Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F05252
DUARTE, J.
A jury convicted defendant Jeffrey Boyd Wall of domestic violence, and he admitted a prior strike and service of three prior prison terms. (Pen. Code, §§ 273.5, subd. (a); 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) He was sentenced to state prison for 11 years and appeals. He contends the trial court should have excluded evidence of his prior domestic violence against the victim, and the trial court should have granted his motion for a mistrial after the victim mentioned his parole status several times while testifying.
Because the evidence of prior incidents of domestic violence was properly admitted, and there was no prejudice to defendant by the victim’s mention of his parole status, we shall affirm.
FACTS
Victim Terry Snider Lee continued to profess her love for defendant at trial, and her memory was evidently impaired by her long-standing alcoholism. As the trial court observed outside the presence of the jury, Lee was “a very poor historian.” Accordingly, the key to the prosecution’s case was the testimony of peace officers who recounted statements made by Lee concerning the charged offense as well as several prior incidents of domestic violence. In addition, three percipient witnesses testified about one of those prior incidents.
Lee is referred to at various times in the record as Terry Lee, and fairly consistently by the People as Terry Snider; however, as she identified herself in court as Terry Snider Lee, we shall refer to her by her claimed last name of “Lee.”
I
Charged Incident
Lee testified that during the summer of 2009, she called the police because “the guy next door went nuts” and broke some windows. She remembered speaking to a female officer, and identified photographs taken that day, which showed bruises on her face, chest, and arms, caused by defendant’s hitting her with his hand, though not that day. A couple of days before, she had fought with a woman named Margarite. When recalled by the defense, Lee testified the officer showed her some information about defendant before Lee told the officer what had happened, but the information she was shown did not cause her to lie.
Officer Colette Chiamparino testified that on July 12, 2009, she saw Lee “with a large bruise on her face.” When asked about the bruise, Lee claimed she had a blood disorder and then began to cry. Officer Chiamparino saw smaller bruises on Lee’s right arm, and after Lee refused medical treatment, asked her if she had a death wish, and if so, told her “I could probably find her a shovel somewhere; she could start digging a hole.” Shortly after Officer Chiamparino returned to her car, she was told Lee wanted to speak with her. Lee then said defendant “had punched and kicked her several times. Either that night or a couple of nights before.” She said the kick caused the facial bruise, but she was not sure exactly what caused the arm bruise, or a bruise by her left breast she showed Officer Chiamparino, but she said defendant had caused them. Lee seemed scared and was shaking after she looked toward where another officer was speaking with defendant. At some point Officer Chiamparino showed Lee information from a records check, pertaining to Lee and defendant.
Officer Marcus Frank testified that on July 12, 2009, a Sunday, Lee told him defendant had kicked her in the face “Thursday night” when she told defendant she planned to move to Oregon. Her chest bruise occurred during the same incident, but she was not sure whether it was from a punch or a kick. She told Officer Frank defendant had hit her several times before and had threatened to kill her.
II
Uncharged Incidents
The trial court allowed testimony regarding four separate uncharged incidents of domestic violence between defendant and Lee occurring in October 2008 and February, March, and April 2009.
A. Lee’s Testimony Regarding Uncharged Incidents
Lee testified she had been an alcoholic for many years. Her memory of dates and details was poor, but she remembered speaking to police officers about defendant assaulting her five times, and testified she had been honest when she made her reports to the police. She met defendant when he was taking care of her injured brother at the Marshall Hotel, and soon defendant moved into her room at the Jade Hotel. He was violent with her. At the Jade Hotel, he threw her across the kitchen floor, which injured her tailbone. On a later incident, he choked her. In one incident, he bruised her eye. He also subjected her to verbal abuse whenever he got mad, which happened about weekly. He would also throw her down the stairs, pull her hair and slap her across the face. She still loved him. She remembered one time when he was upset because she got $10 from someone, and he slapped her in the hotel hallway. When the police arrived, she told them it was a mistake. On an earlier occasion, defendant pulled the phone out of the wall when she was trying to call 911 because he was hurting her, and later she testified he had choked her. Regarding the March 2009 incident, she recognized a photograph of her bleeding head, and testified she was hurt when defendant threw her “downstairs[.]”
