P. v. Bennett
Filed 3/22/13 P. v. Bennett CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS KELLER BENNETT,
Defendant and Appellant.
C067362
(Super. Ct. No. 62097686)
After
officers responded to a 911 call from Denise N., they found both Denise and her
boyfriend, defendant Thomas Keller Bennett, sporting injuries and smelling
strongly of alcohol. An information
charged defendant with corporal injury on a cohabitant and assault by means of
force likely to produce great bodily
245, subd. (a)(1)—count two.)
name="_ftnref1" title="">[1] A jury found defendant guilty of both counts
and the court sentenced him to seven years in state prison. Defendant appeals, arguing the trial court
erred in admitting evidence of an uncharged domestic violence
FACTUAL AND PROCEDURAL BACKGROUND
Officers
responded to a 911 call from a female who stated her boyfriend had beaten
her. When they arrived, officers found
Denise N., who told them defendant had choked and pushed her, causing
injuries. An information charged
defendant with inflicting corporal injury on a cohabitant and assault by means
of force likely to produce great bodily injury.
As to the corporal injury count, the information alleged defendant had
suffered a 2004 conviction involving domestic
violence and, as to both counts, that defendant had served two prior prison
terms. (§§ 273.5, subd. (e), 667.5,
subd. (b).)
The
prosecutor filed an in limine motion seeking to admit evidence, pursuant to
Evidence Code sections 1109 and 1101, subdivision (b), that defendant had
committed several instances of prior domestic violence, including a 1994 sexual
battery on Jo Ann B. (Pen.
Code, § 243.4.) The court granted the
motion.
The jury
trial revealed the following facts.
The Incident
Late one evening in March 2010,
Deputy Joshua Barnhart was dispatched to investigate a 911 call from a female
who said “she’d been beat [sic] up by
her boyfriend and had fled her apartment and was at the neighbor’s house.†Deputy Haskell, Sergeant Clark, and Deputy
Ames arrived at the scene shortly afterward.
The
officers contacted Denise N., who stood in front of an apartment with her
neighbors waving the officers toward them.
A visibly shaken Denise was crying and upset. Her lips and nose were puffy and swollen, and
there was dried blood around her mouth and on her shirt. Denise had a black-and-blue mark on her right
eye and a mark on her neck. At trial,
Barnhart identified photos depicting Denise’s injuries that evening.
Officers
detected a strong odor of alcohol on Denise’s breath. Barnhart asked Denise what had happened. Denise appeared to understand Barnhart’s
words and responded coherently. Denise’s
speech was not slurred, and she did not need to hold on to anything to steady
herself.
Denise told
the officers that she and defendant had been drinking that night. The pair began to argue and defendant pushed
her to the floor, calling her names.
Defendant got on top of Denise and choked her with both hands, telling
her, “ ‘You’re gonna die, girl.’ â€
Denise struggled to get free, but defendant put his hand over her mouth
and began pushing her face against the floor, injuring her mouth. After Denise went limp, defendant released
her. She ran to a neighbor’s apartment
and called 911. At the scene, Denise
declined any medical attention.
Barnhart
asked Denise if she wanted him to try and obtain an emergency protective order
to keep defendant away from her. She
agreed and Barnhart obtained an order, had it served on defendant, and gave a
copy to Denise.
During
cross-examination, Barnhart agreed that if Denise was a long-time abuser of
alcohol, that might cause redness and puffiness in her face. However, he believed the puffiness in
Denise’s face went beyond being caused by alcohol and was consistent with her
statement that defendant had choked her.
Denise told
Barnhart her black eye was the result of a fistfight with another woman earlier
that week. The black eye appeared old,
and Denise never accused defendant of punching her. The smell of alcohol was stronger on Denise
than on defendant. Barnhart acknowledged
that people who drink habitually are better able to handle their alcohol and
appear sober. He did not ask Denise how
much she had drunk that night.
