Opinion
H043372
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SILVERIO LOPEZ PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1241490)
Following a jury trial, defendant Silverio Lopez Perez was convicted of inflicting corporal injury on a spouse, false imprisonment, and dissuading or attempting to dissuade a witness by use of force or threat of force. He seeks reversal of the dissuading or attempting to dissuade a witness conviction on statute of limitations grounds. He also contends the trial court committed prejudicial error in admitting evidence of prior domestic abuse and in denying a related motion for a mistrial. We shall affirm.
I. BACKGROUND
A. Evidence Adduced at Trial
Defendant's wife, A.R., got home from work late on the night of January 6, 2012. She went into the bedroom where defendant and their two youngest children were. As was frequently the case, defendant wanted to check A.R.'s cell phone to read any text messages. She testified that he was jealous and did not want her texting anyone. She refused and they physically struggled over the phone. Defendant got the phone away from A.R. and checked her text messages. He saw messages between her and a male friend, which angered him. He accused her of cheating. The two continued arguing; defendant pushed A.R. and hit her in the face and neck. She hit him back and scratched his face.
A.R. threatened to call the police, at which point defendant threw her cell phone to the floor, breaking it. He then told her: "There's your cell phone there. Call the police." A.R. tried to run out of the bedroom. Defendant grabbed her and pulled her back. She pushed him and eventually broke free. She ran to the living room, where defendant caught up with her and held her around the waist. Again, A.R. pushed defendant off her.
Maria O., A.R. and defendant's then-20-year-old daughter, had been asleep on the living room couch. She awoke to her parents fighting. She saw her father hitting her mother in the face with his fist. Maria threatened to call the police.
A.R. ran out the front door towards her van. Defendant chased her down and grabbed her from behind. Maria followed them out the front door; from the porch, she saw her father trying to pull her mother back into the house. A.R. got away and ran to her other vehicle, a car. She managed to get inside. Defendant hit the car with his open palms. A.R. drove to a nearby gas station where she called police.
Maria also called the police. Defendant fled on foot.
Patrick Gavin, a deputy sheriff with the Santa Clara County Sherriff's Department, responded to a dispatch regarding a domestic disturbance early on the morning of January 7, 2012. At approximately 1:00 a.m., he arrived at a gas station where A.R. was being examined by paramedics. Gavin also examined A.R.'s injuries, which she declined to have treated at a hospital. He testified that she had a cut inside her lip, a bump on the back of her head, scratches on her neck and arms, and bruising on her arms.
Defense investigator Irma Acosta testified that she interviewed A.R. in October 2013. A.R. told the investigator that the police report was inaccurate, that she pushed and hit defendant, and that she wanted the charges against him dropped. A.R. testified that she told the defense investigator that she bore some of the fault for the fight, but that that was untrue. A.R. explained that she told the investigator that because defendant had threatened to hit her again if she did not drop the charges.
Defendant testified that A.R. willingly gave him her cell phone when she arrived home at 11:00 p.m. on January 6, 2012. He saw text messages between her and a man with whom she was cheating. He tried to call the man. A.R. got upset, hit defendant, bit him, took the phone away, and threw it to the ground. A.R. went out to the living room and sat on the couch with Maria, who was watching television. Defendant sat beside A.R. and kissed her on the lips. She bit his lip and he bit hers to make her let go. A.R. then pushed defendant and told him she was going to leave him forever. He tried to stop her from leaving by grabbing her hand and sweater. He followed her outside, still trying to prevent her from leaving. Eventually, he walked away. Defendant denied punching or pushing A.R. or trying to prevent her from calling the police. He also denied ever hitting A.R. on any other occasion.
