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People v. Prentiss

Court of Appeal of California
Sep 3, 2008
No. B202216 (Cal. Ct. App. Sep. 3, 2008)

Opinion

B202216

9-3-2008

THE PEOPLE, Plaintiff and Respondent, v. BRYAN L. PRENTISS, Defendant and Appellant.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


Appellant Bryan Prentiss was convicted, following a jury trial, of corporal injury to a spouse/cohabitant/child in violation of Penal Code section 273.5, subdivision (a), disobeying a court order in violation of section 166, subdivision (a)(4) and unlawful possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). Appellant waived his right to a jury trial on the allegations that he had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court found the allegations true, and sentenced appellant to a total term of seven years, eight months in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury with CALCRIM No. 852 concerning evidence of uncharged acts of domestic violence. We affirm the judgment of conviction.

Facts

On April 2, 2007, about 3:49 a.m., Santa Elena Fontillas called 911 because someone was trying to break into the house she shared with her two children. She told police that it was her sons father, and that she had a restraining order against him. Appellant is Fontillass ex-boyfriend and the father of her son. The 911 operator told Fontillas that police would be dispatched. The operator ended the call.

Fontillas called 911 again, and told the operator that appellant was now in her house. During the call, screams could be heard. Fontillas said: "He just socked me in my face."

Tapes of the 911 calls were played for the jury at trial.

Police soon arrived. Los Angeles Police Officer Robert Tamate saw appellant walking out of Fontillass garage. Officer Tamate and his partner Officer Brown detained appellant. A subsequent booking search of appellant uncovered a small baggie of methamphetamine in his sock.

Officer Tamate then went to speak with Fontillas. He saw that she had dried blood around the edges of her mouth. He photographed her injury, which consisted of a cut on the inside of her upper lip. Officer Tamate observed that a window in the house was damaged and appeared to have been forced open.

Fontillas refused to testify at trial.

The trial court took judicial notice of a domestic violence restraining order which prohibited appellant from contacting Fontillas.

Appellant conceded that he had violated the order and that he was in possession of methamphetamine when arrested.

Maria Ortiz testified about a prior act of domestic violence committed against her in 2000 by appellant. In that incident, appellant broke into her apartment, hit her in the face and kicked her.

Discussion

Appellant contends that the trial courts decision to instruct the jury with CALCRIM No. 852 violated his federal constitutional rights to due process, proof beyond a reasonable doubt and a fair trial. Appellant did not object to this instruction in the trial court. Accordingly, we review this instruction pursuant to Penal Code section 1259 to determine if the instruction affected appellants substantial rights. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) We see no error and no violation of appellants substantial or constitutional rights.

"[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other acts of domestic violence" is admissible, provided the evidence is not inadmissible under Evidence Code section 352. (Evid. Code, § 1109.) In enacting section 1109, the Legislature found that the use of propensity evidence was particularly appropriate in domestic violence cases. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) The California Supreme Court has considered a virtually identical statute permitting propensity evidence in sexual offense cases and found that the statute did not violate due process. (People v. Falsetta (1999) 21 Cal.4th 903.) The reasoning of Falsetta applies equally to propensity evidence in domestic violence cases. (People v. Johnson, supra, 77 Cal.App.4th at p. 419.)

CALCRIM No. 852, as given in this case, provides in pertinent part: "The People presented evidence that the defendant committed domestic violence that was not charged in this case . . . [¶] 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. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] 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 Corporal injury to a spouse or cohabitant, 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 Corporal injury to a spouse or cohabitant. The People must still prove each element of every charge beyond a reasonable doubt."

Appellant contends that the instruction allowed the jury to find the fact of the prior uncharged acts of domestic violence true and to infer predisposition using a preponderance of the evidence standard and to infer his guilt of the charged offenses merely from propensity evidence.

In all pertinent respects, the instruction at issue in this case is indistinguishable from the earlier CALJIC propensity instruction approved by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007. The instruction in Reliford read: "If you find that the defendant committed a prior sexual offense . . . you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (Id. at p. 1012.)

The Court in Reliford found that nothing in the instruction authorized the jury to use the preponderance of the evidence standard for anything other than the preliminary determination whether the defendant had committed a prior sexual offense. (People v. Reliford, supra, 29 Cal.4th at p. 1016.) Our colleagues in the Third District Court of Appeal have also concluded that there is no material difference between CALCRIM No. 852 and the earlier CALJIC propensity instructions. That Court further found that "CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury" than the CALJIC instructions. (People v. Reyes (2008) 160 Cal.App.4th 246, 251-252, review den.)

Appellant also contends that the phrase "The People have presented evidence that the defendant committed domestic violence not charged in this case" suggests that the People have proved the uncharged act. We do not agree.

This phrase was not used in the instruction at issue in Reliford.

After the above statement, the instructions defined "domestic violence," "abuse and "cohabitant." Then the instruction expressly told the jury: "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." After that the instruction stated: "If the People have not met this burden of proof, you must disregard this evidence entirely." We see nothing about the brief intervening definition which would render the jury incapable of understanding the burden of proof statements.

Disposition

The judgment is affirmed.

We concur:

MOSK, J.

KRIEGLER, J.


Summaries of

People v. Prentiss

Court of Appeal of California
Sep 3, 2008
No. B202216 (Cal. Ct. App. Sep. 3, 2008)
Case details for

People v. Prentiss

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRYAN L. PRENTISS, Defendant and…

Court:Court of Appeal of California

Date published: Sep 3, 2008

Citations

No. B202216 (Cal. Ct. App. Sep. 3, 2008)