From Casetext: Smarter Legal Research

People v. Hicks

California Court of Appeals, Fifth District
Sep 16, 2008
No. F052709 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. VCF156450, Gerald F. Sevier, Judge.

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Gomes, J.

On December 11, 2005, Mark Howard Hicks shot his wife in the head with a shotgun. She died. A jury found him guilty of second degree murder and found two firearm allegations true. On appeal, he argues that evidence of other domestic violence two months before the fatal shooting prejudiced him, as did the trial court’s denial of his proffer of impeachment evidence and his trial attorney’s failure to introduce inculpatory statements after the shooting. We will affirm the judgment.

BACKGROUND

By information, the district attorney charged Hicks with first degree murder (Pen. Code, § 187, subd. (a)) and alleged his personal and intentional discharge of a shotgun proximately causing death (§ 12022.53, subd. (d)) and his personal use of a shotgun (§ 12022.5, subd. (a)). A jury found him guilty of the lesser included offense of second degree murder and found both allegations true. The trial court sentenced him to 15-to-life on the murder and consecutively to 25-to-life on the enhancement for personal and intentional discharge of a firearm proximately causing death.

Later statutory references are to the Penal Code except where otherwise noted.

ISSUES ON APPEAL

On appeal, Hicks argues that (1) the trial court’s admission of evidence of his commission of other domestic violence was an abuse of discretion and a due process violation since murder is not an act of domestic violence, (2) the trial court’s refusal to permit him to impeach his mother-in-law, the witness who testified to his commission of other domestic violence, with her grand theft, felony assault, and second degree burglary priors was an abuse of discretion and a due process violation, and (3) his trial attorney’s failure to introduce his statements to his son immediately after the shooting and to a police officer shortly after the shooting that he shot his wife by accident constituted ineffective assistance of counsel.

DISCUSSION

1. Other Domestic Violence

Hicks argues that the trial court’s admission of evidence of his commission of other domestic violence was an abuse of discretion and a due process violation since murder is not an act of domestic violence. The Attorney General argues the contrary.

Before trial, the prosecutor filed a motion in limine seeking to admit evidence of Hicks’s commission of other domestic violence on the authority of Evidence Code sections 1100 and 1109. The motion stated that on October 11, 2005, Hicks “committed a prior act of domestic violence” when he “got angry with [his wife] and dragged her out of the house by her feet,” and her “pants got pulled off as he dragged her out,” and that his wife, who was “scared,” “crying, upset, and hysterical,” “called her mother” right away and told her “what occurred.” For the next few weeks, the motion stated, his wife stayed with friends whom she told “what happened,” and she told other friends, too, but no one called the police.

At the hearing on the prosecutor’s motion in limine, Hicks’s attorney argued that his client’s behavior did not constitute a prior act of domestic violence within the scope of Evidence Code section 1109 and Penal Code section 13700. (Evid. Code, § 1109, subds. (a), (d)(3); Pen. Code, § 13700, subds. (a), (b).) The prosecutor argued that by placing his wife “in reasonable apprehension of imminent serious bodily injury” Hicks committed a prior act of domestic violence. (§ 13700, subd. (a).) Agreeing with the prosecutor, the trial court overruled Hicks’s objection, ruled the evidence admissible pursuant to Evidence Code section 1109 and Penal Code section 13700, and did not reach the issue of admissibility pursuant to Evidence Code section 1100.

Evidence Code section 1109, subdivision (a)(1) provides in relevant part: “… [I]n 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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Italics added.)

At trial, Hicks’s mother-in-law testified about a phone call she received on the night of October 11, 2005. Her daughter, crying and hysterical, told her that Hicks had grabbed her by the feet and pulled her out of the house from the living room and that, even though she had tried to keep herself inside the house by hanging onto door facings, her pants had come off and he had locked her out of the house.

The trial court instructed the jury on the evidence at issue with CALCRIM No. 852 (“Evidence of Uncharged Domestic Violence”):

“The People presented evidence that the defendant committed domestic violence that was not charged in this case.

