Opinion
C084464
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR GLENN HEDRICK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CF05663, 16CM00029)
A jury found defendant Victor Glenn Hedrick guilty of inflicting corporal injury on his girlfriend (Pen. Code, § 273.5, subd. (a)), and the trial court sentenced him to four years in prison. He timely appeals, contending the trial court erroneously admitted two prior acts of domestic violence under Evidence Code section 1109. As we will explain, we agree both prior acts were admitted in error, but find the error harmless and affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Summary of Facts
In November 2016, 16-year-old Francis Slettevold lived with her mother Veronica in Oroville. Victim Tonya Z., whom the teenage Slettevold thought of as her aunt, lived with them and shared her room with defendant.
By the end of November, Veronica had forbidden defendant from coming to the house. On November 25, 2016, Slettevold's mother warned her that defendant had been at the house looking for the victim. Later that night, Slettevold was home alone with the victim and did not see any marks or injuries on her face.
Defendant came to the house that night and went into the victim's bedroom. Slettevold heard a scuffle or "wrestling around" that sounded like someone was being kicked. She heard the victim pleading with defendant to "stop" and not do this "right now"; the victim sounded hurt and scared. A few minutes later, defendant and the victim went outside to the front yard. Slettevold thought she saw defendant hit the victim but she was not sure. Slettevold's mother had told her if something like this happened she should lock the door and call the police, which she did.
Law enforcement arrived approximately 10 minutes later. Officer Jared Cooley spoke with the victim and defendant outside of the house. The victim's eye was watering and it appeared freshly bruised. When she came back into the house, Slettevold saw that she had a swollen, black eye. She also told Slettevold that her ribs hurt. She was angry at Slettevold for calling the police, but she also hugged and thanked her. Slettevold responded that she "had to" call, as she "wasn't going to let [her] . . . be treated like that."
Trial Testimony and Prior Acts Evidence
As relevant here, defendant was charged with and proceeded to trial on inflicting corporal injury on a spouse or cohabitant. (§ 273.5, subd. (a).) Prior to trial, the prosecutor moved in limine under Evidence Code section 1109 to admit: 1) defendant's 2010 battery conviction (§ 243, subd. (e)(1)); and 2) testimony of defendant's former girlfriend E.R regarding prior abuse. The trial court granted the motion over defendant's objection.
At trial, Slettevold and Officer Cooley testified as summarized above. However, E.R. reluctantly testified only that defendant was "abusive" during their relationship. "Abusive" was the prosecutor's word; when asked if defendant was "abusive" in their relationship E.R responded "yes." She provided no further explanation or details about defendant's "abuse." She did not even testify as to when the relationship was ongoing, or how long ago any abusive conduct occurred. Defense counsel moved to strike E.R.'s testimony, claiming it did not qualify for admission under Evidence Code section 1109 because E.R. did not testify to any conduct by defendant that fit the statutory definition of domestic violence. The trial court denied the motion without explanation. After defense counsel asked the court to limit the prosecutor's closing argument on this issue, the prosecutor volunteered to refrain from discussing E.R. during closing argument.
Although the Attorney General represents that "E.R. acknowledged that her aunt had called the police on June 25, 2016, because appellant had come to her house and pulled her out of her bed," E.R. made no such acknowledgment, although asked the question. Similarly, although the prosecutor proffered that defendant's abuse of E.R. was in 2016, and asked E.R. whether abuse occurred in 2016, E.R. never confirmed any dates or timelines for the two-year "abusive" dating relationship with defendant to which she eventually acquiesced.
The People introduced a certified minute order proving defendant's 2010 battery conviction, but did not produce any evidence of underlying facts. At defense counsel's request, the court explained the elements of battery to the jury at the close of defendant's case.
The People also introduced two recorded phone calls defendant made to the victim (in violation of a no-contact order) while in jail awaiting trial. During one call, defendant stated, "If those other two people don't show up in court tomorrow, they're gonna have to drop charges on me." During the other call, defendant provided the victim with Veronica's (Slettevold's mother's) phone number, saying he wanted to give her the number "so you can call and make sure that--you know what I'm sayin? That--that they're not gonna show up tomorrow, or whatever."
