Opinion
NOT TO BE PUBLISHED
Super.Ct.No. 06F04340
MORRISON, J.
A jury convicted Antonio Laracente Flores of assault with force likely to produce great bodily injury on his girlfriend, Rebekah Doe, and battery resulting in serious bodily injury on Jennifer Doe. (Pen. Code, §§ 245, subd. (a)(1); 243, subd. (d).) The trial court found he had a prior serious felony, also alleged as a strike, for making terrorist threats. (Id., §§ 422, 667, subd. (a); 667, subds. (b)-(i); 1170.12.) The trial court sent defendant to prison for 11 years, and he timely appealed. We affirm.
FACTS
Rebekah Doe testified defendant was her fiancé, he knew she had been pregnant by him, and she loved him. On April 12, 2006, they had an argument in front of an apartment complex. During the argument he grabbed the neck of her sweat shirt after she had smashed a Subway soda on his head and thrown a sandwich at him. She did not see him hit victim Jennifer Doe (no relation to Rebekah). He did not try to hit Rebekah. Rebekah saw Carla and Jennifer run at defendant and saw Jennifer try to hit him with a cell phone; “when she [Jennifer] was going to hit him with the phone he put his hand up to block himself and at the same time he’s holding onto me by the sweat shirt [and] he put his hand up like that. Carla slipped and fell and when she slipped and fell in the mud I don’t know if that pushed Jennifer forward or what. Tony didn’t hit her.”
Rebekah had been homeless and was staying with Carla; Jennifer was going to give her a ride to get an abortion the next day. Rebekah took care of Jennifer that night and saw that Jennifer had a black eye. She did not see Jennifer’s swollen nose, but later testified “we cleaned up her nose.” Rebekah estimated that at the time, defendant weighed 210 pounds, and Jennifer weighed about 90 pounds.
About one month later Rebekah was with defendant when he was arrested; later, she went to speak with Jennifer; “when she [Jennifer] tried to push me off her porch I grabbed her by the throat.” “I got really loud and I got close up in her face and she put her hand up and was going to push me off the porch so I snatched her up.”
Rebekah admitted not obeying a subpoena to testify at the preliminary hearing, and giving police a false name when they came to find her. She also admitted that when Jennifer and Carla ran up to defendant they told him they were going to call the police.
A different version of the events is that defendant was beating Rebekah up and when Jennifer and Carla rushed over to try to get him to stop, he attacked them as well.
Carla testified her son and a friend came “running in telling me that Tony was beating up Rebekah up front. I went out there to stop them. Jennifer followed me . . . and then he hit her. He hit Jennifer. He ran at her and hit her.” Before defendant hit Jennifer, Carla saw him punching Rebekah in the stomach two or three times, while he “had her up against” a brick wall; Rebekah was screaming with pain. He then “ran at Jennifer, punched her in her mouth and then walked off.” Jennifer was knocked out by the blow. About one week later Carla reported to police that defendant threatened her over the phone, and he later threatened her at the preliminary hearing.
Carla also saw the last part of the later altercation between Rebekah and Jennifer. She saw Rebekah choking Jennifer. Later she heard banging, which may have caused the fresh dents in Jennifer’s car.
Jennifer testified she had no memory of the April 12, 2006 incident until she was back in her apartment, in pain. She was the assistant manager of the complex. Earlier that day, when she told defendant to stay off the property, he said “you [don’t] know who you were dealing with,” and later he came back and banged on her door. She did not go to the hospital later that evening because she could not afford it.
Jennifer testified that a couple of weeks later Rebekah came by and wanted to come inside to talk. When Jennifer refused, Rebekah asked her to come outside to talk; “she told me to come closer because she didn’t want anybody [to] hear our business. She wanted to whisper in my ear. And when I did that she started choking me.” Rebekah “said that if I didn’t drop the charges that he would kill me.” After Jennifer pinched her breasts to get her to stop choking her, Rebekah went to Jennifer’s car and beat on it with a pipe or tire iron, damaging the car.
Officer Craig Wetterer spoke with Rebekah on the night Jennifer was knocked out and Rebekah “was ambivalent.” . . . “Didn’t really express that there’s anything wrong.” She did say that defendant “had grabbed her by the neck and started by pulling her back into the complex area and then at that time two other women came out of adjacent apartment[s] there in the complex and tried to intervene.” Rebekah told him defendant had not tried to hurt Jennifer, but merely to block her. She claimed she herself was not injured in any way.
