Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County Super. Ct. No. CRF21067. Eleanor Provost, Judge.
Richard Jay Moller, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On May 12, 2006, the Tuolumne County District Attorney filed a domestic complaint in superior court charging appellant Noah Scott Kolpack as follows: count I—corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) with a prior conviction for domestic violence (§ 273.5, subd. (e)(1)), two prior prison terms (§ 667.5, subd. (b)), and six prior felony convictions (§ 1203, subd. (e)(4)).
On May 26, 2006, the Honorable Douglas C. Boyack, judge of the superior court sitting as a magistrate, deemed the complaint to be an information and ordered it filed in the superior court.
On June 5, 2006, appellant was arraigned on the information, pleaded not guilty to the substantive count, and denied the special allegations.
On July 5, 2006, appellant waived a jury trial of the special allegations and admitted the truth of the prior felony convictions.
On July 10, 2006, the court conducted a hearing under People v. Marsden (1970) 2 Cal.3d 118 and relieved the office of the public defender as appellant’s trial counsel.
On September 6, 2006, the district attorney filed a motion in limine to introduce evidence of prior acts of domestic violence committed by appellant (Evid. Code, § 1109).
On September 13, 2006, appellant again admitted the truth of the prior felony conviction allegations. On the same date, the Honorable Eleanor Provost, judge of the superior court, granted the district attorney’s motion in limine and jury trial commenced.
The court and the prosecutor apparently failed to recall appellant’s admissions of July 5, 2006. The prosecutor stated at one point: “For some reason, I seem to recall talking about that last time, and I ....” The court interjected, “I do, too, but I don’t remember. That was quite a while ago.”
On September 14, 2006, appellant admitted the truth of the prior prison term special allegations.
During this hearing, Deputy District Attorney Hovatter informed the court he could not recall the court specifically “taking an admission that the defendant had been free of prison custody for five years pursuant to 667.5(b).”
On September 15, 2006, the jury returned a guilty verdict on the substantive count.
On October 11, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of seven years in state prison. The court imposed the upper term of five years on the substantive count and consecutive terms of one year each for two prior prison terms. The court imposed a $1,400 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 231 days of custody credits. The court retained jurisdiction over victim restitution, ordered appellant to complete a program for domestic batterers, and issued a posttrial restraining order.
On October 23, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Evidence of Prior Bad Acts
In 1998 or 1999, Tracy K. began living with appellant in her mother’s home. Within weeks of their cohabitation, appellant became physically and verbally abusive and began hitting Tracy with his fists. He engaged in this conduct three or four times but each time Tracy declined to report it to police because appellant said he loved her and would not do it again. In May 2000, Tracy and appellant had a son together. They normally drank 12 beers a day. Tracy used a little marijuana and appellant used methamphetamine. Tracy would not hit appellant back because she was scared for her life.
In May 2001, appellant woke up from a mid-afternoon nap and yelled at Tracy to wash their son. Appellant then began to hit Tracy “all over.” After this outburst, Tracy went to take a bath. When Tracy came out of the bathroom, appellant pushed her and made her fall and hit the bathtub. Tracy suffered a bloody head and lip. Appellant told Tracy to clean herself up. She went back into the bathtub for five or 10 minutes “until it got quiet.” Tracy finally emerged from the bathroom, grabbed her purse, ran to a neighbor’s house, and had the neighbor call police. When Tracy spoke to officers, she had an injury to the right side of her face. Appellant caused the injury by kicking her in the jaw with a steel-toed boot. Appellant was convicted of felony domestic violence based on this conduct. Tracy had no further contact with appellant, other than during visitations with their child.
Evidence Underlying the Instant Case
Niki B, testified she had known appellant since she was 16 or 17 years of age. She became involved with appellant in February 2006 moved in with him a short time later. On February 27, Niki and one Leslie Hatler had an altercation over a $20 debt that Hatler owed appellant. Niki claimed that Hatler split her head open during the fight. In March 2006, Ken and Joy Kinyon rented a room in their Jamestown duplex to appellant and Niki. The duplex was located in an area of Jamestown known as “the ghetto.” Appellant and Niki had their own bedroom and bathroom downstairs in the duplex. They shared the living area and kitchen of the duplex with the Kinyon family.
According to Niki, appellant physically pushed her and spat in her face a few times during their relationship. On certain occasions, Joy Kinyon had to calm appellant down when Niki and a neighbor talked or when a neighbor looked at Niki “wrong.” Kinyon nevertheless said she never saw appellant physically mistreat Niki and noted that Niki never discussed marital problems with her. Kinyon heard the couple argue at times but not to an unusual extent. Joy Kinyon said she never saw bruises that appeared to be caused by violence.
In April 2006, appellant became upset because Niki spoke to a teenage boy. Appellant told Niki to stay in the room. On April 18, 2006, Niki accompanied appellant on a visit to his parole officer. Appellant’s boss took him to the parole officer’s office for a test. After the test, the couple had some drinks with appellant’s boss before returning home. Upon their return, they shared a “shot or two” from a bottle of Kessler’s. That evening the couple ate dinner with Joy Kinyon and left the bottle of Kessler’s with the Kinyons.
Appellant and Niki went to bed between 9:00 and 10:00 p.m. that evening. According to Joy Kinyon, Niki did not appear to be intoxicated and did not have visible injuries. When appellant and Niki were in their bedroom, they began to argue about a teenage boy named Balou, who had earlier asked Niki for a cigarette. Appellant became upset about Niki’s interaction with the teenage boy. Appellant pushed her, wrapped a bedsheet around her neck, and pulled on the sheet. He also stepped on her upper body with his boots, pushed her eye sockets with his thumbs, and hit her until she briefly blacked out. While appellant assaulted Niki, the two bumped against a dresser and Niki tried to pull away. Niki gasped for air as appellant hit her. Appellant talked to her in hushed tones and tried to quiet her. Joy Kinyon did not hear anything unusual in the night, although her son later thought he had heard something. However, the son went back to bed. The Kinyon duplex was not particularly soundproof and Joy Kinyon thought she would have heard a fight if it had occurred inside the duplex.
Niki eventually went to the bathroom and slept on the floor. In the morning, appellant put Niki on the bed, locked the door, told her to stay there, and went off to work. This took place sometime before 5:00 a.m. Appellant and Niki did not know that Joy Kinyon had a key to their portion of the duplex. Niki did not come out for breakfast at her normal time. At about 11:00 a.m., Joy Kinyon knocked on her door. Niki just pulled the blanket over her head and declined to answer because she felt humiliated and was in pain. Joy Kinyon unlocked the bedroom door and found Niki hiding under the blankets. Niki said, “Don’t look at me.” Kinyon pulled the blankets down and saw that Niki had sustained severe injuries. These included huge black and blue eyes that were swollen shut, “chipped up” lips, bruises to her temple and chest, boot print bruises on her biceps, and scrapes to her vertebra, knees, feet, and elbows. One of Niki’s pupils was dilated and the other was not. Niki could not walk and Joy Kinyon thought she had sustained a concussion. Niki told Kinyon that appellant had instructed her to lock the bedroom door and not to go anywhere.
