P. v. Garcia
Filed 1/10/13 P.
v. Garcia CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL A.
GARCIA,
Defendant and Appellant.
D061571
(Super. Ct. No.
SCD234612)
APPEAL
from a judgment of the Superior Court of
County, Louis R. Hanoian, Judge. Affirmed.
A
jury convicted Miguel Garcia of one count of
(Pen. Code, § 646.9, subd. (b)) and four counts of disobeying a court
order (Pen. Code, § 273.6, subd. (a)).
Garcia admitted two prior stalking convictions and one prison prior
(Pen. Code, § 667.5, subd. (b)).
Garcia was sentenced to a determinate term of five years in prison, plus
an additional consecutive one-year term for the prison prior.
Garcia appeals contending that
the trial court abused its discretion in permitting the prosecution to
introduce evidence of prior uncharged conduct involving the victim of the
charged offenses pursuant to Evidence Code
sections 1101, subdivision (b) and 1109.
Garcia further contends that section 1109 is facially
unconstitutional. We will reject both
contentions and affirm.
STATEMENT OF FACTS
Given
that the events which occurred in this case are largely undisputed, as
distinguished from the issue of Garcia's intentions, we will adopt the
statement of facts from the respondent's brief as an accurate summary of the
record.
A. Background and Prior
Conduct
In
April 2009, victim Kimberly Rivera leased an apartment with appellant. After moving in together, they began having
relationship problems. Appellant became
very obsessive and possessive, and would not let Rivera go anywhere by
herself. If Rivera tried to go somewhere
by herself, appellant would follow her.
He even accompanied Rivera on her way to work. On the evening of June 5, 2009, Rivera was drinking and wanted to call a crisis center to get help
for her drinking problem. However,
appellant would not let her call for help because he was afraid they would take
her away from him. Appellant took the
phone from Rivera, threw her on the ground and pinned her down. After appellant finally let Rivera up, she
went to her sister's house and appellant followed her there. Rivera sustained bruises on her arms where
appellant held her down. She called 911
after arriving at her sister's house and appellant was later arrested at the
apartment he shared with Rivera. A
couple hours after the arrest, Rivera moved out of their apartment and into her
sister's house. She also immediately
obtained a temporary restraining order against appellant.
On
June 11, 2009, Rivera met appellant in the parking lot of her sister's house to
discuss the lease and to break up with him.
Rivera's sister called the police because she did not want Rivera to
talk to appellant. Rivera talked to the
police and explained that appellant had not done anything wrong at that
time.
In
August or September 2009, Rivera moved out of her sister's house and into her
own apartment. On one occasion, Rivera
invited appellant to her apartment to discuss their previous lease. Appellant started coming onto her
sexually. Rivera got mad and asked
appellant to leave, but he refused.
Rivera then walked out of her apartment as if to leave. Appellant grabbed Rivera's phone and headed
toward the elevator to follow her. Once
Rivera saw appellant heading to the elevator, she ran back into her apartment,
locked the door, and called the police.
Rivera never invited appellant to her apartment again.
However,
appellant continued to contact Rivera.
He frequently followed her on the trolley. At times he would speak to Rivera and ask if
she was seeing anyone else. Other times
appellant would just sit and stare at Rivera, and this made her nervous. One time, while on the trolley, Rivera called
the police to report appellant for following her and appellant backhanded
Rivera on the comer of her face.
Appellant would also walk up and down the street outside Rivera's
apartment, whistling and sliding at least 20 notes under her door. One note read, "If you want me out of
your life, call me when you get home."
Another read, "And by the way, we're not dead yet. The only time where it's too late for us to
work things out is after we're both dead."
On several occasions, appellant followed Rivera to MCRD where she worked
as a chef. One time, appellant asked
Rivera if he could hug her and she responded no. He then asked if he could kiss her goodbye
and she again said no. Appellant then
said, "Well can I shoot you goodbye then?"
Appellant's
behavior caused Rivera to fear for her safety.
She became a homebody and did not want to be out because she did not
know what appellant was going to do. She
was afraid to end up dead because appellant was so angry with her for leaving
him. Additionally, Rivera was concerned
because appellant, who is larger and stronger than her, had a black belt in
martial arts.
Appellant
was prosecuted for stalking Rivera in 2009 and pleaded guilty in January
2010. Appellant continued to walk by
Rivera's home and follow her on the trolley.
