Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF134138. Carl E. Davis, Judge.
Law Office of Kimberly R. Burke and Kimberly R. Burke for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Robert Garza made a series of telephone threats to his ex-wife, to her new husband, and to his own children. For example, he told his 16-year-old son, “I’m going to kill you and I’m going to strap you down. And I’m going to kill your brother first, slowly. And then I’m going to kill your mom and your dad and make you watch. And I’m going to get you last.” The victims believed they were in imminent danger, in part because, while defendant lived in northern California, their caller ID indicated that he was calling from the Riverside area.
A jury found defendant guilty on one count of stalking (Pen. Code, § 646.9, subd. (a)) and four counts of making a criminal threat (Pen. Code, § 422); it found him not guilty of attempted extortion (Pen. Code, § 524). He was sentenced to a total of four years in prison.
Defendant has not raised any contention concerning this sentence.
In this appeal, defendant contends:
1. There was insufficient evidence to support each of the five counts on which defendant was convicted.
2. The trial court erred by admitting evidence of prior incidents involving domestic violence.
3. The trial court erred by excluding evidence that defendant offered to impeach prosecution witnesses.
4. The prosecutor’s failure to disclose evidence tending to impeach prosecution witnesses violated Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].
5. The prosecutor was biased against defendant and committed misconduct in closing argument.
6. The trial judge was biased against defendant.
We find no prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
1. General background.
In 1989, defendant married Melina. They had two sons, David and Andrew. In 1996, defendant and Melina were divorced. After their separation, Melina became romantically involved with David Boswell, who had been defendant’s employee and friend. In 1998, Melina and Boswell were married. Melina had custody of the boys. The boys regarded Boswell as their father, and he regarded them as his sons.
We will refer to David Garza as “David” and to David Boswell as “Boswell.”
In 1997, defendant moved to Reedley, in northern California, near Visalia and Fresno. Defendant continued to have visitation with the boys; Melina and Boswell would drive them to Gorman, about halfway between their home and defendant’s, to meet him.
In 2000, defendant’s visitation stopped because the boys refused to go see him anymore. He continued to have “sporadic” telephone contact with them, usually around his birthday, Father’s Day, and Christmas. Sometimes these calls were pleasant. Sometimes, however, they turned into arguments. Defendant would call the boys “[l]ittle pieces of shit, pussies [and] cowards.” The boys would hang up, but defendant would call back up to 15 or 20 times.
Defendant blamed Melina for the fact that he did not have a relationship with the boys. He threatened her, Boswell, and the boys, saying, for example, “If it’s the last thing I do, I will kill you.” Between 2000 and 2006, he made such threats at least two or three times a year. Melina did not report these threats to the police, she testified, because “I knew he wouldn’t carry them out.” She explained that her caller identification (caller ID) showed that defendant was calling from his area code in northern California, so she knew that his threats to come over and kill her were not “plausible.”
The Boswells set up a separate phone line for defendant to use to call the boys. It had a speaker phone so the Boswells could “monitor what was going on” and “turn the phone off when it became abusive . . . .” It also had an answering machine and voice mail.
2. June 21, 2006, incident.
In June 2006, defendant called his son David. When David refused to have a weekend visit with him, defendant got very angry. Defendant told Melina, “[Y]ou’re going to die, you fucking bitch. You have taken my children away from me.” She hung up, but defendant kept calling back. He told Melina, “I’m going to kill you and your [fuck]ing husband, that coward. You’re going to die. You’re all going to die.”
On June 21, 2006, defendant called and left a message for Boswell saying, “You know what, coward? If it’s the last thing I do on God’s earth, you and Melina are going with me when I go.” The caller ID, however, showed that he was calling from his sister’s number in Visalia.
Defendant had recently told Melina and the boys that he was dying of cancer.
3. July 6, 2006, incident.
On July 6, 2006, defendant called and left another message, saying, “Hey, I didn’t think you’d answer the phone, coward. I’m here in Riverside. Uh. Be seeing you.” The caller ID showed that the call was coming from defendant’s cell phone, which had a northern California area code; however, he could have brought it with him to Riverside. Melina tried calling his cell phone, but he did not answer. She was very afraid. Defendant had never said before that he was in Riverside, so she believed that he was coming to kill them.
She called 911. While waiting for the police, she called defendant’s sister’s number. She spoke to a nephew, who said defendant “was there in Visalia[,] passed out.” Accordingly, she called the police again to tell them that there was no emergency.
Nevertheless, as a result of this incident, the Boswells went into “shutdown mode.” Their neighbors and the boys’ school were put on notice and told to watch out for defendant. They kept an alarm on at all times. The boys were not allowed to go outside.
4. December 21, 2006, incident.
Between December 21 and 22, 2006, defendant called the Boswells’ home a total of about 20 times.
The first time defendant phoned, around 8:00 or 8:30 p.m., Melina and Boswell were out. The caller ID indicated that the call was coming from a local Riverside number. Defendant’s son David answered. When he realized it was defendant, he said, “I don’t want to talk to you.” Defendant got angry, and David hung up.
At the time, David was 16; Andrew was 13.
Defendant then called back. He was “definitely intoxicated”; he was slurring his words and “not making a lot of sense . . . .” He said “he was outside, and he was coming over to kill [them].”
