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People v. Harvey

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 16, 2012
D057886 (Cal. Ct. App. Feb. 16, 2012)

Opinion

D057886

02-16-2012

THE PEOPLE, Plaintiff and Respondent, v. GENE HARVEY, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN274328)

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed in part, reversed in part and remanded.

A jury convicted Gene Harvey of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and the court sentenced him to two years in state prison.

On appeal, Harvey asserts the trial court abused its discretion by admitting evidence of a prior domestic violence incident, and erred at sentencing by imposing a $154 criminal justice administration fee under Government Code section 29550.1.

I


FACTUAL BACKGROUND

A. The Charged Offense (The March 12, 2010, Assault)

At the end of 2008, Harvey moved into the home of Maria Branham (the victim). Shortly thereafter, they began an intimate sexual relationship. They lived in her Carlsbad, California, home until she sold it in early 2010. After selling her home, they stayed for a short time at a time-share facility, and then moved together into a trailer in San Marcos, California.

Prior Abuse of Maria

Harvey's physical abuse of Maria began almost immediately after they began living together. In November 2008, the two were driving home when Maria gave directions to Harvey and, in response, Harvey slapped her and caused her lips, gums, and nose to bleed. On arriving home, Maria went to a neighbor's house, where she told the neighbor Harvey had struck her in the mouth. The neighbor helped wash the blood off of Maria's mouth.

On three occasions while living in Carlsbad, Harvey pushed Maria onto the bed and began to strangle her and, on another occasion, grabbed her hair and forcibly pulled her into the house. Maria's next door neighbor overheard Harvey yelling "very aggressive[ly]" at Maria on at least five occasions, and the neighbor's girlfriend called 911 on one of the occasions in response to concern about the yelling. Another neighbor frequently heard Harvey yell "very obscene and awful things" during the period Maria and Harvey lived in Carlsbad, and also called 911 on one occasion in response to the yelling.

Harvey's abusive behavior continued after they moved from Maria's Carlsbad home. On one occasion, while they were staying in a timeshare unit, Harvey pulled Maria from bed around 2:00 a.m., threw her on the couch, and slapped her. She had bruises on her face and neck.

The Charged Offense

After Harvey and Maria moved to San Marcos, California, the charged offense occurred. Around noon on March 12, 2010, Harvey became angry when Maria interrupted him while he was using their computer. He called her a "son of a bitch" and told her to "shut the fuck up. I don't want to hear another word from you. I [will] slap you." Maria asked Harvey to forget about it and complied with his request to make alcoholic drinks for both of them.

Later that day, Maria asked Harvey if he wanted something to eat. Harvey replied that he did not "want the bitch [to] cook for me." At about the same time, a television show was discussing the cure for syphilis and Maria joked that there had been "a lot of . . . high[ly] intelligent people in this world [who] died of syphilis." Harvey asked Maria if she was accusing him of having syphilis and, although she denied that was her intent, appeared to take her joke seriously.

Harvey then began screaming at Maria as she retreated into a bedroom. He pushed her onto the bed and sat on top of her. She tried to scream, but Harvey told her to "shut the fuck up" and placed his hand over her mouth and nose, making it hard for her to breathe and almost causing her to pass out. Harvey said:

"Do you think I have syphilis? What's wrong with you, you bitch. . . . I'm going to kill you. . . . Nobody's even going to know if I kill you because nobody is going to even find out. Nobody is going to even look for you because you don't have friends. You have no more family left, nothing. So I'm going to take you to the desert and drop your body in the desert, and nobody's going to find you."

Harvey then asked Maria, "If I let you go, will you stop fighting with me and arguing, fighting back?" When she agreed, Harvey removed his hand from her face but then punched her two or three times in the face. Harvey calmed down and went into the living room, and Maria took this opportunity to escape outside onto a street. She found two women walking a dog and asked them to call 911. Maria was screaming, "He's going to kill me" and told the walkers that Harvey had "beat her up." The women took Maria to a nearby trailer where they called 911 and allowed Maria to talk to the dispatcher.

Deputies arrived and contacted Maria. She appeared shaken up and had redness and bruising around her left eye. She also had bruises on her left arm and side and on her right shoulder where Harvey had pinned her down. Deputies took Harvey into custody.

B. The Prior Abuse

Over defense objection, the trial court permitted the prosecution to admit evidence of Harvey's domestic abuse toward Kathy Whiting. Harvey and Whiting were married in 1990 and divorced less than a year later. On February 19, 1991, while married, Harvey became upset about a haircut Whiting gave him. He became further incensed when he went to pick her up from a neighbor's house and thought he saw Whiting being unfaithful. As they left the neighbor's house, he yelled at Whiting that he was "going to fuck [her] up."

