Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF147870, J. Thompson Hanks, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All statutory references are to the Penal Code unless stated otherwise.
During an altercation with his girlfriend, defendant Andrew Hernandez Ortega threatened to kill her and subsequently threw a tomahawk at her car, breaking the windshield.
A jury convicted defendant of one count of making a criminal threat (§ 422) and one count of misdemeanor vandalism. (§ 594, subd. (b)(2).) The court sentenced defendant to the upper term of three years in prison on count 1 and a concurrent jail term of one year on count 2.
Defendant alleges prejudicial error involving the jury instructions, propensity evidence, and the exclusion of testimony by Christine Ortega (Christine), defendant’s daughter-in-law. Defendant also challenges section 422 as unconstitutionally vague. Many of defendant’s arguments border on frivolous because they depend on characterization of the evidence favoring defendant or raise issues which have already been resolved by well-settled law. We reject defendant’s contentions on appeal and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Criminal Threat and Misdemeanor Vandalism
Lisa Rodriguez (Rodriguez) testified that she lived with defendant for a year and a half. On December 8, 2008, defendant initiated a two-hour conversation about breaking up with her while both of them were drinking beer. Defendant said he had financial reasons to break up, he had never loved Rodriguez, and he planned to reconcile with his ex-girlfriend, Kathi Martin, who had recently inherited $40,000. Rodriguez testified defendant told her he wanted to be with a woman “who could take a beating... and wouldn’t fall apart.”
Rodriguez telephoned her mother asking for help in moving out. Her mother sent Rodriguez’s niece, Tiffany, over to help. While Rodriguez was packing her possessions, defendant continued to talk, blaming her for causing the breakup. Defendant had been unemployed for seven months, contributing to their financial problems.
When Christine, defendant’s daughter-in-law, arrived, defendant suggested Rodriguez “go over the bills” and she responded, “Fuck no.... Let your new girlfriend do it.” Defendant exploded and yelled, “Fuck you. I’m going to kill you, bitch.” Then he grabbed a tomahawk that he had received as a birthday gift. Rodriguez was scared for her life and afraid that defendant would strike her. Christine yelled at Rodriguez to get out and Rodriguez ran to her car.
Outside the house, Tiffany, the niece, was loading items into a van when defendant rushed toward Rodriguez. Rodriguez yelled at Tiffany to get in a different car with her while she tried to put the car in reverse. Defendant appeared, armed with the tomahawk, while his cousin, Lisa Ortega, tried to restrain him. Defendant surged forward and hit the windshield with the tomahawk, breaking the glass. Rodriguez drove to her mother’s house. Both Rodriguez and Tiffany were shaking and crying after the incident.
Rodriguez testified that she contacted the police but she did not disclose defendant’s threat to kill her. Rodriguez told police that she and defendant had argued about bills and Rodriguez left and got in her car before she saw defendant come out of the house with the tomahawk. When she testified at trial, Rodriguez did not remember having told police that defendant had subsequently made a telephone call to her in which he had said he would “shoot someone.”
B. August 2008
On an earlier occasion, in August 2008, defendant and Rodriguez had been drinking at a local bar for a couple of hours before coming home and beginning to argue. When Rodriguez disagreed with defendant on some point, he lunged at her and grabbed her throat. Defendant grabbed her throat at least twice that night. Rodriguez was frightened and could not breathe. Finally, Christine and Lisa were able to make defendant release his hold on Rodriguez’s throat. But defendant prevented Rodriguez from leaving the house for two days. Rodriguez reacted by relapsing into drug use.
C. November 2008
In November 2008, defendant and Rodriguez left the bar where they had been drinking with friends and defendant became agitated and jealous. Defendant drove them home and rammed her car against his car. He refused to relinquish her car keys and let her leave. Rodriguez was afraid of more violent behavior from defendant. Defendant got a baseball bat, hit the fender of her car, broke the headlamp, and told her “to get the hell in the house.”
D. July 2007
Defendant’s former stepdaughter, Sarah Sanchez, testified that, on July 12, 2007, defendant argued with Sanchez’s mother, who sought refuge in her truck. Sanchez tried to restrain defendant but he grabbed a metal object and smashed the truck’s windshield and a window.
