Opinion
2d Crim. No. B227670 Super. Ct. No. 20090322491
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK RAYMOND EASLEY, Defendant and Appellant.
Law Offices of Edelberg & Espina, Sherwin C. Edelberg and Claire N. Espina for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang, Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Mark Raymond Easley appeals the judgment following his conviction for corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury found to be true an allegation Easley inflicted great bodily injury in the commission of both offenses. (§ 12022.7, subd. (e).) Easley admitted a prior section 273.5, subdivision (a) conviction. (§ 273, subd. (e).) He was sentenced to 10 years in prison, consisting of five years for inflicting corporal injury to a cohabitant plus five years for the great bodily injury enhancement. The sentences for assault with a deadly weapon and bodily injury enhancement as to the assault offense were stayed. Easley contends that the trial court abused its discretion in admitting evidence of prior acts of domestic violence and that he received ineffective assistance of counsel. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Jacqueline S. and Easley had a 16-year relationship during which they periodically cohabitated, and had a son together. After having no romantic contact for a few years, Jacqueline and Easley renewed their relationship several weeks before the charged offenses but remained living separately approximately two blocks apart.
During an argument a few weeks before the charged offenses, Easley broke a window on Jacqueline's car, and chased her with a piece of wood, causing her to crash her car in an attempt to escape. She reported the incident to the police. Jacqueline rented a car while her car was being repaired. She noticed that the buttons for the stereo in the rental car were missing. Easley admitted taking the buttons.
On the morning of June 15, 2009, Jacqueline drove to Easley's home to retrieve the stereo buttons. Their son had stayed with Easley the preceding night and Jacqueline brought a lunch for him to take to school that day. She arrived at Easley's residence, delivered the lunch, and left to do a chore while Easley drove their son to school. Later, Jacqueline returned to Easley's home and knocked on the door. When no one answered, she went to the rear of the house and entered through a sliding glass door to retrieve the stereo buttons. Frank Cobb, a friend of both Jacqueline and Easley, saw them talking outside the house before she entered.
Easley and Jacqueline went into the garage to retrieve the stereo buttons. When Easley could not find them, they argued. Jacqueline opened some drawers in the garage and dumped the contents on the floor. Easley kicked Jacqueline in the stomach and Jacqueline threatened to stab Easley with a small knife attached to her keychain. Easley grabbed the keys and thrust them into her eye.
Bleeding profusely, Jacqueline fell to the ground. She crawled out of the garage and back into the house. Frank Cobb came over and looked through the sliding glass door. He heard Jacqueline screaming and saw Easley appear to be holding her on the floor. Cobb demanded entry into the house and Easley let him in. Cobb saw Jacqueline's swollen and bloody eye. Jacqueline told Cobb that Easley had stabbed her in the eye. Easley replied that he had stabbed her because she came at him with a knife.
Easley took Jacqueline to the hospital. She did not reveal what had happened to hospital staff because she feared Easley, who remained at her side throughout the treatment process. After being treated, Jacqueline was released from the hospital and demanded that Easley take her to an ophthalmologist across the street. Easley did so. The ophthalmologist told her that a substance dripping from her nose was brain fluid and instructed her to return to the hospital emergency room. Easley refused and Jacqueline drove home where she called the police. The police officer who responded saw that the eye was swollen shut and that she had a laceration on her eyelid. The officer did not believe she was under the influence of alcohol or drugs.
Jacqueline's adult daughter drove her back to the hospital where doctors concluded that a key had punctured her sinus cavity and entered the brain. The wound also severed a nerve. Jacqueline spent five days at the hospital and suffered headaches and numbness in her hand thereafter.
At trial, the People presented evidence of four prior acts of domestic violence by Easley against Jacqueline that occurred in early 2003, as well as evidence referring to other domestic violence during their relationship.
Easley testified on his own behalf. As to prior domestic violence, he admitted injuring Jacqueline's ear when grabbing a telephone from her, and admitted going to jail for the incident. Otherwise, he denied the prior domestic violence. He also denied breaking a window of Jacqueline's car and chasing her with a piece of wood a few weeks before the charged offenses. As to the charged offenses, Easley testified that Jacqueline barged into his house and garage and threw things at him in the garage. He testified that Jacqueline injured her eye when she fell backwards over a motorcycle.
DISCUSSION
No Abuse of Discretion in Admission of Prior Domestic Violence Evidence
Easley contends the trial court abused its discretion in admitting evidence of prior acts of domestic violence. (Evid. Code, §§ 1109, 352.) Where domestic violence is charged, evidence of a defendant's commission of other acts of domestic violence is admissible to prove his or her propensity to commit the present offense. (Id. at § 1109.) The trial court, however, has discretion to exclude such evidence where its probative value is substantially outweighed by a danger of undue prejudice, confusing the issues, or misleading the jury. (Id. at § 352; see, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Evidence tending to evoke an emotional bias against a party, with little relevance to the issues is prejudicial under Evidence Code section 352. (People v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.)
In ruling on admission of evidence of prior domestic abuse, trial courts should weigh factors such as the nature and relevance of the prior acts, their similarity to the charged offense, whether the prior acts were more inflammatory than the charged offenses, the remoteness of the prior acts, the likelihood of confusing, misleading, or prejudicing the jury, the availability of less prejudicial alternatives to admission, and whether the defendant was convicted of the prior acts. (People v. Falsetta (1999) 21 Cal.4th 903, 917; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Evidence Code section 1109 reflects the Legislature's determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact. (People v. Trujillo Garcia (2001) 89 Cal.App.4th 1321, 1335.)
