Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06904399-3, Gary D. Hoff, Judge.
William I. Parks, 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, J. Robert Jibson and Raymond L. Brosterhous, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
A jury convicted appellant, Joshua Gregory Marquez, of one count each of inflicting corporal injury on a cohabitant (count one/Pen. Code, § 273.5, subd. (e)) and intimidating a witness (count four/Pen. Code, § 136.1, subd. (c)(1)) and found he had a prior domestic violence conviction. In a separate proceeding, the court found a prior prison term enhancement true (Pen. Code, § 667.5, subd. (b)). On January 16, 2007, the court sentenced Marquez to an aggregate term of nine years, the aggravated term of five years on his domestic violence conviction, a three-year term on his dissuading a victim conviction, and a one-year prior prison term enhancement. On appeal, Marquez contends the court abused its discretion when it allowed evidence of prior incidents of domestic violence to be introduced into evidence pursuant to Evidence Code section 1109. We will affirm.
Unless otherwise indicated, all further statutory references are to the Evidence Code.
FACTS
The Underlying Charges
The prosecution presented evidence that Marquez had three children, ages seven, four and one, with Ashlee M., his former girlfriend. On June 19, 2006, Marquez went to Ashlee’s apartment at 3:00 a.m. and argued with her regarding Ashlee’s husband being around Marquez’s children. During the argument, Marquez pushed Ashlee to the ground, got on top of her, and punched her in the nose, breaking it, and causing two black eyes. Ashlee did not report the incident to police because she was afraid of Marquez.
On the morning of June 20, 2006, Ashlee and her children were at a friend’s house. Marquez arrived at the house and took them home at approximately noon. When they reached Ashlee’s apartment, she and Marquez began arguing over Ashlee’s refusal to let Marquez enter to visit his children in the apartment. Marquez left without incident. However, afterwards Ashlee received approximately 10 threatening calls from females telling her not to report Marquez to the police. At approximately 2:00 p.m., as Ashley lay in bed, Marquez entered her apartment and asked her to accompany him to the bathroom. Ashlee complied because she did not want to argue with Marquez in front of her children who were in the living room. Inside the bathroom Marquez pushed Ashlee against the wall, cut her arm five to six times with a razor, and told her that now if she called the police she would look like a “psycho bitch.”
Count one and two of the information each charged Marquez with violating Penal Code section 273.5. Count one was based on the incident on June 19, 2006, when Marquez punched Ashley in the nose, breaking it; count two was based on the incident in the bathroom on June 20, 2006. Although the jury found Marquez guilty on count one, it did not reach a verdict on count two.
Following Marquez’s departure, Ashlee walked to the store to buy diapers and discovered she was missing approximately $95. Ashlee called Marquez, who initially denied taking the money, but eventually told her he would return $15. Ashlee called the police after Marquez failed to return the $15. An officer who responded noticed Ashlee had two black eyes, a swollen nose, and cuts on her arms. Ashlee provided the responding officer with some information about her injuries but she also stated she did not want to prosecute Marquez. While she spoke to the officer, Ashlee received several text messages including one that said her husband was dead.
After Marquez was arrested in the underlying matter, Ashley received 20 to 30 threatening phone calls. The majority of the calls were made by Lisa Rico.
The Prior Incidents of Domestic Violence
Ashlee testified regarding four prior incidents of domestic violence. The first one occurred on February 15, 2002, when she was a few weeks pregnant with her second child. During an argument Marquez pushed Ashlee around, punched her on the arms, and choked her. When she picked up a telephone and called police, Marquez put a knife to her throat and threatened to kill her.
On November 5, 2002, Ashlee was arguing with Marquez about his lifestyle when he picked up a broomstick and repeatedly hit her on the face and head with it. Marquez also struck her with a dresser drawer, which he threw at her. When Ashley attempted to call the police, Marquez broke the phone and pulled the phone jack out of the wall.
On February 27, 2005, Marquez and his wife, Jenna, went to Ashlee’s house to visit one of Marquez’s children. As they were about to leave, Ashlee gave Jenna some pictures of her and Marquez. Marquez got between the women and began wrestling with Jenna and striking her all over. Marquez then let Jenna go, pushed Ashlee against the wall, and repeatedly hit her on the face and back of the head. As Marquez walked outside, he turned around simulating a gun with his hand and told Ashlee she was dead. When Ashlee walked out of the house Marquez again simulated a gun with his hand and told her it was not over and that he was going to kill her.
On February 4, 2006, Marquez picked up Ashlee at her mother’s house because her mother would not let her stay there and took her to find a motel. After stopping at a house, Marquez and another man drove Ashlee to an empty lot at approximately 4:00 a.m. Marquez pulled Ashlee out of the car by her hair. He pulled out a gun from his waistband and hit her on the lip with it. Marquez then put the gun to Ashlee’s head and told her he was going to kill her. Ashlee replied that if he was going to kill her to just do it. Instead, Marquez walked back to the car and left Ashlee there.
