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People v. Garcia

California Court of Appeals, First District, Second Division
Apr 28, 2009
No. A116443 (Cal. Ct. App. Apr. 28, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MANUEL SALVADOR GARCIA, Defendant and Appellant. A116443 California Court of Appeal, First District, Second Division April 28, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 5-50179-1.

Kline, P.J.

Manuel Salvador Garcia (appellant) was convicted, following a jury trial, of second degree murder. On appeal, he contends (1) admission of the victim’s prior statements to police violated his constitutional rights; (2) other evidence of prior incidents of domestic violence between appellant and the victim was improperly admitted; (3) admission of a letter written by appellant to the victim was improperly admitted; and (4) the cumulative effect of the errors requires reversal. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by information with one count of murder in the death of Nicole Rodriguez (Pen. Code, § 187). The information further alleged the intentional and personal discharge of a firearm, thereby causing death to Rodriguez (Pen. Code, § 12022.53, subds. (b), (c), and (d)), and the personal use of a firearm to commit the charged offense (Pen. Code, § 12022.5, subd. (a)(1)).

Following a jury trial, appellant was acquitted of first degree murder, but convicted of second degree murder. The jury also found both firearm enhancement allegations to be true.

On December 8, 2006, the trial court sentenced appellant to 15 years to life in prison for the murder conviction and a consecutive term of 25 years to life for the gun use enhancement, for a total indeterminate term of 40 years to life in state prison.

On January 11, 2007, appellant filed a notice of appeal.

FACTUAL BACKGROUND

Nicole Rodriguez, the shooting victim in this case, dated appellant and apparently lived with him off and on for about a year before her death on February 29, 2004. They were no longer living together when their baby was born in January 2004. Contra Costa County Children and Family Services immediately detained the baby, who had tested positive for methamphetamine at birth. Both appellant and Rodriguez used methamphetamine, which appellant gave to Rodriquez and also sold. Appellant was 18 years old at the time of the shooting.

The juvenile court authorized the baby to be released to Rodriguez as long as she was in a residential treatment program. She had been terminated from an outpatient program shortly before her death. Rodriguez’s other two children had previously been removed from her custody.

Rodriguez’s mother, Pamela Lee, testified at trial that Rodriguez had told her on more than one occasion that she was afraid of appellant. Lee saw marks on Rodriguez at least three times while Rodriguez and appellant were together as a couple. In June or July 2003, Lee saw Rodriguez with bruises on her shins, chest, back, and arms.

Then, between September and November 2003, Rodriguez called Lee on the telephone. She was crying and upset and told Lee that appellant was hitting her and that she wanted Lee to come pick her up. Lee also heard Rodriguez yelling at appellant because he was trying to hang up the phone. The call was cut off and Lee tried to call back three or four times, but there was no answer. Lee drove to the apartment and she and appellant had a “yelling match.” She accused appellant of hitting Rodriguez, which he did not deny. During the confrontation, appellant “took his shirt, and he went like this... and he said, ‘I’m not afraid to use this.’ ” Lee did not break eye contact to look at where appellant was indicating, but she believed he had a gun. On that occasion, Rodriguez’s face was red “as if it had been touched.”

In November or December 2003, appellant called Lee and they had a lengthy conversation, during which Lee accused appellant of hitting Rodriguez; she also accused him of telling Rodriguez that he had held a gun to her head while she was sleeping and that “the only reason why you’re breathing air today is because while you were asleep the gun was against your head, and I was going to pull the trigger, and your mom knew I had a gun.” Appellant did not deny these accusations. Appellant told Lee some of the reasons he was unhappy with Rodriguez, including that she did not stay at home and cook and clean, she was stubborn and did not listen to him, and she took drugs. Regarding the drugs, Lee responded that it was hard for Rodriguez not to take drugs when she was living with appellant while he was taking drugs, selling them, and furnishing Rodriguez with them.

The day before Rodriguez gave birth, in January 2004, a police officer, Officer Ludwig, appeared at Lee’s door with Rodriguez, whose hair was “shuffled” and face was red; she was upset and crying. Rodriguez told Lee that appellant had dragged her by her hair through the hallway and down the stairs of his apartment. She also said that she had screamed and people had heard her screaming.

