Filed 3/2/22 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. Brian M. McNamara, Judge.

William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Kelvin Jones was convicted of one count of inflicting corporal injury upon a spouse. In his appeal, defendant contends (1) the trial court erred in admitting evidence of an uncharged domestic violence incident in violation of Evidence Code sections 352 and 1109,[1] and (2) he was entitled to a hearing on his ability to pay before certain fees were imposed at sentencing. Following the passage of Senate Bill No. 567 (Reg. Sess. 2021–2022) (Senate Bill 567), which made changes to Penal Code section 1170, defendant now asks this court to remand his case to the trial court for a reconsideration of his sentence. After addressing the issues raised in this appeal, we affirm defendant’s conviction, but remand with instructions to vacate the current sentence and resentence defendant in this matter.

PROCEDURAL BACKGROUND

On May 9, 2019,[2] defendant was charged in an amended information with willfully and unlawfully inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a); count 1). The information further alleged that while committing this crime, defendant inflicted great bodily injury upon his spouse (Pen. Code, § 12022.7); and had two prior “strike” convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), two prior serious felony convictions (Pen. Code, § 667, subd. (a)), and served seven prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant denied every allegation in the information.

On June 12, a jury found defendant guilty of inflicting corporal injury upon his spouse. The jury further found true the great bodily injury allegation. In a bifurcated proceeding on that same day, the court found the two prior strike conviction allegations true. The court then struck all prior prison term enhancement allegations.

At the sentencing hearing on July 11, the trial court dismissed one prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then sentenced defendant to 21 years in prison as follows: eight years for unlawfully inflicting corporal injury on a spouse (the upper term of four years, doubled due to the prior strike conviction), three years for the great bodily injury enhancement, and five years each for the two prior serious felony conviction enhancements. Among the fees imposed, the court ordered defendant to pay a $40 court operations fee

(Pen. Code, § 1465.8), and a $30 court facilities fee (Gov. Code, § 70373).

Defendant filed a timely notice of appeal on July 30.

FACTS

The Charged Crime

On March 12, defendant and his wife of two years, R.J., were drinking and socializing with friends and family at Martin Luther King, Jr., Park in Kern County. Defendant and R.J. arrived at the park around noon, and by evening, defendant was asleep on a park bench with his jacket over his head. When R.J. decided she wanted to leave, she went to the bench and woke defendant.

As she walked away, R.J. testified defendant “flew off the handle” and started hitting her. While R.J. was initially hesitant to say defendant was responsible for her injuries, after being confronted with her preliminary hearing testimony, R.J. admitted defendant caused the black eye on the left side of her face by swinging at her with a closed fist. R.J. also testified she suffered a broken leg and an injured ankle after she fell and defendant fell on top of her. R.J. initially attributed this to an accident, related to her fall. However, R.J. eventually agreed defendant was the cause of her injuries. Due to these injuries, R.J. had a plate, two screws, and a rod inserted in her right leg, and a “knot” under her left eye. The full extent of R.J.’s injuries were described to the jury by a physician assistant and an attending physician from Kern Medical Center where R.J. was taken after the incident.

Officer Raymond Hackleman, a police officer with the City of Bakersfield, testified he responded to a call about this incident, along with his partner. When he arrived at the park, Hackleman observed a female victim who had visible injuries. These injuries included a four-inch contusion to her upper left cheek, and a swollen right leg that also looked deformed. Hackleman identified R.J. as the victim and noted that when he asked who caused the injuries, she responded it was her husband.

Hackleman’s partner, Officer Andrew Shive, recalled seeing defendant across the street from the park, in front of a market. When defendant crossed the street and started walking toward R.J., Shive detained defendant and placed him in handcuffs. Defendant was later placed under arrest.

The 2014 Uncharged Act of Domestic Violence

During the trial, the prosecution asked R.J. if she recalled a January 15, 2014, incident when police were called to her home. R.J. claimed to not have any memory about the incident. R.J. continued to say she did not recall the January 15, 2014, incident, even after reviewing a police report from that time documenting the event and listing both her and defendant as the individuals involved.