Niki also told Kinyon that she was drunk on the previous evening, had taken a walk, and that a large, blonde or red-headed woman from down the street had beaten her up. At trial, Niki testified that she lied to Kinyon about the incident because she and appellant were afraid that Niki’s father might do something if he found out. As a result, they made up a story about Niki being jumped by a girl or several girls.
Niki said she did not ask Joy Kinyon to call the police because she was “stupid” and was afraid for appellant because he was not a “bad guy.” Niki did not go to the hospital or see a doctor. According to Joy Kinyon, Niki’s father had previously asked some people their opinion of appellant and said Niki could not return to his home until she got rid of appellant. Appellant told Niki she could blame her injuries on the teenage boy. When appellant arrived home that day, he already knew that Niki had been physically beaten. Kinyon offered contradictory statements about appellant’s behavior toward Niki that day. At one point, Kinyon testified appellant acted in a caring manner toward Niki by bringing her an ice pack and helping her walk to the bathroom. However, Kinyon also testified that appellant did not provide any care for Niki that day. Kinyon testified that appellant seemed “fine” but that he was also “visibly concerned for Niki.” In an earlier statement to an investigator, Kinyon said appellant seemed very nervous around Niki and did not behave as he normally did.
Joy Kinyon’s neighbors eventually looked for Niki’s assailant but did not find anyone. Kinyon believed that, had someone actually assaulted Niki, the assailant would have been found. Kinyon explained that her neighborhood was very tight-knit and “nothing doesn’t go on around there that it doesn’t trickle down to the culprit.” Kinyon said law enforcement was never contacted because many people in her neighborhood have probation or parole issues.
A few nights after the April 18 incident, appellant and Niki were walking by an elementary school near the Kinyons’ duplex. Niki bent over to tie her shoe and appellant threw a cigarette at her. He apparently thought that Niki was inappropriately displaying her backside in public. That same evening, a law enforcement officer named Deputy Serrano came along and asked Niki, “What happened to you” Niki replied, “I got jumped in the ghetto.” Appellant told Serrano that he had been hit with a baseball bat a few months earlier.
At the end of April 2006, the Kinyons asked appellant and Niki to leave the duplex because they had not paid the rent. At that time, Niki still bore visible marks from the April 18 incident. Months after appellant’s arrest, Niki told Joy Kinyon what had happened on the evening of her assault. Given the layout of the duplex, Joy Kinyon thought she would have heard a fight between appellant and Niki if one had occurred. Although appellant and Niki lived in the duplex for less than a month, Joy Kinyon never saw appellant physically mistreat Niki.
Photographs taken at the sheriff’s department on or about May 12, 2006, depicted the injuries that Niki received on April 18, 2006.
In May 2006, appellant and Niki stopped by the home of Jason Crow, appellant’s former schoolmate. Niki was having trouble operating the clutch of a borrowed automobile. While they were at the Crow residence, Niki began talking to Crow’s friend, Scott Davidson. Their conversation made appellant angry. When they started to depart, Niki again had trouble operating the clutch. Jason Crow heard appellant and Niki yell at one another and Niki told appellant to leave her alone. Appellant forcibly pulled Niki toward him and grabbed her when she tried to flee, saying, “You’re not going anywhere.” Niki said the incident occurred when appellant pulled her out of a car and put her in a headlock because she did not properly operate the clutch.
At trial, Crow denied seeing appellant put Niki into a headlock. However, in an interview with a sheriff’s deputy prior to testifying, Crow said that he did see appellant place Niki in a headlock. According to the deputy, Crow also said he saw bruises on Niki’s arms. On the witness stand, however, Crow denied seeing bruises. He testified he told the deputy he had heard that Niki had bruises.
At the time of the incident, Crow asked appellant, “Do you know what you’re doing?” Appellant responded, “I’m not doing nothing.” Appellant quickly released Niki and told Crow, “I wasn’t hitting her.” Appellant and Niki drove away and went to Kathleen Reposa’s house. Reposa was a friend of appellant and knew Niki’s family. Niki cried and yelled, told appellant she was sick of him, and said she was “not going to let [appellant] do this to [her] anymore.” Appellant put his hand over Niki’s mouth and disabled the vehicle. Niki escaped from the car and ran to Crow’s house.
About two hours later, Niki knocked on Crow’s door and asked to use the telephone. Niki said she was okay but had to get away from appellant. Niki then called someone from Crow’s house and said she had bruises. In response, Scott Davidson picked Niki up from Crow’s house.
Defense
Appellant testified on his own behalf and acknowledged prior convictions for petty theft with priors, for possession of stolen property, and for felony domestic violence. Appellant, who claimed he was not a jealous person, began dating Niki in February 2006 and said there were no physical fights between them in February and March. Appellant said he and Niki began drinking and doing drugs after she had been clean and sober for four years. Appellant admitted that such conduct violated the terms of his parole.
According to appellant, one month after they began dating, Niki got into a fight with a woman named Leslie Hatler. Appellant said Hatler weighed 160-170 pounds and had been to prison 11 times. Hatler cracked Niki’s head open during a dispute over a debt that Hatler owed appellant. Niki did not want to tell her father about the fight or admit that she lost custody of her three children due to alcohol and drug usage.
Appellant said he knew almost everyone who lived in “the ghetto.” On the evening of April 18, 2006, appellant and Niki shared 12 beers and other alcoholic beverages. That evening, appellant went to bed but Niki ingested methamphetamine and wanted to go out and party. Appellant told her he had to go to work the next day and said he wanted to sleep. In response, Niki threw a five-gallon wine bottle into a closet and broke it. She said, “I’m out of here. I’m leaving.” Appellant let her leave, even though she was very drunk. Niki returned about 25 or 30 minutes later. She looked beaten up and was slurring her words.
Joy Kinyon had testified that she was not positive whether Niki or appellant left the duplex that night. Kinyon then clarified that one of them must have opened and shut the door at two separate points in time because the curtains moved twice that night. Kinyon did not know who opened and closed the door. She assumed it was either appellant or Niki because Kinyon’s husband and son were the only other people in the duplex and they were already in bed.
