Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F07908105; F08902205. Ralph Nunez, Judge.
Sylvia Koryn, 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, Stephen G. Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Appellant/defendant Carlos Ochoa was charged with committing the following felony offenses in July 2007, during a two-day domestic violence conflict with his girlfriend, L.G.: count I, corporal injury to a cohabitant with three prior domestic violence convictions (Pen. Code, § 273.5, subd. (e)); count II, kidnapping (Pen. Code, § 207, subd. (a)); count III, criminal threats (Pen. Code, § 422); count IV, false imprisonment by violence (Pen. Code, § 236), with the special allegation that defendant personally used a deadly weapon, a knife (Pen. Code, § 12022, subd. (b)(1)); count V, forcible rape (Pen. Code, § 261, subd. (a)(2)); and count VI, kidnapping (Pen. Code, § 207, subd. (a)). It was also alleged defendant had one prior serious felony conviction (Pen. Code, § 667, subd. (a)), one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)), and served one prior prison term (Pen. Code, § 667.5, subd. (b)).
Defendant was separately charged in an unrelated case with one count of custodial possession of a weapon, a shank, by a prisoner (Pen. Code, § 4502, subd. (a)), with one prior strike conviction.
After a jury trial on the domestic violence charges, defendant was convicted of count I, corporal injury; count III, criminal threats; and count IV, false imprisonment by violence; the jury found the deadly weapon allegation was not true. Defendant was found not guilty of counts II and VI, kidnapping, and count V, forcible rape. He pleaded no contest to possession of a weapon by a prisoner. He was sentenced to the second strike term of 16 years in prison.
On appeal, defendant contends the court improperly admitted evidence of his prior domestic violence incidents with other women, pursuant to Evidence Code section 1109. Defendant also contends the court improperly instructed the jury as to the consideration of that evidence. Defendant asserts the court abused its discretion when it permitted the prosecution to introduce a letter of apology which he wrote to the victim while the instant case was ending. He further contends the court should have given an instruction on a misdemeanor crime as a lesser included offense. The parties have also requested this court to review the record and determine whether the court found all the prior conviction allegations true. As we will explain, we will remand the matter for further appropriate findings as to the truth of the prior conviction allegations, and otherwise affirm.
In lieu of a notice of appeal, defendant filed a letter in superior court requesting appellate review of his convictions. This court deemed the letter as a notice of appeal from both the domestic violence and weapons cases.
FACTS
Defendant was charged with kidnapping, assaulting, threatening, and raping his former live-in girlfriend, L.G. The charged offenses were based on a two-day domestic violence conflict in July 2007. He was convicted of corporal injury, criminal threats, and false imprisonment, and found not guilty of kidnapping and forcible rape.
The prosecution also introduced evidence about the nature of the relationship between defendant and L.G. and their previous history of domestic violence, which were not the basis for any charged offenses. In addition, the prosecution introduced evidence about defendant’s prior acts of domestic violence committed against two other girlfriends, in the years immediately preceding his relationship with L.G.
We will begin by reviewing the evidence regarding defendant’s relationship with L.G. We will then address the evidence regarding the charged offenses and note the outcome of the charged offenses based upon L.G.’s testimony.
L.G.’S RELATIONSHIP WITH DEFENDANT
In 2001, L.G. and defendant met each other and dated a few times. They met again in 2006 and began a romantic relationship. They also used marijuana and methamphetamine together. Defendant often slipped into L.G.’s house and spent the night without her mother’s knowledge. L.G.’s mother did not like defendant, and threw L.G. out of her house when she learned about their relationship. In August 2006, L.G. moved into defendant’s residence in Mendota. L.G. lived there with defendant, his mother, and his adult siblings.
L.G heard that defendant was a “bully” and beat women. L.G. was not concerned about the stories, however, because defendant said his previous girlfriends started the fights and caused the problems. L.G. believed his explanation.
L.G. testified that after they started living together, defendant began to intimidate and threaten her. He also became physically violent toward her. A few months after L.G. moved in, she told defendant that she was going to a relative’s house. Defendant did not want her to leave, they argued, and defendant hit her. L.G. was only able to visit her family when defendant was not around, and he became angry if he found out about her visits. Defendant’s behavior became more aggressive after he used methamphetamine, but he also acted that way even when he did not use drugs. L.G. also used methamphetamine, and defendant provided her with the drugs.
L.G.’s prior conviction for domestic violence
Prior to meeting defendant, L.G. had been married to another man for ten years. L.G. testified that her previous husband physically and emotionally abused her. In 2000, L.G.’s previous husband hit her, L.G. swung a knife at him, and she inflicted minor wounds on him. L.G. was arrested and later pleaded guilty to what she thought was a misdemeanor offense for stabbing her then-husband. She was placed on probation and ordered to complete a batterer’s program. L.G. failed to enroll in the program and violated probation, and she knew that a warrant was issued for her arrest.
After she moved in with defendant, L.G. told him about her prior conviction and the outstanding arrest warrant. As a result, defendant would threaten to call the police on L.G. during their arguments. L.G. testified that defendant knew she would not call the police even when he hit her: “He would say, ‘Call the cops right now. You’re going to get taken in any ways.’ That’s what he would tell me so I just wouldn’t say anything.” L.G. never called the police because she believed defendant’s threats, that she would be arrested on her warrant.
Defendant’s prior violence and threats
L.G. testified that defendant hit her and gave her black eyes on two different occasions. However, L.G. testified that “[e]very time he hit me, I would hit back.” L.G. admitted that she would shove, slap, and bite defendant during their arguments. L.G. started to suspect that defendant was seeing other women. When they argued, defendant told L.G. to shut up or he would “break” her face. L.G. was frightened by his threats.
L.G. never called the police for help because she believed defendant’s statement that she would be arrested on her outstanding warrant. L.G. felt she could not ask defendant’s family for help because she thought they would take his side. She asked her mother if she could move back in the house, but her mother refused. On several occasions, L.G. packed her belongings and tried to leave, but defendant apologized and convinced her to stay.
L.G. testified she stayed with defendant because she loved him and he was not always violent. L.G. explained that he could be “okay one moment, then the next snap. Like he would just get mad…. I don’t know. He would just like blow up.” At trial, L.G. testified that she still cared for defendant. “I don’t know how to explain it. I can’t stop caring for him even though he did what he did to me. I just can’t.”
L.G. moves out and her mother calls the sheriff’s department
In February 2007, L.G. moved out of defendant’s house and her mother allowed her to move back. In late June or early July 2007, L.G. ended her relationship with defendant. L.G. told defendant their relationship was over but he could not accept it. Defendant repeatedly drove in front of her mother’s house to see if L.G. was there.
At trial, defendant testified that he was in prison from January 2007 to May 2007.
On June 28, 2007, L.G.’s mother called the sheriff’s department and reported that defendant was parked in front of her house and she did not want him there. Fresno County Sheriff’s Deputies Manriquez and Richards responded and spoke to defendant. Defendant was angry and said he was there to visit L.G. Defendant said that L.G. had a felony arrest warrant, she was on “Crime Stoppers, ” and she was inside the house. Defendant also claimed to be out of gas. The deputies searched defendant’s car and did not find any weapons. They asked defendant to leave or the car would be towed, and defendant drove away.
After defendant left, the deputies confirmed the existence of L.G.’s arrest warrant. They tried to contact her in the house. L.G.’s mother said she was not home, and she refused permission for the deputies to look for her inside the house. L.G. testified she did not talk to the deputies that day because she was worried about her outstanding warrant.
