Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA017613, Raymond L. Haight III, Judge.
Sharon M. Jones, 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, and Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, JUDGE
A jury found defendant guilty of the first degree murder (Pen. Code, §§ 187, subd. (a), 189) of his wife, Bertha Ramirez; it also found true a personal deadly weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)). However, it found defendant not guilty of the attempted murder (Pen. Code, §§ 187, subd. (a), 664) of his mother-in-law, Maria Rodriguez. Defendant was sentenced to a total of 26 years to life in prison.
In this appeal, defendant contends that:
1. The trial court erred by admitting evidence of three prior domestic violence incidents under Evidence Code section 1109.
2. The trial court erred by admitting Bertha’s out-of-court statements regarding the prior domestic violence incidents, in violation of the confrontation clause as construed in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).
3. The trial court erred by admitting Maria’s testimony that defendant got drunk regularly and that whenever he was drunk, he physically abused Bertha.
4. The trial court erred by failing to instruct the jury that, if it had a reasonable doubt as to whether defendant was guilty of a greater or a lesser included offense, it had to find him guilty only of the lesser.
We agree that the admission of Bertha’s hearsay statements violated Crawford. However, because her statements regarding two of the domestic violence incidents were cumulative, in light of the other admissible evidence of the same two incidents, and because the third incident was cumulative, in light of the other two, we conclude that the error was harmless beyond a reasonable doubt. We find no other error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Defendant and Bertha Ramirez were married for 15 or 16 years. Maria Rodriguez, Bertha’s mother, visited them more or less weekly. According to Maria, every time she visited, defendant appeared to be drunk. Moreover, every time defendant got drunk, he became violent with Bertha.
At some point (months or perhaps even a year before the crime), Maria heard defendant and Bertha discussing divorce. Defendant told Bertha that he would give her a divorce but added, “I’ll give you a divorce you’ll never forget.” In the six months prior to the crime, Maria noticed that every time Bertha came home from running errands, defendant would take off her underwear and inspect it.
As of June 2002, defendant and Bertha were separated, although defendant occasionally visited or even spent the night. Bertha was living with their four children in a house in Fontana. About a month earlier, Maria had moved in with them.
On June 8, 2002, defendant and Bertha drove together to a family birthday party at the home of an aunt and uncle. Maria went with them, as did the children. Defendant started drinking immediately and drank throughout the party.
All of the guests were family members, except for one male friend, invited by the uncle. Both Maria and one of the children heard defendant angrily accuse Bertha of asking the uncle to invite the male friend, because he was her lover. At one point, Maria saw defendant grab Bertha by the throat and say, “You bitch, you’re not gonna mock me . . . .”
Maria told police, however, that she was not personally present when this occurred.
Defendant left the party to go to a bar. The oldest child stayed at the aunt’s house overnight. Because Maria was afraid that defendant would harm Bertha, she and Bertha and the rest of the children spent the night in their van in the parking lot of a bank.
The next morning, they returned home. Son C.R. (then aged 10) and daughter J.R. (then aged 8) were watching a movie in the living room when they heard their parents arguing in the kitchen. J.R. heard defendant accuse Bertha of planning to get together with the uncle’s male friend. Defendant then told J.R. to go to her room, and she did.
C.R. testified that Bertha came out to the living room and sat on the couch. Defendant followed her and punched her. Defendant then grabbed her by the leg and dragged her into the kitchen. C.R. went to the bedroom where Maria was sleeping and said, “Let’s go[,] grandma. Get up. My dad’s hitting my mom.”
Maria and C.R. went back out. They saw defendant, still holding Bertha by the leg, take a knife out of a drawer and stab her in the leg. C.R. ran to the house of a neighbor across the street. The neighbor called 911. Meanwhile, Maria watched as defendant stabbed Bertha two more times -- in the shoulder and again in the leg.
According to C.R., he went and got Maria after the dragging started. According to Maria, however, she came out while Bertha was on the couch and defendant was still punching her.
According to Maria, defendant then “went after [her] with the knife” and tried to stab her. C.R. and J.R., however, both denied seeing this, and the jury acquitted defendant of the attempted murder of Maria.