The next time the January 15, 2014, incident was raised at trial was during the testimony of Officer Douglas Barrier. Barrier was a police officer for the City of Bakersfield when he responded to a domestic violence call involving R.J. and defendant on January 15, 2014. Barrier explained he went to a residence in Bakersfield on that day and talked to R.J. and her daughter about the incident. After speaking to R.J. and her daughter, Barrier placed defendant under arrest. At some point, Barrier also wrote a report. During cross-examination, Barrier admitted he observed no visible signs of injuries on R.J. on January 15, 2014.

Defense Evidence

The defense presented no evidence.

DISCUSSION

Defendant specifically argues the trial court erred when it agreed to admit evidence of a prior uncharged act of domestic violence from 2014, because the evidence did not qualify as a prior act of domestic violence under sections 1101 and 1109. Defendant further contends the references to the uncharged act from 2014 at trial resulted in undue prejudice under section 352.

I. The Evidence of an Uncharged Act of Domestic Violence

Defendant believes the court abused its discretion by admitting evidence of an uncharged act of domestic violence from 2014, on two separate grounds. First, defendant contends the evidence constituted improper character evidence as defined by section 1101, because it did not qualify for an exception under section 1109. Defendant separately argues that admitting this prior uncharged act from 2014 at trial violated section 352. Defendant believes these errors were unduly prejudicial and should result in a reversal of his conviction. We disagree.

A. Was the prior uncharged act from 2014 admissible under section 1109?

Before the enactment of section 1109, evidence of a defendant’s prior criminal act was generally inadmissible to show a disposition to commit a similar act. (People v. Megown (2018) 28 Cal.App.5th 157, 163–164.) When enacting section 1109, the Legislature specifically noted the difficulty of prosecuting domestic violence cases, and the history of regularly excluding evidence of prior criminal acts, even if that evidence had probative value. (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.) Recognizing such propensity evidence is probative in the area of domestic violence because of its repetitive nature, the Legislature decided to carve out an exception to the general prohibition of evidence showing a person’s character or a trait of character when it is offered to prove conduct on a specific occasion. (Id. at pp. 1235–1236.) However, as recognized in section 1109, subdivision (a)(1), the admissibility of this evidence is not automatic as the trial court must still consider whether the probative value of the evidence “is 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.” (§§ 1109, subd. (a)(1), 352.)

On appeal, we review the trial court’s admission of section 1109 evidence using an abuse of discretion standard. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) We will not disturb the trial court’s determination on this issue unless we find the court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Id. at pp. 9–10.)

1. The in limine hearing

When the prosecution intends to offer evidence of a prior uncharged act of domestic violence at trial, the prosecution must disclose the substance of the evidence first and explain how it will be presented during trial. (§ 1109, subd. (b).) Pretrial notice of this type of evidence assures the defendant will not be surprised or unprepared to challenge the admissibility of the evidence. (People v. Brown (2000) 77 Cal.App.4th 1324, 1334.)

As contemplated by section 1109, subdivision (b), the prosecution in this case first provided notice of its intent to introduce evidence of the uncharged act of domestic violence through an in limine motion, the supporting memorandum of points and authorities, and a trial brief. The prosecution explained the evidence would show that on January 15, 2014, defendant went to R.J.’s home, argued with her, then hit her with a closed fist. The resulting blow to R.J. was so forceful, she fell to the ground, after which defendant “mounted” her and punched her again. Defendant objected to the admission of the evidence, arguing “any alleged acts of ‘domestic violence’ not charged” constituted unconstitutional propensity evidence and improper character evidence, and would necessitate an undue consumption of time.

During the in limine hearing, the court asked how the prosecution intended to present the evidence. The prosecution stated its plan to call two witnesses.[3] The court concluded there would be no undue use of time as the prosecution intended to present this evidence through only two witnesses, and the probative value of the evidence was established in compliance with the requirements of section 1109.

“It’s domestic violence, Section 6211 of the Family Code, which is covered here, and so on. … The probative value certainly is there. It’s under 1109, and it outweighs the probability that admission will create substantial danger of undue prejudice. In addition, there’s certain situations here. We’ll let—in other words, undue use of time here. There’s only two witnesses at most and given the nature of the facts. The other issue that comes in here is the confrontation clause, which is always a good one to consider. But we have the witness who is [R.J.]. [¶] … [¶]

“So given the 352 analysis as to the requirements, the Court has considered all the requirements under 1109 and grants the motion to allow this under 1109, this prior act of spousal abuse prior in 2014. So with that, People’s 9 is granted.”

