P. v. Carter

Filed 8/4/08 P. v. Carter 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.

Steven A. Torres, 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, Stephen G. Herndon and Paul E. OConnor, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Sean Michael Carter stands convicted of numerous offenses arising out of domestic violence he inflicted on his wife, Barbara Carter.^[1] Carter contends that admission of his prior domestic violence offenses violated due process and the trial court erred in refusing to strike one of his prior convictions in the interest of justice. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On April 2, 2006, Officer James Underwood interviewed Barbara after she called 911 from a neighbors house. Barbara told Underwood that she and Carter had argued and, at one point, Carter shoved her in the back, causing her to fall to the ground and injure her knee. Barbaras forehead and face were bruised. Barbara said she sustained injuries to her face a week earlier, when Carter hit her in the face.

Underwood went to the Carter home and made several attempts to get Carter to respond. When Carter failed to answer the door or the telephone, a police tactical unit was called and the door was rammed. After the door was rammed, Carter came out of the house. Underwood issued a temporary restraining order, explained the order to Carter, and gave him a copy.

Carter violated the restraining order by calling Barbara repeatedly after his arrest. Underwood spoke to Barbara on April 3, 2006, about the calls. During this interview, Barbara also gave Underwood more information about the earlier injuries she had received. Barbara told Underwood that she and Carter had been arguing when Carter kicked her in the stomach, hit her in the face with both hands, and head-butted her.

On April 5, 2006, Detective Pao Xiong interviewed Barbara. Barbaras face was bruised and swollen. Barbara told Xiong that Carter would accuse her of infidelity, become angry, and hit her. Barbara told Xiong that on March 15 Carter had hit her in the face. A ring on his hand caused a cut in the eye area. On March 23 Carter had kicked her, head-butted her, and hit her repeatedly in the face.

On April 7, 2006, Officer Jennifer McLelland went to the Carters residence in response to a call from Barbara stating that Carter was at the home, in violation of the restraining order. The restraining order had expired. Barbara was adamant that she was afraid of Carter and wanted a restraining order keeping him away from her. On this date, Barbara had a black eye, which she stated Carter gave her during a prior assault. She also told McLelland that Carter had beaten her after she returned home from surgery.

At trial Barbara denied ever having any physical confrontations with Carter. She acknowledged she did not want to testify against her husband and claimed her comments to neighbors, friends, and officers about Carter beating and hitting her were untrue.

The People presented expert testimony on Battered Womens Syndrome. The parties stipulated that Carter had suffered two domestic violence convictions in 1999. The parties also stipulated that Carter had made 89 phone calls to Barbara prior to trial, telling her in one call not to come to court and in another call that he could receive life in prison.

A jury found Carter guilty of all charges, including (1) three counts of corporal injury to a spouse, with prior domestic violence convictions, (2) dissuading a witness, and (3) disobeying a domestic relations order. Carter admitted two additional prior convictions -- a 1989 conviction for attempted first degree robbery with personal use of a firearm and a 1995 conviction for false imprisonment. Carter also admitted serving three prior prison terms.

Carter was sentenced to a total term of 19 years in prison.

DISCUSSION

Carter contends his due process rights were violated when the trial court admitted, over objection, evidence of his prior acts of domestic violence pursuant to Evidence Code section 1109.^[2] He also contends the trial court abused its discretion when it denied his motion to strike a prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

I. Not Error to Admit Prior Acts Evidence

The People filed an in limine motion seeking to admit evidence of Carters two 1999 convictions for violating Penal Code section 273.5, willful infliction of corporal injury, and a similar incident for which Carter was not charged. The victim in all three instances was Carters wife, Barbara. Carter objected to the admission of this evidence.

The trial court conducted a section 352 hearing and determined the probative value outweighed any prejudicial effect and concluded the evidence was admissible pursuant to section 1109.

Carter contends the trial courts admission of the section 1109 evidence violated due process because it lessened the prosecutions burden of proof. Carter concedes, however, that the California Supreme Court has decided this issue contrary to his position and that he raises the issue merely to preserve federal habeas claims.

In People v. Falsetta (1999) 21 Cal.4th 903, 917, the California Supreme Court held that admission of evidence of prior sexual offenses pursuant to section 1108 did not lessen the prosecutions burden or per se unduly prejudice the defendant. A trial court would be required to conduct a section 352 hearing and exercise its discretion on whether to admit or exclude section 1108 evidence. (Falsetta, at p. 917.)

As Carter concedes, the Falsetta holding is equally applicable to section 1109 evidence of prior acts of domestic violence. Under the principles set forth in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, this court is required to follow the holding in Falsetta.

Here, the trial court conducted the section 352 hearing, exercised its discretion, and admitted evidence of prior domestic violence by Carter. We find no abuse of discretion in the trial courts decision to admit this evidence, particularly when the victim had become a reluctant witness and was denying any physical altercations between herself and her husband.

II. No Abuse of Discretion to Refuse to Strike a Prior

Carter contends the trial court abused its discretion when it refused to grant his motion to strike a prior conviction pursuant to Romero, supra, 13 Cal.4th 497. Carter contends that because he suffers from a long-term drug problem, it was an abuse of discretion for the trial court not to strike his prior felony conviction.

In considering Carters motion, the trial court noted that Carter (1) had not shown remorse or accepted responsibility, (2) had attempted to manipulate the legal system by dissuading Barbara from testifying and encouraging her to give false testimony, (3) had a pattern of violence against Barbara, and (4) had a prior conviction for engaging in domestic violence against Barbara. Carters prior criminal record included a 1989 conviction for attempted robbery with use of a firearm, a 1995 conviction for false imprisonment, and the two 1999 convictions for domestic violence. Carter served terms of imprisonment for all these convictions. Carters criminal history also disclosed that he previously had been placed on parole or probation and had violated parole on numerous occasions. Also, the prison term for the 1999 convictions was imposed after probation was revoked.

In denying the motion, the trial court noted Carters prior criminal convictions, his numerous parole and probation violations, his unwillingness to control his anger, and lack of remorse. The trial court was aware of Carters history of drug abuse and the dysfunctional nature of the relationship between Carter and Barbara.

After considering the nature of the offenses, Carters criminal history, and Carters character, the trial court determined this was not an appropriate case in which to exercise its discretion and strike the prior. On the record before us, we find no abuse of discretion in the trial courts determination.

DISPOSITION

The judgment is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Hill, J.

^[1]We will refer to Barbara by her first name, not out of disrespect but to avoid any confusion to the reader.

^[2]All further references are to the Evidence Code unless otherwise specified.