Maria tried to grab the knife away from defendant, cutting her hand in the process. When she kicked him in the knee, he “slid[] on [her] daughter’s blood” and let go of the knife. Maria picked it up. She got J.R. from her bedroom and led her to a next-door neighbor’s house. Before letting them in, the neighbor told Maria to drop the knife; she dropped it in a planter. The neighbor then called police. The police found the knife where Maria had dropped it.
Maria did not remember this. She testified that J.R. had already left the house with C.R. J.R., however, remembered her grandmother coming to her bedroom door, bloody and holding a knife, and taking her next door. C.R. saw Maria and J.R. leave the house together. Finally, the next-door neighbor testified that Maria arrived first, and J.R. arrived “[j]ust a couple seconds after.”
The police found defendant and Bertha lying side by side on the kitchen floor. Defendant was unresponsive and apparently unconscious. There was a large carving fork stuck in his chest.
Bertha was dead. An autopsy revealed three stab wounds: a nine-inch deep wound “adjacent to the vagina”; a six-inch deep wound to the left hip and buttock; and an eight-inch deep wound that entered the left arm and went through into the chest, piercing the left lung. All three wounds were consistent with the knife the police found.
At a hospital, the fork was removed from defendant’s chest. The wound was not deep; it did not penetrate the chest cavity. The doctor who treated the wound could not say whether it was self-inflicted or not. At trial, Maria denied seeing the fork. However, she had told police that she saw defendant stab Bertha with a barbecue fork.
Defendant’s blood was drawn at the hospital. When tested, it indicated a blood alcohol level somewhere between 0.15 and 0.18 percent. At the time of the crime, a couple of hours earlier, it would have been slightly higher.
Defense expert Dr. Frank Gawin, a psychiatrist and an expert on substance abuse, testified that defendant’s blood alcohol level indicated “substantial drunkenness . . . .” It would have “substantially impaired” his self-control, his decision-making ability, and his ability to think rationally. It would also have impaired his ability to premeditate or to form an intent to kill. In Dr. Gawin’s opinion, “[t]he violence that [defendant] engaged in, . . . in that level of drunkenness, could . . . easily not have any goal other than violent rage expressing itself.” He agreed, however, that if defendant “feign[ed] a defense,” that would indicate some ability to engage in goal-directed behavior.
Dr. Gawin believed that defendant was an alcohol abuser, but not alcohol-dependent or alcohol-tolerant. Defendant admitted getting drunk to the point of having a complete loss of memory, but only on weekends, which would not lead to tolerance. Defendant did not show any signs of alcohol withdrawal while in the hospital. His bilirubin level was normal, which would be inconsistent with drinking every day for 15 years.
Prosecution expert Maureen Black, a toxicologist, testified that most people with defendant’s blood alcohol level would be able to function. They could walk without stumbling and talk without slurring. They might not be able to drive a car, but they could perform other less rigorous physical tasks without impairment, especially if they were “familiar with performing with alcohol in their system . . . .”
II
EVIDENCE OF PRIOR DOMESTIC VIOLENCE INCIDENTS
Defendant contends that the trial court erred by admitting evidence of prior domestic violence incidents under Evidence Code section 1109. Defendant also contends that the trial court erred by admitting the victim’s out-of-court statements regarding those incidents.
A. Additional Factual and Procedural Background.
1. Motion and Evidence Code section 402 hearing.
The prosecution filed a motion in limine to admit evidence of three prior instances of domestic violence committed by defendant against Bertha. It argued, among other things, that this evidence was not more prejudicial than probative. As a result, the trial court held a hearing pursuant to Evidence Code section 402 (section 402). The testimony at that hearing showed the following.
a. Incident on March 16, 1997.
On March 16, 1997, Officer Christopher Burns was dispatched to defendant’s house in response to a 911 call reporting domestic violence. He interviewed Bertha through a neighbor who acted as interpreter. Bertha told him that, during an argument, defendant had slapped her twice in the face, grabbed her arm, and twisted her wrist. Officer Burns observed redness on her right cheek and swelling of her left wrist and hand.
