Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF005655, F. Paul Dickerson III, Judge. Affirmed.
Kristin A. Erickson, 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, Ronald Jakob, Jennifer A. Jadovitz and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant James Clayton Nelson was found guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), two counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), infliction of corporal injury on a child (Pen. Code, § 273d, subd. (a)), willful harm to a child (Pen. Code, § 273a, subd. (a)), and infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). On February 9, 2007, he was sentenced to state prison for a total term of seven years. Defendant appeals, contending the trial court erred in admitting prior acts evidence pursuant to Evidence Code section 1101, subdivision (b), and the prosecutor committed misconduct. Alternatively, he argues ineffective assistance of counsel. Rejecting defendant’s contentions, we affirm.
All further statutory references are to the Evidence Code unless otherwise indicated.
I. FACTS
On October 13, 2003, Riverside County Sheriff’s Deputy Todd Tiehen interviewed defendant’s daughter, K.N., who was then 17 years old, at the home of Mrs. T. and her daughter, Kr. (the T.’s). Kr. was K.N.’s friend. Mrs. T. had called the sheriff’s department after K.N. had told her and Kr. about defendant’s attacks on K.N. and her mother, L.N. In the interview with Deputy Tiehen, K.N. described defendant’s October 11 attack on her mother. Defendant and K.N.’s mother got into an argument in the front yard of their house about his affair with another woman who was possibly pregnant with his baby. The argument turned physical. When defendant grabbed L.N. around the neck and swung her around, K.N. ran outside to confront him. K.N. punched defendant in the face, but he refused to let go of L.N. Other family members intervened and forced defendant to release L.N. K.N. ran back inside the home, retrieved a knife, returned to defendant, and threatened him with it.
After telling the deputy about defendant’s attack on her mother, K.N. described defendant’s October 13 attack on her. Around 1:00 a.m., K.N. was in her bedroom watching television when defendant came in and began arguing with her. The argument became physical when defendant “grabbed [K.N.] around her neck and back-handed her across the face.” He grabbed her arm, twisted it behind her back, and applied pressure, causing pain to her shoulder. Defendant hit or slapped K.N. more than once. He knocked her to the floor, put his hand over her mouth and nose, and began to smother her. She could not breathe and felt like she was “about to go unconscious.” She thought she was going to die. Her arms and legs went limp. L.N. entered the room and told defendant to get off K.N., and he did. When K.N. made a comment to defendant, he walked over to her and slapped her across the face, causing her to fall back down to the floor. He then picked her up by her head and twisted it “sideways.” Defendant’s brother entered the room and managed to get defendant off K.N. Defendant said, “‘Let me kill her Bob. Let me kill her.’”
Deputy Tiehen noticed that K.N. had scratches and bruises on her face, neck and shoulder area. He photographed the bruises, some of which appeared to be consistent with her being choked. K.N. said that she received the bruises from defendant.
After talking to K.N., Deputy Tiehen talked to L.N. by telephone. L.N. confirmed that she had been involved in an altercation with defendant on October 11. She said that she wanted help. The deputy went to the family home. L.N. described her marital relationship as strained because defendant had been having an affair with another woman who was pregnant with his child. She described the October 11 altercation, which became physical when defendant grabbed her by the neck and then tried to choke her. K.N. intervened by punching defendant, and then other friends and family members got involved and tackled defendant to the ground. The Riverside County Sheriff’s Department was called to investigate the altercation. While talking to Deputy Tiehen, L.N. was emotionally upset. She explained that she had initially told the responding deputies there was no physical altercation because she was afraid defendant would retaliate. Defendant had previously warned her that if she got him in trouble, he “‘would get her.’” Regarding defendant’s attack on K.N., L.N. stated that she was asleep but woke up when she heard a noise. She went to K.N.’s room and saw defendant’s brother intervening between the two.
K.N. was interviewed again on October 14, 2003, by Detective Peter Wittenberg. The interview was taped and played for the jury. K.N. reiterated to Detective Wittenberg what she previously had told Deputy Teihen about the altercations between defendant and L.N., and defendant and herself. As K.N. spoke to Detective Wittenberg, she was “visibly upset.” Detective Wittenberg saw swelling on both sides of her face and what looked like finger marks. The detective noticed bruising, abrasions, and scabbing that K.N. said were caused by defendant’s attack on her. Following the preliminary hearing, K.N. recanted her version of the altercation.