Interview
with Defendant
Barnhart spoke with defendant at
the scene. Barnhart described defendant
as angry and flippant. Defendant smelled
of alcohol and had small scratches on his arms and dried blood on his nose, but
no visible injuries to his face.
Defendant
said Denise’s injuries were caused by a fight she had had with another woman
and adamantly denied any physical altercation with Denise. Any injuries not caused by that fight were
caused by the dog. Defendant did admit
restraining Denise, which caused the scratches on his arms. Defendant did not mention Denise drinking or
being in any type of alcoholic blackout.
After defendant’s arrest, Barnhart questioned people at the neighboring
apartment, but they were not very cooperative.
Relationship
Between Defendant and Denise
Defendant and Denise had lived
together in an apartment for six years.
They began dating a few months before he moved in.
Denise
still loved defendant when she testified at trial, and she considered him her
fiancé. She had seen defendant several
times after the incident, about twice a week.
Denise stated she was testifying pursuant to subpoena and hoped
defendant would be acquitted.
Denise’s
Testimony
Denise had
two Yorkshire terriers, which were very feisty and
protective of her. She did not remember
how much she had drunk the night of the incident. However, Denise testified she probably
started drinking cups of wine around 11:00 a.m. and might have drunk eight
six-ounce cups of wine by early evening.
Denise could not remember if she felt the effects of the wine that
evening, but did not remember having trouble talking or standing.
Although
Denise remembered going to another apartment that evening, she did not remember
calling 911. The tape of the 911 call
was played for the jury. In the call,
the caller asked for someone to come over because her fiancé was hurting her
and had threatened to kill her. The
caller said her fiancé had burnt her, bitten her, and beaten her up. She identified herself as “Denise [N.]†and
gave the dispatcher the phone number and the address. The caller said her fiancé had tried to choke
her. She identified defendant as her
fiancé and said he had threatened to hurt her pet. Defendant had tried to “asphyxiate†her and
hit her in the face with his fist.
Denise
identified her voice as the voice on the recording. She explained she suffered a sort of blackout
during the call and “was elaborating†because she was angry with defendant and
wanted to get him in trouble. When the
officers arrived, she was in a drunken state and did not recall telling them
that defendant had called her names and told her she was going to die.
Denise did
remember defendant drinking wine the evening of the incident but stated he
drank less than she did. She did not
recall arguing with defendant, but if she had, it was not loud nor was it a
fight. Denise might have told the
officer that she and defendant had argued about a woman who had come to her
apartment and hit her in the face, blacking her eye. Or, she may have falsely told the officer
defendant caused her black eye.
Denise did
not remember telling the officer that defendant threw her down or put his hands
around her throat, nor did she remember defendant doing those things. Instead, she recalled being upset about
something and defendant trying to calm her down by placing his hand lightly on
her mouth.
When shown
the photograph taken that evening of her injuries, Denise testified she might
have been wrestling with defendant while she was blacked out. She also stated she swells up and bruises
easily. Denise made the 911 call because
she was trying to get attention and wanted to dramatize things.
Denise
testified she told the prosecutor that she had exaggerated her prior claims
about the incident. She wrote the
prosecutor’s office a letter stating she was in an alcoholic blackout the night
of the incident and was responsible for what had happened. In addition, Denise discussed prior incidents
in 2002 and 2004 of alleged domestic violence between her and defendant. In each instance she either did not recall
the incident or minimized defendant’s actions.
Criminalist
Testimony
A criminalist who qualified as an
expert on alcohol consumption testified that an alcoholic has a much higher
tolerance for alcohol and would have to drink much more than an occasional
drinker would to appear impaired. After
the criminalist was given a hypothetical mirroring of Denise’s testimony about
her alcohol consumption the night of the incident, the criminalist testified
that person would not show outward signs of intoxication such as stumbling or
slurring of speech.
