Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. CC585259
Duffy, J.
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, 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.)
Further unspecified statutory references are to the Evidence Code.
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 lawyer’s 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 prosecutor’s closing argument, did not request that the jury be admonished to cure the prejudicial effect of the prosecutor’s 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 lawyer’s 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 defendant’s claims and accordingly affirm the judgment.
STATEMENT OF THE CASE
We take the facts from the evidence adduced at trial, some of which was inconsistent. In so doing, we view the evidence in the light most favorable to the jury’s verdict and the judgment.
Defendant and Tracy Doe began dating in 2004. 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.
Although they dated for “[a] little over a year,” both Tracy and defendant were in custody for approximately six months of this time period.
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 Tracy’s then two- and four-year-old boys, L. D. and C. D., respectively. Their bedroom had another door, which led directly into Rick’s bedroom. From Tracy’s and defendant’s bedroom, it was necessary to go through Rick’s 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. Tracy’s “stepmother,” Melissa Paxson, lived upstairs in the apartment directly above where Tracy and defendant lived.
Paxson had known Tracy for 25 years and was Tracy’s sister’s former mother in law, but Tracy considered her as her own stepmother.
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 Tracy’s 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 Tracy’s 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 Tracy’s and defendant’s 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 Tracy’s and defendant’s 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. 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 o’clock. Tracy’s two boys arrived home later, though Tracy thought they would not be coming home and would instead spend the night with her daughter.
Tracy initially testified at trial that the date was March 9, 2005, but she later corrected her testimony, identifying March 9, 2005, as the date she first reported the incident instead of the day of it.
Defendant was accompanied by his friend, Jimmy. Jimmy left after about 45 minutes but later that night spoke to Tracy by telephone. 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 Tracy’s children were also present, for many hours late that night and into the early morning hours of March 8, 2005.
Tracy first testified that Jimmy had called her. On cross-examination, she then said that he had called her on Rick’s phone and left a message and she had called him back. Upon further cross-examination, she said that it was actually her daughter who had called Rick’s phone and left the message that it was important for Tracy to call Jimmy.
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. Tracy’s 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 o’clock 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.
Tracy testified that defendant was outside in Melissa’s car charging his cell phone, with Tracy’s “permission,” from about 3:00 a.m. until about 7:00 a.m. when he woke her up.
At some point in the early morning of March 8, 2005, Tracy used Rick’s 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 defendant’s 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. 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.
Rick was concerned about the arguing, and he told defendant sometime that night that he “better not hit” Tracy.
In the morning of March 8, 2005, Tracy surreptitiously went through Rick’s room and the kitchen, out the back door, and upstairs to Melissa’s apartment. Although she hadn’t 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. 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.
Prior to Tracy waking her up that morning, Melissa had not heard anything unusual going on downstairs. She later heard Tracy and defendant arguing but she didn’t call police because she didn’t think it would do any good—the police had been called before and yet Tracy still “brought [defendant] back” into 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 “wasn’t 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 Rick’s room and into their bedroom. 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 couldn’t breathe. He also threatened to hit her with his fist.
Tracy testified that Rick was present and observed defendant drag her through his room. Although Rick later testified that he would sometimes see “welts” on Tracy’s body, he denied ever having seen defendant “do anything violent” to her.
Tracy also testified inconsistently that the choking incident had already occurred by the time she went upstairs in the morning to ask Melissa for a ride. This was not the only instance in which her testimony was inconsistent and she said repeatedly that she could not remember the time sequences in exact detail. But she also said that despite this memory deficiency, she knew exactly what had happened to her over the course of that night and into the next day.
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 couldn’t leave with the kids when they were not fully dressed as if they were out of the “Beverly Hillbillies.”
Tracy told defendant that she didn’t 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 defendant’s 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. Defendant would not let Tracy clean up the glass and he pushed her onto the bed.
The doors in the bedroom locked from the inside, meaning one could be locked out, but not inside, the room.
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. Because Tracy’s 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.
On cross-examination, Tracy confirmed that she had testified at the preliminary hearing that defendant had ripped her shirt.
Tracy also testified more generally and with much less detail about another incident of forced intercourse during the course of the night of March 7 into March 8, 2005. She also confirmed on cross-examination that defendant had forced her to orally copulate him three times and that she had said it was only two while testifying at the preliminary hearing, having omitted the time, described below, when Tammy and Sam drove up in the afternoon of March 8, 2005.
