Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA018317 Dwight W. Moore, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury found defendant, Nicholas Marinelli, guilty of willful, deliberate, and premeditated attempted murder. (Pen. Code, §§ 664, subd. (a), 187, subd. (a).) A jury found true the allegations that (1) the attempted murder occurred during a domestic violence incident and that defendant personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (e)); and (2) defendant used a deadly or dangerous weapon during the commission of the attempted murder (Pen. Code, § 12022, subd. (b)(1)). The trial court found true the allegation that defendant suffered a prior strike conviction. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The trial court sentenced defendant to state prison for life, with the possibility of parole, for the attempted murder, plus a total of five years for the two enhancements.
Defendant makes four contentions. First, defendant asserts the trial court abused its discretion by admitting evidence of prior incidents of domestic violence. (Evid. Code, §§ 1101, subd. (b), 1109, subd. (a)(1).) Second, defendant argues that section 1109, which allows evidence of prior domestic violence incidents to be admitted, violated defendant’s rights to due process and equal protection. Third, defendant contends the trial court should not have instructed the jury that it could consider the prior acts of domestic violence in determining whether the attempted murder was deliberate and premeditated. (CALCRIM No. 852.) Fourth, defendant argues the trial court erred by not instructing the jury that it could consider evidence that defendant was provoked when determining whether the attempted murder was deliberate and premeditated. (CALCRIM No. 522.) We affirm the judgment.
All further references to code sections will be to the Evidence Code unless otherwise noted.
FACTUAL AND PROCEDURAL HISTORY
A. Facts Related to the Charged Offenses
On October 5, 2002, defendant and the victim were married and living in Fontana. Defendant and the victim were at home discussing financial issues and their living arrangements. During the conversation, defendant became angry and punched the victim’s chest. The victim asked defendant to leave, and gave him $10 to buy gasoline. Defendant left the house, and the victim stayed in the house.
Defendant returned home approximately seven minutes later. The victim noticed defendant was hiding an object behind him. The victim said to defendant, “‘What are you doing here? You have to leave.’” Defendant walked to the television and raised the volume. Defendant said to the victim, “‘I love you,’” and then he struck the victim approximately 15 times on her head and body with a “heavy, long, black Mag-Lite” flashlight, which was the object he had been hiding. The victim began bleeding and fell to the ground. Defendant then grabbed a knife from his pocket and began stabbing the victim. Defendant stabbed the victim 35 times, all over her body. As the victim lay on the floor, defendant grabbed the victim by her hair, said, “‘I love you,’” and slit the victim’s throat. The victim acted as though she were dead. Defendant covered her with a blanket, took the dog, and left the house.
Defendant went to his parents’ house in Claremont. Defendant arrived at the house “covered with blood.” Defendant told his mother, “‘I think I killed [the victim].’” Defendant’s parents told defendant to take a shower. Defendant’s father called 911, placed defendant’s clothes in a bag, and took defendant’s knife, all of which he gave to the police.
As a result of the incident, the victim lost all use of her right hand and must walk with a cane.
B. Prior Uncharged Domestic Violence Against the Victim
The victim testified that in the early part of her relationship with defendant, defendant grabbed the victim by her hair, dragged her into a closet and hit her, leaving bruises. Defendant also threatened to kill the victim if she left him.
C. Prior Uncharged Domestic Violence Against Melissa
Melissa testified that she and defendant had a dating relationship, which began in 1995 and lasted for approximately two years.
Defendant threatened Melissa after she tried to end their relationship around December 1996. Defendant told Melissa that he would kill her, kill her family, kill her family’s dog, and hide evidence of killing Melissa by dissolving her body with a pool chemical. When defendant and Melissa reconciled, around December 1996, defendant disclosed a note to Melissa in which he wrote about stopping plans to kill himself and Melissa, now that the two had renewed their relationship.
In January 1997, defendant became angry during an argument. Defendant grabbed Melissa’s arm and bit her, which caused a bruise.
On March 5, 1997, defendant and Melissa argued. Defendant became angry, slammed Melissa to the ground, and held a carpet rake to her throat. Defendant threatened to kill Melissa and then went to the kitchen and retrieved a knife. Defendant held the knife to Melissa’s throat. Melissa screamed and cried, and defendant relented.