B. Corroboration of Uncharged Incidents
1. October 2008
Officer August Johnson testified Lee and defendant were in a relationship and lived on his patrol beat. On October 26, 2008, he was sent to their room and saw it “was in shambles.” He found Lee next door, at the Marshall Hotel, where the dispatch call had been placed. She was crying and upset, her face was red, and her voice was scratchy, “like it was cracking.” She also had a bruise on her arm, and reported pain on the side of her face and at her throat. She told Officer Johnson defendant had slapped her that day, and had also assaulted her two days earlier, and twice the prior week. During the assault two days before, he had squeezed her throat so hard she almost passed out, and when he released her she vomited. As for the incidents from the prior week, once he threw her to the floor, causing her to feel her tailbone had broken, and in the other incident, she tried to leave and he grabbed her and caused the bruise on her arm.
2. February 2009
Officer Geoffrey Alder testified he spoke with Lee at the Marshall Hotel on February 27, 2009. Her eye was bruised, and she reported defendant had assaulted her the day before. He had slapped her five or six times, “pulled her hair and pushed her around, as well.”
3. March 2009
Dawn Snider, Lee’s niece, testified about a March 2009 uncharged incident. Snider saw defendant put Lee in a chokehold for several minutes, “And [Lee] started crying and coughing and he said, you act like I really hurt you.” Snider, her mother Rebecca Grantham, and her friend Roxanne Gonzalez intervened. Defendant said Lee was “nothing but a piece of shit and--and you’re nothing but a whore. You cheated on me while I was in jail.” At some point defendant hit Lee with an open hand. When Lee ran out, defendant followed her. Soon after, Snider went out and saw Lee on the bottom of the stairs, bleeding from the back of her head. When someone said they were calling the police, defendant “grabbed a jacket and took off.”
Grantham testified that after defendant choked Lee, Lee said she was going to call the police and ran outside. Defendant called her a “bitch.” Grantham went downstairs, heard defendant say he was sorry, then saw him throw Lee against a wall. Lee’s head was bleeding. Grantham testified a police report stating she said she saw defendant push Lee down the stairs was not accurate.
Gonzalez testified she saw defendant slapping Lee, but did not remember him choking Lee, and later she saw defendant at the bottom of the stairs, throwing Lee against the wall several times.
Officer Gary McLaughlin testified he spoke with Lee on March 20, 2009, in response to a 911 call. Lee was “very hoarse” and having trouble breathing, her neck was “extremely red” and she was bleeding from the back of her head. She was reluctant to talk about what happened and her voice was dry and raspy.
4. April 2009
Officer Jacob Casella testified that on April 1, 2009, he spoke with Lee, who seemed upset and agitated. She told him defendant choked her to the point of unconsciousness, and slapped her in the face. She had bruises on her left bicep, which she said were caused when defendant grabbed her earlier in the week, and her eyes were swollen and puffy.
III
Defense Case
Defendant testified he did not strike Lee with his fist, hand or feet on July 9, 2009. He agreed the testimony about the unchargedincidents “was pretty accurate” and testified he had a mutually violent relationship with Lee. He had pleaded guilty to charges arising from the April 1, 2009 incident. He testified Lee fought Margarite on July 7, 2009, a date he remembered because it was his daughter’s birthday.
The trial court took judicial notice of defendant’s prior felony convictions for impeachment purposes, specifically, a sex offender registration violation conviction, a lewd and lascivious conduct conviction, and a second degree burglary conviction.
DISCUSSION
I
Uncharged Act Evidence
Defendant contends the trial court should have excluded the uncharged act evidence under Evidence Code sections 1109 and 352 and also because introduction of the evidence violated federal due process. We disagree.
A. Applicable Evidence Code Provisions
The uncharged act evidence was admitted pursuant to Evidence Code section 1109, which allows the introduction of prior domestic violence to show a person has the propensity to engage in such conduct. Defendant also contends the evidence was “unduly prejudicial and inflammatory” and should have been excluded pursuant to Evidence Code section 352.
Defendant does not challenge the general validity of Evidence Code section 1109. (See People v. Johnson (2000) 77 Cal.App.4th 410, 419-420.) We note that without regard to Evidence Code section 1109, evidence of prior abuse against the same victim is often admissible. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1026.)
