Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F07300097, Robert H. Oliver, Judge.
Matthew H. Wilson, 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, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury found appellant Louie Meza guilty of corporal injury to a spouse or cohabitant (hereafter “spousal abuse”) (Pen. Code, § 273.5, subd. (a); count 1) and acquitted him of forcible sodomy (§ 286, subd. (c)(2); count 2) and criminal threats (§ 422; count 3). Appellant admitted he had two prior convictions under the three strikes law. The court sentenced appellant to prison for 25 years to life. On appeal, appellant contends (1) the court erred by failing, sua sponte, to instruct the jury that consent was a defense to spousal abuse; (2) the court erred by admitting evidence of prior incidents of domestic violence; and (3) the court abused its discretion by denying his Romero motion to dismiss one or both of his prior strike convictions. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTS
Although the parties extensively detail the facts describing the relationship between appellant and the victim leading up to the night in issue, it is adequate for our purposes to provide a general summary.
The victim, Vanessa V., testified that she met appellant in high school when she was 15 years old. They started living together when Vanessa was 16 years old. At first they lived with appellant’s parents and later they lived with Vanessa’s father. Vanessa and appellant’s relationship lasted approximately eight years.
On February 8, 2007, Vanessa tried to sleep while appellant stayed up in their room drawing and getting out his comic books. Throughout the night, appellant would often try to wake Vanessa up and get her attention by kicking her and yelling names such as “[w]hore” and “slut.”
Around 4:30 a.m., Vanessa woke up and appellant asked her to go for a drive with him. They left the house and drove to a local pool park. After they parked the car, appellant began to tell Vanessa how he was tired of her, he hated her, she had ruined his life, and his parents hated him because of her. Appellant then told Vanessa to pull her pants down and get in the backseat. Vanessa said no because she was on her period. When appellant replied that he did not care, Vanessa followed his instructions and got into the backseat.
Appellant followed Vanessa into the backseat and began having anal sex with her. Vanessa testified that she started crying and told appellant to stop because it hurt. According to Vanessa, appellant refused her repeated requests to stop and forced her to continue having anal sex with him. He also hit her numerous times, often when she would try to get away from him. Vanessa described how appellant hit her on the “right side of [her] back torso” with his fist, stomped down on her leg with his foot, and choked her for several seconds with his left hand. Appellant also scratched and hit her in other areas of her body, including her arms, head, and forehead. Vanessa further testified that while they were at the pool park, appellant threatened to kill her or her father if she told anyone what happened. Vanessa believed appellant because she had observed appellant push his mother in the past.
Vanessa sustained numerous bruises as a result of the incident at the pool park. The bruises were documented and photographed by a nurse that performed a sexual assault examination on Vanessa later that afternoon. Although appellant had hit her in the past, Vanessa confirmed that she received these bruises during the February 8 incident, and that she did not “receive any of these injuries from prior sexual relationships or sexual acts” with appellant.
Prior Domestic Violence Evidence
On one occasion around August 2006, appellant came up to Vanessa while she was getting ready for work and started hitting her in the stomach. On another occasion, they were arguing and appellant picked up a Samurai sword and started coming at Vanessa with it.
In October 2006, Vanessa and appellant were arguing in the hallway when appellant pushed her up against the wall and started choking her. Vanessa’s cousin, Marcos Sandoval, was present during this incident and testified that he heard appellant call Vanessa names like “bitch” and “slut” and that appellant pushed Vanessa with such force that her head hit the wall. After Marcos intervened, Vanessa and appellant went into a bedroom to talk. When Marcos went in to check on them, he found appellant lying on top of Vanessa, holding her arms down, and yelling at her. Marcos separated them. A little while later, he found appellant doing the same thing to Vanessa and separated them again.
In November 2006, appellant struck Vanessa’s legs with a long, plastic rod, causing five or six bruises.
In January 2007, appellant and Vanessa were arguing. Vanessa touched appellant’s shoulder and he spun around and hit her between the eyes with his fist, causing her to develop a black eye
Cristela P. dated appellant briefly in high school when she was 15 years old and had a son by him. Cristela testified that on one occasion when they were dating, appellant hit her in the legs with his fist, causing her to fall, and then slapped her in the ear. Cristela denied that there had ever been any problems between her and Vanessa, and confirmed they had become friends since the events in this case.