On March 7, 1997, defendant went to Melissa’s house and shouted that Melissa was “cheating on him.” Defendant said he would kill her. Defendant grabbed Melissa, moved her down the hall, threw her on a bed, and “jumped on top of [her].” Melissa’s mother then escorted defendant from the house. Defendant did not leave the property, and the police arrested him. Defendant tried contacting Melissa while he was in custody awaiting trial, and Melissa obtained a restraining order.
DISCUSSION
A. Prior Uncharged Acts
1. Facts
During pretrial motions, the prosecution moved for permission to introduce evidence of defendant’s prior uncharged acts of domestic violence involving the victim and Melissa. The prosecution argued the evidence was relevant to prove propensity (§ 1109), as well as intent (§ 1101, subd. (b)). Defendant’s trial attorney argued that evidence of the uncharged offenses should not be admitted because the incidents involving Melissa were too remote in time and the prior acts were not similar to the charged offense. The defense argued the incidents were different because (1) defendant and the victim were married, but defendant was not married to Melissa; (2) the incident with Melissa involved threats, whereas the charged incident involved violence; and (3) the issue in defendant and the victim’s relationship was finances or living arrangements, whereas the issue in defendant and Melissa’s relationship was Melissa’s desire to leave defendant.
The trial court found that the type of relationship, i.e. married rather than dating, “is a distinction without a difference.” The court determined that the different issues in the two relationships were still similar enough to have “some relevance.” The court did not “see [the] remoteness being a problem at all.” The court found that the prior offense evidence would not consume an undue amount of time, and that it had “strong probative value on the issue of intent and motive under [section] 1101[, subdivision] (b) and on the issue of propensity” pursuant to section 1109. The court noted that such evidence is “inherently prejudic[ial],” but after weighing the probative value and prejudicial effect, found the evidence to be admissible.
The court then considered the evidence regarding prior uncharged incidents involving the victim in the current case. Defendant’s trial attorney argued that the evidence was more prejudicial than probative because (1) the incidents were unreported; (2) the victim did not seek medical attention; and (3) there were no witnesses to the incidents.
The court found the incidents to be probative because (1) it was the same victim as the victim in the current case; and (2) “it allow[ed] the jury to put the charged crime into a context of the entire relationship.” The court noted that this type of evidence was “inherently prejudicial.” The court found the evidence would not consume an undue amount of time. The court weighed the value of the evidence, and concluded that the probative value of the evidence outweighed the prejudicial effect. The court permitted the prosecutor to introduce the evidence.
2. Discussion
Defendant contends the trial court erred in determining that the probative value outweighed the prejudicial effect of the uncharged misconduct evidence (§ 352). We disagree.
Admissibility of evidence is subject to the court’s discretion to exclude evidence that is more prejudicial than probative. (§ 352; People v. Brown (2000) 77 Cal.App.4th 1324, 1337 (Brown) [discussing sections 352 and 1109].) In exercising its discretion to admit or exclude evidence, the court must balance the probative value of the evidence “against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of [the] issues; (3) 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; see also People v. Harris (1998) 60 Cal.App.4th 727, 737-740.)
We will not disturb a trial court’s exercise of discretion under section 352 “‘“except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citations.]’ [Citation.]” (Brown, supra, 77 Cal.App.4th at p. 1337.)
a. Melissa
We begin by determining whether the trial court erred by allowing the prosecution to present evidence of prior offenses involving Melissa.
Defendant’s past threats and acts of violence against Melissa were probative of defendant’s intent, motive, and propensity, because the prior acts helped to establish that violence was defendant’s chosen response in domestic disagreements, and therefore aided in showing that defendant was guilty of attempted murder rather than attempted voluntary manslaughter.
Next we consider the factors that weigh against admission of the evidence. First, the prior offenses involving Melissa were not more inflammatory than the charged offenses because (1) the prior offenses involved threats and a lesser degree of violence than the charged incident; therefore, Melissa did not suffer a greater physical injury than the victim, (2) both Melissa and the victim were in romantic relationships with defendant at the time of the offenses, therefore Melissa was not a more sympathetic victim, and (3) the prosecution planned to present multiple witnesses to prove the charged offense; therefore, the evidence in the charged offense was strong, and the prior offenses did not present greater or more reliable evidence than the charged offense. Accordingly, the prior offense evidence was not more inflammatory than the charged incident.
In making this determination we rely on the facts presented in the prosecution’s “In Limine Motion to Introduce Additional Acts of Domestic Violence Pursuant to Evidence Code Section 1109.” Defendant’s trial counsel stated that he had no quarrel with the facts presented in the motion.