The People moved in limine to introduce defendant’s history of domestic violence. The motion described four prior instances in which defendant committed violence against Lee, between October 2008 and April 2009. One prior incident resulted in a misdemeanor conviction. The instant case alleged an act of domestic violence against Lee committed on or about July 9, 2009.
The trial court granted the motion, stating in part: “I don’t think it’s unduly cumulative simply because it involves the same person and I believe that that evidence does have probative value and that the probative value outweighs the prejudicial effect of the cumulative nature of it.” Defendant correctly points out that the bulk of the evidence of assaultive conduct presented at trial pertained to the uncharged acts.
B. Limiting Instruction and Argument
The trial court instructed the jury on the limited use of the uncharged act evidence, stating it was relevant to show defendant’s disposition to commit domestic violence, but was only one factor for the jury to consider and was not sufficient to prove guilt. Defendant does not challenge the wording of this instruction as such, though in a later portion of his brief, he contends it was not adequate to dispel the prejudicial effect of “highly inflammatory” evidence.
The parties adhered to the limiting instruction during their arguments to the jury. The prosecutor argued defendant’s propensity to commit domestic violence is “only one factor for you to consider. I still have to prove to you that the events of July 9th occurred the way Lee said they occurred.” Later, the prosecutor argued the prior incidents showed “Mr. Wall is the kind of guy who abuses women, specifically in this case his girlfriend[.]” The defense argued in part the People were asking the jury to convict defendant based on “who he is” rather than the evidence of the charged offense, and it was “the strength of the other incidents that makes it clear that you don’t have [proof beyond a] reasonable doubt in this case.” The defense also pointed out defendant admitted guilt in one of the prior incidents and argued, “When he was wrong and arrested, he admitted to it. Well, he’s not admitting to this because he did not do it.” In rebuttal, the prosecutor in part mentioned defendant’s felony convictions, and argued his testimony was not credible.
C. Analysis
Defendant contends the uncharged act evidence was inflammatory and prejudicial. He relies in part on Evidence Code section 352, which 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, of confusing the issues, or of misleading the jury.”
However, the “prejudice” referred to by Evidence Code section 352 does not refer to damage “‘that naturally flows from relevant, highly probative evidence[, ]’” (People v. Zapien (1993) 4 Cal.4th 929, 958) but instead “to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome.” (People v. Booker (2011) 51 Cal.4th 141, 188.) Evidence Code section 352 gives the trial court discretion to weigh possible prejudice against the probative value of evidence. “The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
Defendant correctly lists four factors for consideration when performing the balancing of possible prejudice against probative value: “Relevant factors in determining prejudice 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, 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 (Rucker).) We agree that these are relevant factors, but we do not agree that the outcome of their application to this case is the conclusion that the trial court abused its discretion. Primarily, defendant insists the uncharged act evidence was inflammatory. Defendant contends “[s]everal” of the prior acts “were more inflammatory than the charged offense[.]” However, he discusses only one incident, from March 20, 2009. He emphasizes the evidence showed Lee was bleeding from the head, and also contends the evidence of verbal abuse on that date was inflammatory.
While we agree defendant’s words were highly offensive, such verbal abuse was not inflammatory in comparison with the evidence of physical violence defendant concurrently inflicted on Lee, namely, choking her, pushing her down stairs and throwing her against wall. Nor were the words inflammatory in comparison to the evidence of physical violence committed during the charged offense. Although there was no evidence Lee was bleeding from the charged offense, there was evidence Lee had “a large bruise on her face” and smaller bruises on her arm and chest. Lee testified defendant had punched and kicked her several times, and had kicked her in the face. The uncharged violence was not significantly greater than the charged violence, and therefore it was not comparatively inflammatory.
Although defendant argues the evidence was confusing, he acknowledges that the confusion was due to Lee’s inability to remember or report with accuracy. In contrast, the evidence from other witnesses was clear. After hearing the evidence, defendant testified the uncharged acts evidence was “pretty accurate” and he “agreed with most of it.” There was no significant risk of confusion.
