Opinion
F072119
10-04-2017
THE PEOPLE, Plaintiff and Respondent, v. PASCUAL SANCHEZ, Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901820)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On June 26, 2015, a jury found defendant Pascual Sanchez guilty of inflicting injury to a former cohabitant or child's parent under Penal Code section 273.5, subdivision (a), count 1. On the same day, defendant admitted an allegation of a prior strike conviction, for which he served prison time.
On August 10, 2015, the trial court sentenced defendant to a middle term of three years, which was doubled to six years for a prior serious or violent strike conviction. A consecutive year was added for his previous prison term pursuant to Penal Code section 667.5, subdivision (b), for a total prison term of seven years. He received custody credits of 283 days.
On appeal, defendant contends there was insufficient evidence to support his conviction under Penal Code section 273.5 because the victim's injuries did not amount to a traumatic condition within the meaning of the statute. Defendant further contends the trial court erroneously allowed the prosecution to introduce evidence of five prior domestic violence acts. We affirm the judgment of the trial court.
FACTS
Defendant and victim Anna M. had been in a dating relationship leading up to the 2015 subject incident. Anna was aware defendant was legally married but separated from his estranged wife, M.S. Defendant married M.S. in 2000, but separated from her in 2010. Defendant has two children with M.S. Anna has children from a previous relationship. In 2014, defendant and Anna resided together and had one child in common. By 2015, Anna was pregnant with their second child. Although Anna and defendant were no longer living together by 2015, they still maintained a dating relationship and she referred to herself as his fiancée. Incident on March 21 , 2015
On the night of March 21, 2015, Jennifer Morales was at home in her apartment in Fresno County accompanied by her mother, child, cousin, and cousin's two children. Late that night, she heard knocking on her wall, which she described as a "loud ruckus" coming from next door. She estimated the noise continued for 30 minutes to an hour. Angry over the noise, Morales went outside with her cousin to smoke a cigarette in hopes she would come across the individual making the noise so that she could ask for it to stop. Outside, she encountered her neighbor, Anna, and defendant. Morales did not know Anna as she had just moved into the apartment next door, and she had never seen defendant before.
Anna and defendant were standing in front of Anna's apartment, talking. Morales noticed Anna appeared to have been crying, but she did not see any injuries. Morales asked Anna if she was okay. She thought she saw Anna silently mouth, "Call the cops." Morales went back inside and dialed 911. Morales told the 911 dispatcher that her neighbors were fighting and one was pregnant, scared, and "all beat up." She stated defendant was intoxicated and trying to fight with everyone, including her own mother. She also stated defendant was attempting to enter her home.
At trial, Morales testified she exaggerated the 911 call in hopes that law enforcement would respond promptly because she wanted the banging on her wall to stop. It had been her experience that law enforcement would not respond quickly unless there was a pressing emergency. She also admitted she was uncertain whether Anna actually motioned her to call 911, but Morales was so upset over the banging on the wall that she used it as an excuse to call the police. She further clarified she did not hear yelling, see injuries on Anna, and that defendant had not been forcing his way into her home. On the contrary, defendant had been invited into Morales's home by her mother, who was intoxicated and wanted defendant to join her. Morales's mother had offered defendant a beer. Morales reiterated several times that she exaggerated the 911 call. Once law enforcement arrived at the scene, Morales stayed inside and did not make contact with the responding officers.
Officer Arthur DeLeon of the Fresno Police Department was first to respond to the scene. When he arrived, he saw Anna and defendant talking outside of her apartment. Anna and defendant were facing each other, approximately one to two feet apart. Defendant was speaking sternly to Anna and she was crying and seemingly distraught. It was dark and DeLeon did not see any injuries on Anna, however, he was not using a flashlight. Defendant was angry, in a bowed-up position with clenched hands. He was not wearing a shirt. DeLeon approached Anna and defendant to introduce himself, and defendant took an aggressive stance. In response to defendant's aggressive demeanor, DeLeon immediately detained him for his own safety and walked him over to his patrol vehicle. By that time, defendant was yelling, cursing, calling him names, threatening to take his badge away, and warning that he was going to make sure nothing made it to court. DeLeon noticed defendant smelled like alcohol. Although defendant was resistant, DeLeon did not have to resort to physical restraint at any point.
