P. v. Alvarez

Filed 2/1/08 P. v. Alvarez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Joseph Alvarez was convicted after a jury trial of two counts of forced oral copulation (Pen. Code, 288a, subd. (c)(2)), one count of forcible rape (Pen. Code,  261, subd. (a)(2)), one count of inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a)), and one count of making a criminal threat (Pen. Code, 422), all of which crimes occurred over the course of an approximate 18-hour period at a residence where defendant was living. The victim of these crimes was Tracy Doe, who lived with defendant at the residence and was his girlfriend at the time.

At trial, in addition to the testimony of Tracy Doe concerning the charged crimes, there was testimony from three different women with whom defendant had previously been involved concerning past incidents of domestic violence he had inflicted on them. There was also testimony from a police officer who described having once observed defendant engage in violent behavior towards a fourth woman while the officer was pursuing a drug investigation involving the woman. Evidence concerning these past incidents was admitted at trial under Evidence Code section 1109,[1] which makes other acts of domestic violence admissible where the charged crime also involves domestic violence, as long as the court determines that the probative value of the evidence is not 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. ( 352.)

Defendant contends on appeal that section 1109 on its face violates due process, that the trial court abused its discretion in any event in admitting the prior domestic violence evidence, and that he received ineffective assistance of counsel for his lawyers failure to have objected on various grounds to the admission of this evidence. He further claims that the prosecutor committed misconduct in trivializing the concept of reasonable doubt during closing argument and that he also received ineffective assistance of counsel concerning this misconduct in that his lawyer, while objecting to this aspect of the prosecutors closing argument, did not request that the jury be admonished to cure the prejudicial effect of the prosecutors statements. He also contends that the prosecutor committed misconduct by her statements to the jury concerning typical behavior of domestic violence victims and that he received ineffective assistance of counsel for his lawyers failure to have objected to these statements. He finally contends that the trial court erred in denying his motion for new trial made on the grounds of ineffective assistance of counsel.

We reject defendants claims and accordingly affirm the judgment.

STATEMENT OF THE CASE

I. Factual Background[2]

Defendant and Tracy Doe began dating in 2004.[3] In March 2005, they lived together in a house in San Jose. The house was divided into four apartments and they shared one of the two downstairs units with a roommate, Rick Hansen. The house had an interior downstairs entryway, where there were two doors, each leading into one of the two downstairs apartments. There were also interior stairs leading up to the two upstairs apartments.

The front door to the apartment where Tracy and defendant lived opened into their bedroom, which had a walk-in closet covered by a curtain, and which contained a recliner chair, and two beds, one used by defendant and Tracy and the other used by Tracys then two- and four-year-old boys, L. D. and C. D., respectively. Their bedroom had another door, which led directly into Ricks bedroom. From Tracys and defendants bedroom, it was necessary to go through Ricks bedroom to reach both the bathroom and the kitchen, which was located at the back of the apartment. There was an exterior back door to the apartment off the kitchen, where there was another staircase leading to the upstairs apartments, this one outside the house. Tracys stepmother, Melissa Paxson, lived upstairs in the apartment directly above where Tracy and defendant lived.[4]

By February 2005, Tracy and defendant were engaging in regular arguments. On one such occasion, Rick called the police, who came and asked defendant to leave the house, which he did for a couple of days. Sometime that February, defendant and Tracy had an argument triggered by Tracy having spoken politely to a man she did not know on the telephone. The argument led to Tracy throwing and smashing the telephone and then to defendant hitting Tracy really hard in the nose with his hand, causing her pain and bleeding. Although Tracys children were not there, Melissa and Rick were both home during that argument. No one called the police on that occasion and Tracy did not seek medical attention or consider ending her relationship with defendant.

On another occasion before March 2005, Tracy was being treated in the hospital. Defendant was there with her and they were arguing about money. Defendant was loudly calling Tracy offensive names in front of Tracys son and her sister.

Sometime in the few weeks after the February 2005 incident in which defendant hit Tracy in the nose, they got into another argument. This time, Tracy wanted to go to the store but defendant did not want her to and would not let her. He grabbed her and would not let her leave their bedroom. Rick was home at the time and Melissa was inside Tracys and defendants apartment. Tracy made it out of the bedroom and asked Melissa to drive her somewhere, which she did. Tracy did not come home that night, returning only after Melissa was able to verify that defendant was not at home. Melissa at some point called police about the incident. An officer later spoke to Tracy by telephone and asked questions about defendant.

Because of Tracys and defendants regular arguments and Melissa having observed defendant blocking Tracy from freely moving around or leaving, Melissa and Rick at some point devised a code to use in order to ask Tracy if she were alright or needed help without defendant knowing what they were really asking. The code as devised could be initiated by Melissa or Rick asking Tracy a particular question, which the three of them understood as really asking Tracy whether she needed help. As such, the code was not designed to be initiated by Tracy herself.

Tracy, who was in violation of felony probation at the time, was at home on Monday, March 7, 2005.[5] Rick was also home and Melissa was upstairs in her apartment. Defendant had not come home the night before and he came home that night at about 10:00 oclock. Tracys two boys arrived home later, though Tracy thought they would not be coming home and would instead spend the night with her daughter.

