Opinion
E067937
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DEAN PANGUS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1601412) OPINION APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Richard Dean Pangus, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and violating a protective order (Pen. Code, § 273.6, subd. (a)). The protective order at issue protected J.P., defendant's former girlfriend and the victim in the assault count. The jury found defendant not guilty of willfully inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and the court declared a mistrial on the lesser included offense of battery (Pen. Code, § 243, subd. (e)) when the jury deadlocked on it. The court sentenced defendant to a total of three years in state prison.
Defendant raises two claims on appeal. First, defendant contends the court erred in refusing to instruct on the defense of necessity. Defendant argues the court should have permitted the jury to consider whether he violated the protective order out of necessity. Second, defendant contends the court erred in admitting evidence of his prior acts of violence against J.P. We reject both contentions and affirm.
II. FACTS
J.P. and defendant dated on and off for two years until they broke up in 2016, although they still saw each other after the breakup. J.P. admitted to being an alcoholic. At times, she and defendant would argue about her drinking, and they broke up partially because of her drinking. She had consumed one beer before testifying at trial.
The pertinent events occurred in October 2016. J.P. was homeless and living in Temecula. When J.P. was not staying with defendant, she was "welcome to stay at any camp [she] want[ed] in Old Town." One morning, at around 4:00 or 5:00 a.m., she went to defendant's tent at a Temecula homeless encampment. Her memory of the events that day was "foggy." She had consumed a "quarter of a fifth" of vodka and was intoxicated. From what she remembers, defendant told her to go to sleep and took the glass bottle of vodka away from her. She yelled at him that she wanted it back, and they argued about it and other things. She turned her back to him at one point and felt something hit her head, and when she turned back around, defendant was holding the broken bottle of vodka. She was scared and "conked out" on the ground in broken glass. A friend found her at around 10:00 or 11:00 a.m. at defendant's encampment. That was when she realized she had a head injury. She felt a big lump and blood. Her friend insisted that she go to the hospital.
At the hospital, J.P. got five staples in her head. She also had glass stuck in her face that was "still working its way out" at the time of trial in January 2017. The head injury still affected her hearing, vision, and balance at the time of trial.
J.P. spoke to Deputy Christina Weber in the ambulance and at the hospital. J.P. appeared intoxicated. She initially told the deputy that someone named "Endira" had injured her. She thought Endira might have been responsible because she had fought with Endira the day before and had seen Endira hit other people in the head. But she admittedly did not recall seeing Endira or anyone besides defendant around his encampment on the morning that she was injured. When the deputy asked whether defendant had hit her with the bottle, J.P. nodded her head affirmatively. J.P. said defendant was mad about her drinking and had broken the bottle.
Deputy Weber also interviewed defendant that same day. The prosecution played an audio recording of the interview for the jury. Defendant said J.P. came to his tent drunk and was screaming at him. He asked her to leave, but when she would not, he told her to sleep on the ground. J.P. fell down and he "said, that's it. I have had enough," and he "threw the bottle out the door" to get rid of it. He was not looking in her direction when he threw it and did not intend to hit her with it. He assumed that he hit her because he heard a thud. She had a cut on the back of her head that he tried to clean, but she would not let him touch her. He left to look for help and "[t]ime went by"—"maybe ten, 15 minutes"—before he found a phone. He called 911 and told the dispatcher he had thrown the bottle to get rid of it but "she—dumb shit look[ed] up at the same time." The prosecution also played the audio recording of the 911 call for the jury. Deputy Weber discovered a protective order issued in April 2015, which restrained defendant from contacting J.P. or coming within 100 yards of her.
J.P. testified about prior incidents of domestic violence with defendant. About two years prior to trial, they were arguing and she "said something disrespectful." Defendant "went to punch the door," which was behind her, and when she "moved at the wrong time," the punch landed on her nose. Her nose "exploded," but she did not call the police or go to the hospital because she felt responsible. Also, about a year prior to trial, defendant broke a 40-ounce beer bottle on her head when he threw it. They were fighting about alcohol. While she was standing behind him, he threw the bottle backwards over his head, and it landed on her head. She did not call the police that time either because she felt partially responsible for that incident. They had "a lot of screaming matches," and she had called the police on prior occasions when he had threatened her. But she had also threatened him, hit him, and kicked him before.
The prosecutor also asked J.P. whether she remembered an incident in March 2015 when she spoke to an officer about "defendant grabbing [her] neck and strangling" her, and a second incident when she spoke to an officer because defendant kicked her and caused her to fall. J.P. said she did not remember either of those incidents.
