Opinion
F060726 Super. Ct. No. CRM003561
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS PINEDA, JR., Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Nicholas Pineda, Jr. was convicted of inflicting corporal injury to his wife, Maria, resulting in a traumatic condition. On appeal, he contends (1) insufficient evidence supported the conviction, (2) the trial court erred in failing to instruct on unanimity, (3) the trial court abused its discretion by admitting evidence of defendant's prior domestic violence against Maria, (4) the trial court erred in failing to instruct on self-defense with regard to evidence of defendant's prior domestic violence, (5) the trial court erred in failing to instruct that evidence of Maria's prior domestic violence could be used to prove her propensity to commit domestic violence, (6) the trial court abused its discretion by admitting evidence of prior verbal arguments to prove defendant's motive to commit domestic violence, (7) the trial court erred in failing to instruct that evidence of prior verbal arguments could be used to prove Maria's motive to commit domestic violence, and (8) defense counsel was ineffective for various reasons. We will affirm.
PROCEDURAL SUMMARY
On May 7, 2010, the Merced County District Attorney charged defendant with inflicting corporal injury on Maria, resulting in a traumatic condition. (Pen. Code, § 273.5, subd. (a); count 1). A jury found defendant guilty, and the trial court granted three years' probation with 90 days of jail time.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
Prosecution Evidence
On June 27, 2009, defendant and Maria got into an argument that evolved into a violent incident. Officers responded, took photographs, interviewed Maria and her daughter, N., and arrested defendant. Maria was examined at the emergency room. At trial, Maria and N. recanted, telling a different version of the incident. Defendant testified he was defending himself from Maria's drunken attack.
Due to credibility issues, we present the following facts according to each witness's testimony.
Wife Maria
Maria testified that she and defendant had been married for almost 13 years and they were still living together at the time of trial. They had their ups and downs, and their arguments and disagreements, like any other marriage. They had three children— 11-year-old N., nine-year-old K., and a newborn baby, who was conceived in September 2009, a couple of months after the incident in this case.
On June 27, 2009, the day of the current incident, Maria and defendant went to a baptismal party. During the four to six hours they were there, they each drank between four and six 12-ounce beers. In addition, Maria drank two or three mixed drinks.
When defendant was driving the family home, Maria told him her brother wanted to borrow money from them. Maria's brother was not working and Maria wanted to loan him the money. Defendant, however, disagreed and became angry. He and Maria got into an argument.
When they got home, they started watching television in the living room. N. and her two friends, who had come for a slumber party, went upstairs. At some point, defendant fell asleep. He was still asleep when Maria's brother arrived. The brother took Maria to the store to buy more beer. When they returned, Maria drank at least three more beers. Her brother asked to borrow money and Maria told him she did not have any more money. Her brother left.
Defendant woke up to find Maria going through his pocket. Maria told him she needed some money to loan to her brother. Defendant got mad and refused to give her brother any money, calling him a "low life." Defendant walked toward the bathroom and Maria followed. She told him that was "messed up." Defendant yelled that he was "not going to give [her brother] nothing." They argued in the hallway for a while, and at some point, Maria pushed a key on the alarm pad near the bathroom door.
At trial, Maria could not remember what she told the responding officer that night. She did not think she showed the officer her injuries, but she agreed that the photographs in evidence were taken of her that night. She also could not remember telling the officer that she and defendant had experienced 30 to 50 unreported domestic violence incidents.
Maria acknowledged she was taken to the hospital's emergency room by ambulance, but she denied that she was treated for a head injury. She did not think she spoke to Nurse Practitioner Cavanaugh at the hospital, and she did not think she told Cavanaugh, "[M]y husband beat me up," or that this same type of violence had occurred before. In addition, Maria did not tell, or did not remember telling, Cavanaugh that defendant hurt her right wrist when he grabbed her, hurt her left knee when he threw her to the ground, stomped on top of her, or kicked her in the right side of her back. She did not remember whether she was given pain medication.
The prosecutor showed Maria a photograph of her face and asked, "[I]s your lip swollen in that picture?" Maria said, "I can't really tell. [¶] ... [¶] My lips are big already so— [¶] ... [¶] It's the same. My lips are the same." The prosecutor asked her, "This looks the same to you as you look today?" Maria said, "Yeah." When shown a photograph of her arm, she described two dots of discoloration. She said a photograph of her knee showed a mark. She did not remember complaining of knee pain that night, and she did not remember whether she already had the knee injury before the argument. She did not think she told the officer she received the cut on her knee when defendant threw her to the ground. She actually received it when she fell to the tile floor next to the bathroom Maria also did not remember telling the officer that she had abdominal pain as a result of being kicked by defendant or that she threw a vase at defendant during the argument. When shown a photograph of the broken vase, she said she may have thrown it; she did not remember.
The prosecutor showed Maria two domestic violence information memoranda that Maria had filled out. Maria prepared the first one on November 9, 2009, when she was already pregnant. In that memorandum, Maria informed the district attorney's office that she was pregnant, wanted to give defendant a chance, had experienced no problems since the incident in this case, and wanted to drop the charges against defendant. She did not, however, claim the incident had not occurred.
Maria prepared the second memorandum on January 4, 2010. She wrote that she "vaguely remembered" telling the officer that defendant kicked her and punched her in the face, but she may have exaggerated the events because of alcohol. Again, she did not state the incident had not occurred.
At trial, Maria did not remember various past incidents of domestic violence. She thought she had summoned officers to her house about three times when she and defendant were arguing, and she knew she had been arrested for driving under the influence in 2005 and for domestic violence in 2006. In the 2006 incident, she and defendant were drinking at a bar. She did not remember any details of the incident or how many days she spent in jail. She did not remember telling the officer that defendant hit her in the car, that she tried to get out of the car, that defendant grabbed her, or that she scratched his face.
After Maria's repeated "I don't remember" answers, the prosecutor played a recording of Maria's interview with Officer Pitney, who responded on the night of the current incident. The interview took place at defendant and Maria's house at 12:39 a.m.
"[OFFICER PITNEY]: [M]a'am, do you want to tell me what happened?
"[MARIA]: What happened was that he got mad and started talking about me loaning my brother money and some guy at my job that I have nothing to do with. He's in a totally different department. He started pushing me. I pushed him back and told him to get ... off of me.
"[OFFICER PITNEY]: And where did that happen?
"[MARIA]: In the hallway, in the entrance, to the, in the front room, in the living room.
"[OFFICER PITNEY]: So it started in the entrance?
"[MARIA]: Uh huh.
"[OFFICER PITNEY]: What happened?
"[MARIA]: He started pushing me and calling me bitch and I was calling him names, too, and telling him to fuck off and that's fucked up. Then he . . . and he pushed me and he pushed me up against the wall a couple of times and then he grabbed me by my throat. He slammed me around a couple of times. And his Mom was telling him to get off of me and the kids were here. They were seeing everything that was going on. I don't know exactly what she was saying in Spanish because I don't understand, but I guess in Spanish she was telling him to stop.
"[OFFICER PITNEY]: What else happened?
"[MARIA]: And then he pushed me on the floor and he was like hitting me.
"[OFFICER PITNEY]: How was he hitting you?