David hung up again, then called Melina and Boswell. Boswell told the boys to lock all the doors, close all the windows, and close all the blinds. Boswell called 911, and he had David call 911, too. Boswell and Melina called several neighbors and asked them to check on the boys. They then “[r]aced home.”
Meanwhile, defendant called David again. At one point, he said, “I’m outside. I can see you, but you can’t see me.” He added, “I bet your parents aren’t home.” He also said, “I’m going to fuck your girlfriend while you’re tied up, and you have to watch. And then I’m going to kill you slowly.” He then said, “I’m going to kill you and I’m going to strap you down. And I’m going to kill your brother first, slowly. And then I’m going to kill your mom and your dad and make you watch. And I’m going to get you last.” In addition, he said, “I have a gun, and I’m going to use it.”
David and Andrew were terrified. As Melina and Boswell were on the way, David phoned them, screaming, “He’s here. He’s here right now. There’s a car parked right in front and there’s a guy inside.” It turned out, however, that the “guy” in the car was one of the neighbors that Boswell had called.
After Melina and Boswell arrived, defendant phoned again. The caller ID indicated that he was calling from the same local Riverside number. He said, “I’m going to get you. . . . I’m going to kill all of you before I die.” He also said, “I’ve been watching you guys for the last four days. I am here. I know everything that you do. I’ve got your whole routine down. . . . I know everything that you’re doing.”
After the police arrived, defendant called yet again. Melina put the call on the speaker phone, so the officers could listen. They heard defendant say, “[Y]ou guys don’t know who you mess with and somebody is going to pay. And somebody is going to get hurt tonight.” When one officer’s radio made a noise, defendant said, “[O]h, hi, R.P.D. Have a nice day,” and hung up.
After the police left, defendant kept calling until sometime after midnight. He said, “[A]s soon as the cops are gone you all are going to die.” He also said, “I’m going to kill all of you before Christmas day.” At some point, Melina asked him where he was, and he said, “I’m in Riverside. I’m right around the corner.”
Melina was “[v]ery, very scared.” Boswell, too, was scared. He felt that defendant was “serious” and planned to kill them “within, if not hours or days, . . . by the end of the year.” No one in the family slept that night.
5. December 22, 2006, incident.
That night and the next day, Melina called defendant’s family members to find out whether he was really in Riverside, but none of them knew where he was.
On December 22, 2006, defendant called again. The caller ID showed the same local Riverside number. He told Melina, “Don’t call my family. . . . [Y]ou[r] kids are pieces of shit and I want nothing to do with them. . . . [S]o you tell the coward [i.e., Boswell] he can adopt them if he wants.” Melina replied, “We would love to.” Defendant then added, “Well, it’s going to cost you. Either you’re going to pay me, or you’re going to die.” Melina was “very afraid.” She called 911 again.
Melina admitted that she did not feel that she was in any immediate danger; she called 911 only because the nonemergency police number was closed.
As a result of these phone calls, the Boswells lived like “prisoner[s].” They would never leave the boys alone or let them go out in the front yard. Andrew took to sleeping in David’s room. The family kept the lights on in the house all night. Boswell kept a gun at work and kept several loaded guns in “strategic areas” around the house.
B. Defense Evidence.
Defendant testified on his own behalf. He denied making any death threats. He admitted leaving the June 21 and July 6 messages. He claimed that, when he said, in the June 21 message, “[Y]ou and Melina are going with me when I go,” he meant when he went to family court. He referred to this as “the last thing I do on God’s earth,” because he had previously had two heart attacks while in court.
Defendant admitted that, on December 21, 2006, he made about 10 phone calls to the Boswells. He also admitted that, in one call, he hung up after hearing a police radio. However, he denied saying, in that call, “[S]omeone is going to get hurt.”
He also denied telling David that he was in Riverside or that he was watching the house. He denied even knowing the Boswells’ address. He claimed that David said, “[D]ad[,] this is a strange number. . . . Where are you calling from?,” and he answered, “[I]t is a calling card. . . . I’m calling you from home.” Defendant admitted, however, saying in the July 6 message that he was in Riverside.
On rebuttal, Melina testified that she had given defendant the address when she first bought the house and again when he wanted to send the boys a card.
Defendant also admitted making a phone call on December 22, 2006. He claimed that all he said in that call, in reference to adoption, was, “[Y]ou couldn’t pay me enough to sign those stupid papers.”
II
THE SUFFICIENCY OF THE EVIDENCE
Defendant contends that there was insufficient evidence to support each of the five counts on which he was convicted. This contention is based on a highly selective and tendentious presentation of the record. Accordingly, we begin by reminding counsel of the applicable standard of review.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
A. Count 2: Threat Against Melina on June 21, 2006.
Count 2 charged defendant with making a criminal threat against Melina “on or about” June 21, 2006. The prosecutor asked the jury to find defendant guilty on this count based on the June 21 and July 6 phone messages.
“[T]o prove the offense of making criminal threats under [Penal Code] section 422[, t]he prosecution must prove ‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant made the threat “with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that the threat — which may be “made verbally, in writing, or by means of an electronic communication device” — was “on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’ [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 630, fn. omitted.)