Second, it was unlikely that the jury would confuse the issues because the charged offense involved a different victim, and the victim of the charged offense was scheduled to testify at defendant’s trial.
Third, in regard to the remoteness in time of the uncharged offenses, the events involving Melissa occurred between December 1996 and March 1997. The charged incident occurred on October 5, 2002. The offenses were not remote in time because they occurred approximately six years prior to the charged offense. (See People v. Regalado (2000) 78 Cal.App.4th 1056, 1059 [five years not remote in time]; § 1109, subd. (e) [10-year time limit].)
Fourth, the amount of time introducing and refuting the prior offense evidence involving Melissa was minimal. The evidence could be introduced and refuted by examining Melissa and the officers who wrote the two police reports regarding defendant’s arrest.
In sum, the evidence had strong probative value, and the factors weighing against admission were relatively weak. Accordingly, we conclude the trial court did not abuse its discretion in determining that the probative value of the prior offense evidence regarding Melissa outweighed the prejudicial effect.
b. The Victim
Did the trial court err in weighing the probative value and prejudicial effect of prior uncharged acts of violence against the victim?
Defendant’s past threats and acts of violence against the victim were probative of defendant’s intent, motive, and propensity, because the prior acts helped to establish that defendant intended to kill the victim, and therefore aided in showing that defendant was guilty of attempted murder rather than attempted voluntary manslaughter.
Next, we consider the factors that weigh against admission of the evidence. First, the prior offense evidence was not more inflammatory than the charged acts, because (1) it was the same victim, (2) the prior acts were not as violent as the charged offense, and therefore the victim suffered less injuries, and (3) the prior acts were not corroborated, and therefore the evidence of those acts was not stronger than the charged offense.
Second, it was unlikely the jury would confuse the prior incidents with the charged acts because the prior offenses were not reported, and involved verbal threats and attacks that resulted in bruises, whereas the charged offense involved stabbing.
Third, in regard to the remoteness of time, the prior offenses occurred within approximately one year of the charged acts. Accordingly, the prior offenses were not remote in time.
Fourth, the amount of time needed for introducing and refuting the prior offense evidence involving the victim was minimal. The evidence could be presented via the testimony of the victim, who was already included on the prosecution’s witness list.
In sum, the prior offense evidence had strong probative value, and the factors weighing against admission of the evidence were relatively weak. Accordingly, we conclude the trial court did not abuse its discretion by permitting the prosecution to present evidence of defendant’s prior uncharged acts of violence against the victim.
c. Defendant’s Arguments
We now address defendant’s arguments. First, defendant contends the prior offense evidence, involving the victim and Melissa, was inflammatory because both women testified that, in their opinions, defendant was a violent, obsessive, and jealous man. Defendant relies on the women’s trial testimony in raising this argument, rather than evidence presented when the court ruled on the prosecution’s motion. When the women testified that defendant was a jealous person, defendant objected on the basis of relevance, but did not raise the issue of the testimony being more prejudicial than probative. Since defendant did not object to the opinion testimony being prejudicial, we deem this portion of his argument to be waived. (See People v. Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.”].)
Second, defendant asserts that there was a high probability that the prior offense evidence would confuse the jury, because it was admitted for multiple purposes, i.e., intent, motive, and criminal propensity. Contrary to defendant’s position, the trial court could properly determine that potential jurors would be capable of following the court’s instructions regarding the application of the prior offense evidence, and therefore the risk of confusion was minimal. (See People v. Ibarra (2007) 156 Cal.App.4th 1174, 1181 [presumption that jurors are able to correlate, follow, and understand the court’s instructions].) Accordingly, we find defendant’s argument unconvincing.
B. Due Process and Equal Protection
Defendant contends section 1109 violates principles of due process and equal protection. We disagree.
1. Due Process
Defendant argues that admission of uncharged acts to show a propensity to commit a crime amounts to a denial of due process.
This court rejected the same due process argument in People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 (Hoover). Several other appellate courts have also rejected this due process challenge to section 1109. (People v. Cabrera (2007) 152 Cal.App.4th 695, 704 (Cabrera); Brown, supra,77 Cal.App.4th at p. 1334; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings).) The reasoning of our opinion in Hoover, and the other appellate courts’ opinions, is based on our Supreme Court’s decision in People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta). (Hoover, at p. 1029; Cabrera,at p. 704; Brown, at p. 1334; Jennings, at p. 1310.) In Falsetta,our Supreme Court concluded that a trial court’s discretion to exclude evidence pursuant to section 352 saved section 1108 from violating a defendant’s due process rights. (Falsetta,at p. 917.) Section 1108 permits evidence of prior sex offenses to be admitted, for propensity purposes, when a defendant is charged with a sexual offense. Section 1108 mirrors section 1109. (Brown, at p. 1332.) We reaffirm our holding in Hoover, and conclude that section 352 adequately protects a defendant’s due process rights when the prosecution seeks to introduce evidence pursuant to section 1109. (Hoover, at p. 1029.)