“Domestic violence means abuse committed against an adult who is a spouse.

“Abuse means 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.

“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

“If the People have not met this burden of proof, you must disregard this evidence entirely.

“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 a crime of unlawful homicide with his spouse as victim. 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 a crime of unlawful homicide with his spouse as victim. The People must still prove each element of every charge beyond a reasonable doubt.

“Do not consider this evidence for any other purpose.” (Italics added.)

Hicks seeks to analogize the statutory language at issue – “placing another person in reasonable apprehension of imminent serious bodily injury” (§ 13700, subd. (a) – to statutory language justifying homicide “when there is reasonable ground to apprehend a design … to do some great bodily injury, and imminent danger of such design being accomplished” (§ 197, ¶ 3.) The Attorney General seeks to analogize the statutory language at issue to statutory language defining a battery as “any willful and unlawful use of force or violence upon the person of another” (§ 242) and to statutory language doubling from six months to one year the jail exposure for a battery “committed against a spouse” and mandating a one-year “batterer’s treatment program” on a grant of probation or on a suspension of execution or imposition of sentence (§ 243, subd. (e)(1)).

The analogies the parties suggest are neither helpful nor necessary. In construing a statute, a reviewing court must ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) To determine the intent, a reviewing court examines the statutory language at issue. (Ibid.) If there is no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statutory language governs. (Ibid.) That is so here. By his conduct on October 11, 2005, Hicks placed his wife “in reasonable apprehension of imminent serious bodily injury” within the scope of the statutory language. (§ 13700, subd. (a).)

Entirely apart from the statutory language, Hicks argues that as a general rule the admission of other crimes solely to show a disposition to commit crime violates due process and firmly established principles of Anglo-American jurisprudence. Evidence of prior criminal acts is generally inadmissible to show a defendant’s disposition to commit such acts (Evid. Code, § 1101), but the Legislature has created exceptions for prosecutions of sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). The California Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) By parity of reasoning, Evidence Code section 1109 has withstood like constitutional challenges. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) The trial court’s admission of evidence of Hicks’s commission of other domestic violence was neither an abuse of discretion nor a due process violation.

2. Impeachment Evidence

Hicks argues that the trial court’s refusal to permit him to impeach his mother-in-law, the witness who testified to his commission of other domestic violence, with her grand theft, felony assault, and second degree burglary priors was an abuse of discretion and a due process violation. The Attorney General argues the contrary.

Before trial, Hicks’s attorney announced his intent to impeach his mother-in-law with a 1978 grand theft prior, a 1979 felony assault prior, a 1979 check fraud prior, and a 1981 second degree burglary prior. The prosecutor objected, arguing that the most recent prior was 25 years old and that, to his knowledge, she had no subsequent criminal record. The trial court deferred a ruling pending citation by the parties to relevant authorities.

Before Hicks’s mother-in-law testified, the trial court issued a tentative ruling sustaining the prosecutor’s Evidence Code section 352 objection to her impeachment with, in the trial court’s words, her “arguably ancient” priors. Later, without impeachment, she testified that, on the night of October 11, 2005, her daughter, crying and hysterical, told her that Hicks had grabbed her by the feet and pulled her out of the house from the living room and that, even though she had tried to keep herself inside the house by hanging onto door facings, her pants had come off and he had locked her out of the house. She testified she never saw any injuries and her daughter never mentioned any injuries.

After Hicks’s mother-in-law testified, the parties argued the impeachment issue and cited relevant authorities for the record. The court ruled that the “ancient” priors at issue were, though theoretically statutorily relevant (Evid. Code, § 788), inadmissible on an Evidence Code section 352 analysis since they bore “undue prejudice that substantially outweigh[ed] the arguable probative value” and “tend[ed] to unduly confuse the issues.”