Defendant testified in his own defense. On the morning in question, he awoke at 4:00 or 4:30 a.m. to J.P. falling all over him. She was intoxicated and a "mess." He knew she had a restraining order against him but he did not tell her to leave because she would not have listened to him. He was also concerned for her safety. There was "stuff that she could hurt herself on," "coyotes out there," and "places she could fall into and no one would know she was there, not including the streets that she would hit." He let J.P. stay, even though she was yelling at him about Endira, whom she mistakenly believed was there with him. J.P. lost her balance and fell to the ground, and he covered her with a sleeping bag and lay back down in bed. He noticed her vodka bottle on a table and, wanting to get rid of it, tossed it toward the trash area. He did not aim for J.P. or intend to throw it at her, but he heard a thud. At that point, they were not arguing anymore and she had fallen asleep. He later heard a moaning sound and got up to inspect her, then discovered her head injury. He ran two miles into town to find a phone, eventually found one, and called 911. When he told the dispatcher that he threw the bottle and "dumb shit look[ed] up at the same time," he was referring to after he had discovered her head injury. He was trying to care for her wound and clean up the area around her, and he threw half of the broken bottle out of the way.
Defendant admitted to pleading guilty to domestic battery of J.P. in 2015, but he described it as involving a verbal argument and not physical violence. He denied punching J.P. in the nose and denied throwing a beer bottle at her on previous occasions. He threw a beer bottle over his head once when they were arguing, but he did not know it had hit her on the head.
III. DISCUSSION
A. The Court Did Not Err in Refusing to Instruct the Jury on the Necessity Defense
Defendant requested that the court instruct the jury on the defense of necessity (CALCRIM No. 3403), specifically as it related to the charge that he violated the protective order. The court ruled defendant made no showing that he violated the protective order because of a legal necessity and denied the request. Defendant contends this was error, but we disagree.
The trial court must instruct on a defense requested by the defendant only when substantial evidence supports the defense. (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) In deciding whether the evidence warrants the requested instruction, the court should not judge the credibility of the evidence and should take it as true. (Ibid.) The court should resolve doubts as to the sufficiency of the evidence in favor of the defendant. (Ibid.) "Even so, the test is not whether any evidence is presented, no matter how weak." (Ibid.) Instead, the court must instruct the jury "when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded"' that the specific facts supporting the instruction existed." (Ibid.) We review de novo the court's decision not to give the requested instruction. (People v. Simon (2016) 1 Cal.5th 98, 132.)
"The defense of necessity generally recognizes that '"the harm or evil sought to be avoided by [the defendant's] conduct is greater than that sought to be prevented by the law defining the offense charged."'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100.) The defendant bears the burden of showing "the existence of an emergency situation involving the imminence of greater harm that the illegal act seeks to prevent." (Ibid.)
To justify an instruction on necessity, defendant must have proffered evidence sufficient to establish that he violated the protective order "(1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.)
The jury instruction defendant requested mirrors these elements. It states that to establish the defense of necessity "the defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She) had no adequate legal alternative; [¶] 3. The defendant's acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency." (CALCRIM No. 3403.)
Here, the evidence was insufficient to permit reasonable jurors to conclude defendant lacked reasonable legal alternatives to letting J.P. stay in his tent. According to J.P., she was welcome to stay at any encampment in Old Town Temecula. Even if we take as true defendant's vague testimony that there was harmful "stuff" outside, or "coyotes out there," he could have left the tent and asked others at the encampment to let J.P. stay with them. He also could have left the tent for her use and found somewhere else to spend the early morning hours. Either one of these was a reasonable alternative to violating the protective order and staying in close quarters with J.P., particularly given their volatile history of arguing and domestic violence. Predictably, allowing himself to be around J.P. resulted in an argument and significant harm to her—the very type of harm the protective order sought to prevent.
Defendant relies on In re Eichorn (1998) 69 Cal.App.4th 382 to argue he had no reasonable legal alternatives. That case is not analogous. Eichorn was a homeless veteran who was cited for violating the city's anticamping ordinance when he slept on the ground outside a civic center office building. (Id. at pp. 384-387) The trial court ruled pretrial that Eichorn could not present a necessity defense to a jury, despite his offer of proof that, on the night in question, the city had no shelter beds available to him, and he had done everything possible to eliminate his homelessness. (Id. at p. 385.) Eichorn proceeded to a bench trial on whether the ordinance was unconstitutional as applied to him. (Ibid.) He proffered evidence at trial that the shelters in the city were, indeed, full on the night in question. (Id. at p. 386.) He also presented evidence from a professor of criminology who had studied homelessness in the city. (Ibid.) The professor established the county had little affordable housing, and most single men were sleeping outside because they had no other choice. (Ibid.) Eichorn also testified about his unsuccessful attempts to find work and avoid homelessness. (Id. at p. 387.) The court found him guilty of violating the anticamping ordinance, but the appellate court granted his petition for writ of habeas corpus and set aside his conviction. (Id. at pp. 387, 391.) The appellate court held the pretrial ruling was error and the trial court should have permitted Eichorn to present a necessity defense. (Id. at p. 388.) It concluded "Eichorn's offer of proof was sufficient. There was substantial if not uncontradicted evidence that [he] slept in the civic center because his alternatives were inadequate and economic forces were primarily to blame for his predicament." (Id. at p. 390.)