Shortly afterwards, Officers Drew Vanzant and Arlene Flores of the Fresno Police Department arrived on scene. Officer DeLeon then proceeded to turn defendant over to them to continue with the investigation. As defendant exited DeLeon's patrol vehicle, DeLeon noticed defendant had scratches and red marks in the middle of his back, shoulder areas, and lower left side. He also noted a scratch running down his entire outer left biceps. When asked how he obtained the injuries, defendant pointed to DeLeon and stated he had caused the marks. DeLeon called his sergeant to report the accusation, but denied having caused the injuries. DeLeon's sergeant went to the scene to speak with defendant. Officer DeLeon left, leaving Officers Vanzant and Flores to conclude the investigation.
Officer Vanzant immediately directed his attention to Anna when he arrived. Anna and Vanzant went inside Anna's residence. Her children were inside. Inside, Vanzant noticed Anna had abrasions on both sides of her face and that her lip was "busted." The abrasions on the right side of her face were red and swollen. She had marks underneath her split lip and bruising on her face. He noticed clothing scattered throughout the apartment and a television on the floor. Anna's injuries and visible pregnancy prompted Vanzant to immediately call for emergency medical services. Emergency medical technician Luke Mendiola and paramedic Doyle Walkingstick from American Ambulance responded approximately five minutes later.
Anna was sitting on the couch with her children when Walkingstick and Doyle arrived. Walkingstick asked the children to leave the room before beginning his evaluation of Anna. Officer Vanzant stood by and observed while Mendiola and Walkingstick spoke with her. Mendiola took her "vitals," which were within normal limits, while Walkingstick asked her questions.
Mendiola saw cuts on the right side of Anna's face and lip. Walkingstick noticed abrasions on her swollen lips and a red abrasion on her right cheek. The abrasion on her cheek was not deep. Anna told them defendant had punched her once with a closed fist and backhanded her twice. Walkingstick performed an oral examination, but did not see any missing teeth or blood. Anna explained she had done everything she could to cover her stomach with both arms during the altercation, leaving her face exposed.
At trial, Mendiola testified Anna had also reported defendant attempted to attack her with a broom. Mendiola recalled seeing a bent broomstick on the floor. Walkingstick did not have full recollection of the broomstick statement, but said the statement sounded familiar.
Anna did not receive any treatment for her injuries on the night of the incident. Mendiola stated there was nothing that could have been done to treat her. However, Walkingstick did suggest to Anna that she go to the hospital. Anna refused because she did not have child care for her children. As he was not comfortable with Anna signing herself out of medical treatment due to her pregnancy, he called the hospital's doctor to get approval to release her.
After the paramedics concluded their evaluation, Officer Vanzant continued talking to Anna for approximately 15 minutes. She was still upset. He offered her an emergency protection order, which she refused. He then waited for the investigation bureau to arrive and photograph her injuries. Thereafter, Brooke Rogers of the investigation bureau of the Fresno Police Department arrived on scene. She met with Officer Vanzant, who directed her to take photos of Anna's injuries. She asked Anna where her injuries were and Anna pointed to injuries on her face and lips. Rogers photographed the injuries and nothing else. She later photographed defendant.
Anna's Testimony at Trial
At trial, Anna testified she did not recall many of the events that took place on March 21, 2015, except that defendant never "put hands on her" and that she lied to Officer Vanzant. She stated she was the aggressor that night because she believed defendant was cheating on her. As a result, she hit him as well as threw things at him. She stated defendant did not cause her injuries and believed she had caused her own injuries. She stated she still loved defendant. Initially, M.S. was very emotional when speaking with Kutz and made statements describing the incidents, but she later changed her position and stated she no longer remembered anything.
