Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F09704
BUTZ, J.A jury convicted defendant Frank Hicks of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In bifurcated proceedings, the court found a strike prior (assault with a firearm) and a prior prison term allegation to be true.
Sentenced to state prison for an aggregate term of seven years, defendant appeals. His sole contention is that the trial court abused its discretion in allowing the prosecutor to cross-examine defendant about the underlying facts of his 2004 conviction for assault with a firearm, resulting in a violation of his right to due process and a fair trial. We shall affirm the judgment.
FACTUAL BACKGROUND
On November 28, 2008, in Mix Park, the 25-year-old defendant punched his 18-year-old girlfriend K.P. in the stomach several times. She was eight months pregnant. While she was on the ground, defendant, wearing boots, kicked her several times. A teenage passer–by witnessed defendant deliver three punches to K.P.’s stomach and reported it to her father who called 911. Officers located the pair who matched the teenager’s description. Defendant and K.P. were yelling at one another. K.P. was upset, crying, and screaming that she had lost her baby. K.P. reported that defendant had accused her of cheating on him and he hit her in the stomach. Officers arrested defendant and had K.P. transported to the hospital where she was given medication to stop the contractions caused by the blows to her stomach. She felt intense pain in her stomach and elsewhere, having been punched and kicked all over.
Defendant testified. He claimed that K.P. suffered injuries due to a fight she started with another woman at the park and that he had nothing to do with it. He claimed K.P. was mad at him at the park and started swinging at him. He suggested that the teenager knew K.P. and that he had overheard K.P. ask her why she had claimed he was responsible.
The prosecutor presented evidence that this was not the first time that defendant had controlled and physically abused K.P. On June 28, 2008, defendant drove his car towards her to hit her, an incident witnessed by someone in the neighborhood. On July 4, 2008, defendant had slapped her at a motel, an incident witnessed by the motel manager. On July 15, 2008, defendant beat K.P. K.P. reported the incident to the police. Later, K.P. recanted, fearing reprisals from defendant but she had no explanation for her injuries.
Defendant denied slapping K.P. at the motel. He claimed that she clawed him first in his face with her fingernails and that he responded and scratched her cheek with his fingernails. Defendant denied driving his car at K.P. He denied beating her on July 15.
The prosecutor also presented evidence that defendant had physically abused C.B. and T.D., other girlfriends. C.B. testified that on March 31, 2005, defendant accused her of being unfaithful and hit her numerous times. She escaped and the police were called. She was not completely forthcoming as to what happened and defendant was not arrested then. On April 2, 2005, defendant thought she was looking at another man and punched her in the face. C.B. suffered bruising as a result of defendant’s beatings and he was arrested.
Defendant asserted that C.B. had exaggerated the incident when he struck her and he claimed that she struck him first in the nose. He retaliated and hit her twice with an open hand. He denied having ever hit her before.
T.D. reported to the police that one evening, defendant refused to leave her apartment and pushed her against a wall. Defendant claimed he was trying to make up with her and kiss her after their argument.
Defendant was convicted in 2004 of assault with a firearm. Defendant had pistol-whipped a 15-year-old girl. In limine, the trial court ruled that the prior would be admissible for impeachment but sanitized.
During cross-examination of defendant, the prosecutor requested permission from the court to ask defendant about the underlying facts of the 2004 prior conviction. The prosecutor asserted such evidence was admissible under Evidence Code section 1103, subdivision (b) (hereafter section 1103(b)), because defendant had presented evidence that C.B. was violent. Defense counsel objected, arguing that section 1103(b) was inapplicable because C.B. was not the victim of the crime for which defendant was being prosecuted. The trial court noted that defendant had also testified that “he was acting in self-defense on various portions of conduct relating to [K.P.] as well.”
Undesignated statutory references are to the Evidence Code.
The trial court concluded that section 1103(b) applied and allowed the prosecutor to question defendant about the underlying facts but warned it would “start sustaining objections based on [section] 352” if the questioning was extensive. The court granted defendant’s request that the prosecutor expressly state that it was not a domestic violence case and ordered the prosecutor not to mention the girl’s age (15).
The prosecutor’s questioning was as follows:
“Q. Mr. Hicks, on March 8th of 2003 you were riding in a vehicle with a girl named Jessica, or female named Jessica [V.] (phonetic); correct?
“A. Yes, sir.
“Q. And during that evening you pulled Jessica [V.] out of that car; isn’t that correct?
“[DEFENSE COUNSEL]: Your Honor, I’m going to object. Could we approach?
“Q. [PROSECUTOR]: Let me clarify. You were not in a relationship with Jessica [V.]; correct?
“A. No, sir.
“Q. So this was not any sort of domestic partner or any sort of girlfriend of yours; correct?
“A. No, sir.
“Q. At some point you and Jessica [V.] were outside of the vehicle that you had previously been riding in; correct?
“A. Yes, sir. It was my car.