Jenna and Ernie Rodriguez, Marquez’s friend, testified for the defense. Rodriguez testified that on June 19, 2006, Marquez was with him from 2:00 p.m. to 4:00 p.m. at Lisa Rico’s house and again from 8:00 p.m. that day until 2:00 a.m. the next morning. Jenna testified that on June 20, 2006, Marquez was with her for approximately 25 minutes around noon that day.
Angelica Rolon testified that on the afternoon of June 20, 2006, at Rolon’s apartment, Ashlee told her she wanted to put Marquez in jail because she could not locate him, that Ashlee’s sister caused the facial injuries the night before during an argument, and that Ashlee cut her own arm so she could blame it on Marquez.
DISCUSSION
Introduction
The November 5, 2002, incident resulted in Marquez pleading to one count each of felony domestic violence and misdemeanor battery and being placed on probation. The February 15, 2002, incident resulted in a felony charge of domestic violence against Marquez. However, that case was dismissed as part of the plea agreement involving Marquez’s felony plea resulting from the November 2002, incident. The February 27, 2005, incident also resulted in charges. These charges were dismissed when Marquez admitted violating his felony probation and was sentenced to prison.
Prior to the start of the trial, the prosecutor moved the court for permission to present evidence of the four prior incidents of domestic violence discussed above. The court engaged in the weighing process required by section 352 and ruled that these four prior incidents were admissible pursuant to section 1109. During the hearing on the prosecutor’s motion, defense counsel did not object on constitutional grounds to the introduction of this evidence. Additionally, defense counsel argued against letting the jury know that Marquez was convicted of domestic violence based on the November 2002 incident and that he had charges arising from the February 2002 and February 2005 incidents dismissed pursuant to two separate plea bargains. The court agreed with defense counsel and ruled that the jury would not be told about any of these circumstances.
Section 1109, in pertinent part provides:
Section 1109 allows the court to admit evidence of prior acts of domestic violence in a prosecution under Penal Code section 273.5. Marquez contends section 1109 is unconstitutional because it violates a defendant’s state and federal right to due process by allowing prior acts of domestic violence to be used as propensity evidence to convict him or her of violating Penal Code section 273.5. Alternatively, he contends the court abused its discretion under section 352 when it allowed the prosecutor to introduce this evidence. We will reject these contentions.
Section 1109 is not Unconstitutional
Marquez waived this issue by his failure to raise it in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1118.) However, even if this issue were properly before us we would reject it.
This issue has been resolved adversely against Marquez. In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta),the Supreme Court held that section 1108, a section analogous to section 1109 that allows the use of prior incidents of sexual misconduct in sexual offense prosecutions, did not deny a defendant’s right to due process. Numerous court of appeal decisions have relied on Falsetta to conclude that section 1109 does not violate a defendant’s constitutional right to due process (see e.g., People v. Price (2004) 120 Cal.App.4th 224, 240 [§ 1109 does not violate due process]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [same]; People v. James (2000) 81 Cal.App.4th 1343, 1353 [same]; People v. Brown (2000) 77 Cal.App.4th 1324, 1335 [same]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 [same]; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420 [same]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 [§ 1109 does not violate equal protection].) We agree with the holdings of these cases.
Marquez attempts to distinguish the above cases by arguing that the lower courts who relied on Falsetta to uphold the constitutionality of section 1109 failed to take into account the following three circumstances: 1) section 1108 was drafted to “track” changes in the Federal Rules of Evidence and there is no similar federal provision allowing the admission of propensity evidence in domestic violence cases; 2) in upholding section 1108, “the Supreme Court in Falsetta placed particular emphasis on the unique nature of sexual offenders and their crimes, thus enhancing the probative value of the prior offenses”; and 3) the Falsetta court “noted the historical judicial ambiguity in regard to the admission of prior sex crimes in sexual offender cases” which “led to the court’s due process analysis in finding that it was ‘unclear whether the rule against “propensity” evidence in sex offense cases should be deemed a fundamental historical principle of justice.’” We will reject these contentions.
Marquez fails to explain how the absence of a similar federal provision allowing the admission of prior acts of domestic violence evidence in domestic violence cases undermines the Falsetta court’s decision upholding the constitutionality of section 1109. Further, in Falsetta the Supreme Court included the following quote from a law review article, “The Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’” (Falsetta, supra, 21 Cal.4th at p. 912.). The court made this statement in reviewing and summarizing the statutory scheme for admitting or excluding character and “other crimes” evidence in this state. The court, however, did not cite this quote as a reason for upholding the constitutionality of section 1108. Thus, we reject Marquez’s suggestion that the Falsetta court upheld the constitutionality of section 1108 because it found evidence of past sexual offenses to be particularly probative.
Moreover, the court did not refer to a “historical judicial ambiguity” in regard to the admission of propensity evidence in sexual offense prosecutions. Instead, the court stated that “some authorities have observed that courts have been considerably more ‘ambivalent’ about prohibiting admission of defendants’ other sex crimes in sex offense cases. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 914, italics added.) The court made this statement in analyzing whether the rule against propensity evidence in sex offense cases should be deemed “a fundamental historical principal of justice.” (Ibid.) The court then concluded that even if this rule were deemed a fundamental principle, the court would uphold the section “if it did not unduly ‘offend’ ... due process principles.” (Id. at p. 915.) Ultimately, the court found that section 1108 did not offend due process principles concluding that “the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge.” (Id. at p. 917.) As with section 1108, the trial court retains discretion under section 352 to exclude propensity evidence if its probative value is outweighed by it prejudicial effect. Thus, even if the prohibition of propensity evidence in domestic violence cases were deemed a “fundamental historical principle of justice,” this would not undermine the reasoning of the lower court opinions that relied on Falsetta in upholding the constitutionality of section 1109. Accordingly, we reject Marquez’s constitutional challenge to section 1109.
