Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. RIF129470 of Riverside County. J. Thompson Hanks, Judge. Affirmed.
Linda Acaldo, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI Acting P.J.
A jury found defendant guilty of misdemeanor spousal battery (Pen. Code, § 243, subd. (e)(1)), as a lesser included offense of domestic violence (Pen. Code, § 273.5, subd. (a)) as alleged in count 1, and felony domestic violence (Pen. Code, § 273.5, subd. (a)) as charged in count 2. Defendant thereafter admitted that he had previously suffered a prior prison term (Pen. Code, § 667.5, subd. (b)). After the trial court denied defendant’s motion to reduce the domestic violence conviction to a misdemeanor, defendant was sentenced to a total term of four years in state prison. On appeal, defendant contends (1) his due process rights were violated when the trial court admitted evidence of his prior acts of domestic violence pursuant to Evidence Code section 1109 ; and (2) the trial court abused its discretion in denying his motion to reduce his felony conviction to a misdemeanor. We reject these contentions and affirm the judgment.
All future statutory references are to the Evidence Code unless otherwise stated.
I
FACTUAL BACKGROUND
The victim and defendant had been living together since December 2005, along with the victim’s two sons, Jose and Enrique. On March 19, 2006, about 2:00 p.m., they all decided to walk to a nearby park. As they were walking, the victim was holding Jose’s hand, defendant was in the middle, and Enrique was on the other side of defendant. Defendant asked the victim if he could hold her hand. When she refused, defendant became upset. Defendant pushed the victim and struck her with his hand on the left side of her face. Enrique heard the punch and looked up to see his mother crying. Jose heard defendant and the victim arguing. He saw defendant’s fist near the victim’s face and then saw the victim fall back onto a fence gate.
The victim was crying and told defendant to stop. Defendant struck her again on the right side of her face. The victim again asked defendant to stop and pointed out that neighbors were watching. Defendant stopped hitting the victim but said he no longer wanted to go to the park and returned to their apartment. The victim and her sons returned soon thereafter.
Once back at the apartment, the victim and defendant began arguing about who was going to leave. Defendant pushed the victim onto the couch and hit her again. The victim began kicking him to defend herself while defendant swung both hands at her. Several blows landed on the victim’s face and upper body. The victim told her children to go to a neighbor’s house and call the police.
The victim grabbed defendant’s necklace, causing him to back off. Defendant told her to give him his necklace, and she replied that he needed to leave her alone. Defendant picked up a cup of punch and threw it at the victim. The victim retreated to a bedroom. Once defendant heard that the police were on their way from an outside neighbor, he left.
A neighbor heard the victim’s children screaming and also heard cursing, so she stepped outside. She saw that the boys were crying and yelling for her to help their mother. They appeared frightened. She had the children come into her apartment. She heard the victim and defendant fighting, mostly cursing and screaming.
The victim suffered bruising and swelling to her eye, wrist, arm, and head as a result of defendant’s attacks.
The victim testified that defendant had previously hit her on at least two occasions. The first occurrence was about a month into their relationship. After the victim became jealous of a girl knocking on their apartment door, defendant hit the victim on her upper leg with an open hand and then left. The second incident happened a few weeks later. While eating dinner, defendant and the victim began arguing. Defendant stabbed her with a fork and punched her on the arm with a closed fist. Defendant also stabbed the victim with a screwdriver. The victim could not remember whether that occurred on the same occasion as when defendant stabbed her with the fork or during a separate argument.
II
DISCUSSION
A. Admission of Prior Acts of Domestic Violence
Prior to trial, the People sought to admit evidence of past incidents of defendant hitting the victim. Defendant objected under Penal Code section 1054.7 and Evidence Code section 352 and stated that the evidence of the other incidents lacked sufficient specificity. The court noted that such evidence would fall under Evidence Code section 1109. Finding that the evidence would not be prejudicial under Evidence Code section 352, the court allowed the prosecutor to ask the victim questions about prior instances of domestic violence.
Defendant contends that admission of the prior incidents of domestic violence pursuant to section 1109 was improper and violative of his right to due process and a fair trial. We disagree.
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.” Evidence Code section 352 provides: “The 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.)
