P. v. Luna

Filed 10/30/07 P. v. Luna CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Richard Luna was convicted of making criminal threats (Pen. Code,  422), dissuading a witness by force or threat ( 136.1, subd. (c)(1)), and assault ( 240). The trial court denied probation and sentenced him to four years in prison. The court revoked his probation on a prior conviction and sentenced him to two years, to be served concurrently.

FACTS

Defendant and his ex-wife, Marcie, had a history of domestic violence. On April 20, 2006, Marcie took their eight-year-old daughter to defendants mothers house so the child could see her grandmother. Defendant arrived, surprising Marcie. When defendant went outside, Marcie and her daughter got up to leave. As they were getting into the car, defendant approached and got into the passengers seat. Marcie told him to get out, but he refused and told her she was going to give him a ride to someones house. She again told him to get out. He said he would not, and he started to get angry. He told his daughter that Marcie was not a good mother and told her not to listen to Marcie. He told her Marcie was a bitch. He yelled at his daughter and she started crying. Marcie told him to stop, but he said he was the childs father and he could do as he wished. He pushed Marcies sunglasses against the bridge of her nose. Marcies cell phone rang and she got out of the car to answer it. It was her husband and she told him what was happening. Defendant got out of the car, angrily came around and yelled in Marcies face. Marcie told him to stop yelling in her face or she would call the police. He told her he would kill her if she called the police. She took his threat seriously and was afraid. Marcie then saw that defendant was holding a knife in his right hand and she became even more frightened. She heard her daughter, who was also afraid, crying in the back seat of the car, so she tried not to reveal her fear. She believed defendant might hurt her or the child if he saw her fear. Defendants mother came out of the house and yelled at defendant to stop. At that point, he walked away.

After defendant left, Marcie comforted her daughter, who was crying. Marcie hugged her and told her everything would be okay. Then she got in the car and they left. She called 911, then she called her sister, whose car she was driving. She told her sister what had happened and asked her to bring her car. Marcie drove down the street and waited for the police and her sister. When her sister arrived, Marcie and her daughter were still crying. Marcie and her sister exchanged cars and Marcie left for her mothers house.

Marcies sister drove away in the opposite direction and saw defendant walking. She asked him why he was behaving that way with his daughter. He approached her car, put his finger in her face and told her it was none of her business. He was still holding a knife.

Prior Domestic Violence Evidence

Defendant and Marcie met in 1994. When they first started dating, defendant was very nice to Marcie. But later their relationship changed. Their daughter was born in 1997, and about six months later, defendant and Marcie separated for a while because defendant didnt want anything to do with [Marcie] anymore. Defendant would accuse Marcie of being with other men, and he refused to believe her denials. They would argue in their daughters presence. Marcie left and moved in with her mother. But after a few months, defendant wanted to work things out, and Marcie gave him another chance. They started seeing each other again, and Marcie moved back in with defendant in 1998. Things seemed to be better, but after about a month defendant started arguing again about her seeing another man. Marcie lost contact with her friends because defendant told her not to talk to them.

One night early in 1999, defendant came home drunk. Marcie was a few months pregnant. Defendant started arguing with Marcie, calling her names. He told her she was good for nothing. He pulled her by her long hair and started kicking her in the stomach. When she fell to the ground, he continued kicking her hard, and she experienced a lot of pain. She eventually got up from the floor. She thought about calling the police, but she was afraid of defendant.

Later that year, defendant and Marcie argued over the car keys. Defendant took the keys to the car and she followed him. She asked him where he was going and he said he would be right back. She told him he was not allowed to drive the car because he did not have a license. He became upset and started yelling at her, calling her names. He said he would need to get a radio out of the car, so she leaned in and tried to get the radio for him. When she did, he grabbed her hair and pulled her back, causing her head to hit the top of the cars door frame. He yelled and cussed at her and pulled her hair again several times, each time hitting her head on the door frame. He picked her up by the waist and threw her against a van parked near the car. She ended up on the grass, her head throbbing. When defendant left, she called 911.

On another occasion, after defendant and Marcie were separated, Marcie was driving north on the freeway to her apartment in Fresno. Defendant was in the passenger seat and their daughter was in the back seat. Defendant started arguing with Marcie. He pulled her hair and starting hitting her head with his fist. Marcie pulled over because she was afraid they would have an accident. When she stopped, defendant jumped out and ran across the freeway. Marcie did not call the police because she was afraid.