Sergeant Matthew Young testified that the night Jennifer was unconscious, she refused an ambulance ride, claiming she would get a ride from a neighbor; her lips and nose were swollen and her hair was bloody.
The People introduced certified court records showing that in 1998 defendant pled no contest to a misdemeanor violation of Penal Code section 273.5, described to the jury as infliction of corporal injury “on the parent of the defendant’s child.” The trial court instructed the jury on the elements of this prior offense, and the permissible uses thereof.
Defendant did not present any evidence.
DISCUSSION
The People sought to introduce evidence of defendant’s prior domestic violence, in 1998 and 2001, to show he had a propensity for such conduct. Over objection, the trial court allowed evidence of the 1998 misdemeanor domestic violence conviction (Pen. Code, § 273.5), concluding the evidence would not take much time, was not unduly prejudicial, the conduct was recent, and it was probative. The court did not allow the People to introduce the 2001 incident, which involved defendant burning a suitcase, concluding the prejudice substantially outweighed any probative value.
At trial, the People discovered that the person thought to be the victim in the 1998 incident was not involved, and to rectify the problem they instead sought to use certified court documents to prove the 1998 incident, rather than victim testimony. Defense counsel did not dispute the admissibility of the court documents as such, but asked the court to exclude the evidence under Evidence Code section 352.
On appeal defendant asserts the admission of evidence about the 1998 conviction violated Evidence Code section 1109, which in part states that “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.” (Evid. Code, § 1109, subd. (a).) Defendant asserts that only a description of the conduct is permitted under this language, not documentary evidence showing the fact of a conviction. We disagree.
First, as the Attorney General observes, defendant has not preserved the point because he failed to make this objection in the trial court. (Evid. Code, § 353 [objections must be timely and specific]; People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Second, the statute allows the introduction of “evidence of the defendant’s commission” of domestic violence. (Evid. Code, § 1109, subd. (a).) Certified records of a conviction are admissible “to prove the commission . . . of a criminal offense[.]” (Id., § 452.5, subd. (b.) Accordingly, defendant’s claim lacks merit. (See People v. Wesson (2006) 138 Cal.App.4th 959, 967-969 (Wesson) [rejecting identical argument raised as to parallel statute Evid. Code, § 1108]; see People v. Duran (2002) 97 Cal.App.4th 1448, 1460 (Duran) [Evid. Code, § 452.5 creates hearsay exception allowing court record to prove “that the offense reflected in the record occurred”].)
Defendant argues that because Evidence Code section 1109, subdivision (e) precludes admission of “acts” occurring more than 10 years before the charged offense, the statute allows only evidence showing “acts” of domestic violence. But evidence of a conviction for domestic violence is evidence of acts of domestic violence, that is, “that the offense reflected in the record occurred.” (Duran, supra, 97 Cal.App.4th at p. 1460.)
Defendant points to a legislative committee analysis which assertedly states that a version of the statute then being considered would not allow evidence of convictions. This claim is not accompanied by an appropriate request for judicial notice, as is required for consideration of legislative materials. (Ct. App., Third Dist., Local Rules, rule 4; see Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26.) Further, we construe statutes, not the musings of legislative staff; absent ambiguity, we have no cause to look further than the language in the statutes. (See People v. Knowles (1950) 35 Cal.2d 175, 182.)
Finally, to the extent defendant asserts the jury may have been confused or may have speculated about the circumstances of the prior conviction, he was free to introduce evidence about the facts of that conviction. (Wesson, supra, 138 Cal.App.4th at p. 969.)
Defendant contends that the trial court abused its discretion under Evidence Code section 352 by admitting the court records described above. We disagree.
The trial court 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.” (Evid. Code, § 352.) “Trial courts have broad discretion to weigh the prejudicial impact of testimony against its probative value.” (People v. Lancaster (2007) 41 Cal.4th 50, 83.)
“‘“The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.”’ [Citation.] Painting a person faithfully is not, of itself, unfair.” (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
“Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
The evidence was probative, because it showed defendant was capable of committing domestic violence. It was not stale, as it was less than 10 years old. It was not inflammatory because the People introduced court records, rather than victim-testimony; further the conviction was for misdemeanor conduct. The jury would know defendant had been convicted of that offense and presume he did not escape punishment therefor. The evidence was not time consuming, as the admission of the records was simple and the prior was referred to only briefly in the prosecutor’s arguments. And it was not confusing, as the jury was clearly instructed how to use the evidence. The evidence painted defendant accurately.