We find no abuse of discretion in either the court’s process when considering the evidence, or in the initial determination that the evidence qualified as a prior uncharged act of domestic violence under section 1109.

2. How the evidence was presented at trial

The subject of the 2014 prior uncharged act of domestic violence was raised for the first time at trial during R.J.’s testimony.[4] When asked about this incident, R.J. claimed not to remember.

“[Prosecutor]: [R.J.], I want to ask you about a prior incident that happened back in 2014 between yourself and the defendant. Do you recall an incident happening where 911 or Bakersfield Police Department had to respond back in 2014?

“[R.J.]: No. I don’t remember that one, no.

“[Prosecutor]: When you say you remember that one, are you referring to the one in March?

“[R.J.]: I said I didn’t. I don’t remember that one.

“[Prosecutor]: You don’t remember the one from 2014?

“[R.J.]: No.”

Immediately after R.J.’s testimony, the court gave the jury the following admonition:

“That evidence was introduced for the purpose of showing that [defendant] committed uncharged acts of domestic violence other than that for which [defendant] is on trial. Such evidence, if proved by a preponderance of the evidence, is not received and may not be considered by you to prove that the defendant is a person of bad character, but may be considered whether or not the defendant was predisposed or inclined to commit domestic violence offenses. I will instruct you further on this issue after the evidence has concluded.”

Barrier, the second witness on this issue, testified that on January 15, 2014, he responded to “a domestic violence incident,” spoke to R.J. and her daughter, but did not observe injuries on R.J. However, Barrier ultimately placed defendant under arrest. After Barrier’s testimony, the court provided the jury with a similar warning about how to treat the evidence.

3. Our analysis

Initially, we must consider whether the evidence was of the type contemplated by section 1109. Pursuant to section 1109, subdivision (a)(1), prior acts of domestic violence are not made inadmissible if the probative value is not outweighed by the resulting prejudice. When enacting section 1109, the Legislature recognized policy considerations favoring the exclusion of uncharged domestic violence offenses should be outweighed in criminal domestic violence cases by policy considerations favoring the admission of this evidence. (People v. Kerley (2018) 23 Cal.App.5th 513, 531.) As a result, a prior uncharged act of domestic violence that might have been committed by defendant in 2014 against R.J., was not automatically inadmissible in his trial considering whether he committed an act of domestic violence against R.J. in 2019.

Evidence can be damaging, but still be admissible if its probative value outweighs the risk of undue prejudice. (People v. Megown, supra, 28 Cal.App.5th at p. 164.) When applying section 352, a court is always required to consider whether the evidence will inflame the jury or pose a risk that the jurors will use it improperly. (Ibid.) A balancing test that weighs more heavily in the direction of undue prejudice must result in the exclusion of the evidence. (People v. Brown, supra, 192 Cal.App.4th at p. 1233.) However, a court “enjoys broad discretion” when engaging in this balancing process, which will not be disturbed absent an abuse of discretion. (Ibid.)

First, the facts of the uncharged act from 2014 were less egregious, and not as inflammatory as the facts supporting the current charge. (See People v. Johnson (2010) 185 Cal.App.4th 520, 534.) Next, the presentation of this evidence did not result in an undue consumption of time. (§ 352.) We also do not believe the evidence created a risk jurors would be misled. After both mentions of the 2014 incident during the trial, the judge addressed the members of the jury, and explained how they should consider the evidence during their deliberations.

Based on a full consideration of the offer of proof made during the in limine hearing, how the evidence was presented at trial, and the cautionary steps taken by the court, we conclude there was no abuse of discretion and no error in admitting the evidence of the uncharged act of domestic violence from 2014.

B. Defendant’s separate contention the evidence was prejudicial

Defendant separately contends the trial court abused its discretion under section 352 because witness testimony “produced little of probative value” on the 2014 incident. Thus, because the evidence had either no probative value or minimal probative value, any value provided by the evidence was greatly outweighed by its prejudicial impact.