"[MARIA]: With his hand.
"[OFFICER PITNEY]: Closed fist or open hand?
"[MARIA]: With a[n] open hand.
"[OFFICER PITNEY]: And where was that?
"[MARIA]: That was in the living room.
"[OFFICER PITNEY]: Where on your body?
"[MARIA]: On my arms.
"[OFFICER PITNEY]: Where else?
"[MARIA]: And that was it. And then, the first thing, I ran to go turn to go push the alarm. I pushed the alarm for the police and he pushed me on the ground real hard. He said, 'I don't care, call them. Call them. I don't give a fuck.' And then he started kicking me and he hit me in my mouth.
"[OFFICER PITNEY]: Where were you when he was kicking you?
"[MARIA]: I was in the, the middle of the hallway right here where the garage and the bathroom door is at. He had already pushed me on the ground. I'm sorry, he hit me in the mouth before that, before I went on the ground, hit me in the mouth.
"[OFFICER PITNEY]: Closed fist?
"[MARIA]: I don't know. It was so fast. I didn't even know.
"[OFFICER PITNEY]: Okay.
"[MARIA]: Then I ran to push the alarm and then that's when he started kicking me (unintelligible).
"[OFFICER PITNEY]: (Unintelligible[.])
"[MARIA]: He was kicking me and kicking me in the sides.
"[OFFICER PITNEY]: Is that ... while you were on the ground?
"[MARIA]: Yes.
"[OFFICER PITNEY]: Did he have a shoe on?
"[MARIA]: And then his Mom was telling him to stop and he said, 'I don't care. Nobody gives a fuck about me.' He's all, 'Nobody cares about me[.]' How can he say that? But anyway, [ h]e said that he don't care, that nobody cares about him and what he does or nothing.[]
"[OFFICER PITNEY]: When he was kicking you, did he have shoes on?
"[MARIA]: He did have shoes, I think.
"[OFFICER PITNEY]: (Unintelligible.)
"[MARIA]: I didn't even notice. He might not have had any shoes on. You know what, probably he didn't have shoes on because (unintelligible), but he was kicking me and kicking my side and I remember him telling his Mom, 'Nobody cares about me. Nobody gives a fuck about me.' And then I got up. I was crying (unintelligible) my sides and it hurt. So then I got up and he said[,] 'I don't give a fuck. You can call the cops.' So I did. I pressed all the little buttons on the alarm, pressed all of them. You know what's sad is that we're supposed to be trying to have another baby.
"[OFFICER PITNEY]: How many children do you have in common right now?
"[MARIA]: We have two and then I really didn't even want to try and have another baby cause then I kinda thought, you know, that if we have another baby then everything will be just fine.
"[OFFICER PITNEY]: How many other instances of domestic violence, whether reported or not reported, have you guys had?
"[MARIA]: Too many.
"[OFFICER PITNEY]: How many is too many?
"[MARIA]: Probably over like 30-50.
"[OFFICER PITNEY]: Okay 30-50 that have been reported or not reported?
"[MARIA]: (Unintelligible) reported.
"[OFFICER PITNEY]: Are there any weapons in the house?
"[MARIA]: No.
"[OFFICER PITNEY]: Have you guys been drinking alcohol
tonight?
"[MARIA]: We were drinking earlier, yeah. We were at a party.
"[OFFICER PITNEY]: Okay, what time was that?
"[MARIA]: That was around 5:30.
"[OFFICER PITNEY]: What were you guys drinking at the party?
"[MARIA]: We were drinking beer.
"[OFFICER PITNEY]: Do you remember how much beer?
"[MARIA]: Um, I probably drank maybe like four and he probably drank maybe around, about the same, about, probably about five.
"[OFFICER PITNEY]: Over how long?
"[MARIA]: Oh, about, almost, about two o'clock.
"[OFFICER PITNEY]: Anything else you can tell me?
"[MARIA]: (Unintelligible) my kids first.
"[OFFICER PITNEY]: Your kids are (unintelligible). What's also going to happen is I'm going to notify Child Protective Services as well, okay, because the kids witnessed a traumatic event and you'll probably be contacted by Social Services, also. And you have the emergency protective order for you. And a court date and he's going to get booked into Merced County Jail for at least one felony, if not more, and we're gonna go from there, okay?
"[MARIA]: I want out.
"[OFFICER PITNEY]: This is the first step in getting out.
"[MARIA]: You know, I, I told myself that all the times before, but you can't change nobody.
"[OFFICER PITNEY]: You cannot. And nobody deserves to be anybody's punching bag.
"[MARIA]: And that's what I said. I'm nobody's dog. I'm not a foot mat. (Unintelligible) somebody who just walks all over me and be like the next (unintelligible). I got a good job and I work really hard. You know what I'm saying. I work really, really hard. I don't need to be doing this like every time. This is too much and my kids, they don't deserve that. I just want out. I want out of it. There's no reason to keep going. I tried and I tried and I tried and it doesn't matter. It doesn't matter how much I try or no matter how much I do. Nothing is good enough. Nothing is better. Nothing is good to where oh, he can say oh, he's happy. He's never happy with us. He's not happy with the girls. He's not happy with me. He's not happy with nothing. And I can't keep doing it.
"[OFFICER PITNEY]: It is midnight 50 hours, end of the interview."
After the interview was played for the jury, Maria testified that she was very drunk during that interview. When the prosecutor asked her if she was able to understand Officer Pitney's questions during the interview, she said, "I'm not sure." The prosecutor then asked her if she told Pitney at any time during the interview that she did not understand what he was asking her. Maria said, "I don't think so."
On cross-examination, Maria stated that she testified at the preliminary hearing that defendant never touched her, that she exaggerated because of alcohol, and that she lied to the officer. She was telling the truth at the preliminary hearing.
Maria explained that she sometimes argued when she was under the influence of alcohol. She had two convictions for driving under the influence and she had been arrested once for domestic violence when she was intoxicated. She did not remember the details.
Maria stated that in the current incident, she was drunk when she argued with defendant, and N. was not present when they were arguing. Maria said she was drunk when she talked to Officer Pitney that night. She denied telling the doctors that defendant beat her up. In fact, she did not remember speaking to the doctors. Maria explained that her face was red in the photographs because she was crying. She could not see any swelling in her lips; she just had larger than average lips. She said she testified at the preliminary hearing that she did not have a swollen lip or any other bruising, marking, or swelling, and that the cut on her knee occurred when she slipped and fell accidentally.
On redirect examination, Maria agreed that at the preliminary hearing she denied saying what she had said in her recorded interview with Officer Pitney. She said she knew N. was not downstairs while they were fighting because she had seen N. in her room with her friends earlier.
Daughter N.
N., who was 11 years old at the time of trial, testified that she went to the baptismal party with her parents. Afterward, two friends came over for a slumber party. N.'s younger sister was also present. At 11:56 p.m. that night, N. called 911 to summon the police. The recorded 911 call, which lasted four minutes 26 seconds, was played for the jury:
"[N.]: Hello?
"[OPERATOR]: Hi, this is the ... Police Department.
"[N.]: Who's this? Hello?
"[OPERATOR]: Hi, what's going on?