We cannot say that the trial court abused its discretion in declining to exclude this evidence.
III. Incompetence of Counsel
Defendant claims his trial attorney was incompetent in failing to object to the prosecutor’s misstatements of the law and the facts in argument.
To succeed in his claim, defendant must show that the statements at issue were in fact objectionable, the record precludes any rational tactical reason for counsel’s inaction, and that the failure to object caused prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
A. Alleged Misstatement of the Law
In discussing the elements of count I, charging assault with force likely to produce great bodily injury, the prosecutor stated the force could be “force likely to create great bodily injury whether it’s to the child or to the person [i.e., mother] itself.” Defendant asserts that the fetus could not be the victim of that count because only the mother was named as a victim and because a fetus is not a “person” within the meaning of the statute. (Pen. Code, § 245, subd. (a)(1); People v. Montiel (1993) 5 Cal.4th 877, 930, fn. 26.)
We agree with the Attorney General’s interpretation, that read in context, the prosecutor was arguing that punching a pregnant woman up against a brick wall was likely to cause great bodily injury to the mother. Rebekah testified that days before defendant attacked her, she had decided to have an abortion and that she later had one; no evidence of injuries to the fetus was introduced, therefore it is implausible that the jury would have understood the argument to be that it should speculate about injuries to the fetus. Thus, the likely tactical reason defense counsel did not object is that the comment was a fair argument, or that defense counsel did not believe the jury would interpret it in the manner posited by defendant on appeal.
B. Alleged Misstatement of Fact
During argument the prosecutor observed that the trial had been very short, and continued as follows:
“And it really comes down to two witnesses: Carla [H.] and Rebekah [Doe].
“Now, you may not like either of those two witnesses, particularly not Rebekah [Doe] who I think it was rather obvious she came in here and lied to cover . . . for the defendant, this person she loves.
“But that doesn’t make her any less of a victim in this case. If we were to decide which cases to prosecute based on just how cooperative a certain victim is or what part of town the crime occurred in we’re going down a slippery slope.
“And that’s especially the case in domestic violence because we know as a society that women that are caught in the cycle of violence and domestic violence tend to recant or be uncooperative with law enforcement when they’re assaulted.
“And that’s why you just got to hear a piece of evidence that says that this man has in the past beaten on another woman. And you get to consider that for his propensity to be violent with women with whom he has an intimate relationship.”
On appeal defendant asserts that the dynamics of nonreporting by domestic abuse victims was a fact not in evidence and therefore improper argument.
It is true that the People did not introduce expert testimony on domestic violence in this case. And, we accept defendant’s point that the reason expert testimony is allowed is that issues of nonreporting and recantation are not universally understood. However, those phenomena are often discussed in the media, popular fiction and in society at large and it would be inaccurate to characterize them as obscure or arcane. Defense counsel was present during voir dire (no transcript of which is in the appellate record) and may well have concluded the prosecutor’s brief reference to the “cycle” of violence was something some or all of these jurors already knew about, even if they were not the subject of expert evidence.
Further, the trial court instructed the jury to reach its verdict by the evidence at trial, and instructed that the arguments of counsel were not evidence. We presume the jury followed this instruction, and would not have construed the prosecutor’s remark as the equivalent of testimony about the cycle of domestic violence.
Therefore, defendant has not demonstrated that his trial counsel’s alleged incompetence in not objecting caused prejudice.
IV. Cumulative Error
Defendant asserts that even if we find any errors harmless, the effect of errors may cumulate to cause prejudice. We disagree.
First, we have found no errors.
Second, the errors asserted are not of the type that, if individually harmless, would still cause cumulative prejudice.
Third, even if we agreed with defendant’s claims, the prosecution evidence was so persuasive that we would affirm.
Rebekah’s testimony lacked plausibility and she had an obvious motive to lie; indeed, she later threatened Jennifer to deter her from testifying. Carla, a witness with no suggested motive to lie, testified about defendant punching Rebekah and then Jennifer, and later testified that defendant threatened her (Carla), to deter her from testifying. Although Jennifer could not remember defendant punching her, she remembered telling defendant earlier that day to stay off the property, and remembered that he threatened her in response.
In light of such strong evidence of defendant’s guilt on all charges, we would find no miscarriage of justice if any or all of the claims of error were sound. (Cal. Const., art. IV, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., RAYE, J.