Tressa Begay, Rodriguez’s friend, testified that on January 22, 2004, she was walking with Rodriguez on a street in Concord when a Hispanic male on a bicycle approached Rodriguez. He yelled at her to go home, and then kicked her hard on the leg three times before leaving. Rodriguez started crying and told Begay that the man was her boyfriend.

Three police officers testified regarding statements Rodriguez had made to them in the weeks before the shooting about appellant’s domestic violence. Two of the statements involved incidents also described by Lee (appellant dragged Rodriguez down the stairs) and Begay (appellant kicked Rodriguez in the leg).

The three officers’ testimony will be described in more detail in part I, A., post.

Elizabeth Bushey testified that she met Rodriguez about three weeks before the shooting. Bushey was living with her boyfriend, Armando Alcala, and Alcala’s children in an apartment in Concord. Bushey was a methamphetamine addict. After Bushey and Rodriguez met through a mutual friend, Rodriguez told Bushey she was afraid of appellant, he had abused her on multiple occasions, and she did not want him to find her. At Bushey’s request, Alcala let Rodriguez stay with them. After that, Rodriguez was in and out of Bushey’s home; she also stayed with Bushey’s friend, Mario Aparicio.

At the time of trial, Bushey was in custody for a probation violation after she left a residential treatment program.

About two or three days before the shooting, appellant, who had found out that Rodriguez was at Bushey’s apartment, showed up at the door and told Rodriguez he had some papers. Appellant and Rodriguez started arguing and appellant pulled out a gun and pointed it at Rodriguez. Bushey stood between them and asked him to put the gun away, which he did.

Appellant returned to the apartment on February 28, 2004. When appellant arrived, Rodriguez was in the back room with Mario Aparicio; they were smoking. Appellant went into the room and started putting Rodriguez down and calling her names.

Appellant and Rodriguez argued off and on after appellant arrived, with Rodriguez wanting to get high and appellant wanting her to go into a drug rehabilitation program. Both of them were smoking methamphetamine, which appellant provided. They both gave “mixed messages” in that “[o]ne minute they were hugging on each other; the next minute they were arguing.” They whispered together and Rodriguez sat on appellant’s lap. Appellant wanted to be affectionate with Rodriguez but she would not let him. She told him she did not want to be with him anymore. They also went into the bathroom together at one point before the shooting for about 20 minutes, and “they came out like... there was nothing wrong.” Then they “would start arguing again. It was back and forth.”

Early the next morning, on February 29, appellant went with Alcala to a 7-Eleven. Appellant had a gun with him and, before he went to the store, he hid the gun underneath the couch, after removing three bullets and giving them to Bushey. While appellant was gone, Bushey told Rodriguez this was her chance to leave. Rodriguez did not respond and did not leave the apartment. When appellant returned from the store, he asked Bushey to give back his bullets. She gave them to him, but warned him not to do anything stupid because there were kids in the house.

Appellant and Rodriguez began to argue again and Bushey told them to lower their voices because people were sleeping. Appellant said Rodriguez was mad because he did not want to give her a “bowl load” of methamphetamine, at which point Rodriguez got up and walked away. Appellant grabbed her in a full nelson, pushed her into the bathroom, and closed the door. Bushey and Alcala tried to open the bathroom door, but it was locked. They shouted at appellant to open the door. Bushey wanted to get into the bathroom “[b]ecause of the way he got her in there.” She heard appellant say he had to hug Rodriguez and have sex with her because he did not want to have to get physical with her or hit her.

Gwyneth Kelly, who was also present at the apartment at the time of the shooting and who had not taken drugs that night, testified that she slept through most of what happened and did not see or remember much. The court, however, played a videotaped statement Kelly gave to police on the night of the shooting, in which she told an officer that she heard Rodriguez tell appellant that “she didn’t want to be with him anymore and that she was really afraid of him” shortly before the shooting. Kelly heard appellant yell at Rodriguez and say something about Rodriguez having a baby and she should have given it to him. Kelly also saw Rodriguez trying to get away from appellant as he grabbed her and took her into the bathroom.