Defendant was accompanied by his friend, Jimmy. Jimmy left after about 45 minutes but later that night spoke to Tracy by telephone.[6] Jimmy informed Tracy in that conversation that defendant had been making arrangements to meet another woman by having the woman pick him up at the street corner near the apartment. At some point that night, the woman called defendant on his phone. Defendant handed his phone to Tracy, who questioned the woman about her plans to pick up defendant. The woman denied having any such plans. But Tracy confronted defendant about his intention to meet the other woman anyway and they argued in their bedroom, where Tracys children were also present, for many hours late that night and into the early morning hours of March 8, 2005.

As the night wore on, defendant would not let Tracy go to sleep, preventing her from doing so in the recliner chair or with her children. Defendant ordered Tracy to get in bed with him but she did not want to. She complied anyway because she was afraid he might hit her. Once in the bed, at around 2:00 a.m., defendant forced Tracy to orally copulate him. He slapped her, grabbed her by the hair, and threatened her. Tracy complied for a few minutes but defendant did not ejaculate. Tracys children were asleep at the time.

During the night, L. D. was crying and waking up C. D. Tracy put L. D. on the floor between the two beds so he would not wake up his brother. At around 4:00 oclock in the morning, Tracy lay down on the floor with C. D. At around 7:00 a.m., defendant woke Tracy up and again ordered her to get in their bed, reminding her that she had a job to finish, meaning giving him oral sex.[7]

At some point in the early morning of March 8, 2005, Tracy used Ricks phone, located in his room, to call her 23-year-old daughter, Tabatha, to ask Tabatha to come pick up the boys up but Tabatha was grouchy and hung up the phone. Using the same phone, Tracy also called her sister, Tammy, numerous times that day and made the same request. Because of defendants proximity while Tracy was on the phone and his insistence that she was not leaving the house, Tracy was afraid and did not feel that she could explain in those telephone conversations what was really going on or say that she herself needed to be picked up, though her plan was to leave with her children. For the same reason, Tracy did not go to Rick, who was in a wheelchair, to say that she needed help, although Rick heard her at one point tell defendant to get off of her.[8] And defendant would not let Tracy talk to Melissa, whom he did not like. Throughout the course of all the events of March 7 and 8, 2005, described here, no one used the secret code that Rick and Melissa had devised to ask Tracy whether she was in trouble or needed help.

In the morning of March 8, 2005, Tracy surreptitiously went through Ricks room and the kitchen, out the back door, and upstairs to Melissas apartment. Although she hadnt spoken to Melissa for weeks, Tracy calm[ly] asked Melissa, who was alone and had been asleep, to give her and her boys a ride away from the house. Tracy did not tell Melissa that she was in trouble because she was afraid to do so, but Melissa had some idea by the way Tracy was acting that something was wrong.[9] Melissa got up and drove a car to which she had access from the back carport to a place near the back door to the house, where she left it for Tracy and her boys to get into. Melissa went back inside the house.

Tracy began packing a bag with some things for the children in order to leave and she put the bag in the back of the waiting car. Defendant told Tracy to put everything away and that she wasnt leaving. In spite of her protests and efforts to leave, defendant grabbed Tracy near the car and forcefully pushed her, blocking her path with his body, and made her go back into the house, through the kitchen and Ricks room and into their bedroom.[10] Defendant also retrieved the bag Tracy had put in the car and threw it across the bedroom. Once they were back in the bedroom, defendant locked the doors from the inside and choked Tracy with his hands to the point where she couldnt breathe. He also threatened to hit her with his fist.[11]

After this altercation, Tracy walked out of the house in an attempt to get to a pay phone to call for a ride. She went out the front door, which she unlocked, carrying both children, who were not fully dressed or wearing shoes. Tracy did not have her purse as defendant had taken it from her and hidden it. Defendant followed Tracy up the street and told her to sit down because he wanted to talk to her. He also spit at her and began to loudly inform her that he would humiliate her in front of the whole neighborhood and everyone would know what a fucking whore and a cunt she was. He also said that she couldnt leave with the kids when they were not fully dressed as if they were out of the Beverly Hillbillies.

Tracy told defendant that she didnt want to talk but she eventually sat down as the kids were heavy to carry. Defendant then took L. D. back into the house, saying he was at least going to get the child dressed. When defendant and L. D. did not return, Tracy took C. D. back to the house and waited at the front porch. But C. D. said he needed to go to the bathroom, so Tracy took him back inside the house, avoiding her and defendants bedroom. While inside the house, Tracy could see that L. D. was still not dressed and he was watching television in the bedroom. L. D. came toward Tracy when he saw her and she picked him up. While she was holding L. D., defendant pushed her into the bedroom and she fell to the floor. Defendant shut the bedroom door and locked it from the inside and threw a glass of soda onto the floor by the door, where it broke spreading pieces of glass.[12] Defendant would not let Tracy clean up the glass and he pushed her onto the bed.

Defendant would not let Tracy get off the bed and kept telling her that she had a job to finish. He straddled her with his legs across her chest and told her to suck his dick and to grab it or he would hit her or hurt her. He slapped her and told her she would have a shiner, and pulled her hair. He also told her that she belonged to him, that she would do whatever he wanted her to that day, that he would have other people come over to have sex with her, that she would like it, and that there was nothing she could do about it. While defendant straddled her, Tracy was afraid so she complied with his demand for oral sex for three or four minutes and again he did not ejaculate. During this time, the children were watching television but they kept looking at Tracy and defendant. L. D. came over to the bed after being kicked in the lip by C. D. and Tracy sat up to attend to him.