Appellant asked Niki what had happened. Although she did not give a complete explanation, Niki told appellant she had gone over to the next road and that some lady with reddish hair asked what she was doing but Niki did not feel like answering. Niki did not look like she needed medical help and she told appellant she was okay. Niki also told appellant she did not want to go to the hospital. Appellant speculated that Niki was still drunk and was not feeling much pain. Appellant nevertheless got her an ice pack and “helped [her] as much as I could.” Later that morning, appellant told Niki to stay in the room and lock the door because he was afraid for her. Appellant said he was afraid of retaliation because people were routinely robbed, stabbed, and killed in “the ghetto.” As an example, appellant said on January 4 he had been hit in the back of the head with a club and sustained a detached retina and three fractures to his face. Appellant said he never called the police because the police never helped when he summoned them.
Appellant said he and Niki went to Jason Crow’s house at 1:00 a.m. on May 3, 2006. Both of them were “in no condition to drive” because they were doing methamphetamine and had consumed about eight beers apiece. Appellant acknowledged having a “disagreement” with Niki but denied touching her or putting her in a headlock. Appellant said he and Niki then went to Reposa’s house (approximately one mile away) and attempted to call the owner of the car they were using At Reposa’s house, appellant took the keys away from Niki. The pair got into an argument and Niki screamed “at the top of her lungs” for 20 to 25 minutes.
Appellant said he was very open-minded and encouraged anyone who has friends to build on those relationships. Appellant did not know an 18-year-old Balou, although he knew a 57-year-old with the same name. Appellant denied becoming upset in Jamestown when someone asked Niki for a cigarette. He also denied throwing a cigarette at Niki.
When appellant and Niki visited his friends, the topic of Niki’s injuries came up often. Appellant said Niki never accused him of inflicting the injuries. Appellant said he first became aware of Niki’s accusations at the time of his arrest. That took place a week after the driveway incident and a day after he told Niki he never wanted to see her again. As to prior conduct, appellant said he never mistreated Tracy K., although he pleaded guilty to doing so. Appellant said he had the same kind of problems with Tracy as he had with Niki because of drugs and alcohol. Appellant said he and Tracy frequently got into “wrestling matches.”
Kathleen “Kay” Reposa testified on appellant’s behalf. She said she was appellant’s friend and that he and Niki came to her home about once every two weeks. Reposa said appellant was not possessive as to Niki. Resposa saw Niki a few weeks after the latter was attacked. Niki entered Reposa’s yard, took off her sunglasses, and said, “[L]ook at my black eyes.” Niki explained, “Yeah, I got jumped in the ghetto.” Reposa said Niki never attributed the injuries to appellant.
At 12:30 a.m. on May 3, 2006, Reposa was at her home when she heard Niki yelling and appellant attempting to quiet her. Reposa said the yelling lasted a few minutes but Reposa was not concerned about the possibility that law enforcement would be summoned. A few seconds after the yelling, appellant knocked on the front door and Reposa let him in. He did not appear to Reposa to be drunk. A few minutes after appellant entered, Niki knocked on the door. She talked with appellant and then left Reposa’s home. Appellant spent the night at Reposa’s home because the car he and Niki had been using had broken down.
Desiree Tidball said she knew appellant for a few years preceding the trial. Tidball said appellant and Niki came to her house for short visits. Tidball never saw the couple argue and she did not believe appellant was overly controlling toward Niki. Tidball saw Niki after the latter suffered her injuries. Niki was bruised on her face and arms but the bruising was fading at the time Tidball saw her. According to Tidball, Niki said, “Some girl jumped me.” Niki never said that appellant attacked her. Tidball saw the couple after this occasion. They appeared to get along and acted “like they were totally in love with each other.”
Modesto resident Doris Mayo knew appellant for about one year. Mayo said her husband had been incarcerated with appellant. Appellant visited her on a number of occasions. Mayo saw Niki on one occasion, when appellant brought her on a visit and stayed the entire day. Niki had no bruises on her body during that visit. Mayo said Niki and appellant got along very well and appellant was not overly controlling.
Mayo’s neighbor, Laurie Rice, knew appellant for about a year. Rice saw Niki on one occasion, when the couple visited Rice and Mayo. Niki did not appear to have any bruises or marks. Rice said the couple got along well. She did not observe any arguments between the two or any controlling behavior on appellant’s part. Rice said she never saw appellant lose his temper, get into a fight, or mistreat anyone.
Rebuttal
Niki testified that Desiree Tidball lived on Jamestown Road. Niki visited Tidball approximately four or five times but not after she suffered her injuries. In a telephone conversation, appellant told Tidball that Niki’s injuries were the result of an attack by another woman.
Niki said she visited Reposa six or seven times and “we spent the night” twice there. She last saw Reposa in August 2006, when Niki was on her way to Washington. Niki said she never removed her sunglasses and never asked Reposa to look at her blackened eyes. Niki said both she and appellant told Reposa “this stupid story” about the cause of her bodily injuries.
DISCUSSION
I.
EVIDENCE OF PRIOR DOMESTIC ABUSE
Appellant contends the trial court violated his federal constitutional rights to due process by admitting evidence of prior domestic violence against Tracy under Evidence Code sections 352 and 1109.
On September 6, 2006, the prosecution moved in limine to introduce evidence of prior acts of domestic violence by appellant pursuant to Evidence Code section 1109. The prosecution submitted that “admission of evidence of the prior act of domestic violence by the defendant [against Tracy] will aid the jury in determining the defendant’s propensity to commit the offense charged in the information in this case.”
The following exchange occurred prior to trial on September 13, 2006:
“MR. HOVATTER [deputy district attorney]: Your Honor, the People filed a motion in limine. It’s really a 402 motion.
“THE COURT: And that is?
“MR. HOVATTER: In regards to testimony of a prior incident of domestic violence.
“THE COURT: Okay. That was filed September 6.
“MR. HOVATTER: And that has to do with the victim of the felony 273.5.
“THE COURT: Is it the same – are you alleging it’s the same victim?
“MR. HOVATTER: Yes.
“MR. MARTELL [defense counsel]: Your Honor, that motion was previously heard Monday morning.
“MR. HOVATTER: Oh, I wasn’t here Monday morning.
“MR. MARTELL: In Department 3. Mr. Knowles was there. I had reviewed it, and served properly, and although I objected to it for purposes of the record, I believe Judge Boyack allowed it to come in.
“MR. HOVATTER: I just don’t know if his ruling on the motion would be binding on the trial court.
“THE COURT: Well … it never appeared on the minute order of September 11th, either, so
“(Whereas, Discussion was had off the record between the Court and Court Clerk.)
