Opinion
D075162
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCOS ANTHONY FUENTES, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS298938) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Marcos Anthony Fuentes of child abduction and simple battery in connection with a caught-on-camera incident involving him and his former girlfriend Fernanda O. at a San Diego trolley station. He appeals his convictions, arguing the trial court prejudicially erred in admitting uncharged acts of domestic violence against Fernanda. He also contends there was insufficient evidence he acted with the malicious intent required for child abduction when he grabbed two-year-old Mia's stroller from Fernanda and boarded a southbound trolley with her headed toward Mexico. Rejecting both claims, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Fernanda and her four children lived with Fuentes in Tijuana, Mexico. On Valentine's Day 2018, Fernanda walked her kids toward the border to take them to school in San Diego. As she walked, Fuentes called her phone and angrily accused her of having spoken to another man. He caught up with Fernanda, grabbed her wallet, phone, and Mia's diaper bag. Fernanda crossed the border, dropped her older children at school, and went to the library with two-year-old Mia. Borrowing a phone, Fernanda called Fuentes, who apologized for his morning behavior and agreed to bring Mia's diapers to San Diego.
Later that afternoon, Fernanda and her children met Fuentes in Barrio Logan, San Diego. As they headed back toward Tijuana, Fernanda felt chest palpitations. They stopped at a hospital in downtown San Diego. When a nurse asked Fuentes to remain with the children in the waiting room, he became angry and prohibited Fernanda from being seen alone, accusing her of trying to get a secret abortion.
To avoid further conflict, Fernanda decided to leave the hospital without being seen by a doctor. When she tried calling her mother, Fuentes grabbed her phone and stormed off. Left with no bus pass or phone, Fernanda walked with her children toward the nearest trolley station on H Street. She then saw Fuentes coming toward her from across the street. Fuentes demanded that everyone return to Tijuana with him, but Fernanda refused, repeatedly saying she "wanted to just end this." Fuentes replied that he would follow her wherever she went.
Fernanda sat down on a bench on the northbound side of the H Street station, with Mia in a stroller in front of her. Fuentes sat down next to Fernanda and pleaded for her to return to Tijuana. By instinct, Fernanda put her foot inside Mia's stroller. Fuentes stood up and grabbed the stroller handle. Fernanda gripped the sides of the stroller, but Fuentes put his hands over hers, squeezing hard until she let go and scratching her thumb. Fernanda told Fuentes he could not take Mia. But he walked off anyway pushing her in the stroller, eventually boarding a train to San Ysidro and walking across the border. Fernanda did not chase after Fuentes but sat crying with her other children. She used the nearest pay phone to call police. Responding officers noticed a minor scratch on her finger.
The San Diego County District Attorney charged Fuentes with kidnapping (Pen. Code, § 207, subd. (a), count 1), child abduction (Pen. Code, § 278, count 2), and corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a), count 3) and alleged that Fuentes had suffered a prior strike. At trial, jurors heard testimony from Fernanda and investigating officers. They also watched surveillance video of the incident from the H Street trolley station. City of Chula Vista Detective Alicia Chudy offered expert testimony on the tendency of domestic violence victims to recant and return to their abusers. Over defense objection, the trial court permitted the prosecution to introduce evidence of two uncharged acts of domestic violence committed by Fuentes against Fernanda.
To avoid repetition, we describe this evidence as part of our discussion of the legal issue.
The jury convicted Fuentes of child abduction on count 2 and of simple battery on a cohabitant, a lesser included offense of count 3 (Pen. Code, § 243, subd. (e)(1)). With the jury unable to reach a verdict on count 1, the court declared a mistrial and later dismissed that charge. At sentencing, the court granted Fuentes's request to strike a prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530), sentenced him to three years in state prison, and imposed various fines and fees.
DISCUSSION
Fuentes argues the court prejudicially erred by allowing the prosecution to introduce evidence of uncharged acts of domestic violence committed against Fernanda. He also challenges the sufficiency of the evidence to support his conviction for child abduction in count 2, claiming the jury could not rationally find that he acted with the requisite malicious intent. 1. Admission of Prior Act Evidence Under Evidence Code Sections 1109 and 352
Further statutory references are to the Evidence Code unless otherwise indicated.