In connection with count 2, defendant argues that there was insufficient evidence of the necessary credible threat or sustained fear. He claims that Melina knew that he was in northern California when he left the messages. This misstates the record. On June 21, Melina’s caller ID showed that defendant had called from his sister’s phone number in Visalia, which had a 559 area code. On July 6, however, when defendant left a message saying, “I’m here in Riverside. . . . Be seeing you,” the caller ID showed that defendant had called from a different number — a cell phone with a 559 area code. As Boswell testified, defendant could have brought such a cell phone with him, and he could have been using it in Riverside.
Defendant also argues that there was insufficient evidence of the necessary specific intent because he was voluntarily intoxicated. However, there was no evidence that defendant was intoxicated on June 21 or July 6.
In support of this argument, defendant cites evidence that he was intoxicated on December 21, 2006. We will discuss that evidence in connection with count 3, in part II.B, post.
Even if there were, however, this contention would lack merit. Certainly a jury can find, as a factual matter, that a defendant lacked a necessary specific intent because he or she was voluntarily intoxicated. (See Pen. Code, § 22, subd. (b).) However, “[w]hether the state of intoxication is such as to render one incapable of entertaining the requisite knowledge or specific intent necessary to commit a crime is for the trier of fact to determine; and its finding upon conflicting evidence will not be disturbed on appeal. [Citations.]” (People v. Morga (1969) 273 Cal.App.2d 200, 209.) Here, there was ample evidence that defendant had the necessary specific intent that his statements be taken as a threat. For example, he stated falsely that he was in Riverside; the only conceivable reason to do this was to further terrorize his victims.
Defendant did not request any jury instruction on voluntary intoxication. (E.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3426, 3427.) There is no duty to give a voluntary intoxication instruction sua sponte (People v. Rundle, supra, 43 Cal.4th at p. 145); defendant does not argue otherwise. Thus, defendant has forfeited any claim that the trial court erred by failing to give a voluntary intoxication instruction. “In the absence of instructions, defense counsel could simply argue that defendant did not actually have the necessary mental state due to his intoxication, just as counsel could argue any other inferences from the evidence.” (People v. Castillo (1997) 16 Cal.4th 1009, 1014.)
We therefore conclude that there was sufficient evidence to support the conviction on count 2.
B. Count 3: Threat Against David on December 21, 2006.
Count 3 charged defendant with making a criminal threat against David on December 21, 2006. The prosecutor explained to the jury, “This is regarding the telephone calls that the defendant makes to David . . . before Melina and . . . Boswell arrive at the house.”
Count 3 charged making a criminal threat against “John Doe #1”; count 4 charged making a criminal threat against “John Doe #2.” (Capitalization omitted.) The prosecutor made it clear to the jury that in count 3, the alleged victim was David, whereas in count 4, the alleged victim was Boswell. Defendant gets this backward in his brief.
Once again, defendant argues that there was insufficient evidence of the necessary credible threat or sustained fear. However, there was ample evidence that David was more frightened than any child (or even teenager) should ever have to be. Defendant conveniently fails to mention the fact that he made statements to his own son such as, “I’m going to fuck your girlfriend while you’re tied up, and you have to watch. And then I’m going to kill you slowly.” He also said, “I’m going to kill you and I’m going to strap you down. And I’m going to kill your brother first, slowly. And then I’m going to kill your mom and your dad and make you watch. And I’m going to get you last.” Moreover he said, “I’m outside. I can see you, but you can’t see me,” adding, “I bet your parents aren’t home.”
David admitted that he was “terrified.” The fact that defendant was calling from the 951 area code made him even more scared: “[I]t all clicked together.” He was afraid that defendant was going to come to the door “that day, that night” and kill him.
When David first called his parents, he sounded “[s]cared” and “very, very upset.” He called his parents again, “screaming” and saying, “He says he’s outside. He says he’s outside. Where are you? Where are you?” When he saw a car in the driveway, he “freaked out.” He was screaming, “[H]e’s here, he’s here.” By the time his parents got home, he was crying and “in hysterics.” His anxiety was “[a] 10.” He was unable to sleep that night, and he continued to have trouble sleeping afterwards.
David concluded, “[T]hat night changed my life. [¶] . . . [¶] . . . I have a hard time when I go into [the] public. . . . I have . . . an underlying fear that’s always going to be there of not trusting people, and not knowing what’s going to happen when my back is turned.”
Faced with this mass of evidence, defendant attempts to cherry pick isolated bits that are favorable to him. For example, he cites David’s testimony that, when he asked defendant where he was calling from, defendant said, “‘I bet you would like to know.’ Or joking around trying to scare me.” (Italics added.) David also testified, however, that he believed that defendant was actually in Riverside; by “joking,” he actually meant that defendant was trying to scare him even more by refusing to say where he was: “He’s not going to tell me where he is if he’s actually here for the wrong reasons.”
Defendant also notes that David yelled back at him. David actually testified, however, “I was so scared the entire time. But there was a point where . . . I felt like I needed to be strong for my brother . . ., and stand up to him. [¶] So I started to yell back.” (Italics added.)
Defendant also cites David’s testimony that, after the police left, “ . . . I kind of walked away. [Defendant] continued to call, but my dad and mom, they had it under control. They were just talking to him. [¶] . . . I heard my mom and dad laughing at some points when he would talk.” The fact that David felt better, however, after his parents were home and he no longer had to deal with defendant all by himself does not negate the other evidence that he was actually badly scared.
