Filed 9/19/17 P. v. Young CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair J. Agcaoili, and Amanda E. Casillas, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Robert Young of robbery (Pen. Code, § 211; count 1)[1] and corporal injury to a spouse (§ 273.5, subd. (a); count 2). In a bifurcated proceeding, Young admitted a prior conviction for battery with serious bodily injury (§ 243, subd. (d)) in 2013 as a prison prior (§§ 667.5, subd. (b), 668), a strike prior (§§ 667, subds. (b)–(i), 668, 1170.12), and a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). He also admitted a true finding in a 2006 juvenile matter for assault with a deadly weapon (§ 245, subd. (a)(1)) as a prison prior (§§ 667.5, subd. (b), 668) and a strike prior (§§ 667, subds. (b)–(i), 668, 1170.12). The court exercised its discretion to strike the juvenile strike. The court sentenced Young to 15 years in state prison based upon the upper term of five years for count 1, which was doubled for the strike prior, plus five years for the serious felony prior. The court imposed a sentence of two concurrent years for count 2, but stayed punishment pursuant to section 654.

Young contends on appeal (1) his robbery conviction should be reversed because there was insufficient evidence he took the victim's purse with the intent to deprive the victim of it permanently or for such a period of time as to deprive a major portion of its value or enjoyment and (2) the admission of uncharged crimes pursuant to Evidence Code section 1109 violated his due process rights and was unduly prejudicial. We disagree with both contentions and affirm the judgment.

BACKGROUND

1

The victim was married to Young in December 2014 and separated in October 2015. They were still married at the time of trial. The victim had Young's child after the incident in this case occurred.

Young and the victim had a history of domestic violence. An incident occurred in August or September of 2014 when Young punched the victim and broke her ribs during an argument. The victim said she hit him after he pushed her. He then broke her ribs.

A month or two later, in October 2014 Young became belligerent and upset when they were drinking and started arguing with the victim. Young hit the victim in the face, threw a television at her face, and dropped her to the ground where he kicked her in the head. The victim sustained fractures to her sinus cavities and permanent sinus damage as well as a concussion. The victim's aunt took the victim to the hospital because they could not stop the bleeding. The victim got a restraining order against Young, but later dropped it and reconciled with him.

On another occasion when Young had been drinking, he took offense to something the victim said, hit the victim, and kicked her in the head. She said he "stomped [her] out."

Another time Young hit the victim in the face, pushed her to the ground, and kicked her. When she tried to leave, he chased her down the street yelling at her and threatening her.

On the day of the incident for which Young was convicted, Young threw a cell phone at the victim's pregnant stomach which caused a purple welt. The victim did not report the cell phone incident when she spoke to police officers later in the day.

2

On October 23, 2015, Young and the victim, who was then eight months pregnant, went shopping for baby clothes. The victim had a purse containing baby clothes, makeup, and medicine to stop her contractions. She had to take the medicine every six to eight hours to prevent preterm labor. Young knew why the victim was taking the medication. The victim typically kept money and her cell phone in her bra. Young bought the cell phone the victim used, but he also had a cell phone. Young also gave the victim money for food and for transportation to get to her medical appointments.

Young and the victim went to eat after shopping and Young consumed alcohol. The victim stated they were arguing because Young "likes to be mean when he drinks."

The victim tried to get away from Young by going to her grandmother's house because she did not want the situation to escalate. The victim and Young rode the trolley together until the victim got off to make a bus transfer. They argued and exchanged mean words on the trolley. Young and the victim got off the trolley. The victim got on a bus by herself and thought Young was going to take a different bus to his sister's house. However, Young ran to the next bus stop and got on her bus. The victim said Young was angry and he wanted to argue.

Another man initially sat next to the victim when Young got on the bus. When the man got off the bus a couple of stops later, Young came over to the victim and started arguing. At some point they began arguing about the cell phone the victim was using and the money Young had given to her. The victim said Young was mad because he thought she was leaving him. He wanted the cell phone back because she would not talk to him. The victim wanted to keep the cell phone because she was worried she would go into labor that night.[2]

Young threatened the victim and called her names. He said, "just wait until I get off this bus. None of these pussies are going to help you," referring to the people on the bus. The victim was afraid. She texted and called her aunt and asked for someone to meet her at the bus stop because Young was making threats.