The trial court allowed the prosecution to introduce evidence of uncharged acts of domestic violence committed against Fernanda. Fuentes claims this was prejudicial error. We disagree.
a. Additional Background
The prosecution filed a pretrial motion in limine to admit evidence of uncharged acts of domestic violence committed by Fuentes against Fernanda pursuant to section 1109. Specifically, the prosecution identified three acts:
• Around November 2017, in a motel, Fuentes pushed Fernanda into a shower fully clothed, turned on the faucet, and ripped off her clothes.
• In early February 2018, before the charged incident, Fuentes prevented Fernanda from leaving their apartment. He pushed her against a wall, held her by her neck, and punched her in the face, leaving a large bruise and swelling around her eye.
• In late February 2018, after the charged incident, Fuentes prevented Fernanda from leaving his apartment. He videotaped an exchange in which he reportedly assaulted her by whipping her with a cord and held her by the neck.
At the hearing, the court commented that the three incidents involved more direct violence than the squeezing of Fernanda's hand alleged in count 3, raising "the specter of undue prejudice" under section 352. The prosecutor responded that although the kidnapping and child abduction alleged in counts 1 and 2 were not per se domestic violence charges, all three counts should be viewed in that light. Defense counsel replied that the proffered evidence was highly inflammatory and distinguishable from the charged incident, warranting exclusion under section 352.
The court then explored whether the instances in which Fuentes tried to prevent Fernanda from leaving were "pretty similar to what was happening here." Given that Fernanda was going to testify anyway, it deemed a section 352 argument something of a "red herring"—both the prosecution and defense would explore relationship dynamics to scrutinize her actions, meaning "a lot of these things come in anyway." From the People's perspective, all three counts related to domestic violence. Although the defense would offer a different view, the court found the two February 2018 incidents admissible under section 1109, finding it was "the intent of [section] 1109 to allow these things to be in." But it excluded the November 2017 incident under section 352, finding it too dissimilar to the charged incident.
At trial, Fernanda and her son Isaac testified about the early February incident. Fernanda explained that she and Fuentes got into an argument one evening after drinking. Fernanda tried to leave their apartment, but Fuentes refused to give her the keys necessary to open the front door from the inside. After Fuentes went to bed, Fernanda grabbed the keys and broke a window, waking him. He pushed her to the wall and "socked" her hard, giving her a black eye that took about a month to heal. Isaac, who saw it happen, testified that Fuentes refused to give his mother the keys and hit her in the eye, turning it "purple."
Fernanda also described another incident that took place following the charged offense. Two days after Fuentes took Mia at the H Street station, Fernanda returned to Tijuana with her three older children to retrieve their belongings. She waited outside the apartment for Fuentes to arrive. When he did, he refused to let her in. He relented when she slid an apology note under his door. Fernanda and her children spent that night and the next day with Fuentes; everything "seemed okay." But on February 18, she and Fuentes got into an argument. When she tried to leave his apartment with her children, Fuentes refused to open the door. Fuentes filmed the incident; the jury saw a video showing a crying Fernanda repeatedly ask Fuentes to let her leave as he mocked her. As Fuentes concedes, "the video only showed the two of them arguing; it did not demonstrate [him] choking [Fernanda] with a cord" as suggested by the prosecution during pretrial motions.
b. Legal Principles
Character evidence is generally inadmissible to prove a defendant's conduct on a particular occasion. (§ 1101, subd. (a).) Section 1109 carves out an exception. Subject to conditions not relevant here, "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." (§ 1109, subd. (a)(1).) "The statute reflects the Legislature's determination that in domestic violence cases, similar prior offenses are uniquely probative of a defendant's guilt on a later occasion." (People v. Merchant (2019) 40 Cal.App.5th 1179, 1192 (Merchant).) "Domestic violence" includes abuse against a girlfriend or former girlfriend. (Evid. Code, § 1109, subd. (d)(3); Pen. Code, 13700, subd. (b).) "Abuse" is defined to include "placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a); Evid. Code, § 1109, subd. (d)(3).)