Bushey then heard Rodriguez shouting, “Chava, Chava [appellant’s nickname], please, no. Please, no.” She then heard the shower curtain rattle, a thump, and a gunshot; she was not sure of the order of the sounds. She then saw appellant run out of the bathroom with his gun in his hand. He slammed his fist into a wall across from the bathroom and said, “Oh, no, what have I done. Oh, no.” Bushey saw confusion and fear in his face. Appellant then left the apartment.

A 911 call was received from Bushey at 8:03 a.m. on February 29, 2004. Rodriguez was found by police in a seated position in the bathtub, with the shower curtain under her body and her feet hanging over the side of the tub. The medical evidence showed that Rodriguez had died of a gunshot wound to the top of her head. She exhibited a defensive wound; the single bullet had gone through her right wrist before entering her head. Police found and arrested appellant on March 1, 2004. During a four-hour interview that same day, appellant’s emotional state appeared to be depressed, remorseful, and lethargic. He spoke in low, barely audible tones and sometimes sobbed. He had to take frequent breaks.

Two letters written by appellant were admitted into evidence. The first letter read as follows: “Hey baby. Here’s some things you might need. I’m sorry for being so rough with you and for everything also. I wish you would let me make everything up for you and give our girl everything she needs.

“If you don’t come back with me soon, I don’t know what is going to happen. I’m trying to stay calm and do the right thing. I sold my weapons before I lose my mind. Sometimes I think about doing something stupid out here and injuring myself some time locked up to see—to see if I forgive you.

“But our kid helps me stay strong and look forward to him. If I didn’t do the best for you, I’m going to work twice as hard to do the best for our baby. If I can have you two, I’m going to be much different. I’m going to show you I can be responsible and straight.”

The second letter read as follows: “Baby I got some money I want to spend on our baby before I end up spending it.

“I still have... 100 dollars from your check. And 500 dollars more. I just got a new car seat and a bed and a walker to walk her outside.

“Please call me so I can feel better. We can at least be friends.

“I would like you to come with me to the store. I really don’t know everything we need for the baby. I wish you good luck with all my heart. Much love and respect, your Monkey. Please call as soon as possible. Please rub your stomach for me. I miss you two.”

DISCUSSION

I. Admission of Rodriguez’s Statements to Police

Appellant contends admission of Nicole Rodriguez’s statements to police violated his Sixth Amendment right of confrontation. According to appellant, these statements were not admissible under the “forfeiture by wrongdoing” exception to the confrontation clause of the Sixth Amendment because appellant did not kill Rodriguez to prevent her testimony at trial. Appellant further argues that the statements were inadmissible under Evidence Code section 1370.

All further statutory references are to the Evidence Code unless otherwise indicated.

Respondent argues that appellant’s confrontation rights were not implicated because Rodriguez’s statements to police ultimately were introduced as nonhearsay state of mind evidence. We agree that because the statements were introduced to show Rodriguez’s state of mind and not for their truth, appellant’s confrontation rights could not have been violated. Moreover, to the extent the statements should not have been introduced to show Rodriguez’s state of mind, any such error was harmless.

A. Trial Court Background

Before trial, the trial court addressed the prosecution’s request to introduce the testimony of three police officers regarding three emergency dispatch responses made in January 2004 to incidents involving Rodriguez and appellant. After hearing counsels’ arguments regarding the admissibility of the officers’ testimony about what Rodriguez told them, the court found the evidence admissible pursuant to both the forfeiture by wrongdoing doctrine and section 1370.

Although appellant did not object to the evidence’s admissibility under section 1370 at the hearing, defense counsel did make an “ongoing” objection to admission of this evidence under section 1370 (mistakenly transcribed as section 1378) during trial.