The Defense
The defense presented testimony impugning Vanessa’s character and credibility. Appellant’s mother, Rosie Meza, testified that appellant and Vanessa got along well until Cristela moved back to town and Vanessa found out appellant was the father of Cristela’s son. Vanessa became jealous and expressed that she did not want appellant to have contact with his son. Vanessa started to call appellant from work eight to ten times a day, often to start fights with appellant. Rosie also denied that her son ever pushed her as Vanessa claimed.
Appellant’s father, Robert Meza, testified that Vanessa never made the payments on a credit card he agreed to cosign so she could purchase a wedding dress. Her failure to make the payments resulted in the balance doubling and hurt Robert’s credit score. When he confronted Vanessa about the unpaid bill, she said she was not going to pay it. Robert asked Vanessa to leave the house, and Vanessa replied, “F you Robert.” Later, Vanessa apologized and asked if she could move back in, but Robert did not accept her apology and told her to leave them alone.
Appellant’s brother, Robert Meza, Jr., testified that as adults, he never fought with appellant physically as Vanessa claimed. When he lived with his parents, Robert, Jr. never saw appellant get violent with Vanessa, hit her, or call her derogatory names. Robert, Jr. further testified that appellant was teaching Vanessa self-defense and that Vanessa had expressed an interest in learning self-defense after an incident where she encountered Cristela at a Target store and they had exchanged dirty looks.
Appellant’s sister-in-law, Elievette Meza, also testified regarding problems between Vanessa and Cristela. One day Vanessa came home from work and said she had run into “the F-ing B” at Target, and said that Cristela had essentially challenged her to fight. On another occasion, after Vanessa had taken Elievette’s daughter to a local doughnut store, Vanessa said that Cristela was back in town and that she had thrown rocks at their car. According to Elievette, Vanessa would argue with appellant over his “income tax” being taken for child support. Although Vanessa expressed that she did not want appellant to visit his son, she also said he should visit him so that appellant would not have so much money taken away from him for child support.
Elievette further testified that Vanessa loved to exaggerate. After appellant was arrested, Vanessa called Elievette and told her that appellant had caused her to suffer three broken ribs, a ruptured disk, and a concussion, and that she had been in the hospital for two days. In the past, Vanessa had also made statements suggesting that her ill father was close to dying when he was not.
DISCUSSION
I. Failure to Give Consent Instruction
Appellant contends the court erred by failing, sua sponte, to instruct the jury that consent was a defense to spousal abuse. Although appellant recognizes that spousal abuse is a form of battery and that consent of the victim is generally not a defense to assault or battery, he asserts, “the conduct at issue was more akin to a potentially dangerous sport to which the participants assume the risk, and because the injuries in this case were relatively minor (bruising to the body) … consent should have been available as a defense.” We disagree.
Appellant proposes the court “could have fashioned an instruction similar to the one it gave advising the jury that consent was available as a defense to the sodomy by force charge.” In relevant part, the court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 1030 that “The defendant is not guilty of forcible sodomy if (he) actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.”
There is no authority for, and we see no merit in, appellant’s contention that consent is a valid defense to the crime of spousal abuse. However, we need not resolve this issue in any event because a trial court is only required to instruct on a particular defense “‘“if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 424.)
It is clear from the record that appellant was not relying on consent as a defense to the charge of spousal abuse and that this theory was inconsistent with appellant’s proffered defense. As appellant acknowledges, “The defense theory was that Vanessa fabricatedall of the charges, perhaps because she was jealous of appellant’s ex-girlfriend, Cristela.” To the extent appellant’s trial counsel suggested in closing argument that Vanessa’s bruises might have resulted from past “rough sex” the couple had consensually engaged in, this theory was not relied on as a defense to the spousal abuse charge but simply as an alternative explanation for Vanessa’s bruises. Counsel did not argue, and no evidence was presented, that Vanessa consented to the beating appellant inflicted on Vanessa during the pool park incident. Vanessa also denied that she received any of the bruises from prior sexual acts with appellant, and appellant presented no evidence to the contrary. Thus, even assuming that consent of the victim could constitute a valid defense to spousal abuse, the court was under no obligation to give such instruction absent a specific request by counsel.