Even if admissible under section 1109, other act evidence must be excluded under section 352 where its probative value is substantially outweighed by the probability that its admission will consume too much time, cause undue prejudice, confuse the issues, or mislead the jury. "The prejudice that section 352 is designed to avoid is not the damage that naturally results from highly probative evidence, but rather the prospect of leading the jury to prejudge a person or focus on extraneous factors." (Merchant, supra, 40 Cal.App.5th at p. 1192.) We review a trial court's admission of other act evidence for an abuse of discretion. (Ibid.)
c. Analysis
We recently addressed the propriety of admitting uncharged domestic violence evidence in Merchant, supra, 40 Cal.App.5th 1179. There, a defendant faced charges for kidnapping his girlfriend, inflicting physical abuse, and dissuading her from seeking assistance as he careened down freeways during a chaotic car ride. (Id. at p. 1192.) The trial court permitted the prosecution to introduce evidence of eight prior acts of domestic violence committed against current and former girlfriends, but excluded four acts it deemed minimally probative to the issues in the case. (Id. at p. 1193.) As we explained, the prior act evidence admitted "demonstrated [defendant's] pattern of control in romantic relationships," escalating verbal arguments to physical violence (including in a moving vehicle) and preventing his partner from leaving. (Ibid.) Consistent with section 1109, "[t]his pattern was highly probative of his propensity to engage in similar conduct on [the day of the incident] as charged." (Merchant, at p. 1193.) Moreover, the court's decision to exclude four out of twelve incidents demonstrated that it carefully weighed relevant factors and did not admit acts it deemed minimally probative or cumulative. (Ibid.) On balance, we could not say the court abused the discretion "it so clearly exercised." (Id. at p. 1194.)
A similar analysis applies here. The court carefully weighed the three proffered uncharged acts, initially expressing appropriate concern that they involved more serious harm than alleged in count 3. When the prosecution replied that it viewed all three counts as domestic-violence related, the court reassessed. Realizing that some of the evidence would be received in any event to either explain or scrutinize Fernanda's decision not to chase after Fuentes or to return to him in subsequent days, it ultimately allowed the prosecution to introduce two of the three prior acts.
The events of early and late February, bookending the charged incident, involved a verbal argument between Fuentes and Fernanda, culminating in Fuentes's efforts to control Fernanda's movement. In the charged incident, a verbal argument led to Fuentes demanding Fernanda go to Tijuana with him; when she refused, he took Mia's stroller and boarded a southbound trolley, arguably in an effort to control her movement. Both uncharged acts tended to support the prosecution's theory that Fuentes took Mia's stroller to force Fernanda to leave with him and that Fernanda did not pursue him out of fear of what he might do to her. At a minimum, propensity evidence was directly relevant to the main inquiry on count 3—the fact that Fuentes inflicted injury before was probative of whether he inflicted corporal injury as alleged. A limiting instruction (CALCRIM No. 852A) narrowed its proper application. Finally, by excluding evidence about the 2017 motel shower incident as too dissimilar to the charged offenses, the court plainly understood and exercised its broad discretion. (See People v. Kerley (2018) 23 Cal.App.5th 513, 532 (Kerley) [a trial court's analysis under section 352 is not disturbed unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice].)
Section 1109, subdivision (a)(1) requires that a defendant be "accused of an offense involving domestic violence." Fuentes argues that neither child abduction nor kidnapping constitute "domestic violence." To the contrary, while he naturally had a different view, the prosecution's theory was that all three charges involved domestic violence. (See People v. Megown (2018) 28 Cal.App.5th 157, 166 (Megown) [defendant's threat to kill mother of his cohabitant in her presence while holding a gun involved domestic violence because it placed cohabitant in reasonable apprehension of imminent injury to her mother]; Kerley, supra, 23 Cal.App.5th at p. 532 [defendant charged with murdering a former girlfriend was " 'accused of an offense involving domestic violence' "].)
Fuentes responds that because the charged incident involved a minor scratch, and the uncharged acts proffered by the People alleged far more serious harm, the evidence should have been excluded under section 352. He is correct that the principal factor affecting the probative value of uncharged act evidence is its similarity to the charged conduct. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) Indeed, in balancing probative value against undue prejudice, "[c]ourts are primarily concerned where the past bad act was 'more inflammatory' than the offense for which the defendant is on trial." (Id. at p. 534, fn. 11.)
