Opinion
C081172
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JERRELL TAYLOR, JR., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
Defendant and Appellant Anthony Jerrell Taylor, Jr. has filed a petition for rehearing with this court. It is ordered that the unpublished opinion filed herein on February 27, 2018, be modified as follows:
1. At page 7 of the slip opinion, add the following three paragraphs after the first partial paragraph ending with "we infer the court balanced the prejudicial impact against probative value. (People v. Villatoro, supra, at. p. 1168.)":
Defendant argues, in the alternative, that if the trial court performed a section 352 analysis it abused its discretion in doing so. We disagree.
We review a section 352 analysis for abuse of discretion. (People v. Moore (2016) 6 Cal.App.5th 73, 91.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Thomas (2011) 52 Cal.4th 336, 354-355.)
Here, the August 2013 incident was an unambiguous act of domestic violence against the same victim and occurred 19 months before the charged offense. Under the circumstances, a conclusion that probative value was not substantially outweighed by a danger of undue prejudice was within the bounds of reason. (See People v. Doolin (2009) 45 Cal.4th 390, 439 [section 352 "prejudice" refers to evidence that uniquely tends to evoke emotional bias against defendant and has very little effect on the issues].)
There is no change in the judgment. Appellant's petition for rehearing is denied. BY THE COURT:
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MAURO, Acting P. J.
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MURRAY, J.
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RENNER, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF151724)
Defendant Anthony Jerrell Taylor, Jr., appeals from a conviction for first degree burglary, misdemeanor battery, and false imprisonment. At an Evidence Code section 402 hearing, held midtrial, the victim's mother revealed she had previously witnessed defendant punching the victim. Over defense counsel's objection, the trial court permitted the victim's mother to testify to that incident under section 1109.
Undesignated statutory references are to the Evidence Code.
On appeal, defendant contends the trial court erred in failing to perform a section 352 analysis before admitting that evidence of domestic violence. He also contends admitting that evidence violated his right to due process. He finally contends the abstract of judgment must be corrected to strike an irrelevant sheet that was attached. We agree with the third contention. We will order a corrected abstract of judgment and otherwise affirm.
I. BACKGROUND
A. The Charged Incident
Defendant and the victim had an "off and on relationship" for approximately seven years. In March 2015, defendant and the victim broke up and defendant ostensibly said his last goodbye as he left for work on the morning of March 20. The victim told him she would no longer answer his calls. That day, however, defendant called and texted her roughly 20 times.
Later that evening, at around 12:30 or 1:00 a.m., the victim heard defendant walking up to her house. She was in bed and her son was asleep. She was "pretty much devastated . . . that this was going on once again." The victim heard defendant banging on the door and yelling for her to answer the door: "Bitch, come to the door. I know your little hoe ass is there, open up the fucking door." "I know you got a nigga in the house, fucking hoe, open up the fucking door." This continued for 15 to 20 minutes.
The victim was scared. As the punching on the door grew louder and louder, she considered opening the door, not wanting to get in trouble with her neighbors and landlord.
As she unlocked the bottom lock, defendant pushed the door open. The door hit her, pushing her back into the house. Defendant walked in, still yelling about "how [she's] a hoe, he knows somebody [was] in the house, [and she] ain't shit." The victim, crying, tried to calm him down.
Defendant then pushed the victim. She braced herself against the wall. As she did, her long false nail broke, tearing off the real nail underneath, an injury that bled for a couple of days.
The victim ran upstairs for her phone. She was scared not knowing what his "next step would be." Upstairs, she called her mother. Crying, she told her mother: "Mom, he's here, help me." She said defendant had pushed her. The phone was on speaker as the victim repeatedly said she wanted the defendant to leave. While she was on the phone, defendant stood in the bedroom doorway, blocking the victim's path. She did not want to go around him and make "the fight even more physical."
When defendant saw she was on the phone, he changed his tune, saying, "I'm not doing anything." The victim then heard her mother say, "I'm calling the police" before the mother hung up. She told defendant, once again, to leave, and this time he turned around—still calling her names—and left. She then went downstairs, locked the door, and waited for the police.
About 10 minutes later, the police arrived. The officer described the victim as very shaken up, crying hysterically, hands shaking, and unable to control herself. The victim was still feeling emotional, "[b]ecause this was typical [defendant] coming, being irrational, being upset, yelling, crying, making me feel like I'm nothing, making me feel worthless." She told the police, she did not want defendant to get in trouble or go to jail, she just wanted him to go. They offered her an emergency protective order and she accepted.
The first day defendant was in jail, he called the victim five to seven times. He continued to call for a couple of days after. Her brass metal door still has dents from being pounded on.
The responding officer testified at trial that the victim told him that before she went upstairs for her phone, defendant twice grabbed her and shoved her against the wall. The second time he grabbed her, he held her there against her will. At trial, however, the victim denied defendant had held her against the wall. B. Evidence of Prior Domestic Violence
Before trial, the prosecution moved, under section 1109, to introduce evidence of four prior acts of domestic violence against a different victim. The court admitted evidence of three of the acts but excluded one for not falling within the definition of domestic violence. Ultimately, the witness did not testify: The prosecution could not secure her presence.
The court also granted defense counsel's request for a limited section 402 hearing to determine the nature of other instances where the victim had called her mother for counseling or intervention during incidents with defendant. C. Section 402 Hearing
The court held the section 402 hearing for the victim's mother midtrial. The mother mentioned an August 2013 incident, in which she and her husband saw defendant "beating on" the victim, and her husband had to physically remove defendant.