Thereafter, during trial, Officer Ivan Menchaca testified that, on the evening of January 6, 2004, he was dispatched to an address on Detroit Avenue in Concord. When he arrived at the address, he spoke to Rodriguez, who told him that she had been in an argument with her boyfriend, whom she identified as appellant, and with whom she lived. She said she had decided to leave but, as she walked away from the apartment complex with a friend, appellant rode up on a bicycle. He yelled and cursed at her, and told her, “ ‘I’ll beat you until you go to hell.’ ” He then got off his bicycle, grabbed her sweatshirt, pushed her, and said that if he got arrested he would sooner or later get out of jail. He then kicked her in the left leg. Rodriguez said she feared retaliation from appellant, but did not want to prosecute because she feared the court would give him her baby. The officer also took a statement from Teresa [sic] Begay.

Detective Francisco Ramirez testified that on the morning of January 7, 2004, he was dispatched to the same Detroit Avenue address in Concord. Once there, he spoke with Rodriguez, who was frightened and crying. She told him that as she returned to her apartment after getting clothes from the dryer, appellant approached her and, as she went into the apartment, he tried to force his way inside. She managed to close the door and refused his request to open it. Appellant then said, “ ‘If you don’t open the door, I’ll force my way in.’ ” She told appellant she was going to call the police and appellant said, “ ‘Then I’ll be back later.’ ”

Finally, Officer Blair Ludwig testified that, on the night of January 22, 2004, he was dispatched to another Detroit Avenue address. He spoke with Rodriguez, who was crying and very emotional. She told him that she and appellant had argued after she had seen him with another female. She began to cry; appellant asked her to be quiet, but she could not stop. He then grabbed her by the hair and dragged her down the hallway and down two flights of stairs on her back.

Near the conclusion of trial, after the three police officers had testified and while counsel and the trial court were discussing jury instructions, the court read the standard instruction on evidence of other domestic violence (CALJIC No. 2.50.02). Defense counsel objected to that instruction, stating: “It’s my understanding, and the questions were posed in a way that—my understanding was that the evidence was offered as to state of mind of the victim. In other words, she had fear.” The court responded by summarizing the history of the proceedings regarding the admission of the testimony of the three officers: “We’ve all agreed that what Nicole told the officers is testimonial evidence. [¶] The question then became, did it come in under the Forfeiture by Wrongdoing Exception, or Doctrine. I ruled in that matter, and we had extensive discussions that it would come in for that purpose. The People then offered that evidence without limitation....

“The People did, however, invite the defense to ask for a limiting instruction, and said that if the defense requested a limiting instruction, they would... stipulate to it being given. However, they never requested that it be given and they never offered the evidence for a limited purpose. [¶] So the evidence was offered for all purposes, any and all purposes in accordance with 1109, including propensity.” The court further noted that it had said it would give defense counsel “an opportunity to object at any time.”

Defense counsel said she did object and was now asking for a limiting instruction, though she also said she was “not waiving our Sixth Amendment confrontation rights by so requesting.”

The court thereafter instructed the jury as follows: “The testimony of Officers Paco Ramirez, Ivan Menchaca and Blair Ludwig, as to what was related to them by Nicole Rodriguez regarding certain claimed acts of domestic violence by the defendant, was not admitted for the truth of the matter asserted. That is, it was not admitted to prove that certain acts of violence occurred, but it was made only insofar as that the making of such statements may reflect the fear of Nicole, the alleged victim [in] this matter, or some other state of mind of Nicole Rodriguez.” The court then instructed the jury that any evidence admitted during trial “for a limited purpose is not to be considered by you for any purpose other than for the limited purpose for which it was admitted.”

B. Legal Analysis

In Crawford v. Washington (2004) 541 U.S. 36, 53-54, the United States Supreme Court held that the confrontation clause bars admission of a testimonial hearsay statement against a criminal defendant unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine the declarant. The court recognized exceptions to this rule, including the doctrine of forfeiture by wrongdoing. (Id. at p. 62.)

After the trial in this case, the California Supreme Court held, in People v. Giles (2007) 40 Cal.4th 833, 854, that the forfeiture by wrongdoing doctrine bars a defendant’s objection under the confrontation clause of the federal Constitution when the witness’s unavailability for cross-examination is caused by the defendant’s intentional criminal act. After appellant’s opening brief was filed, however, the United States Supreme Court vacated that opinion and held that the forfeiture rule applies only where a defendant engaged in conduct designed to prevent a witness from testifying, and that unconfronted testimony would not be admissible without a showing that the defendant intended to prevent the absent witness from testifying. (Giles v. California (2008) 128 S.Ct. 2678, 2683.)