"[N.]: My Mom, My Dad's been, My Mom and Dad's fighting and it's real bad.
"[OPERATOR]: Okay and you're at [wrong address]?
"[N.]: [Correct address].
"[OPERATOR]: [Correct address]?
"[N.]: Yeah.
"[OPERATOR]: Okay, where's your Dad at now?
"[N.]: He's downstairs.
"[OPERATOR]: Okay, where's your Mom?
"[N.]: She's downstairs, too. [¶] ... [¶]
"[OPERATOR]: Okay, are they just arguing?
"[N.]: Yeah, and he's putting his hands on my Mom, too. He's putting his hands on my ...
"[OPERATOR]: He's doing what?
"[N.]: He's putting his hands on her.
"[OPERATOR]: Okay, hold on. What's your Dad's name?
"[N.]: Nick.
"[OPERATOR]: Nick? Mmm kay, hold on.
"[N.]: Please hurry! I'm afraid I might get in trouble!
"[OPERATOR]: Okay now I'm gonna keep you on the line. You're not gonna get in trouble, okay?
"[N.]: Please just hurry! He's putting his hands on my Mom, send them fast! Hurry.
"[OPERATOR]: We're on our way. Just stay on the line with me cause I want you to let me know. [Time span.] Are you still there?
"[N.]: Yes, please hurry! (crying) Please!
"[OPERATOR]: We're on our way, hun, okay? The officers are on their way.
"[N.]: I have to hang up now.
"[OPERATOR]: Has your Dad been drinking? Has your Dad been drinking, hun?
"[N.]: Yes, yes, he has, he has.
"[OPERATOR]: He has? He has been drinking?
"[N.]: Please, just hurry up.
"[OPERATOR]: Hun? Can you answer me? Has your Dad been drinking?
"[N.]: Yes, he has.
"[OPERATOR]: Okay.
"[N.]: Can you hurry up? Please! I have to hang up!
"[OPERATOR]: Yeah we're, okay, we're on our way but I'm, I'm keeping you on the phone in case something happens and you need an ambulance or something.
"[N.]: What do you mean? I have to hang up.
"[OPERATOR]: No, don't hang up the phone.
"[N.]: I have to. My dad will hurt me.
"[OPERATOR]: Okay then just put the phone down. Don't let them know you're on the phone, okay? What's your Dad's name?
"[N.]: Nicolas Pineda.
"[OPERATOR]: Okay, where are they at in the house[?]
"[N.]: They're downstairs.
"[N.]: I have to put the phone down now.
"[OPERATOR]: Okay, go ahead.
"[N.]: I can't answer any more questions.
"[OPERATOR]: Okay, okay.
"[N.]: Bye.
[Time span.]
"[N.]: Hello?
"[OPERATOR]: Hello.
"[N.]: I have to hang up now cause my dad ...
"[OPERATOR]: Don't hang up the phone.
"[N.]: Maaa Dad ...
"[OPERATOR]: I don't want you to hang up.
"[N.]: My Dad just told me to, but my Dad ...
"[OPERATOR]: Just put the phone, just put the phone down, don't hang it up, okay?
"[N.]: Okay.
"[OPERATOR]: The officers are gonna be there in just one minute.
"[N.]: Okay.
[Time span. Siren sounding.]
"[N.]: They're here."
At trial, N. explained that she and her friends were scared because defendant and Maria were arguing. N. said that she told the operator that defendant "put his hands on" Maria, but in fact N. did not actually see this occur. She and her friends just assumed it was occurring because they heard the arguing, and because they had seen television shows and knew it was bad. N. had seen her parents argue, but she had not seem them put their hands on each other. N. explained that she kept telling the 911 operator that defendant was putting his hands on Maria because she was scared for both of her parents. She was crying on the call because she was scared due to the loud yelling and arguing. She did not know why that scared her. When N. told the operator she was afraid defendant would hurt her, she meant that he would take her cell phone away. She lied to the operator because she was afraid. She saw defendant drink one cup of alcohol at the party that day, but she did not see Maria drink anything. When they got home from the party, N. and her friends went upstairs to play chess. She did not come downstairs that night, even when the police came. She did speak to an officer, but she did not tell him anything because she did not see anything. She did tell him the truth and she knew it was wrong to lie to a police officer.
On cross-examination, N. testified that she did not leave her room because she and her friends were scared. She told the 911 operator to hurry several times because she thought her cell phone might die. And she told the operator it was "real bad" because the yelling was loud, not because she saw something. She did not tell the officer what happened because she did not see anything.
Responding Officers
Officer Snyder was dispatched to the house at about midnight for an in-progress domestic assault. When he entered, he saw signs of a struggle. Broken glass, possibly from a vase or a cup, was on the floor and a chair was knocked over. Maria was crying and holding her abdomen. She had a swollen upper lip and she complained of stomach pain. Snyder did not recall seeing any injuries on defendant, and he did not notice blood on defendant's head. (He explained that when a suspect is bleeding, the jail requires medical clearance before the suspect can be booked.) Snyder saw a group of small girls huddled quietly together at the top of the stairway. They were looking down to see what was going on downstairs.
Officer Walker arrived at the house next. Walker detained defendant outside while Officer Snyder spoke to Maria. Walker did not notice any injuries to defendant, and defendant did not request an ambulance.
Officer Pitney arrived after Officers Snyder and Walker. Defendant, who was outside with Walker, did not appear to be injured. Inside, there were obvious signs of a physical fight. Pitney observed a broken vase and an overturned chair. Snyder was inside with Maria and defendant's mother. The children were on the staircase landing. Maria was crying and very upset. She asked Pitney for help. She complained of abdominal pain, so Pitney requested an ambulance. She had a swollen lower lip and she was grabbing her abdomen. She said she and defendant had been drinking at a party and they got into an argument about loaning money to her brother. The argument that started in the car continued when they got home. They exchanged profanities with each other. Defendant called her a "fuckin' bitch" and pushed her into a wall near the bathroom. She sustained bruising to her arm. She told defendant to "fuck off" and she tried to push him off of her. The children were crying and yelling at them to stop. Defendant's mother yelled in Spanish at defendant to stop. Defendant punched Maria in the face, then knocked her down. She received a scratch and abrasion to her knee. While she was on the floor, he kicked her in the stomach several times with his bare feet.
Maria told Pitney that she and defendant had experienced 30 to 50 domestic violence incidents, only a few of which were reported to the police. She said she was frustrated and tired of being treated like a dog. She worked too hard. Defendant did not care about her and she wanted out. She did not know if she wanted another child or if that would fix the situation. Maria did not tell Pitney that defendant fell asleep on the couch, that she had more drinks at home, that her brother came over, or that she tried to get money out of defendant's pocket.
Pitney, who was trained in recognizing the signs of alcohol intoxication, did not observe any of those signs in Maria. She had a slight odor of alcohol, but she understood everything and answered questions appropriately.
Pitney spoke to N. downstairs at the table. He did not go upstairs to speak to her. N. told him she witnessed a verbal altercation between defendant and Maria about loaning money to Maria's brother. The altercation resulted in defendant's pushing Maria into a wall, knocking her down, picking her up by her hair, and punching her in the face with his fist. N. did not mention that she called 911. N. said she wanted Maria to call the police because she was afraid for Maria's safety.