Then in 2001, Marcie was carrying groceries into her apartment. She left the door partly open while she set the bags down. When she turned around, defendant was inside her apartment. Marcie asked him what he was doing there and he did not answer. She told him to leave because he did not have any business there. He said he came to see his daughter and spend time with her. Marcie told him it was not the right time and he should leave. He refused and started cussing at her. She went to the telephone to call the police and defendant fought her for it. He pulled the cord out, grabbed Marcie by the hair, and threw her on the bed. Marcie was screaming and telling him to get off her. Their daughter came in and told him to stop. Defendant told the child to shut up and get out. Then he hit Marcies head with his fist. Marcie got up and went into the hallway. Defendant held a gun to her head and threatened to kill her. He held the gun there for more than a few seconds and Marcie was afraid. She told him to shoot her if it would make him a man. He just looked at her, then put the gun down and left. Marcie locked the door and called the police.

In 2002, defendant and Marcie divorced and she met her current husband. In 2004, Marcie and her current husband moved out of state.

Defense Evidence

Defendants mother testified she was present on April 20, 2006, when Marcie and her daughter came to her house for a visit. Defendant was at the house when they arrived and later he went outside to go with Marcie to the store. Defendants mother went outside, knocked on Marcies car window, and asked defendant what he was doing and where he was going. He told his mother not to worry because he was going to the store. He told her to go back inside. After she went back into the house, she heard her granddaughter crying and yelling, so she ran outside. Defendant and Marcie were sitting in the front seat. Defendants mother took the child out of the car. Marcie got out of the car and was talking on her cell phone. Defendants mother comforted the child and put her back in the car. Defendant came around and stood directly in front of Marcie. He seemed upset, but he said nothing. Defendants mother did not feel threatened in any way. Marcie told defendants mother that she was going to call the police, and defendants mother told her to go ahead and call them. Defendant had nothing in his hands. He just walked away. Marcie got back in the car and drove away. Defendants mother had never seen defendant physically abuse Marcie.

DISCUSSION

I. Constitutionality of Evidence Code Section 1109^[1]

Defendant contends section 1109 is facially invalid under the federal due process and equal protection clauses.^[2] As he acknowledges, these issues have been resolved against him. (People v. Falsetta (1999) 21 Cal.4th 903 [analogous  1108 does not violate due process]; People v. Price (2004) 120 Cal.App.4th 224, 240 [ 1109 does not violate due process]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [same]; People v. James (2000) 81 Cal.App.4th 1343, 1353 [same]; People v. Brown (2000) 77 Cal.App.4th 1324, 1335 [same]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 [same]; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420 [same]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 [ 1109 does not violate equal protection].) We agree with the holdings of these cases.

II. Evidence of Prior Acts of Domestic Violence

Defendant also asserts that the trial court abused its discretion under section 352 by failing to exclude evidence of his prior acts of domestic violence.

The enactment of sections 1108 and 1109 created an exception in sex offense and domestic violence cases to the long-standing common law and statutory rule excluding propensity evidence. [Citation.] Our Supreme Court has held that due process is not offended when the trial court determines the probative value of the propensity evidence outweighs its prejudicial effect, and properly instructs the jury on the presumption of innocence and the prosecutions burden of proof. [Citations.] (People v. James, supra, 81 Cal.App.4th at p. 1353, fn. omitted.)

Thus, admissibility under section 352 is a prerequisite to the introduction of evidence of prior incidents of domestic violence. [Citation.] (People v. Escobar, supra, 82 Cal.App.4th at p. 1096.) Under section 352, the trial court must balance the probative value of the evidence against its prejudicial impact. On appeal, we may not reverse the trial courts ruling under section 352 unless the court abused its discretion. (People v. Hart (1999) 20 Cal.4th 546, 606.) We will not disturb the ruling except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

On one side of the section 352 balance sheet is probative value. Evidence has probative value when it is relevant to the issues before the jurythat is, when it has any tendency in reason to prove or disprove a disputed fact in issue. (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Here, defendants prior acts of domestic violence against Marcie were relevant to prove both Marcies fear and the reasonableness of that fear, two elements of the criminal threat charge. To prove a violation of section 422, the prosecution is required to show beyond a reasonable doubt that (1) the defendant willfully threatened to commit a crime that, if committed, would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that it be taken as a threat (whether or not he actually intended to carry out the threat); (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threatening statement actually caused the other person to be in sustained fear of his or her own safety or for the safety of his or her immediate family; and (5) the threatened persons fear was reasonable under the circumstances. (Pen. Code,  422; People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) Sustained fear includes both objective and subjective components: the threatened persons fear must have been reasonable, and it must have been real. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) The surrounding circumstances, including the parties history, may be relevant to these determinations. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.) Here, defendants history of domestic violence against Marcie, including his prior threat at gunpoint to kill her, supported the conclusion that she took the later threat seriously and was actually and reasonably in fear. Evidence of the prior abuse was highly probative to the issues of the case.

