Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06HF0623, Derek Guy Johnson, Judge. Affirmed in part and reversed in part and remanded with directions.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury found defendant James Michael Brady guilty of aggravated assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), violating a protective order (Pen. Code, § 166, subd. (c)(1)), and two counts of misdemeanor domestic violence battery (Pen. Code, § 243, subd. (e)(1)). The court found true the allegations defendant had suffered two prior strikes (Pen. Code, §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and served four prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to state prison for 25 years to life on the aggravated assault count and stayed sentence on the other counts and the prison priors. Defendant contends, and the People agree, his conviction for violating a protective order must be reversed because the protective order expired before his alleged violation of it. Defendant further contends the court abused its discretion and violated his constitutional rights by admitting evidence of his uncharged acts of domestic violence. Finally, defendant claims the court abused its discretion by refusing to dismiss a prior strike conviction. We reverse the judgment as to defendant’s conviction for violating a protective order. In all other respects, we affirm the judgment.
FACTS
Beginning no later than the year 2000, Melinda Lamb was romantically involved with defendant, although she remained married to another man in a marriage of convenience. At trial Lamb testified about defendant’s many acts of domestic violence against her over the course of their relationship. On appeal, defendant contends the court erred by admitting propensity evidence of his uncharged acts of domestic violence. We therefore recite the facts relating to his charged offenses separately from the facts regarding his uncharged conduct.
Charged Offenses
Count 3 of the operative information charged defendant with committing domestic violence battery upon Lamb on February 27, 2006. On that date Lamb was working at her job at a school district while defendant slept in Lamb’s van parked at the site. Later, as Lamb drove home with defendant in the back of the van, defendant took Lamb’s cell phone and began looking at her recent calls. Several times Lamb asked him to return her phone because she “really needed to use” it. Defendant threw the phone at Lamb’s face, breaking a crown on her front tooth.
Count 2 charged defendant with committing domestic violence battery upon Lamb on March 13, 2006. On this occasion, Lamb was driving home from work with defendant seated in the front passenger seat. Defendant could not find his sunglasses so he “ripped” Lamb’s sunglasses off her face “as hard as he could,” scratching her face, particularly her nose.
Count 1 charged defendant with committing aggravated assault upon Lamb on March 17, 2006. On that date, Lamb spent several hours at the dentist’s office getting her broken tooth capped while defendant waited in the van. When Lamb returned to the van, defendant was angry she had taken so long and accused her of having an affair with the dentist or “a neighbor of the dentist.”
On the way home, they stopped at a bird sanctuary where defendant threw a shoe at her. Back in the van, defendant was unhappy about Lamb smoking “the last” cigarette. He took the lit cigarette from her, “held the burning end close to [her] cheek so [she] could hear [it] sizzle,” and threatened to burn her. He then “threw her to the back of the van.”
Later, when defendant and Lamb walked into Lamb’s house after running an errand, they started arguing. At this point, it was light outside. Defendant “became agitated and chased [Lamb] around inside the garage and told [her] to shut [her] filthy mouth.” Crying, Lamb tried “to get to the door,” but he would not let her leave. He screamed at her “to shut up”; “held his hand over [her] mouth”; and yelled many times, “Shut up, bitch.” Lamb was afraid “he would snap [her] neck” as he had threatened to do “on rare occasions” in the past. He “threw [her] down to the ground and yelled at [her], and if [she] got up he chased [her].” He then hit her “really hard” with a closed fist twice on the back of her head.
Frightened and in pain, Lamb “got really small” into a fetal position and “put a pillow over [her] head” because she “didn’t want him to hit [her] anymore.” She lay “still to calm him down.”
Lamb told defendant she was in pain and that she wanted to go to a doctor. He laughed and said, “That’s one place you’re not going.” Lamb said she would “make up a story” and tell the doctor she “fell down,” but defendant still refused to let her see a doctor.
Lamb did not phone the police at this point “[b]ecause it would have pissed him off.” “He came at [her] again,” “grabbed [her] face,” and “threw [her] down.” Lamb “blacked out.”
When she awoke, it was dark outside and defendant was shaking her. “He wanted something to eat.” She asked to leave several times, but he said, “No.” She made him peaches and cream.