He was again arrested for stalking and pleaded guilty in September
2010. Rivera testified she was aware of
both arrests and convictions.
B.
Charged Offenses
Between
May and June 2011, appellant began following Rivera again on the trolley, and
whistling outside her apartment (count 1).
Around 8:30 a.m. on May 9, Rivera got on the trolley to go to work. She saw appellant standing outside at one of
the stops and he gestured to her as if to say, "What are you
doing?" However, appellant did not
get on the trolley.
On
May 16, appellant got on the trolley and glared at Rivera (count 2). He started mumbling something and shook his
head back and forth. After appellant got
off the trolley, Rivera called the police.
On
May 23, Rivera left for work at her usual time around 8:30 a.m. (count 3). She noticed
appellant was already on the trolley so she did not get on it and waited for
the next one. When Rivera was on the
second trolley, appellant was waiting at the trolley station two stops
away. Appellant got on that second
trolley and Rivera called the police.
Appellant followed Rivera when she got off but did not follow her into
the undercover passageway leading to the buses.
On
May 27, Rivera was on the trolley to go to work at MCRD, where she was a
chef. Appellant got on the same trolley,
sat across from Rivera, and asked, "Can I just have a few minutes of your
time?'' (Count 4.) Rivera did not answer him. She got up, walked away, and immediately
called the police. Before appellant got
off at the next station, he stood by the door, pointed his cell phone directly
at Rivera, and uttered something. Rivera
testified it looked like appellant was trying to take her picture.
On
June 2, Rivera got on the trolley at her usual time around 8:30 a.m. (count 5). At this time, appellant and three undercover officers
were already on the trolley. One of the
officers asked Rivera to positively identify appellant, which she did. Appellant was wearing dark sunglasses, black
pants, a black shirt, and a black backpack.
Rivera testified that when she saw appellant on the trolley, he was
generally dressed in the same manner.
Before appellant got off the trolley, he stood at the doorwell and
stared at Rivera. The officers followed
appellant off the trolley and one identified himself as San Diego Police. Appellant initially said he was not doing
anything and was just getting off the trolley.
But then he said, "I'm just going back. Just tell me--I know I'm going back. Just
tell me how long." The officers
took appellant into custody and recovered two cell phones. One of the cell phones had a picture of
Rivera sitting on the trolley in her chef's outfit.
C.
Defense
Appellant
testified he met Rivera in 2008 and knew she had a drinking problem. They began dating and eventually moved in
together. At some point in 2009, Rivera
told appellant she did not want to be in a relationship with him, but he
remained concerned about her drinking.
Appellant
testified he was homeless in early May 2011.
He got on a list for a bed at St. Vincent De Paul's, but there were
about 200 people ahead of him. Appellant
had to check in every morning at 8:00 a.m. in order to move up on
the list. He testified he took the
trolley about 10 to 15 times a day.
Appellant
testified on May 9 he was on the platform at a trolley stop and he saw Rivera
was on the trolley. He gestured his
hands as if to say, "Why?" He
did not get on the trolley. He claimed
he got on the same trolley as Rivera on May 16 without knowing she was on
it. He remembered shaking his head back
and forth and thinking he needed to get off the trolley. He claimed on May 23 he was already on the
trolley when Rivera got on. He recalled
that Rivera immediately got off the trolley and waited for the next one. He claimed on May 27 he again got on the
trolley Rivera was already on. He sat
across from Rivera and asked, "Could you just give me two minutes of your
time?'' Appellant testified he did not
intend to annoy, harass, or scare Rivera, and that his intent was closure. He wanted to tell Rivera, "Look, I'm not
mad at you. Good luck, God bless you,
good-bye." Appellant testified he
took a picture of Rivera on this day because he needed closure. Appellant testified on June 2 he got on the
trolley and did not realize Rivera was already on it. He testified he did not intend to harass her,
to behave in a malicious way, or place her in fear. Appellant testified it was a coincidence he
was on the same trolley as Rivera on May 16, May 23, May 27, and June 2.
DISCUSSION
I
ABUSE ITS DISCRETION
Garcia
contends the trial court abused its discretion in allowing the prosecution to
introduce evidence of his prior conduct involving the victim, for which he had
been convicted. Garcia concedes the
evidence was relevant and otherwise admissible under section 1109, however, he
argues it was unduly prejudicial and failure to exclude it denied him
unfair. The People respond that the
evidence was admissible both under sections 1101, subdivision (b) and 1109 and
that the probative value of the evidence outweighed any prejudicial
effect. We agree with the People's
analysis.
