Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE260936 Peter C. Deddeh, Judge.
NARES, J.
Nicholas James Schwartz was charged with one count of corporal injury upon a spouse and/or roommate (Pen. Code, § 273.5, subd. (a).) It was further alleged that Schwartz had two prior strike convictions of a serious or violent felony and that he served two prior prison terms (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 668, 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
On August 14, 2006, a jury found Schwartz guilty as charged. Schwartz waived jury trial on the prior enhancement allegations. The court found true the first prison prior allegation and the two strike prior convictions.
At sentencing, the court dismissed the second prison prior allegation and ordered the second strike prior allegation stricken. The court sentenced Schwartz to a prison term of nine years, consisting of the upper term of four years, doubled to eight years for the prior strike conviction and a consecutive one-year term for the prior prison term.
On appeal Schwartz contends that (1) the court erred in allowing the prosecution to introduce prior acts of domestic violence pursuant to Evidence Code section 1109 to show his propensity to commit domestic violence offenses; and (2) under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham), he was entitled to a jury trial on the factors used by the court to impose the upper term of his sentence. Subsequent to Schwartz's briefing in this case, the California Supreme Court filed its decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, which further clarified the Cunningham decision. We have received supplemental briefing from the parties regarding the impact of Black II and Sandoval on this case.
We conclude that the court did not err in admitting the evidence of prior acts of domestic violence under Evidence Code section 1109. We also conclude that under the principles announced by the California Supreme Court in Black II, the trial court did not err in imposing the upper term sentence because the record establishes at least one constitutionally permissible aggravating factor to support the upper term selection.
Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
A. Prosecution's Case
1. Domestic violence against victim, Linda Uribe
Schwartz started a romantic relationship with Linda Uribe in March 2005 and moved into her apartment in April 2005. On May 2, 2006, while arguing in their home, Schwartz pushed Uribe, causing her to fall and injure her left elbow and the ring finger on her right hand. Uribe's right arm was swollen and bruised. However, her bones were not fractured. The day after the incident, Uribe reported to San Diego County Deputy Sheriff Bruce Marler that during the past year of their relationship, there had been approximately 13 domestic violence incidents and that none of them had been reported to the police. Uribe also reported that she was afraid of Schwartz. Deputy Marler then arrested Schwartz.
On May 4, 2006, Uribe told San Diego Sheriff's Department Detective Christina Bavencoff that Schwartz had pushed her, causing injuries to her left elbow and her ring finger on her right hand. When Detective Bavencoff spoke to Uribe again on May 9, 2006, Uribe stated that she was afraid of losing Schwartz and said that Schwartz had accidentally caused her injuries because his legs had buckled, causing her to fall into the coffee table.
On May 2, 2006, the day of the incident, Uribe's friend, JoAnn Pratt-Grey, noticed that Uribe's right eye was bruised. When asked about the cause of her bruised eye, Uribe responded, "[W]ell we were arguing." On that same day, Uribe also told another friend, Larry Green, that Schwartz had bent her fingers back during a confrontation in the hallway of their home and that Schwartz had hit her, causing her bruised eye.
2. Prior acts of domestic violence
At trial, Schwartz's estranged wife, Linda Schwartz, testified that Schwartz was physically violent toward her while they were living together. Specifically, Linda Schwartz testified that in 2002, Schwartz had thrown her across the bedroom, resulting in her sustaining a broken collar bone. Linda Schwartz also testified that in 1997 Schwartz broke her wrist by twisting it during an argument and that she suffered a cut hand because she had to break a window to leave the house because Schwartz would not let her leave.
B. Defense Case
At trial, Uribe testified that the May 2, 2006 incident was an accident. Uribe testified that Schwartz, because of trouble with his knees, fell toward her, causing her to fall on the coffee table. Uribe denied telling Deputy Marler that Schwartz pushed her. Schwartz's neighbor and a friend also testified that they had seen him fall down after his knees had buckled.
DISCUSSION
I. PRIOR ACTS OF DOMESTIC VIOLENCE
Schwartz contends that the court abused its discretion under Evidence Code section 352 in admitting under Evidence Code section 1109 prior acts of domestic violence against his ex-wife. We reject this contention.