THE CHARGED OFFENSES
The charged offenses in this case were based on a series of events that occurred from July 15 to 17, 2007. We will review L.G.’s testimony about the incidents and identify the outcome of the charged offenses, which were based upon her specific testimony.
Defendant arrives at L.G.’s house
On the evening of July 15, 2007, defendant drove to the house of L.G.’s mother. L.G. was sitting outside and tried to go inside. Defendant said he just wanted to talk to her. L.G. told defendant their relationship was over. L.G. testified that defendant did not like what she said, and he “snapped” and became a different person.
Defendant asked L.G. to get in his car. L.G. refused. She testified that defendant became angry and told her to get in the car “‘or I’m going to get you in.’” L.G. testified she got into defendant’s car because he intimidated her and she did not have a choice. She also did not want to cause a scene because her mother did not like defendant. L.G. did not cry or scream for help.
Defendant started driving and they argued about splitting up. L.G. testified that defendant was “ranting and raving, ” and said he thought L.G. still loved him. L.G. asked defendant to take her home. Defendant refused and told her to shut up. He said they were going to the “pool park” in Mendota.
The incident at the canal
L.G. testified they arrived at the deserted park in the early morning hours of July 16, 2007. The park was located next to the Mendota canal. Defendant and L.G. got out of the car and they continued to argue. L.G. walked away from defendant and said she was going home.
Defendant was charged with count II, kidnapping, based on L.G.’s testimony that she got into defendant’s car because he threatened her, she was scared of him, and he would not let her go home. He was found not guilty of this offense.
Defendant ran after L.G., picked her up from behind, and started to carry her to the car. L.G. told defendant to put her down. L.G. testified defendant “swung” her into the canal and she fell into the water. L.G. testified defendant knew she could not swim. L.G. fell below the water and repeatedly cried for defendant to help her. L.G. testified defendant just stood there and looked at her in the canal. He had a “crazy” or “smug” look on her face.
L.G. struggled in the canal for about five or six minutes as defendant watched her. L.G. was eventually able to crawl out by digging her fingers into the muddy canal bank. L.G. was wet and covered with mud when she got out of the canal. L.G. got back into defendant’s car and said she wanted to go home. L.G. was crying and told defendant she could not believe what he did. L.G. testified that defendant acted as if she deserved it.
Defendant was not charged with a specific offense for throwing L.G. into the canal, but the prosecutor argued his actions at the pool park were part of count II, kidnapping, because he refused to let her go home.
The shower incident
L.G. testified defendant refused to take her to her mother’s home, and instead drove her to his own house. They went into the bathroom and L.G. got into the shower with her clothes on. She tried to wash the mud off of her. Defendant wanted to have sex with her but she refused. Defendant got into the shower with L.G. and removed her clothes. L.G. held onto her clothes and made him get out of the shower.
L.G. testified she closed the shower curtain and again tried to wash off the mud. Defendant opened the curtain and he was naked. L.G. knew he wanted to have sex. She told him to get out of the shower because it “‘was not going to happen.’” Defendant removed her clothes and pulled down her underwear. L.G. again told him that it was “‘not going to happen.’” L.G. testified that defendant “bent me over” and penetrated her vagina with his penis. L.G. tried to stand up, but defendant held her down as he performed the sexual act.
Defendant was charged with count V, forcible rape, based on L.G.’s testimony about the sexual assault in the shower. He was found not guilty of this offense.
L.G. testified that she got out of the shower and defendant gave her some clean clothes. She kept asking defendant to take her home. Defendant became angry and told her to shut up. Defendant led L.G. into his bedroom and they got on the bed. L.G. testified she went “with the flow” and had sex with defendant, because she felt she had no choice and thought defendant would hit her if she refused.
L.G. testified that she did not want to have sex with defendant in the bedroom but did so anyway. Defendant was not charged with any offense based on that incident.
After they had sex in the bedroom, L.G. got dressed and defendant drove her home around 4:00 a.m. on July 16, 2007. L.G. did not tell her family what happened, and she did not call the police because of her outstanding warrant.
Defendant again arrives at L.G.’s house
L.G. testified that around 11:00 p.m. on July 16, 2007, several hours after the incidents at the canal and defendant’s house, she was again sitting in her front yard. Defendant suddenly appeared and walked up to her. L.G. tried to go in the house. Defendant ran up to the house and held the door so she could not go in. Defendant said he would make a big scene, and he just wanted to talk to her. L.G. told defendant to leave. Defendant refused and ordered L.G. to get into his car, which he had parked a few houses away.
L.G. started to walk to her cousin’s house. Defendant followed in his car. He yelled and threw beer cans at her as she walked down the street. Defendant ran up to L.G., grabbed her, and tore off her blouse. Defendant gave his shirt to L.G. and she put it on. Defendant told her to get into his car. L.G. testified she got into defendant’s car because she wanted to avoid a scene, and she felt she did not have a choice.
Defendant was charged with count VI, kidnapping, based on L.G.’s testimony about how defendant forced her to get into his car on the second evening. He was found not guilty of this offense.
Defendant hits L.G. in the car
L.G. testified defendant drove away and they argued about whether he had a new girlfriend. L.G. grabbed defendant’s hat and threw it out of the car. Defendant stopped the car and retrieved his hat. L.G. was scared but she did not try to get out of the car. Defendant got back into the car and “backhanded” L.G. in the face. She suffered a fat lip and black eye.
Defendant was charged with count I, corporal injury to a cohabitant, based on L.G.’s testimony that he backhanded her in the face while they were in the car. He was convicted of this offense.
Defendant started driving again. L.G. was sitting in the front passenger seat. She repeatedly kicked defendant so he would let her out of the car. L.G. admitted that she might have kicked his face. Defendant hit her back. L.G. found a screwdriver in the car’s center console. She pointed the screwdriver at defendant and tried to scare him, but he kept driving.
Defendant’s threat about the gun
L.G. testified defendant drove to the same pool park where he had taken her the previous night. They argued about their relationship and L.G. told him to leave her alone. Defendant cried and said he thought she loved him. Defendant told L.G. that “he had a gun and he wasn’t afraid to use it.” Defendant said the gun was in the trunk. He got out of the car and tried to open the trunk, but he said that he could not unlock it. L.G. wasn’t sure if defendant really had trouble with the trunk or if he was lying about it. L.G. testified she was scared. She did not see a gun that night, but she had once seen a gun in defendant’s bedroom.
Defendant was charged with count III, criminal threats, based on L.G.’s testimony that defendant said he had a gun and knew how to use it. He was convicted of this offense.
The incident in defendant’s kitchen
L.G. testified defendant drove to his house. Defendant went into the kitchen and said he would make something to eat. L.G. kept telling him that she wanted to go home. Defendant became angry and told her to “shut up. He didn’t want to hear that again or he was going to break my face.” L.G. did not think that she could leave the house. She stood by the kitchen table, and they could see each other. L.G. thought defendant was peeling potatoes at the kitchen sink.
L.G. again said she wanted to go home. Defendant again told her to shut up. L.G. testified that he stopped what he was doing at the sink, and “he came at me with a knife and put it to my neck.” L.G. testified that she “felt something” against her neck. She never saw the object but she thought it was a steak knife. L.G. testified defendant held the object against her neck for about five seconds. He then “caught himself” as if he “couldn’t believe … what he was doing, ” and he started crying. L.G. was not injured and sat down. She was stunned about what he had done. Defendant asked if she wanted to eat, and L.G. said no.
Defendant was charged with count IV, false imprisonment by violence, based on L.G.’s testimony that she kept saying that she wanted to go home, defendant grabbed her, and he held something against her neck to prevent her from leaving. He was convicted of this offense, but the jury found the special allegation that he personally used a deadly weapon, a knife, not to be true.