“THE COURT: So, I’m going to grant the motion. It appears that Evidence Code 1109 allows for the prior to be brought in … the domestic violence criminal case. Oh, it is a different victim. I notice it’s a victim, Tracy [K.].
“MR. HOVATTER: Yes. And she is on the witness list, Your Honor.
“THE COURT: Okay.
“MR. HOVATTER: I’m sorry if the Court meant it’s the same victim, it’s not the same victim, it’s a different individual, but it is someone we have on the witness list and we intend to have testify.
“THE COURT: It is still admissible and I will allow it in.”
A. Application of Evidence Code Section 1109
Appellant now argues:
“The state Supreme Court has held that section 1108 conforms with due process. (People v. Falsetta (1999) 21 Cal.4th 903, 922.) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) California Courts of Appeal have followed these rulings to uphold the constitutionality of section 1109. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1312; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334.)
“Appellant disagrees. Convicting a defendant of a crime based solely on evidence that he had committed some other crime and was a person of general bad character violates the defendant’s federal constitutional right to due process of law. [Citations.] [¶] ... [¶]
“The Ninth Circuit has recognized that in federal cases, although ‘there is nothing fundamentally unfair about the allowance of propensity evidence’ ... ‘such [propensity] evidence will only sometimes violate the constitutional right to a fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little relevance it might have.’ (United States v. LeMay (9[th] Cir. 2001) 260 F.3d 1018, 1026-1028; see also, e.g., People v. Schader (1969) 71 Cal.2d 761, 772-773, fn. 6; People v. Walkey (1986) 177 Cal.App.3d 268, 279-280.) Particularly in cases such as this one, where the prosecution’s case in the charged offense depends upon one unreliable witness, the uncharged offense is similar to the charged offense, the prosecution relies on the other crimes evidence heavily in proving his case, and the other crimes evidence was emotionally charged. [Citations.]
“In sum, the use of evidence of appellant’s prior offenses to establish his guilt on the basis of criminal propensity and disposition evidence violated his constitutional guarantees of due process and a fair jury trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.”
Evidence Code section 1109 provides that evidence of a defendant’s commission of prior acts of domestic violence may be used in a criminal action in which the defendant is accused of an offense involving domestic violence if the evidence is not unduly prejudicial. (Evid. Code, § 1109.) This code section 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 new prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335.) The admission of prior acts of domestic violence, subject to the limitations of Evidence Code sections 1109 and 352, does not violate a defendant’s rights to due process and equal protection. (People v. Falsetta (1999) 21 Cal.4th 903, 917-918.) A trial court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) This standard also applies when reviewing a court’s decision regarding the admissibility of evidence under Evidence Code section 1109. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.)
The appellate courts have repeatedly rejected challenges to Evidence Code section 1109 on due process grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095- 1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings, supra, 81 Cal.App.4th at pp. 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419 .) These cases relied on People v. Falsetta, supra, 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, did not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. We likewise conclude Falsetta’s analysis is applicable to Evidence Code section 1109 and, for the reasons explained in these cases, reject appellant’s due process challenge to the statute.
Appellant further argues:
“Even if Evidence Code section 1109 is constitutional, the court abused its discretion by admitting the evidence despite Evidence Code section 352. Appellant respectfully disagrees with the Supreme Court’s assessment that section 352 protects defendants from the inherent prejudice in admitting propensity evidence. [¶] ... [¶]
“In making a section 352 decision concerning evidence to be admitted under section 1108 [a companion statute], the court is to weigh the probative value of the evidence against four factors: ‘(1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) the remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.’ (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Here, the court abused its discretion in admitting the evidence since it misapplied the above-enumerated factors in exercising its discretion. [¶] ... [¶]
“The trial court erred in admitting the prior crimes because the probative value was substantially outweighed by the probability that its admission would create substantial danger of creating undue prejudice. (Evidence Code § 352; People v. Beagle (1972) 6 Cal.3d 441; People v. Castro (1985) 38 Cal.3d 301.) [¶] ... [¶]
“Here, the testimony of [Niki] served essentially to inflame passion against appellant more than to provide probative value. The probative value of the evidence was minimal. Conversely, the prejudicial value of the evidence was enormous. [Tracy] was a devastating witness against appellant. A sympathetic woman’s presence in the courtroom, her demeanor on the witness stand, her emotional communication all combined to inflame and arouse passion in the jury. Further, [Tracy] did not testify to a relatively neutral offense, instead she described a particularly inflammatory assault against her. Such testimony is bound to arouse empathy and great sympathy in the jury for both her and [Niki]. Concomitantly, her testimony was calculated to incite great passion and anger against appellant. [¶] ... [¶]
“Given [Niki’s] questionable credibility, it is reasonably probable that the admission of the prior crimes against his ex-wife prejudiced appellant. This was a close case, as is evidenced by deliberations of about 10 hours over two days, and a juror question.…”
Under Evidence Code section 352, the court has discretion to exclude relevant 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. The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against a defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” Relevant factors in determining prejudice include 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 offenses. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
An appellate court will not overturn or disturb a trial court’s exercise of its discretion under Evidence Code section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. The trial court’s exercise of discretion under section 352 will not be disturbed unless the trial court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. When ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under section 352. (People v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)
In the instant case, the evidence of the prior acts did not consume an undue amount of time. The evidence entailed the oral testimony of just one prosecution witness, Tracy K., and took up a mere 20 pages of the reporter’s transcript of the trial. As to a comparison of the past and present acts, Tracy testified appellant hit her “all over,” pushed her into a bathtub, bloodied her head and lip, and kicked her in the jaw with a steel-toed boot. Joy Kinyon testified that Niki sustained blackened eyes, had a large bruise on her chest, and abrasions to her knees, elbows, feet, and back, and imprinted boot marks on her biceps. Thus, the prior conduct was not more inflammatory than the charged conduct.
As to the possibility of jury confusion, appellant submits: “Given their similarity, it would be easy for the jury to combine the incidents and facts of these two priors and assume appellant committed indiscriminate assaults on his intimate partners.” Tracy and Niki testified as to discrete events that occurred at distinct points in time. We must assume that jurors are intelligent persons and are capable of distinguishing between the testimony of various witnesses. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) Although the incident involving Tracy occurred in 2001 (five years before the charged acts involving Niki), they were not so distant in time as to compel their exclusion under Evidence Code section 352. Finally, on redirect examination Tracy testified that appellant was convicted of a felony for his 2001 conduct against her. Defense counsel did not interpose an objection to that testimony.
In view of the foregoing facts and circumstances, we cannot say the decision of the trial court to admit evidence of the prior acts was palpably arbitrary, capricious and patently absurd. The trial court did not commit evidentiary error and reversal is not required.
II.