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 Rick’s 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 Tracy’s nose and forced her to orally copulate him to the point where she couldn’t 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, Tracy’s 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 Rick’s room and the kitchen, and out the back door to her sister’s 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 Tracy’s 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 Tracy’s 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 friend’s house in Milpitas for a couple of hours and then to a friend of a friend’s 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. The officer with whom she spoke on March 9, 2005, took a recorded statement. Tracy then returned to the house in Pleasanton where she had gone for safety after leaving the house the day before.
A photograph of her face taken at the same time showed no “shiner,” no redness, no swelling, or marks on Tracy’s face, nose, or throat.
San Jose police conducted both telephone and in-person interviews. Tracy told a detective in one of those interviews, inconsistently with her testimony at trial, that during the night of March 7, 2005, she and defendant had argued but that there had been no sex until the following morning.
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. 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.
Recorded messages were played for the jury.
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 defendant’s 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 Tracy’s 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 [Tracy’s] 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 defendant’s 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 Tracy’s 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 Tracy’s 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 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 prosecutor’s 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.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The People opposed both motions and the court held an evidentiary hearing at which defendant’s 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. 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. Defendant timely appealed from the judgment.
The court agreed with the probation report that the various acts defendant committed against Tracy were separate acts in between which defendant had had the opportunity to reflect before resuming his assaultive behavior. This finding resulted in fully consecutive sentences for counts 1, 2, and 5 under Penal Code section 667.6, subdivision (d).
The handwritten portion of the original minute order from the sentencing hearing and the handwritten portion of the corrected minute order from the same hearing, as well as the abstract of judgment, incorrectly show count 2 as a violation of Penal Code section 273.5, subdivision (a). Count 2 was a violation of Penal Code section 261, subdivision (a)(2). We direct modification of the abstract accordingly.
DISCUSSION
I. Defendant Has Not Shown Reversible Error With Respect to the Section 1109 Evidence
A. Defendant’s 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 evidence’s 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 defendant’s commission of other domestic violence is not made inadmissible by Section 1101 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.”
Section 1101, subdivision (a) precludes admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion.” Section 1101, subdivision (b), however, provides that subdivision (a) does not “prohibit the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
“ ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (Pen. Code, § 13700, subd. (b).) “ ‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a).)
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 defendant’s 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 court’s 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 court’s 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 1108—permitting 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 352—did not violate the due process clause. The proper exercise of a court’s discretion under section 352 provides the constitutional safeguard to ensure a fair trial.
We agree with those courts applying Falsetta’s rationale to section 1109 and we accordingly reject on the merits defendant’s 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. 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.
The witness list did not include Shalan Slagle. The prosecutor informed the court and defense counsel at trial that this section 1109 witness would deny that defendant had assaulted her in any way but that the People intended to call Officer Binder as a witness to the assault.
Regarding the proffered police officer testimony about defendant’s 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 officer’s 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 defendant’s alleged assault of Shalan was admissible under section 1109.
With respect to the testimony of Liza Speer, the prosecutor emphasized the similarity of defendant’s 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 prosecutor’s 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 court’s rulings on the admissibility of the other “more recent” section 1109 evidence. The prosecutor noted section 1109’s 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 counsel’s arguments, the court ruled the evidence concerning Stephanie Szoke admissible under section 1109.
2. The Section 1109 Evidence Offered at Trial
During the course of the section 1109 evidence, defense counsel reiterated his prior objections to this testimony that the court had already overruled.
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 friend’s house and defendant did not want her to leave or to spend money on a cab. Stephanie’s 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. Stephanie’s 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 wasn’t 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 Vallone’s boyfriend in July 1999 and they were living together. Richael spent the night at a girlfriend’s 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 friend’s neighbors, “[D]id [you] have fun, ‘you fucking bitch, last night,’ ” referring to the fact that she hadn’t come home the night before. They began to argue and defendant got out of his car and proceeded to try to take Richael’s car keys away from her. She wouldn’t 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 Year’s 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 f’ing 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 Liza’s 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 defendant’s 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 Shalan’s safety, the officer and his partner got out of their car and approached Shalan and defendant, detaining them. The jury was informed of counsel’s factual stipulation that if Shalan herself were called as a witness, she would testify that defendant had never assaulted her.
In the course of the officer’s testimony, defendant’s counsel again objected under section 352 and on the basis of relevance.