While they were both in the kitchen, Lamb heard her husband unlocking and opening the front door. Defendant ran into the garage. Lamb went out the front door, ran to her van in the driveway, and got into the driver’s seat. Defendant got into Lamb’s van. Lamb moved to her husband’s van parked next to hers, and locked the door. Defendant banged on the van’s window, told her to let him in because Lamb’s husband would phone the police, tried to break the window with a rock, and then “fled down the driveway.”
Lamb’s husband phoned 911. An officer arrived at the scene to find Lamb and her husband standing in the driveway. Lamb “appeared nervous and afraid” and said she feared defendant would “come back for her.” She kept looking around, as though for somebody, and at a fence near her house, afraid defendant would climb over it.
Lamb had cuts “above her lip and to the side of her nose.” She stated defendant caused those injuries and that her head hurt and was throbbing. When the officer offered to call the paramedics, Lamb stated she “did not need them at that point,” but would be going to the doctor herself.
In addition to interviewing Lamb at the scene, the officer took a written statement from her at the police station. Lamb still complained of pain and said she was afraid she would black out. She declined medical attention again and said she would “get it on her own.” In the early morning hours of the next day, an “emergency room physician diagnosed Lamb with a concussion.”
Count 4 of the operative information charged defendant with violating a protective order sometime between February 27 and March 17 of 2006.
Uncharged Conduct
In 2001, Lamb moved into an apartment with defendant. During the time they lived together, defendant physically assaulted Lamb at least 12 times, but Lamb did not report most of these incidents to the police. She reported only the assaults where she feared defendant “was going to actually be out of control enough to kill” her. In April 2001, Lamb locked defendant out of the apartment. He entered by smashing the bedroom window and took the keys to a rental truck. Lamb fled and hid in a parking lot where, fearful for her life, she contacted security. A police officer arrived at the scene in response to a neighbor’s phone call. Lamb told the officer she was afraid of defendant and asked for a protective order.
Defendant served a prison term for the April 2001 offense. Lamb visited him in prison twice a month or more because she loved him, although she moved back in with her husband for financial reasons. Upon defendant’s release from prison, Lamb resumed her relationship with him.
In May 2005, a second incident sent defendant to prison. In this incident, defendant came to Lamb’s house, angry because Lamb was “cleaning and doing laundry.” Defendant threatened to burn the house and to break Lamb’s husband’s neck and legs so Lamb “would have to take care of [her husband for] the rest of [her] life.” Defendant “picked [Lamb] up by [the] face and threw [her] onto the cement floor.”
Based on this incident, Lamb obtained a protective order prohibiting defendant from coming within one mile of her or contacting her. Despite the protective order, Lamb visited him in prison at least once and also stayed in touch through letters and phone calls.
Upon defendant’s release from prison on January 17, 2006, Lamb picked him up and drove him to his new home. Based on his letters and phone calls, she believed he had changed. She had daily contact with him, and let him stay at her house when her husband was away. During the next six weeks, defendant physically abused Lamb at least five times. In one incident, defendant and Lamb were at a pharmacy, when Lamb saw a male friend and spoke briefly with him. Defendant and Lamb went out to her van, where defendant called her a “whore” and threw her “across from the front to the back” of the vehicle. (During their relationship, defendant called her “fucking cunt bitch whore” so often, “it was like [her] second name.”)
Between February 27, 2006 (the date of the count 3 battery) and March 13, 2006 (the date of the count 2 battery), defendant’s anger escalated; he was hurtful to and hit Lamb more often. She did not report it to the police in hopes defendant could change.
On March 14, 2006, defendant knocked loudly on Lamb’s door and “scream[ed] and holler[ed]” until she let him in to take a shower. Lamb tried to leave the house, but defendant “came out after” her and “told [her] to get back in the house.”
Three days later, the count 1 aggravated assault incident occurred.
One week later, defendant went to Lamb’s work place in his car and demanded that she follow him in her van. As soon as they neared a “freeway on-ramp [Lamb] bolted on the freeway and he tried to run [her] off the road.” He drove away when Lamb began following a police car. That same day, when Lamb and her husband were not home, a friend of Lamb’s husband phoned to warn Lamb that defendant was trying to break into the house.
