Opinion
D071337
10-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN PINAL MONDRAGON, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN355976) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Juan Pinal Mondragon (Pinal) guilty of one count of inflicting an injury causing a traumatic condition on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)), and one count of possessing narcotics paraphernalia (Health & Saf. Code, § 11364).
Pinal contends that the trial court prejudicially erred because it concluded that Evidence Code section 352 did not require the exclusion of two recordings in which a witness described seeing Pinal punch the victim in the face in an altercation that occurred on the same evening that Pinal committed the acts for which Pinal was prosecuted in this case. We conclude that Pinal's argument is without merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Pinal was living with his girlfriend, Y.M., and her three-year-old daughter in Chelsea L.'s apartment. On the evening of February 22, 2016, Chelsea called 911 to report that Pinal and Y.M. were arguing and that Pinal had punched Y.M. In the background of the 911 call, Y.M. can be heard telling Pinal "Get off of me," and Chelsea can be heard stating to Pinal, "Well, you know, you just socked her in the fucking face." Chelsea can also be heard stating to Y.M., "I'm not okay with that. He isn't gonna get on top of you and punch you in the face like that."
To protect the privacy of Y.M. and Chelsea L., we refer to them by their initials or first name, and we intend no disrespect by doing so.
Two deputy sheriff officers arrived at the apartment in response to the 911 call. Pinal was no longer present. Y.M. told the officers that Pinal had not hit her. The officers saw no visible injuries on Y.M., and they took photographs of Y.M.'s face, arms and hands to document her uninjured condition. One of the officers spoke to Chelsea separately outside of the apartment. As captured on a recording made by the officer's body-worn camera, Chelsea asked the officer whether she could press charges against Pinal for the damage to her apartment, and then said, "I mean, like it's not okay. I mean I saw him on top of her, punching her in the face." Before the officers left the apartment, one of them told Chelsea to call 911 if Pinal returned.
A few minutes after the officers left the apartment, Pinal returned and was still angry and upset. Chelsea called 911 and left the apartment. The officers, who were only a block or two away when they received the call, returned to the apartment. As the officers approached the apartment, they heard a woman screaming like she was being hurt or crying for help. They also heard the sound of punches, hits or slaps coming from inside the apartment. The officers entered the unlocked door to the apartment and saw Pinal standing in the kitchen with Y.M. on her back on the floor below him. Y.M.'s hands were covering her face in a defensive position. The officers saw Pinal twice cock his arm back and throw punches down in the direction of Y.M.'s upper body. However, because a kitchen counter was blocking their view as Pinal threw the punches, neither officer saw Pinal's punches connect with Y.M.'s body. Y.M.'s three-year-old daughter was standing next to Y.M.'s head during the incident, crying loudly. The officers yelled at Pinal to put up his hands. Pinal eventually complied and was arrested.
Y.M.'s nose was bleeding and she had a cut inside her lip. Blood was spattered throughout the kitchen on the floor and cupboards. The officers called paramedics to attend to Y.M. Upon searching Pinal and his backpack, officers found two syringes and a spoon bearing an odor associated with heroin.
Based on the events after the second 911 call, Pinal was charged with one count of inflicting an injury causing a traumatic condition on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)) (count 1), one count of cruelty to a child by inflicting injury (id., § 273a, subd. (b)) (count 2), and one count of possessing narcotics paraphernalia (Health & Saf. Code, § 11364) (count 3). The information further alleged that Pinal incurred a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) and two prior prison terms (id., §§ 667.5, subd. (b), 668).
At trial, Y.M. testified that Pinal never hit her during the altercation that occurred during Chelsea's first 911 call. Y.M. also testified that Pinal did not punch her during the altercation witnessed by the officers when they responded to the second 911 call. According to Y.M., on the evening of the incident, she and Pinal were arguing about money that Pinal claimed Y.M. had taken from him. Y.M. explained that during the altercation that occurred during the first 911 call, Pinal was standing over her as she sat on the bed, but he never hit her. Y.M. stated that the during the second altercation, Pinal returned to the apartment shortly after the officers left, and he was angry. She and Pinal argued in the kitchen, and she spit in Pinal's face and pushed his chest with her hands. Pinal then grabbed Y.M.'s hands, and she scratched his arm. Pinal reacted by slapping Y.M.'s face with an open hand. Y.M. testified that she then voluntarily fell to the floor to make it look like Pinal pushed her.