Officer Burns then interviewed defendant. Defendant said that Bertha had yelled “cuss words” at him, which made him angry, so he slapped her twice in the face. He also said that, at some point, Bertha had tried to hit him in the face with a wet towel. Defendant ultimately pleaded guilty to misdemeanor spousal battery. (Pen. Code, § 243, subd. (e).)
At trial, Officer Burns added that, according to defendant, when Bertha tried to hit him with the towel, he hit her wrist in self-defense.
b. Incident on June 27, 1999.
On June 27, 1999, Officer Richard Guerrero was dispatched to defendant’s house in response to a 911 call. He interviewed Bertha, using one of her sons as an interpreter. He noted redness on her left cheek and redness and swelling of her right wrist. Bertha said that, during an argument, defendant had tried to kick her in the stomach. She blocked the kick with her right wrist. The kick knocked her backwards. As she was falling, defendant slapped the left side of her face.
Officer Guerrero also interviewed the son, who described the incident similarly. The next day, after Bertha got back from the hospital, Officer Guerrero photographed her arm in a cast. As a result of this incident, defendant pleaded guilty to felony spousal abuse. (Pen. Code, § 273.5, subd. (a).)
c. Incident on January 25, 2000.
On January 25, 2000, Officer Thomas Yarrington was dispatched to defendant’s house in response to a call reporting domestic violence. He interviewed Bertha, using one of her sons as an interpreter. She told him that, the previous day, during an argument, defendant had kicked her in the leg. She explained that she had not called the police earlier because she was afraid that defendant would harm her if she did. Officer Yarrington took photographs showing a large bruise on Bertha’s thigh.
Officer Yarrington then interviewed defendant. Defendant claimed that Bertha’s present allegations “were all lies.” However, he did admit having recently broken Bertha’s arm.
At trial, Officer Yarrington added that defendant said that, as a result of breaking Bertha’s arm, “he had learned his lesson and no longer hits her or punches her.”
2. Argument and ruling on the motion.
Defense counsel objected that Bertha’s statements were inadmissible under Crawford. The trial court overruled this objection, essentially for two reasons. First, it applied the doctrine of forfeiture by wrongdoing: “[I]f I were to accept the defense argument in this case[,] in any instance where there had been prior acts of domestic violence and ultimately the victim had been killed, the district attorney would be prohibited automatically from bringing in . . . the victim’s statements . . . . I just can’t believe . . . Crawford is to be interpreted that broadly . . . .” Second, it found that the statements were reliable: “This test[] really ultimately is reliability.” “[E]ven . . . Crawford says it’s a case-by-case decision as to reliability.” “ . . . I am going to find that they’re inherently reliable even under Crawford . . . .” It reasoned, in part, that the statements were admissible under the spontaneous declaration exception (Evid. Code, § 1240), although it added: “That’s not strong enough in itself to permit them to come in, but that’s something that [t]he Court is weighing in determining whether they should come in.”
Defense counsel then objected to evidence of the prior incidents under Evidence Code section 352. The trial court also overruled this objection: “ . . . I really think Evidence Code section 1109 was created for just this kind of case and these kinds of instances. . . . These are not too remote. . . . [¶] And . . . as to weighing the prejudicial value versus probative value, the probative value is massive . . . . It shows not only propensity, . . . but also shows a motive, intent and common scheme and plan. . . . [B]ased upon [t]he Court’s understanding of how the trial is going to unfold, the identity of the perpetrator is not an issue at all, . . . it’s going to come down to what the mental state and intent was at the time of the crime. And this [ha]s great probative value on all those issues . . . .”
At first, defense counsel merely objected to evidence that (1) the first and second incidents had resulted in criminal convictions, and (2) defendant had made statements admitting the first and third incidents. The trial court had already ruled that Bertha’s statements did not violate Crawford; defense counsel did not specifically object to those statements under Evidence Code section 352. Moreover, defense counsel did not specifically object to the testimony of the three investigating officers under Evidence Code section 352.