Finally, defendant cites David’s statement that, if defendant showed up, he (David) could “take him.” However, David did not say this until several days or even a week after the phone calls.
Next, defendant argues that, if David was scared at all, he was scared not by defendant’s phone calls, but by Boswell’s “paranoid ‘lockdown mode . . . .’” This is a classic case of blaming the victim. It implicitly assumes that Boswell’s reaction was unreasonable. To the contrary, however, the jury could find that Boswell was reacting reasonably to defendant’s threats. Moreover, there is no evidence that Boswell’s reasonable precautions increased David’s fear at all. To the contrary, David testified that Boswell’s arrival had “[a] very calming effect” on him.
In his statement of fact, defendant asserts: “Paranoid and having the ‘lockdown’ scenario playing in his head, David panicked and called . . . Boswell.” (Italics added.) He cites Melina’s testimony that “David called my husband’s cell phone and said that [defendant] had called.” There is absolutely no evidence that, at this point, David was “paranoid” or that he “ha[d] the ‘lockdown’ scenario playing in his head.”
Finally, defendant notes that there was evidence that he was drunk. However, unlike with respect to count 2, he does not appear to argue that this evidence precluded a finding that he had the necessary specific intent with respect to count 3. If only out of an excess of caution, we note again that the jury could reasonably find that, despite his intoxication, he intended his statements to be taken as a threat. Indeed, there was no other way to take them.
We therefore conclude that there was also sufficient evidence to support the conviction on count 3.
C. Count 4: Threat Against Boswell on December 21, 2006.
Count 4 charged defendant with making a criminal threat against Boswell on December 21, 2006. Defendant argues yet again that there was insufficient evidence of the necessary credible threat.
He said he had been watching the family for four days, and he was going to kill them all. While the police were there, he said, “[S]omebody is going to get hurt tonight.” He then called back and said, “[A]s soon as the cops are gone you all are going to die.” He also said, “I’m going to kill all of you before Christmas day.” These threats reasonably placed Boswell in fear for his and for his family’s safety.
Defendant’s whole argument seems to be premised on taking a single snippet of Boswell’s testimony out of context. He quotes Boswell as saying, “I don’t recall anything specific to the point of ‘I’m going to kill you’ or anything to that effect.” The question Boswell was answering, however, was “[W]hat did defendant say while the officer was there?” (Italics added.) Thus, Boswell’s answer does not negate the fact that defendant made explicit death threats when the officer was not there. Moreover, the threat that defendant did make while the officer was there, although not a death threat, was evidently a threat of great bodily harm.
We therefore conclude, again, that there was sufficient evidence to support the conviction on count 4.
D. Count 5: Threat Against Melina on December 22, 2006.
Count 5 charged defendant with making a criminal threat against Melina on December 22, 2006. Defendant continues to challenge the sufficiency of the evidence of the necessary credible threat and sustained fear.
The previous night, defendant had made repeated threats to kill Melina and her family. On December 22, 2006, he told her, “Either you’re going to pay me, or you’re going to die.” Even a seemingly conditional threat can violate Penal Code section 422. (People v. Bolin (1998) 18 Cal.4th 297, 338-340; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536-1538.) Melina reasonably believed that defendant was in Riverside. She was “very afraid.” She testified, “ . . . I felt desperation from him and that scared me.” After this incident, she “was in fear constantly,” “afraid that [defendant] was lurking around anywhere at any time.” This was sufficient evidence of both a credible threat and sustained fear.
Once again, in arguing otherwise, defendant seizes on bits of evidence taken out of context. For example, Melina admitted that defendant’s voice was “pretty calm,” rather than screaming or yelling; however, a threat may be issued calmly.
Melina also admitted that, when she called the police, she did not feel she was in any immediate danger “at that moment . . . .” However, she explained, “[Boswell] and I were the only ones home. The kids were not home, and we were leaving.” This was not inconsistent with her testimony that the incident left her in sustained fear that defendant “was watching” and would “come out [of] nowhere.”
Defendant cites Boswell’s testimony that, during the conversation, Melina “chuckled”; however, he made it clear that she did so before defendant’s threat to kill.
Once again, defendant also cites David’s testimony that, when defendant made the threat, the whole family laughed. David explained that he found it “ridiculous to think that defendant would want my parents to pay him to adopt us or he’d kill us.” He did not think that his parents were “taking it seriously.” However, he also testified that he thought that defendant “was serious about what he was saying.” He added that Melina was “crying” and “definitely upset.” Andrew confirmed this. The jury could reasonably find that David’s claim that his family did not take the threat seriously was just an act of bravado on his part. Even if not, it could reasonably accept Melina’s testimony that she was, in fact, frightened, rather than David’s contrary opinion.
Accordingly, we conclude that there was sufficient evidence to support the conviction on count 5.
E. Count 1: Stalking of Melina.
Count 1 charged defendant with stalking Melina between June 21 and December 22, 2006.
“The elements of the crime of stalking ([Pen. Code,] § 646.9) are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury. [Citation.]” (People v. Ewing (1999) 76 Cal.App.4th 199, 210.) “Harasses,” in this context, means “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (Pen. Code, § 646.9, subd. (e).)
