Opinion
B199563
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. CARLOS INIGUEZ, Defendant and Appellant.
Deborah L. Hawkins, 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, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Carlos Iniguez appeals from the judgment entered following his conviction on several charges involving an aggravated assault on a cohabitant, contending the trial court prejudicially erred by admitting evidence of prior acts of domestic violence involving the same victim under Evidence Code section 1109. We affirm.
Statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Iniguez was charged by information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1), willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) (count 2) and violation of a domestic relations restraining order (Pen. Code, § 273.6, subd. (a)) (count 3). As to counts 1 and 2, the information specially alleged Iniguez had personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). As to count 2, the information specially alleged Iniguez had suffered two prior misdemeanor convictions of battery on a cohabitant within the last seven years (Pen. Code, § 273.5, subd. (e)(2)).
2. The Trial
The evidence at trial established Iniguez lived with Erika Zepeda, their two children and her sisters. In the early morning of January 1, 2007 Zepeda looked through her bedroom window and saw Iniguez getting out of a car. He was holding two beer bottles in his hands. Zepeda immediately went to the kitchen and called 911, keeping the house dark and whispering into the telephone because she did not want Iniguez to know she was home. During the call, Iniguez was pounding on the front door. Zepeda hung up the telephone and heard knocking on her bedroom window. She went to the window to tell Iniguez to leave because the police were coming. As Zepeda pulled back the curtain, she heard the sound of breaking glass. Shards from the broken window cut Zepedas neck. After the window broke, Zepeda turned on the bedroom light and saw Iniguez. Zepeda and her sisters asked Iniguez to leave, and he complied.
Iniguezs defense at trial was that he threw the beer bottle in anger at the window without realizing Zepeda was there and without intending to hit her. By the time of trial, Zepeda and Iniguez had reconciled, although they were no longer living together; and Zepeda attempted to support Iniguezs version of the incident.
a. Zepeda testimony
Zepeda admitted telling police Iniguez was pounding on the window and yelling at her and then threw a beer bottle at her through the window. However, Zepeda insisted she did not actually see Iniguez throw the bottle; she had only assumed that because she had seen beer bottles in his hands. Zepeda testified she "probably" told police Iniguez threw the beer bottle at her because she was angry with him for breaking the window; but now she knew it was an accident. "[H]e didnt mean to throw the bottle at me."
After considering the matter at a pretrial hearing, the court allowed the prosecution to question Zepeda about prior incidents of domestic violence with Iniguez.
Zepeda acknowledged Iniguez had struck her on two earlier occasions. On November 14, 2006 Zepeda and Iniguez argued. Iniguez was upset about misplacing his cellular telephone. The argument escalated, and Iniguez hit Zepeda in the head three times (apparently using his hand) and "did a mess in [her] room," using a hammer. During an argument on September 8, 2004 Iniguez hit Zepeda with a dry towel and slapped her in the back with his hand. She was pregnant at the time. Zepeda reported both incidents to police.
b. The officers testimony
Los Angeles County Sheriffs Deputy Garrick Twedt testified he interviewed Zepeda at her house on January 1, 2007. According to Twedt, Zepeda told him that she was inside her house when Iniguez began banging on the front door and demanding entry. Zepeda refused to let him in and went into her bedroom. While lying in bed, Zepeda saw Iniguez looking at her through the bedroom window. Zepeda sat up in bed, and Iniguez began pounding on the window. He then threw at her through the window a beer bottle he had been holding in his hand. Zepeda was cut from the breaking glass. She retreated to the far side of the bedroom, fearing Iniguez was going to enter the house and possibly assault her. At the time of the interview, Zepeda was upset, scared and in obvious pain. She had several cuts on her neck that were bleeding profusely. Detective Enrique Rosado testified that during a telephone call on January 3, 2007 Zepeda confirmed to him what she had previously told Deputy Twedt.
Detective Rosado also testified he interviewed Iniguez at Zepedas house on January 23, 2007. After being advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), Iniguez admitted "he threw a beer bottle at the window in an attempt to hit [Zepeda] because he was angry." Iniguez explained he had "anger management problems." Sometime later Rosado spoke with Zepeda again, and she asked that criminal charges be dropped. Zepeda never told him she thought the incident was an accident.
The parties stipulated that before the January 1, 2007 incident, Iniguez was aware of a lawful court order requiring him to stay 100 yards away from Zepeda at her house.
c. Closing arguments
Iniguez neither testified nor presented other evidence in his defense.
