Opinion
E043347
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY LEE PRATT, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Gary Lee Pratt appeals seeking reversal of his jury conviction for spousal abuse and false imprisonment. He argues his defense was prejudiced because the trial court erroneously admitted evidence of a prior spousal battery conviction for impeachment purposes and because the prosecutor told the jury it could consider this conviction as propensity evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in an eight-count information with: spousal abuse (Pen. Code, § 273.5, subd. (a) (count 1)); threatening to commit a crime against his wife that would result in great bodily injury (§ 422 (count 2)); willfully and unlawfully dissuading or attempting to dissuade his wife from reporting a suspected crime (§ 136.1, subd. (c)(1) (count 3)); false imprisonment of his wife (§ 236 (count 4)); abuse of his stepdaughter (§ 273d, subd. (a) (count 5)); two counts of willfully and unlawfully failing to appear in court while released on bail on March 25, 2006, and May 12, 2006 (§ 1320.5 (counts 6 & 7)); and battery of his sister-in-law (§ 242 (count 8)).
Defendant lived in a two-story house with his wife Maria, their baby, his wifes 15-year-old daughter, H. K., his wifes parents, and her sister, Graciela, as well as Gracielas two children. Maria testified she and defendant got into an argument in their upstairs bedroom during the middle of the day on March 25, 2006. Maria wanted to leave to go to the store, but defendant told her she could not leave, demanded her car keys, pushed her onto the bed and then got on top of her and held her there so she could not leave. He then lifted her off the bed and held her against a hard, marble-like bedpost, causing a cut, bruising, bleeding, and a scar on her back. Maria also testified defendant grabbed her, forced her to her knees, and picked her up and pushed her into the closet. After pushing her in the closet, defendant pressed his forehead against hers and told her if she said anything he would bite her nose off.
As the altercation progressed, several other people became involved, including H. K., Graciela, and a neighbor. Graciela called police. H. K. entered the room after hearing defendant and her mother arguing. When H. K. attempted to protect her mother, defendant pushed her and tried to grab her shirt. He also grabbed her necklace, lifted her off the floor by the necklace, and then dropped her. She got up, ran down the stairs, out of the home, and went to a neighbors house. She had blood and scratches on her neck from the necklace.
During the altercation, the neighbor went to the home to assist. From outside the bedroom, the neighbor was able to grab Marias arm to help her out of the room and get her downstairs. However, defendant followed them and the altercation continued downstairs. Defendant grabbed Marias hair and started swinging her around in circles. Graciela put her hand on the wall to prevent Marias head from hitting it. Defendant pushed Graciela against the wall. When Maria tripped on the dogs water dish, defendant let go of her hair as she started to slide. Maria and the neighbor were then able to run from the home to the neighbors house. The evidence indicated Maria, H. K., and Graciela all sustained minor to moderate injuries caused by defendant during the altercation.
Police arrived after the altercation was over. Maria was at the neighbors home. Police detained defendant, who was walking down the street. One of the responding officers testified he interviewed Maria, H. K., and Graciela. He also observed and photographed their injuries, and the photographs were shown to the jury.
Maria testified about a prior incident with defendant involving physical violence. She and defendant got into an argument when he woke her up and she wanted to leave their bedroom. Defendant pinned her against the wall next to the bed with his body so she could not leave.
The jury found defendant guilty as charged on count 1, spousal abuse (§ 273.5, subd. (a)); count 4, false imprisonment of his wife (§ 236); counts 6 and 7, failure to appear (§ 1320.5); and count 8, battery against his sister-in-law (§ 242). On count 5, abuse of his stepdaughter (§ 273d, subd. (a)), the jury found defendant guilty of the lesser included offense of simple assault (§ 240). The jury found defendant not guilty of count 2, threatening to injure his wife (§ 422), and count 3, dissuading or attempting to dissuade his wife from reporting a crime or testifying (§ 136.1, subd. (c)(1)).
As a result of the jurys verdicts, the trial court sentenced defendant to a total of five years in state prison. To reach the sentence, the court imposed the middle term of three years on the spousal abuse offense (count 1). The court then added three consecutive eight-month terms for the false imprisonment and failure to appear offenses (counts 4, 6, & 7). With respect to the simple assault and battery offenses (counts 5 & 8), the court imposed two terms of 180 days in jail to be served concurrently with the prison terms.