Defendant contends that, "[s]imilarly, there was substantial if not uncontradicted evidence that [he] had no reasonable alternatives but to allow a drunken [J.P.] to remain at his campsite." There was no such thing. He proffered no evidence establishing that one of them could not stay elsewhere, in contrast to Eichorn's evidence that the city had no shelter bed for him. In re Eichorn does not show the trial court erred. B. The Trial Court Did Not Err in Admitting Evidence of Defendant's Prior Acts and Conviction
Defendant next contends the court erred in admitting evidence of his 2015 domestic battery conviction, the uncharged incident when he punched J.P.'s nose, and the uncharged incident when he hit her head with the 40-ounce beer bottle. We also reject this argument.
We review the court's decision to admit prior acts of domestic violence for abuse of discretion. (People v. Cabrera (2007) 152 Cal.App.4th 695, 704.) Generally, Evidence Code section 1101 makes character or propensity evidence inadmissible to prove the defendant's conduct on a specified occasion. (§ 1101, subd. (a).) Section 1109 sets forth an exception: "[I]n 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).)
All further statutory references are to the Evidence Code unless otherwise indicated. --------
By its terms, section 1109 requires the court to conduct a section 352 analysis before admitting evidence of the defendant's prior domestic violence. Section 352 gives the court discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Prejudice within the meaning of section 352 is not synonymous with damaging. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) It refers to evidence that "'"uniquely tends to evoke an emotional bias against [the] defendant as an individual and which has very little effect on the issues."'" (Ibid.) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (Ibid.)
"'"The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense."' [Citation.] Section 1109 was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.' [Citation.] Thus, the statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation." (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532.)
As a threshold matter, defendant argues that using evidence of prior acts to convict him of the charged crimes violates his constitutional right to due process. Our Supreme Court has rejected this same argument with respect to section 1108, which is substantially similar to section 1109. Section 1108 allows the admission of prior sexual offenses in criminal actions charging the defendant with a sexual offense, provided the evidence is not inadmissible under section 352. (§ 1108, subd. (a).) In People v. Falsetta (1999) 21 Cal.4th 903, our high court held section 1108 was constitutionally valid because "the trial court's discretion to exclude propensity evidence under section 352 saves" the statute from a due process challenge. (People v. Falsetta, supra, at pp. 907, 916-917.) The reasoning of Falsetta applies with equal force to a due process challenge to section 1109, which also allows the court to exclude propensity evidence under section 352. Numerous appellate court cases have applied Falsetta to section 1109 and rejected defendant's due process argument. (E.g., People v. Johnson, supra, 185 Cal.App.4th at p. 529; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Cabrera, supra, 152 Cal.App.4th at p. 704; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029; People v. Brown (2000) 77 Cal.App.4th 1324, 1332; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096.) We see no reason to part ways with these cases and likewise reject the argument.
Moreover, the trial court did not abuse its discretion in admitting the prior acts evidence. The evidence was highly probative in that the prior acts were similar to the charged crime and defendant committed the prior acts against the same victim. All of the prior incidents involved verbal arguments between defendant and J.P., as did the offense here. The beer bottle incident involved him throwing an alcohol bottle in J.P.'s direction, just like here. And, according to J.P., when he punched her in the nose and hit her with the beer bottle, he did so inadvertently. He punched her nose because she moved into the path of his fist, and he hit her with the bottle because she was behind him when he threw it over his head. Her explanations for these incidents are remarkably similar to how defendant characterized the charged offense—he was not aiming for her with the vodka bottle but was merely frustrated and trying to get rid of the bottle.
The section 352 factors on the other side of the scale did not outweigh this probative value. The evidence did not consume much time. J.P.'s testimony about the prior acts consisted of approximately four pages of reporter's transcript, and only another three pages of cross-examination. The cross-examination of defendant about the prior acts consumed approximately three and a half pages. Further, the danger of undue prejudice was low. The prior acts were not significantly more inflammatory than the charged offense, and they were very recent, occurring within the two years prior to trial. While defendant was not already convicted and punished for the punching and beer bottle incidents, there was little danger of confusing or misleading the jury into punishing him for these acts. The court instructed the jury with CALCRIM No. 852, which told the jurors that, even if they decided defendant committed these uncharged acts, that evidence was only one factor to consider along with all the other evidence, in deciding whether the People had proved the charged incident beyond a reasonable doubt. Additionally, the instruction told the jurors that the prior acts evidence was insufficient alone to show defendant's guilt of the charged offense. We presume the jurors followed these instructions. (People v. Edwards (2013) 57 Cal.4th 658, 723.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.