At one point, Tracy went to the kitchen, where she was one to two feet from the back exterior door, to make breakfast for the children. Defendant told her she was taking too long and he came out of the bedroom to make her return there. Tracy was afraid and she complied.

Tracy had been wearing underwear and a bra and shorts and a tee shirt but at some point while they were on the bed, defendant ordered her to take off her clothes. She took off her shorts and shirt but defendant ripped her bra off and broke it.[13] Because Tracys children were in the room, defendant attempted to cover himself and Tracy with a blanket. Then, while restraining her, [h]e pried [her] legs open [with his hands] and started having sex with [her]. Tracy was afraid and could not physically move away from defendant. She let him know that she did not want to have sex with him. He responded by asking her whether she hated him yet and assured her that when he was finished, she would hate him. They had intercourse for a couple of minutes and defendant did not ejaculate.[14]

At one point, defendant allowed Tracy to go to the bathroom but would not let her put on a bra or underwear in order to do so, only permitting her to wear her shorts and tee shirt. On the way to the bathroom, Tracy went through Ricks room and grabbed his telephone. From the bathroom, she called her sister again to tell her to hurry up and come get the boys. When talking to her sister, Tracy did not ask for help or say that defendant was hitting or choking her or sexually assaulting her because she was afraid. While Tracy was in the bathroom, she saw defendant peering in the bathroom window, which he opened from the outside. Defendant asked Tracy what the fuck [she] was doing and told her  to get back in the fucking room. 

When Tracy returned to the bedroom, defendant called her into the walk-in closet in which he was standing. When she went in there, he grabbed her by the hair and neck and shoved her onto some plastic boxes on the floor at the rear of the closet. He unzipped his pants and told her to orally copulate him and that if she were to do anything to him, like bite him or try to get away, he would knock [her] the fuck out or kick [her] in the head. Defendant also bit Tracys nose and forced her to orally copulate him to the point where she couldnt breathe and vomited. While this was going on, L. D. kept coming over to the closet and trying to look under the curtain that covered it until defendant finally let Tracy go.

Tracy told defendant repeatedly that she wanted to leave. He told her alternately that she could leave if she orally copulated him or did his laundry and that if she did leave, he would kill her with the knife he had in his pocket by sticking her in the neck with it. He also said that he would go after [her] daughter. Tracy was afraid of what defendant would do and she considered his behavior unpredictable.

Sometime between 2:30 and 4:00 p.m. of March 8, 2005, Tracys sister Tammy and her husband Sam arrived at the house. According to Tracy, they drove up while defendant was for a third time forcing her to orally copulate him and then Sam knocked on the door. Defendant answered the door and Tracy pushed past him and Sam, on through Ricks room and the kitchen, and out the back door to her sisters van. Tracy was visibly upset and crying. She told Sam and Tammy that she hated them for not coming sooner. She later told Tammy what had happened, i.e., that defendant had raped [her] and had been beating [her] up and not letting [her] leave. Tammy observed red marks on Tracys neck and Tracy said they were from where defendant had choked her. Tracy asked Tammy to go into the house to get the boys and Tracys purse, which she and Sam did. While Tracy was waiting in the van, defendant came out and told her to get back in the house or he would stick [her] in the neck with his knife. Later, Tracy also told Sam that she had been raped.

Tracy went to a friends house in Milpitas for a couple of hours and then to a friend of a friends house in Pleasanton, where she thought she would be safe from defendant and where she stayed for a week. Tracy did not immediately report the events to the police because she was afraid and because she did not want defendant to go to jail; she still loved him but just wanted to be away from him for awhile. But on March 9, 2005, after thinking about how wrong everything was, Tracy did call San Jose police and report the events of March 7th through 8th, as well as her probation status. She was also interviewed by police in the following week. When she was at the police station on March 9, 2005, she had bruises on her arms, on her sides, and on the inside of her thighs but only the bruises on her arms were photographed.[15] The officer with whom she spoke on March 9, 2005, took a recorded statement.[16] Tracy then returned to the house in Pleasanton where she had gone for safety after leaving the house the day before.

While in Pleasanton on or about March 14, 2005, Tracy received a midnight telephone call from her daughter, who apparently handed the phone to defendant. He was speaking very quickly and was difficult to understand but he wanted to know from Tracy why the police were after him. After that first phone call, defendant called back four or five times and left threatening messages on the answering machine.[17] He said he knew the location of the house in Pleasanton, that he was coming there and bringing other people and guns and that he would kill everybody. Tracy called the Pleasanton police right after this series of calls, and officers responded to the house at about 4:00 a.m. in the morning of March 14, 2005. While police were there, defendant called again and spoke to one of the officers, who said that defendant was speaking very rapidly and sounded agitated and volatile. Defendant confirmed to the officer on the phone that he had made the earlier calls to the same house, and that he knew where it was located, and that he was coming there. The officer took Tracy to the Pleasanton Police Department where she filled out a written report. In her statement, Tracy, who did not keep a calendar, wrote that she had left her apartment on March 7, 2005, not the next day, and had not returned in that week.