Although prior criminal acts are generally not admissible to prove disposition or propensity to commit the charged offense (§ 1101, subd. (a)), section 1109 creates an exception. This section reflects the Legislature’s determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in new prosecutions for domestic violence. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) In domestic violence cases, prior acts of domestic violence are admissible to prove propensity to commit such acts, because such cases present unique problems of proof and credibility. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.) In determining whether to admit prior acts of domestic violence, the court should consider such factors as whether the prior acts are more inflammatory than the charged conduct, the possibility that the jury might confuse the prior acts with the charged acts, the closeness in time of the prior acts, and whether the defendant has already been convicted of and punished for the prior acts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Defendant’s contention that the trial court did not engage in the required weighing process is without merit. “[A]lthough the record must affirmatively show that the trial court weighed prejudice against probative value . . . [citations], the trial judge ‘need not expressly weigh prejudice against probative value — or even expressly state that he has done so [citation.].’ [Citations.] Thus, . . . we are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement. Several of the cases . . . involved argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and probative value from which we might infer that the court was aware of the Evidence Code section 352 issue and thus of its duty to weigh probative value against prejudice. [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Here, the prosecution’s trial brief noted sections 1109 and 352. In addition, at the motion in limine hearing defendant argued that the evidence should not be admitted under section 352. Though the court did not explicitly conduct an analysis under section 352, it stated, “It’s the same victim. It wouldn’t be a 352 problem because you’re not talking about a separate victim.” Contrary to defendant’s contention, it cannot be inferred that the only rationale the court felt permitted the admission of the evidence was whether or not the uncharged acts involve other victims. Rather, taken in context of the prosecution’s motion to introduce the prior acts of domestic violence, the court’s statements at the hearing, and arguments from the prosecutor and defense counsel, the court made an implicit finding that the prejudicial effect of the evidence was not substantially outweighed by its probative value, especially concerning the prior acts involved the same victim. Therefore, the record shows that the court was aware of the need to perform the section 352 analysis, and under People v. Padilla, supra, 11 Cal.4th at page 924, we may infer that the court did so, even though it did not place its analysis expressly on the record.
The court specifically stated: “It’s the same victim. It wouldn’t be a 352 problem because you’re not talking about a separate victim. The only problem is, of course, getting some more details out of her as to when and where. But I understand this is a typical domestic violence where the victim desires now not to — doesn’t wish to prosecute it. Some day I’m going to have one where the victim continues to, and I’m going to put a big gold star on my calendar when that happens.”
Relying on People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), defendant nonetheless contends that the admission of the challenged evidence denied him a fair trial because the court did not explicitly weigh certain factors it was purportedly required to weigh in determining whether to admit the prior incidents of domestic violence under section 352. Specifically, defendant asserts that in engaging in the section 352 weighing process, the trial court was required to address certain specific factors regarding each prior offense, including the nature, relevance, and possible remoteness of each such offense; the degree of certainty of its commission; the likelihood of confusing, misleading, or distracting the jurors from their main inquiry; the similarity of each prior offense to the charged offense; its likely prejudicial impact on the jurors; the burden on the defendant of defending against the uncharged offense; and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all prior offenses, or excluding “irrelevant though inflammatory details surrounding the offense.” (Falsetta, at pp. 916-917.)
The First District rejected this argument in Jennings. The court explained: “The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] ‘The [trial] court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.’ [Citation.]
“Thus, as the Supreme Court has repeatedly and recently reaffirmed, ‘when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.’ [Citations.] Nothing in Falsetta indicates the Supreme Court intended either to reverse this well-established precedent on the proper standards for section 352 analysis, or to require a trial court to articulate its consideration of each of a list of particular factors of probability and prejudice in making a decision under section 352. Because Falsetta did not review an actual section 352 ruling admitting propensity evidence in that case, much less the procedural issue of how a trial court should explicate such a ruling, it cannot be authority for overturning the long-standing rules for appellate review of section 352 analysis by a trial court.” (People v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)
We remind defendant that appellate courts have previously considered and rejected the claim that admission of prior acts of domestic violence under section 1109 violate the right to due process. (People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings, supra, 81 Cal.App.4th at p. 1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) We need not revisit this question. Because the trial court’s discretion to exclude propensity evidence under section 352 provides an adequate safeguard, admission of prior acts of domestic violence does not facially violate the due process clause. (See Falsetta, supra, 21 Cal.4th at p. 916-918; Hoover, at p. 1028.)