Nurse Practitioner
Nurse Practitioner Cavanaugh testified that she treated Maria in the hospital's emergency room that night. Maria smelled of alcohol, but she was totally coherent and showed no objective symptoms of intoxication. She was lucid, polite, and able to converse well. She was in some emotional distress and appeared to be upset. She was crying and her elevated heart rate revealed her stressed state. Some family members were with her and she received support from them. Maria told Cavanaugh, "My husband beat me up." Maria said she had been in a verbal altercation with defendant that turned physical. She said defendant threw her to the ground, stomped on her, and then kicked her in the side of her back. She was having wrist pain because defendant grabbed her when he threw her down, knee pain because she landed on her left knee when he threw her down, and acute back pain because he kicked her. Cavanaugh observed acute tenderness to Maria's right back, and multiple contusions and a superficial laceration to her left knee. Her wrist was sore, but she could still use it. Cavanaugh gave Maria a strong narcotic for pain, and sent her home with a prescription for Vicodin.
On cross-examination, Cavanaugh explained that Maria denied having neck pain, abdominal pain, or head trauma, and did not mention being choked, punched, grabbed by the hair, or kicked in the stomach. Further, Cavanaugh's report did not report a swollen lip or redness to Maria's neck.
Prior Incidents of Domestic Violence
On January 24, 2006, Maria came to the police department and spoke to Officer Adrian. Maria's right eye was swollen. She told Adrian she had been arrested the night before and was just released from jail. She said she did not give a statement to the arresting officer and she wanted to tell her side of the story. She explained that defendant assaulted her. She said they went to a bar and she got intoxicated. She spoke to some "work-related" men and defendant became jealous because he thought she was flirting. On the way home, they argued. Defendant pulled over and backhanded her in the face. She pushed him and caused scratches on his face and neck. She got out of the vehicle, and started to walk away. Defendant got out and grabbed her. She went to the driver's side and tried to get her purse, but defendant pushed her down onto the driver's seat.
On August 12, 2006, at 1:09 a.m., Officer Walker was dispatched to defendant and Maria's house. Maria had been drinking and she said she and defendant were having a verbal argument. Walker left because they agreed to sleep it off, and defendant's mother was present to care for the children. But minutes later, at 1:36 a.m., Walker was dispatched to the house a second time because defendant and Maria were still arguing. Maria said she was drunk and they would probably not stop arguing. She agreed to leave, so Walker took her and the two children to another address. On cross-examination, Walker stated that neither Maria nor defendant had visible injuries.
On June 3, 2007, at 9:20 a.m., Officer Gregory was dispatched to defendant and Maria's house. Maria told him that she and defendant were having a verbal argument. Neither of them appeared to be injured. They were arguing over who would drive which vehicle, one of which had a flat tire.
On June 10, 2008 at 7:45 p.m., Officer Peterson-Haywood was dispatched to defendant and Maria's house regarding a verbal domestic dispute. Maria told Peterson-Haywood that defendant had pushed her during the argument. Peterson-Haywood did not observe any injuries. Maria did not want to file a police report, but she asked Peterson-Haywood to get her personal effects so she could leave to prevent a further altercation. Peterson-Haywood assisted her as she requested.
Defense Evidence
Defendant
Defendant testified on his own behalf. He explained that he and Maria had been married for 13 years, after being high school sweethearts. Their relationship had its ups and downs. When they argued, they tended to argue loudly. Maria was often intoxicated.
Maria had been arrested for domestic violence in Georgia and in California. In the Georgia incident, they were at a party, it was late, and the police had already been called because the party was too loud. Defendant strapped the children in the car and then returned for Maria. She was intoxicated and did not want to leave, so she threw her wedding ring at defendant's head, causing his forehead to bleed. An officer witnessed the incident and arrested Maria.
The California incident occurred on January 23, 2006. Defendant took Maria and her two brothers to a bar on Maria's birthday. Defendant was the designated driver. Maria became very intoxicated and extremely loud. She instigated arguments because the bartender refused to serve her any more alcohol. When they left, Maria was angry that they were leaving the bar. As defendant drove, Maria told him to pull over and let her out. He refused because she was too intoxicated. She started screaming louder, and she attempted to put the car into park while he was driving. Eventually, she started swinging at him and she punched him in the mouth. She hit him several times as he was driving. He pushed her back into the passenger's seat a few times and finally pulled over into an alley. Maria punched him in the mouth again, then she got out, yelling and screaming. One strap of her dress had broken and her breast was exposed. Defendant was trying to calm her down and get her back into the car when Officer Stokes arrived. When Stokes took defendant aside, defendant told her what had happened. Maria was uncooperative and she was arrested. Defendant later realized Maria had given him a broken lip, a scratch near his eye, swelling on the side of his face, and scratches on his neck.
Defendant also recounted an incident that occurred after Maria had driven defendant's truck. She drove over a pothole and broke two rims on the truck, which had to be towed to their house. The next day, defendant needed to go to work out of town and wanted to use Maria's vehicle because she was not working at the time. Maria, however, refused to give him the keys.
Defendant explained that in the current incident, he and Maria went to the baptismal party sometime between 4:30 and 6:00 p.m. and they left around 9:00 or 9:30 p.m. Defendant consumed two or three beers at the party. Maria had quite a few more, and when the beer ran out, she had some mixed drinks. Defendant abstained because he was driving. Maria became intoxicated, and on the way home, she started an argument. She said her brother wanted to borrow money. Defendant refused because her brother did not work and liked to stay at home and play video games. Defendant worked long days, six days per week, and had his own bills to pay and children to support. When defendant lent her brother money in the past, he did not repay it. Maria started yelling because defendant would not give her brother money. Defendant did not want to argue in the car because their children's friends were with them. When they got home, the children went upstairs and defendant's mother went to her room. Defendant did not want to argue, so he lay down on the couch and fell asleep. At some point, he woke up because Maria was reaching into his pocket. He saw Maria's brother and his wife standing in the kitchen. Defendant had cashed his paycheck and had money in both pockets. Maria got $20 out of his pocket and she told him she needed money. He said he was not going to give her any money. Then she asked him to take her to the store to get more beer, but he refused. When Maria left with her brother and his wife, defendant lay back down and fell asleep again. At some point, Maria shook him awake. She was upset because defendant had not given her brother any money. Defendant noticed an 18-pack of beer surrounded by four or five empty beer cans. Maria was more intoxicated and very upset. She started arguing again. Defendant got up to go to the bathroom and Maria followed him. He attempted to close and lock the door, but she forced her way in and continued arguing with him. He did not want to make a scene because they had company in the house, so he decided to go upstairs to their bedroom. She followed him down the hall and grabbed his arm because she was not done arguing. He turned toward her near the base of the stairway. She yelled and spit in his face. She pushed his chest, causing him to fall against the wall. As he recovered, he pushed her out of his way. She took a step back, then fell to the floor. She got up with the help of a table, then grabbed the vase on the table, walked up to defendant, and hit him on the forehead with it. She did not throw it. Defendant was shocked that she actually hit him with it; he thought she was just threatening him. He could feel the swelling in his forehead, which was bleeding slightly. He fell back a little and when he recovered, she swung at him. He avoided her swing and she crashed face-first into the wall. She continued to swing at him, so he grabbed her arms and they both fell to the ground, defendant on top of Maria. Defendant was trying to restrain her and calm her down. Defendant held both her wrists across her chest and put his knee to her rib to hold her down. At that point, defendant's mother came out of her room and screamed at them to stop. Both his mother and Maria told him they were going to call the police. Defendant said he "didn't give a fuck." When he got up, his bare foot stepped on a piece of broken glass. He never kicked or stomped on Maria, but his foot may have grazed her after he cut it on the glass. Maria stood up and pushed the emergency buttons on the alarm pad. He could hear the children upstairs, crying and screaming, but they were not able to see them downstairs. When the officers arrived, they handcuffed defendant and took him to the police station before he made a statement to Officer Pitney.