Defendant was arrested by San Jose police and interviewed by Detective Tran on March 14, 2005, after having made the phone calls to the house in Pleasanton where Tracy was staying. From defendants behavior, Detective Tran believed him to be under the influence of a controlled substance. The detective told another officer that defendant was bombed. But defendant nevertheless admitted that he and Tracy had argued about his plan to meet another woman and he said that he had brought Tracys son inside the house to get dressed out of concern for L. D.s welfare. Defendant also admitted that he might have put his hands on [Tracys] neck or grabbed her hair or her neck to defend himself. And he said that he had grabbed her right wrist and pulled it behind her head. Defendant also asserted to Detective Tran that Tracy had given him consensual oral sex in the closet.

Tracy later wrote to defendant in May 2005 while he was in custody awaiting trial and sent him photographs of his children. She expressed in her first letter something to the effect that she hoped he was well. In her second letter, she spoke of her feelings for defendant and her desire not to think about blame or responsibilities, because it no longer matter[ed]. She also told him that he would be forever part of [her] life and that she would never feel as safe and secure as [she was] when [she] was loved by him and that she would probably never feel that way about anybody again. She signed off the second letter by saying,  always a place in my heart that is only yours, but you already know that. Love Tracy.  She wrote to defendant to achieve some kind of closure because after what had happened, [their relationship] was really over. Defendant wrote to Tracy as well, suggesting that he should have married her.

II. Procedural Background

Defendant was charged by amended information with forced oral copulation in violation of Penal Code section 288a, subdivision (c)(2) (counts 1 and 5); forcible rape in violation of Penal Code section 261, subdivision (a)(2) (counts 2 and 6); inflicting corporal injury on a spouse or cohabitant in violation of Penal Code section 273.5, subdivision (a) (count 3); and making a criminal threat in violation of Penal Code section 422 (count 4). The amended information further alleged that defendant had suffered a prior conviction within the meaning of Penal Code section 667.5, subdivision (b), for involuntary manslaughter and a prior strike within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12.

On defendants motion, the court bifurcated the trial of the prior conviction allegations. Defendant was then advised of his right to a jury trial with respect to these allegations and both he and the People waived that right.

At the jury trial of the charged offenses, the prosecution called Tracy and four section 1109 witnesses, among others. The defense case consisted of Tracy being recalled for further testimony.

After the presentation of the evidence, closing argument and jury instructions, the jury began their deliberations. After nearly four hours of deliberation, the jury requested that Tracys testimony be read back. After completing their review of this testimony at the end of the next day, the foreperson told the court that the jury had reached verdicts on counts 1 through 5 and had reviewed Tracys testimony but were deadlocked on count 6, the second rape charge, and that further deliberation would not break the deadlock. The jury members confirmed this impasse in polling. The jury then rendered their verdicts on counts 1 through 5, finding defendant guilty on all counts, and the court declared a mistrial as to count 6. The court later found true the prior conviction and prior strike allegations.

Through new counsel, defendant filed a motion for a new trial and a Romero[18] motion requesting the court to exercise its discretion under Penal Code section 1385 to dismiss the prior strike. The grounds for the new trial motion included that defendant had received ineffective assistance of counsel at trial in that his lawyer had conducted insufficient investigation regarding alibi witnesses who would have testified that defendant was somewhere else on the night of March 7 and into March 8, 2005, and that his lawyer had failed to adequately cross-examine prosecution witnesses. Grounds also included that the court had erred in failing to strike the prosecutors comments in argument concerning reasonable doubt and that the prosecutor had committed misconduct in so arguing. The defendant also submitted his own handwritten 36-page letter with exhibits to the court in support of his request for new trial. Among other things, the letter challenged the evidence submitted against defendant at trial and urged that his counsel had inadequately performed in handling his defense.

The People opposed both motions and the court held an evidentiary hearing at which defendants trial counsel was called as a witness. Defendant waived the attorney-client privilege and counsel testified that he had discussed defense strategy and most trial tactics with defendant, and that his choices as to what defense witnesses to call or not call and the areas in which to pursue cross-examination of prosecution witnesses were all part of his trial tactics. The court agreed and denied the motion for new trial. The court later denied the Romero motion.

Substantially following the recommendation of the probation report, the court sentenced defendant to a total term of 43 years, four months, representing the midterm of six years on counts 1, 2, and 5, each doubled to 12 for the prior strike; the midterm of three years on count 3, doubled to six for the prior strike; and one third the midterm of eight months on count 4, doubled to 16 months for the prior strike.[19] The court struck the one-year punishment enhancement under Penal Code section 667.5, subdivision (b), and imposed a $10,000 restitution fine under Penal Code section 1202.4, subdivision (b), and a parole revocation fine in like amount under Penal Code section 1202.45, which was suspended.[20] Defendant timely appealed from the judgment.

DISCUSSION

I. Defendant Has Not Shown Reversible Error With Respect to the Section 1109 Evidence

A.Defendants Claims

Defendant first challenges the constitutionality of section 1109, asserting that it violates due process. He next contends that the trial court erred in admitting the section 1109 evidence in that it did not withstand a section 352 analysis because the prejudicial effect of its admission outweighed its probative value. He contends that the evidence was dissimilar to the charged offenses, one of the incidents was remote in time, the jury was not informed of whether defendant had suffered any prior convictions as a result of the past incidents, and the evidence was inflammatory and cumulative. He argues that these factors resulted in a prejudicial effect that outweighed the evidences probative value and therefore the section 1109 evidence should have been excluded under section 352. He finally argues that there was no evidence that Shalan Slagle was even in a relationship with defendant such that if he did assault her, the incident qualified and was admissible as domestic violence under section 1109, subdivision (d)(3).