Defendant therefore argues that his phone calls served a legitimate purpose, namely “to speak with his children . . . .” The messages that he left on June 21 and July 6, however, were threats to kill Melina and Boswell, not requests to speak to his children. And we are at a loss to imagine how telling one’s own 16-year-old son, “I’m going to fuck your girlfriend while you’re tied up, and you have to watch. And then I’m going to kill you slowly,” could be seen as a legitimate effort to keep the channels of communication open.
Thus, finally, we conclude that there was sufficient evidence to support the conviction for stalking on count 1.
III
EVIDENCE OF PRIOR DOMESTIC VIOLENCE INCIDENTS
Defendant contends that the trial court erred by admitting evidence of prior incidents involving domestic violence.
A. Additional Factual and Procedural Background.
1. The prosecution’s motion in limine.
Before trial, the prosecution filed a “Notice of Intent to Admit Evidence of the Defendant’s Commission of Other Domestic Violence Pursuant to E[vidence] C[ode] Section 1109.” (Capitalization omitted.) The notice did not specify the evidence that the prosecution intended to present.
When the case was called for trial, the trial court asked:
“THE COURT: . . . [¶] Now, anything else with respect to this 1109, 1101 evidence? Anything further?
“[PROSECUTOR]: People submit on the motion.
“THE COURT: Anything further?
“[DEFENSE COUNSEL]: No, I’ll submit, Your Honor.”
The trial court mentioned a “brief” apparently containing a list of incidents (designated “A” through at least “H”). It excluded evidence of incident “F” as not “really terribly probative . . . .” It also excluded evidence of incident “H,” unless the prosecution could establish more precisely when it occurred. It admitted evidence of all the other listed incidents, explaining: “I think they are probative of intent . . . . And . . . very probative of the level of terror imposed. And also on a common plan and scheme of animosity towards these individuals.”
We have not found any such brief in the record.
2. Evidence presented at trial.
The prosecution introduced evidence of prior incidents of misconduct by defendant, including the following.
a. 1988: Defendant breaks Melina’s finger.
In 1988, at a Halloween party, defendant got into an argument with Melina’s brother. On the way home, defendant and Melina started arguing with each other. Defendant was drunk. After they got home, defendant drew back his hand to “back hand” Melina. She put up her hands to block the blow. Defendant hit one of her hands and broke her finger.
b. 1990: Defendant shoots a bed.
In 1990, during an argument, defendant pointed a gun at Melina, then fired a shot into a nearby bed.
c. 1996: Defendant goes to Melina and Boswell’s house with a gun in his truck.
In 1996, in a phone call, defendant told Melina that he knew that she was dating Boswell. He said, “I’m on my way over, and I am going to kill both of you and the boys.” She called 911.
When defendant arrived, police officers intercepted him on the front porch. He was hostile and “extremely aggressive.” He asked, “[W]here is the mother fucker?” He appeared to be intoxicated. He was arrested. A loaded handgun was found in his truck. When Melina and Boswell heard about the gun, it contributed to their fear of defendant.
d. 1997: Defendant and his brother attack Boswell in Gorman.
In 1997, Melina, Boswell and the boys met defendant in the parking lot of a McDonald’s in Gorman for purposes of visitation. Defendant arrived with his brother.
The boys went to defendant’s car, but he “shoved them away”; he and his brother confronted Boswell instead. Boswell was in the driver’s seat of his car. Defendant yelled, “[G]et out of the car, mother fucker, we’re going to kill you right here.” He and his brother kicked Boswell’s car and spat in Boswell’s face. At one point, defendant “opened up [his] trench coat to show that he had his gun” in his waistband.
The boys were screaming and crying. Boswell said, “[N]ot in front of the kids. . . . You have the kids. Just take them and go.” When Boswell started honking his horn, defendant backed off.
e. 2000: Defendant shoves a table at Mary.
In 2000, David and Andrew were visiting defendant in Reedley when, during an argument with his then-wife, Mary, defendant shoved a table “up against her hard,” pinning her against the wall. David threw cans from a recycling bin at defendant and yelled at him, “[J]ust leave her alone. Let her go.” Afterwards, the boys “begged” their parents not to have to visit defendant anymore.
f. 2004: Defendant claims to have used witchcraft to kill his sons’ cousin.
In 2003, the boys’ cousin Brad was killed in a car accident. They had been very close to him.
In February 2004, defendant told the boys, “[T]hat wasn’t an accident. I’ve been practicing witchcraft, and I put a curse on [Brad]. That’s why he died. And I put a curse on the rest of the family, and all you guys will die before you turn 18 . . . .” Both boys were devastated.
g. 2004: Defendant threatens to kill Melina’s mother and Boswell.
In 2004, defendant phoned Melina’s mother. During the call, he got angry; he called her “a fucking bitch” and said that he was going to shoot her with a gun. She was “very frightened.”
Melina’s brother took the phone away from his mother. Defendant calmed down but said, “I won’t rest until I kill [Boswell].”
3. Defendant’s new trial motion.
After the verdict, defendant filed a motion for new trial, arguing, among other things, that the trial court had erred by admitting evidence of six of the foregoing seven incidents. The trial court (through a different judge than had presided at trial) denied the motion.
Defendant’s motion for new trial did not challenge the admission of the 2004 hexing incident, although defendant does challenge it in this appeal. Conversely, it did challenge the admission of a 2005 phone call to Melina’s mother, although defendant does not challenge it in this appeal.
