P. v. Hernandez
Filed 8/15/13 P. v. Hernandez CA1/4
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opinion has not been certified for publication or ordered published for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.
LUIS A.
HERNANDEZ,
Defendant and Appellant.
A136109
(Alameda
County
Super. Ct.
No. CH48661)
Luis
A. Hernandez stalked and brutally killed the woman with whom he had lived for
almost 18 years and had two children. A
jury convicted him of first-degree murder and stalking. In connection with the murder conviction, the
jury found true a special-circumstance allegation of killing by means of lying
in wait and an enhancement allegation of using a deadly weapon. In connection with the stalking conviction,
the jury found true the enhancement
allegations of using a deadly weapon and of inflicting great bodily injury
under circumstances involving domestic violence.
imprisonment without the possibility of parole for the murder conviction, and
imposed a consecutive one-year sentence for the enhancement of using a deadly
weapon. It stayed sentencing for the
stalking conviction and related enhancements.
On
appeal, Hernandez argues that his murder
conviction must be reversed because (1) he was prevented from introducing a
statement he allegedly made after the killing that the victim had “cheated†on
him; (2) two prior uncharged acts of domestic violence were allowed into
evidence; and (3) the cumulative effect of these errors denied him due
process. We reject each claim and
affirm.
I.
Facts
Hernandez and Rose Marie Goulart (Rose)
were in a relationship for almost 18 years.
They had two children together:
Luis Hernandez, Jr. (Luisito), who was 16 years old when his mother was
killed, and Jeanette Hernandez (Jeanette), who was 15 years old when her mother
was killed. For most of the seven to
eight years before Rose’s death, the family lived in a house owned by Hernandez
and Rose on Lorena Avenue
in Castro Valley.
A. Hernandez
and Rose’s Relationship.
Throughout
their relationship, Hernandez controlled Rose.
He did not allow her mother or sister to visit even though they lived
nearby, and he did not let Rose call them.
He also restricted her contact with a child Rose had from a previous
relationship, Filipe, whom Rose would only call when Hernandez was not
around. Hernandez refused to let Rose go
out with her friends or visit them in their homes. She had to ask his permission to leave the
house or buy things. If she cooked
something he did not like, he would throw it in the garbage or on the ground.
Hernandez
also verbally and physically abused Rose.
He called her “whore†and “bitch.â€
He hit her regularly, leaving large bruises on her arms and legs. Rose documented the bruises with photographs,
which she showed to her son and her coworkers at Bay Valley Medical Group in Hayward. Rose’s coworker and close friend, Antonia
Diaz (Diaz), would help her at work to treat the bruises.
One
night in the mid-1990s, Luisito saw Rose in the living room of the family’s
previous home, bound to a chair and with duct tape covering her mouth. She appeared to be “tired and worn out.†Luisito tried to free her, but Hernandez
discovered him and sent him to bed.
Luisito again saw his mother bound to a chair on another night around
this time. She was naked and seemed “out
of it,†and the chair was in a bathtub full of ice up to her legs. Hernandez was in bed across the hall, and he
had tied a rope between the bathroom door and his wrist so he would detect any
attempt to open the door.
In
2003, Hernandez stopped working due to a work-related back injury. He began taking several pain medications and
Prozac daily, and drank alcohol almost daily.
Two years later, Rose was diagnosed with breast cancer. She had surgery and underwent radiation. After the diagnosis, Hernandez stopped
physically abusing Rose, but he continued to abuse her verbally.
B. Rose
Leaves for the First Time.
On
Valentine’s Day 2007, Rose gave Hernandez candy and a card. Hernandez burned the candy and the card on
the stove because she had come home late.
The next week, Hernandez became angry with Luisito over his poor grades
and ordered him to sleep in the garage.
These events convinced Rose to leave, and she took Luisito and Jeanette
to a hotel, where they all stayed for a few days. They then moved to Rose’s mother’s house in Union
City. Four days
after leaving, Rose filed a request for a restraining order, which was granted.
Hernandez
promised he would change, and Rose and the children returned home several weeks
later. The restraining order was dropped
at Rose’s request, but Hernandez soon reverted to being controlling and
verbally abusive. He frequently called
Rose at work to make sure she was there, to the point that Rose’s supervisor,
Michelle Casey, had to caution Rose about her personal telephone use.
C. Rose
Leaves for the Second Time.