B.Other-Domestic-Violence Evidence

Section 1109 permits the introduction of evidence of prior acts of domestic violence, subject to its exclusion if its probative value is substantially outweighed by undue consumption of time, or substantial danger of undue prejudice, or of jury confusion. Except as provided in subdivision (e) or (f), in 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^[[21]] if the evidence is not inadmissible pursuant to Section 352. ( 1109, subd. (a)(1).) Subdivision (d) of section 1109 defines domestic violence as follows: As used in this section; [] . . . [] (a) Domestic Violence has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, domestic violence has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.[22]

In the case of charged crimes of domestic violence, section 1109 provides an exception to the long-standing common law and statutory rule excluding propensity evidence, i.e., the general proscription against the introduction of other acts to show defendants predisposition to commit the charged crime. (People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. omitted; see also People v. Jennings (2000) 81 Cal.App.4th 1301, 1313 (Jennings).) In that regard, it is based upon a legislative determination that policy considerations warrant the admission of other-domestic-violence evidence where its exclusion is not mandated by section 352. (People v. Johnson (2000) 77 Cal.App.4th 410, 419-420.)

As noted, under section 1109, the admissibility of other-domestic-violence evidence is determined, in part, on whether it is inadmissible under section 352. Consideration of proposed other-domestic-violence evidence in light of section 352 provides an essential safeguard against introduction of such evidence where its admission could result in a fundamentally unfair trial. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028.) A trial courts admission of other-domestic-violence evidence is subject to its sound discretion, and such evidentiary ruling will not be disturbed on appeal absent a showing of abuse of that discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch); People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 (Poplar).) The courts exercise of discretion under section 352 will not be reversed without a demonstration that such discretion was exercised in an  arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

C. Section 1109 Does Not Violate Due Process

Preliminarily, we address the constitutionality of section 1109 because defendant contends, for the first time on appeal, that section 1109 violates due process. As he acknowledges, section 1109 has survived constitutional challenges, courts already having concluded that admission of other acts of domestic violence under section 1109 violates neither equal protection (Jennings, supra, 81 Cal.App.4th at pp. 1310-1313), nor due process (Id. at pp. 1309-1310; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Hoover, supra, 77 Cal.App.4th at pp. 1025-1029; People v. James, supra, 81 Cal.App.4th at p. 1353; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson, supra, 77 Cal.App.4th at pp. 417-420). These cases relied on People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta)), in which our high court held that a similar statutory scheme under section 1108permitting the introduction of other sex crimes to show propensity to commit charged sex crimes as long as the propensity evidence is not excludable under section 352did not violate the due process clause. The proper exercise of a courts discretion under section 352 provides the constitutional safeguard to ensure a fair trial.

We agree with those courts applying Falsettas rationale to section 1109 and we accordingly reject on the merits defendants forfeited claim that section 1109 is unconstitutional as violative of due process. (People v.Sanders (1995) 11 Cal.4th 475, 510, fn. 3 [federal constitutional claim waived on appeal if not raised below]; Evid. Code 353, subd. (a); People v. Kipp (2001) 26 Cal.4th 1100, 1124-1125 [specific objection in court below necessary to preserve that challenge to admission of evidence].)

D. The Trial Court Did Not Abuse its Discretion in Admitting the Section 1109 Evidence

1. In Limine Proceedings

The prosecution witness list for trial included Stephanie Szoke, Liza Speer, Richael Vallone, and San Jose Police Officer Binder, all of whom were intended to be called under section 1109.[23] The prosecution also provided in limine what were in essence offers of proof with respect to each of these witnesses and the court heard argument on the admissibility of the evidence.

Regarding the proffered police officer testimony about defendants alleged assault of Shalan Slagle, defense counsel objected on the basis that the assault did not rise to the level of [section] 1109 evidence, especially because the victim herself denied that she had been attacked. Counsel asserted that the court would have to hold a mini-trial on whether or not and what the nature and extent was of who attacked whom first and that the evidence should therefore be excluded under section 352. He also asserted that this alleged assault was dissimilar to the other ones. But he did not raise any issue with respect to whether defendant and Shalan were in a dating, cohabitant, or other kind of relationship that could give rise to domestic violence under section 1109.

Arguing for admission of the officers testimony, the prosecutor emphasized that the incident involved defendant choking Shalan, one of the forms of assault that defendant had used against Tracy.

The court concluded in the end that since all the witnesses to the incident involving Shalan were available, the matter would not consume much time, and credibility and impeachment issues went more to the weight, evidence concerning defendants alleged assault of Shalan was admissible under section 1109.

With respect to the testimony of Liza Speer, the prosecutor emphasized the similarity of defendants conduct in hitting her in the nose on one occasion, for which he was convicted of violating Penal Code section 243, subdivision (a), and engaging in physical violence at least 10 other times during a seven-month period. Defense counsel raised no objection, submit[ting] that one, and the court ruled the evidence admissible under section 1109.