Prior Acts of Domestic Violence
The first prior act of domestic violence described occurred on December 20, 2014. Responding officer Epifanio Cardenas with the Fresno Police Department testified on the incident. He stated Anna's sister, Rachel M., called 911 and reported Anna was being hurt by defendant. When Officer Cardenas arrived on scene, he first made contact with Rachel. Minutes later, he met Anna in front of her apartment complex. He noticed swelling and redness across her forehead. Anna told him defendant had caused her injuries.
Anna told Officer Cardenas she was home when defendant arrived. He appeared upset and she knew she was going to "get a beating." At that point, she called her sister. Defendant got upset, took her phone away, and broke it. Their child walked over to her and she picked him up. Defendant took the child from her arms and tossed him into the living room. Defendant then grabbed Anna from behind with both arms over her head and began walking her over to the bedroom. As they were walking, he slammed her head into the wall, causing a dent in the wall. He then grabbed a knife and told her, "'You know I can kill you right now,'" and tossed the knife into the closet. He then took a screwdriver and stabbed himself two to three times before cutting his forearm twice with a box cutter. Defendant told Anna he was going to call the police and report that she caused his injuries so they would both go to jail. Anna showed Officer Cardenas where defendant had slammed her head into the wall. He saw a circular dent in the wall consistent with Anna's height. He felt the dent was recent because the sheetrock's chalky substance was still dangling on the cracks of the indentation. Officer Cardenas retrieved the knife from the closet. That same day, Officer Cardenas made contact with defendant. He observed three superficial scratch marks on his abdomen and two scratches on his forearm consistent with Anna's earlier statement.
The second prior act described occurred on March 4, 2013. The prosecution called responding officer Michael Kirby of the Fresno Police Department to testify. He stated Anna called 911 from a payphone. When Officer Kirby arrived, he immediately noticed she had scars and abrasions. Anna told Kirby that defendant had caused her injuries. She recounted that earlier that day he was home in their apartment with their two-month-old baby and one of her other children. When she arrived home from school at noon, he appeared to be in a bad mood. When she asked him what was wrong, he swung his fists at her and attempted to take the car and apartment keys from her hands. Then defendant shoved her on the ground and onto her stomach. He put his knee to her back and rubbed her forehead into the carpet. He let her up and she left the apartment to pick up one of her other children from school. When she returned to the apartment, she noticed defendant was still acting strangely. She picked up the phone to dial 911, but he had taken the batteries out of the phone. He told her, "'Good luck with that.'" Anna left the apartment with two of her children, leaving the infant behind with defendant, and went to a payphone to dial 911. Upon further examination, Officer Kirby saw that Anna had a half-inch laceration above her right eye, scuff marks on the left side of her forehead, a small swollen area inside her lower lip, a fresh scratch on her right elbow, a scratch on her left wrist area, and scuff marks on her back. Anna explained that one week prior to that date, defendant had struck her with his fist. The incident resulted in the laceration on her forehead. Anna did not call law enforcement on that prior incident. Officer Kirby asked Anna if she wanted to press charges against defendant and Anna agreed. She also accepted an emergency protective order.
The third prior act discussed occurred on April 7, 2009, and involved M.S. M.S.'s grandmother, Rita Renteria, Investigator Kutz, and Officer Robert Alvarez of the Fresno Police Department were called to testify. Renteria stated the incident occurred in her home, where M.S. and defendant were living at the time. Renteria heard M.S. crying and defendant cussing in their room. She heard M.S. yell, "Stop, stop." Renteria knocked on their bedroom door and asked them to open the door or she would call the police. Unable to obtain a response, Renteria took the children across the street to a shopping center and called law enforcement. Officer Alvarez responded to the scene. Renteria let him into her house and directed him to M.S. and defendant's room.
Officer Alvarez testified that when he arrived, he met with M.S. She appeared worried, scared, and looked as if she had been crying. M.S. told Officer Alvarez she and defendant were arguing when defendant attempted to yank their child from her arms. Then defendant locked the bedroom door, stood at the doorway, and told her he would kill her if she left or called the police. M.S. believed defendant would carry out the threat.