A. Standard of Review
The
parties agree that when we review the trial court's decision to admit evidence
we apply the abuse of discretion standard.
Under that standard we will not overturn the trial court's decision
unless the record clearly demonstrates an abuse of the court's broad discretionary
power. (People v. Jablonski (2006) 37 Cal.4th 774, 805;
Cal.4th 1179, 1237.)
B. Sections 1101, subdivision
(b), 1109 and 352
Under
section 1101, subdivision (b), evidence of prior crimes or acts are admissible
to prove facts relevant to the charged offense, such as knowledge, intent or
absence of mistake. (
Cal.4th 380, 400-402; Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1223-1224.)
Section
1109 allows the introduction of the commission of prior acts of domestic
violence in a criminal case charging an offense involving
v. Poplar (1999) 70
Cal.App.4th 1129, 1138.) Stalking
is a crime involving domestic violence within the meaning of section 1109. (People
v. Ogle (2010) 185 Cal.App.4th 1138, 1143.)
The
admissibility of evidence under either sections 1101, subdivision (b) or 1109
is conditioned upon an evaluation by the court of whether the probative value
of the evidence outweighs any prejudicial effect as directed by section
352. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.)
As
we have noted, Garcia does not challenge the relevance of evidence of his prior
conduct involving the victim. Thus, the
question we must decide is whether, in light of the record, the evidence of
prior crimes was so inflammatory, or prejudicial that it outweighed the
conceded relevance of the evidence.
C. Analysis
In order to convict Garcia of
stalking the prosecution had to prove:
"1. The defendant willfully and maliciously
harassed or willfully, maliciously, and repeatedly followed another person;
[AND] [¶] 2. The defendant made a credible threat with the intent to place
the other person in reasonable fear for her safety; [AND] [¶] 3. A
temporary restraining order prohibiting the defendant from engaging in this
conduct against the threatened person was in effect at the time of the
conduct." (CALCRIM No. 1301.)
Garcia's
defense did not deny the occurrence of the events, but rather took the position
that his appearance on the same trolley with the victim was a mere
coincidence. Garcia denied any intent to
harass or annoy the victim, thus he placed his mental state squarely in issue.
The
trial court carefully evaluated the proffered evidence and considered its
prejudicial effect. The court allowed
the evidence and the fact Garcia had been convicted of the prior crimes
following guilty pleas. Thus, the jury
would not be required to speculate as to whether he committed the offenses. The court did not, however, permit the
prosecutor to introduce evidence that Garcia had been sent to prison for the
offenses. The court found evidence of
punishment for the offenses would be unduly prejudicial. The trial judge was in the best position to
evaluate the prejudicial effect of the evidence, which must be resolved on the
particular facts of the individual case.
(People v. Scott (1980) 113
Cal.App.3d 190, 198.)
The
prior acts involving the victim provided the jury with information about
Garcia's intent as well as the reasonableness of the victim's fear, both
elements of the crime of stalking. (
Cal.App.4th 758, 770.)
On
the other hand, the evidence was not confusing, unduly time consuming or
inflammatory. Certainly the prior acts
were more physical than the charged acts, but they were not excessively violent
and the victim did not sustain serious injuries in those events. Garcia's prior behavior with the victim provided
information for the jury from which it could evaluate Garcia's intentions at
the time of the charged acts, and assess whether the victim was reasonably
placed in fear. In short, we find
nothing in the record to support Garcia's claim that the trial court abused its
discretion.
II
CONSTITUTIONAL
Finally,
Garcia contends section 1109 violates the due process clause by permitting the
admission of propensity evidence. Thus,
he argues the section is facially invalid.
Garcia acknowledges the California Supreme Court resolved this issue in
Cal.4th 903, 917. Garcia also
acknowledges we must follow the direction of our Supreme Court. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Garcia has raised this issue in
the present case to preserve his constitutional challenge for federal
review. (Duncan v. Henry (1995) 513 U.S. 364, 366.)
We
will follow the direction of our Supreme Court and find that section 1109 is
not facially unconstitutional under either the California or United States
Constitutions.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
McDONALD,
J.
name="_ftn1" title="">[1] All further statutory
references are to the Evidence Code unless otherwise specified.
name="_ftn2" title="">[2] Rivera obtained a
permanent restraining order in December 2009 and appellant was served by a
police officer.