2002
Incident
Sheriff’s Deputy Paul Long
testified about an incident of domestic violence between defendant and Denise
that took place in January 2002. Long
responded to a 911 call and found Denise with red eyes and smelling of
alcohol. Denise told the officer that
she and defendant had been dating for a couple of months and had begun arguing
about their relationship. When Denise
tried to leave, defendant grabbed her and she fell to the floor. Defendant began to pull her clothes off, called
her names, and told her not to walk out on him.
Denise said she was not injured and did not want a protective order.
Long
interviewed defendant, who also smelled of alcohol. Defendant said the couple argued because
Denise had been picking on him, provoking him until he yelled at her. He denied preventing Denise from leaving, and
said she had scratched and kicked him.
Defendant attempted to stand up for himself and reacted verbally, not
physically.
2004
Incident
Deputy Nelson Resendes testified
regarding an incident of domestic abuse between defendant and Denise that took
place in January 2004. When he arrived
at their residence, the deputy found Denise frightened and crying, with bruises
on her wrist, hand, and lower legs.
Denise told him she and defendant had been arguing for days. The arguments had turned physical, and
defendant had grabbed her wrists and kicked her.
On the day
the officer arrived at Denise and defendant’s residence, Denise said defendant
had asked her for sex and became angry when she refused. He began yelling and poking at her. Denise threatened to call 911, and defendant
told her if she did he would “ ‘gut [her] ass’ †when he got “ ‘out.’ †A deputy who accompanied Resendes confirmed
that Denise was upset and emotional. She
wanted defendant out of the apartment and wanted a protective order. Denise had bruises on her legs and
wrist. The deputy obtained the order.
Resendes
interviewed defendant, who said he and Denise argued but there was no physical
contact. Defendant said Denise grabbed
him by the testicles during the earlier argument. He decided to not call the police and
explained that he was having a difficult time dealing with Denise because she
was going through menopause. Denise’s
bruising was caused by kickboxing lessons he was giving her.
Expert on Domestic Violence
The court
recognized Linda Barnard, a licensed marriage and family therapist, as an
expert in domestic violence. Barnard had
no knowledge of the parties or their relationship.
Barnard
described battered woman’s syndrome, a description of a variety of
characteristics and behaviors applicable to a specific class of violence. Female victims who report such battering
frequently become uncooperative or resist having their assailants arrested or
prosecuted. They often change their
stories or recant, and commonly testify in court on behalf of the accused.
Barnard
cited several reasons for such behavior:
the victim may still be in a relationship with her assailant, or the
violence has ceased; she may be trying to keep their family together, or be
economically dependent on the accused; and sometimes the victim has been
threatened or believes it is safer to stay.
In addition, there is a high correlation between substance abuse and
domestic violence by both the victim and the perpetrator. The victim’s substance abuse helps numb the
feelings of being abused. Domestic
violence tends to escalate over time in both the frequency and severity of the
violence.
On
cross-examination, Barnard stated she knew of relationships that were mutually
combative, but one party was usually stronger than the other. Male victims of domestic violence are
reluctant to report it out of embarrassment or a fear of not being
believed. Barnard also testified that a
person can make a false report of domestic violence out of anger, revenge, or
in an attempt to seek attention.
Stipulation of 1994 Incident
The parties
stipulated that in November 1994 defendant was convicted of felony sexual
battery. (§ 243.4.) A probation report that was prepared in lieu
of the victim’s testimony was entered into evidence. According to the probation report, defendant
forced his girlfriend, Jo Ann B., to have sexual intercourse. Jo Ann stated she and defendant had
lived together on and off. The evening
of the incident, the couple argued and Jo Ann tried to leave. Defendant threw her on the bed and covered
her mouth to prevent her from screaming.
Defendant let her go when she stopped screaming. About an hour later defendant forced
Jo Ann to have intercourse, despite her resistance, after threatening to
tie her up. Defendant pleaded guilty to
the charge.