At trial, K.N. could not recall what she had told the detective.
L.N. was interviewed by Sergeant Scott Madden. The interview was tape recorded and the tape was played for the jury. L.N. denied that defendant had beaten her. The sergeant noticed the scratches and marks on L.N.’s neck and throat, which were consistent with the statement that she was “grabbed.”
Tracey West, L.N.’s employer, confirmed that one day in October 2003, L.N. had called and asked for the day off after telling West about a domestic violence disturbance. West called the police. She spoke with Detective Wittenberg and asked him to conduct a welfare check on L.N.
At trial, both K.N. and L.N. were reluctant witnesses. K.N. claimed that her accusation against defendant was a plan to get the police to make defendant leave the family. L.N. also denied many of the things she told the officers, claiming she had lied or could not recall what she had previously said. Regarding K.N., L.N. testified that K.N. was the aggressor and defendant only held her in an effort to calm her.
Defendant testified on his own behalf. He admitted having two prior 1992 convictions for assault by means of force likely to produce great bodily injury relating to domestic violence. One of the crimes was committed against L.N., the other involved defendant’s ex-girlfriend.
Regarding the October 11, 2003, altercation with L.N., defendant denied physically slapping her, punching her, or putting his hands around her neck. He claimed he was trying to restrain her so that she would listen to him as he explained that the affair was over and the other woman was not pregnant. He admitted that he “grabbed [L.N.] by the collar” and K.N. came out and punched him. He explained that he was trying to calm K.N. down when her boyfriend and others intervened. K.N. pointed a knife at defendant and threatened to kill him. Defendant and L.N. then went inside the house, where they talked. The police arrived and defendant told them about the altercation. When the police asked him to leave, he did.
Regarding the incident with K.N., defendant admitted going in her room around 1:00 a.m. to check on her. When he turned off her television, she became angry and attacked him. He testified that he tried to hold her hands and calm her down. He denied trying to choke her or threatening to kill her. Eventually, defendant’s brother came into the room and convinced defendant to leave the room. As defendant was leaving K.N.’s room, L.N. entered.
At some point, defendant overheard L.N. talking to the police. She said that they were coming to the house to do a follow-up. Although defendant temporarily left the house, when he returned, the officers handcuffed and arrested him. Defendant denied threatening K.N. that she should not testify against him. Defendant claimed he never hit his children and that nothing happened the way K.N. claimed it happened.
Evidence of defendant’s prior conduct in June 1992 against L.N. was introduced. However, at trial, L.N. denied the prior conduct or could not recall what had happened. Also, she lied about who assaulted her, claiming that it was another man named Howard Wright.
II. EVIDENCE OF PRIOR UNCHARGED CONDUCT
Defendant contends the trial court erred in admitting evidence of his prior uncharged conduct pursuant to section 1101, subdivision (b).
A. Background
Prior to trial, the People filed a trial brief wherein they sought to admit evidence of defendant’s prior conduct pursuant to sections 1109 and 1101, subdivision (b). At the hearing, defense counsel argued that the evidence was inadmissible to prove the elements of count 1 (attempted murder) and that the prior conduct had occurred over 10 years prior to the incidents in this case. Counsel also raised concerns that the presentation of the evidence would result in an undue consumption of time. Acknowledging the time limitation in section 1109, the prosecutor argued that the evidence was admissible under section 1101, subdivision (b). Regarding the concern for the undue consumption of time, the prosecutor replied that only two witnesses would be called to present evidence.
The trial court found that the evidence was not admissible under section 1109 because the incidents happened more than 10 years prior to the instant case; however, the court did find that the evidence could be admitted under section 1101, subdivision (b). The court found the evidence was “highly probative of [defendant’s] motivations to dominate and control the women in his life through violence and intimidation....” Pursuant to section 352, the court found the evidence was “highly probative and would not constitute a danger of undue prejudice given the nature of the injuries in those cases are comparable or less severe to those in the instant case.” Because one of the witnesses was already going to testify, the court observed there was no undue consumption of time.