M.S. testified she did not recall that incident. Kutz testified that two days prior to trial, M.S. told him that on the subject date, she was in the bedroom with defendant and he would not let her or their child out of the room.
The fourth prior act discussed took place on October 14, 2007. Renteria and Kutz were called to testify on behalf of the incident. On that date, M.S., seven months pregnant, was taken to the hospital after defendant allegedly hit her on the stomach. While M.S. testified she did not remember the incident, she told Kutz she was seven months pregnant when defendant pushed her on the bed and she went to the hospital afterwards.
The last act of domestic violence discussed occurred on September 7, 2006, between M.S. and defendant. Deputy Daniel Larralde of the Fresno County Sheriff's Department and Kutz testified as to the incident. Larralde stated that when he made contact with M.S. that night, she appeared nervous and afraid. He said M.S. explained defendant had called to see their child and asked M.S. to take her to his home. M.S. drove their child to defendant's home. When she knocked on the door, defendant pulled M.S. in, leaving their child outside. He then threw her on the bed, accused her of cheating, and punched her repeatedly on her head and back. He then pulled a gun out from under the bed and waved it in the air while threatening to kill them both. He ripped off her shirt and pants and sucked on her neck, leaving a red mark. After she was able to calm him down, he went home with her because he was afraid she would call the police. Once they arrived at her house, she honked her horn in hopes of calling attention to themselves so she could get away from him. She was able to get out of the vehicle after her grandmother appeared outside. Again, M.S. testified she did not remember the incident, but had told Kutz defendant struck her on the head several times, then took a gun out from under the bed and pointed it at her and threatened to kill her.
DISCUSSION
1. Substantial Evidence of Traumatic Condition
Defendant contends there was insufficient evidence to support his conviction under Penal Code section 273.5—inflicting corporal injury on a former cohabitant or child's parent—because Anna's injuries did not satisfy the statutory definition of a traumatic condition. Defendant does not contest that Anna suffered injuries on the night of the incident. The heart of defendant's argument is that Anna's injuries did not amount to a traumatic condition, irrespective of the "minor" language found in section 273.5. We disagree with defendant's contention.
Analysis
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find guilt beyond a reasonable doubt. While a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury not the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether guilt has been established beyond a reasonable doubt. Where the circumstances reasonably justify the jury's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding will not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Before a judgment can be set aside for insufficient evidence, a reviewing court must conclude that on no hypothesis whatever is there sufficient substantial evidence in support of the verdict. (People v. Dealba (2015) 242 Cal.App.4th 1142, 1149.)
Penal Code section 273.5, subdivisions (a) and (b) provide, in pertinent part, that any person who willfully inflicts corporal injury resulting in a traumatic condition upon his or her cohabitant, former cohabitant, or the mother or father of his or her child, is guilty of a felony. A traumatic condition is defined 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." (§ 273.5, subd. (d).) The courts have further defined a traumatic condition as a "wound or other abnormal bodily condition resulting from the application of some external force" (People v. Stewart (1961) 188 Cal.App.2d 88, 91) and "'an abnormal condition of the living body produced by violence'" (People v. Cameron (1975) 53 Cal.App.3d 786, 797).
Defendant relies on People v. Abrego (1993) 21 Cal.App.4th 133 to support his position. In Abrego, the victim's husband slapped and punched her several times. (Id. at p. 135.) The victim suffered soreness, tenderness, and emotional harm without evidence of even minor corporal injury. (Id. at pp. 135, 136.) The Abrego court noted that injury from a traumatic condition could be satisfied by even minor injuries. (Id. at p. 138.) Nonetheless, the court held the victim's soreness and tenderness were insufficient to establish she had suffered an injury from a traumatic condition within the statutory meaning of Penal Code section 273.5.