Jeanette’s
quinceañera party was held in late October 2008. The party required a lot of planning over
several months. Hernandez was very angry
about the party, particularly its cost.
He was drinking a lot during this time, and his abusiveness
escalated. On one occasion, Rose brought
doughnuts home to share with several visitors, including dancers practicing for
the quinceañera. In front of everyone,
Hernandez jumped on the doughnuts and crushed them because Rose had not asked
his permission to buy them. He also cut
up her ATM card. The incident made Rose
“really sad and really mad.â€
On
another occasion, Rose was with Diaz in a checkout line at Costco. Hernandez called Rose to tell her to return
to the house immediately because the quinceañera photographer had arrived for a
meeting. Rose became very scared and
insisted on leaving the store instantly, even though it meant abandoning a full
shopping cart. When Rose and Diaz got to
the house, Hernandez was furious. On another
occasion before the quinceañera, Hernandez threw a wrench at Rose in front of
the children, Diaz, and Diaz’s boyfriend during a fight Hernandez and Rose were
having about hiring a limousine.
Around
this time, Rose began dating another man and formed a plan to leave
Hernandez. Hernandez became
suspicious. He told Diaz he knew
something was going on, and she responded by being dismissive and raising her
middle finger. Hernandez then bit her
finger, and she became scared. He told
Diaz that if she was in the wrong place at the wrong time, she, like Rose,
would “get what was coming.â€
Rose
became more resolved to leave Hernandez, although she was nervous about
it. In December 2008, she rented an
apartment on Somerset Avenue, about a quarter mile from the Lorena Avenue
house, and moved there with the children.
This location allowed the children to be near their friends and remain
in their high school. Rose did not give
Hernandez the apartment’s address. Rose
also applied for a restraining order (a “no-HAM . . .
[¶] . . . [harass, annoy or molest order]â€) with the help of her
attorney, David Hillis, which the superior court granted. On December 23, she and Hernandez appeared in
court for a hearing. The court kept the
no-HAM order in place and ordered no contact between Hernandez and Rose except
as necessary to facilitate Hernandez’s visitation with the children.
As
a result of the restraining order, Rose’s employer distributed Hernandez’s
photograph to employees and the security guard.
Rose’s coworkers were familiar with Hernandez’s vehicle, a white Ford
truck, and would recognize it. The suite
in which Rose worked was kept locked, and peepholes were installed so the
employees could see who was at the door.
Employees were told to call 911 if they saw Hernandez. The security guard was supposed to walk Rose
to and from her car, although Rose became lax about following this precaution.
Rose
was afraid that Hernandez would discover the location of the Somerset Avenue
apartment. She told Luisito that when he
returned from school, he should take different paths home or get a ride with a
friend. She also told Luisito’s close
friend, Daniel Alvarez (Winky), not to tell anyone about the apartment’s
location. Rose did not linger outside
the apartment. She always parked her car
in the garage and kept the curtains drawn.
Her friends had to check with her before visiting.
A
few months after Rose and the children moved out, Luisito ran into Hernandez on
the street. Luisito then began to stay
part-time at the Lorena Avenue house with Hernandez. Hernandez repeatedly asked Luisito questions
about Rose, such as where she lived, whether she had a boyfriend, and what she
did after work. Luisito did not answer
these questions because he knew his mother did not want Hernandez to have this
information.
Rose told Luisito not to give her cellular
phone number to Hernandez, but Hernandez discovered it by examining Luisito’s
phone. Hernandez called Rose often and
left messages asking her to come back to him.
He also called her at work several times a week. One coworker, Monica Aquino-Feder, heard him
“ranting†on the phone. Rose let her
supervisor, Casey, listen to a voicemail in which Hernandez said he was looking
for Rose and was going to find out where she lived.
Hernandez
also called Diaz “constantly†at work and at home, to the point that Diaz
changed her cellular phone number. He
would ask where Rose lived, what her cellular phone number was, and what she
was doing. Like Rose, Diaz told him that
she had gotten in trouble for taking personal calls to get him to stop calling
her at work.
About
three months after Rose left, Hernandez found the Somerset Avenue apartment
when he was riding his bicycle around the neighborhood and recognized some cars
parked in front of the apartment as belonging to Rose’s friend and aunt. He rang the doorbell, but no one
answered. Hernandez showed up a few more
times, but Rose refused to let him in.