B. Procedural History
The Santa Clara County District Attorney filed a felony complaint on February 1, 2012 charging defendant with inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and false imprisonment by violence, menace, fraud, and deceit (§§ 236, 237). The complaint alleged defendant had served a prior prison term. (§ 667.5, subd. (b)). Also on February 1, 2012, the court issued a warrant for defendant's arrest.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was arraigned on the complaint on September 3, 2015. Following a September 11, 2015 preliminary hearing, the court held him to answer on both counts of the complaint. The district attorney filed an information on September 14, 2015. Like the felony complaint, it charged defendant with inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and false imprisonment by violence, menace, fraud, and deceit (§§ 236, 237). The information also charged defendant with dissuading or attempting to dissuade a witness by use of force or threat of force (§ 136.1, subd. (c)(1)). All three counts were alleged to have occurred on or about January 6, 2012. The information also included the prior prison term allegation. (§ 667.5, subd. (b)).
Defendant demurred to the count 3 charge of dissuading or attempting to dissuade a witness, arguing the statute of limitations barred his prosecution for the offense. The court overruled the demurrer on October 5, 2015. Defendant then moved, unsuccessfully, to dismiss count 3 pursuant to section 995, also on statute of limitations grounds. In an amended information filed on November 2, 2015 over defendant's objection, the district attorney alleged that the statute of limitations governing the dissuading or attempting to dissuade a witness charge was tolled by section 803, subdivision (b).
The case proceeded to a jury trial in November 2015. Jurors convicted defendant of all three counts on November 10, 2015. In connection with count 3, the jury found true the allegation that prosecution commended within three years of the offense. Following a separate court trial, the court found true the prior prison term allegation.
The court imposed a six-year prison term on March 4, 2016: the midterm of three years on count 1; the midterm of two years on count 2, stayed under section 654; and the midterm of three years on count 3, to be served consecutively. The court struck the section 667.5, subdivision (b) enhancement pursuant to section 1385. Defendant timely appealed that same day.
II. DISCUSSION
A. Defendant's Prosecution for Count 3 was Timely
Defendant contends that his conviction on count 3 must be reversed because the applicable three-year statute of limitations barred his prosecution for dissuading or attempting to dissuade a witness. The Attorney General argues that the prosecution was timely because, under section 803, subdivision (b), the limitations period on count 3 was tolled by defendant's prosecution for counts 1 and 2, as all three counts involved the same conduct. Defendant responds that section 803, subdivision (b), should be construed not to apply where the later-filed charges are more serious than the pending charges.
1. Legal Principles and Standard of Review
A prosecution for dissuading or attempting to dissuade a witness by use of force or threat of force in violation of section 136.1, subdivision (c)(1) must be commenced within three years. (§§ 801, 136.1, subd. (c).) Prosecution for an offense commences "when any of the following occurs: [¶] (a) An indictment or information is filed. [¶] (b) A complaint is filed charging a misdemeanor or infraction. [¶] (c) The defendant is arraigned on a complaint that charges the defendant with a felony. [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." (§ 804.)
The statute of limitations is tolled when a "prosecution of the same person for the same conduct is pending in a court of this state." (§ 803, subd. (b).) That tolling provision " 'continues the substance of former Section 802.5.' [Citation.] Former section 802.5 provided in pertinent part: '[N]o time during which a criminal action is pending is . . . part of any limitation of . . . time for recommencing that criminal action in the event of a prior dismissal of that action, subject to . . . Section 1387.' [Citation.] [¶] As the Law Revision Commission comment to section 803 explains: 'The limitation of former Section 802.5 that permitted recommencing the same "criminal action" is replaced by a broader standard of prosecution for the "same conduct," drawn from Model Penal Code § 1.06(6)(b). The former law that provided tolling only for a subsequent prosecution for the same offense was too narrow, since the dismissal may have been based upon a substantial variation between the previous allegations and the proof. The test of the 'same conduct,' involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute.' [Citation.] Section 803, subdivision (b), was intended to ensure 'that if a pending prosecution is dismissed for a technical defect, the running of the statute of limitations will not bar reprosecution.' [Citation.]" (People v. Terry (2005) 127 Cal.App.4th 750, 768, fn. omitted (Terry).)
" 'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) "A statutory provision is ambiguous if it is susceptible of two reasonable interpretations." (People v. Dieck (2009) 46 Cal.4th 934, 940.) "[I]f the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy. [Citations.]" (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
"We independently review findings on legal issues and the interpretation of a statute is a legal issue subject to de novo review." (Fry v. City of Los Angeles (2016) 245 Cal.App.4th 539, 549.)