On cross-examination, defendant testified that he never saw the children during the incident and he was not aware that N. called the police. He noticed soreness in his forehead when he was booked. He felt his head and realized he had a big bump and a laceration that was bleeding. He believed his booking photograph did not show a close-up of the laceration on his forehead, but it did show the deep gouges on his neck and chest. He circled the area on his photograph that showed his swollen forehead.
Defendant testified that he may not have mentioned all the details of the incident in his statement to Officer Pitney. He probably did not remember everything at that time, but he could remember a lot more now because he had been listening to everyone testify at trial.
Defendant recalled that when Maria came home the day after the incident on January 24, 2006, her face was swollen and she had a black eye.
Defendant explained that on four or five occasions, he was intoxicated when the police responded to his house.
On redirect examination, defendant explained that he was frowning in his booking photograph because he was very upset; he had been sure Maria would be arrested, but he was arrested instead.
Prior Incident of Domestic Violence—January 24, 2006
Officer Stokes testified that on January 24, 2006, defendant was cooperative and had a small scratch under his left eye. Maria was uncooperative and appeared to be under the influence of alcohol. She smelled of alcohol, was swaying and having trouble standing, and her eyes were bloodshot and watery. Stokes observed swelling under Maria's eye, but she did not know whether it was a recently inflicted injury or whether it was an injury at all. Based on defendant's statement and his visible injury, Stokes arrested Maria for misdemeanor domestic violence.
On cross-examination, Stokes explained that she also cited defendant for the same offense. She could have arrested him too, but she chose to cite him instead because there were children to be cared for. Stokes arrested Maria because she was so drunk that she could not care for herself and because Stokes was afraid she and defendant would continue fighting. Maria did not provide a statement, and Stokes felt she was not getting the whole story. Both defendant and Maria had minor injuries; Stokes was unable to determine who was the primary aggressor.
Defense Investigator
Defense Investigator Wann testified that Maria contacted him on April 12, 2010. She wanted to clarify several issues, particularly that she did not want to press charges against defendant. She explained what happened in the current incident. She said she pushed defendant first and he pushed her back. Then she threw a vase at his head. She attacked defendant, they pushed and shoved, and he held her away. She said she lied to Officer Pitney because she was drunk and angry that defendant did not want to lend her brother money.
On cross-examination, Wann stated that he spoke to Maria on the telephone and did not know if defendant was present or if he was instructing Maria on what to say.
Rebuttal Evidence
Officer Pitney
Officer Pitney testified that when he spoke to defendant following the current event, he gave defendant the opportunity to explain the incident fully. Defendant told him that he and Maria each had five to six beers. He said he got angry and lost his temper. He said he and Maria had experienced only one prior incident of domestic violence. Defendant did not tell Pitney that Maria spit in his face or broke a vase on his head. He did not mention that Maria fell and knocked over the table or that he put his knee to her rib. He did not mention being in pain, and Pitney did not notice any injury to his head. When Pitney asked defendant about any injuries, he did not state that he had any, nor did he request medical assistance. When Pitney was inside the house, he did not see an 18-pack of beer on the couch or any empty beer cans around the couch.
Prior Incident of Domestic Violence—January 24, 2006
Officer Stokes testified that she contacted defendant and Maria at about 1:45 a.m. on January 24, 2006, which was almost closing time for bars. Stokes did not witness Maria punch defendant and she did not see Maria's exposed breast. Defendant did not tell her that Maria punched him in the face while they were arguing, that she was on top of him swinging at him, that he was trying to throw her off of him, or that she tried to put the car into park while he was driving.
On cross-examination, Stokes explained that defendant told her he and Maria had been arguing and Maria hit him in the face. Stokes observed an injury near defendant's left eye.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction because there was no credible evidence that Maria's injuries resulted in a traumatic condition or that defendant willfully inflicted any injury upon Maria. We disagree.
"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Pursuant to section 273.5, subdivision (a), "Any person who willfully inflicts upon a person who is his or her spouse ... corporal injury resulting in a traumatic condition is guilty of a felony ...." Subdivision (c) of the same section defines "traumatic condition" as "a condition of the body, such as a wound, or external or internal injury, ... whether of a minor or serious nature, caused by a physical force." "Section 273.5 is violated when the defendant inflicts even 'minor' injury. Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, 'the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed.' [Citation.]" (People v. Wilkins (1993) 14 Cal.App.4th 761, 771.) Pain alone is insufficient to constitute a traumatic condition, but bruising is enough. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086; People v. Abrego (1993) 21 Cal.App.4th 133, 138.)
Here, defendant argues that Maria's back and wrist pain were insufficient to amount to a traumatic condition, that Nurse Practitioner Cavanaugh did not observe contusions to Maria's rib area, and that the evidence of a swollen lip was ambiguous and not of solid value. We conclude, however, there was ample evidence from which the jurors could find Maria suffered a traumatic condition. The evidence showed that defendant's acts caused a swollen lip, bruised arm, and injured knee, if not more. Maria told Officer Pitney on the night of the incident that defendant pushed her against the wall, punched her in the mouth, pushed her onto the floor, and kicked her. The police took photographs at the house that showed Maria's arm, mouth, and knee injuries. Furthermore, Maria told Cavanaugh at the hospital that she injured her knee when defendant threw her down. Cavanaugh observed and reported multiple contusions and a laceration to Maria's left knee, which were plainly visible in the photograph taken by the police. Maria's initial statement, Pitney's and Cavanaugh's objective observations, plus the photographs, constituted solid, credible, and sufficient evidence that Maria suffered a traumatic condition.
Defendant also argues that the contusions and laceration to Maria's left knee, observed and reported by Pitney and Cavanaugh, were insufficient because the cause of the knee injuries was not clear. He explains that Maria may have been injured when defendant threw her to the floor, or she may have "wound up on the floor while trying to get to the alarm" or while trying to get away from defendant. Evidence of Maria's statements to Pitney and Cavanaugh that defendant pushed or threw her to the floor and caused her knee injuries was more than sufficient to demonstrate that defendant willfully inflicted Maria's knee injuries.
