Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA103214, Paul A. Bacigalupo, Judge.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On January 14, 2009, appellant, Donnie Gregory was convicted of one count of corporal injury to a spouse/cohabitant (Pen. Code § 273.5(a)). He appeals on the grounds of evidentiary errors. We affirm.
FACTS
On October 15, 2008, Phyllis Franklin was living in an apartment on South Central Avenue in the City of Los Angeles. Appellant had been married to Franklin for five years; however the two were separated at the time of the incident. Prior to October 15, 2009 appellant had been living on Beach Street in the City of Los Angeles.
On the morning of October 15th, appellant arrived at Franklin’s apartment building with a U-Haul truck and began moving into another unit in the same building.
In the afternoon of the 15th, appellant was sitting on Franklin’s back porch and Franklin was in her apartment. At some point in time, appellant asked Franklin to fill a beer can with water so he could provide it to his dog. Instead of filling the beer can, Franklin filled a plastic cup with water. Upon her return with the cup, appellant stated to Franklin, “Hell, this ain’t enough water,” and he threw the water on the ground. Eventually, Franklin did fill the beer can with water and appellant, in turn, filled a plastic container with the water so he could give it to his dog. While the plastic container was still in appellant’s hand, Franklin knocked the container out of his hands because of a comment appellant made she did not like. Franklin did not recall the comment but testified that it was a smart remark.
Appellant then hit Franklin across the face near her eyebrow with his metal walking stick. A piece of the stick broke off. Appellant then told her that she “deserved that.” Franklin then grabbed appellant around the waist with both arms, turned him around and then grabbed the broken portion of the walking stick and threw it over a fence. Franklin ran into her apartment and locked the door and then ran across the street and called the police.
Los Angeles Police Officer Yoshio Romero arrived at the scene at approximately 3:30 p.m. and spoke to Franklin. Franklin had a large contusion and cut over her left eye. Officer Romero took photographs of Franklin’s injuries, which were introduced as evidence at trial.
A jury found appellant guilty of one count of corporal injury to a spouse. Appellant stipulated to a prior conviction under the same offense within the past seven years within the meaning of Penal Code section 273.5(e)(1).
DISCUSSION
I. The Voice Mail Messages
Before trial appellant’s counsel moved to exclude the tape and transcripts of voicemail messages left by appellant on Franklin’s phone (having occurred prior to the incident) as being irrelevant and more prejudicial than probative. The prosecutor argued that the messages contained threats and that appellant spoke to the victim in a manner which demonstrated his readiness to commit violence against her. The trial court ruled that the messages were admissible and accordingly were played for the jury.
Specifically, a few months prior to the October 15, 2008 incident, appellant left at least six voicemail messages on Franklin’s cell phone. Franklin testified that she felt threatened by the messages. Franklin turned a recording of the messages over to the District Attorney. The transcript of the messages was received in evidence as exhibit 5 and are set forth below in haec verba:
“Yeah holding on my money, what’s your mother fuckin’ plans, bitch? You ain’t got nobody gon’ whoop my ass. I’ll tell you mother fucker, you can’t get no mo’. I don’t want no more of that pussy bitch, I want my money, see what I’m sayin? I don’t give a fuck about that bitch I thought you.... give me my god damn money all right? You can date him mother fucker [UNT] cause I’m ready to fuck up some mother fuckers... [UNT]... okay? You take that goddamn... END OF MESSAGE.”
“I’m legit about this shit, now I want my money. There be no dope, this aint’ about no pussy another day I’ll be up there when the door is open and I didn’t even touch your pussy, bitch. You couldn’t even charge me from that... mother fucker, you couldn’t call and say I raped you, you dirty bitch I gave you your fair respect bitch wait til you wake up you fat bitch, you wouldn’t even get up! I left your mother fuckin’ house bitch because you thought you was goin’ charge me and call the police again [UNT]... END OF MESSAGE.”
“Like my 3000 dollars, like changin’ that bank account just gearin’ to take this 500 dollars. What you call yourself doin’ Phyllis? You think you that damn smart? Pay me my change cause I will be coming to collect my money. You can put your judges up if you want. You could put your damn daddy up if you want, I want my goddamn money. You thought you... END OF MESSAGE.”
