P. v. Webber

P. v. Webber

Filed 6/30/08 P. v. Webber CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. HOWARD LAWRENCE WEBBER, JR., Defendant and Appellant.

A116500 (Marin County Super. Ct. Nos. SC146902A & SC146119A)

Appellant Howard Lawrence Webber, Jr., was prosecuted for two instances of making criminal threats. The two incidents occurred just over six months apart, and had different victims. The second incident, but not the first one, also involved domestic violence. The two cases were consolidated and tried together, and appellant was convicted in both.

On appeal, appellant argues that the trial court erred, and violated his due process rights, by consolidating the two cases, because this allowed the jury to hear prejudicial evidence of domestic violence that would not otherwise have been admissible in the prosecution arising out of the earlier incident. He also argues that the admission of evidence regarding his past acts of domestic violence against another partner, to show propensity, violated due process.

We find no abuse of discretion in the consolidation of the two sets of charges, and reject appellants due process arguments. We therefore affirm the judgment.

Facts and Procedural Background

In April 2005, during a period when appellant was working with Matthew Dwyer on a real estate venture, Dwyer lent appellant a truck that Dwyer owned, but his ex-wife was using. On April 4, 2005, the two men had an argument about their real estate venture, during which appellant physically assaulted Dwyer.[1] After the assault, Dwyer called the police, and later called appellant and asked him to return the truck. Appellant refused, and threatened to abandon the truck or drive it over a cliff.

Dwyers ex-wife then intervened at Dwyers request, and persuaded appellant to buy the truck on a monthly payment schedule. Several months later, however, she told Dwyer that appellant had not made the payments. Dwyer called appellant, but he again refused to return the truck.

Dwyer then accepted an offer from Peter McKenzie, a friend of his who did not know appellant, to help resolve the situation regarding the truck. McKenzie offered to help Dwyer because he had considerable experience in negotiating in difficult situations; in addition, McKenzie was a large, strong individual, whereas Dwyer was physically disabled.

On July 28, 2005, McKenzie went to appellants house to discuss the matter with him, but appellant was not home. McKenzie left his telephone numbers, including that of his cell phone, with the woman who answered the door, Carol Kimball. McKenzie testified that he only told Kimball he had personal business to discuss with appellant, but Kimball testified that McKenzie told her that he was there to retrieve Dwyers truck.

Later that evening, while McKenzie was at a restaurant with a friend, he received a call from appellant on his cell phone. Appellant loudly told McKenzie that  Im going to fucking kill you. . . . I know where you live. I know where your kids are. Im going to kill your family. Im going to follow you.  At first, McKenzie did not take appellants threats seriously. He asked appellant where he was, and offered to come to him, but appellant refused to divulge his location. McKenzie also explained to appellant that all he wanted was to retrieve the truck for Dwyer.

Appellant then told McKenzie,  I talked to your daughter. I know where you live. Im coming to your house.  At that point, McKenzie became afraid for his 14-year-old daughter, who was in the house with some other girls, but no adult present. He hung up on appellant, called the police, and immediately set off for home. On the way there, he called his daughter, who confirmed that someone had called and asked for directions to the house.[2] McKenzies daughter did not give the caller the address or directions, but she did give him her fathers cell phone number.

A Tiburon police officer, Shane Ford, responded to McKenzies call and interviewed him and his daughter at their home. Ford then called appellant, who admitted calling McKenzie and his daughter, but explained that he had wanted to antagonize McKenzie into making incriminating statements, because he believed McKenzie had been threatening toward Kimball when McKenzie visited appellants house earlier in the day. Appellant told Ford that he had tape recorded his conversation with McKenzie, but declined to give Ford the tape. The next day, appellant called McKenzie to apologize, but he still did not return Dwyers truck.

On September 16, 2005, an information was filed against appellant in Marin County Superior Court case No. SC142902A (the McKenzie case). Appellant was charged with making criminal threats (Pen. Code,  422)[3] and making annoying telephone calls ( 653m, subd. (a)).

On October 21, 2005, while the McKenzie case was pending, appellants roommate, Kimball, overheard appellant and his girlfriend, Jessica Zeidler, having a loud argument, followed by the sound of three slaps.[4] Kimball was concerned that the situation might escalate, and took Zeidler for a drive to calm things down.

Zeidler also testified about an argument she had with appellant that occurred sometime prior to November 21, 2005, while the couple was in a car driving home from Oakland. At trial, Zeidler could not remember whether or not appellant slapped her during this argument. She admitted, however, that she had previously stated that he did so.

In November 2005, Zeidler sought a domestic violence restraining order against appellant, based in part on the events of October 21, 2005, and on the incident during which appellant slapped Zeidler in the car. On December 15, 2005, the superior court issued the requested order in open court, with appellant present.

Despite the restraining order, Zeidler remained in contact with appellant after it was issued, and was not afraid that he would harm her physically. Zeidler testified at trial that she had sought the restraining order only because her father insisted that she do so as a condition of moving back into her parents home. Zeidlers father denied this.