L.G. testified that defendant’s brother arrived at the house, but L.G. did not tell him what was going on because defendant would have been mad. Defendant told L.G. to go into his bedroom because he wanted to hold her. L.G. did not want to but she did so anyway. They were on the bed together when defendant’s brother knocked on the door, and asked to use the bedroom because he had a girl with him.
Defendant and L.G. went into the living room. Defendant put some blankets on the floor. L.G. again said she wanted to go home. Defendant told her to shut up and lay down. L.G. obeyed him and they were on the floor. After awhile, defendant fell asleep and L.G. sneaked out of the house and ran home.
L.G.’s statement to Deputy Manriquez
L.G. testified she did not immediately call the sheriff’s department and report defendant’s physical and sexual assaults because she still loved defendant. L.G. went home and hid in her room because she did not want her mother to see her facial injuries. She later went to her cousin’s house and told her relatives about defendant’s conduct. L.G.’s aunt called the sheriff’s department and reported the domestic violence incident.
On the afternoon of July 17, 2007, Deputy Manriquez responded to the aunt’s house on the domestic violence dispatch. L.G.’s aunt tried to make the report. Manriquez said that he needed to talk to L.G. but the aunt said that L.G. did not want to talk to him. Manriquez provided his contact information and left. About 20 minutes later, Manriquez received a call to return to the house because L.G. was willing to speak with him.
Deputy Manriquez interviewed L.G. for over an hour about defendant’s conduct the previous two evenings. L.G. had a swollen lip, a black eye, bruises on both arms, and complained of back pain. Manriquez asked L.G. why she didn’t call the sheriff herself. L.G. replied she had a felony warrant and she was afraid they would take her away. As their conversation continued, L.G. realized that Deputy Manriquez was not going to arrest her. As a result, she started to tell him everything very quickly and aggressively. Manriquez testified that L.G. appeared to have had enough of defendant. She had decided to report defendant’s conduct because she wanted to get away from him. She was even willing to go to jail.
L.G.’s initial statement to Deputy Manriquez was slightly different than her subsequent trial testimony. L.G. said defendant appeared at her house on the first evening, grabbed her with both hands, pulled her by her hair, and forced her into his car. Defendant hit her face and back several times. Defendant drove to the pool park, pulled her out of the car by her hair, and threw her into the canal. L.G. said she asked defendant for help but he just stood there and looked at her. L.G. said she crawled out of the canal on her own.
L.G. said defendant drove to his house but she did not want to get out of the car. Defendant told her, “‘You got three seconds to get out or I’m going to break your face.’” She got out of the car because she did not want to deal with it.
Deputy Manriquez testified L.G.’s demeanor changed when she described defendant’s sexual assault in the shower. She cried and became more quiet and withdrawn. L.G. said defendant grabbed her by the hair and dragged her in to the shower. Defendant stood behind her, held down her head, and placed his penis in her vagina. L.G. said that immediately after the shower incident, defendant told her, “you’re the one that made me a stalker.” L.G. said she felt trapped and did not know how to escape from defendant.
Deputy Manriquez testified that L.G. also described defendant’s conduct on the second night, when he again appeared at her house. As in her trial testimony, L.G. said she tried to walk away but defendant threw beer cans at her. He grabbed her hair, ripped off her shirt, and forced her into his car. They argued in the car, he hit her in the face, and she kicked him. L.G. said she was too scared to get out of the car.
L.G. said that defendant told her that he had a gun and he was not scared to use it, but L.G. never saw a weapon that night. L.G. said that when they arrived at defendant’s house, she got out of his car because she was scared from his prior threats. L.G. said defendant fell asleep and she escaped from his house.
At the conclusion of the interview, Manriquez asked L.G. to submit to a rape examination at the hospital. L.G. refused and said she did not want to go through with it. Manriquez testified that he did not immediately arrest defendant for sexually assaulting L.G. because he mistakenly believed that he could not arrest him in the absence of a victim’s rape examination.
Later that same day, Deputy Manriquez contacted defendant and observed several recent injuries: a mark on top of his nose, a mark under his eye, red swelling on the back of his neck, and three puncture marks below the right knee. Defendant said L.G. inflicted the injuries.
The letter received by L.G.
In January 2008, while the instant case was pending, defendant mailed a letter to L.G.’s cousin, Sylvia, and asked Sylvia to give it to L.G. without her mother’s knowledge. Sylvia gave the letter to L.G., who recognized defendant’s handwriting on the envelope and in the letter. L.G. testified that in the letter, defendant “just [was] apologizing for lots of things.” L.G. testified the letter made her upset and had an impact as to whether she would testify in this case because he was “basically saying we need to be adults about it. We need to discuss what went on between us.” On the back of the envelope, defendant wrote: “‘Forgive me. Won’t you try.’” L.G. was surprised to get a letter from defendant and she could not believe that he wrote to her after what happened.
As we will discuss in section III, post, defendant contends the court abused its discretion by permitting the introduction of the letter and envelope.
EVIDENCE OF DEFENDANT’S PRIOR ACTS OF DOMESTIC VIOLENCE
It was stipulated at trial that defendant had four prior convictions for domestic violence: three misdemeanor convictions in November 1999, August 2000, and June 2005; and one felony conviction in December 2002.
The court permitted the prosecution to introduce the following evidence pursuant to Evidence Code section 1109, as to defendant’s prior acts of domestic violence against other women. The prior incidents occurred in the years immediately before he started living with L.G.
All further statutory citations are to the Evidence Code unless otherwise indicated.
In section I, post, we will address defendant’s contentions that the court abused its discretion when it admitted evidence of his prior acts of domestic violence.
S.S.
S.S. testified she was defendant’s girlfriend from 1997 to 2000, and he was the father of her child. S.S. testified they had a violent relationship. Defendant regularly grabbed her neck and shoulders, choked her, pulled her hair, and left bruises on her body. He also hit her with a hanger. S.S. testified these incidents happened “[a]ll the time. About every week, every two weeks.” S.S. broke up with defendant after the violence, but they always reconciled because he apologized and promised never to do it again. She didn’t believe his promises but reconciled with him anyway because it was hard to get away from him.
S.S. testified she called the sheriff’s department after domestic violence incidents about three times. One incident occurred in November 1999, when defendant arrived at the house and found S.S.’s friend holding their infant child. Defendant told that person to leave the child alone and threatened to fight. Defendant grabbed S.S. and inflicted bruises on her arms. S.S. testified another incident occurred in July 2000, when they argued and defendant put her into a headlock and choked her. S.S. fought back and kicked him, and he thought it was funny. S.S. got into her mother’s car and defendant spit at her. S.S. left him after this incident and moved to Iowa. S.S. admitted defendant helped her move.
S.S. testified that defendant later visited her in Iowa. He was jealous because she had a job and a new boyfriend. He wanted to reconcile and she refused. He spit into her face and threatened to take her child. At trial, S.S. testified she was scared and nervous to appear in front of defendant because he was violent.
P.P.
P.P. testified she dated defendant from 2001 to 2004, and they had a child together. Their arguments regularly led to physical violence. In March 2002, defendant and P.P. argued about whether he was cheating on her. P.P. testified she hit defendant, he hit her to defend himself, and she suffered bruises on her body and face. P.P.’s friend called the sheriff’s department and reported the incident.