After
she left Hernandez, Rose started documenting on Post-It notes things he told
her. One note said, “ ‘I’ve had it
with you, bitch. Fuck you, bitch and
watch your back.’ †Another said,
“ ‘I’m going to make your life miserable and lots of drama. So if you are seeing someone, that person
will dump you and will tell you to go hitchhike. I’m going to leave you. You have too many problems.’ †Another documented how Hernandez begged Rose
to come back to him, saying, “ ‘You belong to me.’ †Rose informed her attorney, Hillis, of some
of Hernandez’s communications with her.
Hillis believed that these communications violated the
would hurt or kill her.
D. The
Week Before Rose’s Murder.
In
the week before Hernandez killed Rose, Luisito noticed that his father seemed
angrier. Rose changed her number again,
but Hernandez almost immediately discovered the new one. Luisito overheard a conversation between his
parents in which Hernandez told Rose, “ ‘If you take away my life, I’ll
take away yours.’ †Luisito also
heard Hernandez begging Rose to come back, saying, “ ‘You’re my
girl.’ †Rose told Hernandez that
she had a boyfriend and was not going to return to Hernandez.
Two
nights before the murder, Rose was at a class she was taking to obtain a
general equivalency diploma (GED) class.
Luisito became concerned when he went to the Lorena Avenue house to meet
his father as arranged and found that Hernandez was not there. Luisito texted Rose to tell her that he did
not know where Hernandez was and to ask her to have someone walk her to her
car.
Hernandez
eventually returned to the Lorena Avenue house that night, and Luisito
overheard a conversation between his parents in which Rose asked Hernandez for
$150,000 to settle ownership of the house.
Hernandez told her she had better accept his offer of $10,000, which her
family could use for her funeral.
The
day before she died, Rose received flowers from Hernandez at work. In the accompanying note, Hernandez wrote
that he and Rose had been through some rough times, but that he wanted a better
future with her. He apologized for the
incidents involving the doughnuts and the ATM card, and wished her happy
Mother’s Day, happy birthday, and happy Valentine’s Day. Rose was disgusted by Hernandez’s gesture and
very scared.
Rose
emailed Hillis to tell him that Hernandez had discovered her cellular phone
number, which she wanted Hillis to know in case anything happened to her. Hillis responded that Hernandez was “out of
control.†Hillis suggested that he and
Rose meet to discuss their options, such as seeking a more comprehensive
restraining order. Rose responded that
she did not know what Hernandez was capable of and felt her safety was at
stake. She and Hillis arranged to meet
the next day during Rose’s lunch hour.
Later
that afternoon, Rose, Luisito, Jeanette, and Winky drove to Safeway
together. They saw Hernandez on a pay
telephone outside Safeway, and Rose’s cellular phone rang with a call from him. Winky answered. Winky told Hernandez that he was Rose’s
boyfriend, and said, “[S]top calling or [I’ll] kick your ass.†The conversation continued, and Hernandez
asked, “Is this Winky?†Winky said “no.â€
About
15 minutes after hanging up the phone, Winky was walking home and was about a
half block away from the Somerset Avenue apartment. Hernandez drove by in the white truck and
offered Winky a ride. Hernandez twice
asked if it had been Winky on the phone, and Winky denied it. Hernandez seemed frustrated.
Around
7:00 p.m. that night, Hernandez drove the white truck to the home of his aunt,
Alicia Alvino Diaz (Alvino Diaz). He
seemed restless. He asked to borrow her
car, a Honda, to go to the store, saying he could not drive the truck because
there were other cars parked behind it.
He told her he would come back soon, but he never returned. Alvino Diaz called him several times over the
next few hours and then again the next morning.
He never picked up the phone or returned her messages.
Hernandez
showed up at the Somerset Avenue apartment later that night. He talked to Jeanette and Luisito, and asked
Luisito if he wanted to go to the Lorena Avenue house. Hernandez and Luisito then drove to McDonald’s
in the other family car, a minivan. This
was unusual because Hernandez usually drove the white truck, and the minivan
did not run well. Luisito asked where
the truck was, and Hernandez said it was being repaired. On the way there, Hernandez told Luisito he
was very angry at Rose and “ ‘felt like killing her for all of the bad things
that she did.’ †Luisito did not
think he was joking.
E. The
Day of Rose’s Murder.