Abrego's facts are distinct from those of the instant case. In Abrego, the victim did not have corporal injuries. (People v. Abrego, supra, 21 Cal.App.4th at p. 136.) In contrast, Anna did have injuries as a result of defendant's punches. Officer Vanzant testified he saw red, swollen abrasions on Anna's face with bruising, and he noted she had a "busted" lip. Mendiola saw cuts on her face and upper lip. Walkingstick also saw an abrasion on Anna's face that he described as a fresh, red scuff, and he noticed her lips were swollen. Anna's injuries were documented in photographs taken by Rogers. Although, Anna recanted her statements accusing defendant of having caused her injuries on March 21, Vanzant's, Mendiola's, and Walkingstick's testimony, in addition to the photographs taken by Rogers, corroborated Anna's injuries.
"Penal Code section 273.5 is violated when the defendant inflicts even 'minor' injury.'" (People v. Wilkins (1993) 14 Cal.App.4th 761, 771.)
"Some other offenses do require higher degrees of harm to be inflicted before the crime denounced by them is committed: felony battery, section 243, subdivision (d), requires 'serious bodily injury'; and felony assault, section 245, subdivision (a), requires 'force likely to produce great bodily injury.' But, 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. Those special relationships form a rational distinction which has a substantial relation to the purpose of the statute." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)Minor injuries such as bruising (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086) or redness (People v. Wilkins, supra, at p. 771) fall within the statutory meaning of a traumatic condition. Viewing the evidence in the light most favorable to the judgment, we find the evidence was sufficient to support the allegation Anna suffered a traumatic condition within the meaning of section 273.5.
2. Admission of Prior Acts of Domestic Violence
Defendant contends the trial court erroneously admitted evidence of five prior domestic violence acts against Anna and M.S., four of which were uncharged. Defendant argues the prejudicial effect of the evidence outweighed its probative value.
Background
During in limine motions, the prosecution moved to admit the following prior acts of domestic violence under Evidence Code section 1109 to establish defendant's pattern of violence:
(1) December 20, 2014, an uncharged domestic violence act against Anna;In anticipation of the prosecution's request, the defense brought an in limine motion to have the evidence excluded under Evidence Code sections 1109 and 352, arguing the evidence would result in undue prejudice against defendant.
(2) March 4, 2013, an uncharged domestic violence act against Anna;
(3) April 7, 2009, whereby defendant was convicted of making criminal threats against M.S.;
(4) October 14, 2007, an uncharged domestic violence act against M.S.; and
(5) September 7, 2006, an uncharged domestic violence act against M.S.
The trial court expressly determined the evidence was relevant under Evidence section 1109 and it was not too remote in time. It also found the presentation of the evidence would not create an undue consumption of time.
The trial court further addressed the possibility that Anna or M.S. might not appear or testify at trial. The prosecution stated that in the event of their noncompliance, the People intended to call alternative witnesses to establish the evidence of the prior acts, including M.S.'s grandmother, who had witnessed three of the prior acts, and a police officer. In response, the defense requested Evidence Code section 402 hearings, arguing the witnesses might not remember the incidents. The trial court acknowledged that calling witnesses to testify who did not actually recall the incidents would, in fact, be prejudicial. Accordingly, the trial court agreed to admit the evidence of the prior acts subject to the section 402 hearings and further agreed to address the probability of undue prejudice or of confusing the issues or misleading the jury at those hearings.
At the start of trial, the court again discussed the possibility of Evidence Code section 402 hearings to determine whether the alternative witnesses did remember the prior incidents in question. It ultimately decided there was no need to hold separate section 402 hearings.
When the time came for Anna and M.S. to testify as to defendant's prior domestic violence, both women denied recollection of the events. As a result, the alternative witnesses were called to testify about defendant's prior acts. The defense objected to the prosecution calling multiple witnesses to testify regarding the same incidents, arguing the testimony would be cumulative. The trial court ruled in favor of the prosecution, finding the testimony was necessary to establish the evidence and corroborate the allegations of the past acts, and it would not be cumulative or necessitate an undue consumption of time.