2. Equal Protection
Defendant asserts section 1109 violates principles of equal protection because it treats people accused of domestic violence differently than other criminal defendants, who may not have propensity evidence introduced at their trials.
In Jennings, the reviewing court rejected this same argument. (Jennings, supra, 81 Cal.App.4th 1301.) First, the court rejected the premise that domestic violence defendants are similarly situated to defendants charged with other criminal offenses, and found that on its face, section 1109 treats all domestic violence defendants equally. (Jennings, at p. 1311.) Second, the court concluded that the rational basis test, rather than strict scrutiny, is applicable to an examination of section 1109, because section 1109 “does not infringe [on] a defendant’s right to due process, a fair trial, . . . conviction by proof beyond a reasonable doubt,” or liberty. (Jennings, at p. 1312.) Third, the court applied the rational basis test, and concluded that the Legislature could rationally distinguish between domestic violence defendants and other criminal defendants, because domestic violence cases have an unusual emphasis on credibility of the defendant and the victim. (Id. at p. 1313.) We find this reasoning persuasive, and adopt it as our own. Accordingly, we conclude section 1109 does not violate principles of equal protection.
C. Jury Instruction
Defendant contends the trial court violated his right to due process when it instructed the jury that it “may, but [was] not required to, conclude from [the uncharged offense] evidence that . . . the defendant was likely to commit and did commit [a]ttempted [m]urder with the special allegation that it was committed [w]illfully, [d]eliberately and with [p]remeditation.” (CALCRIM No. 852.) Defendant contends the instruction allowed the jury to (1) make an improper inference, and (2) apply an incorrect standard of proof. We disagree.
“An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.)
1. Inference
Where the charged offense is attempted premeditated murder, defendant argues, CALCRIM No. 852 improperly allows a jury to use propensity evidence (§ 1109) to infer willfulness, deliberation, and premeditation. CALCRIM No. 852 is the jury instruction that corresponds with section 1109. (People v. Johnson (2008) 164 Cal.App.4th 731, 739.) Defendant argues that an inference of premeditation does not flow from evidence of prior acts of domestic violence, and therefore the inference of premeditation is arbitrary and unreasonable.
A similar argument was rejected in People v. Pescador (2004) 119 Cal.App.4th 252, wherein the court concluded that the inference of premeditation “more likely than not flowed from the proved incidents of prior domestic violence” because expert testimony showed that a domestic violence batterer can premeditate the murder of a spouse. (Id. at p. 260.)
In the instant case, defendant’s prior acts of domestic violence against the victim and Melissa involved multiple death threats, as well as proof that defendant planned to destroy evidence of killing Melissa by dissolving her body with a pool chemical. A jury could infer from these prior acts that the attempted murder was premeditated and deliberate, because they show defendant contemplated murder. Accordingly, the inference of premeditation flowed from the prior domestic violence evidence.
Moreover, to the extent defendant is arguing the trial court should have parsed the premeditation allegation from the attempted murder charge when instructing the jury, because the allegation is separate from the attempted murder charge, we disagree with such an argument. The “willful, deliberate, and premeditated” aspect of the attempted murder charge is tantamount to an element of the offense. (People v. Izaguirre (2007) 42 Cal.4th 126, 133; People v. Seel (2004) 34 Cal.4th 535, 549 (Seel).) Section 1109 does not contain a provision for parsing out elements, rather, it discusses offenses as a whole, e.g., “the defendant is accused of an offense involving domestic violence.” Accordingly, it was not arbitrary or unreasonable to instruct the jury that it should consider the propensity evidence for the complete charge, which included the allegations of willfulness, deliberation, and premeditation.
Further, if the court had erred, the error would be rendered harmless beyond a reasonable doubt, because the trial court also instructed the jury with CALCRIM No. 375, which informed the jury: “If you decide that the defendant committed the uncharged acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: The defendant acted with the intent to kill and acted willfully, deliberately and with premeditation.” (See People v. Molina (2000) 82 Cal.App.4th 1329, 1335 [applying the harmless beyond a reasonable doubt standard].) Accordingly, regardless of CALCRIM No. 852, the jury would have been instructed to consider the uncharged offense evidence for the purpose of determining whether defendant acted willfully, deliberately and with premeditation.
