJIC No. 2.50.02, the jury could find appellant committed the charged offenses based solely on prior domestic abuse that was proved beyond a reasonable doubt.
As acknowledged by appellant, the California Supreme Court recently rejected these arguments in a case involving CALJIC No. 2.50.01, an instruction related to evidence of prior sex offenses. CALJIC No. 2.50.01 contains language that is virtually identical to the language at issue in CALJIC No. 2.50.02. (Reliford, supra, 29 Cal.4th at p. 1009.) One of Relifords arguments against use of CALJIC No. 2.50.01 was the same argument made by appellant, i.e., that "the instruction `implies by way of a negative pregnant that prior sex offenses proved beyond a reasonable doubt are indeed sufficient to prove the present offense beyond a reasonable doubt." (Reliford, at p. 1015.) In rejecting this argument, the Supreme Court stated, "no juror could reasonably interpret the instructions to authorize conviction of a charged offense based solely on proof of an uncharged [prior] offense." (Ibid.) The Supreme Court explained, "It is not possible, for example, to find each element of the charged crimes, as the jury was instructed to do before returning a guilty verdict, based solely on the [prior] offense. Nor is it possible to find a union or joint operation of act or conduct and the requisite intent for each charged crime, as the jury was also instructed to do. Hence, no reasonable jury could have been misled in this regard." (Ibid.) Reliford also rejected the notion that CALJIC No. 2.50.01 might be interpreted by jurors to authorize a conviction based upon the preponderance of the evidence standard. (Reliford, at p. 1016.)
The pertinent parts of CALJIC No. 2.50.01, as read in Reliford, are as follows: "`Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] . . . [¶] If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. 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. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (Reliford, supra, 29 Cal.4th at pp. 1011-1012.)
An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957.) Appellants jury was instructed that it should read all of the instructions as a whole and each in light of all other instructions. (CALJIC No. 1.01.) The other instructions included the elements of the charged offenses, a lesser included offense, and the great bodily injury allegation. (CALJIC Nos. 9.35, 9.02, 9.00, 17.20.) The court told the jury that, if it was not satisfied beyond a reasonable doubt that appellant was guilty of the crime charged, it might convict him of any lesser crime if it was convinced beyond a reasonable doubt that the defendant was guilty of the lesser crime. (CALJIC No. 17.10.) Finally, the jury was instructed that appellant was presumed innocent and the prosecution had the burden of proving him guilty beyond a reasonable doubt. (CALJIC No. 2.90.)
Reading the instructions as a whole, it is not reasonably likely that the jury would have been misled into believing it could dispense with all of the above-mentioned instructions and leap from a finding that appellant committed the prior acts of domestic violence (by a standard higher than a preponderance) to the conclusion that he had committed the current offense. To so interpret the language appellant attacks would be to ignore the clear meaning of the numerous instructions cited above, as well as the specific admonition in CALJIC No. 2.50.02 that prior acts of domestic violence were insufficient alone to prove beyond a reasonable doubt that appellant committed the charged offenses. We presume that the jury followed the instructions given, not that it ignored them. (See, e.g., People v. Horton (1995) 11 Cal.4th 1068, 1121.)
As Chief Justice Rehnquist has observed: "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." (Boyde v. California (1990) 494 U.S. 370, 380-381.) Appellant is engaging in a "torturous analysis" that no reasonable juror would undertake (People v. Warren (1988) 45 Cal.3d 471, 488) rather than determining the reasonably likely interpretation of the instruction by reasonable jurors. (People v. Speegle (1997) 53 Cal.App.4th 1405, 1413.)
We reject appellants argument and conclude that CALJIC No. 2.50.02 as given did not result in appellant being convicted of the current charge based solely on the prior domestic violence incident. In accordance with Reliford, supra, 29 Cal.4th 1007, we hold that the trial court in this case did not err by instructing the jury with CALJIC No. 2.50.02.
V. Reading of CALJIC No. 17.41.1
Appellant argues that the giving of CALJIC No. 17.41.1 was error, and that the California Supreme Court in People v. Engelman (2002) 28 Cal.4th 436 (Engelman) was incorrect as to the federal constitutionality of the instruction. Appellant argues that the instruction generally chills jury deliberations, deprives jurors of their First Amendment rights, and denies a defendant the right to a jury trial as guaranteed by the Sixth and Fourteenth Amendments. Appellant also states that jurors have a right to nullify, and Engelman did not address the issue of CALJIC No. 17.41.1 as an anti-nullification instruction.
The trial court read CALJIC No. 17.41.1 as follows: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. [¶] Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of that situation."
In Engelman, supra, 28 Cal.4th 436, the court held that CALJIC No. 17.41.1 did not infringe upon the defendants federal or state constitutional right to trial by jury, the state constitutional right to a unanimous verdict, or the right to due process of law. (Engelman, at pp. 439-440, 442-444.) In Engelman, as in the instant case, the jury did not indicate in any way that a problem had developed during deliberations. (Id. at p. 441.)
In Engelman, the California Supreme Court was not persuaded that CALJIC No. 17.41.1 constituted a violation of a defendants federal or state constitutional rights or other error under state law simply because it might cause a juror to unnecessarily reveal the content of deliberations in the belief that misconduct had occurred. (Engelman, supra, 28 Cal.4th at p. 444.) The court also pointed out that other instructions fully informed the jury of the duty to reach a unanimous verdict. (Ibid.)
The Engelman court was concerned, however, that CALJIC No. 17.41.1 had the potential to create an unnecessary risk of intrusion on the deliberative process. (Engelman, supra, 28 Cal.4th at pp. 446-447.) Therefore, it used its supervisory power to direct that the instruction not be given in future trials. (Id. at p. 449.) Because there was no evidence that the instruction had affected the jury deliberations in Engelmans trial, the Supreme Court upheld the Court of Appeals decision affirming the judgment of conviction. (Id. at pp. 439-440, 442-445.)
With respect to nullification, it is axiomatic that the jury has no right to disregard the law. The California Supreme Court reiterated in a case preceding Engelman that "`[c]hampioning a jurys refusal to apply the law as instructed is inconsistent with the very notion of the rule of law." (People v. Williams (2001) 25 Cal.4th 441, 462.) And, "[j]ury nullification is contrary to our ideal of equal justice for all and permits both the prosecutions case and the defendants fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." (Id. at p. 463.)
Like the California Supreme Court in Engelman, we are not persuaded by appellants constitutional arguments. In the instant case, there was no evidence of jury deadlock, juror intimidation, or of a juror refusing to follow the law. There was no indication the use of CALJIC No. 17.41.1 affected the verdict in any way. Appellants arguments based on the giving of this instruction are without merit.
VI. Cumulative Error
Appellant contends that the total effect of the errors combined to prejudice his right to a fair trial, even if no single error was individually prejudicial. He claims that the evidentiary and instructional errors worked together to deny appellant a defense and due process. According to appellant, had the trial court not committed the errors he names, he easily could have been acquitted, and reversal is required.
Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J. and DOI TODD, J.