Indeed, the evidence of defendant's guilt in general was overwhelming. In N.'s 911 call, made during the incident, she frantically pleaded with the operator to hurry because defendant was putting his hands on Maria and because she feared defendant would hurt her too. Maria's initial statement to Pitney, made shortly after the incident, was tearful and compelling. Maria explained how defendant pushed her against the wall, slammed her around, grabbed her throat, punched her mouth, hit her arms, pushed her to the floor, and kicked her. She despondently explained to Pitney that nothing she did was good enough, she was tired of being treated like a dog, and this time she wanted out. Police took photographs of Maria's injuries and the disturbed scene. N. told Pitney that her parents argued about loaning money to Maria's brother, and N. explained that she feared for Maria's safety because defendant pushed Maria into a wall, knocked her down, picked her up by her hair, and punched her in the face with his fist. Defendant admitted to Pitney that he got angry and lost his temper. At the hospital, Maria told Cavanaugh that defendant beat her up. She explained that her knee injuries, which Cavanaugh documented, occurred when defendant threw her to the floor.
The evidence also explained why both Maria and N. later recanted. After his arrest, defendant returned home and the family continued living together. A few months later, in September 2009, Maria got pregnant. In November 2009 and January 2010, she attempted to get the charges against defendant dropped, explaining that she exaggerated the incident because she had been drinking. She claimed that defendant's behavior was improved and she wanted to give him a chance. At the time of trial, the family was still together and now included a newborn baby. At trial, Maria remembered essentially nothing about the incident or what she said to Pitney or Cavanaugh, and she claimed she was drunk when she made her statement to Pitney. N., who was also undoubtedly motivated to protect her family, recanted at trial, stating she did not see anything that happened and she lied to Pitney.
In sum, despite Maria's and N.'s retractions, overwhelming evidence supported defendant's conviction.
II. Unanimity Instruction
Defendant argues that because there was evidence he inflicted more than one injury on Maria, the trial court should have instructed sua sponte that the jurors were required to unanimously agree on which act constituted the crime. We conclude this contention has no merit.
"In a criminal case, a jury verdict must be unanimous. [Citations.] ... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Therefore, "[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) The unanimity requirement "'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (People v. Russo, supra, at p. 1132.)
"There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation] (Jennings, supra, 50 Cal.4th at p. 679.) The exception applies "'"where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim's testimony in toto." [Citation.]' [Citation.]" (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) "This [first] branch of the 'continuous conduct' exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 875 (Crandell), overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
The second branch of the continuous-conduct exception applies "'when the statute contemplates a continuous course of conduct of a series of acts over a period of time' (People v. Thompson (1984) 160 Cal.App.3d 220, 224 [(Thompson)].)" (Jennings, supra, 50 Cal.4th at p. 679.) Spousal abuse has been held to be a statutory offense that, because of the ongoing nature of the crime, falls within the second branch. (Thompson, supra, at pp. 225-226; People v. Funes (1994) 23 Cal.App.4th 1506, 1526.)
"'"This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including pimping [citation], pandering [citation], failure to provide for a minor child [citation], contributing to the delinquency of a minor [citation], and child abuse [citation]." [Citation.] [¶] To this exemplary list could be added spousal battery [citation], annoying or molesting a child [citation], acting as accessory to a felony [citation] and dissuading a witness from testifying [citation].' [Citation.]" (People v. Funes, supra, 23 Cal.App.4th at p. 1526.)
In this case, the prosecutor did not elect a single act or injury; nevertheless, a unanimity instruction was not required—not only because spousal abuse is a statutory offense that contemplates a continuous course of conduct (Jennings, supra, 50 Cal.4th at p. 679; Thompson, supra, 160 Cal.App.3d at p. 224), but also because defendant's acts all occurred during a very brief and unbroken time period, defendant offered the same defense to all of them, and the jury had no reasonable basis on which to distinguish between them (Jennings, supra, at p. 679; Crandell, supra, 46 Cal.3d at p. 875).Defendant's sole defense was self-defense—Maria acted unreasonably because she was so drunk and so angry about defendant's refusal to loan money to her brother that she attacked defendant. If the jurors rejected defendant's self-defense theory and believed defendant purposely inflicted violence on Maria, they had no reasonable basis to believe he committed one act, but not the others. Similarly, if the jurors did not reject defendant's self-defense theory, they had no reason to believe defendant acted in self-defense when he committed one act, but not the others. Under these circumstances, a unanimity instruction was not required.
Instead, the prosecutor argued: "Any injury is sufficient as long as you believe the defendant caused it, and if you believe he caused it because he assaulted her and not because he was acting in self-defense, he's guilty. [¶] And ladies and gentlemen, once you review all of the evidence when you go back in the deliberation room you'll come to the same conclusion, [defendant] is guilty of assaulting [Maria] and causing the injuries to her body, and there was no self-defense involved here." (Italics added.) And later the prosecutor argued: "The second element is whether the injury inflicted by the defendant resulted in a traumatic condition. As I said earlier, a traumatic condition can be a super serious injury or it could be a moderate injury. This isn't rocket science, I swear."
Defendant urges us to reject Thompson's holding that spousal abuse falls within the continuous-course-of-conduct exception to the unanimity instruction requirement (Thompson, supra, 160 Cal.App.3d at p. 224), and he explains that People v. Johnson (2007) 150 Cal.App.4th 1467 is better reasoned. We decline for two reasons. First, the Supreme Court relied on Thompson in Jennings, supra, 50 Cal.4th at page 679. Second, we need not address the legal issue defendant raises because we conclude the continuous-course-of-conduct rule applies in this case under Crandell, supra, 46 Cal.3d at page 875, as well as Thompson.
Defense counsel argued that defendant reasonably defended himself against Maria's attack, and any injuries Maria sustained as a result of his actions in self-defense were accidental. Defense counsel summed up his argument: "But ladies and gentlemen, there's only one choice here, [defendant] is innocent because he acted reasonably in self-defense when [Maria] was attacking him."
Finally, the record indicates the jurors resolved the basic credibility dispute against defendant, entirely rejecting his self-defense theory, and therefore would have convicted him of any of the various offenses shown by the evidence. Thus, any error in failing to give the unanimity instruction was harmless. (People v. Riel (2000) 22 Cal.4th 1153, 1200 [jury's verdict implied jury did not believe defendant's only defense]; People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
III. Evidence of Prior Domestic Violence
Defendant contends the trial court erred by admitting evidence of the prior domestic violence incidents occurring on January 24, 2006 and June 10, 2008. We see no abuse of discretion in the trial court's admission of the evidence.
Evidence Code section 1109 is an exception to the rule prohibiting evidence of prior acts to demonstrate that the defendant has a propensity to commit those acts. Pursuant to that section, prior incidents of domestic violence are admissible to prove the defendant tends to commit acts of domestic violence and therefore committed the charged act. (Evid. Code, § 1109.) "'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.'" (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.)
A. The January 24, 2006 Incident
Defendant asserts that evidence of the January 24, 2006 incident should not have been admitted for two reasons: (1) the incident did not constitute domestic violence because he acted in self-defense and (2) even assuming he did not act in self-defense, the "mutual affray" scenario is not contemplated by Evidence Code section 1109.
1. Self-Defense
Citing People v. Escobar (2000) 82 Cal.App.4th 1085 (Escobar), defendant maintains that his act of lawful self-defense on January 24, 2006 did not constitute domestic violence and could not be used under Evidence Code section 1109 to demonstrate his propensity to commit domestic violence.