As for the third Rucker factor, there was evidence defendant was convicted of a crime arising out of the April 2009 incident. Although defendant correctly contends this conviction did not encompass all other uncharged abuse, it lessened the possibility the jury would convict defendant of the charged offense to punish him for uncharged acts, instead of based on the evidence of the charged offenses. (See People v. Kelley (1997) 52 Cal.App.4th 568, 579 [“prejudice was minimized by proof of the conviction. It validated the evidence and minimized the chance a jury would punish him for the prior offense, for which he had already been punished”].)
As for the last Rucker factor, defendant does not argue the uncharged acts were remote, and rightly not. They were recent.
Viewing all of the Rucker factors, we cannot say the trial court abused its broad discretion in admitting this evidence.
D. Federal Due Process
Contrary to defendant’s view, admission of the uncharged act evidence did not violate his federal due process rights. To the extent his argument assumes the evidence was improperly admitted under state law, we disagree as explained above. Further, “‘We need not decide to what extent, if any, evidence solely going to character might violate due process [citation], for, as explained, here the evidence’ of defendant’s prior misconduct was highly probative on several issues at trial.” (People v. Kelly (2007) 42 Cal.4th 763, 787 (Kelly.)
“Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see Kelly, supra, 42 Cal.4th at p. 787; People v. Steele (2002) 27 Cal.4th 1230, 1246; cf. People v. Partida (2005) 37 Cal.4th 428, 439 [even if evidence should be excluded under state law, its admission “results in a due process violation only if it makes the trial fundamentally unfair”].)
In this case, because the evidence had a permissible purpose, and the jury was instructed on the limited purpose, its admission did not violate federal due process standards. We reject defendant’s contention the jury instruction would not insure the jury used the evidence for its proper purpose. “The California Supreme Court has consistently stated that on appeal, ‘[w]e must, of course, presume that the jury followed [the trial court’s] instructions....’ [Citations.] There is no evidence that the jury ignored the court’s instructions and committed misconduct by using limited evidence for an improper purpose. ‘In the absence of evidence to the contrary, the presumption [that the jury adhered to the limiting instructions] will control.’ [Citation.]” (People v. Zack (1986) 184 Cal.App.3d 409, 416; see People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions”].)
Because the evidence was admitted for a permissible purpose and the jury was properly instructed on how to consider the evidence, we reject defendant’s due process contention.
II
Denial of Mistrial Motion
Beyond her inability to remember pertinent facts when testifying, Lee was also unable to avoid reference to defendant’s parole status. Defendant contends the trial court should have granted a mistrial for that reason. We disagree.
A. Lee’s References to Parole and Other Criminality
After Lee had described some of the abuse inflicted by defendant, the following exchange took place: “Q. So you just allowed the relationship to exist like that? [¶] A. Well, I tried to stop it. I called his parole officer and stuff, but. [¶] [Defense counsel]: Objection. [¶] THE WITNESS: I didn’t want to get him in trouble.”
At that point the parties held an unreported sidebar conference.
After Lee described additional abuse, the prosecutor asked if she continued to let defendant live with her, and she answered, “No. I threw him out. I had his parole officer come and get him, throw him out. Changed the locks. He climbed in through my bathroom window.” Shortly after, the prosecutor began to ask another question: “Q. Now, after you would throw him out and you would have him come back-- [¶] A. I would have his parole officer or police come get his stuff so he would be removed.” After Lee testified she still loved defendant, the prosecutor asked if she thought he would change, and she answered: “Well, he did at times, which [sic] he was on parole. He had to.” A defense objection was sustained and the jury was excused.
The trial court then admonished Lee in part as follows: “Now, [Ms. Lee], I know this is difficult for you to talk about, but you’ve been previously instructed not to mention [defendant’s] record on parole, his relations with his parole officer. You’ve mentioned that about four or five times[.]” The trial court instructed Lee to answer questions without mentioning parole and she said she would comply. After she left the courtroom, the defense stated its intention to move for a mistrial after doing some research, stating it was not possible “to cure that ringing of the bell.” The defense noted there would be some testimony about defendant’s misdemeanor conviction and jail time, but there was not supposed to be any reference to felonies, or prison.
The next day, the defense formally moved for a mistrial. The trial court denied the motion without prejudice, because there had not yet been any testimony about the charged offense, so it was not possible to assess the prejudice from Lee’s statements about parole. When Lee returned to court, the trial court ordered her “not to make any reference whatsoever to [defendant’s] criminal history, the fact that he’s been in prison, the fact that he’s had a parole officer, that he’s been on parole. You’re not to mention that at all.” The trial court instructed Lee to listen to questions carefully because if she violated the order, she would be sent to jail.