The Section 352 Issue
“Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] ‘The [trial] court’s exercise of discretion under ... 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.’ [Citation.]” (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.)
People v. Hoover supraHere, the probative value of the four prior incidents of domestic violence is principally in their cumulative nature and considered together they set forth a continuous pattern of domestic abuse. (Cf. People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.) Further, the evidence did not pose a danger of confusing the jury or take an inordinate amount of time to present because they were all presented through Ashlee’s testimony and her account of these incidents was unrebutted by the defense.
Nor did any of the incidents create a substantial danger of undue prejudice. Marquez contends the February 2002 incident when he threatened the victim with a knife and the February 2006 incident when he kidnapped and hit the victim with a pistol created a potential for undue prejudice because they were excessively inflammatory. We disagree.
In the underlying incident that occurred on June 19, 2006, Marquez struck the victim on the face with his fist breaking her nose and giving her two black eyes. And even though Marquez used a weapon in each of the incidents he cites, he also used a weapon on June 20, 2006, when he returned to the victim’s house and attempted to intimidate her into not calling the police by cutting her arm several times with a razor blade. Thus, the court could reasonably have found the two incidents Marquez cites were no more inflammatory than the underlying incidents in this matter. Further, the jury’s failure to convict Marquez on one count of domestic violence indicates that the prior acts of domestic violence did not create a potential for undue prejudice.
Marquez also contends the evidence of prior domestic violence was likely to cause confusion because the jury was not told that he was punished for any of the incidents except the November 2002 incident, which resulted in a conviction. Not so. The jury knew Marquez had one prior conviction for domestic violence, which they were likely to assume he was punished for. More importantly, however, Marquez’s defense counsel successfully argued against admitting evidence that charges arising out of two prior incidents of domestic violence were dismissed pursuant to plea bargains. Thus, Marquez is estopped from arguing that this circumstance prejudiced him. (Cf. California Coastal Com. v. Tahmassebi (1998) 69 Cal.App.4th 255, 260 [“‘It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal’”].)
Marquez acknowledges the presentation of evidence on the prior acts of domestic violence did not take long to present because it was done primarily through one witness, Ashlee. Nevertheless, he contends that it caused an undue consumption of time because it required the court to instruct the jury with respect to these incidents and the jury to deliberate more in order to determine whether the incidents occurred. Marquez is wrong. The mere fact the prior incidents lengthened the trial because of the need for additional instructions and jury deliberations is not a basis for excluding evidence of these incidents or concluding that they caused an undue consumption of time. This is particularly true here because the evidence of the four prior incidents of domestic violence was unrebutted and did not lead to any mini-trials.
Marquez also contends that evidence of the February 2006 incident was not probative on any issue because it was uncorroborated, Ashlee did not report it to the police, and she did not disclose this incident to anyone until after the trial was underway. These are all circumstances the jury as the trier of fact was entitled to consider in evaluating Ashley’s credibility and in assessing how much weight, if any, to give her testimony. As stated by our Supreme Court in People v. Anderson (2001) 25 Cal.4th 543, “[T]he reliability of [a witness’s] testimony [is] a jury question, and [goes] to the weight of the evidence, not its admissibility.” (Id. at p. 587.)
Finally, Marquez contends the evidence that he threatened Ashlee during the November 2002 incident was probative in determining whether Marquez committed the offense of dissuading a witness of which he was convicted in the instant case. However, according to Marquez, the court abused its discretion in admitting evidence of this incident pursuant to section 1109 because that section allows only the admission of evidence to support a charge of domestic violence and not a charge of witness intimidation. Marquez’s contention reflects a fundamental misunderstanding of the range of conduct subsumed under the rubric of domestic violence.
CALCRIM No. 852 in pertinent part provides:
“The People presented evidence that the defendant committed domestic violence that was not charged in this case …. [¶] … [¶]
“Domestic violence means abuse committed against []an adult … who is a []spouse[,]/ [or] former spouse[,] … [or] person with whom the defendant has had a child…. [¶]…[¶]
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.” (Italics added.)
Here, the trial court could reasonably have found that by simulating a gun with his hand during the November 2002 incident Marquez intentionally placed Ashlee in reasonable fear of imminent serious bodily injury to herself. Thus, we conclude the court acted within its discretion when it allowed the prosecutor to present evidence of these threats pursuant to section 1109. For all the reasons discussed above, we further conclude that Marquez has not met his burden of showing the court abused its discretion when it allowed the prosecution to present evidence of the four prior incidents of domestic violence.
DISPOSITION
The judgment is affirmed.
“(a) (1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] … [¶]