On the contrary, Escobar supports the trial court's admission of evidence of the January 24, 2006 incident in this case. In Escobar, the trial court admitted evidence of a 1992 prior domestic violence incident. (Id. at p. 1088.) The defendant argued the prior incident did not constitute domestic violence because he acted in self-defense. (Id. at p. 1096.) The appellate court stated: "Because [the defendant] disputed [the victim's] version of events and claimed he acted in self-defense, and because no conviction resulted from the 1992 incident, there may have been a question of fact whether the incident rose to the level of a criminal offense. [Citation.] However, the evidence gave rise to a straightforward issue of credibility such that a jury quite reasonably could have found—by a preponderance of the evidence or beyond a reasonable doubt—that [the defendant] committed prior 'domestic violence' as that term is used in [Evidence Code] section 1109. It is, at a minimum, more than fair to characterize [the defendant's] conduct, as reported by [the victim] to [the officer], as 'intentionally or recklessly causing or attempting to cause bodily injury' to a spouse. [Citation.]" (Ibid.) The court concluded that the trial court did not err in admitting the domestic violence evidence. (Id. at p. 1097.)
The same analysis applies here. As in Escobar, "the evidence gave rise to a straightforward issue of credibility." (Escobar, supra, 82 Cal.App.4th at p. 1096.) The jurors had to make a credibility determination between Maria's and defendant's versions of the January 24, 2006 incident and decide which story they believed. The prosecution presented sufficient evidence from which the jurors, if they chose to believe it, could find by a preponderance of the evidence that defendant was not defending himself when he pulled over the car and backhanded Maria.
2. Mutual Affray
Citing Escobar again, defendant asserts that Evidence Code section 1109 is intended to facilitate proof of domestic violence by a defendant who repeatedly victimizes vulnerable victims, not a defendant whose arguments with his cohabitant turn into mutual affrays after they have been drinking. Defendant argues that mutual affrays prove little if anything about a defendant's propensity for violence against a vulnerable victim. He asserts that the trial court should have stricken the evidence of the January 24, 2006 incident and instructed the jurors not to consider it.
Again, Escobar does not assist defendant. There, the court described the prior incident as follows: "The relationship between [the defendant] and [the victim] was marked by marital discord including violence, quarrels, and hostility. For example, in October 1992, [the victim] reported an incident of domestic violence to the Newark Police Department. She told [the officer] that she and [the defendant] had been arguing and that she had raised her hand as if to strike [him]. [The defendant] then punched her in the left eye with his fist, causing bruising, a small cut, and some bleeding. There was more pushing and grabbing. [The victim] bit [the defendant] on his left pinkie finger, and was able to escape. [The officer] took a Polaroid photograph of [the victim's] injuries, which was shown to the jury in this case. [The defendant] was not arrested in connection with this 1992 incident." (Escobar, supra, 82 Cal.App.4th at pp. 1088-1089.)
On appeal in Escobar, the defendant argued that the probative value of this 1992 prior was outweighed by its prejudicial effect (Evid. Code, § 352). The court responded: "[E]ven accepting (without deciding) [the defendant's] claim about the low probative value of the 1992 incident as evidence of his 'propensity' to commit further acts of domestic violence, we are convinced the trial court could also quite reasonably find the prejudicial effect of that one five-year-old incident to be de minimis, such that the probative value of the evidence was not 'substantially outweighed' by the danger of undue prejudice. [Citation.] Especially in the present context, evidence that [the defendant] punched his wife in the face on one occasion in 1992 in the course of what might have been 'mutual affray,' may not have had much predictive value with respect to future acts of domestic violence. But it was, in any event, very unlikely to have a significant impact on a jury hearing undisputed evidence about his extraordinarily violent conduct [in the current incident]. While reasonable minds could differ as to admissibility of the 1992 incident, it was not an abuse of discretion to allow the prosecution to present [the officer's] testimony over [the defendant's Evidence Code] section 352 objection." (Escobar, supra, 82 Cal.App.4th at pp. 1096-1097.) In other words, the court found no error in the admission of the evidence because its probative value, even if meager, was not outweighed by the danger of undue prejudice. Contrary to defendant's assertion, the Escobar court did not state that Evidence Code section 1109 does not contemplate a mutual affray situation.
B. The June 10, 2008 Incident
Defendant argues that the June 10, 2008 incident did not rise to the level of domestic "abuse" required by Evidence Code section 1109. Defendant says he merely pushed Maria during a verbal altercation, and the officer observed no resulting injuries on her. Defendant explains that this was only a technical battery, which provided no reasonable basis from which the jurors could conclude he hurt Maria, tried to hurt her, or placed her in reasonable fear of imminent serious bodily injury.
"'Domestic violence,'" as used in Evidence Code section 1109, is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another" (§ 13700, subds. (a) & (b)), and as "[i]ntentionally or recklessly to cause or attempt to cause bodily injury," "[s]exual assault," "[t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or to another," or "[t]o engage in any behavior that has been or could be enjoined pursuant to [Family Code] Section 6320" (Fam. Code, § 6203, subds. (a)-(d)).
Evidence Code section 1109, subdivision (d)(3) provides: "'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense." Family Code section 6211 defines "domestic violence" as "abuse" perpetrated against certain persons. "Abuse," for purposes of the relevant Family Code act, is defined by Family Code section 6203.
Defendant acknowledges that Family Code section 6320, subdivision (a) provides in turn that "[t]he court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls ..., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members." (Italics added.) But defendant asserts that neither Evidence Code section 1109 nor Family Code section 6320 can be interpreted to include battery, which can be based on the least offensive push or de minimis intrusion. He argues that the term "battery," as used in Family Code section 6320, must be deemed ambiguous because application of the statute to every technical battery would lead to absurd results.
We need not resolve this issue, however, because in this case the prosecution presented sufficient evidence to prove by a preponderance of the evidence that when defendant pushed Maria during the verbal altercation, he either intentionally or recklessly caused or attempted to cause bodily injury, or he placed her in reasonable apprehension of imminent serious bodily injury. (§ 13700, subd. (a); Fam. Code, § 6203, subds. (a) & (c).) Although Maria had no apparent injuries, the evidence supported the inference that she had endured so many domestic violence incidents that when defendant pushed her during this verbal argument on June 10, 2008, she reasonably feared she would be seriously injured if she did not call the police and escape the situation. Again, defendant argues an issue of credibility, which was for the jurors, and not us, to entertain.
The jurors were instructed with the following definition of domestic violence: "Domestic violence means abuse committed against an adult who is a spouse. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else." (CALCRIM No. 852.)
We note that any error in the admission of the prior incidents was harmless. As we have explained, the evidence of the current incident was overwhelming. Furthermore, the jury decided the basic credibility contest against defendant, rejecting his sole defense. Under these circumstances, any error in the admission of evidence of prior domestic violence did not contribute to the guilty verdict and thus was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
IV. Instruction on Defendant's Prior Domestic Violence
In a related argument, defendant argues that the trial court erred in failing to instruct the jury that the prosecution was required to prove defendant did not act in self-defense during the January 24, 2006 incident. Although the court instructed on self- defense in relation to the charged crime, it did not inform the jurors they could consider self-defense in connection with a prior incident. He explains that the failure to so instruct allowed the jurors to consider only Maria's version of the incident, and not defendant's and Officer Stokes's versions.