The jury was instructed with CALCRIM No. 852. The instruction read that if the jury found defendant did commit the prior uncharged acts of domestic violence, the jury could, but was not required, to consider such evidence only for the purpose of inferring that defendant was disposed or inclined to commit domestic violence. It also stated that such finding was only one factor to consider in determining defendant's guilt of the present charge and the People were still required to prove the charge beyond a reasonable doubt.
Admissibility of Prior Acts of Domestic Violence Under Evidence Code Section 1109
Section 1109, subdivision (a)(1) of the Evidence Code provides as follows: "Except as provided in subdivision (e) or (f), in 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 1109 is an exception to the general rule that prior bad acts are inadmissible to prove a defendant's propensity to commit charged offenses. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1109 "permits the admission of a defendant's uncharged acts of domestic violence for the purpose of showing a propensity to commit such crimes." (People v. Disa (2016) 1 Cal.App.5th 654, 672; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Section 1109 "was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.'" (People v. Johnson (2010) 185 Cal.App.4th 520, 532.) However, evidence of acts occurring more than 10 years before the charged offense is inadmissible, unless the court determines the admission of this evidence is in the interest of justice. (§ 1109, subd. (e).)
Evidence Code section 1109 has a "safeguard against the use of other acts of domestic violence 'where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under section 352.'" (People v. Hoover, supra, 77 Cal.App.4th at p. 1028.) This is a safety valve that continues to prohibit admission of such evidence whenever its prejudicial impact substantially outweighs its probative value. (People v. Johnson, supra, 185 Cal.App.4th at p. 529.)
The trial court found the evidence of defendant's prior acts of domestic violence was relevant under Evidence Code section 1109 and not too remote in time. Defendant does not dispute the prosecution was entitled to present evidence of defendant's past domestic violence acts. Instead, defendant argues the trial court erroneously admitted the evidence because the prejudicial effect to defendant outweighed its probative value.
Evidence Code section 352Pursuant to Evidence Code section 352, a court has the discretion to exclude relevant evidence if its admission would necessitate an undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The word "prejudicial" is not synonymous with "damaging." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Evidence is unduly prejudicial under section 352 where it uniquely tends to evoke an emotional bias against the defendant while having little effect on the issues. It is also prejudicial if it invites the jury to prejudge a person or cause on the basis of extraneous factors. (People v. Johnson, supra, 185 Cal.App.4th at p. 534.) "Painting a person faithfully is not, of itself, unfair." (People v. Harris (1998) 60 Cal.App.4th 727, 737.) "Relevant factors in determining prejudice include whether the prior acts were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
"It is well recognized that there must be a clear abuse of discretion before an appellate court will disturb a trial court's ruling based on Evidence Code section 352." (People v. Demery (1980) 104 Cal.App.3d 548, 558.) The appellate court "will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse upon finding its decision was palpably arbitrary, capricious, and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) "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." (Ibid.) The record must affirmatively show the trial judge did in fact weigh prejudice against probative value, but no more is required. (People v. Clair (1992) 2 Cal.4th 629, 660.) The trial judge does not need to expressly weigh prejudice against probative value. There need only be an adequate record for meaningful appellate review. (Ibid.)
Defendant contends the evidence of his prior domestic violence acts was unduly prejudicial because those acts were more serious and inflammatory than the present charge. However, we find the prior acts were substantially similar to the present charge because they involved the same general characteristics where defendant would lose his temper and attack the victim in the presence of their children.
Defendant assaulted Anna while she was seven months pregnant in front of their child and Anna's other children. He slapped and backhanded her on the face, leaving abrasions on her face and swollen lips. In 2014, defendant yanked his and Anna's child from her arms and slammed her head into the wall, leaving swelling and redness across her forehead. Although he took out a knife and threatened to kill her, he threw the knife into the closet and did not harm her with it. In 2013, defendant injured Anna in the head area and one week later rubbed her head into the carpet in front of their child, leaving lacerations and scuffs on her face and swollen lips. In 2009, defendant yanked his and M.S.'s child out of her arms and would not let her out of their bedroom, threatening to kill her if she left or called the police. In 2007, defendant shoved M.S. onto a bed while she was seven months pregnant. In 2006, defendant locked his and M.S.'s child out of the house, pushed M.S. onto the bed, and punched her in the head and back. He took a gun out from under the bed and threatened to kill them both, but ultimately did not use the gun. While the 2014 and 2006 incidents are mildly distinguishable from the present charge because defendant waved weapons while in the commission of the domestic violence acts, he did not actually harm the victims with weapons, nor was there any implication he did so.