Concerning the testimony of Richael Vallone, the prosecutor offered that defendant had gotten into an argument with his girlfriend and physically assaulted her by pulling her hair or holding her by her hair, as he had done to Tracy, resulting in injury to the victim and a misdemeanor conviction for defendant. Defense counsel likewise submitted as to this evidence and the court ruled it admissible under section 1109.

As to the testimony of Stephanie Szoke, the prosecutor emphasized defendant having hit her twice in the face in front of her child some eight years before, and having obstructed her ability to leave the house. This assault resulted in injury to Szoke and another misdemeanor conviction for defendant. Defense counsel disputed the prosecutors accuracy in describing the incident and objected to its remoteness in time. He also alluded to an objection under section 352 based on cumulativeness in light of the courts rulings on the admissibility of the other more recent section 1109 evidence. The prosecutor noted section 1109s presumptive 10-year cut-off and pointed out that there was another nine-year-old domestic violence misdemeanor conviction that she was not offering.

After hearing counsels arguments, the court ruled the evidence concerning Stephanie Szoke admissible under section 1109.

2. The Section 1109 Evidence Offered at Trial[24]

Stephanie Szoke testified at trial that she was living with defendant in August 1997. She called police because he had assaulted her during the course of an argument, which had begun because Stephanie had wanted to take a cab to a friends house and defendant did not want her to leave or to spend money on a cab. Stephanies then two-and-a-half-year-old daughter was present during the argument in which defendant was calling Stephanie offensive names. Defendant at one point got up and hit Stephanie, punching her twice in the face. The force of the blows knocked her back and to the ground and she was unconscious for a few seconds. After coming to, Stephanie got up and tried to get out the front door with her daughter but defendant held her up against the door and choked her. Stephanies daughter asked defendant to stop. After he did, Stephanie grabbed the phone and her daughter and went out the door, passing by defendant. Defendant told her that she wasnt leaving and that if he had to drag [her] ass back in and beat [her] ass, he would. Defendant also threatened that if anything ever became of this incident, he would kill her. But she left anyway and got in the cab that she had previously called. Stephanie called 911 and sought victim counseling. Police responded and Stephanie was taken by ambulance to the hospital.

Defendant was Richael Vallones boyfriend in July 1999 and they were living together. Richael spent the night at a girlfriends house, near where defendant found her the next morning walking down the street. He was in his car and he said to Richael, in front of her friend and her friends neighbors, [D]id [you] have fun, you fucking bitch, last night, referring to the fact that she hadnt come home the night before. They began to argue and defendant got out of his car and proceeded to try to take Richaels car keys away from her. She wouldnt let him have the keys and she tried to walk away but he grabbed her by the hair, twisted her arm, and threw her into a tree, freeing up her keys. Richael suffered a scratch on the back of her neck and a scrape on her elbow. One of the neighbors called the police.

Defendant had dated Liza Speer for about seven months and they split up sometime before January 2001. But at that time, he was living with someone else and seeing Liza on the side. Liza went to the home of some friends she had met through defendant on New Years Day, 2001. Defendant was there when she arrived. They began to argue because defendant was upset that Liza was at his friends home after they had broken up. He told Liza to go home and to get the F out, using the F word and calling her [t]he F bitch. Liza responded by calling him a fing punk for which he came from the living room over to the kitchen table where she was sitting with other people and popped her in the mouth. He also said,  No one talks to me that way and gets away with it  and that he would hit her again. Wendy, who lived at the house, told defendant to leave since it was a no violence house. He responded by saying,  What the F are you going to do about it?  One of the other people there then called the police.

When the police arrived, Liza did not want to talk to them because she was afraid defendant would hit her again, as he had done 10 to 20 times before. The police left but returned that evening to see if Liza would press charges and her friends convinced her to talk with an officer. She told the officer what had happened that day and of the injury to her lip as a result of defendant having hit her. She also told them that defendant had hit her before. He had left her with bruises on prior occasions but she had never reported these incidents to police because she was afraid for her own safety and that of her daughter. Defendant had previously told Liza that he was going to cut [her daughter] up in little pieces and [Liza] would have to watch. Defendant had also called Lizas mother and in a veiled threat said that he knew where she lived. Because of her fear of defendant, Liza at one point moved to Modesto to live with her parents. Liza also testified that she knew Shalan Slagle and that while Liza was dating defendant, he spent a lot of time with Shalan: [I]t was to the extent that [Liza] was even accusing those two of being together.

The prosecution called Officer Binder under section 1109, who testified that while observing Shalan Slagle from his car from 40 feet away in connection with an undercover narcotics investigation in April 2003, he saw her and defendant arguing and he saw Shalan try to take away defendants cell phone. Defendant responded by placing his hand around her neck and pushing her away, which was followed by defendant getting very close to her face. Concerned for Shalans safety, the officer and his partner got out of their car and approached Shalan and defendant, detaining them.[25] The jury was informed of counsels factual stipulation that if Shalan herself were called as a witness, she would testify that defendant had never assaulted her.

3. Jury Instructions and Argument Regarding Section 1109 Evidence

The jury was instructed under section 1109 concerning the evidence on which they could find by a preponderance of the evidence that defendant had committed prior offenses involving domestic violence and their ability if they so found to infer that he was likely to commit and did commit the crimes of which he was accused. They were also instructed that even if they found that defendant had previously committed domestic violence, that alone was insufficient to prove beyond a reasonable doubt that he committed the charged offences. They were further instructed that their consideration of the section 1109 evidence was limited to this purpose.