When they got home, a "horrific beating ensued which lasted throughout the night." Whiting testified:

"[Harvey was] punching me with his hands, fists, grabbing me by the hair and repeatedly knocking me against the doorway. . . . When I became unsteady on my feet from that, I laid on the floor and curled up in a fetal position. And he kicked me and kicked me and grabbed me. We went from one room of the house to the other, except for my daughter's bedroom, which . . . door was closed. She was 11 at the time. As so we proceeded to go from room to room. I was trying to get away from him, but I did not want to leave because of my daughter being there. And he had already threatened us many times with death."

When Whiting was asked how Harvey had threatened Whiting, she testified it was

"not only the physical beating but telling me that he could kill me. And I already knew he had a gun. And he would—he made clicking sounds at me, and to the point—at which point in the morning, early morning I remember—well, throughout the night he struck me on the face, where I was bleeding profusely out of my nose. My eyes were swollen shut. I had blood on my scalp. I had extreme head pain and problems breathing. And in the early morning the phone rang, and he took me into the bedroom and made me take off my clothes and laid down in the bed. And he put his arms over me and held me there and covered us up with the blanket. And I believe that I became unconscious at that time because I don't remember anything until the police tore the blankets off of me."

Whiting testified the incident occurred over a period from midnight until 9:00 the next morning, and that Harvey had been drinking over the course of the night and had consumed approximately a case of beer and a bottle of tequila.

Defense Case

Harvey did not testify and the defense presented no witnesses. Instead, the defense cross-examined Maria to show she consumed considerable amounts of alcohol, she has fallen down when intoxicated, and that she bruises easily. She had consumed numerous drinks over the course of the day of the charged offense. When the two women encountered her after she fled the trailer, Maria smelled of alcohol and her speech was slurred. Maria had never reported any of Harvey's prior assaults to police.

ANALYSIS

A. Admission of the 1991 Incident Was Not an Abuse of Discretion

Harvey asserts the trial court abused its discretion, and denied him due process, by admitting evidence of his 1991 assault on Whiting under Evidence Code section 1109.

All statutory references are to the Evidence Code unless otherwise specified.

Legal Framework

California's evidentiary rules ordinarily bar admission of evidence of a defendant's prior acts when offered to prove a defendant's conduct on a specific occasion (§ 1101), but section 1109 provides an exception to that general rule. Section 1109 allows introduction of evidence about a defendant's prior acts of domestic violence in a criminal action in which the defendant is accused of an offense involving domestic violence to show the defendant's propensity to commit domestic violence "if the evidence is not inadmissible pursuant to [s]ection 352." (§ 1109, subd. (a)(1); People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) Thus, evidence of prior domestic violence may be admitted under section 1109 if its probative value is not substantially outweighed by the probability it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Hoover, at pp. 1028-1029.)

Section 1109 is an exception to the general rule that prior bad acts are inadmissible to prove the defendant's propensity to commit the charged offense (see § 1101, subd. (a)). (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1109 reflects the Legislature's determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335; People v. Hoover, supra, 77 Cal.App.4th at pp. 1027-1028; People v. Johnson (2000) 77 Cal.App.4th 410, 419.)

In determining whether the probative value of the domestic violence evidence outweighs its prejudice, a trial court uses a balancing test and may consider "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)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Also relevant to the trial court's balancing test is "the amount of time involved in introducing and refuting the evidence of uncharged offenses" (People v. Branch (2001) 91 Cal.App.4th 274, 282), and whether the defendant "has led a substantially blameless life in the interim." (People v. Johnson (2010) 185 Cal.App.4th 520, 534.)

Section 1109 recognizes a distinction based on the vintage of the prior acts of domestic violence: evidence of domestic violence occurring within 10 years of the charged offense is presumptively admissible, while evidence of older incidents of domestic violence is admissible only if the court finds its admission to be in the interest of justice. (§ 1109, subd. (e).) Although subdivision (e) thus establishes an additional consideration the trial court must consider before admitting evidence of older acts, the subdivision nonetheless "clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an 'interest of justice' standard." (People v. Johnson, supra, 185 Cal.App.4th at p. 539 [§ 1109, subd. (e) "sets a threshold of presumed inadmissibility, not the outer limit of admissibility"].) Johnson explained the "more rigorous standard of admissibility for remote priors" (id. at p. 539) does not "necessitate[] an inquiry different in kind from that involved in a determination under section 352." (Ibid.) Accordingly, a section 352 analysis, balancing the probative value against the prejudicial effect, is appropriate for the "interest of justice" exception under section 1109, subdivision (e). The " 'interest of justice' " exception is met where the trial court engages in a balancing of factors for and against admission under section 352 and concludes, as the trial court did here, that the evidence was " 'more probative than prejudicial.' " (Johnson, at pp. 539-540.) We review a challenge to a trial court's decision to admit such evidence for abuse of discretion. (Id. at p. 531.)