That
morning Hernandez woke up Luisito around 6:00 a.m. and said he was going to the
store. It was unusual for Hernandez to
wake Luisito up before school to tell him what he was doing or for Hernandez to
go to the store so early. Luisito went
back to sleep. He was supposed to be at
school at 7:15, but he overslept and did not wake up again until 8:00 a.m. Hernandez was not at the house, and Luisito
left for school. About 20 minutes after
Luisito got there, Jeanette called him and told him that Rose was in the
hospital. When he got to the hospital,
he learned that his mother was dead.
Rose
was due at work at 8:30 a.m. that morning.
Shortly before 7:30 a.m., a coworker, Julia Allen, drove into their
building’s parking lot. Allen saw a
Honda parked against the building. She
noticed the car because it was strange for a vehicle to be there that early in
the morning, and a trash bag was hanging out of the trunk and partially
blocking the license plate.
Surveillance
footage showed that the Honda’s driver continued to move the car and park it in
different spots over the next several minutes.
At about 8:15 a.m., Dorrie Reyes, who worked in the same building as
Rose, was walking in the parking lot when the Honda passed by her. Reyes noticed the car because it approached
her from a direction different from the one people normally drove in the
lot. Reyes did not see the driver’s
face, but she noticed that the driver was wearing gloves and a hat. She later identified the gloves as those that
the police found at the scene of Rose’s murder.
She saw the Honda pull into a parking stall next to a dumpster. Before she entered the building, she saw Rose
drive by, park, and open her car door.
Reyes waved at Rose, and Reyes then went into the building.
Many
offices at Bay Valley Medical Group, including the office of Rose’s supervisor,
Casey, had large windows and looked directly onto the parking lot. Casey saw the Honda pull up quickly behind
Rose’s car and saw Hernandez get out of it.
Hernandez wore a jacket, camouflage pants, a hat, and gloves. As soon as she recognized him, Casey called
911.
As
Rose got out of her car, Hernandez walked quickly toward her and then lunged at
her. He grabbed Rose around the neck,
and started stabbing her with a sharpened screwdriver. Rose tried to get away, but Hernandez held on
to her. Several employees inside the
building began to scream.
Allen,
Diaz, and Aquino-Feder ran outside. The
security guard was also outside. Rose
called Diaz’s name and begged for help.
Diaz had not seen the weapon and thought Hernandez was punching Rose. Diaz approached Hernandez, yelling at him to
stop. He did not respond to her, and he
looked like he was foaming at the mouth.
Aquino-Feder grabbed Hernandez’s shirt and begged him to stop, but he
did not react. Allen picked up Rose’s
heavy purse and began hitting Hernandez with it. Hernandez did not flinch.
Rose
fell down, and Hernandez continued stabbing her. He twisted the screwdriver in her chest and
abdomen in a circle, like he was digging inside her or trying to gut her. He then kicked her in the head three times
and moved away from her. Allen put her
fingers to Rose’s neck and felt a pulse.
A few seconds later, Rose’s eyes flew open, and the pulse
disappeared. Allen overheard Hernandez
say, “ ‘I told you I would do it.’ â€
Diaz took off her shoes, ready to chase him in case he tried to run
away, and she began hitting him with one of them and telling him to wait. Aquino-Feder went back into the building and
called 911 with Reyes.
Casey’s
911 call came in at 8:18 a.m., and two police units arrived within a few
minutes. The police got Hernandez down
on the ground and handcuffed him. Diaz
continued screaming at him, but he never responded or showed any emotion. An officer led Hernandez to the patrol car,
and he was able to walk unaided and without any problems. He was quiet and cooperative throughout his
arrest. The officers observed no signs
of intoxication or drug use, and he did not appear to be in shock. After Hernandez got into the patrol car, the
women and security guard began hitting it, crying and screaming.
An
officer transported Hernandez to the police station. Again, Hernandez was cooperative. He did not smell like alcohol and did not
have any symptoms of intoxication. He
did not appear to be in shock. During
his jail intake, Hernandez disclosed that he had taken his normal dosage of
pills that morning, but did not mention taking any other drugs or drinking
alcohol. He had no problems
communicating and did not appear to be impaired.
At
the scene, the police found a screwdriver sharpened to a point embedded in
Rose’s chest. Hernandez’s initials were
engraved on the screwdriver’s handle.
The Honda contained another sharpened screwdriver, a large trash bag,
sunglasses, a beanie hat, and a pair of gloves.
Alvino Diaz testified that these things did not belong to her. Luisito testified that the screwdrivers
belonged to Hernandez, although they were not sharpened the last time Luisito
saw them.
