Opinion
E068230
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DERRICK RESCHARD GRAY, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1700002) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
After hearing evidence Derrick Reschard Gray physically abused his wife in the presence of his sons, a jury convicted him of inflicting corporal injury on a spouse, assault with a deadly weapon, assault by means likely to produce great bodily injury, and two counts of child endangerment. On appeal, Gray argues the admission of evidence of two previous uncharged acts of domestic violence against his wife rendered the trial fundamentally unfair. We disagree and affirm.
I
FACTUAL BACKGROUND
The victim and Gray have been married for over a decade and have two sons together, who were 14 and 9 at the time of the events. On the evening of July 14, 2016, Richard Salomon, a Palm Springs police officer, responded to a call from the victim's apartment regarding a stolen vehicle. When he arrived he interviewed the victim and each son separately, and recorded their statements. The victim reported Gray had pulled her out of the car, followed her into the apartment, and hit her in the face in front of their sons. Gray was yelling at her and demanding the car keys. She told the boys to go to their room, then gave Gray the keys and told him to leave, at which point he drove away.
The victim told Salomon that Gray was dangerous. She said that about a week earlier, on July 2, he had choked her and hit her several times with a bedrail, causing cuts and bruises to her shoulders, arms, and wrists. The bedrail was five to six feet long and made of metal. Salomon took photographs of her injuries and the prosecutor showed them to the jury, along with playing the audio recording of her and her son's police interviews.
The 14-year-old son told Salomon that Gray had followed them into the apartment demanding the car keys and threatening to kill them. He saw Gray punch his mother in the face seven to eight times. He said his parents fought "all the time." The nine-year-old son said he saw Gray punch his mother's head and stomach about six times and kick her leg.
A few weeks later, police arrested Gray on charges of domestic violence and he waived his Miranda rights and agreed to give a statement. When the officer asked if he recalled anything happening on July 2 and 14, Gray responded, "I wasn't even there, sir." Asked if he had ever been physically violent with the victim or hit her with a bedrail, Gray replied, "No comment."
At trial, the victim and her two sons recanted. The victim claimed the altercation between her and Gray on July 14 had been verbal only and denied the July 2 bedrail incident as well, claiming she had sustained the injuries from climbing through her apartment window and accidentally falling on the bedrail. The older son testified he didn't see anything that day, he had just overheard his parents arguing over food. The younger son initially testified he had never seen his father hit his mother, but ultimately divulged that he saw him hit her that day as well as on another occasion about a year earlier. He agreed those incidents were "scary," and said he didn't talk about it with anyone but his brother.
During her direct examination, the victim admitted Gray had physically abused her in the past. She said that in 2013 he picked her up and slammed her on the ground, breaking her tailbone. In 2010, he punched and kicked her during an argument and was subsequently convicted of inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a).)
At the close of evidence, the trial court instructed the jury with CALCRIM No. 852 (Evidence of Uncharged Domestic Violence), which states in relevant part: "If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit [the charged counts]. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [the charged counts] . . . . Do not consider [the uncharged acts] for any other purpose except for [this] limited purpose . . . ." During closing argument, the prosecutor referenced the 2010 and 2013 incidents and Evidence Code section 1109, saying, "The law in [its] way is saying once an abuser, always an abuser. You can accept that as propensity that if you did it then—yeah, maybe that['s] something that we should consider to say he did it now."
The jury convicted Gray of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (f)(1), count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 2), assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 3), and child endangerment (Pen. Code, § 273a, subd. (a), counts 4 & 5) based on the two July 2016 incidents. The court found Gray had suffered a prison prior, as well as two prior strike and serious felony convictions. After acknowledging the People had declined to prosecute the case as a 25-years-to-life third strike case under the "Three Strikes" Law, the trial court struck one of Gray's two prior strikes under Penal Code section 1385 in the interests of justice, and sentenced him to a total of 16 years in prison.
II
DISCUSSION
Defendant argues the admission of evidence about the 2010 and 2013 domestic violence incidents violated his right to a fair trial on two grounds—(1) that Evidence Code section 1109, which permits admission of a defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes, is unconstitutional on its face and (2) that the trial court abused its discretion under Evidence Code section 352 by admitting evidence of the prior incidents because their potential for prejudice substantially outweighed their probative value. We disagree in both regards.
Decades ago, in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected the argument that Evidence Code section 1108 (an analogous provision permitting evidence of prior uncharged sexual offenses to show a propensity to commit such crimes) was unconstitutional on its face. (Falsetta, at p. 918) Falsetta noted that while Evidence Code section 1101 generally prohibits evidence of prior acts to prove a criminal disposition, the Legislature had expressly relaxed this constraint with respect to sex offense cases by enacting Evidence Code section 1108. (Falsetta, at p. 911.) The Court emphasized the difficulty of raising a due process challenge to a state criminal evidence statute: "To prevail on such a constitutional claim, defendant must carry a heavy burden. The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. [Citations.] In the due process context, defendant must show that [Evidence Code] section 1108 offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Id. at pp. 912-913.)