DISCUSSION
Defendant contends the trial court deprived him of a fair trial by erroneously admitting his prior spousal battery conviction as impeachment evidence without an appropriate analysis under Evidence Code section 352 and without a finding the offense involved moral turpitude. Because spousal battery does not require an injury or "traumatic condition," defendant argues this evidence was not admissible for impeachment purposes as a crime of moral turpitude. In addition, he argues the trial court should have excluded the prior conviction because it was unduly prejudicial. Defendant acknowledges the trial court could have admitted his prior spousal battery conviction as propensity evidence under Evidence Code section 1109. However, he argues this is not dispositive of the issues he raises because the prosecution did not seek to admit it for this purpose, and contrary to the rule as set forth in Evidence Code section 1109, the trial court did not consider whether the conviction was too prejudicial under Evidence Code section 352. The People contend defendant forfeited these issues by not objecting on the same grounds in the trial court. We agree.
"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; . . ." (Evid. Code, § 353.) "The reason for the rule is clear—failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. [Citation.] `While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility. [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 666-667.) "A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal." (People v. Marks (2003) 31 Cal.4th 197, 228.)
Here, the parties have represented that the prosecution did not seek to admit the prior conviction for spousal battery in its case-in-chief. Rather, after the prosecution rested, defense counsel stated he intended to put defendant on the stand. Counsel therefore moved to exclude a felony conviction for vehicle theft in Nebraska "from 1990 or 1991" for purposes of impeachment, arguing it was more prejudicial than probative under Evidence Code section 352 because it was too remote. The prosecutor agreed this conviction was probably too remote but indicated she was aware of a 1999 felony conviction for theft and intended to use it for impeachment. She also stated she was aware of a previous conviction for misdemeanor spousal battery against a different victim. Indicating he was aware of this particular conviction, defense counsel responded he believed the case involved allegations of domestic battery, but defendant actually entered a no contest plea to disturbing the peace. The prosecutor disagreed, representing defendant was arrested for "felony spousal battery," and he pled guilty to "misdemeanor spousal battery[, Penal Code section 243, subdivision (e)(1)]."
In light of the prosecutors representation, the court said, "So youre wrong, [counsel]. Anything further on that? Im going to let in the 1999 theft" and the "[m]isdemeanor spousal battery." The court then asked, "Do you have anything else as to why we should not allow impeachment on those two crimes?" Not even mentioning the misdemeanor spousal battery conviction, defense counsel responded to the court as follows: "As to the felony conviction for theft, Your Honor, I would make a similar argument as to the prior 1991 incident that, again, its remote in time, not associated with this particular charge, and that pursuant to . . . Evidence Code section 352, it would be more prejudicial than probative." The court responded, "I think that the danger of undue prejudice to the jury from hearing that is outweighed by the probative nature of the conviction and involves moral turpitude, and its within the last 10 years, so I am going to allow that impeachment."
In sum, defendant objected to the admission of the 1991 theft as too remote, and the trial court overruled the objection. However, as we read the record, defendant made no objection whatsoever to the admission of the misdemeanor spousal battery conviction even though his counsel indicated he was aware of its existence. As a result, defendant failed to preserve challenges to the admissibility of his prior spousal battery conviction based on the absence of moral turpitude or the standards for determining admissibility of prior convictions for impeachment purposes.
Nor is there anything to suggest defendant could prevail on the merits of this claim. As defendant concedes, the evidence was admissible under Evidence Code section 1109. Defendant has presented no viable grounds for exclusion of the conviction under Evidence Code sections 1109 or 352, and relevant precedents support its admissibility under the circumstances. (See, e.g., People v. Rucker (2005) 126 Cal.App.4th 1107, 1119-1120.) The conviction had substantial probative value on the issue of defendants credibility, involved a relatively recent event, came from a source that was independent of the evidence presented on the charged offenses, and was not particularly inflammatory in comparison to the charged offenses. As a result, there is nothing to suggest the conviction would have been excluded as propensity evidence had counsel opposed its admission.
We must also reject defendants argument he was prejudiced because the prosecutor told the jury it could consider his prior spousal battery conviction as propensity evidence. The record shows defendant testified during direct examination that he was charged in 2001 with "felony spousal abuse" but "pled no contest to disorderly conduct." However, on cross-examination, defendant admitted without objection that he was convicted of misdemeanor spousal battery, and the victim was his ex-wife. Defendant complains the prosecutor then told the jury during cross-examination they could consider this prior conviction "as evidence that the defendant had a propensity to commit acts of domestic violence." The People contend defendant also forfeited this claim by failing to object or to request an appropriate admonition. We agree."
`As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Prieto (2003) 30 Cal.4th 226, 259.) Here, defendant did not object to the prosecutors argument and did not request an admonition to the jury on the use of the referenced evidence. "Because an admonition would have cured any prejudice from the alleged misconduct, he cannot raise this claim on appeal." (Id. at p. 260.)
Nor can we perceive any merit in defendants claim of prosecutorial misconduct. "`[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Prieto, supra, 30 Cal.4th at p. 260.) Nothing in the record suggests it is possible the jury applied the prosecutors brief and relatively insignificant remark in an objectionable fashion.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, J.
MILLER, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise stated.