B. Analysis.
Preliminarily, defendant has forfeited this contention by failing to provide us with a record that shows that he objected to the challenged evidence. (Evid. Code, § 353, subd. (a).) We may assume, without deciding, that defense counsel’s statement, “I’ll submit, Your Honor,” constituted an adequate objection. Even if so, the prosecution’s list of proffered incidents is not in the record. As a result, we have no way of knowing to which incidents defense counsel was objecting.
Significantly, defendant himself seems to be none too clear on this point. His new trial motion raised one of the incidents that has not been raised in this appeal, and vice versa. Moreover, the prosecution introduced evidence of an incident, not listed above, in which defendant threatened Boswell in a park in 1996; defendant has never argued, either in his new trial motion or on appeal, that this evidence should have been excluded. We cannot just assume that he objected to each of the incidents about which he now complains.
The sole exception is the incident in 2000 involving Mary and a table. Defense counsel objected to this evidence when it was offered based on Evidence Code section 352. Hence, this objection has been preserved for appeal.
Defendant claims that “[d]efense counsel objected to the introduction of this evidence at numerous times during the trial.” Aside from the objection noted in footnote 13, ante, however, the objections that defendant cites were to isolated questions, not to evidence of any incident as a whole. Moreover, they were made on grounds that defendant is no longer raising on appeal (such as “[a]ssumes facts not in evidence” or “leading”). In addition, some of these objections were sustained.
Separately and alternatively, defendant’s contention also fails on the merits. He does not dispute that this was “a criminal action in which the defendant is accused of an offense involving domestic violence” under Evidence Code section 1109, subdivision (a). He further does not dispute that each of the challenged incidents constituted “evidence of the defendant’s commission of other domestic violence” under the same subdivision, and he has forfeited any contrary contention.
Defendant has likewise forfeited any contention that the trial court misinstructed the jury in any way.
Defendant points out that some of the incidents were more than 10 years old. Under Evidence Code section 1109, subdivision (e), “[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Defendant argues that the trial court never made such a finding. “No such explicit finding is required. ‘A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.’ [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 710, quoting Evid. Code, § 402, subd. (c).)
Moreover, besides being admissible under Evidence Code section 1109, the incidents were also admissible to show that the charged threats caused the victims “reasonably to be in sustained fear,” as Penal Code section 422 requires. (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967 [prior incidents of domestic violence were relevant to show that the charged threats placed defendant’s wife in reasonable and sustained fear].) For example, it was highly relevant that, in connection with the 1990, 1996, and 1997 incidents, defendant was in possession of a gun. Melina and Boswell, knowing that defendant had carried a gun in the past, would naturally take his current threats more seriously.
Defendant argues that the trial court erred by admitting evidence of the prior incidents as evidence of intent under Evidence Code section 1101, subdivision (b). In connection with the stalking charge, however, the prosecution had to prove that defendant intended to place Melina in fear for her or her family’s safety. (Pen. Code, § 646.9, subd. (a).) Likewise, in connection with the criminal threat charges, it had to prove that defendant had the specific intent that his statements be taken as a threat. (Pen. Code, § 422.) Some of the current threats — particularly the threats in June and July 2006 — were ambiguous. For example, defendant admitted saying, “If it’s the last thing I do on God’s earth, you and Melina are going with me when I go,” but he claimed that he only meant that they would go with him to family court. The evidence of the prior incidents was relevant to prove the requisite intent. (People v. Garrett, supra, 30 Cal.App.4th at pp. 966-967 [evidence of prior incidents of domestic violence was also relevant to show that defendant had specific intent that his wife take his statement as a threat].)
In any event, the jury was not instructed that it could consider the prior incidents as evidence of intent. Because they were admissible for other purposes, any error in admitting them on this theory was harmless.
Defendant’s primary argument is that the incidents were unduly prejudicial so as to be inadmissible under Evidence Code section 352 (both by itself and as incorporated by reference into Evidence Code section 1109, subdivision (a)). He argues that the prior incidents were remote, as well as more inflammatory than the charged conduct, and that he had not been criminally convicted in connection with any of them. While some of the incidents were relatively remote, others were not. Taken together, they showed that defendant’s predisposition to try to control his family members with violence and threats of violence was long-standing and consistent over time. Thus, the totality of the incidents was greater than the sum of its parts.
Admittedly, some of the prior incidents involved actual violence, whereas the current charges involved only threats of violence. Nevertheless, as already noted, this was relevant to whether the victims’ fear was reasonable and sustained. The trial court could reasonably conclude that the probative value of the prior incidents outweighed their prejudicial effect.
Finally, while the fact that the prior incidents did not result in criminal convictions militated against their admission, this fact alone did not require the trial court to exclude them. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
We therefore conclude that defendant has not shown that the trial court erred by admitting the challenged incidents.
IV
THE EXCLUSION OF IMPEACHMENT EVIDENCE
Defendant contends that the trial court erred by excluding evidence that he offered to impeach Melina and Boswell.
A. Evidence Offered to Impeach Melina.
First, defendant argues that the trial court erred by excluding evidence of Melina’s drug and alcohol use.
1. Additional factual and procedural background.
David testified that, on December 21, 2006, defendant told Boswell, “Your wife is a meth head . . . .” On cross-examination, defense counsel claimed to be “unfamiliar with the term” and asked David to define it. The trial court sustained the prosecution’s relevance objection.