Furthermore, the court found the evidence was admissible to prove motive and lack of mistake on defendant’s part. “It appeared that there may be some defense on the part of the defendant that he was defending himself against the victims in this case. So it appears that proof of lack of mistake or how the defendant was acting could be a point of contention, whether he was the aggressor or whether he was not the aggressor. Because that’s going to be an issue in the case. Lack of mistake is also going to be brought in. So I’m going to allow it under [section] 1101[,] [subdivision] (b) for that as well.” The court ruled the evidence was not admissible to show intent.
Later, during L.N.’s examination, there was a discussion as to whether defendant’s prior conduct could also be admissible as relating to L.N.’s credibility. Specifically, L.N. initially denied that defendant was the person who had beaten her. Instead, she claimed it was someone else named Howard Wright. Given L.N.’s false statements about the prior incident with defendant, the trial court ruled that she could be considered a hostile witness and that the incident was admissible for impeachment purposes.
Although defendant admitted he had two prior assault convictions resulting from two separate incidents of domestic violence, the People only presented evidence of the incident involving L.N. In June 1992, L.N. was treated by Dr. Walter Combs for injuries inflicted on her by her boyfriend. She told the doctor that she was abducted, taken to the mountains, and repeatedly beaten. Her boyfriend used his fists and a pole to hit her in the jaw, eye, arms, stomach, and legs. He strangled her with a shoestring and stockings. L.N. had multiple bruises, which were observed by Dr. Combs. When interviewed by the responding deputy, L.N. said her current boyfriend had caught her talking to her ex-boyfriend and became angry with her. He said he was going to wrap her up in rags, soak her with gasoline, take her out in the hills, and set her on fire. The boyfriend forced L.N. into a car and took her to a secluded area. He brought gasoline and rags with him. He beat her, brought her back to their residence, and continued to beat her there. At some point, L.N. “became unconscious.” L.N. told the deputy that she did not want her boyfriend prosecuted and that she would not testify against him. She also refused to have the deputy photograph her injuries. Defendant was later identified as L.N.’s assailant and then charged and convicted of the assault.
B. Standard of Review
Evidence of a defendant’s uncharged criminal acts is admissible when it is relevant to prove some fact at issue, such as knowledge, intent and absence of mistake, and the probative value of the evidence is not substantially outweighed by its prejudicial effect. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Tapia (1994) 25 Cal.App.4th 984, 1020-1022; People v. Simon (1986) 184 Cal.App.3d 125, 129; § 1101, subd. (b).) We review “the trial court’s determination that the probative value of the other crime outweighed its prejudicial effect” under the abuse of discretion standard. (People v. Tapia, supra, at p. 1021; People v. Cole (2004) 33 Cal.4th 1158, 1195.)
C. Discussion
Defendant argues that the trial court abused its discretion in admitting the subject evidence because the same parties (with the exception of L.N.) were not involved in the previous incidents of domestic violence. (People v. De Moss (1935) 4 Cal.2d 469, 473 [defendant committed prior acts of violence upon wife and family before he murdered wife]; People v. Chaves (1898) 122 Cal. 134, 143 [defendant quarreled with girlfriend five days before he murdered her]; People v. Zack (1986) 184 Cal.App.3d 409, 414-415 [stormy two-year romantic relationship between defendant and decedent]; People v. San Nicolas (2004) 34 Cal.4th 614, 668 [admission of evidence of defendant’s abuse of his wife prior to raping and murdering her and her niece]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613 [marital discord and jealousy culminated in defendant brutally torturing, beating and strangling his wife].) The cases defendant cites have one thing in common, namely, “the accused in the charged case and the victim in the charged case were the same parties involved in the previous incidents.” Because such was not the case here, defendant contends the evidence was propensity evidence, not evidence of a motive to dominate or control women in general. He argues that “[a] motivation to dominate or control women in general is merely another way of saying a person has a propensity to be controlling towards the women in his life.” We disagree.
Although the subject incidents may have been prejudicial and old, they involved circumstances similar to those in the instant case. All of defendant’s acts showed him to be a jealous, controlling, possessive and violent person when others interfered with his intimate relationships with women. In his prior conduct involving the ex-girlfriend, defendant admitted that she was his ex-girlfriend and his conviction was for domestic violence. In his prior conduct involving L.N., the evidence showed that he became jealous and beat her up upon learning that she had been talking to an ex-boyfriend. According to the People, defendant’s prior conduct was extremely relevant and probative of his motive to dominate and control the women in his life through violence and intimidation. The People fault defendant for confusing motive with criminal propensity. In the current instance involving L.N., defendant was caught having an affair. L.N. indicated her intent to leave defendant, and he resorted to using force in order to get her to listen to him and change her mind. K.N. intervened and brought family and friends with her. Even though L.N. chose to stay with defendant, he had to spend the night away from her and his home. When he returned the next night, he confronted K.N. Defendant ended his attack on her only when his brother was able to pull him off.