At
Rose’s autopsy, the screwdriver with Hernandez’s initials on it was still
sticking out of her chest. She had been
stabbed 24 times in her neck, back, hands, and chest. The outside of one of the wounds was scraped
by the handle of the screwdriver because Hernandez had driven the screwdriver
in so deeply. At least five of the
wounds were potentially fatal, including injuries to her jugular vein, kidney,
lung, and heart. She also had two
bruises on her scalp, which were consistent with her having been kicked in the
head.
F. The
Defense Case.
Hernandez
was the only defense witness. He
admitted that he had occasionally been verbally abusive to Rose, but he denied
that he hit her. He claimed that the
chair and bathtub incidents never happened and that he never threw a wrench at
her. He also claimed that he had never
tried to prevent Rose from maintaining contact with her other family members.
Hernandez
testified that he “went crazy†when Rose left the second time. He was angry she had lied to him by not
telling him she planned to leave. He
felt “diminished†because she had a boyfriend and because she changed her
cellular phone number in the days leading up to the murder. But he denied threatening her, and said he
was unaware of the no-HAM order, despite acknowledging that he was in court for
the hearing about it.
Hernandez
admitted sending flowers to Rose the day before she died but denied writing the
note accompanying them. He testified
that he had called Rose from Safeway that afternoon to find out what food to
buy for Luisito and to see if she had received the flowers. He denied that he knew it was Winky on the
phone or that he gave Winky a ride later that day. Hernandez contended that he borrowed Alvino
Diaz’s car so that he could follow Rose without her recognizing him, discover
who her boyfriend was, and figure out whether the boyfriend wanted to kill
him. Hernandez testified that he forgot
about his plan when Luisito came to the Lorena Avenue house later that night.
Luisito
went to sleep around midnight. Hernandez
claimed to have then ingested 20 beers, 10 morphine tablets, 60 Prozac pills,
and seven Xanax pills in an attempt to kill himself. He went to bed at about 1:00 a.m. but could
not sleep. He denied making a phone call
that Rose had received from Luisito’s phone at 4:44 a.m. The morning of the murder, he got up, told
his son he was going to pick up a day laborer to help him work on the house,
and left in the Honda. Hernandez
remembered bringing the gloves and screwdrivers, which he claimed he needed to
work on the brakes of his aunt’s car. He
testified that the screwdrivers were already sharpened when he bought them at a
garage sale.
Hernandez
claimed that he drove to Hayward to pick up a day laborer from a 7-Eleven store
near Rose’s workplace. He testified that
he did not have any problems driving from Castro Valley to Hayward, despite all
of the beer and pills he had ingested.
After waiting for the day laborer for half an hour, Hernandez left. He claimed that as he was about to turn into
a gas station in Hayward, he saw Rose’s car behind him. Instead of stopping to get gas, he drove to
Rose’s workplace while Rose was behind him.
He testified that he wanted to talk with her about their relationship.
Hernandez
remembered parking in front of Rose’s car, but he testified that he could not
remember Rose getting out of her car or anything else over the next few
minutes. He did not remember stabbing
her, and “didn’t know what [he] was doing†because of the beer and pills he had
had the previous night. He remembered
the police arriving.
II.
Discussion
She Cheated on Me.â€
Hernandez
contends that the trial court erred by excluding the testimony of two officers
who heard Hernandez say at the scene, “Well, she cheated on me.†The prosecution had argued in a motion in
limine that the statement was hearsay and inadmissible as a spontaneous
statement under Evidence Code section 1240.
that the spontaneous-statement exception applied. The court ruled that the statement was
inadmissible as a spontaneous statement through the officers’ testimony, but
that the statement probably would be admissible through Hernandez’s own
testimony.
The
People argue that Hernandez has waived his argument about the admissibility of
the statement because he never sought to introduce it through his own
testimony. We disagree. Hernandez could not testify about the
statement because any such testimony would have been inconsistent with his
defense that he was too intoxicated during the murder and its immediate
aftermath to remember anything. His
inability to testify about the statement was not a waiver of his argument that
the statement should have been allowed through the officers’ testimony.
Even
though we conclude that Hernandez did not waive his ability to argue that the
statement was admissible through the officers’ testimony, we find that he did
waive the specific arguments he now makes for the first time about the
statement’s admissibility. Hernandez
abandons the argument he made below that the statement was admissible as a
spontaneous statement under section 1240.