On February 4, 2006, Zeidler went to see appellant because he said he wanted to work things out with her in person. Zeidler and appellant went to dinner and then spent the night together at appellants home. Early the following morning, Zeidler awoke, and observed that appellant was kind of freaking out. He was yelling about the fact that even though Zeidler was still seeing him, she had not made a decision about whether to have the restraining order set aside. Zeidler did not respond, but went to the living room and went back to sleep there.

Around 8:00 a.m., appellant awakened Zeidler again, renewing his agitated remarks about the restraining order. He yelled at her to leave his house, and she told him their relationship was over. When Zeidler started collecting her things in preparation for her departure, appellant grabbed her ponytail, pulled her head close to him, and used aggressive words to her. Upon leaving appellants house, Zeidler went to the police and reported appellants threats, in terms that she testified at trial had been exaggerated.

In a taped pretrial interview, portions of which were played to the jury at trial, Zeidler told the prosecutor that after grabbing her hair, appellant said,  I ought to bash your head into the wall. . . . I will do it, you know, watch me. I will justIll rip your hair right out of your head.  Zeidler also reported in the interview that appellant had threatened her father, and that she was afraid he would hurt her or her family. At trial, however, she testified that she had not been afraid, and did not believe appellant would carry out his threats, because she believed that he cared about her. At the time of trial, Zeidler was still dating appellant. She explained that in the fall of 2005 and early 2006, she had an alcohol abuse problem, but she was now in recovery.

After Zeidler disavowed some of her pretrial statements in her trial testimony, the prosecution introduced the testimony of a domestic violence expert. The expert opined that as time passes, domestic violence victims typically minimize or forget the abuse inflicted upon them, and may recant their earlier statements about it.

On September 7, 2006, a second, separate information was filed against appellant in Marin County Superior Court case No. SC146119A (the Zeidler case), arising out of his behavior toward Zeidler on February 5, 2006. Appellant was charged with making a criminal threat ( 422); battery ( 243, subd. (e)(1)); and disobeying a domestic relations court order ( 273.6, subd. (a)).

On October 17, 2006, the court granted the prosecutions motion to consolidate the McKenzie and Zeidler cases for trial. Prior to trial, the court also granted the prosecutions motion to introduce evidence of certain prior acts of domestic violence by appellant against Zeidler, and also against his former girlfriend, Mayra Parl. As permitted by this order, Parl testified that in 2000, appellant slapped her and spit on her while she was pregnant, and threatened to kill the baby, and that in 2004, he pulled her to the floor by her hair.

After a four-day jury trial and less than three hours of deliberation, appellant was convicted on all counts in both the McKenzie and Zeidler cases. In a separate bench trial, pursuant to appellants jury waiver, the trial court found true the allegations that appellant had three prior felony convictions, and that he committed the offenses of which he was convicted in the Zeidler case while on bail in the McKenzie case.

At sentencing, the trial court reduced the felony criminal threat count in the Zeidler case to a misdemeanor; imposed a five-year probation term in the McKenzie case and a three-year probation term in the Zeidler case; and sentenced appellant to separate six-month jail terms in each case. The judge found that all of the jail time ordered had already been served, due to appellants credits for his time in custody pending trial, and ordered appellant released from custody. This timely appeal ensued.

Discussion

Appellant urges two grounds for the reversal of his conviction: (1) the trial courts decision to consolidate the McKenzie case with the Zeidler case for trial, which he asserts was an abuse of discretion and resulted in a trial so unfair as to violate his right to due process; and (2) the admission of prior domestic violence evidence to prove propensity, which he acknowledges was permissible in principle under existing California law, but which he asserts violated Evidence Code section 352, under the particular circumstances of this case, and also resulted in the denial of his federal due process rights.

A. Consolidation

Under section 954, if two or more accusatory pleadings allege different offenses of the same class, the trial court may consolidate them for trial. As appellant acknowledges, a trial courts decision to consolidate separate counts may be reversed only if the trial court abused its discretion and there is a clear showing of prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1153-1154; People v. Price (1991) 1 Cal.4th 324, 388, surperseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.)

In determining whether an abuse of discretion has been shown, four factors are to be considered: (1) cross-admissibility, i.e., whether the evidence relevant to each count would have been admissible in a separate trial on the other counts; (2) whether some of the consolidated charges are more likely to inflame the jury against the defendant than the others; (3) whether the prosecutions case is weaker on some of the consolidated charges than on others, thus creating the possibility of a spillover effect from the stronger charges; and (4) whether joinder converts the matter into a capital case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120; People v. Ochoa (2001) 26 Cal.4th 398, 423, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

In the present case, appellant relies only on the first two of these factorslack of cross-admissibility, and the inflammatory nature of some of the chargesin arguing that the McKenzie case and the Zeidler case should have been tried separately. We agree with appellant that the evidence was not cross-admissible, and respondent does not argue that it was. However, as respondent points out, and appellant concedes, lack of cross-admissibility alone is not sufficient to bar consolidation. ( 954.1; People v. Bradford (1997) 15 Cal.4th 1229, 1316; People v. Mason (1991) 52 Cal.3d 909, 934.) As our Supreme Court has put it,  [c]ross-admissibility suffices to negate prejudice, but it is not essential for that purpose.  (People v. Carter, supra, 36 Cal.4th at p. 1154.)