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 prosecutor’s closing argument focused on the section 1109 evidence in painting defendant as a violent man and one who “beats each woman that he’s 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 defendant’s 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 Tracy’s credibility.
With regard to Shalan, the prosecutor referred to her in argument as defendant’s “girlfriend” over defendant’s counsel’s 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 defendant’s relationship with Shalan could be circumstantially inferred through Liza’s 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 defendant’s 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, discrete occasions 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 witness’s 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 court’s reasoning in Poplar, supra, 70 Cal.App.4th at page 1139, the section 1109 evidence in this case was “extremely probative, showing defendant’s 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.)
We acknowledge that “[t]he weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (Jennings, supra, 81 Cal.App.4th at p. 1314.) We nonetheless view the factors described in Branch to be useful in our analysis of defendant’s challenge here to the admission of the section 1109 evidence.
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 factor—the remoteness of the past incidents of domestic violence—likewise 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 statute’s 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 defendant’s 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 reporter’s 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 officer’s testimony concerning defendant’s 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 defendant’s 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 defendant’s 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 evidence’s 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 defendant’s 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 defendant’s 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, defendant’s counsel only raising this issue during the prosecutor’s closing argument and failing to move that Officer Binder’s testimony be stricken. (§ 353, subd. (a).)
5. Conclusion Re Section 1109 Evidence
Based on our analysis, we reject all of defendant’s claims with respect to the section 1109 evidence.
II. Defendant’s Claims of Prosecutorial Misconduct
A. Defendant’s Claims
Defendant contends that the prosecutor committed misconduct during the course of closing argument in three respects. First, he claims that the prosecutor made statements regarding facts not in evidence in her discussion of Tracy having behaved like a typical domestic violence victim—a subject about which there was no expert opinion testimony offered at trial—in not asking for help during her ordeal and in not leaving defendant, her abuser. Second, he claims that the prosecutor committed misconduct by using testimony given by the section 1109 witnesses for an improper purpose—explaining domestic-violence-victim behavior—instead of limiting commentary on this evidence to the issue of defendant’s propensity to commit domestic violence. Defendant finally claims that the prosecutor committed misconduct in her closing argument in her discussion of the meaning of reasonable doubt.
Defendant asserts this second claim in a supplemental opening brief.
B. The Proceedings Below
In closing argument, the prosecutor argued without objection that Tracy was “a domestic violence victim. And she’s not going to go spreading around to everybody what’s going on with her. And how do we know that that’s how domestic violence victims act? Well, because they’re afraid, they don’t call 911. They’re afraid, when the police come, they don’t talk. They’re afraid, they say that these crimes didn’t happen.” Noting the code that Rick and Melissa had set up to ascertain whether Tracy needed help, the prosecutor asked, “Why do you do that? Because she’s a domestic violence victim and you’re afraid of what he’s doing to her. You set up a code to try to protect her.”
The prosecutor further argued that Tracy had put up with defendant’s behavior and didn’t leave because she was a domestic violence victim: “Now, one of the things that you may be thinking about is why didn’t Tracy leave[.] Why didn’t she get out of that house? And I want you to think about that, and I want you to think about it in relation to how some of those other women behaved. And I don’t want you to think of Tracy as the average preschool teacher, the average nurse, [or] someone that you know. Because the truth is that most people you know—you hope—would have been out of this relationship the time they got popped in the nose. Most people you know wouldn’t tolerate that, is what you hope and is what you think. [¶] And when you imagine how a woman would react, you think, ‘Oh God, I can’t imagine that they would put up with this.’ But you have evidence of other women who did. And you have evidence that [it’s] not a completely abnormal reaction to stay there.”
The defense made no objection to these statements.
With regard to the burden of proof, the jury was instructed that reasonable doubt is defined as “not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” Defense counsel emphasized that instruction in closing argument and urged the jury to focus on all the evidence, “the whole picture,” not just on what the prosecutor highlighted.
In rebuttal, the prosecutor said, “Beyond a reasonable doubt means that I’ve put on evidence of each element, and that you believe that evidence, you feel comfortable with it. That’s all there is.” Defense counsel objected on the basis that the prosecutor was misstating the law but the court overruled the objection noting that it was “argument” and further admonished the jury to “follow [the court’s] instruction on what the law is.” The prosecutor continued, “You can read the instruction for reasonable doubt, and it’s difficult to understand, it’s not quantifiable. I can’t tell you where on the bar it fits. But what I can tell you is that you feel in your heart that that’s what happened.”