“Yeah again what I was sayin something, how [To someone else: Shut the fuck up – UNT – I can’t even give a goddamn message – [UNT] mother fucker, see me on the goddamn phone] But anyway, I want my mother fucking money, see what I’m saying? Goddamn, I forgot what I was gone say, I can’t even erase [UNT] motherfucker [UNT] I’m gonna this is the only way I can talk to your ass. [UNT] I want my goddamn MOO-NEY. END OF MESSAGE.”
“Yeah. That’s it. That’s it. Five years of running lying bullshit, taking my money, stealing my shit, fucking around. Well five years, hell witch you. We over. [UNT] I don’t give a fuck. You see what I’m saying. It aint gotta be my dick bitch. [UNT] I don’t give a fuck. Son of a bitch you got my money. Five hundred, two hundred motherfucking dollars bitch. I can get twenty, thirty bitches for that sucking my dick and fuck me. You got me fucked up. END OF MESSAGE.”
“It’s been a whole month, you callin’ on my money. I ain’t call you [UNT]. You get my money, the most sex for bitch Clarence on the desk motherfucka [UNT]. I don’t give a fuck I ain’t gotta file no papers. Fuck that. All I want is my money. After I get my money you ain’t gotta call me no mo’. Gimme my goddamn money, right? Cuz you ain’t acared of me or my money mother fucker. See what I’m saying, bitch? I...I... I wanna do something. END OF MESSAGE.”
II. Abuse of Discretion
Pursuant to Evidence Code section 352, a trial court has “broad discretion” in determining whether to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (People v. Ayala (2000) 24 Cal.4th 243, 282.) We review here under an abuse of discretion standard. (See People v. Lewis (2001) 26 Cal.4th 334, 374.)
All further statutory references are to the Evidence Code.
Appellant’s counsel asserts that the messages constitute improper character evidence and that the evidence was more prejudicial than probative. The prosecutor argued that the messages contained threatening language and the evidence was relevant to appellant’s motive as well as establishing his overall disposition toward the victim. The prosecutor further argued that the tapes demonstrated threats of physical violence which is carried out weeks later.
The trial court asked for an offer of proof and the prosecutor cited facts similar to those eventually introduced at trial. The trial court then asked defense counsel if there was going to be a challenge to the facts of the actual incident or some type of affirmative defense interposed. Appellant’s counsel replied, “Your honor, at this point it is the defense position it did not happen factually the way she said it happened.”
The trial court ruled (with the exception of one of the telephone messages) that there was probative value in proving state of mind or plan. The prosecutor did make clear that the evidence was not being offered pursuant to section 1109 since the prosecutor was already introducing another prior incident of domestic violence pursuant to that statute.
Character evidence is usually inadmissible and courts must insure that issues of guilt and innocence are resolved on proof of the elements of the crime rather than on an accused character. (See People v. Cardenas (1982) 31 Cal.3d 897, 906-907.) While evidence that a person committed a wrongful act generally cannot be used to show a disposition to commit the charged crime it may, however, be admitted to prove a material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (See § 1101(b); People v. Balcom (1994) 7 Cal.4th 414, 422.)
Additionally, where the prior conduct involves the same perpetrator and victim, a broader range of evidence may be presented to show motive, intent, and identity. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585; People v. Daniels (1971) 16 Cal.App.3d 36, 46; People v. Zack(1986) 184 Cal.App.3d 409, 415.)
The requirement for a distinctive modus operandi does not apply when the prior and charged acts involve the same perpetrator and the same victim. Courts have concluded that evidence of prior quarrels between the same parties is obviously relevant on whether the accused committed the charged acts. (Rufo v. Simpson, supra, 86 Cal.App.4th at p. 585.)
Evidence showing jealousy, quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense. (People v. Daniels, supra, 16 Cal.App.3d at p. 46.) A defendant is “not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim’s relationship... were peaceful and friendly.” (People v. Zack, supra, 184 Cal.App.3d at p. 415.)
Prejudice under section 352 means unfairly prejudicial rather than just damaging to a party’s case. A trial court’s discretionary ruling under section 352 will not be disturbed on appeal absent an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374.)