2. Statutory Construction
Here, defendant's prosecution for counts 1 and 2 commenced on February 1, 2012, when a warrant for his arrest was issued. (§ 804, subd. (d).) His prosecution for count 3 was not commenced until the information was filed on September 14, 2015. (§ 804, subd. (a).) Because count 3 was alleged to have occurred on or about January 6, 2012, more than three years before the filing of the information, defendant contends his prosecution was time-barred.
As noted, the Attorney General says that the limitations period applicable to count 3 was tolled, under section 803, subdivision (b), by defendant's pending prosecution for the same conduct in counts 1 and 2. Defendant disagrees, arguing that section 803, subdivision (b), does not apply where the later-filed charges are more serious than the prior charges. He bases that contention on the Law Revision Commission comment to section 803, which this court repeated in Terry, that "[t]he test of the 'same conduct,' involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute." (Terry, supra, 127 Cal.App.4th at p. 768, italics added.) According to defendant, the Law Revision Commission's statement that the section 803, subdivision (b) standard protects defendants "against an enlargement of the charges" should be read to mean the tolling provision does not apply to charges that are more serious than the pending charges. Defendant concedes that no authority supports his reading of section 803, subdivision (b).
In construing section 803, subdivision (b), we begin with the plain language of the statute. It provides: "No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter." (§ 803, subd. (b).) At issue is the meaning of the phrase "the same conduct." The Penal Code does not define that phrase for purposes of section 803, so we look to dictionaries to ascertain its ordinary, usual meaning. (Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192 Cal.App.4th 75, 83.) The word "same" is defined as "identical." (Oxford English Dict. (2018) <http://www.oed.com/view/Entry/170362> [as of Aug. 29, 2018], archived at: <https://perma.cc/EAX8-XAN5>; Merriam-Webster's Online Dict. (2018) <http://www.merriam-webster.com/dictionary/same> [as of Aug. 29, 2018], archived at: <https://perma.cc/P2UQ-KAR3>.) The word "conduct" is defined as "behavior." (Oxford English Dict. (2018) <http://www.oed.com/view/Entry/38617> [as of Aug. 29, 2018], archived at: <https://perma.cc/HG48-H7W8>; Merriam-Webster's Online Dict. (2018) <https://www.merriam-webster.com/dictionary/conduct> [as of Aug. 29, 2018], archived at: <https://perma.cc/XJN4-VYH9> ["a mode or standard of personal behavior especially as based on moral principles"].) Therefore, the ordinary meaning of "the same conduct" is "the identical behavior." That phrase is not ambiguous. By its plain meaning, then, section 803, subdivision (b) applies any time a new charge is based on the very conduct or behavior for which the defendant already is being prosecuted (or previously was prosecuted), without regard to the relative seriousness of that new charge.
Defendant's reliance on People v. Olecik (1995) 51 Cal.App.4th 54, review granted Oct. 19, 1995, S048312 is misplaced. Because the Supreme Court granted review in that case, it is noncitable as precedent. Moreover, it relied on cases that were decided before the enactment of section 803, subdivision (b).
Our reading of section 803, subdivision (b) is consistent with the overall statutory scheme governing criminal limitations periods. (See Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 (Horwich) [" 'we do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." [Citation.]' "].) As recommended by the Law Revision Commission in 1984, criminal statutes of limitations are longer the more serious the crime. (See Statutes of Limitations for Felonies (Jan. 1984) 17 Cal. Law Revision Com. Rep. (1984) p. 313 (the Commission) [recommending that a "felony limitations statute should generally be based on the seriousness of the crime"]; § 799, subd. (a) [prosecution for an offense punishable by death or life imprisonment, or for the embezzlement of public money, may be commenced at any time]; § 800 [six-year limitations period for offenses punishable by eight or more years' imprisonment]; § 801 [three-year limitations period for offenses punishable by imprisonment for less than eight years].) Reading section 803, subdivision (b) as we do—to allow tolling regardless of the seriousness of the crime—preserves that overall scheme. By contrast, construing the tolling provision as defendant proposes—to prohibit tolling for more serious crimes—would have the perverse effect of extending the limitations period for less serious crimes only, while effectively granting amnesty to more serious offenders.