The mother had not specifically mentioned this incident when the District Attorney's office contacted her several months before trial to ask about incidents between defendant and the victim. The mother had only said there were numerous instances of fighting.
Defense counsel objected to permitting evidence of the August 2013 incident. He argued he had not received discovery as to that incident and would have wanted to get the husband's statement. He also argued, "in addition[] to being unfair, prejudicial, given the timing of the discovery, it is also cumulative;" referring to the court's admission of the three prior acts against the other victim, who at that point was still expected to testify.
The court allowed testimony of the August 2013 incident under section 1109, concluding neither side knew of the incident before the section 402 hearing, both sides could have interviewed the witnesses, and either side could use the fact that it was not disclosed to impeach. Defense counsel noted for the record that his office had attempted to contact the mother, but she did not respond to their investigator. D. The Mother's Testimony
The mother then testified to the August 2013 incident. She and her husband came to the victim's home after learning their daughter needed help. When they let themselves in, she heard screaming from the victim and defendant. She and her husband ran upstairs, opened the bedroom door, and saw defendant "over" the victim, hitting her with his fist. The mother's husband pulled defendant off of the victim and told him to leave. The victim was screaming, hollering, and crying. Afterwards, the victim's face was swollen, but police were not called.
After the mother's testimony, defense counsel asked the court to reconsider its ruling. Declining to do so, the court noted the testimony was admissible under section 1109, and it still believed it met section 1109's requirements. E. Jury Verdict and Sentencing
The jury convicted defendant of first degree burglary (Pen. Code, § 459) and false imprisonment with force and violence (Pen. Code, §§ 236, 237, subd. (a)). The jury acquitted defendant of corporal injury but convicted him of the lesser-included offense of battery. (Pen. Code, § 243, subd. (e).) The jury deadlocked on vandalism. (Pen. Code, § 594, subds. (a), (b)(2)(a).) The trial court found defendant had burglarized an inhabited dwelling. (Pen. Code, § 667.5, subd. (c)(21).)
The trial court imposed a four-year aggregate term: the middle term of four years for burglary; 180 days for battery, to run concurrently; and the middle term of two years for false imprisonment, to run concurrently.
II. DISCUSSION
A. The Trial Court Implicitly Performed a Section 352 Analysis
On appeal, defendant first contends the trial court breached its sua sponte duty to perform a section 352 analysis before admitting evidence of the August 2013 incident. He argues had it done so, it would have excluded the evidence for low probative value and a substantial danger of undue prejudice. We disagree.
Defendant suggests an argument that the lack of notice resulted in surprise and unfairness. The trial court rejected that argument, noting neither side knew of the incident before the section 402 hearing, and either side could have discovered it through due diligence. Despite defense counsel's assertion that the mother did not respond to their investigator, we do not find the trial court's ruling arbitrary or capricious. We note the mother had told investigators there were numerous instances of fighting. --------
Section 1109, subdivision (a)(1) permits evidence of other domestic violence acts to show propensity for domestic violence, so long as the evidence is not made inadmissible by section 352. Section 352 renders such evidence inadmissible when the prejudicial impact substantially outweighs probative value. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.)
A trial court need not expressly perform a section 352 analysis; an "implicit weighing" may be inferred from, for example, the trial court's statements to the parties or its express reliance on a key case. (People v. Villatoro (2012) 54 Cal.4th 1152, 1168-1169; People v. Padilla (1995) 11 Cal.4th 891, 924 [an implicit weighing may be inferred based on "record indications well short of an express statement"], overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823 fn. 1.) On the record in this case, we have little trouble inferring that the trial court completed the required analysis under section 352. Defense counsel objected to the admission of the August 2013 incident and specifically argued admission would be prejudicial and cumulative. The trial court responded that it would permit the victim's mother "to testify under [section] 1109 as to the physical violence she witnessed in August[] 2013." When defense counsel sought reconsideration of the ruling, the trial court reiterated that it "still believe[d] that it me[t] the requirements of [section] 1109 to be admitted." On this record, it is plain that the trial court evaluated the testimony about an incident in August 2013 under section 1109. And given that admissibility under section 352 is expressly required by section 1109, we infer the court balanced the prejudicial impact against probative value. (People v. Villatoro, supra, at. p. 1168.) B. Fourteenth Amendment Due Process Rights
Defendant next contends that admitting the evidence of the August 2013 incident violated his Fourteenth Amendment right to due process. He argues admitting the evidence without first subjecting it to a section 352 analysis so infused the trial with unfairness as to deny him due process of law.
Having concluded the evidence was properly admitted, we reject this contention as well. (See People v. Falsetta (1999) 21 Cal.4th 903, 917 ["the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge"].) C. Abstract of Judgment
Finally, defendant contends the trial court erred in attaching to the abstract of judgment a page consisting of 11 irrelevant penalty assessments and their statutory bases. We agree and will order the attachment stricken and a corrected abstract prepared.
This court has directed the trial courts to identify, in the abstract of judgment, the statutory basis for each fee imposed. (See People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Here, attached to the abstract of judgment is a list of fees that were never imposed. Preceding the list is the language, "the following apply."
Because none of the fees were imposed on defendant, attaching the sheet creates confusion and runs the risk the fees will be erroneously applied to defendant. We will therefore order the attachment stricken and a corrected abstract prepared.
III. DISPOSITION
The abstract of judgment's attached sheet, consisting of 11 penalty assessments, is stricken. The trial court is directed to prepare a corrected abstract of judgment, omitting the stricken sheet. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
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RENNER, J.
We concur:
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MAURO, Acting P. J.
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MURRAY, J.