On the other side of the balance sheet is prejudice, but the prejudice which exclusion of evidence under 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 defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in 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. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)

Section 1109 affects the practical operation of section 352 balancing because admission and consideration of evidence of prior uncharged domestic violence acts to show character or disposition is no longer treated as intrinsically prejudicial or impermissible, and the evidence of those acts is presumptively admissible. (See People v. Yovanov (1999) 69 Cal.App.4th 392, 405 [regarding analogous  1108].) 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. (People v. Johnson, supra, 77 Cal.App.4th at p. 419 [quoting legislative history].) [T]he 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. (Id. at p. 420.)

By enacting section 1108, which addresses the admissibility of uncharged sexual assaults in sexual offense cases, the Legislature recognized that the need for evidence of prior uncharged sexual misconduct is particularly critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial [citation]. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) The same motivation exists for admitting evidence of prior uncharged domestic violence acts in domestic violence prosecutions: [D]omestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused. (People v. Jennings, supra, 81 Cal.App.4th at p. 1313.)

Relevant factors in determining the prejudice resulting from admission of prior acts of domestic violence include whether the prior acts were more inflammatory than the charged act, whether the jury might confuse the prior acts with the charged act, whether the prior acts were too remote, and whether the defendant had gone unpunished for the prior acts. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139; People v. Harris (1998) 60 Cal.App.4th 727, 737-741.)

Here, some of defendants prior acts were clearly inflammatory, particularly the act in which defendant entered Marcies apartment uninvited, refused to leave, held a gun to her head, and threatened to kill her. This act, however, was not significantly more inflammatory than the charged act, in which defendant entered Marcies car uninvited, refused to leave, brandished a knife, and threatened to kill her. The prior acts were not remote in time (they occurred within about seven years time) and were committed against the same victim. The fact that the prior acts did not result in criminal convictions could have increased the risk of confusion because the jurors had to determine whether the uncharged acts occurred, and the jurors might have been inclined to punish defendant for those uncharged acts. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The presentation of the evidence regarding defendants prior acts, including expert testimony on domestic violence, consumed a substantial portion of the witness testimony. The prosecutors closing argument, however, focused on the particular elements of the crimes charged and how the evidence fit into those elements. The prosecutor carefully explained the limited use of the prior acts evidence, as did the trial court repeatedly during the presentation of that evidence.

Balancing all these factors, we find no abuse of discretion in the trial courts conclusion that the prejudice flowing from this challenged evidence did not substantially outweigh its probative value.

III. Instruction on Prior Acts of Domestic Violence

Defendant argues the trial courts giving of CALCRIM No. 852that the prior acts of domestic violence required proof by a preponderance of the evidenceviolated due process.^[3] Defendant acknowledges that the California Supreme Court has rejected the same argument as applied to the similar CALJIC No. 2.50.01 (People v. Reliford (2003) 29 Cal.4th 1007, 1016), but he bases his argument on a federal case (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812). In Gibson, the Ninth Circuit Court of Appeals held the 1996 version of CALJIC No. 2.50.01 was constitutionally deficient because it permitted the jury to find the defendant guilty of charged sexual offenses by merely a preponderance of the evidence and therefore constituted structural error within the meaning of Sullivan v. Louisiana (1993) 508 U.S. 275. The court acknowledged that the trial court did give at least one correct reasonable doubt instruction (CALJIC No. 2.01) and an instruction on the presumption of innocence (CALJIC No. 2.90), but the court held these circumstances did not remove CALJIC No. 2.50.01 from the realm of constitutional error because that instruction gave the jury an alternate means of conviction with a lesser standard of proof than is required by the Constitution. (Gibson v. Ortiz, supra, at pp. 824-825.)

Gibsonis inapplicable to the instant case for several reasons. First, the Gibson court dealt with the 1996 versions of CALJIC Nos. 2.50.01 and 2.50.1, not the more current instructions at issue in the present case. Second, we are not bound by the decisions of lower federal courts even on federal questions, although those decisions are persuasive and entitled to great weight. (People v. Estrada (1965) 234 Cal.App.2d 136, 145.) Finally, decisions of the California Supreme Court, such as People v. Reliford, supra, 29 Cal.4th 1007, are binding upon all the state courts of California, including this one. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject defendants argument.

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

VARTABEDIAN, Acting P.J.

_______________________________

GOMES, J.

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^[1]All statutory references are to the Evidence Code unless otherwise noted.

^[2]Section 1109, subdivision (a)(1) provides in relevant part: [I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

^[3]The trial court instructed the jury with CALCRIM No. 852 as follows:

The People presented evidence that the defendant committed domestic violence that was not charged in this case . [] 

Domestic violence means abuse committed against an adult who is a spouse or former spouse or person with whom the defendant has had a child.

Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

If the People have not met this burden of proof, you must disregard this evidence entirely.

If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit any of the charged offenses. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt. [] Do not consider this evidence for any other purpose. (Italics added.)