According to Y.M., as the officers entered the apartment, Pinal was bent over trying to grab her hands to pick her up off the floor, and she was slapping at Pinal and kicking her legs to get him away from her. Y.M. also testified that the red substance spattered around the kitchen was not blood but was red sauce that spilled during the incident. Y.M. acknowledged during her testimony that despite a criminal protective order entered against Pinal, she had spoken to him on the telephone numerous times and planned to resume her relationship with him once the protective order was lifted.
As Chelsea was not available to testify at trial, the jury was read the transcript of her preliminary hearing testimony. Chelsea testified that during the altercation that happened during the first 911 call, she did not see Pinal punch Y.M. or strike Y.M with his hands in any manner. Instead, she saw Pinal straddling Y.M. on the bed and wrestling with her. She did not remember telling the officers that Pinal had punched Y.M.
At trial, over defense counsel's objection, the prosecutor played (1) the excerpts from Chelsea's first 911 call, during which she referred to Pinal punching Y.M., and (2) an excerpt from the recording from the officer's body-worn camera during his interview with Chelsea, in which Chelsea stated that she saw Pinal punch Y.M. in the face. The jury also viewed recordings from both officers' body-worn cameras as they responded to the second 911 call.
During closing argument, defense counsel contended that based on Y.M.'s testimony that she spit on, pushed and scratched Pinal before he slapped her, Pinal was acting in reasonable self-defense when he caused the injury to Y.M.'s face. Defense counsel also argued that the jury should find that Chelsea lied during the first 911 call when she stated that Pinal had punched Y.M., especially in light of the fact that Y.M. had no injuries when the officers responded to the first 911 call.
The jury found Pinal guilty on count 1 and count 3 but could not reach a verdict on the child abuse charge in count 2, and the People eventually dismissed that count.
Pinal admitted a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) and both prior prison terms (id., §§ 667.5, subd. (b), 668), but the trial court struck one of the prior prison term findings at sentencing. The court sentenced Pinal to a term of seven years in prison.
II.
DISCUSSION
Pinal's sole contention on appeal is that the trial court erred in admitting the two recordings in which Chelsea stated that she saw Pinal punch Y.M. during the altercation that gave rise to the first 911 call, namely (1) the excerpt from the recording of Chelsea's call to 911; and (2) the excerpt from the recording made by the officer's body-worn camera as he interviewed Chelsea outside the apartment. According to Pinal, the trial court prejudicially erred in not excluding those recordings pursuant to Evidence Code section 352. A. Proceedings Concerning the Evidence at Issue
Defense counsel also contended in the trial court that the recordings should be excluded as hearsay because they did not qualify as spontaneous declarations under Evidence Code section 1240, but Pinal does not advance that argument on appeal. Although the People's appellate brief includes a discussion of whether the recordings constituted spontaneous declarations, we need not and do not address that issue, as Pinal has not raised it as grounds for appeal.
With respect to the recordings at issue in this appeal, the People filed a motion in limine to admit the recordings, and Pinal filed a motion in limine to exclude them. The People contended that although the recordings contained hearsay, they should be admitted pursuant to Evidence Code section 1240 as spontaneous declarations made by Chelsea while she was under the stress of excitement. Pinal's motion in limine argued that the recordings should be excluded, among other grounds, because they are hearsay. Pinal also argued that, applying Evidence Code section 352, "there is no probative value to the statements" and they would prejudice the jurors against Pinal and would confuse and mislead them. During the hearing on the motions in limine, the trial court also acknowledged that it was required to consider whether the recordings should be excluded pursuant to Evidence Code section 352 because they constituted evidence of prior domestic violence governed by Evidence Code section 1109. Under that provision, "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 ." (Evid. Code, § 1109, subd. (a)(1), italics added.)
Evidence Code section 1101 provides that, with certain exceptions, "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." (Evid. Code, § 1101, subd. (a).)