A trial court's ruling will be upheld unless the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) In this case, the trial court heard argument regarding most of the prior domestic violence evidence in a pretrial motion and the record as a whole reflects that the court was aware of and performed the Evidence Code section 352 balancing requirement. (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Although the court did not expressly reference its balancing assessment, the law does not require that it do so. (Ibid.) We conclude there was no abuse of discretion.
Here, evidence of four acts of domestic violence committed in 2003 was admitted pursuant to a pretrial motion by the prosecution. Jacqueline testified regarding these incidents which occurred in February and March 2003. Jacqueline testified that Easley cut her ear during one incident, and that he punched her, dragged her by her ear, knocked a tooth out, and kicked her in the back. The incidents were investigated by the police and Easley suffered a criminal conviction arising from one of the incidents. Jacqueline also testified briefly regarding other incidents of domestic violence apart from the four incidents covered by the prosecution's pretrial motion.
Easley argues that all of this evidence should have been excluded. He argues that the prior incidents were remote in time, and that evidence of an excessive number of prior acts was admitted. In particular, he argues that the prior incidents were not carefully delineated and became intertwined with evidence of the charged offense in a manner likely to confuse the jury and distract the jury from the charged offense. Easley's argument is not persuasive.
The prior domestic violence evidence was relevant and probative because it involved the same person as the current offense, none of the incidents were remote in time, and all incidents were similar to each other and the charged offense. Also, none of the prior incidents were more inflammatory than the charged offense, and involved similar physical violence by Easley against Jacqueline. The prior and charged incidents show a pattern of domestic violence, which is precisely what the Legislature was concerned with in enacting Evidence Code section 1109. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.)
Moreover, the record shows no likelihood that the jury was confused or misled by the evidence. There was a clear delineation between the prior incidents and the incident upon which the current charges were based, and the jury was instructed with CALCRIM No. 375 regarding the evaluation of evidence of the prior acts to avoid against the possibility of undue prejudice.
Easley also contends that, regardless of the admissibility of the prior domestic violence evidence, the cumulative effect of the evidence violated his right to due process and resulted in an unfair trial. Because we conclude there was no error, necessarily there was no cumulative error. Also, as Easley concedes, the constitutionality of Evidence Code section 1109 has been upheld in several cases. (See People v. Jennings (2000) 81 Cal.App.4th 1301 [citing cases upholding constitutionality].)
No Ineffective Assistance by Counsel
Easley contends he received ineffective assistance from trial counsel in several respects. We disagree.
To establish a claim of inadequate assistance of counsel, a defendant must establish that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that he or she was prejudiced by the deficient representation. (People v. Vines (2011) 51 Cal.4th 830, 875-876; Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice requires a reasonable probability that the defendant would have received a more favorable result without counsel's deficiency. (Vines, at pp. 875-876; Strickland, at p. 694.) In addition, we will reverse a conviction due to inadequate representation only if the record affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) We defer to counsel's reasonable tactical decisions and presume that his or her conduct falls within the wide range of reasonable professional assistance. (People v. Hinton (2006) 37 Cal.4th 839, 876.)
First, Easley argues that counsel's performance was deficient because he did not subpoena Linda Duvose as a witness. Duvose was on the defense witness list but was not subpoenaed, and did not testify. There is no showing, however, that the decision not to call her as a witness was anything other than a reasonable tactical decision. Defense counsel represented to the court that Duvose would testify that she had seen Jacqueline "strung out" on heroin some time during 2009. Such testimony would have had limited relevance to Jacqueline's condition at the time of the charged offenses. In addition, at a hearing outside the presence of the jury, the prosecutor represented to the court that Easley had telephoned Duvose on the eve of trial and offered her a bribe to testify that Jacqueline was a heroin user. Counsel reasonably may have concluded that putting Duvose on the stand would have been risky and potentially detrimental to the defense.
Second, Easley argues that counsel was deficient because he failed to cross-examine Frank Cobb to explore whether the dismissal of criminal charges against Cobb nine months earlier was a quid pro quo for his testimony in the instant case. Counsel stated that he forgot to ask the question and made no attempt to recall Cobb to obtain the testimony. Although forgetting to ask a question cannot be construed as a tactical decision, there was no corroborating evidence and trial counsel reasonably could have concluded that Cobb would have denied making such an agreement. In fact, as shown by the preliminary hearing transcript, Cobb gave a statement to police consistent with his trial testimony before the dismissal of any criminal charges against him.
Third, Easley argues that counsel was deficient because he declined an offer of a continuance to investigate evidence of prior acts of domestic violence. The record shows that, although the defense received certain reports and photographs of the prior domestic violence on the eve of trial, other evidence of Easley's past violence against Jacqueline had been disclosed to the defense during discovery. The record as a whole indicates that counsel had ample opportunity to investigate the prior domestic violence allegations in preparation for trial. In addition, an important part of Easley's defense was the existence of a history of past violence by both Jacqueline and Easley.
Fourth, Easley argues that counsel was deficient because he failed to object to admission of evidence of prior domestic violence in addition to the four incidents described in the prosecution's trial brief and motion, or to ensure that such evidence was presented in a manner to be distinguishable from evidence of charged offenses. The record reveals that counsel did not interpose many objections, but the issue of admissibility of prior domestic violence had been determined by the trial court prior to trial and, of course, is specifically authorized by Evidence Code section 1109.
Fifth, Easley argues that counsel was deficient because he failed to request a bifurcation of trial to avoid presentation of evidence of Easley's prior conviction to the jury. In fact, Easley's admission of the prior conviction was bifurcated, and evidence of a prior conviction is admissible at trial. (See People v. Wesson (2006) 138 Cal.App.4th 959, 967-970.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Jeff Bennett, Judge
Superior Court County of Ventura
Law Offices of Edelberg & Espina, Sherwin C. Edelberg and Claire N. Espina for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang, Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.