A. Background
In an in limine motion, the People sought to introduce three prior charged acts of domestic violence committed by Schwartz against his estranged wife, Linda Schwartz, described in more detail, ante. Defense counsel objected under Evidence Code section 352, claiming the evidence was more prejudicial than probative. The court, observing that the testimony would not take an undue amount of time, weighed the evidence under Evidence Code section 352, and ruled that two of the prior acts of domestic violence were relevant and admissible under Evidence Code section 1109, but a third prior act was inadmissible. The court, in ruling that the evidence from the two prior acts was admissible, stated that the testimony would not be "substantially prejudicial and . . . [would not] outweigh the probative value," and the court would not "spend a bunch of time putting on those two incidents." The court excluded an incident from 1999 where Schwartz kicked Linda Schwartz in the abdomen and then later brandished a knife at police officers because "the gravamen [was] the whole incident with the police" and because the "[defendant] plead[ed] guilty to assaulting her only as a misdemeanor."
The court instructed the jury under Judicial Council of California Criminal Jury Instructions (January 2006), CALCRIM No. 852, as follows:
"The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a spouse, or cohabitant, or person with whom the defendant has had a child, or person who dated or is dating the defendant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit Infliction of Corporal Injury to Spouse or Roommate, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count One. [¶] The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
B. Applicable Authority
Evidence Code section 1109, subdivision (a)(1) provides:
"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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352 ." (Italics added.)
Evidence Code section 1109, subdivision (d)(3) defines the term "domestic violence" as follows:
"As used in this section, [¶] '[d]omestic violence' has the meaning set forth in Section 13700 of the Penal Code. . . ."
Section 13700, subdivision (b) provides in part:
"'Domestic violence' means abuse committed against an adult or a [fully emancipated] minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship."
Section 13700, subdivision (a) defines "abuse" as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to him or herself, or another."
C. Analysis
A trial court has broad discretion in determining whether to admit or exclude evidence objected to on the basis of Evidence Code section 352, and rulings under this section will not be overturned absent an abuse of that discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) "[T]he term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' [Citation.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[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 the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Relevant factors in determining the prejudice resulting from admission of prior acts of domestic violence include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, the remoteness in time of the prior acts, the time required to present the evidence, and the probative value of the evidence, especially the degree of similarity to the charged acts. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.)
Applying these factors to the instant case, the court did not abuse its discretion in admitting the prior instances of domestic violence involving Linda Schwartz. Contrary to Schwartz's assertion, the prior incidents of domestic violence were not substantially more egregious than the charged offenses and posed no danger of confusing the jury. The events were sufficiently recent in time to show Schwartz's propensity to commit the charged conduct and were similar to the charged conduct. They involved physically abusive conduct toward a domestic partner. Specifically, similar to the 2002 incident that Linda Schwartz described where Schwartz threw her against a dresser, Schwartz pushed Uribe into a coffee table. Schwartz's conduct in both incidents mirrors the charged conduct in this case and shows a pattern of Schwartz's physically violent nature toward women with whom he has had romantic relationships.
Schwartz's argument that the injuries that resulted from the charged conduct were only minor bruises while the prior incidents resulted in broken bones is not compelling. Although the result of Schwartz's conduct in the prior incidents may have been more severe, the conduct was not; in all of the instances, including the charged conduct, Schwartz was physically violent toward a domestic partner and/or spouse. Although the prior incidents involved arguably greater physical violence (breaking Linda Schwartz's collarbone and wrist), it was not so much more egregious that its prejudicial impact outweighed the highly probative nature of the evidence. Linda Schwartz's description of Schwartz's actions toward her was no more inflammatory than the testimony of Deputy Marler and Detective Bavencoff.
Additionally, the 2002 incident occurred only four years prior to the charged conduct. Regarding the 1997 incident, although approximately nine years had elapsed, the evidence was nonetheless relevant because it showed Schwartz's propensity to commit violent acts against women. Linda Schwartz testified that Schwartz continued to be physically violent toward her after 1997, and testimony was also given that Schwartz was physically abusive toward his current girlfriend, Uribe. The 1997 incident was not a "youthful indiscretion." Schwartz was an adult in his 40's when that incident occurred. Thus, Schwartz's argument that the 1997 incident was not relevant is unpersuasive, and it was not too remote in time.
The most serious "prejudice" this evidence caused Schwartz was the fact it damaged his defense. However, as stated, ante, "'"prejudicial" is not synonymous with "damaging."'" (People v. Karis, supra, 46 Cal.3d at p. 638.) Therefore, the trial court did not abuse its discretion by admitting the testimony of prior acts of domestic violence against Linda Schwartz.