Yet as the trial court appropriately recognized, there are countervailing factors here, not the least of which is that evidence of significant prior domestic violence would be admissible to explain Fernanda's failure to resist more strenuously Fuentes's taking of her daughter. Moreover, even assuming the court erred in failing to exclude the uncharged act evidence pursuant to section 352, the error was harmless. Given the evidence presented at trial, there is no reasonable probability that but for these uncharged acts, Fuentes would have obtained a more favorable verdict. (See Megown, supra, 28 Cal.App.5th at p. 167 [error in admitting prior domestic violence evidence under section 1109 is subject to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836].)
Fuentes suggests the uncharged act evidence was so inflammatory it lightened the prosecution's burden of proof or deprived him of a fair trial. To the contrary, routine application of state evidentiary rules, as here, does not implicate his constitutional rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)
This was not a weak evidence case. Fernanda testified about what happened, and the jury watched video from the H Street trolley station. Consistent with Fernanda's account, the video showed that Fuentes sat down beside her on the northbound platform. As she explained at trial, Fernanda had by this point told Fuentes she would not return with him to Tijuana. The video confirmed that Fuentes stood up, took Mia's stroller, and walked to the opposite southbound platform. Fernanda did not pursue him; she sat down for a few minutes before calling 911 from a nearby pay phone. At some point after the southbound trolley had passed, Fernanda looked up and saw Fuentes had gone. Police arrived and confirmed seeing a scratch on her finger. Putting these events in context was Fernanda's unchallenged testimony explaining Fuentes's controlling behavior earlier that day, in taking her phone that morning and later refusing to let her see a doctor alone that afternoon. Video footage also corroborated Fernanda's account of what transpired at the hospital.
Given our record, there is no reasonable likelihood that the uncharged act evidence affected the outcome. Flores concedes the jury heard no evidence that the late February incident involved physical violence; it just saw a video of him taunting a crying Fernanda and refusing to let her leave. Although the jury heard evidence that he earlier inflicted a black eye, Fernanda and Isaac offered just 10 pages of testimony on this topic out of nearly 200 total pages of witness testimony at trial. No photos were shown of the injury, and Fernanda described it somewhat matter-of-factly as a purple or black mark that took about a month to heal. On balance, in this strong evidence case, we disagree with Fuentes that the uncharged acts "sealed his fate" and invited the jury to convict him of something.
Fuentes's authorities are distinguishable. In People v. Disa (2016) 1 Cal.App.5th 654, a defendant charged with murder admitted killing his girlfriend by placing her in a chokehold but denied meaning to kill her. (Id. at p. 657.) Where the disputed issue was premeditation, vivid testimony that the defendant previously brought a knife to an ex-girlfriend's apartment, hid in a closet for hours, and then attacked her and her new boyfriend when they were asleep was unduly prejudicial under section 352. Because the evidence on premeditation "was underwhelming," the error required reversal. (Id. at pp. 674-675.)
People v. Gibson (1976) 56 Cal.App.3d 119 and People v. Dellinger (1984) 163 Cal.App.3d 284 involved the admission of other act evidence for nonpropensity reasons under section 1101, subdivision (b). Charged with assaulting and killing a drinking companion when he refused to hand him money, the defendant in Gibson asserted an alibi defense. (Gibson, at p. 126.) The court deemed it "an exercise in futility" to imagine the jury would use evidence of his past drunken belligerence solely to evaluate motive or intent rather than to assess his guilt or his propensity for violence and theft. (Id. at pp. 129-130, 137.) Similarly, the defendant in Dellinger was charged with murdering his two-year-old stepdaughter, whose ingestion of cocaine was a contributory cause of death having no apparent connection to the defendant. (Dellinger, at p. 298.) On these facts, the defendant's prior cocaine use had only marginal probative value to issues actually in dispute, but carried tremendous potential for prejudice. (Ibid.) Because the case was "very close," admitting the evidence was prejudicial. (Id. at p. 300.)