Accordingly, Officers Burns, Guerrero, and Yarrington testified at trial, substantially in accordance with their testimony at the section 402 hearing. In addition, defendant and Bertha’s eldest son testified about the June 1999 incident. As he described it, during an argument, Bertha grabbed defendant’s shoulder. Defendant turned around and tried to kick her in the stomach; however, she “put her hand in the way.” As a result, her hand was broken. The prosecution also called a health care professional who testified that, after the June 1999 incident, Bertha was found to have a broken wrist.
At trial — although not at the section 402 hearing — defense counsel brought out the fact that there was no evidence that during the prior incidents defendant was under the influence of alcohol or drugs.
B. Admissibility under Evidence Code Section 1109 .
Evidence Code section 1109, subdivision (a)(1), as relevant here, provides: “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice . . . .” (Italics added.)
“By reason of section 110[9], trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every [domestic violence] offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other [domestic violence] offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 [discussing admission of other sex offenses under Evid. Code, § 1108].)
“A trial court’s decision to admit or exclude evidence is a matter committed to its discretion ‘“and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 585, quoting People v. Brown (2003) 31 Cal.4th 518, 534, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
As the trial court found, evidence that defendant had a propensity to commit acts of domestic violence against Bertha was substantially probative. “‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179, quoting People v. Jones (1954) 42 Cal.2d 219, 223.) Here, the prior incidents were sufficiently similar to the charged offense to show that defendant had a propensity to try to win almost any argument with Bertha by resorting to physical force. Moreover, as the trial court reasoned, they tended to disprove the defense theory that defendant committed the current offense only because he was intoxicated, and he was therefore unable to premeditate or to form the specific intent to kill.
On the other hand, the evidence was not particularly prejudicial. “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.)
The evidence here was “prejudicial” only in the sense that it was relevant and probative propensity evidence. It was not particularly inflammatory; the prior incidents involved, at worst, a broken wrist, whereas the current offense involved multiple stabbing injuries and death. Moreover, the jury was told that two of the prior incidents had resulted in criminal convictions. “This knowledge that appellant had already pleaded no contest and been punished for his prior transgressions substantially mitigates the kind of prejudice usually associated with the introduction of prior bad act evidence. [Citation.]” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
The prior incidents were not particularly remote; they had been committed over a period from two to five years before the present offense. Also, defendant had not led a “blameless life” for a long time in between them. (People v. Webster (1991) 54 Cal.3d 411, 445.) Nor did they consume an undue amount of time; they took up only about 50 pages of the reporter’s transcript.
We therefore conclude that the trial court did not abuse its discretion by ruling that the three prior incidents of domestic violence were more probative than prejudicial.
C. The Constitutionality of Evidence Code Section 1109 .
Defendant also contends that Evidence Code section 1109 violates due process and equal protection.
This court has previously rejected an essentially identical due process challenge to Evidence Code section 1109 (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029); so, unanimously, have our sister courts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1120 [Fourth Dist., Div. 1]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [First Dist., Div. 4]; People v. Jennings, supra, 81 Cal.App.4th at p. 1310 [First Dist., Div. 3]; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334 [First Dist., Div. 2]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 [Third Dist.].) Moreover, the California Supreme Court has rejected an otherwise identical due process challenge to a closely analogous statute, Evidence Code section 1108. (People v. Falsetta, supra, 21 Cal.4th at pp. 912-922.) Defendant disagrees with these decisions, but we find them persuasive. Indeed, as Falsetta cannot be distinguished on any meaningful grounds, we are obligated to follow it.
Essentially identical equal protection claims have been rejected, as well. (People v. Price (2004) 120 Cal.App.4th 224, 240 [First Dist., Div. 4]; People v. Jennings, supra, 81 Cal.App.4th at pp. 1310-1313 [First Dist., Div. 3]; see also People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185 [Third Dist.] [Evid. Code, § 1108 does not violate equal protection].) Again, we find these decisions persuasive, and we will follow them.
D. The Admissibility of Bertha’s Statements under the Confrontation Clause.
Crawford held that the confrontation clause bars the admission of a testimonial hearsay statement against a criminal defendant, unless (1) the declarant is unavailable at trial, and (2) the defendant has had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54, 55-56, 68.) The high court has subsequently clarified the concept of “testimonial” hearsay, at least as applied to a police interrogation, as follows: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 [126 S.Ct. 2266, 165 L.Ed.2d 224], fn. omitted.) It is undisputed that Bertha’s out-of-court statements to the police in this case were testimonial.
