P. v. Underdue
Filed 7/20/12 P. v. Underdue CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY UNDERDUE,
Defendant and
Appellant.
H037036
(Monterey
County
Super. Ct.
No. SS110009)
Defendant
Anthony Underdue appeals a judgment of conviction of felony
subd. (a)), and felony false imprisonment (Pen. Code, § 236). On appeal, defendant asserts the trial court
erred by admitting seven prior incidents of domestic violence under Evidence
Code section 1109.
Statement of the Facts and Case
In
September 2010, defendant and Shereen Ortiz were outside a pub in Salinas. They were arguing and defendant slapped
Ortiz. A witness who was standing across
the street and saw the altercation called 911.
Around the
same time, the owner of the pub came outside because he heard from one of his
employees that someone had hit a woman.
The owner saw defendant push Ortiz into a brick wall, then hold her in a
“bear hug” and try to drag her down the alley.
Ortiz appeared to be scared. The
pub owner called 911, and told defendant to let Ortiz go. Defendant said that Ortiz was his wife, and
that the owner should mind his own business.
When Salinas
police arrived at the scene, and defendant let Ortiz go and walked away. When an officer interviewed Ortiz, she saw
that Ortiz had a bump on her head and was upset. Ortiz told the officer she and defendant had
an on-again-off-again relationship and were not currently living together. Ortiz said she ran into defendant at a
market, and defendant asked Ortiz to come with him. Ortiz said, “no,” because she thought
defendant seemed agitated. Ortiz left
the market and went to the pub, and defendant followed her.
When
defendant and Ortiz arrived at the pub, they started arguing, and defendant head-butted
Ortiz. When Ortiz refused to go with
defendant down the alley, he picked her up in a bear-hug and tried to carry
her. When the pub owner came out and
confronted defendant, he put Ortiz down and walked away. Ortiz told the officer defendant had been
violent with her three times prior to the current incident.
At trial on
this case, Ortiz recanted her story that she told the police officer, and
denied defendant hit her or harmed her in any way outside the pub. Ortiz claimed she was drunk, and fell on the
sidewalk, hitting her head. Ortiz
claimed she lied to the police officer that day, because she is on felony
probation and is not allowed to consume alcohol. Ortiz said that she is an alcoholic with
mental problems, which causes her to do and say things she does not remember.
During
trial, the court admitted evidence of prior acts of domestic violence committed
by defendant. Jane Doe Three testified
that she was in a relationship with defendant from 1996 to 1998, and he was
abusive with her five times.
Specifically, in November 1998, defendant and Jane Doe Three argued
because she would not give defendant money.
Defendant hit Jane Doe Three on the head and bit her cheek. Jane Doe Three subsequently sought and
obtained a restraining order against defendant in 1999.
Jane Doe
Two testified she had known defendant for 12 to 13 years and they had children
together. Defendant began abusing Jane
Doe Two when they were breaking up in 2000 and she was pregnant with her son. Jane Doe Two could not remember details at
trial, but there was an incident in 2000 when she was taken to the hospital by
ambulance. Five months later, defendant
confronted her in front of her house, grabbed her by the ponytail, bit her face
and threatened to kill her.
The final
prior incidents of domestic violence presented at trial involved Ortiz. In 2007, officers went to a motel room where
Ortiz was staying and saw blood on the towels and the floor in the room. Ortiz was with a friend of hers in the room,
Aldarryl Jones. Jones told the officers
that Ortiz said defendant had injured her.
When officers talked to Ortiz, she did not appear to be afraid, and
claimed she was jumped by a group of girls.
Defendant confirmed Ortiz’s story.
Defendant was not arrested at the time.
During her interview with police regarding the current incident in 2010
that is the subject of this appeal, Ortiz told the officer she lied in 2007,
and was not jumped by a group of girls.
Ortiz said defendant beat her, and he received a fractured eye and nose,
and had to drink from a straw for a long period of time.