Instead, he now argues that the statement was admissible for two
reasons. First, he contends it was
nonhearsay because it was not offered for the truth of the matter
asserted. (§ 1200, subd. (a).) Second,
he argues that it was admissible under section 356, which permits the
admission of evidence “necessary†to understand “part of an act, declaration,
conversation, or writing†that has already been introduced (in this case, his
statement at the scene overheard by Allen, “ ‘I told you I would do
this’ â€). But Hernandez never
argued these points below,
name="_ftnref3" title="">[3]
and we thus conclude that he has waived them.
(People v. Kaurish (1990) 52
Cal.3d 648, 704; People v. Rogers
(1978) 21 Cal.3d 542, 547-548.)
Furthermore,
even if there were an error in disallowing the officers’ testimony about the
statement, the error was manifestly harmless.
Hernandez argues that the statement would have helped establish that he
killed Rose because he knew she had a boyfriend and became enraged by his calls
with her and Winky the night before the murder.
have convicted him of second-degree murder or voluntary manslaughter. But there was no question that Hernandez knew
about Rose’s boyfriend and was angry about the calls. Other witnesses confirmed Hernandez’s belief
that Rose was seeing someone else.
Hernandez himself testified that he was upset and felt “diminished†by
the fact that Rose had a boyfriend. He
also testified that he was very upset by the call with Winky, whom he believed
was Rose’s boyfriend, and by the subsequent call with Rose in which she
repeatedly referred to her boyfriend.
There was ample evidence to permit the jury to conclude that Hernandez’s
rage about Rose’s boyfriend was part of his motive for killing her. The officers’ statements would have added
little to the evidence already introduced on this point.
Nor
did the exclusion of the statement harm Hernandez’s defense by precluding
evidence that he said something else at the scene besides “I told you I would
do it.†The excluded statement would not
have undermined the prosecution’s evidence and theory that Hernandez was calm
at the scene felt no remorse. The other
crime-scene witnesses testified that Hernandez was impassive during and after
the murder, even when they were hitting him and screaming at him. The statement would have neither undermined
the impression that Hernandez was composed nor bolstered the defense’s
contention that he was in shock.
The
case against Hernandez was exceptionally strong. There was no dispute that he killed Rose by
stabbing her repeatedly and viciously, and extensive evidence was presented
that the murder was premeditated. This
evidence included Hernandez’s telling Luisito he wanted to kill Rose;
threatening Rose repeatedly and with witnesses present; borrowing Alvino Diaz’s
car to drive to Rose’s workplace instead of using his recognizable white truck;
sharpening screwdrivers into weapons and carrying them with him; wearing
clothing to disguise himself on the morning of the murder; waiting in the
parking lot for Rose to arrive; blocking Rose’s car after she parked to prevent
her escape; and killing Rose quickly, calmly, and brutally. In contrast, Hernandez’s defense was
exceedingly weak and much of his testimony was unbelievable. Accordingly, we have no difficulty concluding
that any purported constitutional error was harmless beyond a reasonable doubt
(Chapman v. California (1967) 386
U.S. 18, 24) and that it was not reasonably probable that Hernandez would have
received a more favorable verdict if the court had admitted the statement
through the officers’ testimony. (
836.)
B. Admission
of Evidence of Prior Acts of Domestic Violence.
Hernandez argues that the trial
court erred by admitting evidence of the bathtub and chair incidents. While he does not contest the admissibility
of the incidents under sections 1101 and 1109, he argues that the court
should have nonetheless excluded them under section 352 because their
prejudicial effect substantially outweighed their probative value.
We
review the trial court’s determination under section 352 for abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) Section 352 provides that evidence may be
excluded “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.†The “prejudiceâ€
section 352 refers to “is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence.†(People
v. Karis (1988) 46 Cal.3d 612, 638.)
Rather, it “ ‘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
this case, the trial court weighed the evidence’s prejudicial effect against
its probative value as required. (See
While the court found that the incidents were not similar to the charged
crimes, it concluded that the evidence was “extremely probative†to establish
Hernandez’s disposition for abusing Rose, as well as his motive, intent, and
mental state. Luisito’s testimony at the
preliminary hearing about the incidents was sufficiently reliable and specific,
and there was no danger of undue consumption of time or confusion of the
issues.
We
agree with the trial court that the evidence was probative. Section 1109 “reflects the legislative
judgment that in domestic violence cases . . . similar prior offenses are
‘uniquely probative’ of guilt in a later accusation. [Citations.]