2. Standard of Proof
Defendant contends CALCRIM No. 852 permitted the jury to apply the preponderance of the evidence standard of proof, rather than the beyond a reasonable doubt standard of proof, to the finding that he acted willfully, deliberately and with premeditation.
A reviewing court must determine the correctness of jury instructions based upon its examination of the entire charge from the trial court, and not based upon consideration of isolated parts of the instructions. (People v. Reilford (2003) 29 Cal.4th 1007, 1013 (Reilford).) In addition, a reviewing court must presume that the jury was capable of following the trial court’s instructions. (People v. Bradford (1997) 15 Cal.4th 1229, 1337.)
An argument similar to defendant’s was raised in Reilford, supra,29 Cal.4th 1007, concerning evidence of prior uncharged sex offenses (§ 1108). In that case, the defendant argued that once the jury found the uncharged sex offense true by a preponderance of the evidence, the jurors would rely on that prior offense alone to convict him of the charged crime. (Reilford, at p. 1013.) The court concluded that the defendant’s argument failed because the instruction did not inform the jury that it may rest a conviction solely on evidence of prior offenses. (Ibid.) The court noted that the instruction included the sentence, “‘if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.’” (Ibid.) The court held that in viewing the instructions as a whole, the jury could not have interpreted them as authorizing a guilty verdict based solely on proof of uncharged conduct. (Ibid.)
CALCRIM No. 852 contains a similar sentence regarding proof beyond a reasonable doubt. Specifically, in this case, the jury instruction provided, “If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of attempted [m]urder with the special allegation that it was committed willfully, deliberately and with [p]remeditation. The People must still prove each element of every charge beyond a reasonable doubt.” In viewing this instruction as a whole, with this admonition that the prior offense evidence is not sufficient by itself to prove defendant’s guilt, we conclude the instruction could not have been interpreted as authorizing a guilty finding on the issue of acting willfully, deliberately and with premeditation based on a preponderance of the evidence.
D. Provocation
Defendant contends the trial court erred by not sua sponte instructing the jury that it could consider evidence that defendant was provoked, when it deliberated on the issue of whether the attempted murder was willful, deliberate, and premeditated. (CALCRIM No. 522.) We disagree.
As noted by the People, the instruction regarding provocation, as it relates to premeditation and deliberation, is a pinpoint instruction that does not need to be given sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-879 (Rogers) [discussing CALJIC No. 8.73 which was the predecessor of CALCRIM No. 522].) Accordingly, we find defendant’s argument unpersuasive, and conclude the court did not err.
Defendant contends Rogers is not authoritative on this issue because Rogers concerns first degree murder, not attempted murder. Rogers concluded that the instruction is a pinpoint instruction because it relates particular evidence to the element of premeditation. (Rogers, supra, 39 Cal.4th at p. 878-879.) Defendant argues premeditation is not an element of attempted murder, and therefore the reasoning of Rogers is not authoritative on this issue of whether the instruction constitutes a pinpoint instruction. Contrary to defendant’s position, our Supreme Court has concluded that the “‘willful, deliberate, and premeditated’” allegation is the functional equivalent of an element of the offense of attempted murder. (Seel, supra, 34 Cal.4th at pp. 548-549; People v. Izaguirre, supra,42 Cal.4th at p. 133.) Accordingly, we conclude the reasoning of Rogers is authoritative on this issue.
The two cases defendant relies on for the proposition that the premeditation is not an element of attempted murder are People v. Bright (1996) 12 Cal.4th 652 (Bright) and People v. Smith (2005) 37 Cal.4th 733. In People v. Smith, the court refers to the “willful, deliberate, and premeditated” allegation as a sentence enhancement. (Id. at pp. 735, 740.) In Bright, the court concluded that the “‘willful, deliberate, and premeditated’” allegation “sets forth a penalty provision.” (Bright, at p. 669.) We do not find this authority persuasive on this issue because in Seel, our Supreme Court concluded that even though the allegation may be a type of enhancement or penalty provision, it nevertheless must be treated as the functional equivalent of an element. (Seel, supra, 34 Cal.4th at pp. 547, fn. 4, 548; see also People v. Izaguirre, supra,42 Cal.4th at p. 133.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., McKINSTER J.