As the People argue, defendant hated the idea of L.N. leaving him and his family being disrupted. While he may have had L.N. in control after his confrontation with her, he did not know whether or not he had K.N. in control. Thus, he had to make sure that he did have her in control. According to the People, defendant’s “motive was to beat his wife and daughter into submission. In light of [K.N.’s and L.N.’s] conduct at trial, [defendant] succeeded.” We agree.
Even if the trial court erred in allowing the evidence, such error was harmless. The evidence of defendant’s actions against L.N. and K.N. was ample. Beyond the testimony of the witnesses, there was evidence of the physical marks defendant left on them. It is not reasonably probable the jury would have reached a result more favorable to defendant had the bad acts evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Moreover, it should be noted that defendant’s prior conduct involving L.N. was admissible for impeachment purposes. Because L.N. recanted her story at trial, she became a hostile witness. As such, the People were entitled to bring in evidence of defendant’s prior attack on her and the fact that she lied in order to cover up for him.
III. PROSECUTORIAL MISCONDUCT
Defendant’s next contention is that “[m]ultiple instances of prosecutorial misconduct occurred during closing argument and during the prosecution’s redirect examination of [Detective] Wittenberg.” A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
A. Closing Argument.
Defendant claims the prosecutor “accused defense counsel of underhanded methods and/or fabrication of evidence.” As one example, defendant points to the prosecutor’s reference to K.N.’s claim that she did not tell anyone her name was Maria. Specifically, the prosecutor said: “K.N. is a good liar? Even K.N. told us, when I was asking her questions: Question, ‘What else have you lied to us about?’ Remember when we caught her on that lie about she told us, no, I never told anyone my name was Maria, and then it took [defense counsel] talking to her at lunch, talking about what she had testified to before regarding this Maria thing, and then they talked about what she was going to testify to later when they got back from lunch.” Defense counsel’s objection on grounds of assuming facts not in evidence was overruled. The prosecutor continued, “The defense wants you to believe she’s a good liar?” He pointed out the other instances when she contradicted herself. He also pointed out L.N.’s contradictions.
The prosecutor’s argument was in rebuttal to defense counsel’s argument that K.N. was a good liar. The prosecutor was referring to defense counsel’s examination of K.N. before and after lunch regarding K.N.’s claim that she was beaten up by a Hispanic man in a white van. Following lunch, defense counsel clarified her testimony.
“Q. [Defense Counsel:] [K.N.], we spoke for a couple minutes after— during the lunch break, correct?
“A. Yes.
“Q. You lied earlier, didn’t you? About something?
“A. Yes.
“Q. What did you lie about?
“A. About the D.A. coming to the house.
“Q. Okay. In other words, when he asked you whether or not somebody came to the door, and you answered the door, you said that wasn’t you?
“A. Yes.
“Q. Was that you?
“A. Yes.”
In response to defense counsel’s argument that K.N. was a good liar, the prosecutor argued that she was not a good liar. As demonstrated above, defense counsel had to remind K.N. of her prior testimony during the lunch break. Given defense counsel’s closing argument, the prosecutor was justified in making the argument that “even the [N.’s (K.N. and L.N.)] themselves couldn’t get their lies straight.” There was no misconduct.
Next, defendant faults the prosecutor for arguing that the “defense’s presentation of evidence that the T.’s owed the N.’s money was a ‘shoddy’ attempt to smear Mrs. [T].” Defendant further faults the prosecutor for encouraging the jury to “disregard the ‘defense strategy’ which he [the prosecutor] implied was a fabrication.”