CALCRIM NO. 357 (ADOPTIVE ADMISSIONS)
Appellant contends the trial court violated his right to a fair trial by giving CALCRIM No. 357 over his objection.
The following exchange occurred during direct examination of Deputy Sheriff James Gragg in the prosecution’s case-in-chief:
“Q [by Deputy District Attorney Hovatter] Where did you talk to him [appellant]?
“A [by Deputy Gragg] County jail.
“Q And prior to talking to him, did you read him his Miranda rights?
“A Yes, I did.
“Q And how did you do that?
“A Off my Miranda rights card.
“Q And did he waive those rights?
“A Yes.
“Q And what did he tell you about whether or not he had done anything to Niki ...?
“A He told me he did not recall doing anything to Niki.
“Q Was that in any way significant to you?
“A I thought it was an odd answer to my question.
“Q Why?
“A That he didn’t remember doing anything ....”
The following exchange occurred at the September 14, 2006, reported conference on jury instructions:
“THE COURT: ... Then we have the new 357, the new one.
“MR. HOVATTER: Yes. And just for the record, my thinking in 357 is when he was told why he was being interviewed by Deputy Gragg, he stated he had no recollection, I will submit that is not a denial.
“THE COURT: I will – they can consider whether they think that is a denial or not.... [¶] ... [¶]
“MR. MARTELL: For the record, Your Honor, I’ll object to 357.
“THE COURT: Yeah, 357 you’re objecting to?
“MR. MARTELL: Yeah.
“MR. HOVATTER: That’s the adoptive admission.
“THE COURT: No, I’m going to give that. I think there was – anybody else would have probably.
“MR. MARTELL: I think the Court already ruled on it. I just wanted to make it for the record.
The court subsequently instructed the jury in CALCRIM No. 357 as follows:
“If you conclude that someone made a statement outside of court that accused the defendant of the crime and the defendant did not deny it, you must decide whether each of the following is true: One, the statement was made to the defendant or made in his presence, two, the defendant heard and understood the statement, three, the defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true, and four, the defendant could of denied it, but did not. If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.”
The prosecutor stated during his opening argument:
“When he’s confronted with what he’s done, when he’s been arrested and he’s taken to jail and he’s read his Miranda rights and he knows what he’s in there for and he knows what he’s being accused of, his words are, ‘I don’t have any recollection of doing that to Niki ....’
“The instruction that the Court just read you, If you conclude that someone made a statement outside of court that accused the defendant of a crime, you’re in jail, you’ve been arrested, ‘I’m talking to you now about this beating,’ and the defendant did not deny it, you must decide whether each of the following is true: The statement was made to the defendant or in his presence, that is, the Deputy Gragg’s asking the guy about this beating in his presence, the defendant heard and understood the statement he did, because he’s responding, he’s not saying, ‘I didn’t do that to Tracy ...’ or somebody else, he’s talking about Niki .... And the defendant would, under all circumstances, naturally, have denied the statement. They thought it was not true, like he came in here and denied it, and his response was, ‘Well … I was nervous, I was all shook up.’
“If you’re arrested for domestic violence and you didn’t do it, those are the first words out of your mouth? I mean, you’re yelling it so much, the cop’s got to tell … you [to] shut up. But that’s not what happened. And the defendant could have denied it, but did not, and that is the evidence that you have heard. And, ladies and gentlemen, I submit to you that is an adoptive admission; that he could have denied it, didn’t deny it, because he knew he did it.”
On September 15, 2006, the jury retired to deliberate. At 1:40 p.m. that day, the jury transmitted a written note requesting “Clarification of Adoptive Admissions Instructions 357.” The face of the note bore Judge Provost’s initials and handwritten response: “Can you please narrow this down or clarify the issue?” The court and counsel subsequently held the following exchange occurred outside of the jury’s presence:
The minute order of September 15, 2006, stated in relevant part: “The jury sends out a note wanting clarification on jury instruction 357. The Court returns the question to the jury with an answer.” The augmented record on appeal contains a photocopy of the actual jury note bearing the court’s handwritten response to the jury question. As noted above, the court requested the jury to “narrow this down or clarify the issue.”
“[THE COURT:] The jury sent out a question about half an hour ago asking for, and I think the quote was, clarification of the adoptive admissions instruction 357. ... I had Mr. Martell in my chambers and Mr. Hovatter on the telephone. And in a conference call, the three of us were talking about it, and looking at the use notes, and noticed that one of the use notes says that when the Court instructs on this adoptive admissions, they have to give sua sponte the corpus delicti instruction. And we said, Well, that doesn’t make any sense for these facts?
“That would make sense if you had a question whether a beating had occurred, but it’s real clear in our set of facts that the named victim got beaten up, it was just a question of who did it in this case, whether it was some people in Jamestown or whether it was this defendant. So, it made no sense to me. I didn’t put that that use note in there. It mystified me, I have no idea what this issue would be and should it become an issue later, but I said that doesn’t make any sense for the fact pattern that we have, so there would be no reason to instruct having a corpus delicti when somebody has visible injuries to their body and has clearly been beaten up. [¶] ... [¶]
“MR. MARTELL: Excuse me, Your Honor. Did the Court instruct the jury when last it talked to them about this, this question?
“THE COURT: Well, first, I didn’t talk to them.
“MR. MARTELL: All right.
“THE COURT: No, I sent back the note with what we put on it.
“MR. MARTELL: Okay. Fine.
“THE COURT: If you recall, which it’s in writing, so when we collect the notes
“MR. MARTELL: No, I know what the Court wrote.
“THE COURT: That just said. We need more clarification what you’re looking for, something like that.
“MR. MARTELL: And they never gave us any clarification?
“THE COURT: No. No, they just came back with a verdict.”
Appellant now contends:
“In appellant’s case, there was no evidence of an adoptive admission, and the court denied appellant’s due process right to a fair trial by giving this irrelevant instruction over appellant’s objection. Unwarranted, superfluous jury instructions may hamper defense strategy, distract the jury and diminish the impact of more critical instructions. (People v. Watts (1976) 59 Cal.App.3d 80, 87.) Such an instruction, however, is generally held harmless unless it ‘creates a substantial risk of misleading the jury to the defendant’s prejudice.’ (People v. Von Villas (1992) 11 Cal.App.4th 175, 238.) In appellant’s case, it was a violation of due process to give this irrelevant instruction, because it tended to suggest that appellant had nefariously failed to respond to an accusation, when, in fact, all appellant said was he did not recall, because he was nervous and froze up around police. Thus, his response that he did not recall was not an adoptive admission and it is reasonably probable that its introduction and the prosecutor’s use of it affected the verdict, because of [Niki’s] questionable credibility and the closeness of the case, given the jury’s 10 hours of deliberations.”