In his reply brief, defendant contends that his position is not that section 1109 violates the due process clause but that, because the trial court failed to fulfill its duty under section 352, his right to due process was violated. As explained previously, we find that the trial court implicitly fulfilled its duty under section 352. Additionally, contrary to defendant’s claim, there is no evidence in the record to demonstrate that the court misunderstood its duty under section 352.
Moreover, the evidence was not unduly prejudicial. “Evidence is not ‘unduly prejudicial’ under the Evidence Code merely because it strongly implicates a defendant and casts him or her in a bad light. . . . Instead, undue prejudice is that which ‘uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.)
The victim testified that about a month into their relationship, defendant hit her on her upper leg with an open hand and then left following a squabble concerning another woman. She further stated that a few weeks later, while eating dinner defendant stabbed her with a fork and punched her on the arm with a closed fist while they were arguing. In addition, she said that defendant also stabbed her with a screwdriver, but she could not remember whether that occurred on the same occasion as when defendant stabbed her with the fork or during a separate argument. In the charged incident, after defendant became angry, he pushed the victim and hit her repeatedly with his hands about her face and upper body. The victim suffered bruising and swelling to her eye, wrist, arm, and head as a result of defendant’s attacks. The prior incidents were no worse, if not far less worse, than the charged incident and therefore not particularly inflammatory. The court therefore did not abuse its discretion by admitting the prior acts evidence.
B. Denial of Motion to Reduce Felony Conviction to Misdemeanor
Prior to sentencing, defendant requested the trial court to reduce his felony domestic violence conviction to a misdemeanor. After having read and considered defendant’s motion and having listened to argument from counsel, the court denied defendant’s request. The court explained: “With regards to the [Penal Code section] 17(b), I think the more appropriate consideration is whether or not the defendant appears to be a suitable candidate for probation. Does his record indicate that he’s an individual that should be treated as a misdemean[ant], and I think the answer to that is clearly no. He’s been to prison twice. The fact that it’s a wobbler doesn’t mean that just because it could be a misdemeanor that it should be a misdemeanor. [¶] I considered his background and his extensive criminal history. The motion to reduce it to a misdemeanor is denied.” Defendant argues the trial court abused its when it denied his motion.
Penal Code section 273.5, subdivision (a) provides that a violation of that section is subject to imprisonment in state prison or in the county jail. The offense is therefore a “wobbler” and may be treated as either a felony or a misdemeanor at the time of sentencing, in the trial court’s discretion. (Pen. Code, § 17, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977 (Alvarez).) A party attacking the court’s ruling on a motion to reduce a wobbler to a misdemeanor has the burden of showing clearly that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the court is presumed to have acted to achieve legitimate sentencing objectives, and its decision will not be set aside on appeal. (Alvarez, at pp. 977-978.)
In exercising its discretion, the trial court may consider any relevant factors, including those which “direct similar sentencing decisions . . . .” (Alvarez, supra, 14 Cal.4th at p. 978.) Those factors include “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (Ibid.) When appropriate, the court should also consider the general objectives of sentencing as set forth in California Rules of Court, rule 4.410. (Alvarez, at p. 978.) Those objectives include protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life in the future and deterring him from future offenses. (Ibid., fn. 3.)
Defendant contends that the trial court abused its discretion because it denied his motion to reduce the offense to a misdemeanor based on a single fact, specifically his past criminal history. However, the court’s express reliance on that fact does not mean that the court did not consider the other relevant factors. The court read and considered defendant’s motion and the probation officer’s report, which discussed defendant’s criminal history and defendant’s attitude toward the offense. In addition, the court presided over the trial and was aware of defendant’s demeanor at trial. Finally, the court heard argument from counsel. The court was expressly concerned with defendant’s lengthy criminal record and whether defendant was willing to conform his conduct to the law. Taken all together, the court essentially found that defendant’s record indicated defendant was not going to rehabilitate himself.
The court’s comments as a whole make it clear that it did consider those sentencing objectives and factors which it deemed most pertinent under the circumstances of this case. There is no suggestion in our record that the trial court did not consider all the factors set forth in the moving papers, and defendant has not shown that the court’s denial of his motion was arbitrary or irrational. We will therefore not set it aside. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) “Whatever conclusions other reasonable minds might draw, on balance we find the decision tolerable given the court’s broad latitude.” (Id. at p. 981, fn. omitted.)
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.