The evidence bore minimal risk of confusing the issues or misleading the jury because the five acts involved two different victims, different witnesses, and each incident occurred in a different year. In People v. Johnson, supra, 185 Cal.App.4th 520, the court similarly held the evidence would not unduly confuse the issues because the past acts of violence were separated by time and involved different victims and witnesses. (Id. at p. 533.)
Defendant contends that allowing multiple witnesses to testify about the same incident was cumulative and necessitated an undue consumption of time. Specifically, defendant argues Deputy Larralde and Officer Alvarez should not have been allowed to testify when Investigator Kutz had already testified regarding the same incidents. Larralde's testimony served to corroborate Kutz's testimony regarding the 2006 incident and took a mere 11 pages of transcript. Alvarez's testimony corroborated Kutz's testimony of the 2009 incident. His testimony took 10 pages of transcript. Their testimony was critical to corroborate allegations of defendant's past conduct and to properly establish issues of the victim's demeanor and injuries on the date of the incidents.
Defendant argues the evidence was also cumulative because the prosecution was allowed to present evidence of five prior acts. This is more appropriately addressed in consideration of the legislative intent of Evidence Code section 1109. In enacting the statute, the Legislature found that evidence of prior acts in domestic violence cases is particularly probative in demonstrating the propensity of the defendant.
"'"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. Cabrera (2007) 152 Cal.App.4th 695, 705-706.)Evidence of defendant committing five acts of domestic violence over the span of eight and a half years supports the legislative intent of section 1109 by creating a strong inference defendant had a propensity to commit domestic violence. Only one prior act occurred eight and a half years ago and the others were more recent.
Further, the evidence is not remote in time. Evidence Code section 1109 creates a presumption that prior acts occurring within 10 years of the charged offense are not too far removed in time. (§ 1109, subd. (e).) Evidence of defendant's prior acts was limited to those occurring within 10 years of the current allegations.
Defendant also argues he was prejudiced because the jury was informed he was punished for only one of the five prior acts presented by the prosecution. The fact the jury was not presented with evidence that defendant was "punished" for the prior offenses was not prejudicial because it could also lead the jury to conclude the prior offenses were not as serious as the present charge and may not have been serious enough to charge. However, "'"[t]he principal factor affecting the probative value of an uncharged act is its similarity to the charged offense."'" (People v. Johnson, supra, 185 Cal.App.4th at p. 531.) Defendant relies on People v. Hendrix (2013) 214 Cal.App.4th 216 in support of his contention.
In Hendrix, defendant Richard Hendrix was convicted of knowingly resisting a police officer's arrest by use of force and violence for an incident occurring in 2009. At trial, Hendrix argued he believed the police officer was a security guard because his first contact had been with a security guard that night. (People v. Hendrix, supra, 214 Cal.App.4th at pp. 221-222.)
The trial court admitted evidence of two prior encounters Hendrix had with police officers in 2005 and 1993 under Evidence Code section 1101, subdivision (b). During the 2005 encounter, Hendrix violently resisted arrest by a police officer and threatened a second officer who was transporting him to jail. He told the transporting officer he was going to look up his address on the Internet and "get him." In the 1993 encounter, Hendrix was intoxicated and passively resisted being handcuffed by a police officer. As the police officer walked him over to the patrol vehicle, Hendrix attempted to wiggle out of the officer's hold and refused to get into the vehicle. Hendrix kicked a second officer who was helping get him into the vehicle. (People v. Hendrix, supra, 214 Cal.App.4th at pp. 222, 225-226.) The purpose of introducing Hendrix's prior acts was to establish knowledge that he was resisting a police officer and not a security guard. (Id. at p. 225.)