The trial court in this case initially found admissible the testimony of the three police officers regarding Nicole Rodriguez’s statements to them under the forfeiture by wrongdoing doctrine, after concluding it was appellant’s wrongdoing—his killing of Rodriguez—that prevented Rodriguez herself from testifying regarding his prior domestic violence. Had this evidence ultimately been admitted for its truth, we would have had to address the fact that there was no evidence that appellant killed Rodriguez to keep her from testifying against him, for purposes of the forfeiture by wrongdoing exception. (See Giles v. California, supra, 128 S.Ct. at p. 2683.)

We nonetheless observe that, despite the agreement of the parties and the court that Rodriguez’s statements to the officer were “testimonial” in nature (see Crawford v. Washington, supra, 541 U.S. at pp. 53-54), we have serious doubts that all of these statements were in fact testimonial. (See, e.g., Davis v. Washington (2006) 547 U.S. 813, 827-828 [declarant’s statements during frantic 911 call were not testimonial given that their “primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying”]; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1597 [statement by domestic violence victim who went to police station after she was attacked by defendant was not testimonial where safety of police station was only temporary because victim could not go home again until situation was resolved and emergency was ongoing because defendant had threatened to kill victim if she went to police].) In that case, the confrontation clause would not be implicated by any such non-testimonial statements.

However, at the request of defense counsel, the trial court instructed the jury that the officers’ testimony regarding Rodriguez’s statements could not be used “to prove that certain acts of violence occurred,” but could only be considered “insofar as that the making of such statements may reflect the fear of Nicole, the alleged victim [in] this matter, or some other state of mind of Nicole Rodriguez.” Thus, because the trial court made clear to the jury that this evidence was nonhearsay, the Sixth Amendment was not implicated and appellant’s confrontation rights were not violated.

In his reply brief, appellant argues first that respondent should be judicially estopped from arguing that the officers’ testimony was nonhearsay because he did not offer it as such in the trial court. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) The record contradicts appellant’s claim, demonstrating that the prosecutor initially offered to stipulate that this testimony would be admitted only as nonhearsay state of mind evidence, defense counsel ultimately requested an instruction to this effect, and the trial court so instructed the jury. The prosecutor, moreover, argued to this effect during closing argument. When he discussed the testimony of the three officers, he stated, “you do not consider what they heard from Nicole for the truth of the matter asserted. Really, this is evidence that goes to Nicole’s mental state, Nicole’s sense of fear, her sense of despair, and why she behaved the way she did on February 29th, 2004.... She did not consent to go into that bathroom.” Judicial estoppel plainly is not warranted here.

Even before the evidence was admitted, the prosecutor told the court that he was “willing to renounce the use of the forfeiture evidence at this point to prove the truth of the matter asserted.”

Appellant further argues that the evidence in question “could not have been admitted for the nonhearsay purpose of illuminating Rodriguez’s state of mind, because her state of mind was completely irrelevant” and there was no purpose to the officers’ testimony other than the truth of what was asserted. Even assuming, without deciding, that the trial court’s instruction to the jury to use this evidence only as nonhearsay state of mind evidence was error, we conclude that any error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.)

According to the prosecutor, since the prosecution proceeded on various theories of murder, including felony murder, Rodriguez’s state of mind was relevant to whether appellant kidnapped her by “force or fear” or committed burglary. The prosecutor told the trial court this state of mind evidence was relevant to “a battered women’s syndrome type of analysis.”