Analysis

The trial court below engaged in the balancing analysis under sections 1109 and 352 when it considered whether the domestic violence evidence more than 10 years old should be admitted "in the interest of justice." We are not persuaded by Harvey's assertion that the court did not adequately consider the appropriate factors in its analysis. In our view, the trial court's analysis was reasonable and sufficient to show it carefully weighed prejudice against probative value and properly found good cause to admit the prior domestic violence evidence. In admitting the evidence despite its remoteness in time, the court specifically found the probative value of the evidence was high considering the numerous similarities between the charged assault and the prior domestic violence: both involved violence against women who had been involved with Harvey for a relatively short period; both involved victims with whom Harvey was then living; both involved alcohol-fueled attacks by Harvey on victims who also had alcohol abuse issues; both involved Harvey pulling the victims' hair and using his fists to inflict injury; both involved blows to the head; both involved attacks triggered by relatively innocuous disputes; and both involved threats of death. Moreover, because the court was sensitive to the prejudicial impact of the 1991 attack, it sanitized the details of the 1991 attack by precluding Whiting from describing it as "torture," and also precluded Whiting from providing any graphic descriptions of the aftermath of the attack or of the details of the injuries she suffered.

Harvey argues the court abused its discretion because it overlooked the fact he had lived a "substantially blameless life" (People v. Johnson, supra, 185 Cal.App.4th at p. 534) since the prior violence, which militated against the probative value of the prior incident. Although his counsel pointed out Harvey had no subsequent crimes of violence, he conceded Harvey had a DUI conviction, and the probation report confirmed Harvey had multiple subsequent convictions related to substance abuse. Because the trial court recognized that Harvey's alcohol abuse appears intertwined with his attacks on domestic partners, Harvey's interim conduct reflected he continued to have a pattern of engaging in inappropriate conduct when intoxicated rather than leading a blameless life in which alcohol-related criminal conduct was a mere historical anomaly.

Harvey also asserts the court did not account for the prejudice to Harvey from the fact the jury, being unaware Harvey had been convicted and punished for the 1991 attack, might seek to punish Harvey for the prior attack. (People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) However, the defense affirmatively argued section 1109 only permitted introduction of the underlying facts, and apparently objected to introduction of the conviction itself. During the defense's cross-examination of Whiting, the defense abandoned a line of questions after the court interrupted the defense and warned the line of questions might lead Whiting to refer to the prior criminal proceeding, which confirms the defense made a tactical choice (even after being aware Whiting's testimony would be admitted) to avoid informing the jury of the prior conviction. We conclude that, to the extent the jury was not aware Harvey had been punished for the prior attack, that error was invited.

Here, the trial court carefully weighed the similarities to find the 1991 attack on Whiting had substantial probative value. It also sanitized the description, and the testimony consumed minimal trial time. The court did not abuse its discretion in handling the admission of evidence concerning the 1991 attack and finding its admission was appropriate in the interest of justice.

B. The Matter Must Be Remanded for Sentencing

Harvey argues the trial court erred by imposing a $154 criminal justice administration fee, pursuant to Government Code section 29550.1, without an express or implied finding that Harvey had the ability to pay the fee. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400.) Harvey argues, and the People concede, this was error and that the appropriate remedy is to remand the sentence to the trial court for a finding on Harvey's ability to pay a criminal justice administration fee.

DISPOSITION

The imposition of the criminal justice administration fee is reversed. In all other respects the conviction is affirmed. The matter is remanded to the trial court to permit the People, if they so wish, to seek a finding of ability to pay a criminal justice administration fee.

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McDONALD, J.
WE CONCUR:

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McCONNELL, P. J.

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NARES, J.


Summaries of

People v. Harvey

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 16, 2012
D057886 (Cal. Ct. App. Feb. 16, 2012)
Case details for

People v. Harvey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GENE HARVEY, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 16, 2012

Citations

D057886 (Cal. Ct. App. Feb. 16, 2012)