Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA040903, Carol Koppel, Judge. Affirmed.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Fernando Fierro guilty of one count of assault with a deadly weapon, a knife, and one count of corporal injury to a spouse or cohabitant. Over defendant’s objection, the trial court admitted evidence that defendant had committed two prior acts of domestic violence against other women. Defendant now contends that the court abused its discretion in admitting this evidence. We hold that the court did not abuse its discretion by admitting the evidence, and therefore we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On January 6, 2008, Lakeisha Cochran was at her apartment with her baby and boyfriend, defendant, with whom she lived. She and defendant had a disagreement. Cochran called her mother, Monica Cummings, and asked her to come over. Cochran left with her mother and baby. They drove to a gas station. Cochran’s neck was bleeding, and the wound left a scar.
While at the gas station, Cochran spoke to Deputy Scott Good. He noticed two puncture wounds on Cochran’s neck. Cochran said her boyfriend stabbed her. The deputy reported the crime along with a description of Cochran’s boyfriend. Defendant was detained, and a small knife was found in his pocket. Cochran identified defendant at a field show-up.
Later, Cochran gave a statement to Deputy Good. She said that two days before, defendant drove her to the desert to talk about their relationship. When she refused to talk about it, he pulled her out of the car by her hair, and knocked her to the ground and slammed her head against it. Two days later, January 6, she and defendant argued at a grocery store. They went home, where they continued to argue. Frightened, Cochran called her mother and ran upstairs. Defendant followed her and grabbed her by the hair and stabbed her neck. She did not say a cat scratched her.
After the incident, Deputy Sheriff Randy Megardly, the investigating officer, spoke to Cochran over the telephone. Cochran repeated that she and defendant fought and he stabbed her in the neck with a knife. She wanted to go ahead with prosecuting defendant, but she was afraid of him and of retaliation. Deputy Megardly has investigated domestic violence cases and has approximately 72 hours of training in domestic violence. He often deals with recanting victims, and, in his own investigations, approximately 55 to 65 percent of victims recanted. Approximately 69 to 75 percent of victims go back to the person who assaulted them.
On January 7, 2008, Officer Richard Podratz was at the courthouse. He saw Cochran, whom he knew from the time she worked at the prison. When he asked her what she was doing there, she said she’d gotten into an argument with her boyfriend, after which she called her mother. Defendant stabbed her in the neck. She said she wasn’t sure if she was going to testify.
Defendant’s former girlfriend, Lucerio Garcia, testified that he once hit her in the head with a barbeque tool and he once forced her to go with him after they had broken up. In a separate matter, in 2001, defendant pled guilty to inflicting corporal injury on a spouse or cohabitant, Audra R.
At trial, Cochran recanted. She testified that defendant was still her boyfriend and she loved him. She denied that she had a physical altercation with him. Her scratch marks were from a neighbor’s cat; defendant never stabbed her with a knife. She could not recall telling deputies that she and defendant argued at a grocery store and that the fight continued when they got home, turning physical and culminating with him stabbing her neck with a paring knife. She did not remember telling deputies that the day before defendant stabbed her, he took her to the desert, where he pulled her out of the car and slammed her head into the ground. She did not tell a detective she feared retaliation from defendant if she testified.
II. Procedural background.
Trial was by jury. On May 22, 2008, the jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)). The jury found true a personal weapon use allegation (§ 12022, subd. (b)(1)). Defendant waived a jury trial on prior conviction allegations, and admitted them.
All further undesignated statutory references are to the Penal Code.
On June 20, 2008, the trial court sentenced defendant to five years for corporal injury to a cohabitant, doubled based on a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court also sentenced him to an additional year for the weapons use allegation (§ 12022, subd. (b)(1)); five years for a prior serious felony (§ 667, subd. (a)(1)); plus one additional year for a prior prison term (§ 667.5, subd. (b)). His total sentence therefore was 17 years.
The court imposed but stayed, under section 654, a four-year sentence on the assault with a deadly weapon count.
DISCUSSION
I. The trial court did not err in admitting evidence of defendant’s past acts of domestic violence.
The trial court admitted the testimony of Lucerio Garcia, defendant’s former girlfriend. She testified that defendant twice engaged in domestic violence against her. Defendant contends that the court prejudicially erred in admitting this evidence. We disagree.
Defendant states in a heading that admission of the evidence deprived him of due process and his right to a fair trial. Because defendant does not offer any argument or briefing on this issue, it is waived and we do not address it.
A. Additional facts.
During trial, the prosecutor told the trial court she wanted to admit the testimony of defendant’s former girlfriend, Lucerio Garcia. Her case was filed as a probation violation, and defendant went to prison based on the violation. Defense counsel objected, under Evidence Code section 352, to this evidence. “[T]he Garcia case is not the same as the fact situation in the present case. There’s no allegation of a knife being used. And I believe that... it just misleads the jury and confuses the issues.” The court overruled the objection. Noting that the domestic violence incident took place in the context of a burglary and kidnapping, the court prohibited reference to those words, “kidnapping” and “burglary.” The court also overruled an objection to evidence of defendant’s conviction of a section 273.5.
Garcia then testified. Defendant was once her boyfriend. While they were dating, he hit her with a wood pronged barbeque tool in the head in or about 2003. She did not report that incident to the police. They broke up a couple of months before July 7, 2003, when he called her. He wanted to come over, but she said no. He came over anyway, banging and kicking on her door. He broke into her house, grabbed her hair and dragged her out. He forced her into his car, telling her they were going to die together. Defendant kept Garcia at a house for a night, and the next day he and his father took her to a motel. Defendant had a gun. When she was able to leave, she called the police. According to the investigating officer who testified, Garcia did not mention a gun.