P.P. testified about another physical altercation which occurred in January 2003, when she was pregnant and told defendant that he was not the child’s father. P.P. testified that defendant was upset and wanted to leave her. P.P. testified she pushed and slapped him to stop him from leaving. P.P. testified that defendant pushed and hit her, and held her arms to stop her from hitting him. She suffered a swollen nose and lacerations and bruises on her arm. P.P. denied that defendant kicked her stomach or threatened her and the baby.
P.P. testified that in May 2005, she was pregnant with defendant’s child and they were living in a trailer. P.P. testified that she provoked an argument and she stabbed defendant with a knife. Defendant hit her forehead and eye. P.P. called the sheriff’s department because she wanted to leave him, but she did not report that she stabbed defendant.
At trial, P.P. stated that she had never testified against defendant about any of the prior incidents because she felt she had provoked him into hitting her. P.P. did not want to testify against defendant in this case because she still loved him.
The prosecution introduced evidence of P.P.’s prior inconsistent statements about the domestic violence. Deputy Hubbard testified that he responded to the March 2002 domestic disturbance incident, and P.P. had bruises on her face and bite marks on her arm. P.P. was very upset and said defendant inflicted the injuries. P.P. repeatedly said she was afraid of defendant and he was on drugs. P.P. also said defendant previously hit and pushed her several times, but she never reported the prior incidents. P.P. never claimed to be the aggressor or said she hit defendant. The deputy also spoke to defendant, who said that P.P.’s bite marks were the result of mutual sexual intercourse. Defendant did not have any visible marks or report any injuries. Defendant admitted he had used methamphetamine the previous day.
Deputy Ortiz testified that he responded to the May 2005 domestic disturbance incident between defendant and P.P., when they were living in the trailer. P.P reported that defendant held her in the trailer against her will for three days, because he thought she would see someone else if she left. P.P. said she had enough and told defendant she was going to leave. P.P. reported that defendant became angry and punched her several times. P.P. had a bruised eye and lumps on top of her head. P.P. was visibly pregnant and appeared scared of defendant. P.P. said that she hoped she could still carry the baby after being hit. P.P. never said she tried to stab defendant, or that he injured her in self-defense.
Deputy Ortiz also spoke to defendant about the trailer incident. Defendant said P.P. tried to stab him and he was just trying to protect himself. Defendant did not report any injuries. Defendant said P.P. suffered the bruised eye because she fell down as she tried to stab him, and she hit her eye on the edge of the bed. Ortiz investigated the trailer and did not see any sharp edges on the beds that could have caused P.P.’s eye injury. Ortiz arrested defendant.
EXPERT TESTIMONY ON DOMESTIC VIOLENCE
Robert Meade, a marriage and family therapist, testified as a domestic violence expert. Meade explained the cycle of domestic violence consisted of (1) a loving “peaches and cream” time, (2) a tension-building phase when the victim says or does something that the batterer does not like, (3) an explosive phase involving tremendous verbal abuse and physical violence, and (4) a honeymoon phase when the batterer apologizes and offers to work things out, but blames the victim for causing the problems. The relationship becomes more violent as the cycle repeats itself.
Meade testified it was common for the batterer to claim that the victim was the aggressor. The victim may fight back and become more violent as the domestic violence continues. The batterer may also try to isolate the victim from family and friends, so the victim lacks support to leave the relationship. The victim often tends to minimize the abuse. The victim may leave the relationship but still claim to love the batterer, who may seem charming to the outside world.
DEFENSE EVIDENCE
Stacy Cordero, an investigator for the prosecutor’s office, interviewed L.G. in September 2007, and testified about L.G.’s prior inconsistent statements. L.G. said she did not have sex with defendant after he threw her in the canal and they went to his house. However, L.G. also said defendant forced her to have sex in the shower, that he forcibly bent her forward and sexually penetrated her. L.G. was upset and did not want to talk about the sexual assault in the shower. L.G. also said they had “consensual” sex after the shower incident. Cordero asked L.G. what she meant by “consensual, ” and L.G. said she went with it because she did not want to start a big fight. She did not want to have sex with him but she did not feel free to leave the house. L.G. also said that when defendant backhanded her in the car, she kicked him in the face and pinned his face against the car window.
Defendant’s trial testimony
Defendant admitted he had a prior felony conviction in 1998 for battery with serious injury and served a prison term. Defendant also admitted he pleaded guilty to one felony and three misdemeanors involving domestic violence. He was on parole when he was arrested in this case. Defendant admitted his nickname was “C Murder, ” but claimed it was simply a rap-music nickname from high school. Defendant also admitted he used to fight with S.S., and testified that S.S. stabbed him.
Defendant testified he had a violent relationship with L.G. He claimed the violence was mutual, she often tried to beat him up, and he just tried to protect himself. Defendant admitted an incident occurred in November 2006, when L.G. suffered a black eye, but claimed the injury was an accident. Defendant testified L.G. pushed him and he wanted to hurt her. He fell down, and her face accidentally hit his forehead.
Defendant testified he was in prison between January and May 2007, and L.G. stayed in contact with him. L.G. wrote numerous love letters, and said their previous fights were her fault because she could not control her anger. While he was still in prison, defendant advised L.G. that he was in contact with other women. L.G. wrote angry letters to him about cheating on her, but she still begged him to stay with her.
Defendant testified that after he was released from prison in May 2007, he maintained a secret relationship with L.G., and she sneaked out of her mother’s house so her family wouldn’t know about it. Defendant testified there were no problems or violence between them.
Defendant testified about the incident on June 28, 2007, when L.G.’s mother called the sheriff’s department and complained he was parked in front of her house. Defendant testified he had just dropped off L.G., who warned him to leave or her mother would call the police. Defendant testified he did not leave and became angry at L.G.’s mother. Defendant denied doing anything wrong, and he cooperated with the deputies and eventually left.
Defendant testified that L.G. often threatened to call defendant’s parole officer. In response to that threat, defendant reminded L.G. about her outstanding arrest warrant, and asked if she wanted to go to jail.
As for the charged offenses, defendant testified that L.G. lied about everything. Defendant denied that he forced L.G. into his car or threw her into the canal. Defendant admitted they argued about whether he was seeing another woman. L.G. hit him and defendant threw mud at her when they were at the canal. They went back to his house so L.G. could clean up. Defendant testified they had sex in the shower because L.G. encouraged him to do so. They used drugs and again had sex in his bedroom.
Defendant testified that later that same day, he drove to L.G.’s house to pick her up so they could spend the day together. Defendant denied threatening or forcing her into his car. L.G. refused to go with him because her mother was around. L.G. appeared at his house later in the day. L.G. hit defendant in the head and accused him of cheating on her. She kept swinging at him, and he grabbed her arms to stop her. They got into defendant’s car and he intended to take L.G. back to her house. L.G. apologized and defendant headed back to his own house. During the drive, however, they started arguing. L.G. kicked him in the face, and defendant slapped her in self-defense. When they reached defendant’s house, he cooked a meal and fell asleep, and she went home.
Defendant acknowledged he did not mention many of these details when he was interviewed by Deputy Manriquez. In rebuttal, Deputy Manriquez testified he interviewed defendant about the charged offenses. Defendant told Manriquez that he did not go to L.G.’s house, but that L.G. arrived at his house in the middle of the night. L.G. was upset and accused him of cheating on her. Defendant said she hit him in the head and stabbed his leg with a screwdriver. Defendant described L.G. as a “drama queen” and said she made up things. Defendant said he was injured and wanted to press charges against her.
DISCUSSION
I. Admission of evidence of prior domestic violence.
Defendant contends the court abused its discretion when it permitted the prosecution to introduce evidence pursuant to section 1109 about his prior acts of domestic violence against S.S. and P.P. Defendant argues the evidence was unduly prejudicial under section 352 because it allowed the jury to infer he had the propensity to commit domestic violence acts.