On cross-examination, defense counsel asked Melina:
“Q. Do you drink often?
“A. No, not often, but I do drink, absolutely.
“Q. Any other substances that you’ve used?
“A. No.
“[PROSECUTOR]: Objection, relevance.
“THE COURT: Well, the answer is in. [¶] Overruled.”
When defendant took the stand, he testified that, in the 1988 Halloween party incident, he got into an argument with Melina’s brother “because I had caught him and Melina snorting cocaine . . . .” The prosecutor objected based on relevance and moved to strike. Defense counsel argued that the testimony was relevant to impeach Melina’s previous testimony that she had not used drugs. The trial court sustained the objection: “[T]hat’s impeachment on a collateral issue. It has nothing to do with this trial.” It then instructed the jury to disregard “any reference to the issue of cocaine . . . .”
B. Analysis.
How David would define a “meth head” was, indeed, irrelevant. Defendant does not really even argue otherwise.
The trial court also did not err by prohibiting defendant from testifying about Melina’s supposed cocaine use. “[T]he trial court has discretion to exclude impeachment evidence . . . if it is collateral, cumulative, confusing, or misleading. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 412.)
“A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted. [Citations.]” (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Melina’s use (or nonuse) of cocaine, by itself, was irrelevant. Defense counsel had gotten Melina to testify that she did not use drugs, but only because the prosecutor had objected too late. This did not mean that defendant was then entitled to impeach Melina on that point.
Defendant argues that the exclusion of this evidence violated his right to confront and cross-examine the witnesses against him. However, “‘[a] trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.’ [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 208.) The collateral impeachment at issue here — a single disputed incident of cocaine use almost 20 years earlier — would have had absolutely no effect on any reasonable jury.
B. Evidence Offered to Impeach Boswell.
Defendant argues that the trial court erred by excluding evidence that Boswell had been terminated from his job as a police officer for threatening to kill other officers.
1. Additional factual and procedural background.
On cross-examination, Boswell testified:
“Q. . . . [W]ere you formerly employed in a position [in] which you carried a handgun?
“[PROSECUTOR]: Objection, relevance.
“THE COURT: Overruled.
“THE WITNESS: I did go through the police officers’ — Peace Officers’ Standard and Training academy. And, yeah, I carried a firearm as a police officer, as a reserve officer.
“Q. . . . Did you graduate from the academy?
“A. I did.
“[PROSECUTOR]: Objection, relevance.
“THE COURT: The answer is in. Overruled.
“[DEFENSE COUNSEL]: . . . Did you work for the police department?
“A. For a police department? I did.
“[PROSECUTOR]: Again, Your Honor, objection.
“THE COURT: . . . I would sustain the objection, and strike the answer. It is irrelevant.”
During the cross-examination of one of the Boswells’ neighbors, Robert Creed, there was this exchange:
“Q. And what was your opinion with regard to [Boswell’s] reputation for being honest?
“A. Well, as far as I know, I mean, he’s an honest person. . . .
“Q. And have you had an opportunity to talk with Mr. Boswell about his former employment with the police department?
“A. Uh-huh.
“[PROSECUTOR]: Objection, Your Honor, relevance.
“THE COURT: I’m inclined to sustain the objection, unless you want to be heard at the [b]ench.”
Defense counsel then made an offer of proof that Boswell had been “fired from the Hemet Police Department for making statements that he was going to kill or shoot one sergeant and the chief of police.” When the trial court asked, “How do you intend to prove that?,” defense counsel proffered a declaration by Boswell.
The declaration had been filed in 1996, in connection with defendant’s divorce from Melina. It responded to a number of allegations that had evidently been made in a separate declaration by defendant (which is not in the record). In it, Boswell stated, among other things: “I was fired from the Hemet Police Department in February of 1996. It is true that the incident very much upset me, due to the fact that I had worked so hard to graduate number 1 in my academy class, that I was the youngest officer to ever be hired by the Hemet Police Department, and that I had been terminated over an incident which had absolutely no merit to it a[t] all. . . . I was merely ‘blowing off steam’ and never had any intention of ‘killing[,]’ ‘shooting’ or hurting anyone. In fact, I hired an attorney, and am currently engaged in pending litigation with the Hemet Police Department.”
The trial court postponed ruling on the matter until the prosecutor had had an opportunity to review the declaration. Eventually, after hearing further argument, it ruled: “With respect to the effort to impeach the witness, David Boswell, the objection[] is sustained.” It explained: “[T]he impeaching event is muddled, ambiguous, and is a series of accusations . . . and denials . . . and the merits are completely fuzzy. [¶] It lacks impeaching quality in my opinion. And it leads us down a road of inquiring into collateral events and issues that are too muddled to be important in this trial.”
The trial court also excluded the evidence because it had not been produced in discovery. Defense counsel, however, represented that she had learned of it for the first time one day before she sought to introduce it. Because we can sustain the trial court’s ruling on other grounds, we need not decide whether we could also sustain it on this ground.
B. Analysis.
Evidence of past misconduct involving moral turpitude is admissible to impeach a witness. (People v. Sapp (2003) 31 Cal.4th 240, 289.) This is because “[m]isconduct involving moral turpitude may suggest a willingness to lie [citations] . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) However, “impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted.)