Evidence Code section 1221 states:
“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
The adoptive admissions exception to the hearsay rule generally permits hearsay to be admitted against a party when that party has adopted it or agreed that a statement originally made by someone else, is true. The statute contemplates either explicit acceptance of another’s statement or acquiescence in its truth by silence, equivocal, or evasive conduct. Admissibility of an adoptive admission is appropriate when a person accused of having committed a crime, under circumstances which fairly afford an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he or she was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. (People v. Castille (2005) 129 Cal.App.4th 863, 876.) In such circumstances, if the accused fails to speak or makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilty. For the adoptive admission exception to apply, a direct accusation in so many words is not essential. (People v. Roldan (2005) 35 Cal.4th 646, 710.)
Under California law there are only two requirements for the introduction of adoptive admissions: (1) the party must have knowledge of the content of another’s hearsay statement and (2) having such knowledge, the party must have used words or conduct indicating his or her adoption or belief in the truth of such hearsay statement. The analytical basis for this exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by the declarant. (People v. Castille, supra, 129 Cal.App.4th at p. 876.)
In the instant case, the natural reaction of an innocent person, upon being accused by a law enforcement officer of physically attacking his girlfriend, would have been an immediate and vehement denial. Instead, appellant responded to Deputy Gragg’s query by saying he “did not recall doing anything to Niki.” The trial court could have reasonably construed this response as equivocal or evasive conduct on appellant’s part. During the defense case, appellant offered two explanations for his response. He initially testified, “[T]hese accusations were like some heinous thing that went on, and that didn’t happen ....” When asked why he did not issue an immediate denial, appellant testified, “Because I freeze up, I’m nervous. I don’t know.” However, the court could have reasonably construed appellant’s explanation as evasive under all the facts and circumstances. This is particularly true given the nature, extent, and visibility of Niki’s injuries. According to layperson Joy Kinyon, these injuries included “two just huge black eyes,” an apparent fractured eye socket, chipped upper and lower lips, a bruise to the side of the temple, a big bruise on her chest, “boot print bruises” on the biceps of her arms, and “skidded up” vertebrae, knees, elbows, and feet. Appellant even conceded at trial that Niki’s injuries were fairly evident and that he and his friends discussed her injuries.
Appellant’s response to Deputy Gragg’s question paled against the enormity of Niki’s injuries and the trial court was more than justified in finding an evasiveness or equivocation to support the giving of CALCRIM No. 357.
III.
EXCLUSION OF TESTIMONY
Appellant contends the trial court violated his right to a fair trial by denying his request to reopen and precluding Niki’s stepmother from testifying about Niki’s character and past.
At 10:40 a.m. on September 14, 2006, the court began instructing the jury. As the court read CALCRIM No. 200 (duties of judge and jury) defense counsel noted that a missing witness had finally arrived. The court stopped reading the instructions, conducted a bench conference, and defense counsel indicated the witness would provide character evidence against Niki. The court initially declined to reopen the case and then conducted a conference outside the presence of the jury. The following exchange occurred at the conference:
“THE COURT: Mr. Martell, maybe we could have an offer of proof first, why should I reopen when I’ve already started jury instruction? We’ve had surrebuttal – we’ve had rebuttal, no surrebuttal. Sorry, just rebuttal.
“MR. MARTELL: Well, Your Honor, by way of offer of proof, this is an investigative report that was prepared after having talked to Miss [Lynn B.] by one J. J. Bell, a copy of which I provided to counsel previous.
“The report ... it’s a short one ... [Lynn B.] will testify that she’s been Niki’s stepmother for approximately 18 years. Niki has a history of having relationships which have involved violence and big drama, which she referred to as big drama.
“Niki has a history of alcohol abuse, involved several relationships, men have gone to jail because of physical violence assaults involving Niki. Niki had a relationship ... three years ago, in early 2004. There was some kind of conviction of domestic violence on the other person. Approximately 15 years ago, a man supposedly kidnapped and assaulted her and assaulted her in Tuolumne County and supposedly picked up in Humboldt County on another case, and Niki was to testify against him. Niki was married to a man who was married to Fox, who committed suicide three years ago.
“Some of this I wouldn’t be offering, but I’m telling you what the report … [¶]…[¶]
“Lynn feels Niki is a liar and not to be believed. She is definitely capable of fabricating a story against Kolpack. Lynn heard that Niki had been in fights, no specifics, but was told Niki had been beat up in fights, and said because of Niki’s mouth, especially when she’s drinking, she could get jumped for mouthing off at someone. She describes Niki as theatrical, puts on a show for lots of yelling and screaming. Lynn says there is a pattern and tried to warn Kolpack that … if he had a relationship with her, he would end up back in jail. Due to her past history, she felt Kolpack would be in the position he is now. She does not believe Niki.
“So, that would be my offer, generally speaking. Some of that, I don’t think is relevant. That would be my offer of proof, of the essence of which she would have to say. I feel it’s very important, because this all hinges on what Niki says.
“I mean, there’s no question that this woman was brutalized, but how it happened and when it happened, in addition to her prior inconsistent statements, is the crux of the case. And this is a woman that has known her all these years and known her history and can certainly speak for her reputation.
“THE COURT: And is, apparently, getting a divorce from her father, who Niki has on and off relations with.
“MR. MARTELL: Well, my understanding, and I didn’t get this from [Lynn], from my client, was that they have actually been divorced or separated for a couple of years, but there is still some problems that they have, but
“THE COURT: You know what? I don’t think so. I’m not going to let this – under 352, I think it’s far more time-consuming than it is probative. Most of that you would never get in, anyway, because it’s blatant hearsay. And some of it is just her own opinion about her stepdaughter, which is really not very relevant to this case. This stuff about suicides by former husbands or whatever, I mean, none of that I see any relevance in.
“MR. MARTELL: Some of it, I agree, Your Honor.
“THE COURT: You’ve done a great job in this trial of trashing Niki ... so far, and the jury got all that. I’m sure they were listening with some eagerness to see who else would trash her. So no, I don’t think so. You’re too late. You’re also not relevant enough. If this were something that was so important that I would deny your client a fair trial by not allowing it in, I would surely open it up again, but I’m not doing that in this case. That’s not what’s happening.
“MR. MARTELL: All right.
“THE COURT: I don’t feel this is so helpful to your client that
“MR. MARTELL: Well, I think it is.
“THE COURT: Minimal.
“MR. MARTELL: But, of course, at this point, I’m probably biased.
“MR. HOVATTER: I also think it’s important to note for the record that it was 9:30, I believe, when Mr. Martell ran out of witnesses and was waiting for the Modesto people.