“Q. And that evening, isn’t it true, that you struck her in the head with a pistol?
“A. No, not with a pistol. Um, but I did strike her, yes, sir.
“Q. Didn’t you later admit to striking her in the head with a pistol?
“A. Um, well, I pled no contest to it. I don’t know if that’s an admission to it but, yes, I did.
“Q. And that was a [Penal Code section] 245[, subdivision] (a)(2), assault with a firearm; correct?
“A. Uh, supposed to be a non-firearm.
“Q. It was. Did you have an attorney at the time?
“A. Yes, I did, sir.
“Q. And you’re saying you didn’t know you were pleading to a charge where you were accused of striking another individual with a firearm?
“A. Well, he—he made it a point to put on there it was non-firearm.
“Q. Okay.
“A. So I don’t know if it was on there.”
Later, in cross-examining defendant’s cousin who had testified on direct that defendant does not hit women, the prosecutor asked whether the cousin’s opinion would change if he knew about defendant’s plea of no contest to assault with a firearm for striking Jessica V. The cousin stated his opinion would not change because he did not witness it.
DISCUSSION
Defendant contends the trial court abused its discretion in allowing the facts underlying his 2004 conviction under section 1103(b) because the threshold requirement had not been met; that is, he had not first adduced evidence that K.P., the victim of the charged offense, had a character trait of violence. We find no error.
Section 1103 provides, in relevant part, as follows:
“(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
“(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
“(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
The People concede that section 1103(b) allows the prosecution to introduce evidence of defendant’s character for violence only after defendant has adduced evidence of the victim’s character for violence under section 1103, subdivision (a)(1). We agree. Subdivision (b) expressly relates back to subdivision (a), which states that the victim is the “victim of the crime for which the defendant is being prosecuted.” (See People v. Blanco (1992) 10 Cal.App.4th 1167, 1173-1176.) Here, that means K.P. (the current victim), not C.B (the former victim).
The People claim in a footnote that defendant first introduced evidence of K.P.’s character for violence, citing certain transcript pages of defendant’s testimony that K.P. was repeatedly violent towards him. At the cited pages, defendant gave his version of what transpired at the motel where K.P. claimed defendant had slapped her. He claimed he had ordered her into the car but she refused so he tried to trick her into getting into the car. He claimed she got angry, “rushed [him] and would claw [his] face, like dig her nails into [his] face.” When he claimed “she would do this from time to time, ” the court sustained the prosecutor’s objection, ordered the testimony stricken, and instructed the jury to disregard it. Defendant then testified that he responded by “sticking [his] fingernails in her face.” When they got in the car, he told her to look at her face but explained he did not have a rearview mirror because “she had been breaking out my windows.” The court sustained the prosecutor’s objection, ordered the testimony stricken, and instructed the jury to disregard it. Defendant later testified without objection that K.P. had broken his windows and he had replaced them two or three times.
As the trial court noted, defendant testified that at the motel he acted in self-defense when K.P. clawed him in the face with her fingernails. Defendant presented this and other evidence of K.P.’s character for violence (breaking his windows). Although the prosecutor referred to C.B., the prosecutor was entitled to introduce evidence to rebut the defense evidence related to K.P.
Further, the trial court’s ruling was correct in law even if given for a wrong reason. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Although evidence of a person’s character including evidence of specific instances of uncharged misconduct is generally inadmissible (§ 1101, subd. (a)), the evidence was admissible here to attack defendant’s credibility under section 1101, subdivision (c).
Although, as defendant notes, the trial court ruled prior to trial that the prosecutor was limited to the fact of defendant’s prior conviction in sanitized form for impeachment purposes, the trial court was not precluded from changing its ruling after defense counsel presented evidence that defendant was not physically aggressive with women. Defendant presented himself as the non-aggressor when he claimed he acted only in self-defense. With respect to C.B., he claimed that she hit him first and that he responded by striking her twice. The facts underlying defendant’s conviction for assault with a firearm reflect that he admitted being the aggressor with a woman, albeit not a girlfriend, in that he pulled the young woman out of his car and pistol-whipped her in the head. We find no error. The trial court did not abuse its discretion in allowing the evidence to impeach defendant (People v. Lewis (2009) 46 Cal.4th 1255, 1286), especially since the trial court gave an appropriate limiting instruction (CALCRIM No. 316—Additional Instructions on Witness Credibility—Other Conduct). (See People v. Millwee (1998) 18 Cal.4th 96, 129-131.)
Defendant contends that admission of facts underlying his 2004 prior also violated his right to a fair trial under the due process clause of the Fourteenth Amendment. Having found no error, we need not discuss the “newly applied constitutional ‘gloss.’” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
DISPOSITION
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he was convicted of a serious felony. (Pen. Code, §§ 245, subd. (a)(2), 1192.7, subd. (c)(31), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
We concur: RAYE, P. J., ROBIE, J.