Defense Case
A defense
investigator identified photographs he took of defendant in jail one morning
several days after the incident. The
photos revealed bruising on defendant’s hand and breast area, bruises which
appeared several days old.
Verdict and Sentencing
The jury
found defendant guilty of both counts.
The court sentenced him to seven years in state prison: the upper term of five years for count one;
the upper term of four years for count two, stayed pursuant to section 654; and
consecutive one-year terms for each of the two prior prison term enhancements.
DISCUSSION
Admission of 1994 Incident
Defendant
argues the court erred in admitting evidence of his November 1994 conviction of
sexual assault on Jo Ann. According
to defendant, the incident was over 16 years old and the facts were very
different from the current charged offense.
In addition, the incident was unduly prejudicial under Evidence Code
section 352.
Background
In support
of its motion to admit the incident under Evidence Code sections 1109 and 1101,
subdivision (b), the prosecutor provided the court with details of the
1994 incident with Jo Ann.
Defendant was convicted of a felony violation of Penal Code section
243.4 and placed on probation. He was
later sentenced to prison as the result of a probation violation.
The
prosecutor argued the 1994 crime against Jo Ann was admissible under both
Evidence Code sections 1109 and 1101.
The evidence was admissible under section 1109 even though it was
more than 10 years old because it was probative of defendant’s propensity for
violence against domestic partners and the conduct was very similar to the
conduct in the present case. The
evidence was admissible under section 1101, subdivision (b) because it
showed a common scheme or plan, identity, and motive.
The court
determined the evidence was admissible, noting:
“[F]irst of all, there was a conviction in the case. Secondly, there are similarities. The victim in the March 2010, the instant
case, complained of threats and that the defendant tried to asphyxiate
her. In the 1994 incident, the victim
also complained she’d been threatened, and she could not breathe. [¶] I
also would note that the 1994 incident did pertain to an argument or a fight
over sex, which is similar to the 2004 [incident], and I feel that the 1994
[incident], in addition to the 2002 and the 2004 [incidents] shows [
women. If it had just been the 1994
[incident] standing alone and then the instant case, I think it would be a lot
stronger case for prejudice. [¶] I think in light of the fact that the victim
of the . . . 1994 incident, [Jo Ann], will testify[,] will
permit the defendant to cross-examine her.
I think that the jurors -- that the district attorney can introduce as
evidence the conviction, but I would feel that unless the victim testifies -- I
would require that the victim testify in that case that I feel the People
cannot prove that just with the prior conviction because just the prior
conviction alone would be -- it would not provide the relevance, I feel, the
background facts, the threats, the attempts to prevent the victim from
breathing. So for those reasons the
Court has exercised its discretion under [Evidence Code section] 352 and will
allow the November 1994 offense to be testified to by the victim.â€
Defense
counsel stated her preference that the 1994 conviction be admitted without
details of the victim’s testimony, because the facts would be extremely
prejudicial. The court noted the
objection but stated it had adequately provided a basis for admission of the
testimony.
Based on
the court’s ruling, defense counsel
agreed to a stipulation allowing for admission of portions of the probation
report of the 1994 incident. The
stipulation read to the jury states, in pertinent part: “November 15, 1994, the defendant was
convicted of the crime of violating Penal Code Section 243.4, a felony, a
sexual battery, and that the probation report based on that crime in lieu of
having the actual victim come in and testify, the probation report that was
prepared . . . which we will enter into evidence that part of it stated: (Reading)
[¶] ‘Present offense: The defendant forced sexual intercourse with
his girlfriend. . . . [¶] On October 28th, 1994, Officer Clark went to
a domestic disturbance at an Auburn residence.
Victim Jo Ann [B.] stated she and the defendant, Thomas Bennett,
had been residing together for approximately two weeks and had previously
resided together from June 1993 to June 1994.