In making this argument, defendant notes R.J. did not recall the incident when testifying. Furthermore, even though Barrier testified he eventually arrested defendant at the time of the incident, no actual evidence was introduced explaining what happened between defendant and R.J. The only mentions of this being a “domestic violence” incident[5] came from Barrier, and in the instruction given by the court to the jury on how they should treat the evidence in their deliberations.

While we do not conclude this evidence was barred by section 352, we also conclude any potential prejudice from the evidence must be considered harmless. A judgment will not be reversed on appeal unless the reviewing court, after examining the entire case, including the evidence, concludes the error caused a “miscarriage of justice.” (Cal. Const., art. VI, § 13.)

Errors in admitting uncharged act evidence under state law are reviewed under the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836.

“ ‘[T]he Watson test for harmless error “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” ’ ” (People v. Clark (2021) 62 Cal.App.5th 939, 968.)

The evidence presented in this case supporting the verdict is “ ‘ “relatively strong,” ’ ” and the evidence suggesting a different outcome is “ ‘ “comparatively weak.” ’ ” (See People v. Clark, supra, 62 Cal.App.5th at p. 968.) The impact of any harm from the introduction of the 2014 incident was minimal at best, and was further blunted by the instruction warning the jurors about the limited impact of that evidence. There is no reasonable probability that any perceived error related to this evidence affected the result in this case.

II. The Impact of Senate Bill 567 on the Need to Reconsider Defendant’s Sentence

At the time defendant was sentenced, Penal Code section 1170 provided that the choice between the lower, middle, and upper term “shall rest within the sound discretion of the court,” with the court to determine which term “best serves the interests of justice.” On January 1, 2022, amendments to Penal Code section 1170 made by Senate Bill 567, went into effect. Defendant now believes his sentence must be reconsidered.

Of most relevance here is the fact that the changes made to Penal Code section 1170 through Senate Bill 567, make the middle term the presumptive term. A trial court may now only impose an upper term when circumstances in aggravation exist, and the facts underlying the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by the jury or the court acting as the factfinder. (Pen. Code, § 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) The trial judge may, however, rely on certified records of a defendant’s prior convictions when considering these enhancements to a sentence without submitting the issue of a prior conviction to a jury. (Pen. Code, § 1170, subd. (b)(3).)

When sentencing defendant in this case, the trial court imposed the upper term of four years for the crime of unlawfully inflicting corporal injury on a spouse, then doubled that term because of a prior conviction for a “strike” offense. To this the court added three years for the enhancement found by the jury of causing great bodily injury. Finally, the court added 10 more years for two prior serious felony convictions.

In a supplemental brief, the Attorney General concedes the changes made to Penal Code section 1170 apply retroactively to defendant and require this case to be remanded for resentencing. We agree defendant is entitled to a reconsideration of his sentence because his appeal was not yet final when the changes to Penal Code section 1170 went into effect. (In re Estrada (1965) 63 Cal.2d 740.) Thus, we vacate the prior sentence and remand for resentencing.

III. Defendant’s Ability to Pay Fines

Because this matter must be remanded under the full resentencing rule (People v. Buycks (2018) 5 Cal.5th 857, 893), defendant’s challenge to the fines and fees imposed, advanced pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 and related cases, is moot. We will, thus, not consider these claims here.

DISPOSITION

Defendant’s sentence is vacated and this case is remanded for resentencing. Following resentencing, the trial court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

[1] All statutory references are to the Evidence Code, unless otherwise specified.

[2] Unless otherwise stated, all dates referenced in this opinion occurred in 2019.

[3] Initially, the prosecution intended to present this evidence through R.J. and her daughter. Because R.J.’s daughter was unavailable at the trial, the prosecution chose to present this evidence through Barrier, who was the responding officer on January 15, 2014.

[4] Defendant renewed his objection to the use of the evidence on the uncharged act of domestic violence at trial, making the same arguments raised during the in limine hearing on the issue. The court noted this objection as a “continuing objection,” but did not change its ruling. The People concede this issue has been preserved for appeal.

[5] Barrier specifically stated in his testimony, “I did respond to a domestic violence incident.”