With regard to the assertedly inflammatory nature of the domestic violence evidence introduced in the Zeidler case, the trial court found that neither case was more overwhelmingly emotional or negative to [appellant] than the other, or was likely . . . to inflame the jury [enough] to cause them to lose any part of their reasoning abilities. This finding is supported by substantial evidence. In the McKenzie case, there was evidence that appellant threatened and assaulted a disabled man (Dwyer), and that he frightened a 14-year-old girl and told her father that he would kill her. This evidence was not significantly more or less inflammatory than the domestic violence evidence introduced in this particular case. Accordingly, we cannot find that the trial court abused its discretion in consolidating the two cases.

In any event, even if the trial court had erred, in order to be entitled to a reversal of his convictions on this ground, appellant would have to show that it is reasonably probable that the result of separate trials would have been more favorable to him. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Pinholster (1992) 1 Cal.4th 865, 931-932.) In the present case, appellant offered essentially no defense to the charges, except for some witnesses who impeached the prosecutions witnesses with regard to credibility, recollection, and collateral issues. In contrast, the prosecutions evidence of the elements of the charged crimes was strong. It took the jury less than three hours to reach a verdict. Under the circumstances, the record does not provide us with any basis on which to find a reasonable likelihood that separate trials would have yielded a different result. By the same token, we are not persuaded that the consolidation resulted in a trial so unfair as to violate appellants right to due process.

B. Admission of Prior Domestic Violence Evidence

Evidence Code section 1109 provides that in a criminal trial on charges involving domestic violence, evidence of the defendants prior acts of domestic violence is admissible to show propensity unless the trial court determines, under Evidence Code section 352, that the probative value of the evidence is outweighed by its potentially prejudicial effect. As already noted, in the present case the trial court ruled that evidence of appellants past acts of domestic violence, both against Zeidler and against Parl, his former girlfriend, was admissible under Evidence Code section 1109.

At appellants request, we have reviewed this ruling for abuse of discretion. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) We find none. The evidence of appellants attacks on Parl was similar to that relating to his attacks on Zeidler, and no more inflammatory. The evidence regarding his attacks on Zeidler prior to the one for which he was charged in the Zeidler case was relevant to explain the background of their relationship, and the reasons that Zeidler sought and obtained the restraining order appellant was charged with violating. The jury was instructed only to consider this evidence when deliberating on the Zeidler case. Under the circumstances, we are not persuaded that the trial court erred in admitting this evidence under Evidence Code section 1109.

Appellant also argues that Evidence Code section 1109 is unconstitutional, but acknowledges that this argument has been consistently rejected by the California Courts of Appeal.[5] (See, e.g., People v. Cabrera (2007) 152 Cal.App.4th 695; People v. James (2000) 81 Cal.App.4th 1343; cf. People v. Falsetta (1999) 21 Cal.4th 903, 915-922 [use of propensity evidence in sex offense cases under Evid. Code,  1108 does not violate due process].) We agree with the reported cases that have decided this issue, and therefore decline to hold the statute unconstitutional. Similarly, under the authority of People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, we reject appellants argument that the trial judges use of CALCRIM No. 852 in instructing the jury violated his due process rights.

Finally, appellant argues that even if Evidence Code section 1109 is not facially unconstitutional, its application in this case violated Evidence Code section 352 and resulted in a trial so unfair as to violate due process. As already noted, the probative value of the evidence of appellants past domestic violence was considerable, and because the evidence was not significantly more inflammatory than the substantive evidence, its probative value was not outweighed by its prejudicial effect. Thus, its admission did not violate Evidence Code section 352. By the same token, we are not persuaded that it violated due process or resulted in a fundamentally unfair trial.

disposition

The judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Sepulveda, J.

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[1] Dwyer was not injured by the assault, and later decided not to pursue any criminal charges based on the incident.

[2] McKenzie testified that his daughter was frightened and crying when he spoke with her, but she testified that appellants call had not scared her or made her cry, and that she was calm when her father called.

[3] All further statutory references are to the Penal Code unless otherwise noted.

[4] Zeidler testified at trial that she was too drunk that night to remember what happened.

[5] Respondent argues that appellant waived this issue because he did not expressly raise it in the trial court. Appellant argues in the alternative that the failure to raise the issue constituted ineffective assistance of counsel. Because we reject the argument on its merits, we need not reach either of these questions.