Defense counsel again objected on the basis that the prosecutor was misstating the law, and the court again overruled the objection. Outside the presence of the jury, defense counsel restated his objection to the prosecutor’s “interpretation of reasonable doubt instruction.” The court again stated its view that the prosecutor’s statements constituted argument, but that the jury instructions controlled, as the court had told the jury.
C. Applicable Law
In People v. Hill (1998) 17 Cal.4th 800 (Hill), the California Supreme Court reiterated the legal principles applicable to claims of prosecutorial misconduct. “ ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citations.]’ [Citations.]” (Hill, supra, 17 Cal.4th at p. 819; see also People v. Lopez (January 28, 2008) ___ Cal.4th ___, ___ [2008 WL 216377, at pp. *2-3].)
With regard to closing argument, a prosecutor is given wide latitude to comment on the evidence. The argument “ ‘ “ ‘may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” (Hill, supra, 17 Cal.4th at p. 819) But a prosecutor’s reference to facts not in evidence clearly does constitute misconduct because such statements are equivalent to unsworn testimony that is not subject to cross-examination. (Id. at pp. 827-828.) Such references can circumvent the rules of evidence and can influence the jury because of the “special regard the jury has for the prosecutor.” (Id. at p. 828.) Thus, a prosecutor’s statements of “ ‘supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ [Citation.]” (Ibid.)
“ ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must [have made] a timely objection at trial and [have requested] an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ ” (People v. Earp (1999) 20 Cal.4th 826, 858-859 (Earp), quoting People v. Price (1991) 1 Cal.4th 324, 447; People v. Sapp (2003) 31 Cal.4th 240, 279.) But forfeiture does not result if a timely objection or request for admonition would have been futile, an exception applied only in “unusual circumstances.” (Hill, supra, 17 Cal.4th at p. 821; People v. Zambrano (2004) 124 Cal.App.4th 228, 237.) And a defendant does not forfeit the issue for appeal if an admonishment would not have cured the harm caused by the misconduct. (Hill, supra, 17 Cal.4th at p. 820.)
Where, as here, the claim of prosecutorial misconduct concerns statements made by the prosecutor to the jury, “we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. [Citations] No misconduct exists if a juror would have taken the statement to state or imply nothing harmful.” (People v. Woods (2006) 146 Cal.App.4th 106, 111.) When the claim of prosecutorial misconduct “ ‘focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
D. There Was No Prejudicial Misconduct Concerning the Behavior of Battered Women
Defendant first claims that the prosecutor’s above statements in closing argument referred to facts not in evidence concerning the typical behavior of battered women. Defendant forfeited this claim by failing to timely object to it or request an admonition below. (Earp, supra, 20 Cal.4th at pp. 858-859.) And he has not demonstrated that a timely objection or request for admonition would have been futile or would not have cured the alleged harm.
But even if this claim were not forfeited, we would reject it on the merits. It is true that there was no expert opinion testimony offered on the behavior of battered women in general. But the jury did hear that Tracy was afraid and reluctant to ask for help and that she stayed with defendant despite prior abusive incidents. They also directly heard from other victims of defendant’s abuse that these women were similarly afraid of defendant, were reluctant to call police or report defendant’s behavior, were willing to remain with him despite the abuse, and/or were reluctant to testify about it. Although it might have been better presented through expert testimony, the prosecutor’s remarks constituted no more than commentary on the evidence adduced from Tracy and the prior domestic violence victims, as to which the prosecutor had wide latitude to draw reasonable inferences and deductions. (Hill, supra, 17 Cal.4th at p. 819.) The prosecutor also was free during summation to “ ‘ “ ‘state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation]” ’ ” (Id. at p. 819.) Thus, the prosecutor’s comments about the behavior of domestic-violence victims did not constitute the statement of facts not in evidence or a mischaracterization of the evidence.
For these myriad reasons, we reject defendant’s claim of misconduct with respect to the prosecutor’s references to Tracy’s behavior as conforming to that typical of domestic-violence victims.
Defendant raises a second misconduct challenge to the prosecutor’s references to the behavior of domestic-violence victims in closing argument. He contends that the prosecutor used the section 1109 evidence for an “unauthorized” and improper purpose—establishing abuse-victim propensity to behave in certain ways as opposed to the defendant’s propensity to commit domestic violence—and that this was a misuse of the limited purpose for which the section 1109 evidence was admitted.