Even if the trial court abused its discretion and erroneously admitted the testimony, the error did not result in prejudice. It is not reasonably probable that the jury would have acquitted Schwartz had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 837.) Although Uribe testified at trial that Schwartz accidentally fell into her causing her injuries, four other people, including Deputy Sheriff Marler, Detective Bavencoff, Larry Green, and JoAnn Pratt-Grey, testified that Schwartz had intentionally caused her injuries. Schwartz contends that the evidence of his guilt was not overwhelming because Uribe's injuries were "insignificant." This argument is unpersuasive. Schwartz pushed Uribe causing her to fall and injure her left elbow and the ring finger on her right hand; Uribe's right arm was swollen and bruised. That a victim's injuries do not include broken bones does not mean the injuries are insignificant. Therefore, even without the admitted evidence, it is reasonably probable that the jury would have convicted Schwartz.
II. IMPOSITION OF UPPER TERM SENTENCE
The trial court sentenced Schwartz to nine years: the upper term of four years, doubled to eight years for his strike prior conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), plus one year for his prior prison term. (§ 667.5, subd. (b).)
Schwartz asserts that the court erred in imposing the upper term on conviction because under Cunningham, supra, 127 S.Ct. 856,he was entitled to a jury trial on the factors used by the court to impose the upper term. Based upon the California Supreme Court's holding in Black II, supra,41 Cal.4th 799, we conclude that the court did not err in imposing an upper term sentence based upon aggravating factors not found by a jury.
A. Background
When imposing the upper term, the trial court found that the "aggravants outweigh[ed] the mitigants." It considered Schwartz's "past record [and] prior convictions," and that it had struck a strike, as well as other factors, including Schwartz's "denial that he has an alcohol problem," and that Schwartz has "had opportunities to help himself . . . to no avail." The court also found the only mitigating factors were the victim's desire to show mercy on Schwartz, the fact that Schwartz has friends, and that his charged offense behavior was not as serious as his prior behavior.
The trial court exercised its discretion under section 1385 and struck one of Schwatz's two prior strike convictions because "the injury in this case was a minor injury."
B. Analysis
A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000)530 U.S. 466, 490; Blakely v. Washington (2004) 542 U.S. 296, 301; Cunningham, supra, 127 S.Ct. at p. 860.) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Based on the high court's definition of "statutory maximum," if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Cunningham, supra, 127 S.Ct.at pp. 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on "the fact of a prior conviction." (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.)
Prior to a recent amendment of section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) However, the California Supreme Court recently determined that even under the former version of the statute, the upper term is converted to the statutory maximum if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 812.) In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the sentence above a certain term without judicial findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not forbidden from imposing the upper term, the defendant is not legally entitled to the middle term, and thus it follows that the upper term is the statutory maximum. (Ibid.)
The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.)
Here, the factors used by the trial court to select the upper term included Schwartz's prior domestic abuse convictions. In Black II, the California Supreme Court held that the factors of numerous or increasingly serious prior convictions were within the prior conviction exception to the Apprendi rule. (Black II, supra, 41 Cal.4th at p. 819.) Rejecting the defendant's argument that a jury was required to determine whether his prior convictions were numerous or increasingly serious, the Black II court stated that the prior conviction exception "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Ibid.) The Black II court noted that the determinations of whether the convictions are numerous or of increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged," the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense," and these types of determinations are "'quite different from the resolution of issues submitted to a jury'" and more appropriate for a court. (Id. at pp. 819-820.)
Schwartz has been convicted of three prior domestic abuse offenses. Three prior convictions are sufficient to show numerousness. (Black II, supra, 41 Cal.4th at p. 818.) Because the sentencing record shows that the court relied on at least one constitutionally permissible aggravating factor, Schwartz's prior convictions, Schwartz is eligible for imposition of the upper term.
Although he concedes that the fact of his numerous prior convictions need not be found by a jury, Schwartz argues that this factor cannot suffice to make him eligible for the upper term because selection of the upper term also requires a finding that aggravating factors outweighed mitigating factors. This argument was expressly rejected in Black II. (Black II, supra, 41 Cal.4th atpp. 814-815.) The Black II court reasoned that for constitutional purposes the proper inquiry is whether the court's fact finding increased the sentence beyond what it was otherwise authorized to impose. (Id. at p. 815.) Once the upper term is authorized based on a single constitutionally permissible aggravating factor, no constitutional violation arises from a trial court's additional fact finding. (Id. at pp. 815-816.)
Because the record shows the establishment of a constitutionally permissible aggravating factor, Schwartz's jury trial rights were not violated by the trial court's selection of the upper term regardless of the nature of the other aggravating factors cited.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.