The next day, Lamb was home alone and let defendant into the house to use the shower. Defendant asked Lamb to drive him to his friend’s house. En route, Lamb stopped at an intersection near a police station and walked down the center divider. She planned to walk to the police station, because she had decided to get defendant “away from [her] forever” because he was involving her job, which she loved and was “the only thing [she] had left” and she did not “want to lose it.” Defendant shouted at her. The police arrived and arrested defendant.
Lamb’s Recantation
In an August 24, 2006 letter to the district attorney, Lamb recanted her statements to police and claimed that, due to her anxiety medications, she was not in her “right mind” when making the police reports.
At trial Lamb testified she wrote the letter at defendant’s suggestion and to try to gain his release from custody; she admitted the letter was a lie. She also testified that she lied at defendant’s preliminary hearing when she stated she could not recall any of the charged events and did not believe defendant would ever hit her “with enough force to cause a concussion or blackout.”
Defense
Defendant admitted the “evidence corroborat[ed]” all the charges against him, except for the aggravated assault charge. As to the latter charge, defendant’s theory was that Lamb had lied about the alleged aggravated assault and had exaggerated her injuries.
Doctor Kenneth Nudleman, a neurologist, testified he reviewed an emergency room report and a cat scan of Lamb’s brain, both taken on the day after the alleged aggravated assault. According to Nudleman, the cat scan showed Lamb’s brain, skull and soft tissues were normal, with no swelling, fracture, surface hemorrhage, contusion, or other abnormalities. The neurological examination from the emergency room file showed nothing abnormal. Although the emergency room physician diagnosed Lamb with a concussion, Nudleman believed the diagnosis must have been based “upon the historical information” reported by Lamb. The neurologist could not “say whether she was hit or not, but [he could] say that the force must have not been of any substance.”
DISCUSSION
Defendant’s Conviction for Violating a Protective Order Must Be Reversed
Defendant contends, and the People agree, his conviction for violating a protective order cannot stand because the protective order expired before the date of the alleged violation. Count 4 of the operative information charged defendant with violating a Penal Code section 136.2 protective order sometime between February 27, 2006 and March 17, 2006. Penal Code section 136.2 protective orders “are limited to the pendency of the criminal action in which they are issued or to probation conditions....” (People v. Stone (2004) 123 Cal.App.4th 153, 159.) Here, the predicate protective order was issued in an action against defendant for making criminal threats (Pen. Code, § 422) that culminated on March 18, 2005 in defendant pleading guilty and being sentenced to a prison term. Thus, defendant was not granted probation and the protective order expired no later than March 18, 2005, almost a year before defendant’s alleged violation of the order. Accordingly, we reverse defendant’s conviction for violation of a protective order.
Evidence Code Section 1109 and CALCRIM No. 852 Relating to Uncharged Acts of Domestic Violence Are Not Unconstitutional
At trial, pursuant to Evidence Code section 1109, Lamb testified to numerous uncharged acts of domestic violence perpetrated by defendant against her. Defendant contends section 1109 violates the due process and equal protection clauses of the Fourteenth Amendment because it permits the introduction of propensity evidence that is inherently prejudicial and discriminates against defendants charged with domestic violence. He further contends he was denied due process because a related jury instruction, CALCRIM No. 852, told the jury it could consider this propensity evidence to convict him even if proved only by a preponderance of the evidence.
All further statutory references are to the Evidence Code unless otherwise stated.
The People contend defendant forfeited his constitutional challenges to section 1109 and CALCRIM No. 852 by failing to object below. At trial, defense counsel never challenged the constitutionality of section 1109 or CALCRIM No. 852. In fact, prior to charging the jurors, the trial court asked defense counsel if he was “okay with [CALCRIM No. 852] in its current form,” to which defense counsel replied, “Yes.” Nonetheless, to forestall an ineffective assistance claim in a habeas corpus petition, we address defendant’s constitutional challenges on the merits without deciding whether defendant waived the issues.
Under section 1101, character evidence is inadmissible when offered to prove a defendant’s “conduct on a specified occasion,” with the exception of “evidence that a person committed a crime... when relevant to prove” a defendant’s motive, identity, or some other fact besides the defendant’s propensity to commit such conduct. (§ 1101, subds. (a), (b).)
In domestic violence cases, however, section 1109 creates an exception to section 1101’s prohibition against propensity evidence. Under section 1109, when a criminal defendant is accused of a domestic violence offense, “evidence of the defendant’s commission of other domestic violence” is not excluded under section 1101 if not inadmissible under section 352. (§ 1109, subd. (a).)