On the evening of October 27th, she and [defendant] engaged in a verbal
argument resulting in her attempting to leave the residence. At that time [defendant] reportedly threw her
onto a bed and covered her mouth to prevent her from screaming. When she stopped trying to scream, the
defendant let her get up. Approximately
one hour later she went to bed as she thought the defendant would not allow her
to leave. [¶] Approximately one hour later the defendant
got into bed with the victim and attempted to have sexual intercourse with
her. [She] physically resisted and told
[him] to leave her alone. At his point
the defendant indicated he was going to rape [her] and threatened to tie her
hands and feet.’ [¶] . . . [¶] . . . Defendant pled guilty to that count and
was sentenced.â€
Afterward,
out of the presence of the jury, the court again discussed the admissibility of
the incident and noted: “[T]his was a
separate victim and tended to me to show that further evidence of the
defendant’s propensity and also would tend to shed light on the question of
. . . whether [Denise] is just making this up out of whole cloth
and . . . defendant didn’t do anything, as he alleges. [¶]
The fact that a separate victim has reported a similar instance, I felt
it was highly probative, so I have weighed under [Evidence Code section] 352,
and I would note it was over the defendant’s objection that they stipulated
only to avoid the victim from having to further testify and possibly prejudice
your case. That was a trial strategy
decision on your [part].†The court also
stated the stipulation read to the jury lessened the prejudicial impact because
it did not contain some of the more explicit facts.
The court
instructed the jury on the evidence of uncharged domestic violence pursuant to
CALCRIM No. 852. During closing
argument, the prosecutor alluded to the 1994 incident with Jo Ann,
reiterating the facts and informing the jury it could consider the stipulated
facts “to determine if [defendant] did it before, did he do it this time?†Defense counsel, during closing argument,
noted the evidence of uncharged violent acts and stated: “You can’t find him guilty just based on the
fact he’s done it before. The People
have to prove he did it this time.â€
Discussion
Under
Evidence Code section 1109, evidence of prior domestic abuse is admissible for
any relevant purpose but is subject to Evidence Code section 352. Under section 352, a trial court “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.â€
In
evaluating evidence under Evidence Code section 352, the trial court evaluates
the similarity of the uncharged act to the charged offense, whether the source
of the evidence is independent of the charged offenses, and the amount of time
that elapsed between the uncharged and charged offenses. To determine the prejudicial effect, the
court examines whether the uncharged act is more inflammatory than the evidence
of the charged offense. (
1262, 1274.)
We review
the court’s decision for an abuse of discretion. (People
v. Branch (2001) 91 Cal.App.4th 274, 282.)
We have held that the trial court has broad discretion in deciding
whether the probative value of evidence is substantially outweighed by the
potential danger of prejudice. (
155, 167-168.)
Defendant
argues the trial court’s decision to admit the “totality of the facts of the
1994 incident created prejudice, confused the issues and in all likelihood
turned the jury against [defendant]. It
is one thing to admit similar evidence to that of the charged offenses but
another to introduce dramatically more prejudicial testimony about an alleged
sexual assault in 1994.â€
In
considering whether to admit prior acts of domestic violence, the court must
consider whether the prior acts are more inflammatory than the charged conduct,
the possibility the jury might confuse the prior acts with the charged acts,
the closeness in time of the prior act, and whether the defendant has been
convicted of the prior acts. (
1107, 1119.)
Defendant
zeroes in on the consideration of the similarity between the prior and the
current conduct, conceding there are similarities between them but arguing the
dissimilarity between the acts was prejudicial.
In support, defendant cites People
v. Morton (2008) 159 Cal.App.4th 239 (Morton).
In
admission of a prior uncharged incident of domestic violence against a prior
girlfriend was unduly prejudicial. The
prior incident had taken place nine years before. The Morton
court ultimately found the probative value of the evidence was not
outweighed by its prejudicial effect.