A. Background.
Prior to trial, the court conducted a hearing on the prosecution’s motion to admit evidence of defendant’s prior acts of domestic violence against his former girlfriends, S.S. and P.P. The prosecutor argued the evidence was admissible as propensity evidence under section 1109, regardless of whether those acts resulted in convictions. The evidence was also admissible under section 1101, subdivision (b), to establish defendant’s intent to inflict injuries on his girlfriends, and that he did not strike back in self-defense. The prosecutor further argued the evidence was not prejudicial because the prior acts were not as serious as the charged offenses.
Defense counsel acknowledged that section 1109 permitted evidence of prior acts of domestic violence. However, counsel argued the evidence should be excluded under section 352 because it was prejudicial, cumulative, and would confuse the issues and distract the jury. Counsel also argued that the court should only admit evidence of the prior acts which resulted in convictions. In the course of his argument, defense counsel stated he had “no problem” with the prospective trial testimony of S.S., identified in the prosecution’s motion as Jane Doe No. 2.
The court found the evidence was admissible as propensity evidence under section 1109. The court noted that section 1109 reflected the legislative determination that prior acts of domestic violence are admissible in such trials because domestic violence victims often change their statements and the crimes are usually committed in private. The court also found the evidence was admissible under section 1101, subdivision (b), to establish defendant’s motive, intent, and absence of a mistake.
The court stated the evidence was still subject to exclusion under section 352 if it was more prejudicial than probative. As to section 1109, the court found the Legislature’s enactment of the statute recognized that “propensity evidence is not only probative but extremely important” in domestic violence cases, and “even though there’s a prejudice to the defendant, the probative value generally is going to outweigh the prejudicial effect.” The court also found the prior acts evidence was not prejudicial because the charged offenses were more serious. “Here we have a rape alleged, two acts of kidnapping and although prejudicial, it appears to be that the evidence is substantially more probative than prejudicial.” The court further noted that based on the prosecutor’s motion and offer of proof, the proposed testimony of S.S. and P.P. would not take a significant amount of court time or confuse the issues.
B. Section 1109
“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation] and domestic violence [citation].” (People v. Reyes (2008) 160 Cal.App.4th 246, 251 (Reyes).)
Section 1108, which allows admission of evidence of uncharged sexual offenses, and section 1109, allowing admission of evidence of uncharged domestic violence, are “virtually identical, ” and cases which have interpreted section 1108 have been relied upon to resolve similar issues involving section 1109. (People v. Johnson (2000) 77 Cal.App.4th 410, 417; People v. Johnson (2008) 164 Cal.App.4th 731, 739; People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).)
Section 1109 states that, subject to exceptions not applicable here, “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.” (§ 1109, subd. (a).) Evidence of prior acts which occurred more than ten years before the charged offense are inadmissible unless the court finds their admission to be in the interest of justice. (§ 1109, subd. (e).)
As the trial court in this case correctly noted, section 1109 reflects a legislative policy determination that the use of propensity evidence is particularly appropriate in domestic violence cases because of the inherent probative value of such evidence in domestic violence prosecutions. (Brown, supra, 77 Cal.App.4th at pp. 1333-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 (Hoover); People v. Johnson, supra, 77 Cal.App.4th at pp. 419-420.) “‘[E]vidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses... who may fear retaliation from the abuser and do not wish to become involved.’ [Citation.]” (Brown, supra, 77 Cal.App.4th at p. 1333.)
The admission of prior acts of domestic violence under section 1109 encompasses both charged and uncharged acts. (See, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta) [section 1108]; Brown, supra, 77 Cal.App.4th at pp. 1332-1334 [section 1109]; People v. Garcia (2001) 89 Cal.App.4th 1321, 1331-1333 [section 1109].) Moreover, evidence of a prior act may be introduced as propensity evidence even if the defendant was acquitted of criminal charges based upon that act. (See, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 652, 665-668 [section 1108].)
The admission of propensity evidence under either section 1109 or section 1108 does not violate a defendant’s constitutional rights to due process and equal protection. (Falsetta, supra, 21 Cal.4th at pp. 917-918 [section 1108]; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 (Cabrera) [section 1109]; see also People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [section 1109] and cases cited within.) “[A]dmission of propensity evidence is not unfair so long as the trial court is required to balance the probative value of the evidence against its prejudicial impact under... section 352.” (Cabrera, supra, 152 Cal.App.4th at p. 704.) “In short, the constitutionality of section 1109 under the due process clauses of the federal and state constitutions has now been settled.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)
Thus, in order to protect the defendant’s due process rights, evidence admissible under section 1109 is subject to exclusion under section 352. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029; People v. Escobar, supra, 82 Cal.App.4th 1085, 1096 (Escobar).) That is, the evidence may not be admitted if its probative value is substantially outweighed by the probability that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029.)
The trial court enjoys broad discretion in making the section 352 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.)
C. Analysis.
Defendant argues that while evidence of his prior acts of domestic violence may have been admissible under section 1109, “[t]he improper tying in of the prior domestic violence incidents to the current offenses was inflammatory because it is the type of evidence that encourages jurors to infer that ‘if he did it before, []he must have done it again.’” Defendant’s argument flies in the face of the statutory intent behind section 1109. As we have explained, section 1109 was enacted to create an exception to section 1101’s prohibition against the introduction of prior acts as propensity evidence, and reflects a legislative policy determination that the use of propensity evidence is particularly appropriate in domestic violence cases because of the inherent probative value of such evidence in domestic violence prosecutions. (Brown, supra, 77 Cal.App.4th at pp. 1333-1334; Hoover, supra, 77 Cal.App.4th at pp. 1027-1028 ; People v. Johnson, supra, 77 Cal.App.4th at pp. 419-420.)
Defendant further argues that even if the prior acts evidence was admissible under section 1109, it should have been excluded as highly prejudicial pursuant to section 352. Defendant argues the evidence was cumulative and unnecessary because the victim of the charged offenses, L.G., also testified about defendant’s prior acts of domestic violence that he committed against her. Defendant asserts the introduction of the evidence violated his due process rights because the probative value was low and the “probability of confusion was almost a certainty.”
In Cabrera, supra, 152 Cal.App.4th 695, the court addressed similar arguments as to the probative value of prior domestic violence evidence admitted under section 1109. In that case, defendant was convicted of multiple offenses arising from a domestic violence incident with his girlfriend. The prosecution introduced the testimony of defendant’s two prior girlfriends, who had lived with defendant in the years before his relationship with the victim. Both witnesses testified about how their verbal disagreements regularly escalated into situations where defendant physically assaulted them. On appeal, defendant argued the prior acts evidence was unduly prejudicial and should have been excluded under section 352. (Id. at pp. 704-705.) Cabrera rejected this argument:
“Here, the probative value of [the two prior girlfriends’] testimony is principally in its cumulative nature. Taken together, [their] testimony sets forth a continuous and fairly unbroken pattern of domestic abuse which commenced in 1995 and continued until 2002. The testimony of [the victim] demonstrated the pattern commenced again when [defendant] began dating her. Thus the testimony of [the two prior girlfriends] was highly relevant and probative because it created a strong inference that [defendant] had a propensity to commit the acts [the victim] described.” (Id. at p. 706.)
Cabrera further held the testimony of the two prior girlfriends was not unnecessarily time consuming, and they described incidents which were “in no sense more aggravated or inflammatory than the charged offenses. [Citation.]” (Cabrera, supra, 152 Cal.App.4th at p. 706.)