The Court concluded Evidence Code section 1108 did not unduly offend those principles because Evidence Code section 352 acts as a sufficient safeguard to ensure any prejudice evoked by evidence of prior domestic abuse would not substantially outweigh the probative value of that evidence. (Falsetta, supra, 21 Cal.4th at p. 917.) "By subjecting evidence of uncharged sexual misconduct to the weighing process of [Evidence Code] section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. ([Evid. Code,] § 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause." (Id. at pp. 917-918.)
Since then, several appellate courts including our own have applied the Supreme Court's reasoning in Falsetta to Evidence Code section 1109 and concluded the provision is constitutional. (E.g., People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027; People v. Rucker (2005) 126 Cal.App.4th 1107, 1120 (Rucker); People v. Brown (2011) 192 Cal.App.4th 1222, 1233.) As we observed in Hoover, the legislative history of Evidence Code section 1109 indicates the Legislature recognized domestic violence is an ongoing problem deserving special evidentiary rules. "'The 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. Without the propensity inference, the escalating nature of domestic violence is likewise masked.'" (Hoover, at pp. 1027-1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4].) Gray has provided no reason to stray from this sound precedent and thus we reject his challenge to the provision's constitutionality.
We also disagree with Gray's contention the trial court erred when it determined Evidence Code section 352 did not require exclusion of the prior uncharged acts. "Under Evidence Code section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence. The trial court has discretion to exclude the evidence if its probative value is outweighed by a danger of undue prejudice or confusing the jury, or would result in an undue consumption of time. (Evid. Code, §§ 1109, subd. (a)(1), 352.)" (Rucker, supra, 126 Cal.App.4th at p. 1114.)
"Domestic violence" is "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d).) "Abuse" is "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a).)
"Under Evidence Code section 352, the court has discretion to exclude relevant evidence 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."' [Citation.] "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." (Rucker, supra, 126 Cal.App.4th at p. 1119.)
"Prejudicial" is not synonymous with "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320.) Prejudice refers to evidence that "poses an intolerable risk to the fairness of the proceedings or reliability of the outcome." (People v. Booker (2011) 51 Cal.4th 141, 188.) In determining prejudice, the trial court considers "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)." (Rucker, supra, 126 Cal.App.4th at p. 1119.) We will reverse the trial court's exercise of discretion only if the defendant can show it was arbitrary, capricious, or patently absurd, and the ruling resulted in a miscarriage of justice. (People v. Winbush (2017) 2 Cal.5th 402, 469.)
Gray cannot make that showing here. First of all, the two uncharged acts were highly probative of his propensity to commit domestic violence because they are very similar to the two charged acts. Each of the four incidents involved a physical altercation between the same two people during the same long-term relationship. In each case, Gray had become angry with the victim and resorted to physical violence, usually by striking her with his hands, but on one occasion by hitting her with a metal bedrail. In other words, the uncharged acts have a tendency to show he is disposed to hitting his wife during arguments. (People v. Morton (2008) 159 Cal.App.4th 239, 246-247 [evidence of prior uncharged offense admissible because "there were substantial similarities between the charged and uncharged incidents, . . . [where defendant] is described as first striking his victim in the face with a closed fist, and then choking her"].) In addition, the risk of prejudice was low because the two uncharged acts were not more serious than the charged acts, the victim's description of them was extremely brief so the introduction of the evidence did not take much trial time, and Gray had already been convicted of one of the acts so there was no risk the jury would seek to punish him for that act in this case. (Rucker, supra, 126 Cal.App.4th at p. 1119.)
Gray argues the two incidents were overly prejudicial because they had a tendency to evoke an emotional bias against him, as well as a tendency to confuse the issues before the jury because the four incidents were so similar. These arguments are at odds with one another. Uncharged acts that evoke emotional bias are those that are significantly more serious or heinous than the charged acts, such that the jury would be tempted to punish the defendant for those acts in the current case. (E.g., People v. Disa (2016) 1 Cal.App.5th 654, 674-675 [extensive and "vivid" evidence that defendant had previously hidden in an ex-girlfriend's closet for over six hours before repeatedly stabbing her boyfriend in the middle of the night and leaving the bedroom covered in blood was overly prejudicial where the charged act was placing his current girlfriend in a chokehold for 15 seconds].) Thus, by arguing the uncharged acts were too similar to the charged acts, Gray is instead highlighting the probative value of the uncharged acts. And anyway, contrary to his implication, the incidents were not so similar the jury could not tell them apart. The timing of the acts alone serves to distinguish them—the uncharged abuse occurred in 2010 and 2013, whereas the charged abuse happened during the summer of 2016.
Finally, even if the trial court had erred by admitting the evidence, we conclude it is not reasonably probable the jury would have reached a more favorable result without the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Unlike most domestic violence cases, the victim here was not the only witness to the crime. Her two sons were present for the July 14 abuse and their statements to the police corroborated their mother's description of the abuse. And this corroboration is even stronger for its independence. Salomon had interviewed each witness separately so no one person's description of the events would influence the others'. That the witnesses recanted at trial does not weaken the strength of the prosecution's evidence. The jury evidently believed their statements to the police over their trial testimony and also evidently saw the new stories as transparent attempts to protect Gray. We conclude there is no reasonable probability the jury would have reached a more favorable verdict even had the trial court excluded the evidence of his prior acts of domestic violence.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. MILLER
J.
Miranda v. Arizona (1966) 384 U.S. 436.