The court considered the differences between the two incidents,
provocation in one and a lack of provocation in the other, and concluded: “Whether Morton’s rage is capable of
spontaneous combustion, or requires some ignition to get it going is hardly the
point. In either case, the evidence
suggests he is prone to violent rages, and engages in punching and choking when
in the throes of one.†(
247.)
In
impact was thwarted by the trial court’s precluding any mention that the prior
assault was part of an attempted sexual assault. Therefore, the portion of the prior assault
allowed was much less inflammatory than the charged assault. (Morton,
supra, 159 Cal.App.4th at pp. 247-248.)
Here, defendant argues the opposite occurred to his prejudice: the court allowed in a prior incident that
was much more inflammatory.
Here, the
assault on Jo Ann in 1994 bore striking similarities to the charges
against defendant in the present case.
Defendant argued with Jo Ann, threw her down on the bed, restrained
her, and then choked her. The parties,
in an effort to exclude the more inflammatory aspects of the assault on
Jo Ann, crafted a stipulation based on the probation report, omitting the
most lurid aspects of the assault. Such
a redaction comports with Morton. Jo Ann did not testify.
On balance,
the trial court did not err in exercising its discretion and determining the
evidence of Jo Ann’s assault was more probative than prejudicial. Although the offense against Jo Ann
occurred 16 years prior to the current offense, both incidents revealed
defendant had a “problem with anger management, specifically with regard to
female intimate partners, and specifically when he feels rejected or challenged
by such a partner.†(
520, 533.) The evidence of the prior
assault was highly probative, and the prejudicial impact was lessened by having
the stipulation read in lieu of Jo Ann’s testimony.
Sentencing Error
Defendant
argues his sentence should be modified to a four-year upper term, or one of the
section 667.5 priors must be stricken.
According to defendant, a section 667.5 prior cannot be used to both
subject him to a higher sentence and to add an additional one-year term. He requests that we reduce his sentence by
one year because of an improper dual use of facts.
Defendant
was charged with willful infliction of corporal injury on a cohabitant. In a separate allegation it was asserted
defendant had suffered a prior conviction for corporal injury to a spouse
within seven years of the charged offense.
(§§ 273.5, 273.5, subd. (e)(1).)
The information also charged defendant with two prison term priors. (§ 667.5, subd. (b).)
Defendant
admitted both priors and acknowledged that the prior conviction in 2004 would
increase the possible sentence range from two, three, or four years to three,
four, or five years. The court sentenced
defendant to the upper term of five years and imposed an additional,
consecutive two years, one for each of the two priors.
Defendant
argues he is entitled to have his sentence reduced to the upper term set forth
in section 273.5, subdivision (a) or to have the one-year term imposed for the
prison prior stricken. According to
defendant, use of the prior prison term for the dual purpose of enhancing the
sentence range and imposition of the one-year term was improper.
Defendant
concedes that in People v. White Eagle (1996)
48 Cal.App.4th 1511, the court found a defendant could be sentenced to an
additional one-year term for a prison prior even where the same prior conviction
was used to elevate the misdemeanor crime of petty theft to the felony offense
of petty theft with a prior conviction.
The White Eagle court found
the sentence did not violate section 654 or constitute an improper multiple use
of the prior conviction. (
Defendant argues White Eagle is
distinguishable.
Section
273.5, subdivision (e) is an elevated sentencing scheme for repeat
offenders. As such, the court properly
increased defendant’s sentence under that section and under section 667.5,
subdivision (b). (People v. Demara (1995) 41 Cal.App.4th 448, 451-455.) Defendant’s 2004 domestic violence conviction
brought him within section 273.5, subdivision (e) sentencing provisions
and would have done so whether or not he had been imprisoned for that
conviction. The fact of imprisonment is
a distinct factor supporting the enhancement under section 667.5, subdivision
(b). (People v. Cressy (1996) 47 Cal.App.4th 981, 992.)
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
DUARTE , J.
HOCH , J.
name="_ftn1" title="">[1] All further statutory references are to the
Penal Code unless otherwise designated.