When the victim got off the bus, Young grabbed the victim from behind and choked her with his arm so she could not breathe. The victim tried to get away by pulling his arm and screaming. The victim's aunt, who was across the street, started yelling and ran across the street while dodging traffic. The victim called for help saying Young would not let her go. Young punched the victim in the back of the head.

Young grabbed the victim by the arms and threw her around as he tried to get her purse. The victim also testified he tried to reach into her shirt to get the cell phone and money as they struggled. At some point, the victim told Young he could take the money and the cell phone, but asked him not to take her purse.

Young threw the victim into a chain-link fence. The victim stumbled over a rock and bounced off the fence. Young yanked the victim's purse off of her arm.

As the victim's aunt ran toward them across the street, Young told the aunt he would "beat [her] ass too." After taking the purse, Young taunted the victim's aunt saying, "go ahead and call the cops. We all know you are going to."

The victim sustained bruises to her arm and a knot on the back of her head. She complained of a headache in the back of her head. A police officer returned the victim's purse to her, but she did not get back her medication or other items. The victim experienced contractions and was bedridden because she did not have her medication.

An officer responding to the domestic violence call saw Young sitting at a bus stop. He had a lady's purse and a plastic shopping bag. The purse had things a woman would carry. Young had the odor of alcohol on his person and he admitted he had been drinking.

The victim was upset and fearful. She had bruising and reported pain to the back of her head and a knot on the back of her head. The officers noted injuries to the back of her head and her left arm. They did not touch her head. She declined medical treatment.

DISCUSSION

I

Young contends there was insufficient evidence of intent to support his robbery conviction because there was evidence they were arguing about the return of a cell phone he paid for and money he gave to the victim. Young suggests on appeal he did not intend to permanently deprive the victim of her purse, but only wished to retrieve his cell phone and money from her purse. We conclude there was sufficient evidence to support the jury's finding of intent to deprive for a finding of guilt on the charge of robbery.

"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The intent required for robbery may be met by either an intent to deprive another of property permanently or to " 'deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of [the property's] value or enjoyment.' " (People v. Aguilera (2016) 244 Cal.App.4th 489, 501, quoting People v. Avery (2002) 27 Cal.4th 49, 58.)

"We ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' [Citation.] … [Citation.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' " (People v. Brooks (2017) 3 Cal.5th 1, 57.) " ' "[O]ur role on appeal is a limited one." [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.' " (In re V.V. (2011) 51 Cal.4th 1020, 1026.)

There was evidence Young knew the victim was carrying medication in her purse to prevent preterm labor. Young not only tried to grab her purse, but he also tried to reach into the victim's shirt, where she typically carried her money and cell phone, as he choked the victim. The victim told Young he could have the cell phone and money, but asked him not to take her purse. Nevertheless, Young yanked the victim's purse away from her. Rather than opening the purse to look for the cell phone or money, he walked away with the purse as he taunted the victim's aunt.

When the officer contacted Young at a bus stop, Young was holding a lady's purse. The officer said the purse contained items a woman would carry, but did not mention medication. The victim stated her medication was missing when the bag was returned to her. She experienced contractions because she was unable to take her medication.

Young's action in taking the victim's purse when she asked him not to do so was consistent with his pattern of controlling what the victim did and did not have. There was evidence he would take her things or break them if he was angry. If she got her things back, they would be broken or dirty.

We conclude the circumstances presented by the evidence justify the jury's finding that Young intended to deprive the victim of her purse and its contents thereof either permanently or for an unreasonable period of time so as to deprive her of a major portion of its value.

II

Young contends the admission of evidence of prior uncharged domestic violence incidents as propensity evidence violated his constitutional due process rights and the court failed to weigh the prejudice of such evidence against its probative value as required by statute. We disagree.

"Character or propensity evidence, including evidence of a person's prior conduct, is generally inadmissible to prove the person's conduct on a specified occasion. ([Evid. Code,] § 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, '[t]he Legislature has … created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses ([Evid. Code,] § 1108, subd. (a)), and domestic violence, elder or dependent abuse, or child abuse ([Evid. Code,] § 1109, subd. (a)(1)–(3)).' " (People v. Disa (2016) 1 Cal.App.5th 654, 670.)

One of these specific exceptions is Evidence Code section 1109, subdivision (a), which provides in pertinent part, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] [s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." " '[T]he California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1232.)