B. The evidence was admissible under Evidence Code section 1109.
In general, evidence of a person’s character or a trait of his or her character is inadmissible when offered to prove his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) An exception to this rule is in Evidence Code section 1109, which, in part, provides: “(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” A hearing to determine whether the evidence should be excluded under Evidence Code section 352 shall include consideration of any corroboration and remoteness in time. (Evid. Code, § 1109, subd. (d)(3).) Evidence of acts occurring more than 10 years before the charged offense is inadmissible unless admission is in the interest of justice, as determined by the trial court. (Evid. Code, § 1109, subd. (e).)
Therefore, prior acts of domestic violence may be admitted, if they are admissible under Evidence Code section 352, which gives a trial court the discretion to exclude evidence if its probative value is substantially outweighed by the probability its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, of confusing the issues or of misleading the jury. A trial court’s exercise of discretion will not be set aside unless arbitrary, capricious or patently absurd so that it results in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
In enacting Evidence Code section 1109, our Legislature found that propensity evidence was particularly relevant in the area of domestic violence “ ‘because on-going violence and abuse is the norm in [such] cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked.’ ” (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) To determine whether a trial court has abused its discretion in admitting propensity evidence under Evidence Code section 1109, we evaluate whether its probative value outweighs the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, or confuse or mislead the jury. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 [trial court did not abuse its discretion by admitting evidence of prior domestic violence committed by defendant]; see also People v. Brown (2000) 77 Cal.App.4th 1324, 1338 [same].)
In making that evaluation, there are various factors a court may weigh. For example, our California Supreme Court has considered the admissibility of propensity evidence under Evidence Code section 1108, which concerns the admissibility of prior sex offenses in sex offense cases. (People v. Falsetta (1999) 21 Cal.4th 903.) Falsetta advises that a trial court, before admitting evidence of prior sex offenses, must engage “in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.)
In People v. Cabrera (2007) 152 Cal.App.4th 695, defendant was charged with, among other things, forcible rape, kidnapping and infliction of corporal punishment, of his then girlfriend, Claudia. Defendant forced Claudia into a car, drove her to a motel in Tijuana and raped her. (Id. at p. 698.) On a second occasion, defendant forced Claudia into a car, punched her and drove to Mexico. At his trial, two of defendant’s former girlfriends testified to incidents of domestic violence defendant committed against them. Matilda testified to three incidents of abuse that happened eight to ten years before the charged offenses: First, defendant punched her in the face and arm at a restaurant and trapped her in a bathroom; second, after Matilda confronted defendant about perfume she smelled on him, defendant hit Matilda’s mouth, cutting it and causing swelling; third, after Matilda confronted him again about seeing another woman, defendant grabbed her arms and punched her leg. (Id. at p. 705.) Defendant’s other former girlfriend, Annalisa, testified that defendant assaulted her on two occasions three to four years before the charged offenses: The first time defendant became angered and hit and bit her. He took her clothes so she couldn’t leave. The second time he accused her of seeing other people. He hit her, pulled her hair and raped her. Annalisa also said that when they would quarrel, defendant would put her in her car and drive her to places she didn’t want to go. (Ibid.)
The Court of Appeal said that the evidence was probative, principally because of its cumulative nature. The testimony established a pattern of unbroken domestic abuse that continued with the current victim, Claudia. (People v. Cabrera, supra, 152 Cal.App.4th at p. 705.) The court also noted that the evidence was not unnecessarily time consuming, taking only 97 pages of the reporter’s transcript and that the prior incidents were “[i]n no sense more aggravated or inflammatory than the charged offenses.” (Id. at p. 706.)
Here, Lucerio Garcia testified about two incidents of domestic violence defendant committed against her in 2003. Once, he hit her head with a barbeque utensil. Another time he forced her into his car and drove her to another location. According to Garcia, defendant had a gun, but she did not divulge this fact to the police when she reported the incident.
Similar to the court’s finding in Cabrera, we find that this testimony was more probative than prejudicial. It too established a pattern of domestic abuse committed by defendant. The Garcia incidents were not remote in time; they took place in 2003, only about four and one-half years before the incident at issue. Garcia’s and the instant case are also not dissimilar. Garcia testified that defendant forcibly abducted her, grabbed her by her hair, and held her hostage for several days. Here, Cochran testified that two days before the charged incident, defendant forcibly took her to the desert, grabbed her by her hair and slammed her face into the ground. Two days later, he and Cochran fought again, and he stabbed her in the neck. Also, the former incidents are no more aggravated or inflammatory than the charged offenses. Although Garcia testified that defendant had a gun, he did not discharge it. Here, defendant had a knife, which he used to stab her.
Garcia’s testimony was relatively brief, comprising 22 of the reporter’s transcript. In addition, the defense called Officer Roger Izzo, who took an incident report from Garcia. His testimony comprised a mere four pages. It is unlikely that any of this testimony confused or misled the jury. It was focused on two incidents, and only three people testified about them. The trial court also excluded some inflammatory details or descriptors of the crime; namely, the court precluded the witness from using the words “kidnapping” or “burglary.”
Defendant also notes that in the middle of Garcia’s testimony, the defense made a motion for a mistrial, which defendant argues created a “complicated sideshow.” This “sideshow,” however, was very simple, brief and took place outside of the jury’s presence.
Defendant also questions the degree of certainty defendant committed the acts Garcia testified to. He points out that the case was never prosecuted; it was instead used as a basis for a probation violation in connection with another case. Garcia did, however, report the crime to the police. She did not apparently report the fact that defendant had a gun, but we do not think that her failure to report that detail lessens greatly the likelihood the incident occurred.
We therefore hold that the trial court did not abuse its discretion by admitting Lucerio Garcia’s testimony.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.