The trial court here correctly concluded that any prejudice to the defendant did not substantially outweigh its probative value. The evidence was properly admitted to show that appellant had motive to resort to violence when frustrated with the victim. The evidence is likewise relevant to the issue of whether appellant accidently or in self-defense hit Franklin with his walking stick. Appellant’s counsel argued at trial that the events of October 15, 2008 did not transpire as Ms. Franklin described; yet no evidence to dispute the factual recitation was presented.
The evidence offered by the prosecution even without the voicemail messages is sufficient to support the verdict. Ms. Franklin testified unequivocally that appellant raised his walking stick to hit her after she knocked the container of water out of his hands. He struck her in the face, causing a cut and then stated that she deserved it. The officer who responded to the scene observed and photographed Franklin’s injury in a contemporaneous time span.
Assuming arguendo, the trial court abused its discretion in permitting the messages to be received into evidence no prejudice appears to have resulted. The defense position that appellant struck Franklin either accidentally or in self-defense was not supported by any evidence. In fact, the defense introduced no evidence to support these theories. Accordingly, there was no prejudice in admitting the voicemail messages.
III. The 2004 Incident
One night in 2004, Franklin was at appellant’s home. They were drinking beer and getting ready to play dominos when appellant started swearing and saying things that offended Franklin including referring to women as “bitches.” Franklin tried to leave. Appellant squeezed her breasts and pushed her on the bed. When she attempted to get up, he sat on her. He started patting her and calling her names. When she again attempted to get up he sat on her and hit and pinched her. He called her a “fat bitch” and told her she could not leave. She eventually managed to get away and leave the house. The next day she went to the hospital and the police were called. She had scratches, bruises and a scraped knee. Photographs of these injuries were introduced as evidence at trial.
IV. Evidence Code Section 1109
Section 1109 makes admissible evidence of a prior domestic violence incident involving the parties but that section is limited by section 352. In other words, if evidence is not admissible pursuant to section 352 then it is not made admissible by section 1109.
Review of the trial court’s determination as to the admissibility of evidence allowed pursuant to section 1109 is an abuse of discretion standard. (People v. Hoover (2000) 77 Cal.App.4th 1020.)
Appellant argues that the trial court erred because the probative value of the evidence was outweighed by its prejudicial impact and risk of jury confusion. According to appellant, the prior domestic violence incident was significantly different from the charged offense as it involved conduct on the part of appellant that was much worse than the alleged conduct in the present case. Appellant argues the prior incident involved greater aggression, over a longer period of time as well as the use of considerably more force by appellant against Franklin.
Respondent argues as a threshold issue that appellant’s claim has been forfeited because appellant did not make a timely and specific objection at trial on the same ground as asserted here on appeal. (See § 353.) Prior to trial the prosecution sought to introduce evidence of the 2004 incident which led to a misdemeanor conviction for corporal injury to a spouse. Appellant’s counsel objected solely on grounds of inadequate notice, indicating that was her only concern with the evidence. No objection was made based on undue prejudice.
While no particular form of objection is required at trial, it must be specific enough to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought. (People v. Holt (1997) 15 Cal.4th 619, 666-667.) Since appellant never asserted that the evidence was unduly prejudical at the trial court level, the trial court had no reason or opportunity to enumerate its reasons for admitting the evidence. Notwithstanding, the waiver we undertake an analysis in accord with section 1109.
Here, the prior act was only four years earlier than the charged offense which is not especially remote in time. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706 [ten-year-old incident properly admitted].) Additionally, the prior act was similar in that it involved the same victim. It was not particularly inflammatory. Contrary to defendant’s argument that the prior act was significantly more egregious, the charged act, in turn, involved the use of a weapon to strike the victim in the face whereas the prior act involved no weapons. The evidence is very probative on the issue of whether the charged offense was self-defense or accidental. The prior act of domestic violence shows a propensity of the defendant to resort to violence in disagreements with his wife.
Specifically, the prior act of domestic violence was particularly relevant to negate an inference that appellant struck the victim by accident or in self-defense. The evidence did not unduly consume time at trial and the trial court did instruct the jury on the use of the prior conviction and the ultimate burden of proof for the charged offenses.
Accordingly, we find no abuse of discretion in the trial court’s decision to admit evidence of the prior conduct under section 1109.
DISPOSITION
The judgment of the trial court is affirmed.
We concur: BIGLEOW, P. J., FLIER, J.