“THE COURT: Yeah. It’s quarter to 11:00.
“MR. HOVATTER: The Court gave them until 10:30.
“THE COURT: Yeah.
“MR. HOVATTER: And I think was very liberal and fair-minded with letting Mr. Martell have these people come in and then testify. I was given my chance to do rebuttal. That rebuttal had concluded. Mr. Martell took another shot to see if this woman showed up, and she hadn’t, then the Court then began instructing and was well into the first instruction, perhaps even the second, when this woman appeared. So, I think, you know, on top of that, the record should show that this woman wasn’t just late by a minute or two, it was actually a significant period of time. So I – you know, just so the record reflects the time frame, like the Court said, it’s quarter to 11:00, so
“THE COURT: I’m not going to let this come in.
“MR. MARTELL: All right.
“THE COURT: Just too prejudicial for the probative value.”
Appellant now contends:
“The erroneous exclusion of Lynn [B.’s] testimony about her stepdaughter’s lack of credibility resulted in the denial of appellant’s right to establish a defense and to a fair trial, as guaranteed her by both the state and federal constitutions, which compels reversal if it cannot be found harmless beyond a reasonable doubt. [Citations.] As in People v. Memro (1985) 38 Cal.3d 658, 684-685, the error was prejudicial, because it deprived appellant of the possibility of presenting relevant evidence about a critical issue: whether Ms. [Niki B.] was a liar and made up complaints that her intimate partners [were] hurting her.
“Even if this court determines the error did not result in the denial of appellant’s constitutional rights, however, reversal is nevertheless required because it is reasonably probable that appellant would have obtained a more favorable outcome in the absence of evidentiary error. (People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable probability is less than a preponderance. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) The exclusion of the evidence went to the critical issue of ... Niki [B.’s] lack of credibility and her inconsistent statements. This was a close case, as explained above.”
Evidence Code section 354 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:
“(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;
“(b) The rulings of the court made compliance with subdivision (a) futile; or
“(c) The evidence was sought by questions asked during cross-examination or recross-examination.”
The rule of Evidence Code section 354 is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580-581.) Under California law, it is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise. An offer of proof should give the trial court an opportunity to change or clarify its ruling and, in the event of appeal, would provide the reviewing court with the means of determining error and assessing prejudice. To accomplish these purposes, an offer of proof must be specific and must set forth the actual evidence to be produced rather than merely the facts or issues to be addressed and argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.)
No judgment shall be reversed on account of the erroneous exclusion of evidence unless it appears, upon examining the entire cause including the evidence, a miscarriage of justice has occurred. A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751.) Expressed another way, where a trial court’s ruling does not constitute a refusal to allow the defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process. In that situation, the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his or her favor, this does not mean the court must allow an unlimited inquiry into collateral matters. The proffered evidence must have more than slight relevancy. An appellate court reviews for abuse of discretion a trial court’s ruling on a motion to reopen a criminal case to permit the introduction of additional evidence. In reviewing the trial court’s determination, the appellate court will consider such factors as the stage of the proceedings when the motion was made, the diligence shown by the moving party in discovering new evidence, the prospect the jury would accord such evidence undue emphasis, and the significance of the evidence. (People v. Marshall (1996) 13 Cal.4th 799, 836.)
In the instant case, the trial court properly noted that a great deal of the proffered evidence was inadmissible hearsay. In any event, appellant himself had testified about Niki’s extensive consumption of alcohol and use of “methamphetamines.” Appellant specifically testified that he and Niki had two shots of tequila and two beers on the afternoon of April 18, 2006. They next split a 12-pack of beer and took a pint of Kessler’s to the Kinyon home. According to appellant, Joy Kinyon and Niki shared that bottle. When appellant sought to retire that night, Niki became adamant about going somewhere to party. Appellant said she was “obviously drunk, really drunk” and broke a five-gallon bottle of wine on a closet floor before leaving the duplex. When Niki returned to the duplex, she “looked like she was lumped up,” according to appellant. Niki said the beating occurred after she had “gone over the next road over.” Just prior to his arrest, appellant and Niki had an argument and appellant told her, “No wonder you lost your kids.” After appellant’s arrest, Niki told him, “You crossed the line when you said that about my kids and you’re going to pay for that.”
Appellant’s good friend, Kay Reposa, testified Niki visited her with appellant on five or six occasions. Reposa said Niki had visible injuries on the last two of those visits. Niki attributed her April 18 injuries to being “jumped in the ghetto” of Jamestown by two girls. Reposa said Niki yelled loudly for several minutes when she and appellant visited Reposa’s home on the evening of May 3.
Appellant’s friend, Desiree Tidball, testified that she saw Niki after April 18, 2006, and the bruises to her face and arms were fading. When Tidball asked Niki about the cause of the injuries, Niki attributed them to “a girl from the ghetto.” Doris Mayo testified that appellant had been incarcerated with her husband and had visited her in Modesto “[q]uite a few times.” Niki accompanied appellant on one of those visits and Mayo said she did not have any visible bruises. Appellant’s friend, Laurie Rice, testified that appellant and Niki visited her on one occasion for a couple of hours. Niki appeared to be in good health and did not have any marks or bruises on her face. Rice said she had never seen appellant lose his temper, get in a fight, or mistreat anyone.
From the foregoing evidence admitted in the defense case, appellant could show that Niki had a tendency to lie, engaged in drug and alcohol abuse, offered inconsistent statements about the origin of her injuries, and may have retaliated against appellant because of his remark about her children. Appellant’s counsel offered the testimony of Lynn B. to show that Niki (a) had a reputation for lying; (b) engaged in fights; (c) was known for “mouthing off” when she drank; and (d) was known for yelling, screaming, and being theatrical. Appellant also sought to show that Lynn warned him that he would end up back in jail if he had a relationship with Niki. Thus, the testimony of Lynn B. was, at best, cumulative to and somewhat corroborative of the previously-admitted testimony of appellant, Reposa, Tidball, Mayo, and Rice.
Evidence that does not affirmatively prove an issue, but is to be used only to impeach or contradict an opposing witness, tends to impress weakly. (People v. Bishop (1993) 14 Cal.App.4th 203, 213.) Evidence is cumulative if it is repetitive of evidence already before the jury. (People v. Evers (1992) 10 Cal.App.4th 588, 599, fn. 4.) A trial court has broad discretion to exclude evidence including impeachment evidence it deems cumulative. (Evid. Code, § 352; People v. Pride (1992) 3 Cal.4th 195, 235; People v. Price (1991) 1 Cal.4th 324, 412.)