In arguing that Chelsea's statements that she saw Pinal hit Y.M. should be excluded under Evidence Code section 352, defense counsel argued, among other things, that the statements had no probative value because they were contradicted by the fact that the officers did not see any injuries on Y.M. when they responded to the first 911 call. Defense counsel also pointed out that Chelsea's statements were not otherwise corroborated, as Chelsea and Y.M. both denied that Pinal had punched Y.M. during the first altercation.
At the hearing on the motions in limine, the trial court concluded that the portions of the recordings that we have described above constituted spontaneous declarations and were therefore admissible despite being hearsay. The trial court further concluded that the recordings were not made inadmissible by Evidence Code section 352. In applying section 352, the trial court explained that there was "quite a bit of probative value" which "certainly outweighs any prejudicial effect." The trial court observed that the recordings possessed great probative value because they concerned Pinal's perpetration of domestic violence on the same victim, at the same location, and shortly before the charged incident.
Based on the trial court's ruling on the admissibility of the recordings, during trial the prosecutor played an excerpt from Chelsea's first 911 call and an excerpt from Chelsea's interview with the officer as recorded on his body-worn camera. As we have described, during the 911 call Chelsea stated that Y.M. was screaming and that Pinal had punched Y.M. During the call, Chelsea also made a statement directed at Pinal and a statement directed at Y.M., both of which indicated that Pinal had just punched Y.M. in the face. Similarly, on the excerpt of the recording from the officer's body-worn camera, Chelsea stated that she saw Pinal on top of Y.M., "punching her in the face." B. Applicable Legal Standards
Pinal contends that the trial court should have excluded the recordings pursuant to Evidence Code section 352. Under that provision, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) When deciding whether evidence of a defendant's prior acts of domestic violence should be excluded under Evidence Code section 352, the court "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." (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta) [discussing the application of Evid. Code, § 352 in the equivalent situation of the admission of prior sexual offenses under Evid. Code, § 1108].)
"Rulings regarding . . . Evidence Code section 352 are reviewed under an abuse of discretion standard." (People v. Lee (2011) 51 Cal.4th 620, 643; see also People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson) [applying abuse of discretion standard to an Evid. Code, § 352 analysis conducted in the context of evidence admitted pursuant to Evid. Code, § 1109].) The trial court's exercise of its discretion " 'must not be disturbed on appeal 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.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) C. The Trial Court Did Not Abuse Its Discretion by Admitting the Evidence
In conducting our analysis, we first consider the probative nature of the recordings in which Chelsea stated that Pinal had punched Y.M. in the face. There can be little dispute that evidence establishing that Pinal punched Y.M. in the face during the first 911 call is highly probative on the issue of whether Pinal punched Y.M. in the face a few minutes later after the second 911 call. Indeed, as the trial court observed, the evidence is highly probative propensity evidence going to the issue of whether Pinal committed the crime of which he was charged in this matter because it involved the same victim, the same conduct of punching the victim in the face, and it was very close in time to the charged incident. (See Falsetta, supra, 21 Cal.4th at p. 917 ["the probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses"].) Indeed, " '[t]he principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.' " (Johnson, supra, 185 Cal.App.4th at pp. 531-532.)
However, Pinal argues that the statements that Chelsea made in the recordings at issue had no probative value and should not have been admitted under Evidence Code section 352 because Chelsea's statements that she saw Pinal punch Y.M. in the face are contradicted by all of the physical evidence and are not otherwise corroborated by any witness statement. Specifically, Pinal argues that because the officers saw no injuries on Y.M. when they responded to the first 911 call, as documented by the photographs of Y.M. taken by the officers, Chelsea must have been lying when she stated that Pinal hit Y.M. in the face. Pinal contends that because they were contradicted by the physical evidence, Chelsea's statements were "inherently unbelievable/incredible or inherently improbable" and thus had no probative value whatsoever. According to Pinal, if he "punched [Y.M.] repeatedly in the face while straddling her at close range . . . [Y.M.] would have had some injury to her face."