As in Cabrera, the trial court properly found the evidence of defendant’s prior acts of domestic violence against P.P. and S.S. was more probative than prejudicial under section 352. The critical question in this case was the credibility dispute between L.G. and defendant. L.G. described a harrowing series of events in which defendant allegedly kidnapped, raped, and assaulted her. Defendant denied every aspect of L.G.’s testimony, and claimed she appeared at his house, she hit him, he defended himself, and they had consensual sex. The evidence of defendant’s prior acts of domestic violence against his former live-in girlfriends was very probative in the context of this case. S.S. and P.P. described defendant’s acts of domestic violence, which he committed on a regular basis when they argued. These incidents occurred in the years immediately preceding his cohabitation with L.G. The charged offenses of forcible rape and kidnapping were more serious than the prior acts described by S.S. and P.P. Moreover, defendant was acquitted of the most serious charges in this case, reflecting the jury’s ability to consider the charged offenses separate and apart from the prior acts evidence.
Defendant also contends the court improperly found the prior acts evidence was probative as to his intent, motive, and common scheme or plan. Defendant argues the court abused its discretion in making these findings under section 352, and they are not supported by the record. Defendant’s section 352 arguments are improperly based on the court’s findings under section 1101, subdivision (b). As we have discussed, the prosecution moved to introduce the testimony of S.S. and P.P. under both section 1109, as propensity evidence, and also under section 1101, subdivision (b), to establish his motive, intent, and absence of mistake. The court found the evidence was admissible under section 1109. As a separate matter, the court found the evidence was also admissible under section 1101, subdivision (b), to prove defendant’s motive, intent, and absence of mistake.
As the record shows, however, the court acknowledged the evidence was still subject to exclusion if prejudicial under section 352. The court found the evidence was probative because it would not confuse the issues or involve a substantial amount of time, and the charged offenses were more serious. The court’s separate findings under section 352 were appropriate and it did not abuse its discretion.
We conclude the court properly admitted evidence of defendant’s prior acts of domestic violence under section 1109, and it did not abuse its discretion when it found the evidence was more probative than prejudicial under section 352.
II. CALCRIM No. 852
Defendant contends the court erroneously instructed the jury with CALCRIM No. 852, as to the consideration of the uncharged prior acts of domestic violence, because the instruction is constitutionally infirm and violates his right to due process. As defendant acknowledges, however, similar attacks on CALCRIM No. 852 have been repeatedly rejected by numerous courts, which have held that the instruction correctly states the law on the limited purpose for which the jury may consider prior acts of domestic violence under section 1109. (People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012-1016 ; Reyes, supra, 160 Cal.App.4th at pp. 251-253; People v. Pescador (2004) 119 Cal.App.4th 252, 261-262; Brown, supra, 77 Cal.App.4th at pp. 1335-1337.) We agree with the reasoning in these cases.
Defendant acknowledges the holdings in Reliford and the other cases, and raises this issue to preserve the instructional claim for federal review. We note defendant’s contentions for the record and duly reject them.
III. Admission of defendant’s letter to L.G.
Defendant next contends the court improperly admitted evidence that L.G. received a letter written by him, in which he purportedly apologized to L.G. for various things. Defendant argues the letter was confusing and prejudicial, because the letter did not address reason for the apology or what he was allegedly apologizing for.
A. Background
During a break in L.G.’s testimony, the prosecutor moved to admit an envelope and letter which L.G. received from defendant while the charges in this case were pending. The prosecutor stated defendant sent the letter from jail to L.G.’s cousin, Sylvia, and asked her to give the letter to L.G. The back of the envelope contained the words: “‘Forgive me. Won’t you try?’” The prosecutor noted that some portions of the letter and envelope referred to defendant’s custodial status, and offered to redact those portions.
The prosecutor argued the contents of the letter and envelope constituted defendant’s admissions:
“[I]t’s another example of [defendant] trying to manipulate the victim in this case. It is classic domestic violence behavior where he’s apologizing. This is basically known as the honeymoon phase. He’s apologizing for all the pain he’s caused her and the tears that she’s shed. He’s telling her he cares to manipulate her to make her feel bad for him. He is even indicating himself that this could-this letter could be used to exploit him so, in some respects it is witness intimidation. It’s evidence that he’s apologizing for his conduct so in some respects it is an admission. Obviously you can argue he doesn’t specifically admit to rape or … kidnap or anything like that, but I think that it goes to her state of mind and, you know, when he does this, this is part of his MO. This is him trying to make her feel sorry for him and basically not come in and testify.”
Defense counsel objected to the evidence as irrelevant and prejudicial under section 352. Counsel argued the letter would confuse the jury because the reason for his apology was not clear. Counsel noted that defendant was not charged with any offenses based on the letter to the victim.
The court found the letter and envelope were admissible as defendant’s implied admissions. The court acknowledged the letter was not specific about the reasons for the apology, but the court found the evidence was relevant and probative as his attempt to manipulate L.G. The court agreed with “everything said” by the prosecutor as to why the evidence was admissible:
“It’s certainly [an] implied admission of some behavior on his part that caused him to be in the situation he’s presently in when he writes the letter. [¶ ] I’m not even sure there is a real [section] 352 issue here. Obviously the letter has some probative value. It is written by the defendant to the victim. It’s probative in the sense that it supports her testimony in court, corroborates it.”
B. Analysis
Defendant contends the letter and envelope were inadmissible, irrelevant, and prejudicial. A trial court’s exercise of discretion in admitting evidence is reviewed for an abuse of discretion and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Alvarez (1996) 14 Cal.4th 155, 201; People v. Jones (1998) 17 Cal.4th 279, 304.)
Defendant does not challenge the prosecutor’s offer of proof that defendant mailed the envelope and letter from jail while the instant case was pending. In addition, he does not challenge L.G.’s testimony that she was familiar with his writing, she recognized his writing in the letter and on the envelope, the letter was addressed to her cousin, and defendant directed the cousin to deliver the letter to L.G. without her mother’s knowledge.
Given these foundational facts, the letter and envelope constituted statements made by the defendant and were admissible as admissions pursuant to section 1220. “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party....” (§ 1220.) “The statement of a party is the most straightforward of the hearsay exceptions.” (People v. Castille (2005) 129 Cal.App.4th 863, 875, fn. omitted.) “The exception to the hearsay rule for statements of a party is sometimes referred to as the exception for admissions of a party. However, … section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions. [Citations.]” (People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5, italics in original.) As applied to this case, “[t]he evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
Defendant argues that even if the envelope and letter were otherwise admissible, the evidence was still prejudicial and confusing because the reasons for his apology were not clear from the contents of the letter. As we have previously explained, the court has the discretion to exclude evidence if the probative value is outweighed by the prejudicial impact of the evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) Defendant told Deputy Manriquez that L.G. was the aggressor and she made up things. At trial, defendant testified that he did not physically or sexually assault L.G., he did not kidnap her, that she was the aggressor, and they had consensual sex. However, it was undisputed that defendant wrote the letter and intended for L.G. to receive it while the charges in this case were pending. The nature and context of defendant’s letter was highly relevant and probative and reflected his state of mind. The manner in which he addressed the letter to L.G.’s cousin, with directions to give it to L.G. without her mother’s knowledge, was probative of his attempt to manipulate her. Defendant wrote the letter and the message on the envelope was based on the premise that something happened between them. Defendant sought to convince L.G. that whatever happened was not that serious, and they could just discuss the matter like adults. Defendant’s words raised the inference that he was trying to convince L.G. that his conduct was not a criminal matter.