Our construction of section 803, subdivision (b) also comports with "[t]he pre-eminent function of a felony limitations statute[, which] is to protect a person accused of crime both from having to face charges based on evidence that may be unreliable and from losing access to the evidentiary means to defend against the accusation." (The Commision, supra, p. 308; Horwich, supra, 21 Cal.4th at p. 276 ["We must also consider 'the object to be achieved and the evil to be prevented by the legislation. [Citations.]' "].) A pending prosecution for the same conduct should alert the defendant to the need to preserve any relevant evidence regarding that conduct. Accordingly, the "same conduct" standard neutralizes concerns about staleness and evidence preservation.
3. Analysis
Having construed section 803, subdivision (b), we consider whether count 3 was based on the same conduct as counts 1 and 2. It was.
The elements of a violation of section 136.1, subdivision (c)(1), as charged in count 3, are: (1) the person threatened is a crime victim; (2) the defendant attempted to prevent or dissuade the victim from reporting that victimization to law enforcement; (3) the defendant acted knowingly and maliciously; and (4) the act of preventing, dissuading or the attempt thereto, was accompanied by force or by an express or implied threat of force or violence upon the person or property of the victim or any third person. (§ 136.1, subds. (b)(1) & (c)(1); see also CALCRIM Nos. 2622, 2623.) The prosecutor's theory as to count 3 was that A.R. was a victim of the crime charged in count 1, corporal injury on a spouse, and that defendant attempted to prevent her from reporting that crime to police by falsely imprisoning her as charged in count 2. Thus, count 3 was based on the same conduct as counts 1 and 2, such that the statute of limitations on count 3 was tolled by the prosecution of counts 1 and 2 and defendant's prosecution was timely.
Defendant notes that counts 1 and 2 charged general intent crimes while count 3 charged a specific intent crime and contends that, accordingly, count 3 involved different conduct for purposes of section 803, subdivision (b). He cites no authority for the position that intent constitutes conduct. For purposes of criminal law, the two concepts generally are considered to be distinct. Indeed, a fundamental principle of criminal law is that there must be a union of act or conduct and wrongful intent or criminal negligence for a crime to have been committed. (§ 20; People v. Linwood (2003) 105 Cal.App.4th 59, 70 ["a criminal offense must include a conduct element (actus reus) and a mental element (mens rea) in union"]; People v. Anderson (2007) 152 Cal.App.4th 919, 937 ["With respect to a joint operation instruction, the words 'act' and 'conduct' essentially convey the same meaning"]; CALJIC No. 3.30 ["there must exist a union or joint operation of act or conduct and general criminal intent"]; CALJIC No. 3.31 ["there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator"].) Section 803, subdivision (b) requires only the "same conduct," not the same intent.
Defendant suggests that the prosecutor waited to charge him with count 3 because of negligence or vindictiveness. We need not address that accusation because, as defendant's reply brief clarifies, it is mere speculation and not a separate legal challenge.
Finally, defendant contends the jury should not have been tasked with determining whether the prosecution of count 3 was timely. Defendant does not indicate that he objected to the verdict form below, as required to preserve this claim for appellate review. Regardless, any error was harmless. Jurors concluded the prosecution was timely, which it was for the reasons set forth above.
B. Evidence of Prior Domestic Abuse
Defendant next contends the trial court erred by eliciting testimony regarding past domestic abuse, denying defendant's subsequent motion for a mistrial, and refusing to instruct the jury to disregard the complained-of testimony.
1. Relevant Background
Defendant moved in limine to exclude any evidence of his prior convictions, including a 1998 conviction for misdemeanor offensive touching (§§ 242, 243, subd. (e)), on relevance and Evidence Code section 352 grounds. The trial court granted that motion. Also pre-trial, the prosecutor sought permission to introduce evidence of uncharged conduct pursuant to Evidence Code section 1109. The court ruled that evidence of domestic abuse against defendant's wife in the five years preceding the January 6, 2012 incident was admissible.