The trial court in Hendrix concluded the evidence was more probative than prejudicial. (People v. Hendrix, supra, 214 Cal.App.4th at p. 225.) However, on appeal the court found the trial court's analysis was erroneous because it failed to consider the similarity of the prior incidents to the instant charge. (Id. at p. 239.) The prior acts were not similar because they did not involve security guards. The court explained the prior incidents would have been probative if the circumstances under which Hendrix encountered the officers in those incidents involved security guards. (Id. at p. 243.) The evidence was also cumulative because the knowledge that Hendrix purportedly gained and retained from the prior incidents—knowledge of an officer's behavior and commands during the course of duty—was common knowledge. (Id. at p. 244.) Further, the Hendrix court found the evidence was irrelevant and inflammatory because evidence of Hendrix's postarrest threatening conduct in 2005 did not establish the requisite knowledge and mistake of fact the evidence was intended to show. (Id. at p. 245.)
People v. Hendrix is factually distinguishable from the instant case. The probative value of the evidence was weak in Hendrix because of the dissimilarities between the past and present acts. The evidence also proved irrelevant to establish Hendrix's knowledge and mistake of fact. Finally, the 1993 incident was too remote in time. It occurred 16 years prior to the 2009 subject incident. In contrast to Hendrix, defendant's prior acts of domestic violence are similar to the present offense and not too remote in time. Defendant's prior acts affirmatively establish he is inclined to commit domestic violence.
Defendant further argues that limiting instruction CALCRIM No. 852 provided no assurance the jurors properly considered the evidence of his prior acts. Contrary to defendant's argument, limiting instructions do eliminate the risk of prejudice. "As part of the Evidence Code section 352 prejudice analysis, courts consider whether the trial court gave a limiting instruction. A limiting instruction can ameliorate section 352 prejudice by eliminating the danger the jury could consider the evidence for an improper purpose." (People v. Hendrix, supra, 214 Cal.App.4th at p. 247.) CALCRIM No. 852 instructed the jury to consider defendant's prior domestic violence acts for the limited purpose of determining his propensity to commit domestic violence. It further instructed that the People were still required to prove the present charge beyond a reasonable doubt and the jury could not determine defendant's guilt based solely on the evidence of his prior acts. Juries are presumed to follow the trial court's instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.) Nothing in the record indicates the jury did not follow the instruction.
Finally, defendant contends the erroneous admission of the evidence violated his due process rights, rendering his trial fundamentally unfair. Generally, issues relating to the admission of evidence do not raise a federal constitutional question. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Dowling v. United States (1990) 493 U.S. 342, 352-354.) California courts have also rejected due process challenges to the admission of propensity evidence, noting that due process is satisfied by the trial court's application of section 352 in making its determination concerning whether acts of uncharged offenses are admissible. (People v. Falsetta (1999) 21 Cal.4th 903, 917 [§ 352 saves companion statute § 1108 from due process challenge]; People v. Lewis (2009) 46 Cal.4th 1255, 1287-1289 [same]; People v. Johnson, supra, 185 Cal.App.4th at pp. 528-530 [§ 1109 does not violate due process]; People v. Cabrera, supra, 152 Cal.App.4th at pp. 703-704 [same].) We therefore reject defendant's due process challenge to section 1109.
In sum, evidence of defendant's prior acts of domestic violence was more probative in value than prejudicial. The past acts were no more inflammatory than the present charge, and there was minimal risk the jury might confuse the prior acts with the present charge. Further, the acts were not remote in time and CALCRIM No. 852 limited the scope in which the jury could use the evidence. The common factors in the past and present acts strongly suggest defendant has an anger management problem, leading him to commit a string of similar domestic violence acts against his female intimate partners, specifically the mothers of his children.
DISPOSITION
The judgment of the trial court is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.