The prosecutors closing argument focused on the section 1109 evidence in painting defendant as a violent man and one who beats each woman that hes with, tries to control them. The prosecutor went through the testimony of each of the prior victims highlighting elements that were in common with the present charges such as the defendants use of particular vile language, his hitting the victims in the face and choking them, his abusing the victims in front of other people, including their children, his preventing the victims form leaving, and threatening harm if they were to report defendant to police. The prosecutor also highlighted the section 1109 victims fear of defendant and their reluctance to testify against him, coming into court only through the power of subpoena. The prosecutor also noted, as emphasized by defense counsel, that a conviction hinged on Tracys credibility.

With regard to Shalan, the prosecutor referred to her in argument as defendants girlfriend over defendants counsels objection for assumption of facts not in evidence. That objection was overruled and the jury instructed that what the attorneys say is not evidence and that the jurors were to rely on their own recollection of the evidence. The prosecutor then argued that defendants relationship with Shalan could be circumstantially inferred through Lizas testimony that she thought Shalan and defendant were romantically involved.

Defense counsel reminded the jury in argument that defendant was not on trial for the section 1109 incidents.

4.Admissibility of the Section 1109 Evidence

Except with respect to the evidence concerning Shalan Slagle, as to which there was no objection about the lack of a showing that the victim was in a qualifying relationship with defendant under section 1109, the prior domestic-violence evidence fell squarely within this section.Even with respect to the Slagle evidence, apart from the question of her relationship with defendant, this too constituted domestic violence evidence under section 1109. We therefore consider the section 1109 evidence qualitatively to determine whether the court abused its discretion by admitting it under section 352. And we will return to the question whether the Slagle testimony qualified as domestic violence evidence under section 1109.

We first consider the extent to which the section 1109 evidence had probative value. The evidence consisted of at least four instances of domestic violence allegedly perpetrated by defendant. The instances consisted of conduct very similar to the charged offenses, in particular respects as to each. They involved defendants abuse of the victims, most times in connection with an argument or conflict, where he directed obscene language and threats at them and/or obstructed their ability to move freely and where the form of physical abuse commonly involved choking, hitting the victims in the face, and/or pulling or restraining the victims by their hair, all of this behavior often in front of other people including the victims children. (See Branch, supra, 91 Cal.App.4th at p. 285 [uncharged offense has greater probative value if very similar in nature to the charged offenses].) Although it is true here that the prior incidents happened on brief, discreteoccasions and were not drawn out over an extended period of time as in the case of the charged offenses, we disagree with defendant that this single difference qualitatively makes the prior instances dissimilar for purposes of assessing their probative value.

Furthermore, the probative value of the section 1109 evidence was heightened by the fact that each past incident was entirely independent of the charged offenses. Either the victims reported the incidents to police or a third party did so at the time the instances occurred, or in the case of Shalan Slagle, a police officer personally observed the assault. As the Supreme Court has stated: The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense. For example, if a witness to the uncharged offense provided a detailed report of that incident without being aware of the circumstances of the charged offense, the risk that the witnesss account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt); see also Branch, supra, 91 Cal.App.4th at p. 283, fn. 2.)

Borrowing from the courts reasoning in Poplar, supra, 70 Cal.App.4th at page 1139, the section 1109 evidence in this case was extremely probative, showing defendants propensity for violence against domestic partners. It was, in our view, the classic type of evidence that is permitted by the statute.

Since the section 1109 evidence had a high degree of probative value under section 352, we must balance against that probative value various considerations that might support exclusion of the evidence, including: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) [the] remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (Branch, supra, 91 Cal.App.4th at p. 282; Poplar, supra, 70 Cal.App.4th at p. 1139; Jennings, supra, 81 Cal.App.4th at p. 1315; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)[26]

Defendant contends that the section 1109 evidence was inflammatory, citing only that the Stephanie Szoke incident occurred in front of her young child. But this factor is present with respect to the charged offenses, making the Szoke evidence no more inflammatory. (See Poplar, supra, 70 Cal.App.4th at p. 1139 [testimony of prior domestic violence that was no more inflammatory than the charged crime held admissible under 1109 and 352].)

Concerning the second Branch factor, defendant contends that the possibility of confusion of issues was high because the jury was not informed whether defendant had been convicted with respect to any of the prior incidents. The court had been told during in limine proceedings that defendant had suffered convictions as a result of three of the incidents and police were obviously involved with respect to the Slagle incident, two officers having observed it. Later, the jury was told that police were called or had responded to each of the four prior incidents, though the jury was not informed about any prior convictions. Where a jury is not so informed, the danger is that the jury will be confused because they will have to determine whether the prior incidents in fact occurred and it is possible that the jury may have wanted to punish [defendant] for committing the prior uncharged offenses, rather than assessing his guilt or innocence of the charged offenses. (Branch, supra, 91 Cal.App.4th at p. 284; see also Ewoldt, supra, 7 Cal.4th at p. 405.)