Indeed, proponents of the bill that became section 1109 argued for
admissibility of such evidence because of the ‘typically repetitive nature’ of
domestic violence.†(
toward Rose was strong evidence of his propensity for domestic violence against
her. It was also probative of his intent
and mind state in stalking and killing her.
Contrary
to Hernandez’s argument, the fact the incidents happened over 10 years before
the murder did not extinguish their probative value. The concern about admitting remote acts is
that “[i]n theory, a substantial gap between the prior offenses and the charged
offenses means that it is less likely that the defendant had the propensity to
commit the charged offenses.†(
274, 285. “This is especially true if
the defendant has led a substantially blameless life in the interim.†(People
v. Johnson, supra, 185
Cal.App.4th at p. 534.) But here
there was ample evidence that the two incidents were part of a long pattern of
domestic violence Hernandez inflicted on Rose.
Hernandez does not even argue that the incidents’ remoteness means they
were not probative of his propensity to commit domestic violence, but only that
they were not probative of his intent and mental state at the time of the
crime.
We
also reject Hernandez’s argument that the two incidents and the charged crimes
were not sufficiently similar. Again,
Hernandez argues only that the two incidents are not probative of his motive or
intent to kill Rose, but he is silent about their value in reinforcing his
propensity to engage in domestic violence.
The prior incidents and the charged crimes show Hernandez’s need to
control and abuse through fear, pain, and humiliation. This similarity is sufficient to make the
prior acts probative of his intent. (See
People v. Abilez (2007) 41 Cal.4th
472, 500 [lesser level of similarity between prior acts and charged crimes
required for prior acts to be probative of intent, as opposed to probative of
other issues like identity].)
The
evidence of the two prior acts was also not cumulative. We agree with Hernandez that there was
“evidence of other numerous acts of physical and mental abuse inflicted upon
[Rose] by [him].†Still, these two acts
were especially probative because they showed the depth of Hernandez’s desire
to control and hurt Rose. In addition,
intent was the main contested issue at trial, and the prosecution’s evidence of
intent was circumstantial. While that
cannot say that it “so conclusively†established intent that the evidence of
the prior acts was overly cumulative.
(See People v. Carter (2005)
36 Cal.4th 1114, 1150.)
We
disagree with Hernandez that there was a risk the jury would have been tempted
to convict him in order to punish him for the prior acts. It was uncontested that Hernandez killed Rose
by stabbing her repeatedly and viciously.
There was no reasonable likelihood that the jury would convict him because
it believed he deserved to be punished for tying her up years before, but not
for stalking her and stabbing her to death.
This is especially true given the trial court’s instruction that a
finding by the jury that Hernandez committed the prior acts by a
insufficient for the jury to convict him.
We presume the jury followed this instruction. (People
v. Hollie (2010) 180 Cal.App.4th 1262, 1277.)
Finally,
we reject Hernandez’s contention that the evidence of the prior acts should
have been excluded because of its “inflammatory nature.†(See People
v. Johnson, supra, 185
Cal.App.4th at p. 534, fn. 11 [courts’ focus when evaluating
prejudice is whether past act is “ ‘more inflammatory’ †than charged
offense].) We are at a loss to
understand how the prior incidents, as sadistic as they were, could possibly be
considered more inflammatory than the horrific manner by which Hernandez
murdered Rose. Hernandez offers no other
reason why the evidence of his prior acts was unduly prejudicial, and we see
none. The trial court did not abuse its
discretion by admitting this evidence.
Finally,
as discussed above, the case against Hernandez was extremely strong, and his
defense was extremely weak. Any
purported constitutional error in the admission of the prior acts was
harmless. (Chapman v. California, supra,
386 U.S. at p. 24; People v. Watson,
supra, 46 Cal.2d at p. 836.)
C. Cumulative
Error.
Hernandez
contends that the cumulative effect of the two errors he identifies requires
reversal of his conviction, even if neither of the errors individually requires
reversal. For the reasons discussed
above, we find no error and no cumulative prejudice.
III.
Disposition
The judgment is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
convicted were Penal Code section 187, subdivision (a) [first-degree murder];
section 646.9, subdivision (b) [stalking]; section 190.2, subdivision
(a)(15) [killing by means of lying in wait]; section 12022,
subdivision (b)(1) [using a deadly weapon]; and section 12022.7,
subdivision (e) [inflicting great bodily injury under circumstances
involving domestic violence].
Evidence Code.