The prosecutor argued to the jury the evidence established, after Zepeda told Iniguez to leave from her bedroom window, he became angry and threw a beer bottle at Zepeda in an attempt to hit her. Defense counsel argued, because there was evidence Iniguez was drunk, it was before sunrise, the house was dark and Zepeda was concealed by a curtain, there was reasonable doubt as to whether Iniguez knew Zepeda was there or intended to hit her with the bottle when he threw it.
d. The jurys verdict and the courts sentence
The jury convicted Iniguez of assault with a deadly weapon (count 1), willful infliction of corporal injury on a cohabitant (count 2) and violation of a domestic relations protective order (count 3) and also found true the related great bodily injury enhancements. In a bifurcated proceeding Iniguez admitted he had suffered two prior misdemeanor convictions for corporal injury to a cohabitant. The trial court sentenced Iniguez to an aggregate state prison term of four years: the three-year middle term on count 1, plus one year for the great bodily injury enhancement; and 174 days in county jail on count 3, to be served concurrently to count 1, with credit for time served. Sentencing was stayed on count 2 pursuant to Penal Code section 654.
3. Admission of Evidence of Earlier Incidents of Domestic Violence
As indicated, the People moved prior to trial pursuant to section 1109 to allow Zepeda to testify to the 2004 and 2006 incidents of domestic violence involving Iniguez. The court tentatively concluded, although the earlier incidents fell within section 1109 as evidence of prior domestic violence, they were not sufficiently similar to the present incident and should be excluded under sections 1101, subdivision (a), and 352. However, the court deferred a final ruling until Zepeda testified, reasoning, if she characterized the present incident as "an accident" or "mistake" on Iniguezs part (contrary to what she had told the police), then the evidence of prior domestic violence would be admissible to show Iniguezs intent to inflict harm on Zepeda as part of their abusive relationship. To avoid potential undue prejudice under section 352, the court admonished the prosecutor to "sanitize" this propensity evidence by eliciting from Zepeda the "narrow[est]" account of the incidents.
Section 1109, subdivision (a)(1), provides, "In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Section 1101, subdivision (a), provides, "Except as provided . . . in Section[] . . . 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
After hearing Zepeda testify at trial that the present incident was an accident and that Iniguez did not intend to throw the bottle at her, the trial court permitted the People to elicit the section 1109 evidence.
CONTENTION
Iniguez contends his two prior incidents of domestic violence were so dissimilar to the crime with which he was charged in the present case that admission of evidence of those incidents pursuant to section 1109 was an abuse of the trial courts discretion and denied him his constitutional right to a fair trial.
DISCUSSION
Iniguez emphasizes that in each of the earlier incidents of domestic violence he had physically attacked Zepeda following an argument and clearly intended to harm her. In contrast, in the present incident his intent in throwing the bottle was unclear. Because the evidence established Iniguez was intoxicated at the time of the current offense, he argues it was reasonable to infer his act of throwing the bottle was simply an expression of his frustration at Zepeda for barring him from the house, rather than a willful attempt to injure her. This is particularly so, he asserts, in light of the evidence Zepeda was concealed behind a curtain in a darkened house before dawn. According to Iniguez, admission of evidence of the prior domestic violence incidents was unduly prejudicial because it discouraged the jury from considering his defense that he had not knowingly aimed the bottle at Zepeda.
Prior criminal acts are generally inadmissible to prove disposition or propensity to commit the charged offense (§ 1101, subd. (a)). Section 1109 creates an exception in domestic violence cases, reflecting the Legislatures determination that evidence of prior acts of domestic violence is highly probative and, therefore, despite its potential prejudicial impact, should be admissible in new prosecutions for domestic violence. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) The exception permitting evidence of prior acts of domestic violence to prove propensity to commit such acts, moreover, is necessary because these cases present unique problems of proof and credibility. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.)
In determining whether to admit prior acts of domestic violence, the trial court must consider whether the prior acts are more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, the closeness in time of the prior acts, and whether the defendant has already been convicted of and punished for the prior acts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
The trial court did not abuse its discretion in admitting the evidence of Iniguezs prior domestic violence attacks on Zepeda. The charged offenses in this case, assault with a deadly weapon and willful infliction of corporal injury on a cohabitant, were general intent crimes. As the jury was instructed, among the elements the prosecution had to prove to establish these crimes were, when Iniguez "acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force" to Zepeda (Judicial Council of Cal. Civ. Jury Instns. (2007-2008) CALCRIM No. 875 — assault with a deadly weapon), and Iniguez "willfully and unlawfully inflicted a physical injury" on Zepeda (CALCRIM No. 840 — willful infliction of corporal injury on a cohabitant). Once Zepeda recanted her statements to police and testified the incident was an accident, Iniguezs intent in throwing the bottle became an issue. The section 1109 domestic violence evidence established Iniguezs propensity for violence against Zepeda and was relevant to impeach her trial testimony, as well.
Contrary to Iniguezs contention, evidence of the two prior incidents had substantial probative value under section 352 because of their similarity to the present incident. In all three incidents Iniguez struck Zepeda (with an implement or his hand) when they were alone, in the wake of a dispute or argument. We have no doubt the evidence was damaging to Iniguezs defense. But it was not prejudicial in the sense that it "`uniquely tend[ed] to evoke an emotional bias against the defendant as an individual and which ha[d] very little effect on the issues." (People v. Karis (1988) 46 Cal.3d 612, 638.)
DISPOSITION
The judgment is affirmed.
We concur:
WOODS, J.
ZELON, J.