Specifically, defense counsel argued: “[O]n the spousal abuse charge could these bruises have happened during the rough sex that the victim admitted to her friends that she does, that she’s involved in? Maybe that’s why she’s a little embarrassed about the bruises. Maybe she gets bruises because these guys are into some bizarre sex, rough sex, pulling of hair. She gets bruised, doesn’t want to explain it.”
II. Evidence of Prior Acts of Domestic Violence
Appellant contends the court erred by admitting testimony about his prior acts of domestic violence against Vanessa and Cristela under Evidence Code section 1109. In addition, appellant argues the evidence was admitted in violation of his constitutional right to due process. We reject both contentions.
The admissibility of character evidence in California is generally governed by Evidence Code section 1101. Section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1109, subdivision (a)(1) provides an exception to section 1101’s prohibition against the introduction of propensity evidence:
“(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.”
Thus, when a defendant is charged with an offense of domestic violence, section 1109 permits the prosecution to introduce evidence of the defendant’s prior acts of domestic violence.
However, in determining whether to admit such evidence, the trial court must consider whether the probative value of the evidence is substantially outweighed by the probability that its admission will necessitate undue consumption of time, create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Soto (1998) 64 Cal.App.4th 966, 983; People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The trial court enjoys broad discretion in making that determination and its exercise of that discretion will not be disturbed on appeal except on a showing that such discretion was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant in the absence of the error. (People v. Moore (1996) 44 Cal.App.4th 1323.)
In weighing probative value against prejudicial effect under Evidence Code section 352 in sexual offense cases, the California Supreme Court explained:
“[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).)
The same weighing of probative value versus prejudicial effect under Evidence Code section 352 can be applied in domestic violence cases.
Appellant asserts that evidence of his prior acts of domestic violence should have been excluded because there was no evidence that the prior acts resulted in convictions. Appellant points out that the Falsetta court “observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 917.)
While the existence of prior convictions tends to reduce the prejudicial effect of prior acts evidence (Falsetta, supra, 21 Cal.4th at p. 917), neither Evidence Code section 1109 nor Falsetta indicates that prior convictions are a prerequisite for the admission of such evidence. Thus, the fact of no prior convictions is only one of several factors the trial court must consider when engaging in the careful weighing process required under Evidence Code section 352. Here, we determine for several reasons that the trial court did not abuse its discretion in determining the evidence of prior domestic violence was admissible.
First, we find that the evidence of prior domestic violence against Vanessa and Cristela was highly probative regarding appellant’s propensity to commit such crimes. Second, the lack of prior convictions was not a factor that could outweigh the probative value of this evidence under the circumstances of this case, since the prior acts were not more egregious than the charged offense. Additionally, we believe the evidence of prior domestic violence posed no danger of confusing the jury or tempting the jury to convict on the basis of the prior acts, given the detailed evidence that was admitted in support of the charged offense. We also disagree with appellant’s suggestion that the lack of prior convictions placed an undue burden on him to defend against the allegations of prior domestic violence. In this regard, appellant complains his decision not to testify prevented him from being able to directly refute Vanessa and Cristela’s allegations. However, appellant was able to challenge the witnesses’ credibility on cross-examination, and through the testimony of the defense witnesses.
Because we find no abuse of discretion, we need not consider whether the court’s ruling prejudiced appellant or deprived him of a fair trial. Further, 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 (2000) 81 Cal.App.4th 1301, 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 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 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.
III. Denial of Romero Motion
Lastly, appellant contends the court abused its discretion by refusing to dismiss or strike one or both of his prior strike convictions because they were remote in time, arose out of a single course of aberrant conduct, and resulted only in a probationary sentence. We disagree.
Appellant’s prior strike convictions consisted of two 1999 convictions of assault with a firearm (§ 245, subd. (a)(2)).