Acknowledging that the priors at issue “involved moral turpitude, because they tended to show either a general readiness to do evil, or bore on honesty and veracity,” the Attorney General correctly casts the issue as “whether the court abused its discretion in excluding the evidence under Evidence Code section 352.” (Citations omitted.) Agreeing with the Attorney General’s characterization of the issue on appeal, Hicks argues that “judicial discretion in no context is absolute,” that Evidence Code “section 352 should be used only sparingly against a criminal defendant,” and that since the jury did not hear of his mother-in-law’s priors the trial court’s ruling gave her a “false aura of credibility.”

Hicks fails to persuade us that the trial court committed an abuse of discretion. “Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) His mother-in-law’s testimony bore the incontestable bias of a grieving parent. To ensure jury consideration of that factor, the trial court later instructed with CALCRIM No. 226, which expressly asked the jury, “Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?”

On the witness stand, Hicks’s mother-in-law openly acknowledged that she never heard her daughter mention, and that she herself never saw, any injury arising out of his conduct on October 11, 2005. No matter how indefensible, his conduct on that date pales in comparison with the gravity of his shooting her to death on December 11, 2005. Last but not least, the priors at issue were all over a quarter of a century old. So the record shows no abuse of discretion. Since an abuse of discretion is the premise implicit in Hicks’s constitutional argument, the latter argument is equally meritless. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; cf. Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.)

3. Assistance of Counsel

Hicks argues that his trial attorney’s failure to introduce his statements to his son immediately after the shooting and to a police officer shortly after the shooting that he shot his wife by accident constituted ineffective assistance of counsel. The Attorney General argues the contrary.

By guaranteeing “access to counsel’s skill and knowledge” and implementing the constitutional entitlement to an “‘ample opportunity to meet the case of the prosecution,’” the defendant’s right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) To discharge the burden of establishing ineffective assistance of counsel, the defendant must show that his or her trial attorney’s action or inaction was not a reasonable tactical choice – a showing that makes the issue generally appropriate to habeas corpus rather than to appeal since the record on appeal customarily sheds no light on why counsel acted or failed to act in the manner challenged. (People v. Jones (2003) 30 Cal.4th 1084, 1105.) If the record fails to show the reason for the trial attorney’s actions or omissions, the reviewing court must affirm the judgment unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.) That is so here.

Hicks argues that he sought to introduce evidence that his son “stated his father said immediately after the shooting it had been an accident” and that he told “an officer on the way to the hospital that the shooting had been an accident” but that even after the trial court ruled the evidence admissible his trial attorney never introduced the evidence. As the Attorney General notes, Hicks’s trial attorney presented evidence that he hugged both of his two young sons immediately after the shooting and told them “he had accidentally shot” their mother. His trial attorney presented other evidence that he phoned his brother-in-law immediately after the shooting and told him “it was an accident.” His trial attorney presented yet other evidence that he told his father two days after the shooting “that this was an accident.” Additionally, his trial attorney presented evidence that he told his jail cellmate that “he was in custody for accidentally shooting his wife.” His trial attorney might well have concluded that sufficient corroborating evidence of accident was already before the jury without the additional evidence about which he now complains.

The California Supreme Court has “repeatedly stressed” that if the record on appeal sheds no light on why a defendant’s trial attorney acted or failed to act in the manner challenged, unless he or she was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the reviewing court must reject the ineffective assistance of counsel argument on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Since that is the state of the record on appeal here, Hicks’s ineffective assistance of counsel argument is meritless.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Vartabedian, Acting P.J. Hill, J.

Evidence Code section 1109, subdivision (d)(3) provides in relevant part: “Domestic violence has the meaning set forth in Section 13700 of the Penal Code.” (Italics added.)

Penal Code section 13700, subdivision (b) provides in relevant part: “Domestic violence means abuse committed against … a spouse .…” (Italics added.)

Penal Code section 13700, subdivision (a) provides: “Abuse 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.” (Italics added.)


Summaries of

People v. Hicks

California Court of Appeals, Fifth District
Sep 16, 2008
No. F052709 (Cal. Ct. App. Sep. 16, 2008)
Case details for

People v. Hicks

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK HOWARD HICKS, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 16, 2008

Citations

No. F052709 (Cal. Ct. App. Sep. 16, 2008)