This is not a close case, where the evidence of guilt on the convicted counts is underwhelming. The uncharged act evidence occupied a brief portion of trial and was probative of the issues actually in dispute. Given the strength of the prosecution's case, there is no reasonable likelihood that without the admission of the uncharged act evidence, Fuentes would have obtained a more favorable jury verdict.
2. Sufficiency of the Evidence of Malicious Intent on Count 2
Fuentes was charged in count 2 with child abduction. Penal Code section 278 imposes liability on "[e]very person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian . . . ." Thus, the defendant must intend "to detain or conceal the child from a person who has lawful custody." (People v. Jones (2003) 108 Cal.App.4th 455, 463.) Child abduction is a crime against the parent or lawful custodian, not the child—it is designed to protect them from the anxiety and grief that necessary follow the taking of their children. (In re Michele D. (2002) 29 Cal.4th 600, 614, citing People v. Campos (1982) 131 Cal.App.3d 894, 899.) It follows that the word "maliciously" in Penal Code section 278 connotes "a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (People v. Simmons (1936) 12 Cal.App.2d 329, 332; Pen. Code, § 7, subd. (4).)
Consistent with these principles, the jury was instructed that a person acts maliciously "when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else." (CALCRIM No. 1250) Challenging his conviction for child abduction, Fuentes argues there is insufficient evidence from which the jury could find that he possessed the requisite malicious intent in taking Mia. To evaluate this claim, we consider the entire record in the light most favorable to the judgment and evaluate whether it discloses substantial evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could make a finding beyond a reasonable doubt that Fuentes acted with the requisite malicious intent. (See People v. Rivera (2019) 7 Cal.5th 306, 323.) The review standard essentially resolves this question: the jury was entitled to accept Fernanda's testimony to determine that he indeed acted with such intent.
Throughout the day, Fuentes exerted control over Fernanda. That morning, he took her phone and diapers Mia needed, angrily accusing Fernanda of talking to another man. That afternoon, he barred Fernanda from receiving medical treatment outside his presence, accusing her of planning a secret abortion. By the time they reached the trolley station on H Street, Fuentes pleaded with Fernanda to return with him to Tijuana. She refused and waited on the northbound platform, intending to visit her parents in Escondido. Some instinct made her place her foot inside Mia's stroller. Fuentes stood up, wrested the stroller from her grip, and crossed to the opposite southbound platform. There was video footage that showed Fuentes boarding the southbound trolley, getting out at San Ysidro, and walking into Mexico with Mia in her stroller.
Fuentes did none of this with Fernanda's acquiescence, and certainly not with her approval. She testified (without objection) that she had told him, "Do not take my daughter. She is not your daughter." When Fuentes took off with Mia, he had Fernanda's phone, leaving her stranded on the platform with her three other children. The uncharged acts revealed a practice of Fuentes trying to control Fernanda's movement. The fact that she tried to end their relationship as he pleaded for her to accompany him to Tijuana supports a reasonable inference as to his motivation. By taking her daughter to Tijuana against her express wishes, Fuentes was plainly acting to disturb or annoy Fernanda.
Challenging this result, Fuentes attempts to recast the evidence in his favor. He argues Fernanda knew he was simply returning to the home they shared and suggests her failure to pursue him reflects a lack of vexation. According to Fuentes, the only evidence to the contrary came from Fernanda, who offered "unreliable, inconsistent testimony" and whose actions undermined her account. However, the testimony of a single witness generally suffices on review for sufficiency of the evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Even if the evidence can be reconciled with a different view, the jury was entitled to accept Fernanda's account.
Fuentes also suggests he was a father figure to Mia, citing authority on de facto parenthood. (See In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) But as the People point out, the child abduction statute is only concerned with whether a defendant is a "person, not having a right to custody" over the child. (Pen. Code, § 278.) A " 'right to custody' " here requires "the right to the physical care, custody, and control of a child pursuant to a custody order." (§ 277, subd. (e); see People v. Ryan (1999) 76 Cal.App.4th 1304, 1314 [a parent with legal but not physical custody of a child may violate the statute].) Whatever role Fuentes played in Mia's life, he had no right to custody, and their relationship does not affect his malicious intent as to Fernanda.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. IRION, J.