First, although Rodriguez’s statements were offered by police officers, there was other evidence regarding appellant’s repeated abuse of Rodriguez. This evidence included the testimony of Rodriguez’s mother, Pamela Lee, regarding several incidents of domestic violence—including the incident testified to by Officer Ludwig regarding appellant’s dragging Rodriguez by the hair on January 22, 2004—and regarding Rodriguez’s statement that she was afraid of appellant. (See pt. II., post.) Also, Elizabeth Bushey testified that Rodriguez had told her that appellant had abused her and she was afraid of him. Bushey also testified that appellant had come to her house a few days before the shooting and had pointed a gun at Rodriguez. (See pt. II., post.) In addition, in one of his letters to Rodriguez, introduced into evidence at trial, appellant himself apologized for being “so rough” with Rodriguez. (See pt. III., post.) The jury thus had ample evidence of appellant’s history of domestic violence with Rodriguez in addition to that offered by the police officers.

Accordingly, to the extent the court improperly admitted the officers’ testimony at trial, it is not reasonably probable the result would have been different in the absence of that error. (See People v. Watson, supra, 46 Cal.2d at pp. 835-836.)

Even were we to use the federal constitutional standard of error, in light of the abundant additional evidence of appellant’s history of domestic violence, our conclusion would not be different. (See Chapman v. California (1967) 386 U.S. 18, 24.)

II. Admission of Other Evidence of Prior Domestic Violence Incidents

Appellant contends the trial court erred in admitting other evidence of prior incidents of domestic violence between appellant and Rodriguez. According to appellant, all of the evidence was improperly admitted as propensity evidence under section 1109, and some of the evidence was improperly admitted as adoptive admissions under section 1221.

A. Trial Court Background

Over appellant’s objection, the trial court granted the prosecutor’s request to admit evidence detailing several prior incidents of appellant “inflicting and/or threatening to inflict physical injury” on Rodriguez, ruling that the evidence was relevant and not unduly prejudicial, and was therefore admissible to show appellant’s propensity to commit domestic violence. The court also ruled that some of the testimony of Pamela Lee, Rodriguez’s mother, regarding her conversations with appellant—in which she accused him of hurting Rodriguez and he did not respond—was admissible under section 1221 as adoptive admissions.

During trial, Lee testified that Rodriguez was afraid of appellant and also told of three incidents of domestic violence between appellant and Rodriguez that she knew of. She further testified regarding conversations she had with appellant. In addition, Rodriguez’s friend, Tressa Begay testified that she was walking with Rodriguez when Rodriguez’s boyfriend came up and kicked Rodriguez three times in the leg. Finally, Rodriguez’s friend, Elizabeth Bushey, testified that Rodriguez had said she was afraid of appellant, he had abused her, and she was afraid he would find her. Bushey also testified that, shortly before the shooting, appellant had come to Bushey’s house and pointed a gun at Rodriguez.

The testimony of these three witnesses is detailed in the “Factual Background” portion of this opinion, ante.

B. Legal Analysis

1. Other Instances of Domestic Violence

Appellant first claims the trial court improperly admitted the testimony in question under section 1109, arguing that it should have been excluded pursuant to section 352.

Section 1109, subdivision (a)(1), provides in relevant part: “[I]n 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.”

The legislative history related to section 1109 shows that the Legislature believed that “ ‘[t]he propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence 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....’ (Assem. Com Rep. on Public Safety (June 25, 1996) pp. 3-4.)” (People v Johnson (2000) 77 Cal.App.4th 410, 419.)

With respect to the section 352 analysis, evidence is more prejudicial than probative only when “ ‘it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” [Citation.]’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

We review the trial court’s admissibility determination for an abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315; cf. People v. Falsetta (1999) 21 Cal.4th 903, 917-918.)

According to appellant, the court abused its discretion in this case because this evidence was not needed to prove appellant killed Rodriguez and was not relevant to Rodriguez’s state of mind, it was more prejudicial than probative, and it necessitated an undue consumption of time.

First, we find the evidence was relevant. Although appellant did not deny he had killed Rodriguez, he also did not admit he had done so. More importantly, appellant’s state of mind at the time of the killing was an issue that had to be resolved by the jury before it could decide whether to convict him of first or second degree murder or voluntary manslaughter. The other domestic violence evidence permitted the inference that, when he shot Rodriguez, appellant acted in conformity with a larger pattern of terrorizing and abusing Rodriguez, rather than in the heat of passion. (See People v. Johnson, supra, 77 Cal.App.4th at p. 419.)