“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. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in … 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.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) Defendant’s letter, and his message on the envelope, were admissible and highly probative of his attempts to manipulate the victim in this case, and his recognition that something unpleasant had occurred between them.
IV. Felony and misdemeanor false imprisonment
In count IV, defendant was charged with felony false imprisonment by violence, in violation of Penal Code section 236, with the special allegation that defendant personally used a deadly weapon, a knife (Pen. Code, § 12022, subd. (b)(1)). He was convicted of count IV, but the jury found the personal use allegation was not true.
Defendant now contends the court had a sua sponte duty to instruct on misdemeanor false imprisonment by violence, as a lesser included offense of the felony count, and the court’s failure to so instruct was prejudicial and requires reversal of his conviction on that charge.
A. Lesser Included Offenses
“A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.]” (People v. Parson (2008) 44 Cal.4th 332, 348-349 (Parson).) “An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.]” (Id. at p. 349, italics in original.)
Any error in failing to instruct on a lesser included offense in a noncapital case is subject to the standard of review under People v. Watson (1956) 46 Cal.2d 818, 836, and requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (People v. Breverman (1998) 19 Cal.4th 142, 165.)
B. False imprisonment by violence
The amended information in this case alleged as to count IV, that defendant committed the offense of felony false imprisonment by violence, in violation of Penal Code section 236, in that he did “unlawfully violate the personal liberty of [L.G.], said violation being effected by violence, menace, fraud, and deceit.”
Penal Code section 236 defines the offense of misdemeanor false imprisonment as “the unlawful violation of the personal liberty of another.” (See, e.g., People v. Matian (1995) 35 Cal.App.4th 480, 484 (Matian).) “The crime of false imprisonment becomes a felony ‘[i]f such false imprisonment be effected by violence, menace, fraud, or deceit.…’ (Pen. Code, § 237.)” (Matian, supra, 35 Cal.App.4th at p. 484.)
“[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment. [Citation.]” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123 (Bamba).)
“Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as ‘violence’ with the false imprisonment effected by such violence a felony.” (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462, italics added; People v. Castro (2006) 138 Cal.App.4th 137, 140.)
Thus, “the use of violence-i.e., excessive force-or menace” elevates the offense to a felony. (People v. Babich (1993) 14 Cal.App.4th 801, 808 (Babich).) In this context, “‘violence’ means ‘“the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint.”’ [Citations.] [Also in] this context, ‘menace’ means ‘“a threat of harm express or implied by word or by act.”’ [Citations.]” (Bamba, supra, 58 Cal.App.4th at p. 1123, italics added; People v. Dominquez (2010) 180 Cal.App.4th 1351, 1359; Matian, supra, 35 Cal.App.4th at p. 484.)
“All elements of misdemeanor false imprisonment are also elements of the felony; the felony cannot be committed without necessarily committing the misdemeanor. The misdemeanor is therefore a lesser included offense of the felony. [Citation.]” (Babich, supra, 14 Cal.App.4th at p. 807; Matian, supra, 35 Cal.App.4th at p. 487.)
C. Analysis
While misdemeanor false imprisonment is a lesser included offense of the felony charge, the court only had the sua sponte duty to instruct on the misdemeanor if there was substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. (Parson, supra, 44 Cal.4th at pp. 348-349.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury, ’ that is, evidence that a reasonable jury could find persuasive. [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 646.)
“It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged. [Citation.]” (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796; People v. Kelly (1990) 51 Cal.3d 931, 959.)
Defendant contends the court had a sua sponte duty to instruct on misdemeanor false imprisonment as a lesser included offense of the felony charge because there was substantial evidence the force used against L.G. was only that which was reasonably necessary to effect the restraint. As explained ante, the felony false imprisonment charge in count IV was based on L.G.’s testimony about the incident in defendant’s kitchen, which occurred on the second evening that defendant took L.G. to his house. Defendant argues that while L.G. testified to her belief that defendant held a knife against her throat, the court’s failure to instruct on misdemeanor false imprisonment was prejudicial because the jury found the allegation that he personally used a knife not to be true.
While defendant testified at trial, he denied committing any physical or sexual assaults, insisted they had consensual sex, and never addressed L.G.’s testimony about the incident in the kitchen. Thus, L.G.’s testimony was the only evidence upon which a lesser included instruction could have been based. L.G. testified that when they arrived at defendant’s house and she asked to go home, defendant told her to shut up and threatened to break her face. Defendant was at the kitchen sink peeling potatoes, and L.G. was standing at the kitchen table. When she again asked to go home, defendant stopped what he was doing at the sink, came at her, and put an object against her neck for about five seconds until he “caught himself” and started crying. L.G. testified she felt the object against her neck and thought it was a steak knife, but she admitted that she never saw the object.
Based on L.G.’s testimony, defendant used both violence and menace to accomplish the act of false imprisonment in the kitchen. In response to her repeated requests to go home, he threatened to break her face and then came at her with some type of object against her neck. Both acts constituted force beyond that necessary to effect the restraint. While the jury found the personal use allegation was not true, that finding was likely based on L.G.’s admission that she never saw the object which defendant held against her neck. However, she was unequivocal that defendant held some type of object against her neck when she tried to leave. She simply assumed it was a steak knife. The court was not obliged to instruct on misdemeanor false imprisonment because the defendant only could have been guilty of the greater offense, based on the evidence before the jury, and the jury’s finding on the personal use allegation does not require a contrary conclusion. (Cf. Matian, supra, 35 Cal.App.4th at p. 485-487; see also People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513; People v. Castro, supra, 138 Cal.App.4th at p. 143.)
V. The prior conviction allegations
The Attorney General has raised the issue of whether defendant admitted, or the court found true, the special allegation that defendant suffered a prior serious felony conviction for felony battery with serious bodily injury in 1998 (Pen. Code, § 243, subd. (d)). Defendant’s conviction for felony battery was the basis for the amended information’s allegations that defendant had one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)) and one prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)). The Attorney General suggests this court order augmentation of the trial record to determine if such findings were made. In the alternative, the Attorney General requests remand of the matter for further appropriate findings.
We have reviewed the entirety of the record and determined that augmentation is not necessary. We have also determined that defendant properly admitted the three prior domestic violence convictions alleged as to count I, corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (e)) and the prior domestic violence conviction which was the basis for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
As for defendant’s prior serious felony conviction and prior strike allegation, we have determined that defendant testified at trial and admitted that he was convicted of felony battery. As we will explain, however, defendant’s trial admission was insufficient to satisfy the prosecution’s burden of proving that he suffered a prior serious felony conviction within the meaning of Penal Code section 1192.7, subdivision (c), to support the court’s imposition of the second strike sentence and the prior serious felony enhancement.
A. Background
The amended information alleged that defendant had a prior serious felony conviction and a prior strike conviction. Both allegations were based on his conviction on May 5, 1998, in Fresno County Superior Court case No. F098300286-2, for felony battery in violation of Penal Code section 243, subdivision (d).
On May 16, 2008, the court conducted a hearing on motions in limine and considered whether defendant could be impeached with his prior conviction for felony battery if he decided to testify. The court and parties reviewed defendant’s criminal records and police reports about the offense, which stated that defendant beat the victim into unconsciousness and smiled during the incident. The court found defendant could be impeached with the prior felony battery conviction because it was an offense of moral turpitude and relatively recent. The court also found that defendant could only be impeached with the fact of the battery conviction and not the underlying circumstances.
Thereafter, defendant admitted the three prior domestic violence convictions alleged as to count I, corporal injury to a cohabitant, after the court advised him of his constitutional rights and he waived those rights. The court granted defendant’s motion to bifurcate the remaining prior conviction allegations.