Under the law as it stood before Crawford, the admissibility of a hearsay statement turned on whether the statement bore “‘adequate “indicia of reliability.”’” (Crawford, supra, 541 U.S. at p. 40, quoting Ohio v. Roberts (1980) 448 U.S. 56, 66 [100 S.Ct. 2531, 65 L.Ed.2d 597].) Crawford wholly disapproved this test. (Crawford, at pp. 60-69.) Accordingly, when the trial court ruled that the statements here were admissible because they were reliable, adding, “[E]ven . . . Crawford says it’s a case-by-case decision as to reliability,” it erred.
Crawford did recognize several exceptions to the rule that it stated, including the doctrine of “forfeiture by wrongdoing . . . .” (Crawford, supra, 541 U.S. at p. 62.) Thereafter, however — and, in fairness to the trial court in this case, after it rendered its ruling — the United States Supreme Court held that the doctrine of forfeiture by wrongdoing applies only when the defendant has made a witness unavailable with the intention of preventing the witness from testifying. If the defendant has made the witness unavailable without that intent, the rule of Crawford applies, and that witness’s hearsay statements are inadmissible, absent a prior opportunity for cross-examination. (Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678, 171 L.Ed.2d 488].) Here, while there was certainly evidence that defendant killed Bertha and that he thereby made her unavailable to testify against him, there was no evidence that he killed her with that particular intent. Accordingly, when the trial court ruled that her statements were admissible based on forfeiture by wrongdoing, it also erred.
In sum, then, the trial court erred by admitting Bertha’s statements. Indeed, the People concede the point. They do argue, however, that the error was harmless.
The erroneous admission of evidence in violation of the confrontation clause is subject to the Chapman test of harmless error. (People v. Cage (2007) 40 Cal.4th 965, 991-992.) Under this test, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Thus, an error is harmless if it “clearly had no effect on the outcome[.]” (Rose v. Clark (1986) 478 U.S. 570, 582, fn. 11 [106 S.Ct. 3101, 92 L.Ed.2d 460].) “[W]e must ultimately look to the evidence considered by defendant’s jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.” (People v. Harris (1994) 9 Cal.4th 407, 428.)
Bertha’s statements were essentially cumulative of otherwise admissible evidence. First, after the March 1997 incident, Officer Burns was able to see redness on her right cheek and swelling of her left wrist and hand. Defendant admitted slapping her in the face twice. Admittedly, defendant claimed that he hit her wrist in only self-defense, when she was about to hit him in the face with a wet towel. This particular point, however, was not brought out at the section 402 hearing; hence, the trial court did not err by failing to consider it. In any event, defendant essentially admitted that he was the initial aggressor — he made the decision to resort to domestic violence. Finally, he had pleaded guilty to spousal battery.
Defendant raised a Crawford objection only to Bertha’s statements, not to his own. There is no authority for excluding a defendant’s own statements under the confrontation clause — not even when made to a police officer in response to questioning and therefore testimonial under Crawford. (See U.S. v. Lopez (1st Cir. 2004) 380 F.3d 538, 546, fn. 6; see generally Ruebner & Scahill, Crawford v. Washington, the Confrontation Clause, and Hearsay: A New Paradigm For Illinois Evidence Law (2005) 36 Loy. U. Chi. L.J. 703, 764 & fn. 487; 2 McCormick on Evidence (6th ed. 2006) § 252, p. 161.) To hold otherwise would mean that Crawford obviated — sub silentio — the entire body of law developed under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Similarly, after the June 1999 incident, Officer Guerrero was able to see redness on Bertha’s left cheek and redness and swelling of her right wrist. The eldest son of defendant and Bertha witnessed the incident and testified to it at trial. A health care professional confirmed that her wrist was broken. Defendant later admitted that he had broken Bertha’s arm. And, once again, defendant pleaded guilty to spousal abuse.