Second, the trial court acted within its discretion when it concluded that the probative value of the evidence outweighed its prejudicial effect. “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). [Citations.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119; accord, People v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)

In the present case, the prior incidents plainly were less inflammatory than the charged conduct, which involved the killing of Rodriguez. Similarly, it was not at all likely that the jury would confuse the prior threats or acts of domestic violence with appellant’s shooting of Rodriguez. Finally, all of the prior incidents occurred within a year of the shooting and involved both appellant and Rodriguez. (See People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) The court weighed probative value against prejudice and acted within its discretion when it concluded that the probative value of this evidence outweighed prejudice. (See § 352.)

As to the fourth factor, there is no evidence in the record that appellant was arrested, much less convicted for the prior acts. (See People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) However, given how much less severe the prior acts of domestic violence were, it seems highly unlikely that the jury convicted appellant of murder to punish appellant for his earlier abuse of Rodriguez. (Cf. People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)

Third, the other domestic violence evidence did not “necessitate an undue consumption of time.” (§ 352.) Because the trial court properly found this evidence relevant and probative, the moderate amount of time it took to present it was appropriate.

In conclusion, there was no abuse of discretion. Nor did admission of this evidence violate appellant’s due process rights.

2. Adoptive Admissions

Appellant also argues that the trial court improperly admitted appellant’s conduct during interactions with Pamela Lee as adoptive admissions because he did not manifest his adoption or belief in the truth of Lee’s accusatory statements.

Under section 1221, “[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Hence, “ ‘[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189.) To warrant admissibility under section 1221, “ ‘it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ [Citation.]” (Id. at pp. 1189-1190.)

Here, the trial court conducted a section 402 hearing regarding the adoptive admissions before Lee testified. On one occasion, Lee confronted appellant, saying, “you’re hitting my daughter,... you’re going to take a gun to her.” Appellant did not deny Lee’s accusation. On another occasion, Lee had a long conversation with appellant on the telephone, during which she asked him, “ ‘Why are you hitting my daughter? Why are you threatening my daughter... ?’ ” He did not deny her accusation or “argue the issue.” She also asked him, “ ‘Why did you tell my daughter the reason why she’s able to breathe today is because you had a gun to her head while she was asleep. And the only reason why she’s breathing today is because your mother knew I had a gun, and then if I was to do anything, then what?’ ” Appellant did not deny what she said or defend himself.

Lee’s accusations and appellant’s responses (or lack thereof) warranted presenting the evidence to the jury so that it could decide what weight to give it. (See People v. Riel, supra, 22 Cal.4th at pp. 1189-1190.) Moreover, the court properly instructed the jury regarding how it should consider the evidence. (See id. at p. 1190.) There was no error.

The court instructed the jury with CALJIC No. 2.71.5 as follows: “If you should find from the evidence that there was an occasion when the defendant, one, under conditions which reasonably afforded him an opportunity to reply; two, failed to make a denial in the face of an accusation expressed directly to him or in his presence, charging him with some action tending to connect him with the commission of the crime for which he is now on trial, or any lesser included offense; and, three, that he heard the accusation and understood its nature, then the circumstance of his silence on that occasion may be considered against him as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence of the accused in the face of it. Unless you find that the defendant’s silence at the time indicated an admission that the accusatory statement was true, you must entirely disregard this statement.”

III. Admission of Appellant’s Letter to Rodriguez

Appellant contends a letter written by him to Rodriguez was improperly admitted into evidence.

A. Trial Court Background

The prosecutor sought admission of two letters that appellant wrote to Rodriguez. Appellant challenged the admissibility of two sentences in one of the letters, on the ground that it was highly prejudicial, under section 352. The letter (with the objected to portions italicized) read: “Hey baby. Here’s some things you might need. I’m sorry for being so rough with you and for everything also. I wish you would let me make everything up for you and give our girl everything she needs.

If you don’t come back with me soon, I don’t know what is going to happen. I’m trying to stay calm and do the right thing. I sold my weapons before I lose my mind. Sometimes I think about doing something stupid out here and injuring myself some time locked up to see—to see if I forgive you.