We reject Pinal's argument because it relies on a faulty factual assumption. The fact that the officers did not observe injuries on Y.M. when they responded to the first 911 call is not physical evidence that conclusively contradicts and disproves Chelsea's statement that she saw Pinal punch Y.M. in the face. To the contrary, the only undisputed fact established by the lack of injury to Y.M. is that if Pinal did punch Y.M., his punches did not reach Y.M.'s face in a manner that caused visible injury. Because the physical evidence did not contradict or disprove Chelsea's statements that she saw Pinal punch Y.M., the evidence that Y.M. had no visible injuries after the first 911 call simply raised an issue for the jury to resolve in deciding how strongly to credit Chelsea's statements. As part of that credibility determination the jury could consider the evidence, subsequently presented at trial, that when the officers responded after the second 911 call, they saw Y.M. on the floor with her hands in a defensive position, covering her face. If Y.M. took the same defensive position while Pinal was punching her during the first 911 call, it is possible that Pinal's punches may not have reached her face in a way to cause visible injury.
As Pinal points out, one factor that a trial court should take into account when determining the probative value of a prior act of domestic violence is "the degree of certainty of its commission" (Falsetta, supra, 21 Cal.4th at p. 917). Here, because Chelsea's statements on the recordings are the only evidence that Pinal punched Y.M. during the first altercation, the probative value of that prior act of domestic violence is not as strong as it would be if corroborating evidence existed. However, because the evidence was otherwise so highly probative for the reasons that the trial court identified and that we have discussed above, the trial court was well within its discretion to conclude that despite any reduction in probative value due to the conflicting evidence as to whether Pinal actually punched Y.M. in the face as Chelsea stated, the evidence still had significant enough probative value to justify its admission under Evidence Code section 352.
The second issue we consider in conducting the balancing required by Evidence Code section 352 is whether Chelsea's statements were unduly prejudicial. " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " ' " (People v. Scott (2011) 52 Cal.4th 452, 491.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638.)
Pinal argues that the statements were prejudicial because they "tend[] to evoke an emotional bias against the defendant." Although Pinal does not develop his argument, we understand him to contend that the jury would have a negative reaction to evidence that he punched Y.M. because of the nature of that conduct. Pinal's argument lacks merit. When a defendant's prior bad acts are "no more inflammatory than the very acts with which defendant was charged," admission of those prior acts are not unduly prejudicial. (People v. Williams (2008) 159 Cal.App.4th 141, 147; see also People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 ["in view of the fact that the subject evidence involved defendant's history of similar conduct against the same victim, the evidence was not unduly inflammatory"].) Because the act of punching Y.M. in the face in a manner that did not cause any visible injury is no more inflammatory than the act for which Pinal was being prosecuted, namely punching Y.M. in the face and causing visible injury, the trial court was within its discretion to conclude that it would not cause undue prejudice for the jury to hear evidence that Pinal punched Y.M. during the first 911 call.
Pinal also contends that there was a high likelihood that "the jury would be confused or distracted by this evidence . . . because it occurred immediately before the charged incident and involved accusations [Pinal] punched [Y.M.], and thus the jury could easily confuse the uncharged incident with the charged one." We reject this argument. In light of the instructions to the jury about the elements required to convict Pinal in count 1, there was no reasonable possibility that the jury would have confused the two incidents by relying on the altercation that occurred during the first 911 call to convict Pinal. Specifically, the jurors were instructed that to convict Pinal of violating Penal Code section 273.5, subdivision (a), they must find, among other things, that "the defendant willfully and unlawfully inflicted physical injury" and "the injury inflicted by the defendant resulted in a traumatic condition." A traumatic condition was defined for the jury as "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." Here, because there was no evidence of injury to Y.M. as a result of the punches that Chelsea described in her recorded statements, it is unlikely that, in confusion, the jury would have based their verdict on the evidence that Pinal punched Y.M. during the first altercation rather than on the evidence that Pinal punched and injured Y.M. after the officers responded to the second 911 call.
In sum, we conclude that, pursuant to Evidence Code section 352, in balancing the probative value of the excerpts from the recordings in which Chelsea stated that she saw Pinal punch Y.M. against any undue prejudice to Pinal from that evidence, the trial court was well within its discretion to conclude that the evidence should be admitted.
Pinal also argues that because the evidence should not have been admitted pursuant to Evidence Code section 352, the admission of the evidence also violated his federal right to due process. As we conclude that the evidence was properly admitted under Evidence Code section 352, the premise for Pinal's due process argument has not been established, and we therefore reject it. --------
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: MCCONNELL, P. J. BENKE, J.