We reject this contention for several reasons. First, there was no objection on this ground below and the claim has thus been forfeited. (Earp, supra, 20 Cal.4th at pp. 858-859.) Reaching the merits, we find defendant’s distinction between the use of the evidence to show victim propensity and its use to show the propensity of the accused to commit the charged crimes to be artificial. The section 1109 evidence was admitted for the limited purpose of showing that defendant committed prior offenses involving domestic violence, and if the jury so found by a preponderance of the evidence, they were permitted under the statute to infer that defendant had a disposition to commit other such offenses. The prosecutor thus bore the burden of proving that defendant had indeed previously committed acts of domestic violence, an issue as to which the victims’ credibility was relevant. The victims’ behavior in the face of defendant’s abuse was, in turn, an issue that bore on their credibility. Thus, in an attempt to prove defendant’s prior offenses involving domestic violence, the prosecutor was free to elicit evidence of the victims’ fear and reluctance to report the abuse to bolster their credibility and she was free to comment on the evidence for this purpose in argument. The point is this: Evidence concerning the victims’ responses to defendant’s abuse was relevant to the issue whether defendant committed that abuse, a question that was properly before the jury. Therefore, the prosecutor did not argue the evidence for an improper purpose or one that was beyond the limiting instruction concerning this evidence.
E. There Was No Prejudicial Misconduct Concerning Reasonable Doubt
Defendant contends that the prosecutor’s statements in closing argument concerning the meaning of reasonable doubt, as to which his counsel objected and the court admonished the jury, amounted to misconduct. He contends that the statements constituted misstatements of the law and they trivialized the reasonable doubt standard by “equating it to something that the jurors ‘feel comfortable with,’ and something ‘that you feel in your heart that that’s what happened.’ ” Defendant likens the effect of these statements to those in People v. Nguyen (1995) 40 Cal.App.4th 28, 35-37; People v. Johnson (Danny) (2004) 115 Cal.App.4th 1169, 1171-1172; and People v. Johnson (Glen) (2004) 119 Cal.App.4th 976, 978-986, in all of which courts of appeal found misstatements of the standard of reasonable doubt, which had the effect of lowering the burden of proof by equating this standard with that used in making other life decisions such as whether to change lanes while driving, whether to go on vacation, or whether to marry.
In People v. Nguyen, supra, 40 Cal.App.4th at pages 35-37, the court of appeal concluded that the prosecutor’s comments had the effect of trivializing the reasonable doubt standard but that the issue was waived for the failure to object below and that the error was in any event harmless because the prosecutor also directed the jury’s attention to the correct reasonable doubt instruction. In People v. Johnson (Danny), supra, 115 Cal.App.4th at pages 1171-1172, the court of appeal held that the trial court had committed reversible error by amplifying on the reasonable doubt instruction during jury selection, which had the effect of trivializing the reasonable doubt standard and equating it with judgments and deliberations made in the ordinary affairs of life. In People v. Johnson (Glen), supra, 119 Cal.App.4th at pages 978-986, the court of appeal also reversed for instructional error where the trial court had similarly amplified on the reasonable doubt instruction to the same effect and the prosecutor echoed the judge’s comments in argument. Although the trial court had given the proper reasonable doubt instruction, the court’s “tinkering” with it lowered the burden of proof and any objection would have been futile. (Id. at pp. 985, 984-985.)
Respondent, on the other hand, contends that this case is better analogized to People v. Hinton (2006) 37 Cal.4th 839 (Hinton) and People v. Barnett (1998) 17 Cal.4th 1044 (Barnett), in both of which the high court held that prosecutors’ statements in argument, which were similar to those made here, were within the context of explaining the correct standard of proof and were made not inconsistently but rather in conjunction with a proper reasonable doubt instruction.
In Hinton, the prosecutor told the jury that “ ‘you want to make sure that each and every allegation against the defendant has been proven to your satisfaction.’ ” (Hinton, supra, 37 Cal.4th at p. 871.) The Supreme Court held that with the trial court having repeatedly instructed the jury as to reasonable doubt, the jury plainly would have understood the prosecutor’s statement to mean “that the crimes must be proven to its ‘satisfaction’ under the appropriate standard of proof.” (Ibid.)