E. Defense Evidence
Christine testified that she did not see defendant break the windshield of Rodriguez’s car. Initially, the court did not allow her to testify about whether defendant had uttered any threats to Rodriguez. Subsequently, in cross-examination, she acknowledged that defendant had grabbed a tomahawk but she denied defendant had made any threats: “I do remember him having [the tomahawk]. But as far as him saying, Bitch he was going to kill her, I don’t recall that.” Christine told the police that someone named Emilio grabbed the tomahawk from defendant, thereby alleging defendant did not attack Rodriguez’s car.
Lisa Ortega testified that she threw a wooden bird perch at Rodriguez’s car but she did not know if the windshield broke.
III
ATTEMPTED CRIMINAL THREAT
Neither party asked for an instruction on the lesser included offense of attempted criminal threat. Nevertheless, defendant argues on appeal the trial court should have given such an instruction sua sponte because substantial evidence warranted consideration of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.)
Specifically, defendant argues the evidence did not show that Rodriguez experienced “sustained fear” caused by defendant’s threat to kill her: “... a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety.” (People v. Toledo (2001) 26 Cal.4th 221, 230-231, italics added.)
“Sustained fear” means a period of fear extending beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) When Rodriguez first spoke to the police, she did not mention defendant’s threat and she also told the police she was not afraid of defendant but she wanted him to leave her alone. On the other hand, at trial Rodriguez testified that, when defendant threatened to kill her and seized the tomahawk, she was afraid for her life and she believed he meant to strike her, especially in view of his history of violence against her and others. She fled the house in a panic, suffered a strong emotional and physical reaction, and immediately called the police. These facts contradict any claim by defendant that Rodriguez did not experience sustained fear.
The trial court is only required to give sua sponte instructions on the general principles of law relevant to the issues raised by the evidence. In the absence of evidentiary support for defendant’s position and in view of the actual evidence of sustained fear experienced by Rodriguez, the trial court was under no sua sponte obligation to instruct concerning the lesser offense. (People v. Kimble (1988) 44 Cal.3d 480, 503; People v. Toledo, supra, 26 Cal.4th at p. 235.) Any error was also harmless because the facts did not permit the interpretation urged by defendant.
IV
UNANIMITY
Defendant next maintains the trial court erred by not giving a unanimity instruction (CALJIC No. 17.01) on count 1 because there was evidence that defendant made additional threats to Rodriguez in a phone call and text messages received by her after she fled defendant’s house. The record shows, however, that the prosecutor elected to rely solely upon the threat made by defendant in the bedroom.
Where the evidence suggests multiple discrete criminal acts, a unanimity instruction is not required if the prosecution makes an election in closing argument. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Mayer (2003) 108 Cal.App.4th 403, 418; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) During closing argument, the prosecutor relied entirely upon defendant’s threat, “Bitch, I’m going to kill you, ” before he armed himself with a tomahawk. The defense attorney also addressed only the threat made in the bedroom. There is no reasonable probability the jury based its verdict on any other threat. Therefore, the court had no obligation to instruct on principles of unanimity.
V
LATE DISCLOSURE OF PROPENSITY EVIDENCE
Defendant contends his right to due process was compromised by the prosecution’s late notice concerning the propensity evidence of other acts of domestic violence which was introduced at trial. Section 1054.17 and Evidence Code section 1109, subdivision (b), impose a 30-day deadline for the disclosure of discovery of such evidence before trial. Here the prosecution first gave notice of the three prior incidents in a motion in limine submitted on the first day of trial. At trial, defendant objected on the grounds that Evidence Code section 1109 does not apply to the subject crimes of making criminal threats and vandalism. On appeal, defendant claims he suffered prejudice from the late notice. (People v. Mayfield (1997) 14 Cal.4th 668, 799; People v. Bradford (1997) 15 Cal.4th 1229, 1360.)
Defendant’s first obstacle is that he waived the claim by not objecting at trial to the lateness of the disclosure. Even so, any error was harmless. The prior incidents involving Rodriguez were relevant to the present crimes against her. Defendant was necessarily well aware of the circumstances of the 2008 offenses and the 2007 offense and of the witnesses who could testify concerning them. Furthermore, defendant did not seek a continuance to allow him to respond to the evidence of prior acts. (People v. Mayfield, supra, 14 Cal.4th at p. 799; People v. Medina (1995) 11 Cal.4th 694, 771.) Under these circumstances, there was no prejudice. (People v. Welch (1999) 20 Cal.4th 701, 749-750.) Furthermore, even without the evidence of prior acts, substantial evidence supports the verdict. Defendant’s due process rights were not violated.