“But our kid helps me stay strong and look forward to him. If I didn’t do the best for you, I’m going to work twice as hard to do the best for our baby. If I can have you two, I’m going to be much different. I’m going to show you I can be responsible and straight.” (Italics added.)

The trial court ruled that the evidence was relevant and “highly probative” of appellant’s state of mind. While the exact date on which the letter was written was uncertain, the court observed that appellant and Rodriguez were in a year-long relationship and the letter was clearly written while Rodriguez was pregnant. Thus, the court concluded that the letter was “recent enough in time to inform us as to [appellant’s] mental state at the relevant time.”

At the conclusion of the trial, the jury was instructed, over appellant’s objection, with CALJIC No. 2.71.7: “Evidence has been received from which you may find that a statement or statements of intent, plan, motive, or design was or were made by the defendant before the offense with which he was charged was committed. [¶] It is for you to decide whether the statement or statements was or were made by the defendant. [¶] Evidence of an oral statement ought to be viewed with caution.”

B. Legal Analysis

Appellant asserts that the letter was more prejudicial than probative because (1) the sentence reading, “If you don’t come back with me soon, I don’t know what is going to happen,” while vague, undoubtedly sounded like a threat against Rodriguez; (2) the sentence reading, “I sold my weapons before I lose my mind” demonstrated that appellant had numerous weapons, which must have demonized him in the eyes of the jury; and (3) the letter’s probative value was low because it was undated and the challenged sentences were irrelevant to appellant’s state of mind when the shooting occurred.

First, the trial court acknowledged that the letter was “highly prejudicial in the sense that it’s highly probative” of appellant’s state of mind regarding intent to kill and premeditation, but section 352 is not intended to exclude evidence containing the sort of prejudice that naturally flows from relevant, highly probative evidence. As the appellate court explained in People v. Rucker, supra, 126 Cal.App.4th 1107: “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ [Citation.]” (Id. at p. 1119.) Appellant’s feelings, expressed in the letter, were probative of appellant’s state of mind, including his intent and motives, when he killed Rodriguez.

Second, the jury already had heard repeatedly that appellant had a gun. The potential prejudice of appellant's statement that he had sold his weapons was outweighed by its probative value in, again, reflecting appellant’s state of mind. Third, as the trial court stated, the letter was written while Rodriguez was pregnant, which was recent enough to be relevant to appellant’s state of mind at the time of the killing.

The court did not abuse its discretion in finding that the letter was relevant to appellant’s state of mind and was more probative than prejudicial. Similarly, admission of the letter did not violate appellant’s due process rights.

IV. Alleged Cumulative Error

Appellant contends his conviction should be reversed due to cumulative error. We have found that none of the alleged errors in this case were prejudicial. Nor do we find that the cumulative effect of any errors calls into doubt the jury’s verdict or undermines the fairness of the trial in this case. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

DISPOSITION

The judgment is affirmed.

We concur: Lambden, J., Richman, J.

As the alleged father of Rodriguez’s baby, appellant had submitted to paternity testing on approximately February 25, 2004, but had not received the results at the time of the shooting.

Section 1370 describes the circumstances in which evidence of a statement regarding infliction or threat of physical injury is not made inadmissible by the hearsay rule.

In addition, to the extent the testimony of Tressa Begay should not have been admitted due to the fact that (1) she could not identify appellant as the “boyfriend” who kicked Rodriguez and (2) Officer Menchaca’s testimony was not admitted for the truth of what Rodriguez said or admission of that testimony was error, we conclude that any error was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.) As with the officers’ testimony, there was considerable additional evidence regarding appellant’s ongoing abuse of Rodriguez.


Summaries of

People v. Garcia

California Court of Appeals, First District, Second Division
Apr 28, 2009
No. A116443 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL SALVADOR GARCIA, Defendant…

Court:California Court of Appeals, First District, Second Division

Date published: Apr 28, 2009

Citations

No. A116443 (Cal. Ct. App. Apr. 28, 2009)