In Barnett, the prosecutor said, “ ‘If you have that feeling, that conviction, that gut feeling that says yes, this man is guilty . . ., that’s beyond a reasonable doubt.’ ” (Barnett, supra, 17 Cal.4th at p. 1156.) The Supreme Court held that defendant’s claim of prosecutorial misconduct, specifically the statement that reasonable doubt equated with a “ ‘gut feeling,’ ” had not been preserved for appellate review. But reaching the merits, the court concluded that “[w]hen considered as a whole, the prosecutor’s argument could not have misled the jury regarding the appropriate standard of proof. [He] was not purporting to define ‘moral certainty’ [then a part of the reasonable doubt instruction] as having a ‘gut feeling’ rather, he was directing the jurors to trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony. Shortly after making the ‘gut feeling’ reference, the prosecutor clarified that jurors should ‘look beyond the mere words that have been testified to, ‘to examine closely the various witnesses, their demeanor, their attitude,’ and ‘apply sometimes a certain intuitive reasoning to who has reasons to lie, who has not. And who to believe.” (Id. at p. 1157.) The trial court had also repeatedly admonished the jurors in Barnett “that they were required to follow the law and base their decision solely on the law and instructions as given to them by the court.” (Ibid.) The high court held that these admonishments were sufficient to “dispel any potential confusion raised by the prosecutor’s argument.” (Ibid.)
Here, the court correctly instructed the jury as to the reasonable doubt standard. Right after the prosecutor’s statement that the standard means “that you believe that evidence, you feel comfortable with it,” the court overruled defendant’s objection but the court also admonished the jury to follow the law as stated by the court in instructions. Then the prosecutor suggested to the jury that they read the instruction, and that though the standard is “not quantifiable,” it is “that you feel in your heart that that’s what happened.”
At that point, defense counsel objected again, and the objection was again overruled. We conclude that under these circumstances, any further request for admonition would have been futile. (Hill, supra, 17 Cal.4th at pp. 820-821.)
We conclude that the proper instruction by the court as to reasonable doubt, and the court’s further admonishment to the jury to follow the law as stated by the court at the time of the prosecutor’s statements, were sufficient to “dispel any potential confusion raised by the prosecutor’s argument.” (Barnett, supra, 17 Cal.4th at p. 1157.) And the statements were immediately followed by the prosecutor’s suggestion that the jury read the reasonable doubt instruction, which, she said was difficult to understand but meant that the jurors “feel in [their] heart that that’s what happened.” These statements taken together would have conveyed to the jury, as in Hinton, that reasonable doubt means that the jurors feel “in [their] heart[s]” that the crimes were proven in accordance with “the appropriate standard of proof.” (Hinton, supra, 37 Cal.4th at p. 871.)
And although we acknowledge that the jury has a “ ‘special regard . . . for the prosecutor,’ ” (People v. Woods, supra, 146 Cal.App.4th at p. 117), her statements in argument under the circumstances presented here are easily distinguished from what occurred in People v. Johnson (Danny), supra, 115 Cal.App.4th at pages 1171-1172 , and People v. Johnson (Glen), supra, 119 Cal.App.4th at pages 978-986, where it was the court, in the cloak of its authority, that amplified on the reasonable doubt instruction and trivialized the standard of proof by equating it with other life decisions or judgments, some of which were as reflexive and mundane as changing lanes while driving. This same trivialization, which effectively lowered the standard of proof, was also present in People v. Nguyen, supra, 40 Cal.App.4th at pages 35-37, and is absent here. The Nguyen court in any event concluded that the error was harmless because, as happened here, the prosecutor also referred the jury to the reasonable doubt instruction. (Ibid.)
And on this record, we reject defendant’s contention that what the prosecutor said here was “worse [than trivialization] by equating the standard of proof to something as amorphous as what the jurors felt comfortable with or what they felt in their heart [had] happened.” Defendant ignores that the context of these remarks sufficiently connected them to the reasonable doubt instruction and thus conveyed to the jury that in order to convict, they had to feel “in their heart” and had to be “comfortable with” the conclusion that the prosecution had proved each element in accordance with the “appropriate standard of proof.” (Hinton, supra, 37 Cal.4th at p. 871.) Moreover, any confusion would have been dispelled by the court’s admonition to follow the law and the instructions. (Ibid.)