It is true that there was no independent confirmation of the third incident, in January 2000. However, because defendant did not admit this incident (and partly also because Bertha did not report it immediately), it was less probative than the other two incidents. Moreover, unlike the June 1999 incident, which resulted in a broken wrist, it merely resulted in a “very large” bruise. As there was ample admissible evidence of the first two incidents, it is simply inconceivable that the exclusion of Bertha’s statements about the first two incidents, even together with the total exclusion of the third incident, would have led to a more favorable outcome for defendant.
We therefore conclude that the admission of Bertha’s statements did violate the confrontation clause, but the error was nevertheless harmless beyond a reasonable doubt.
III
EVIDENCE THAT DEFENDANT REGULARLY GOT DRUNK AND BEAT THE VICTIM
Defendant contends that the trial court erred by admitting Maria’s testimony that he got drunk regularly and that he got violent with Bertha whenever he was drunk.
A. Additional Factual and Procedural Background.
In its motion in limine (see part II.A, ante), the prosecution also sought the admission of testimony by Maria that defendant regularly beat Bertha. Initially, the trial court excluded the evidence under Evidence Code section 352, reasoning that the testimony was so nonspecific that defendant did not have sufficient notice to be able to defend against it. However, it indicated that this ruling was without prejudice to a request for reconsideration.
During the trial, at the request of defense counsel, the trial court held a further section 402 hearing regarding Maria’s testimony. During that hearing, Maria testified that she regularly saw defendant get drunk and that, when he got drunk, he got violent with Bertha. Defense counsel objected again that this testimony was not specific enough to provide adequate notice.
The trial court ruled: “[S]ince alcohol is going to be a defense to the actual homicide, . . . I’ll let both sides go into it . . . . I think it’s really basically coming in under a theory of his character trait and habit for drinking . . . . And as long as the questions stick with that, I’m going to let it come in.”
Accordingly, Maria testified that, every time she visited defendant and Bertha, defendant drank, and he would appear to be drunk. She also testified that, “[d]aily when [she] visited them,” she saw defendant, while drunk, “get violent with Bertha[.]”
B. Analysis.
Defendant argues that the challenged testimony constituted inadmissible character evidence. (Evid. Code, § 1101, subd. (a).) The People respond that defendant waived this particular objection by failing to raise it at trial.
Originally, the section 402 hearing was not directed at this particular testimony at all. Defense counsel told the court that he wanted to determine whether Maria had personal knowledge of certain incidents, including the one in which defendant said, “I’ll give you a divorce you’ll never forget” and the one in which he said, “You bitch, you’re not gonna mock me . . . .” The trial court referred to this as “1101(b) . . . evidence” and observed that it “goes to motive and intent.” However, defense counsel did not object that it was improper character evidence.
After the prosecutor questioned Maria about these matters, and after asking some questions of its own, the trial court asked the prosecutor, “Is there anything else you would be trying to get in before we turn to [defense counsel]?” She replied, “Yeah, one question since alcohol has now become a factor.” She then elicited the challenged testimony. When Maria finished testifying, defense counsel objected to some of her testimony based on “Crawford, 352 and hearsay.” However, he never objected based on Evidence Code section 1101. The only objection that he made to the challenged testimony in particular was, again, that it was insufficiently specific to provide notice. He did also comment, “I think it goes along the same arguments that [t]he Court had just mentioned about the other acts.” The trial court, however, had not been addressing any arguments based on improper character evidence. We therefore deem this argument waived. (Evid. Code, § 353, subd. (a).)
Separately and alternatively, however, the argument lacks merit. Character evidence, including evidence of specific past acts, is admissible when offered to prove some fact other than the mere disposition to commit such acts. (Evid. Code, § 1101, subd. (b).) The fact that defendant regularly got drunk was relevant and admissible to rebut Dr. Gawin’s testimony that defendant did not have a tolerance for alcohol. Moreover, the fact that, when drunk, defendant regularly beat Bertha was relevant and admissible to prove intent and absence of unconsciousness. (See Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 945 [in action for wrongful arrest, false imprisonment assault and battery, evidence of police officer’s misconduct toward other suspects was admissible to prove both intent and absence of mistake or accident].)