According to the minute order for May 27, 2008, the court and counsel took up the matter of defendant’s prior convictions “as stated on the record.” According to the reporter’s transcript for that day, however, defendant again admitted the three prior domestic violence convictions alleged as part of count I. Defendant also admitted that he was convicted of a fourth domestic violence offense in case No. F99300618-6 on November 23, 1999, which was going to be introduced as prior domestic violence evidence. The court did not address the prior serious felony conviction or prior strike allegation.
Defendant testified at trial. He admitted he had a prior felony conviction in 1998 for felony battery with serious bodily injury. He also admitted that he served a prison term. The record does not show, and he did not testify about, the facts of the battery conviction, and whether he personally inflicted serious bodily injury on the victim of that offense.
The minute order for the sentencing hearing states the prior serious felony enhancement and prior strike allegation had already been found true. At the sentencing hearing, the prosecutor argued the court should impose the upper term and asserted defendant’s felony battery conviction was very serious because he beat the victim into unconsciousness and then laughed at him. Defendant addressed the court from defense counsel’s table and said he wanted to explain the battery conviction. Defendant said he was defending someone and he ended up in the hospital because of the fight. Defendant also said the victim was his friend and they just had a disagreement. Defendant did not take the stand when he made the statements about the battery conviction.
The court imposed an aggregate second strike term of 16 years, which included five years for the prior serious felony enhancement. The court ordered the prior prison term enhancement stricken.
B. Analysis
“[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) This court may consider the issue of an unauthorized sentence even in the absence of an objection in the trial court. (Ibid.) This court may also consider the issue even if the parties have not raised it on appeal, if the matter presents a legal question that is “clear and correctable.” (People v. Welch (1993) 5 Cal.4th 228, 235-236; People v. Slattery (2008) 167 Cal.App.4th 1091, 1095.)
The People properly advised this court of the potential absence of valid waivers, advisements, and admissions for the prior serious felony enhancement and prior strike conviction allegation. This court may address this issue even though defendant did not object below or raise the issue on appeal, and the People did not file a notice of appeal.
We must thus determine whether the prosecution met its burden of proving the truth of the prior serious felony conviction enhancement and the prior strike conviction allegation. We have reviewed the record and there is no evidence that the court advised defendant of his rights and obtained admissions as to the truth of the prior serious felony enhancement and the prior strike allegation. In addition, the prosecution did not introduce evidence to prove those special allegations.
As we have explained, however, defendant testified at trial and admitted that he was convicted of felony battery with serious bodily injury, the offense which was the basis for both the prior serious felony enhancement and the prior strike allegation. However, defendant’s trial testimony was not sufficient to prove the existence of the special allegations.
Penal Code section 667, subdivision (a) provides for a five-year enhancement if defendant was previously convicted of a “serious felony, ” defined as an offense “listed in subdivision (c) of [Penal Code] Section 1192.7.” (Pen. Code, § 667, subd. (a)(4).) A defendant is subject to sentencing under the Three Strikes law if the prosecution pleads and proves the defendant was previously convicted of either a serious felony as defined in Penal Code section 1192.7, subdivision (c), or a violent felony as defined in Penal Code section 667.5, subdivision (c). (Pen. Code, § 667, subd. (d)(1).)
Penal Code section 1192.7, subdivision (c) “lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking.” (People v. Kelii (1999) 21 Cal.4th 452, 456.) Felony battery with serious bodily injury is not statutorily defined as either a serious felony under Penal Code section 1192.7 or a violent felony under Penal Code section 667.5. (In re Jensen (2001) 92 Cal.App.4th 262, 268; People v. Moore (1992) 10 Cal.App.4th 1868, 1871.)
However, felony battery may qualify as a serious felony based on the circumstances of the offense. Section 1192.7, subdivision (c)(8) defines other felonies as serious felonies by reference “to conduct rather than to a specific crime.” (People v. Reed (1996) 13 Cal.4th 217, 223.) Thus, a serious felony is also defined as “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm.” (Pen. Code, § 1192.7, subd. (c)(8), italics added.) In addition, an offense may be a serious felony if “the defendant personally used a dangerous or deadly weapon.” (Pen. Code, § 1192.7, subd. (c)(23), italics added.) Thus, it is necessary to prove defendant’s personal infliction of great bodily injury or personal use of a weapon or firearm. For example, defendant could have been convicted on an aider and abettor theory, which would not satisfy the statutory definitions under Penal Code section 1192.7, subdivisions (c)(8) or (c)(23). (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1300.)
“Although felony battery is not one of the numerous offenses specified in the catalog of serious felonies in Penal Code section 1192.7, subdivision (c), the offense comes under the statute’s general category of ‘any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm.’ (Pen. Code, § 1192.7, subd. (c)(8).)” (People v. Moore, supra, 10 Cal.App.4th 1868, 1871.)
As applied to the instant case, defendant testified at trial and admitted he had suffered a conviction for felony battery with serious bodily injury. However, he did not testify about the underlying facts of that conviction. At the sentencing hearing, the court and the parties discussed the facts of the felony battery, but the prosecution did not introduce defendant’s criminal records into evidence and the court did not make any findings as to the special allegations. Defendant personally addressed the court about the felony battery, and claimed he was only defending someone else and the victim was his friend. However, defendant made those statements from counsel’s table and did not retake the witness stand. Defendant’s trial testimony was thus insufficient as an admission of the prior conviction allegations.
When the prosecution fails to prove the existence of a prior conviction allegation, and the matter is reversed on appeal for insufficient evidence, double jeopardy does not bar remand and retrial of the proof of the prior conviction allegation. (Monge v. California (1998) 524 U.S. 721, 730; People v. Monge (1997) 16 Cal.4th 826, 845; see also People v. Barragan (2004) 32 Cal.4th 236, 239, 241, 243-258 [retrial of prior conviction allegation in noncapital case does not violate principles of due process, law of the case, or res judicata]; People v. Henley (1999) 72 Cal.App.4th 555, 566; People v. Franz (2001) 88 Cal.App.4th 1426, 1455.)
In People v. Miller (2008) 164 Cal.App.4th 653 (Miller), the court addressed a situation similar to the instant case. The defendant was charged with driving with a suspended license and having a prior conviction for the same offense. The defendant waived a jury trial on the existence of the prior conviction. The court imposed sentence based on the prior conviction, but it never conducted a trial or made any findings on the existence of the prior conviction. Miller held the sentence imposed was legally unauthorized because the prior conviction allegation was never found true. “As double jeopardy protections do not apply to the trial of prior conviction allegations [citation], we remand for a court trial on the prior conviction allegation and resentencing [citation].” (Id. at p. 668.)
As in Miller, the court in this case imposed the second strike sentence and the five-year prior prison term enhancement based on the erroneous belief that the special allegations were found true. While defendant testified and admitted the prior felony battery conviction, that admission is insufficient to prove the prior conviction was a serious felony within the meaning of the Three Strikes law and the prior serious felony conviction enhancement. However, the prosecutor repeatedly referred to the existence of defendant’s criminal records when the parties discussed the special allegations. The prosecutor apparently possessed the requisite proof but simply failed to introduce the evidence.
The sentence imposed in this case was legally unauthorized. The sentence must be vacated and the matter remanded for trial on the truth of the prior serious felony enhancement and the prior strike conviction, and then resentencing may occur.
DISPOSITION
The sentence is vacated and the matter remanded for further appropriate proceedings as to the truth of the prior serious felony enhancement and the prior strike conviction. In all other respects, the judgment is affirmed.
WE CONCUR: Dawson, Acting P.J., Hill, J.