Young acknowledges California courts have determined the admission of prior acts of domestic violence under Evidence Code section 1109 is constitutional following the same rationale as applied by the Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 917 in determining admission of evidence of prior sex offenses pursuant to Evidence Code section 1108 is constitutional. (People v. Cabrera (2007) 152 Cal.App.4th 695, 704 (Cabrera).) "[A]dmission of propensity evidence is not unfair so long as the trial court is required to balance the probative value of the evidence against its prejudicial impact under Evidence Code section 352." (Ibid.) Nevertheless, Young contends the reasoning in Falsetta was flawed and violated the long-standing policy of excluding propensity evidence in criminal matters. Young did not challenge at trial the constitutionality of admitting the evidence under Evidence Code section 1109, rather he argued the admission of such evidence was prejudicial under Evidence Code section 352. As such, he forfeited the due process contention. (People v. Partida (2005) 37 Cal.4th 428, 435 [a defendant "may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his Evidence Code section 352 argument"].) Even if we were to overlook the forfeiture, we conclude "the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)

Young also contends the court failed to engage in the process of balancing the probative value of the evidence against its prejudicial impact as required by Evidence Code section 352. If the court had properly engaged in the weighing process, he contends the court would have found the evidence more prejudicial than probative. We again disagree.

We review a trial court's ruling on the admissibility of evidence of prior domestic violence under Evidence Code sections 1109 and 352 for abuse of discretion. (People v. Disa, supra, 1 Cal.App.5th at p. 672.) "The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)

In this case, the court exercised its duty under Evidence Code section 1109 to weigh the probative value of admitting prior domestic violence incidents against the prejudicial impact of such evidence. After defense counsel argued the conduct involved in the current offense was "minimal" and argued the prior incidents were more prejudicial than probative, the court responded by saying propensity evidence of domestic violence is sanctioned by the Legislature under Evidence Code section 1109 and stated the evidence presented in this case was propensity evidence. The court stated, "The conduct that is being offered is recent conduct. … [T]he prior history between the two people, is relevant. [¶] And only in a situation where it would be prejudicial, meaning prejudicial to the point that it could impact the defendant's right to a fair trial, would it be excluded[.] And that is not this situation." This exchange demonstrates the court properly considered and fulfilled its responsibilities to weigh prejudice against the probative value of the evidence. "[A] trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213.) The record here reflects the court did so.

Finally, we are not persuaded the evidence of four or five prior domestic violence incidents admitted in this case (out of "hundreds" of prior incidents between Young and the victim) involved more inflammatory conduct than the conduct alleged in the charged offenses. Just because evidence is damaging to the defense does not mean it is prejudicial within the meaning of Evidence Code section 352. " '[T]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' The 'prejudice' referred to in Evidence Code section 352 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.'' ' " (People v. Jones (2017) 3 Cal.5th 583, 610.)

Although the injuries the victim suffered in prior incidents of domestic violence inflicted by Young may have been worse than those suffered in the current incident, the conduct of Young in the charged offenses was no less violent or disturbing than the conduct in the prior incidents. In this case, Young threatened to beat the victim as soon as she got off the bus and she could not be helped by others. He choked the victim when she got off the bus, struck her in the back of the head, and flung her into a fence in her eighth month of pregnancy. This conduct shows a level of anger, violence, and utter disregard for the safety and well-being of the victim (and her unborn child) commensurate with that demonstrated in the prior incidents.

In "enacting Evidence Code section 1109, the Legislature found that in domestic violence cases evidence of prior acts is particularly probative in demonstrating the propensity of the defendant. ' "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked." ' " (Cabrera, supra, 152 Cal.App.4th at pp. 705–706.)

As contemplated by the Legislature, the prior acts in this case were probative to demonstrate Young's pattern of behavior from consuming alcohol to becoming angry and violent. It also showed his continuing exercise of dominance and control over the victim. The prior incidents placed the current incident in context for the jury. The court considered even the robbery charge as part of Young's overall conduct of domestic violence toward the victim.

We conclude the court properly considered its statutory responsibilities to weigh the probative value of the evidence against its prejudicial impact. It did not abuse its discretion in deciding to admit the evidence of prior acts in this case and they were not unduly prejudicial.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

NARES, J.