Defendant also argues that the evidence should have been excluded under Evidence Code section 352. As already discussed, however, it was significantly probative. On the other hand, it was not significantly prejudicial. Maria’s testimony was vague, nonspecific, and even somewhat overblown; it is hard to believe that, every time Maria visited, more or less weekly over some 15 years, she saw defendant engage in violence toward Bertha. Moreover, if used as pure propensity evidence — i.e., as evidence that, because defendant struck Bertha while drunk before, he struck her while drunk this time — it was cumulative. It was essentially undisputed that defendant was drunk and that he stabbed Bertha, causing her death. The challenged evidence had significant probative value only when used for the appropriate purpose of disproving defendant’s claim that he was unconscious and lacked intent.
We therefore conclude that the trial court did not err by admitting this evidence.
IV
INSTRUCTIONS ON THE EFFECT OF A REASONABLE DOUBT AS BETWEEN A GREATER AND A LESSER INCLUDED OFFENSE
Defendant contends that the trial court erred by failing to instruct the jury that, if it had a reasonable doubt as to whether defendant was guilty of a greater or a lesser included offense, it had to find him guilty only of the lesser.
In People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), the California Supreme Court held that “when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Id. at p. 555.) In Dewberry itself, the defendant had requested such an instruction. (Id. at pp. 553, 557.) It has since been held, however, that such an instruction must be given sua sponte in an appropriate case. (People v. Crone (1997) 54 Cal.App.4th 71, 76, and cases cited.)
Here, the trial court gave the following instructions:
Defendant does not argue that any of these instructions were erroneous, except to the extent that they failed to communicate the Dewberry principle.
“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than some lesser crime. If [t]he People have not met this burden, you must find the defendant not guilty of first degree murder.” (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 521.)
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” (CALCRIM No. 570.)
“The People have a burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If [t]he People have not met this burden, you must find the defendant not guilty of murder.” (CALCRIM No. 570.)
“Involuntary manslaughter has been proved if you find beyond a reasonable doubt that . . . [among other things], as a result of voluntary intoxication, the defendant was not conscious of his actions or the nature of those actions. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If [t]he People have not met this burden, you must find the defendant not guilty of murder.” (CALCRIM No. 626.)
“The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If [t]he People have not met this burden, you must find the defendant not guilty of first degree murder.” (CALCRIM No. 641 (2006).)
“The People have the burden of proving that the defendant committed murder rather than the lesser offense. If [t]he People have not met this burden, you must find the defendant not guilty of murder.” (CALCRIM No. 641 (2006).)
“The People have the burden of proving that the defendant committed murder or involuntary [sic] manslaughter rather than a lesser offense. If [t]he People have not met this burden, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.” (CALCRIM No. 641 (2006).)
Finally, it gave the following standard reasonable doubt instruction: “A defendant in a criminal case is presumed to be innocent. This presumption requires that [t]he People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you [t]he People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.” (CALCRIM No. 220.)
These instructions were more than adequate to convey the Dewberry principle. Defendant’s real complaint seems to be that the jurors were also instructed that they had to find defendant not guilty of each greater offense before they could find him guilty of the lesser. For example, they were told: “Do not return a verdict form stating the defendant is guilty of second degree murder unless you all agree the defendant is not guilty of first degree murder.” (Italics added.) Defendant argues that this is inconsistent with the rule that the jurors should find defendant guilty of second degree murder as long as they have a reasonable doubt as to whether he is guilty of first degree murder. The jurors, however, were instructed that, if they had a reasonable doubt as to whether defendant was guilty of first degree murder, they had to find him not guilty of first degree murder. Once they were so instructed, there was no such inconsistency. The same is true of the other lesser included offenses.
We therefore conclude that the trial court did not fail to instruct in accordance with Dewberry.
V
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., MILLER J.
In its motion in limine, however, the prosecution sought a determination that the evidence was not more prejudicial than probative. Moreover, defense counsel did argue that the present crime was unduly similar to the prior incidents. In its ruling, the trial court basically addressed the admissibility of any evidence of the prior incidents. Accordingly, we believe that defendant raised his present contention adequately below. (Evid. Code, § 353, subd. (a).)