III. Defendant Has Not Demonstrated Ineffective Assistance of Counsel
A. Defendant’s Claims
Defendant claims ineffective assistance of counsel in several respects. First, he contends that his lawyer failed to object to admission of the section 1109 evidence on the basis that it was cumulative and also failed to specifically object to the evidence concerning Shalan Slagle on the basis that there was no showing of a relationship between her and defendant such that his assaultive behavior towards her would qualify as “domestic violence” under section 1109, subdivision (d)(3). He next contends that he received ineffective assistance of counsel for his lawyer’s failure to have objected to the prosecutor’s statements regarding the typical behavior of domestic violence victims and his failure to have requested that the jury be again admonished to disregard the prosecutor’s statements concerning the meaning of reasonable doubt. We address these claims in turn, rejecting each.
B. Controlling Law
An ineffective assistance of counsel claim requires a showing that “counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial.” (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “[T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.) This means that the defendant “must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to [the] defendant in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland, supra, 466 U.S. at p. 686.)
The first element of an ineffective assistance of counsel claim “requires a showing that ‘counsel’s representation fell below an objective standard of reasonableness.’ [Citations.]” (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland, supra, 466 U.S. at p. 688.) “ ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Further, “[i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (Ibid.; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where record is lacking on appeal, ineffective assistance claim more appropriately litigated via habeas proceeding].)
As to the second element of a claim of ineffective assistance of counsel, a defendant must show that he was prejudiced by counsel’s conduct, that is, it is reasonably probable a more favorable result would have obtained absent counsel’s failings. (Strickland, supra, 466 U.S. at p. 688; People v. Lucas (1995) 12 Cal.4th 415, 436; In re Cordero (1988) 46 Cal.3d 161, 180.) But the court need not determine that counsel’s performance was indeed deficient before examining the prejudice asserted as a result of the alleged deficiencies. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
It is against this backdrop that we examine defendant’s claims of ineffective assistance of counsel.
C. Claims Regarding the Section 1109 Evidence
Defendant contends that his lawyer failed to object to admission of the section 1109 evidence on the basis that it was cumulative and also failed to specifically object to the evidence concerning Shalan Slagle on the basis that there was no showing of a relationship between her and defendant such that his assaultive behavior towards her would qualify as “domestic violence” under section 1109, subdivision (d)(3). We have already rejected on the merits the claim that the section 1109 evidence was cumulative and should have been excluded on this basis.
With respect to counsel’s failure to have objected to the Shalan Slagle evidence under section 1109 on the basis that there had been no showing of a qualifying relationship between her and defendant, we agree with defendant that this constituted deficient performance. Counsel’s failure to have so objected thus meets the first prong of defendant’s ineffective assistance of counsel claim with respect to this issue. But we further conclude that on this record, counsel’s failure to have objected to the Shalan Slagle evidence on this basis was not prejudicial.
As respondent points out, evidentiary error does not warrant reversal unless it is reasonably probable that the jury would have reached a different result absent the error, a scenario not supported by this record. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) First, the Slagle incident was the mildest of the section 1109 evidence, the balance of which, if believed, cumulatively established defendant’s propensity to commit domestic violence. Second, the jury was told that Shalan disputed that defendant had assaulted her in any way, discounting the probability that the jury relied on this particular evidence, as opposed to the rest of the undisputed section 1109 evidence, to establish defendant’s propensity. Third, Liza Speer testified that defendant and Shalan spent so much time together that she considered them to have been romantically involved even though Liza was seeing defendant at the time. This circumstantial evidence arguably cured the earlier absence of evidence showing a “domestic” relationship between defendant and Shalan. With the balance of the section 1109 evidence, Tracy’s testimony concerning the charged offenses, and the lack of substantial evidence of defendant’s innocence, it is not reasonably probable that the jury would have reached a different result had it not heard Officer Binder’s testimony concerning the Shalan incident.
Our rejection on the merits of defendant’s claim that the section 1109 evidence was cumulative and our conclusion that counsel’s failure to object to the Shalan Slagle evidence for the lack of a qualifying relationship under section 1109 was not prejudicial together defeat defendant’s claims of a violation of his constitutional right to the effective assistance of counsel with respect to these issues. (People v. Dickey (2005) 35 Cal.4th 884, 915; Strickland, supra, 466 U.S. at p. 688.) Moreover, the record does not shed light on the reasons for counsel’s lack of objection, which is inherently a tactical decision. (People v. Lopez, supra, ___ Cal.4th at p. ___ [2008 WL 216377, at p. *7] [failure to object is inherently tactical and will rarely establish ineffective assistance of counsel].) We accordingly reject the claims.