We disagree that the jurors were not allowed to consider self-defense in relation to the prior incidents, or that the jurors were allowed to consider only Maria's version of the January 24, 2006 incident. No instruction created these limitations. In any event, in light of the overwhelming evidence against defendant and the jury's rejection of defendant's self-defense theory, any error in failing to instruct on the application of self-defense principles to evidence of prior incidents of domestic violence was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
V. Instruction on Maria's Prior Domestic Violence
Defendant contends the trial court also had the duty to instruct the jurors that they could use evidence of Maria's prior domestic violence to find that she had the propensity to commit domestic violence against defendant.
In a criminal case, a defendant may introduce evidence of the character or a trait of character of a victim, in the form of opinion, reputation, or specific instances of conduct, to prove conduct of the victim in conformity with the character or trait of character. (Evid. Code, § 1103, subd. (a)(1).) Thus, a defendant being prosecuted for a violent offense who asserts self-defense may introduce evidence of specific violent acts by the victim to show that the victim has a violent character and was the aggressor in the current offense. (People v. Wright (1985) 39 Cal.3d 576, 587; People v. Tackett (2006) 144 Cal.App.4th 445, 453-454; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446.) Here, defendant introduced evidence of Maria's prior domestic violence to support his theory that Maria was the aggressor in the current incident. This evidence was admitted pursuant to Evidence Code section 1103, not section 1109. CALCRIM No. 3470 instructed the jury it could consider Maria's prior conduct in determining whether defendant acted in self-defense in the current incident. It stated, in relevant part:
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"If you find that Maria Pineda threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person."
Although this instruction did not address prior incidents, no instruction prohibited the jurors from considering Maria's prior domestic violence as evidence of her violent nature or propensity to commit violence against defendant. We see no error, and if we did, it would be harmless for the reasons we have already explained. (Chapman v. California, supra, 386 U.S. at p. 24.)
VI. Evidence of Prior Verbal Arguments
Defendant asserts that the trial court erred in admitting evidence of his prior verbal arguments with Maria on August 12, 2006 and June 3, 2007 as evidence of his motive to inflict injury on her in the current incident. He maintains that all married couples argue about trivial matters, and no compelling connection exists between a trivial argument and domestic violence to render the evidence relevant. We disagree and find no abuse of discretion.
The court limited the evidence to this purpose, instructing: "The People presented evidence that the defendant and victim had prior verbal arguments and incidents in the past resulting in the police being called[.] [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts.... [¶] ... [¶] If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant had a motive to commit the offense alleged in this case. [¶] Do not consider this evidence for any other purpose...." (CALCRIM No. 375.)
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Evidence of prior acts is admissible if relevant to prove some fact such as motive, even if it also shows the defendant's bad character. (Evid. Code, § 1101, subd. (b).) Evidence of marital discord, including evidence of quarrels, jealousy, antagonism, or enmity between the defendant and the victim of a violent offense, is proof of motive to commit the offense. (People v. Daniels (1971) 16 Cal.App.3d 36, 46; see People v. Cartier (1960) 54 Cal.2d 300, 311 ["Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant"]; People v. Shaver (1936) 7 Cal.2d 586, 592-593 [evidence of a prior jealous quarrel supported theory that defendant killed wife while acting under jealous emotion]; People v. Manriquez (2005) 37 Cal.4th 547, 577-579 [evidence that defendant had a verbal argument with victim, then later approached victim and shot him in vital parts of the body was sufficient to show deliberation and premeditation]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613-1614 ["evidence of marital discord and prior assaults" was "properly admitted to show ill will, and motive"]; People v. Benton (1979) 100 Cal.App.3d 92, 98 ["Specific incidents showing prior quarrels or antagonism between a defendant and the victim are admissible"].) A defendant is "not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim's relationship ... [was] peaceful and friendly." (People v. Zack (1986) 184 Cal.App.3d 409, 415.) "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Defendant argues that the prior verbal arguments in this case were insignificant because they did not involve jealousy or threats. He notes that the August 12, 2006 argument was about an unspecified topic, and the June 3, 2007 argument was about who would take which car to work. He asserts that these types of trivial, "garden variety" verbal arguments are not relevant to a motive for physical violence. Under different circumstances, we might agree, but as the prosecutor pointed out, all married couples argue, just not to the point where the intervention of law enforcement is required. In the first incident, the officer intervened, left, and was called back to the house a second time, at which point Maria left with the children. In the second incident, Maria and defendant argued about who would take the operational vehicle and who would be stranded at home with a flat tire, and again intervention by law enforcement was required. These do not strike us as typical marital disputes, and we believe they were relevant to defendant's motive to inflict domestic violence.
Admission of this evidence remains subject to analysis under Evidence Code section 352, which permits the trial court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The probative value of defendant's prior verbal arguments with Maria was significant. The evidence showed the antagonistic nature of their relationship, the aggressiveness with which they argued, and their inclination to escalate a minor issue into a dispute requiring police intervention. Thus, the evidence tended logically to establish defendant's propensity to commit verbally and physically abusive acts against Maria. Clearly, the prejudicial value did not outweigh the probative value of the evidence. The arguments did not involve momentous issues or physical violence; nor were they inflammatory, shocking, confusing, or misleading. There was no abuse in the admission of this evidence.
VII. Instruction on Prior Verbal Arguments
On a related topic, defendant contends that if evidence of the prior verbal arguments was properly admitted, the trial court should have instructed the jury that the evidence could also be used to show that Maria had a motive to commit violence against defendant. He explains that if evidence of verbal arguments was relevant to his motive to commit domestic violence, it was equally relevant to Maria's motive to commit domestic violence because self-defense was at issue. As in part V, the jury was properly instructed on the use of Maria's prior conduct as it related to defendant's self-defense theory, and the jury was not instructed it could not consider Maria's prior domestic violence as evidence of her motive to commit violence against defendant. Again, we conclude there was no error, and if there was, it was harmless. (Chapman v. California, supra, 386 U.S. at p. 24.)
VIII. Due Process Violation
Defendant claims the trial court's failure to instruct the jury that evidence of Maria's prior domestic violence and prior verbal arguments could be used to find that she had a propensity and motive to commit domestic violence constituted a due process violation, requiring reversal unless the error was harmless beyond a reasonable doubt. Here, we have already concluded any such error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) IX. Ineffective Assistance of Counsel Lastly, defendant contends defense counsel was ineffective for failing to request
an Evidence Code section 402 hearing on the prior incident evidence, to move to strike the evidence, and to request appropriate jury instructions. We have determined the evidence was properly admitted and the alleged instructional errors were harmless beyond a reasonable doubt. Thus, because we find no prejudice, we need not address whether the performance of counsel was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [if on review court finds that alleged incompetence of counsel was not prejudicial, court need not address whether counsel's actions were deficient].)
DISPOSITION
The judgment is affirmed.
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Kane, J.
WE CONCUR:
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Levy, Acting P.J.
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Franson, J.