In denying appellant’s Romero motion, the court presented a lengthy and thoughtful explanation of its ruling, spanning 17 pages of the reporter’s transcript, in which it carefully addressed the arguments raised by the parties and discussed pertinent case authorities and their application to the circumstances of the present case. Below are excerpts from the court’s discussion, highlighting some of the key considerations for its ruling:
“Now let me talk about the consideration of the nature and circumstances of prior strikes generally. What are the circumstances of the defendant’s prior convictions.… Here the -- the Court finds that the prior strikes were serious. The use of a weapon, the fact that they were not fired, according to the evidence, as to the female and male in the vehicle, the fact of the fear evidenced by the driver, as referenced at least as indicated by the reports before this Court, throwing the car into reverse and taking off. What appears to be … the initiation of … the two crimes against two people, no provocation other than these folks at 5:30 or thereabouts were driving down the street.”
“The remoteness in time, I don’t think anyone is arguing here that the remoteness is such that it would get into the area of 17-, 20-year-old strikes as in People vs. Bishop [(1997) 56 Cal.App.4th 1245] or in In Re Saldana [(1997) 57 Cal.App.4th 620], a 16-year-old strike. We’re talking hearing about a period of eight years or so.”
“The Court further considers as enunciated in a number of cases, not the least of which is People vs. Myers [(1999) 69] Cal.App.4th 305, whether or not the past offenses involve violence or the use of a weapon. Certainly … the prior offenses involve the use of a weapon as the record clearly indicates, and the current offense clearly indicates the use of violence.”
“The Court also notes in People vs. Cole [(2001) 88 Cal.App.4th 85]talks about this, that the court may consider the victim -- the comments of a victim of a prior offense.… And I take into consideration not only those comments of [Vanessa] but of [Cristela]. [¶] … [¶] …And I have evaluated the testimony pursuant to the appropriate case law that this Court allowed. And I evaluated the credibility of that and find both [Vanessa] … in her testimony, and [Cristela] in her testimony to be most credible.”
“The Court considers the increasing or decreasing severity.… And this Court in evaluating the strikes … and evaluating the evidence in this case, finds this to be without any question as frightening and as serious as the prior strikes were. The abuse that was committed, based on the findings of the jury, are repugnant. The evidence which this Court believed to be credible as to this defendant’s continued history of an absolute disregard for women, absolute disregard for people with whom he was in a relationship is -- clearly shows a continuing and increasing lack of respect for other human beings, specifically those with whom he’s in a dating or cohabiting relationship.”
“This Court listened to the evidence. This Court listened to the testimony. This Court evaluated the demeanor of all the parties. This Court believes the count for which [appellant] was found guilty to be horrific, if not in the legal sense, in the standpoint of the clear lack of respect for the victim. This is a different offense, as has been properly pointed out, than the prior offense. The prior offenses a gun was used. In this offense, there was simply raw violence. But the Court does consider that, obviously, if the crimes has been similar in nature, that would weigh more heavily against -- against the granting of the invitation to strike.”
“We now turn to the defendant’s background, character, and prospects.… His background, as indicated, he comes -- he has strong family roots. This Court believes his character is -- I think his life experience and record speaks for itself. As based on the testimony and evidence in this case which the Court finds credible, he has an absolute lack of respect for women with whom he has a relationship. He does not have a pattern of work that is noteworthy in any respect. It is clear that he has some talent as an artist as evidenced by the fact that he has done some murals in this community. He does not in any showing have the prospects, based on his 29 years to date, of doing other than repeating what he’s done before. The age of the defendant, he was 21 at the time of the first strikes, 28 or 29 now, is not dispositive one way or the other.… Prospects for a stable life, [appellant], in this Court’s judgment, is not exhibiting the prospects for a stable life. He does not, based on the evidence before this Court, seek out full-time employment either as an artist or otherwise.”
A trial court is authorized in its discretion to dismiss a prior strike allegation in the interests of justice under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) In ruling whether to dismiss a prior strike allegation, the trial court must determine whether considering the nature and circumstances of the current offense and prior strikes, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he had not incurred one or more prior strikes. (People v. Williams (1998) 17 Cal.4th 148, 161-163.) The trial court’s discretion to dismiss, or not to dismiss, a prior strike allegation is reviewable on appeal under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.)
“Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
Here, appellant has not met his burden of demonstrating that the court’s sentencing decision was arbitrary or irrational. The record reflects the court explicitly considered relevant factors concerning “‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.) Appellant has presented no basis from which we can conclude the court exercised its discretion in an arbitrary, capricious or unreasonable fashion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.