After Lee testified about the charged offense, the following exchange took place: “Q. Were you--safe to say you didn’t initially want to tell the officers what happened that caused the bruising; that safe to say? [¶] A. Yeah. They figured it out, though. But he had a warrant so they took him anyhow.” Defense counsel’s prompt objection was sustained and the answer was stricken.
Later, after Lee was excused, the trial court instructed the jury to disregard all of Lee’s references to defendant’s criminal record or parole officer. After the jury was excused, defense counsel renewed his motion for a mistrial. In part counsel argued Lee’s testimony was so vague “it’s like I’m fighting a ghost[, ]” there had been more evidence about uncharged offenses than charged offenses, and the references to defendant’s parole and criminal conviction were too prejudicial in such circumstances. The prosecutor stated he had not “anticipated [Lee] being this bad with dates[, ]” but argued the references to parole were not prejudicial. The trial court deferred making a ruling, in part stating, “I want to see to what extent other evidence has been developed that would be consistent with her testimony, and so I’m not going to grant your motion at this time.”
After the People rested, the trial court denied the mistrial motion, finding that, given the evidence and the admonitions, “the injection of the references to the parole officer have not denied [defendant] a fair trial.”
B. Law and Analysis
The applicable standard of review is deferential: “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555; see People v. Hines (1997) 15 Cal.4th 997, 1038 [“‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion’”].)
Here, the trial court instructed the jury to disregard Lee’s references to defendant’s parole and criminal record. That instruction was sufficient to avoid any prejudice from Lee’s repeated references to parole.
“Absent any evidence to the contrary, we assume the jury was able to follow the trial court’s admonition and disregard the statement. Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.” (People v. Martin (1983) 150 Cal.App.3d 148, 163; see People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404 [prosecutor’s questions about arrests cured by trial court’s admonition to the jury].)
Defendant cites various cases holding references to a defendant’s past were not cured by admonitions, but none are on point. In People v. Allen (1978) 77 Cal.App.3d 924, Allen was linked to a robbery by a juvenile coperpetrator and jailhouse informants. (People v. Allen, supra, 77 Cal.App.3d at pp. 928-929.) The juvenile’s mother testified Allen’s sister told her she would lie on the stand, and after the sister denied this statement, the juvenile’s mother was asked in rebuttal what Allen’s sister had said. In response, the juvenile’s mother testified, “‘Well, she stated that Michael was on parole and he couldn’t stand another beef.’” (People v. Allen, supra, at pp. 929, 934.) The Allen court concluded that although the trial court had stricken the testimony and admonished the jury not to consider it, the revelation Allen had a felony and the fact it was “an extremely close case” made it an “exceptional” case where the court would not deem the admonition sufficient to cure the error. (Id. at pp. 934-935.) Defendant also cites two cases cited by Allen, both of which involved intentional efforts to prejudice the jury. (People v. Ozuna (1963) 213 Cal.App.2d 338, 341-342 [“calculated” effort to get information before jury; “‘Ex-convict’ is a hateful word and the jurors would have read it in defendant’s features as he sat before them as clearly as if it had been written there. The human mind is not so constructed as to permit a registered fact to be unregistered at will”]; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506 [officer’s “references in his testimony to defendant having been in San Quentin were unnecessary and were calculated to disclose that defendant was an ex-convict”].)
In this case, no wrongful intent is evidenced by the People’s conduct. Even the trial court could not effectively control Lee’s lapses. And Lee clearly could not control herself.
Further distinguishing this case is the fact that here the jury knew defendant had three felony convictions, because defendant chose to testify knowing that he would be impeached with his convictions. Given the knowledge that defendant had felony convictions, which leads to the natural conclusion that at some point he probably was in prison, hearing he had been on parole would not be prejudicial. Finally, despite defendant’s assertion to the contrary, this was not a particularly close case. Lee’s identification of defendant as the person who caused her recent bruises was amply corroborated, including in part by defendant’s own testimony that he had abused her in the past.
Accordingly, the trial court did not abuse its broad discretion by denying defendant’s motion for a mistrial.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., BLEASE, J.