A.R. testified to one incident of prior domestic violence, saying defendant hit her in the head approximately one month before the January 6th incident, causing her to bleed. Immediately before A.R. gave that testimony, the court instructed the jury, in relevant part, as follows: "The People are about to present evidence that the defendant committed domestic violence that was not charged in this case but charged on a prior occasion. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. . . . [¶] If you decide that the defendant committed this uncharged domestic violence, that is, that it did not occur on January 6th and 7th but on a prior occasion, then you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Count 1 as charged here. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count 1. The People must still prove each charge beyond a reasonable doubt. Do not consider this evidence for any other purpose."
The court appears to have misspoken when it included the phrase "but charged on a prior occasion." The defendant was not charged in connection with the incident A.R. testified to; the instruction the court read is based on CALCRIM No. 852A, which does not include that language; and when the court instructed the jury with CALCRIM No. 852A at the end of the trial, it did not include that language.
As noted above, Maria testified that she threatened to call the police during the January 6 fight. On cross-examination, defense counsel asked her whether her parents reacted to that threat. Maria responded: "No. Usually, I always tell my dad I'm going to call the police when he beats my mom up, so he didn't pay attention." On redirect, Maria clarified that she had "never called the police on [defendant]" before, only threatened to do so.
Jurors submitted questions to the court to be asked of Maria, including: (1) "Have you witnessed defendant hit your mother before?" and (2) "Why did you 'never' call the police, only threaten?" According to a settled statement, defense counsel objected to both of the foregoing questions at an unreported sidebar. The settled statement provides that "[d]efense counsel recalls, to the best of his ability, that he objected under foundation and relevance grounds, and most likely under Evidence Code section 352." The court overruled the objections and indicated that Maria's response to the first question would be admissible under Evidence Code section 1109.
The court posed the juror questions and Maria responded as follows:
"The Court: Okay, you threatened to call police, but you didn't until January 6th; is that right?
"[Maria]: Yes.
"The Court: Why did you only threaten and not carry out your threat?
"[Maria]: Because when we were young, we did, and nothing happened. And the following day he came home and beat us and told us if we ever called the cops, they weren't going to do anything, and he was going to continue to beat us.
"The Court: Okay. Have you witnessed your father hit your mother before?
"[Maria]: Plenty of times.
"The Court: Okay. Can you put that in a time frame? Like, a month before? A year before?
"[Maria]: All I remember from my childhood is getting beat by my father and him beating my mom, and that's all I recall. So if there's a time frame, it's since I can remember."
Immediately thereafter, outside the presence of the jury, defense counsel moved for a mistrial, arguing Maria had testified about the 1998 conviction that the court had ruled inadmissible. For that position, defense counsel pointed to Maria's testimony that she had not previously carried out her threats to call police "[b]ecause when we were young, we did, and nothing happened. And the following day he came home and beat us and told us if we ever called the cops, they weren't going to do anything, and he was going to continue to beat us." The trial court denied the motion for a mistrial. Defense counsel then asked that the jury be instructed to disregard "that answer." The court refused that request but stated that she could "remind them as to how they're to view uncharged domestic violence."
The court again instructed jurors on the use of evidence of uncharged domestic abuse at the close of trial, stating, in relevant part: "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically, previous instances of domestic violence. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant[,] in fact[,] committed the uncharged domestic violence. . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crime charged in Count One or the lesser offense of simple battery on a spouse. . . . [¶] The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
2. Contentions on Appeal
Defendant contends the court erred in asking Maria the jury questions to which he objected and which he says elicited inadmissible testimony, in denying his mistrial motion, and in refusing to instruct the jury not to consider one of Maria's answers.