As in Branch, we see no evidence that the jury here was so confused. They were properly instructed with respect to the section 1109 evidence (i.e., CALJIC Nos. 2.50.02 and 2.50.1) and they were reminded by defense counsel in argument that defendant was on trial only for the charged offenses. The court advised the jury that it could (but was not required to) conclude that evidence of the uncharged acts of domestic violence demonstrated in defendant a propensity toward domestic violence and that the section 1109 evidence could not be used, by itself, to convict defendant. (See Falsetta, supra, 21 Cal.4th at p. 920 [cautionary instruction concerning admission of uncharged-sex-offense evidence under  1108 will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a bad person with a criminal disposition].) We thus conclude that while there was the possibility of jury confusion created by admission of the section 1109 evidence, this possibility was minimal and defendant cites to nothing to show that this possibility was actualized.

Consideration of the third Branch factorthe remoteness of the past incidents of domestic violencelikewise does not suggest exclusion of the section 1109 evidence here. Defendant only raises this contention in any event with respect to the eight-year-old incident concerning Stephanie Szoke. But section 1109, subdivision (e), contains a presumptive 10-year cutoff, unless the court determines that the admission of this evidence is in the interest of justice. Thus, the Szoke evidence, which was similar to the charged offenses in many respects, was not so remote as to raise the statutes presumption against admissibility for remoteness. (See, e.g., Falsetta, supra, 21 Cal.4th at pp. 909-910 [uncharged sex crimes occurring eight years and nine years before charged crime not too remote for admission under  1108; Branch, supra, 91 Cal.App.4th at pp. 284-285 [30-year span between uncharged and charged sex crimes not too remote to be admissible under  1108, particularly in view of their similarity]; People v. Escobar, supra, 82 Cal.App.4th at pp. 1096-1097 [five-year-old uncharged domestic violence incident not too remote to be admissible under  1109].) And defendant offers no reason why the remoteness of this eight-year-old incident made evidence concerning it less reliable. Indeed, in our view, the Szoke incident, coupled with the others, showed that defendant regularly engaged in the same pattern of domestic violence over the preceding eight-year period, at roughly two-year intervals, which tended to demonstrate his propensity to engage in this behavior, serving the very purposes of section 1109. Thus, we reject defendants contention that the remoteness of the Szoke incident required its exclusion from evidence.

Finally with respect to the Branch factors, the introduction of the section 1109 evidence at trial was not unduly time consuming, a factor defendant does not address in any event. The prosecution called four witnesses to present the section 1109 evidence and the defense called no one. The testimony did not take a lot of time when compared to the length of the trial and consisted of some 42 pages of a roughly 473-page reporters transcript of the jury trial.Presentation of the section 1109 evidence did not require a significant detour or mini-trial, even though the jury was told of the factual stipulation that Shalan Slagle disputed the officers testimony concerning defendants assault on her. Thus, the consumption of trial time resulting from admission of the section 1109 evidence was not significant. (See, e.g., Branch, supra, 91 Cal.App.4th at pp. 285-286 [uncharged-crime testimony consumed only 22 pages of trial transcript and was not a substantial consumption of court time]; Poplar, supra, 70 Cal.App.4th at p. 1139 [prior-domestic-violence testimony that consisted of 35 pages of trial transcript held admissible under 1109 and 352].)

Apart from the Branch factors and in terms of generally assessing prejudice under section 352, defendant claims that the totality of the section 1109 evidence was excessive and cumulative. But he forfeited this claim by failing to clearly object to admission of the section 1109 evidence on this ground below, only vaguely suggesting this ground in connection with the testimony of Stephanie Szoke. ( 353, subd. (a).) Even if he had asserted this ground for objection, the probative value of all the section 1109 evidence was enhanced, not diminished, by evidence of multiple past incidents of domestic violence, which demonstrated defendants propensity toward this behavior more than any single incident. (Ewoldt, supra, 7 Cal.4th at pp. 404-406 [multiple instances showed common design or plan].) Andas the Supreme Court has explained: The 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 defendants 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. In applying section 352, prejudicial is not synonymous with damaging.  [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.) Neither the fact of multiple past incidents being admitted, nor any other factor cited by defendant to demonstrate prejudice, meets this definition.

We have no doubt that the section 1109 evidence was damaging to the defense. But none of it, either cumulatively or in isolation, was prejudicial in the sense that it  uniquely tend[ed] to evoke an emotional bias against the defendant as an individual and which ha[d] very little effect on the issues. (People v. Karis, supra, 46 Cal.3d at p. 638.) The court was well within the bounds of its discretion in concluding, under section 1109 and after weighing the matter under section 352, that the evidences probative value was not substantially outweighed by the probability that its admission [would have] (a) necessitate[d] undue consumption of time or (b) create[d] substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ( 352.)

Finally, with respect to the section 1109 evidence, we return to defendants contention that the admission of evidence concerning Shalan Slagle was improper because there was no showing of a relationship between her and defendant such that defendants alleged assault on her qualified as domestic violence within the meaning of section 1109, subdivision (d)(3). This claim was also not preserved as defendant failed to clearly assert it prior to the admission of the evidence, defendants counsel only raising this issue during the prosecutors closing argument and failing to move that Officer Binders testimony be stricken. ( 353, subd. (a).)

5. Conclusion Re Section 1109 Evidence

Based on our analysis, we reject all of defendants claims with respect to the section 1109 evidence.