The victim testified as relevant here that defendant had not injured her, but that her eye was blackened when three unidentified women jumped her for some unknown reason around 9:30 p.m. that November night. Defendant appeared after the women left and they walked back to the house together. The police arrived a short time later. She admitted she and defendant had gotten into an argument at the house, but claimed the argument was not physical and said it had occurred before she was jumped. The victim admitted that she loved defendant and wanted him to come home, but denied lying to protect him. She admitted she had contacted Slettevold at defendant's request to determine whether she was going to testify. She denied telling Slettevold not to testify, but said she merely asked whether she was going to court.
Defendant did not testify.
DISCUSSION
Defendant contends the court twice erred in admitting prior acts evidence under Evidence Code section 1109. He argues neither his prior battery conviction nor E.R.'s vague abuse allegation was proven to qualify as domestic abuse as defined by statute. He contends the erroneously admitted evidence was prejudicial. We review for abuse of discretion, and agree the court erred in admitting the prior acts evidence, but find the error harmless.
I
Evidence Code Section 1109 Evidence
Evidence of a person's character or predisposition to act in a certain way is generally inadmissible to prove that the person acted in conformance with that character trait on a given occasion. (Evid. Code, § 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) The Legislature, however, has created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses (Evid. Code, § 1108, subd. (a)), and domestic violence, elder or dependent abuse, or child abuse. (Evid. Code, § 1109, subd. (a)(1)-(3).)
Evidence Code section 1109, subdivision (a)(1) permits proof of a defendant's character in the form of evidence of a defendant's commission "of other domestic violence" to prove propensity to commit domestic violence. That section reads: "Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1109, subd. (a)(1).)
For purposes of the 2010 battery conviction as well as the "abusive" relationship with E.R.--for which no dates were in evidence--the term " 'domestic violence' has the meaning set forth in Section 13700 of the Penal Code." (Evid. Code, § 1109, subd. (d)(3).) Section 13700 defines "domestic violence" as "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." (§ 13700, subd. (b).) "Abuse," in turn, means "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." (§ 13700, subd. (a).)
"Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense." (Evid. Code, § 1109, subd. (d)(3), italics added.) Family Code section 6211 applies to a broader category of people and includes a broader definition of domestic violence than does Family Code section 13700. (Id., § 6211.) The statute defines domestic violence as "abuse" perpetrated against various persons, including a "person with whom the respondent is having or has had a dating or engagement relationship." (Id., § 6211, subd. (c).) For purposes of Family Code section 6211, "abuse" means "(a)(1) to intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in unreasonable apprehension of imminent serious bodily injury to that person or to another. [¶] [and] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (Id., § 6203, subd. (a).) Under Family Code section 6320, subdivision (a), a court may enjoin a wide array of conduct including, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, or falsely personating, harassing, telephoning, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. Thus, under Family Code section 6203, subdivision (b), "[a]buse is not limited to the actual infliction of physical injury or assault."
II
Prior Conduct at Issue Here
A. Battery Conviction
As noted ante, because defendant's 2010 battery conviction occurred more than five years before the November 2016 offense charged here, the conviction would only be admissible under Evidence Code section 1109, subdivision (d)(3) if it satisfied the Penal Code section 13700 definition of domestic violence. In order to qualify as domestic violence under section 13700, the battery would have to cause or attempt to cause bodily injury, or place another person in reasonable apprehension of imminent serious bodily injury. (§ 13700, subd. (a).)
Section 243, subdivision (e)(1) prohibits a battery against a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. Section 242 defines "battery" as "any willful and unlawful use of force or violence upon the person of another." " 'Any harmful or offensive touching constitutes an unlawful use of force or violence' " under section 242. (People v. Shockley (2013) 58 Cal.4th 400, 404.) It is well settled that " ' "the least touching" may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.' " (Ibid.)
Thus, it is quite conceivable that defendant was convicted of battery without meeting the section 13700 definition of domestic abuse. Because there is no evidence in the record regarding defendant's underlying conduct, his battery conviction did not necessarily qualify as a prior instance of domestic violence within the meaning of section 13700, and the trial court erred in admitting the evidence.
B. E.R.'s testimony
E.R. testified only that a two-year dating relationship with defendant was "abusive." As noted ante, even had E.R. specified an act, that act would only be admissible under Evidence Code section 1109, subdivision (d)(3) if it satisfied the Penal Code section 13700 definition of domestic violence. But even assuming for the sake of argument that the broadest possible definition of domestic violence provided by Family Code section 6211 applied (see footnote 4, ante), E.R. provided no evidence of domestic violence as described by Evidence Code section 1109. She merely agreed with the prosecutor that defendant was "abusive" and was not asked to elaborate or clarify. The Attorney General argues that "the jury could infer the correct meaning from the witness's demeanor and reluctance to testify," but where, as here, there is no evidence that defendant's conduct meets the statutory requirements, the jury may not imagine the evidence out of thin air. Admission of the testimony was error.