D. Claims Regarding Prosecutorial Misconduct
Defendant also claims ineffective assistance of counsel for his lawyer’s failure to have objected to the prosecutor’s references in closing argument to the typical behavior of domestic-violence victims and her use of the section 1109 evidence to explain such behavior. We have already rejected defendant’s contentions that the prosecutor committed misconduct in this regard. This conclusion, along with the fact that the record displays no reasons for counsel’s lack of objection, defeats defendant’s ineffective assistance claims regarding these issues on appeal. (People v. Dickey, supra, 35 Cal.4th at p. 915; People v. Lopez, supra, __ Cal.4th at p. __ [2008 WL 216377, at p. *7].) We have also rejected his claim that the prosecutor committed misconduct by her statements in closing argument concerning reasonable doubt. And with respect to this issue, counsel did object below and we found that a further request for admonition would have been futile. These conclusions defeat defendant’s ineffective assistance claim with respect to this issue. (Ibid.)
IV. The Trial Court Did Not Abuse its Discretion in Denying Defendant’s Motion For New Trial
Defendant contends that the trial court abused its discretion in denying his motion for new trial, which was made on the grounds of ineffective assistance of counsel. He specifically contended below that defense counsel had failed to adequately investigate alibi witnesses, had failed to adequately cross-examine prosecution witnesses, and otherwise had failed to present an adequate defense at trial. He contends on appeal that the court erred by reaching the conclusion that counsel’s asserted errors constituted trial tactics without evidence or explanation of such tactics.
A defendant may move for new trial on statutory grounds as provided at Penal Code section 1181. Although not specifically listed among the statutory grounds, ineffective assistance of counsel is a valid basis for a motion for new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) On appeal, a trial court’s ruling on a motion for new trial will not be disturbed “ ‘ “unless a manifest and unmistakable abuse of discretion clearly appears” ’ ” and prejudicial error is demonstrated. (People v. Guerra (2006) 37 Cal.4th 1067, 1159-1160.)
The court below held an evidentiary hearing on the motion for new trial at which defense counsel testified. Counsel specifically said that he had discussed most trial strategy and tactics with defendant, and that his choices about which witnesses to call or not call and what areas of cross-examination to pursue were part of his trial tactics. Counsel also said that in investigating alibi witnesses, he discovered that their stories were inconsistent and did not match up with relevant dates. As to his alleged failure to follow up on a particular police report, counsel said that he had pursued the report in discovery but it had not been produced, leading to the court’s finding that the report did not in fact exist. And as to his asserted failure to call defendant’s friend, Jimmy, as a witness for the purpose of offering testimony that defendant and Tracy had previously engaged in “roughhousing,” counsel noted that Jimmy could not be located and he tactically in any event decided not to call him.
In addition to counsel’s testimony, the court also relied, as it was permitted to do, on its own observations of the trial and defense counsel’s performance. (People v. Fosselman, supra, 33 Cal.3d at p. 582.) In denying the motion, the court permitted defendant to ask questions and the court responded to them by explaining some of those observations. These explanations revealed that the court had indeed recalled particular aspects of counsel’s performance and understood how trial tactics had determined that performance.
Contrary to defendant’s contention, the trial court here based its decision to deny the motion for new trial on ample evidence appearing in the record. Counsel was not required to “elaborate” on his trial tactics or further explain “how his decisions fit into them.” Although, as urged by defendant, a court abuses its discretion when facts critical to its decision find no support in the evidence, that is manifestly not the case here. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) Defendant has accordingly failed to show an abuse of discretion in the trial court’s denial of his motion for new trial.
DISPOSITION
We direct modification of the abstract of judgment to reflect that the offense charged in count 2 is a violation Penal Code section 261, subdivision (a)(2). In all other respects, the judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J., Mihara, J.
Under Family Code section 6211, “[d]omestic violence is abuse perpetrated against any of the following persons: [¶] (a) A spouse or former spouse. [¶] (b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship. [¶] (d) A person with whom the respondent has had a child, . . . . [¶] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, . . . [¶] (f) Any other person related by consanguinity or affinity within the second degree.” Under Family Code section 6209, “ ‘[c]ohabitant’ means any person who regularly resides in the household. ‘Former cohabitant’ means a person who formerly regularly resided in the household.”