VI
CALJIC No. 2.50.02
Defendant acknowledges that his constitutional challenge to CALJIC No. 2.50.02 [evidence of other domestic violence] has already been resolved by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007. He raises the issue only to preserve it for purposes of federal review. For those reasons, we follow Reliford and do not engage in further analysis.
VII
ADMISSION OF PRIOR DOMESTIC VIOLENCE INCIDENTS
Defendant claims the trial court abused its discretion under Evidence Code sections 352 and 1109 by admitting evidence of the three prior acts of domestic violence. We disagree, concluding the evidence was more probative than prejudicial.
In domestic violence cases, Evidence Code section 1109, subdivision (a), creates an exception to Evidence Code section 1101’s prohibition against propensity evidence: “[T]he legislative history of [Evidence code section 1109] recognizes the special nature of domestic violence crime, as follows: ‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.’ (Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)” (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)
A trial court’s discretion regarding the admission of evidence will be overturned only if it is 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.) Here the trial court did not abuse its discretion.
The evidence of prior domestic violence by defendant demonstrated an ongoing pattern of violence and abuse against his partners, escalating in frequency and severity. When defendant had been drinking or engaged in conflict with a woman, he often reacted with physical violence against the partner or property or both. We decline defendant’s argument that the similarity of the incidents may have caused the jury to punish defendant for his previous acts rather than his present crimes. The similarity among the various incidents tended to bolster the probative force of the evidence rather than give reason to reject it. (People v. Harris (1998) 60 Cal.App.4th 727, 740.) We also agree the evidence against defendant was so overwhelming as to make any error harmless. (People v. Welch, supra, 20 Cal.4th at pp. 749-750.)
VIII
CONSTITUTIONALITY OF EVIDENCE CODE SECTION 1109
Defendant cites Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, 773-777 (revd. on other grounds sub nom. Woodford v. Garceau (2003) 538 U.S. 202), for the proposition his due process rights were violated by the use of prior offenses to prove propensity, as allowed by Evidence Code section 1109. Defendant concedes that California courts are not bound by the decisions of the lower federal courts on interpretation of federal law. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-783.)
Defendant also concedes our Supreme Court has already rejected this argument in People v. Falsetta (1999) 21 Cal.4th 903. In Falsetta, the California Supreme Court rejected a due process challenge to the similarly worded Evidence Code section 1108, finding that the statute is constitutional because it incorporates the balancing required under Evidence Code section 352. Subsequently, California appellate courts have held that the reasoning in Falsetta applies to Evidence Code section 1109, and that Evidence Code section 1109 does not violate a defendant’s due process or equal protection rights. (People v. Johnson (2010) 185 Cal.App.4th 520, 529; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1333; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027.) Therefore, we reject defendant’s constitutional challenge to Evidence Code section 1109.
IX
SECTION 422 AND CALJIC No. 9.94
Defendant next maintains the trial court erred when it instructed defendant about section 422, the crime of making a criminal threat, using a modified version of CALJIC No. 9.94, but the trial court did not instruct the jury on the elements of homicide, the crime defendant threatened to commit against Rodriguez.
Once again, defendant raises an issue that has already been decided by the courts. In People v. Butler (2000) 85 Cal.App.4th 745, 755-756, the trial court did not instruct the jury about the threatened crime or its elements. The Court of Appeal affirmed defendant’s conviction under section 422, holding that section 422 does not require any specific crime be identified for the jury. Butler has been followed in People v. Maciel (2003) 113 Cal.App.4th 679, 685 and never questioned or criticized in subsequent cases. We accept the Butler holding and find no grounds to contradict that authority.
We also reject defendant’s argument that section 422 is unconstitutionally vague, a challenge that the Maciel court also declined.
X
TESTIMONY FROM CHRISTINE ORTEGA
Defendant makes several arguments based on mischaracterization of the trial testimony. Although originally the trial court sustained the prosecution’s objection to Christine’s testimony that she did not hear defendant threaten Rodriguez, thereafter Christine was permitted during cross-examination to volunteer that she did not recall defendant threatening to kill Rodriguez. Because the premise does not exist for defendant’s arguments regarding exclusion of Christine’s testimony, defendant’s arguments about the trial court’s error and the denial of due process must fail.
XI
DISPOSITION
Most of defendant’s legal arguments about instructional and evidentiary error are easily resolved under established law. Defendant’s remaining arguments are unpersuasive. Substantial evidence supports his convictions.
We affirm the judgment of conviction for the crimes of making a criminal threat and vandalism.
We concur: Ramirez, P.J., Miller, J.