III
Prejudice
Evidence improperly admitted under Evidence Code section 1109 requires reversal if it is reasonably probable that a more favorable result would have been obtained if the jury had not heard the evidence. (People v. Partida (2005) 37 Cal.4th 428, 439 ["state law error in admitting evidence is subject to the traditional Watson test"]; People v. Disa (2016) 1 Cal.App.5th 654, 675.)
The Watson test for harmless error "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal.4th 142, 177.) "In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Ibid.)
People v. Watson (1956) 46 Cal.2d 818, 836. --------
A. Strength of the Evidence
Here, the evidence against defendant was relatively strong. As we have described, Slettevold testified that the victim was not hurt before defendant arrived at the house. She heard what sounded like wrestling and someone being kicked while the victim and defendant were alone together. She also heard the victim, sounding scared and hurt, asking defendant to stop and to leave the house. A short time after the victim left the house with defendant she came back with a swollen, black eye. Officer Cooley also testified that the victim's eye was freshly bruised when he arrived at the house.
The jury also heard defendant asking the victim to influence Slettevold, the main witness, not to come to court to testify against him. The jury was properly instructed that if it found defendant "tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt." Further, the victim's testimony that three strangers jumped her for no articulable reason immediately after, by her own admission, she argued with defendant, was suspect. The testimony was particularly suspect given Slettevold's contradictory testimony that the victim did not have a black eye before defendant arrived, but she did when she came back in the house after defendant's arrest. The same is true of the victim's testimony that her argument with defendant was not physical. Slettevold heard what sounded like a physical argument while defendant and the victim were together in her bedroom.
The victim also had an obvious motive to lie on defendant's behalf; since his arrest, they had become engaged. She testified that she loved defendant and wanted him to come home. She also admitted that defendant told her to contact Veronica and Slettevold to tell them not to come to court and that she did, in fact, contact them.
B. Impact of the improperly admitted evidence
1. E.R.'s testimony
E.R.'s testimony was very short, consuming less than five pages of the reporter's transcript, and contains many unanswered questions. The prosecutor did not refer to the testimony at all during closing argument. Thus, the jury was not even reminded of the testimony, much less asked to focus on it. The impact was negligible.
2. The 2010 Battery Conviction
At defense counsel's request, the trial court instructed the jury that "[t]he slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind." (CALCRIM No. 841.) The jury was further instructed that domestic violence meant "abuse" committed against someone whom the defendant dated, and that "abuse" specifically meant "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else." (CALCRIM No. 852.)
Defense counsel emphasized these instructions, and specifically argued that the prosecutor had failed to meet her burden to show that the prior battery conviction involved causing bodily injury or an intentional or reckless attempt to cause bodily injury as required by the definition of abuse under CALCRIM No. 852, quoted immediately above. Because the slightest touching could be enough to establish a battery but not necessarily sufficient to establish abuse, defense counsel urged the jury to disregard the 2010 battery conviction entirely.
3. Pattern of Abuse
Defendant argues that the prosecutor's argument that defendant had engaged in a pattern of abuse prejudiced his client, and we acknowledge that the record indeed reflects the argument was made. But the jury was instructed (with CALCRIM No. 852) that if it "conclud[ed] 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 offense. The instruction emphasized that "[t]he People must still prove the charge and each allegation of every charge beyond a reasonable doubt." Thus, the jury was reminded that propensity evidence alone was not sufficient proof of the elements of the charged offense beyond a reasonable doubt. We presume a jury follows its instructions. (People v. Avila (2009) 46 Cal. 4th 680, 710)
Further, during the prosecutor's rebuttal argument, the trial court reminded the jury while overruling a defense objection to the prosecutor's characterization of the prior battery offense that it was to consider only the evidence and the law as instructed. We conclude it is not reasonably probable that a more favorable result would have been obtained if the jury had not heard the evidence admitted in error. Thus, the error in admitting defendant's prior conviction and E.R.'s inconclusive testimony was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Hoch, J.