Here, the trial court properly exercised its broad discretion to exclude the proffered evidence of Lynn B. where her testimony was largely repetitive of that already presented in the defense case and the witness failed to appear at trial in a timely manner despite the court’s grant of additional time to secure her presence.
At the conclusion of Desiree Tidball’s testimony, defense counsel advised the court: “Your Honor, yesterday, as I explained yesterday, I had some witnesses coming from Modesto and told them to be up here at about 10:00.” The court responded by granting the jury a “longer than usual morning recess” and utilizing the time to review jury instructions with counsel. The jurors left the courtroom at 9:37 a.m. and the court and counsel reviewed instructions until 9:48 a.m. At 9:48 a.m., the court called a recess and then resumed proceedings at 10:22 a.m. At 10:26 a.m., defense counsel examined Doris Mayo. At the conclusion of Mayo’s testimony, defense counsel indicated he would call Laurie Rice to testify. The prosecutor expressed no objection to Rice’s testimony and defense counsel noted, “It will take just a few minutes, and I don’t think [Lynn B.] is going to show.” Defense counsel examined Rice from 10:30 a.m. to 10:32 a.m. After cross-examination of Rice, the prosecutor called Niki to testify on rebuttal. Her testimony began at 10:35 a.m. and at the conclusion of Niki’s testimony, defense counsel took one last look for Lynn B. outside the courtroom. He did not find her, advised the court “[n]o further witnesses,” and the court commenced the instructions at 10:40 a.m. Under California law, it is the duty of the judge to control all proceedings with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. (People v. Rickson (1952) 112 Cal.App.2d 475, 480.) Here, the trial court acted well within its discretion by first ordering the procedure of the trial to allow the defense additional time to secure the presence of its witnesses. After essentially granting the defense an additional hour of time, the court then proceeded expeditiously to instruct the jury in the law of the case. The court’s rulings did not constitute an abuse of discretion, particularly since on the previous day (October 10, 2006) defense counsel advised his prospective witnesses to be in Tuolumne County Superior Court by 10:00 a.m. The court was well aware of this advisement, nevertheless granted the defense additional time on October 11, and ultimately charged the jury as to the pertinent points of law. (Pen. Code, § 1093, subd. (f).) The trial court did not abuse its discretion and reversal is not required.
IV.
THE UPPER TERM SENTENCE
Appellant contends his upper term sentence violates the Sixth and Fourteenth Amendments under Cunningham v. California (2007) 549 U.S. _____ [127 S.Ct. 856] (Cunningham) and therefore the sentence should be reduced to the middle term of imprisonment.
On October 11, 2006, the trial court sentenced appellant in the following manner:
“First, as [to] the subject of whether there’s any probation eligibility, I do not find any eligibility for probation. I couldn’t possibly find any interests of justice that would be served by granting probation, and I don’t think the client would comply with probation. I don’t think he’s able to. So, probation is not something that I am considering.
“The only question I have before me, really, is whether I should aggravate this or give him the base term. And as far as aggravation, there was great bodily harm to this victim. She really was beat up severely.
“He has a history of violent conduct. He has an appalling record that took at least the equivalent of two pages for the probation office just to list them. He’s served five – four prior prison terms. He was on parole when this crime was committed, and his performance previously, on probation and parole, has been abysmal. So, I cannot find that the mid term would be appropriate. It must be an aggravated term.
“There is nothing else that would send this message to Mr. Kolpack that this kind of behavior is intolerable. And I did not find that he did accept responsibility. I don’t think he ever has accepted responsibility. It is always in Mr. Kolpack’s version, someone else’s fault, it’s somebody else who is manipulative, it’s somebody else who started it. It’s … always somebody else. You know, she started drugs, so he did drugs. It’s always somebody else’s fault. Mr. Kolpack has never accepted any real responsibility for much of anything that I can see.
“It is my intention to give the aggravated term. This being a two, four and five, I intend to impose the upper term of five years for the crime of 273.5, but with the prior 273.5. There are also two prior prison terms, each of which gets him one additional year, so I am going to follow the recommendation and give this defendant the ... 7 years recommended by probation....”
Appellant now contends:
“Aside from his priors, no aggravating factors were alleged in the information, there was no jury trial on aggravating factors, and a preponderance of evidence standard of proof was required by rule 4.420, California Rules of Court. [¶] ... [¶]
“... Cunningham held that the Sixth and Fourteenth Amendment requirements of a jury trial and proof beyond a reasonable doubt for upper term aggravating factors (other than prior convictions) apply directly to California’s sentencing laws, in exactly the same manner that they applied to the Washington sentencing scheme which the U.S. Supreme Court invalidated in Blakely, and to the mandatory federal Guidelines invalidated in Booker. (Cunningham, supra, 549 U.S. ___ ....) Appellant was not accorded these federal constitutional guarantees.
“Here, the court imposed the upper term for reasons in addition to appellant’s priors including the unadjudicated facts that the victim suffered great bodily harm, and appellant had a history of violent conduct and an ‘abysmal’ performance on probation and parole.
“None of these aggravating factors was charged in the accusatory pleading, or submitted to a jury, or found true by a jury beyond a reasonable doubt. Appellant’s upper-term sentence therefore violates the Sixth and Fourteenth Amendment principles of Apprendi and Blakely, as set forth in Cunningham, and cannot stand.”
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] ... [¶]
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
“... Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ [¶] ... [¶]
“... The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, _____ U.S. at p. _____ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
Here, the trial court expressly found: “He has a history of violent conduct. He has an appalling record that took at least the equivalent of two pages for the probation office just to list them. He’s served five -- four prior prison terms. He was on parole when this crime was committed, and his performance previously, on probation and parole, has been abysmal. So, I cannot find that the mid term would be appropriate. It must be an aggravated term.” The trial court’s conclusions as to appellant’s adult convictions were predicated on findings made upon proof beyond a reasonable doubt. To paraphrase Apprendi the facts increasing the penalty for appellant’s crime beyond a prescribed statutory maximum had been submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.)
The trial court imposed an upper term based on judicially-found facts deemed constitutionally permissible under Apprendi, Blakely, Cunningham, and Black II. Therefore, resentencing is not required on count II.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., HILL, J.
District Attorney Investigator Alan D’Hondt served Crow with a subpoena on the evening before trial. At that time, Crow said he saw appellant place Niki in a headlock. Crow also told D’Hondt that he wanted to testify but feared retaliation against himself and his family. At trial, Crow denied being afraid of retaliation. However, Crow did acknowledge he was concerned about being a witness. Crow said he had never received threats from appellant or anyone identified as a friend of appellant. Just before Crow testified, he told investigator D’Hondt he wanted to testify but feared that appellant or his “drug friends” would engage in retaliation against him or his family.