The
remaining incidents of violence against Ortiz were not specific, and were
revealed to the police officer interviewing her for the current case. Ortiz said defendant had been violent with
her on three prior occasions, and would slap or punch her, and she would end up
with a black eye.
In January 2011, defendant was
charged with felony domestic violence (Pen. Code, § 273.5, subd. (a)); felony
and attempted kidnapping (Pen. Code, §§ 664/207, subd. (a)). The information further alleged defendant had
two prior strike convictions (Pen. Code, § 1170.12, subd. (c)(1)), and that he
had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
After a
jury trial, defendant was convicted of felony domestic violence (Pen. Code, §
273.5, subd. (a)) and false imprisonment (Pen. Code, § 236). Defendant was acquitted of the attempted
kidnapping charge. Defendant admitted
the two strike priors, and one prison prior.
The court
dismissed one of defendant’s strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and
sentenced him to 10 years four months in state prison.
Discussion
In this
appeal, defendant asserts the trial court erred in admitting evidence of prior
incidents of domestic violence. Four of
the incidents were against the same victim as the present case, Ortiz, and
three were against two other victims 10 to 12 years prior to the incident in
this case. Defendant argues the
admission of the evidence violated his right to a fair trial under the due
process clauses of the Fifth and the Fourteenth Amendments. In addition, he asserts admission of the
evidence was unduly prejudicial and requires reversal of the judgment under
Here, the
court admitted the prior incidents of domestic violence under Evidence Code
section 1109, which provides, in relevant 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 Section 1101 if the evidence
is not inadmissible pursuant to Section 352.”
(Evid. Code, § 1109, subd. (a)(1).)
Evidence Code section 352 allows a court in its discretion to exclude
evidence if “its probative value is substantially outweighed by the probability
that its admission will . . . (b) create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.”
A trial court’s exercise of this
discretion under Evidence Code sections 1109 and 352 “will not be disturbed on
appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence
clearly outweighs its probative value.
[Citation.]” (
637.) The prejudice in question is not
the prejudice that flows from relevant, highly probative evidence; rather, it
is the prejudice caused by evidence that “uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very little effect on
the issues.” (Id. at p. 638.) Prejudicial
is not synonymous with damaging. (
If the evidence of other
incidents of domestic violence is deemed admissible, the jury is permitted, but
not required, to consider it as evidence that the defendant has a propensity to
commit acts of domestic violence and as substantive evidence that he committed
the charged offense. (CALCRIM No. 852.) The jury was so instructed in this case.
We find that there was no
abuse of discretion in this case. In
determining whether to admit prior acts of domestic violence, the court
considers such factors as whether the prior acts are more inflammatory than the
charged conduct, the possibility that the jury might confuse the prior acts
with the charged acts, the recentness of the prior acts, and whether the
defendant has already been convicted and punished for the prior acts. (People
v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, defendant’s prior acts
of domestic violence were extremely probative given the fact the Ortiz recanted
her story at trial, and denied that defendant abused her outside the pub. Moreover, the prior incidents were not more inflammatory
than the charged conduct in this case.
Here, Ortiz was injured in the face, head and arms. The 2007 incident between Ortiz and defendant
in the motel resulted in similar injuries of a fractured eye and nose. The 1998 incident with Jane Doe Three left
her with a knot on the back of her head, and a bite on her cheek. In addition, Jane Doe Two was bit on the face
and choked, injuring her neck in the 2000 incident with defendant.
We do not find the prior incidents
of domestic violence admitted in this case to be remote or dissimilar to the
allegations in the present case. The
evidence was highly relevant given Ortiz’s testimony at trial, and clearly
showed a propensity to commit the crimes in this case. We will not disturb the trial court’s exercise
of discretion in admitting this evidence, because the probative value of the
evidence clearly outweighs its prejudicial effect. (People
v. Karis, supra, 46 Cal.3d at p. 637.)
Admission of the evidence was not unduly prejudicial, and did not result
in an unfair trial.
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Disposition
The judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
the issue of the admissibility of the prior incidents of domestic violence on
appeal, we need not address defendant’s argument that he was denied effective
assistance of counsel.