Defendant maintains two of Maria's responses communicated inadmissible evidence. First, he says Maria's testimony that all she remembered from her childhood was "getting beat by [her] father and him beating [her] mom" violated the court's in limine ruling excluding evidence of domestic violence that occurred more than five years prior to the incident and was inadmissible under Evidence Code section 1109, subdivision (e) because it referred to events that occurred more than 10 years earlier. He further maintains that testimony should have been excluded as unduly prejudicial under Evidence Code section 352. Second, defendant complains about Maria's explanation for why she usually did not call police: "when we were young, we did [call police], and nothing happened. And the following day, he came home and beat us, and told us if we ever called cops, they weren't going to do anything, and he was going to continue to beat us." He contends the admission of that testimony violated the court's in limine ruling excluding evidence of defendant's 1998 conviction, was inadmissible under Evidence Code section 1109, subdivision (e) because it referred to events that occurred more than 10 years earlier, and should have been excluded as unduly prejudicial under Evidence Code section 352.
3. The Court Did Not Err in Refusing to Grant a Mistrial or to Admonish the Jury as Defense Counsel Requested
" 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] 'A motion for a mistrial should be granted when " ' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." ' " ' [Citation.] On appeal, we apply the abuse of discretion standard in reviewing a trial court's denial of a motion for mistrial. [Citations.]" (People v. Chavez (2018) 21 Cal.App.5th 971, 1014.)
Defendant moved for a mistrial on the narrow ground that Maria's response to a question asking why she previously had only threatened to call the police referenced a 1998 conviction that the court had ruled inadmissible. Defendant's interpretation of Maria's testimony is not reasonable. Her full response was: "Because when we were young, we did [call the police], and nothing happened. And the following day he came home and beat us and told us if we ever called the cops, they weren't going to do anything, and he was going to continue to beat us." No reasonable juror would have understood that testimony—particularly given the statement that "nothing happened"—to mean that defendant had previously been convicted of domestic abuse or any other crime. Accordingly, the trial court did not abuse its discretion in denying the motion for a mistrial. For the same reasons, the trial court did not err by refusing to admonish jurors to disregard the complained-of response.
4. Any Error in the Admission of the Testimony Was Harmless
Defendant also argues, more generally, that the court erred in asking the juror questions, which he says elicited testimony that was inadmissible under the court's in limine rulings and Evidence Code sections 352 and 1109. Even assuming the court erred, any error was not prejudicial.
It is not clear that defendant preserved these evidentiary challenges for appellate review. (Evid. Code, § 353 ["A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ."].) According to the settled statement, defense counsel may have objected to the juror questions under Evidence Code section 352; no mention of any Evidence Code section 1109 objection appears. Because the Attorney General does not argue forfeiture, we do not resolve the challenges on that basis. --------
Generally, the erroneous admission of evidence is tested for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836, under which reversal is appropriate only if it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (Evid. Code, § 353; Cal. Const., art. VI, § 13.) However, defendant contends the harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24 applies here because the admission of the complained-of testimony violated his federal due process rights. Under either standard, there was no prejudice.
In conducting Watson review, we "may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177.) That is the case here. The evidence of defendant's guilt was strong. A.R. testified that defendant pushed and hit her, broke her cell phone when she threatened to call police, and physically prevented her from leaving the house on January 6, 2012. Maria confirmed that, on that night, defendant hit and restrained her mother. Deputy Sheriff Gavin's testimony about A.R.'s injuries likewise corroborated her version of events, which jurors clearly credited.
The defense evidence was comparatively weak. Defendant's self-serving testimony that A.R. was the aggressor was uncorroborated. And certain aspects of his story were far-fetched, including his explanation for the injury to the inside of A.R.'s lip—that he kissed her mid-fight, she bit him, and he simultaneously bit her to make her let go. While the defense investigator testified that A.R. walked back her accusations in an October 2013 interview, A.R. explained on the stand that she did so because defendant had threatened her with further physical abuse.
In sum, it is reasonably probable that defendant would have been convicted of all charges even if jurors had not heard Maria's testimony that he regularly beat his wife and children. Given the strength of the evidence of defendant's guilt, we likewise are convinced beyond a reasonable doubt that any error in the admission of Maria's testimony did not contribute to the verdict.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.