The prosecutor’s argument was as follows:
“And remember the shoddy way that the defense tried, tried to smear Mrs. [T.] after she got done testifying? Remember what the defense did? They immediately put [L.N.] up, who already told us that she had lied under oath before, they put [L.N.] up and get [L.N.] to talk about some money that the [T.’s] owe? That—oh, yeah, one of those things that Mrs. [T.] said that [L.N.] told her is as [sic] they were outside near the pool at the [T.] [h]ome, ah, yeah that conversation never happened. That was the best they could do with Mrs. [T.].... You’d have to disregard the defense strategy. Remember what Mrs. [T.] said, in the recent past [K.N.] went over to her house, and they’re talking, and the issue of this case came up between Mrs. [T.] and [K.N.], to the point where Mrs. [T.] was asking, ‘Hey, aren’t you worried about... my testimony? I mean, I know what you said back in October of ’03, aren’t you worried about my testimony?’ Remember what [K.N.] told her? ‘No, we’re not worried about your testimony, because we have a defense strategy. I’m going to go get on the stand and I’m going to say that I lied to you, to all of you.’ She didn’t say this was [K.N.]’s strategy, she didn’t say this was the defendant’s strategy, she didn’t say it was [L.N.]’s strategy, this was the defense strategy. You’d have to completely disregard that if you vote not guilty. And, most importantly, you’d have to believe the testimony of the [N.’s] which, given all the lies, I don’t see how that’s even possible.”
Defense counsel never objected to the prosecutor’s argument. Such failure to object at the trial level forecloses his claim on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 952.) Even if the matter had been preserved on appeal, we conclude that the prosecution’s argument as a whole was accurate. Regarding the T.’s owing money to the N.’s, the following questioning of Mrs. T. answered that claim:
“Q. Okay. At some point, your daughter went to orientation with [K.N.]?
“A. Yes.
“Q. How did your daughter get there?
“A. By airplane.
“Q. Who paid for that?
“A. I did.
“Q. Didn’t the Nelsons pay for that and you?
“A. I think [L.N.] put it on her credit card, and we paid—I paid her, because it was a time-was-of-the-essence thing.
“Q. So you don’t still owe her like $600?
“A. No, I do not.”
As for the comment about the “defense strategy,” Mrs. T. was asked about her conversations with K.N. prior to the trial:
“Q. We talked about one [(conversation)]. Can you tell us about the other?
“A. Within the past three to four months, I would say, [K.N.] came to my house to visit. We hadn’t had discussions in a while about the case, and I thought that was a little strange that she wasn’t talking to me about it.
“I said, ‘Hey, how’s the case going? Is it—something happen?’
“She said, ‘Um, no.’
“And I said, ‘Well, I’m a little concerned about testifying,’ and you know, ‘When is this going to happen?’
“She said, ‘You and [Kr.’s] testimony is not important anymore.’
“Q. Did you ask her what she meant by that?
“A. Yes, I did. I said, ‘Well, why not?’
“She said, ‘The defense already has a strategy for you.’
“Q. Did she explain what the defense strategy was?
“A. Yes, she did.
“Q. What did she say?
“A. She told me that they were going to have [Kr.] and I testify and tell the truth as we know it, but that she was going to testify that everything she told us was a lie.”
B. Examination of Detective Wittenberg.
Defendant contends that the prosecutor committed misconduct when he elicited testimony from Detective Wittenberg regarding his personal belief that K.N. was telling the truth when she gave her original statement, as opposed to subsequent testimony. A review of the cited references reveals that the prosecution elicited testimony from Detective Wittenberg about his belief that K.N. was telling the truth when she was first interviewed by him and when she first told the T.’s what had happened to her. Defendant argues that such testimony amounted to “improper vouching.” We agree. (People v. Melton (1988) 44 Cal.3d 713, 744 [a lay witness’s opinion about the veracity of another person’s particular statements is inadmissible and irrelevant on the issue of the statements’ credibility]; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.)
Having concluded that the trial court erred in allowing the testimony, we now consider whether it is reasonably probable that a result more favorable to defendant would have been reached had this evidence not been admitted. (People v. Sergill, supra, 138 Cal.App.3d at p. 41; People v. Watson, supra, 46 Cal.2d at p. 836.) The evidence against defendant was strong, despite the fact that both K.N. and L.N. recanted their stories. In addition to the initial interviews with K.N. and L.N., there were the testimonies of Mrs. T. and her daughter, and those who saw the bruising on K.N. and L.N. There was substantial corroborating evidence of defendant’s attacks on his wife and daughter. Accordingly, the introduction of the challenged evidence, even if erroneous, was harmless.
IV. DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.