Here, Boswell’s declaration fell short of showing any moral turpitude. It did show that he had been terminated, but it did not did not show the reason for the termination; hence, it did not show that the termination involved moral turpitude. Moreover, Boswell denied that the termination had been justified. And defendant did not offer any proof other than Boswell’s declaration. While Boswell could have been recalled and asked whether he had threatened to kill or to shoot anyone, there was no basis for a good-faith belief that he would say, “Yes.”
Defendant asserts that Boswell had made “threats to kill and sho[o]t the Chief of Police and another specific police officer . . . .” Boswell’s declaration, however, failed to show this. Defendant seems to assume that, by putting quotation marks around the words “killing” and “shooting,” Boswell implicitly admitted making such threats. To the contrary, however, the quotation marks appear to mean that these were statements that defendant, in his declaration, had attributed to Boswell. Once again, Boswell’s declaration was largely devoted to contradicting a declaration by defendant that is not in the record. As the trial court ruled, “ . . . I’ve read and reread the declaration and . . . that is not, by any means, an admission that he threatened to kill anybody. [¶] . . . [¶] It is just the opposite . . . .”
As the prosecutor aptly stated, “[i]t is like [getting the] second half of a phone conversation . . . .”
Defendant also argues that the evidence was admissible to impeach testimony by Boswell and Melina that Boswell did not threaten defendant and generally remained calm in the face of defendant’s threats. Once again, however, there was no evidence that Boswell actually made any threats of his own. For the same reasons, there was no violation of defendant’s right to confront and cross-examine the witnesses against him.
Finally, defendant contends that the prosecutor’s failure to disclose “[t]he circumstances of David Boswell’s termination from the Hemet Police Department” violated Brady v. Maryland, supra, 373 U.S. 83. We must reject this claim because, at least on this record, there is no evidence that those circumstances would have been impeaching.
We therefore conclude that the trial court properly precluded defendant from introducing evidence concerning Boswell’s termination.
V
PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed misconduct by stating in closing argument that, during the 1997 Gorman incident, defendant had “a gun in his hand.”
Defense counsel forfeited this contention by failing to object to the asserted misconduct and by failing to request a curative admonition. (People v. Wallace (2008) 44 Cal.4th 1032, 1092, petn. for cert. filed Jan. 16, 2009.)
Even if not forfeited, the contention lacks merit. The evidence showed that, while defendant did not literally have a gun in his hand, he did have one in his waistband, and he made a point of displaying it. “Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]” (People v. Rundle, supra, 43 Cal.4th at p. 157, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Ordinarily, “[f]or a prosecutor to misstate the evidence is prosecutorial misconduct. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 550.) Here, however, the misstatement was so insignificant that it was not really deceptive, much less reprehensible. Certainly the difference between defendant having a gun in his hand and a gun in his waistband could not possibly have made a difference to the verdict. (See People v. Jackson (1996) 13 Cal.4th 1164, 1240 [“[t]here was no reasonable possibility, however, that the jurors would have been swayed by what was, at most, a minor mischaracterization”].)
Defendant also argues that the prosecutor displayed “bias” by asking him the question italicized below:
“Q. In fact, isn’t that just kind of a term that you use, that people are a piece of shit?
“A. You know, I have to admit that I do use that term, yes.
“Q. Isn’t it true you even called me a piece of shit?
“A. Oh, I called you a lot worse than that.” (Italics added.)
Defense counsel forfeited this contention at trial by failing to object or to request an admonition. Defendant has further forfeited it on appeal by failing to support it with reasoned argument or citation of authority. (People v. Stanley (1995) 10 Cal.4th 764, 793.) In any event, we fail to see how the question shows bias or any other form of misconduct. It was asked to support the testimony of various witnesses that defendant had used the term “piece of shit” by showing that this was a habitual part of his vocabulary.
We conclude that defendant has not shown any prosecutorial misconduct.
VI
JUDICIAL BIAS
Defendant contends that the trial judge was biased against him. He notes that the trial ran longer than the parties’ time estimate and, hence, longer than the trial judge’s assignment. He cites three instances in which the trial judge excluded evidence offered by the defense, then argues that the judge must have made these rulings solely to shorten the duration of the trial. He also cites the fact that the judge gave a jury instruction that referred to two of the incidents that had been admitted under Evidence Code section 1109.
That instruction began: “The People have presented evidence that the defendant committed domestic violence that was not charged in this case, such as the mattress shooting or the [Mary] table incidents.” (CALCRIM No. 852, as modified, italics added.)
The record fails to show any judicial bias. “[A] trial court’s numerous rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]” (People v. Guerra, supra, 37 Cal.4th at p. 1112.) Defendant rather conspicuously does not assert the supposedly erroneous evidentiary rulings as independent grounds for reversal, but only as evidence of bias.
Moreover, judicial bias must be raised at the “‘“earliest practicable opportunity”’”; it cannot be raised for the first time on appeal. (People v. Guerra, supra, 37 Cal.4th at p. 1111.) “[D]efendant’s willingness to let the entire trial pass without a[] charge of bias against the judge not only forfeits his claims on appeal but also strongly suggests they are without merit. [Citation.]” (Id. at p. 1112.)
We therefore reject defendant’s claim of judicial bias.
VII
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.