For purposes of section 1109, “‘[d]omestic violence’” includes the abuse of an adult “with whom the suspect... has had a dating... relationship” (Pen. Code, § 13700, subd. (b)), and “‘[a]buse’” means “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to... herself, or another.” (Id. subd. (a).)
Defendant contends section 1109 violates the due process and equal protection clauses of the Fourteenth Amendment because “the admission of propensity evidence renders a defendant’s trial fundamentally unfair” and discriminates against defendants charged with domestic violence offenses. We address defendant’s due process challenge first before turning to his equal protection claim.
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court rejected a due process challenge to section 1108, which permits the admission in a sex offense case of evidence of a defendant’s other sex crimes to show the defendant’s propensity to commit such acts. (Falsetta, at p. 907.) Falsetta held “section 1108 is constitutionally valid” because, although it “represents a deviation from the historical practice of excluding such ‘propensity’ evidence [citation], the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value....” (Ibid.)
Sections 1108 and 1109 are parallel statutes; the Legislature “‘modeled’” section 1109 on section 1108. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).) Nonetheless, defendant attempts to distinguish Falsetta on the basis that “California law treats violent sexual crimes differently from other offenses.” Other Courts of Appeal, however, have recognized that, “as in sexual offense cases, special evidentiary rules are justified [in domestic violence cases] because of the distinctive issues and difficulties of proof in this area” (Brown, at p. 1333), and that Falsetta’s reasoning applies equally “to prior acts of domestic violence” under section 1109 (People v. Johnson (2000) 77 Cal.App.4th 410, 419). The legislative history of section 1109 “recognizes the special nature of domestic violence crime, as follows: ‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.’” (Johnson, at p. 419.)
Defendant contends section 352 cannot guard against the inherent unfairness of propensity evidence, arguing such evidence is always “unduly prejudicial to the defendant.” But the purpose of the general rule against the admission of propensity evidence is to “guard[] against undue prejudice....” (Falsetta, supra, 21 Cal.4th at p. 916, italics added.) Section 352 does just that, by authorizing a court in its discretion to exclude evidence whose “probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice.” (Falsetta, at p. 916, italics added.)
In sum, we agree with the uniform appellate holdings that section 1109 does not violate the due process clause. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings); People v. Hoover (2000) 77 Cal.App.4th 1020, 1029; Brown, supra, 77 Cal.App.4th at p. 1334; Johnson, supra, 77 Cal.App.4th at p. 420; People v. Escobar (2000) 82 Cal.App.4th 1085, 1096.)
Nor does section 1109 deny domestic violence defendants the equal protection of the laws by treating them differently from other criminal defendants. First, defendant “fails to show that domestic violence defendants are ‘similarly situated’ with respect to all other criminal defendants.” (Jennings, supra, 81 Cal.App.4th at p. 1311.) Second, “the connection between the evidentiary purpose of section 1109 and [defendant’s] liberty interests [is not] sufficiently direct to trigger the strict scrutiny standard of review.” (Id. at p. 1312.) “Because section 1109 does not implicate [defendant’s right to due process, a fair trial, or conviction by proof beyond a reasonable doubt], the statute will satisfy constitutional equal protection requirements if it simply bears a rational relationship to a legitimate state purpose.” (Ibid.) A rational basis exists for the Legislature’s decision to make propensity evidence admissible in domestic violence cases. Like sex crimes, “domestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually — even inevitably — so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused.” (Id. at p. 1313.)
We turn to defendant’s constitutional challenge to CALCRIM No. 852, which the court read to the jury as follows: “The People presented evidence that the defendant committed domestic violence that was not charged in this case.... You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit aggravated assault and domestic violence battery as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of aggravated assault[,] domestic violence or their lesser included offenses. The People must still prove each element of every charge beyond a reasonable doubt.”
Defendant first argues CALCRIM No. 852 is unconstitutional simply because it allows the jury to consider propensity evidence at all. Compounding the problem, defendant argues next, the jurors were allowed to consider the propensity evidence if proved by a preponderance of the evidence and to factor it into their decision whether the People proved the charged crimes beyond a reasonable doubt. Defendant concludes CALCRIM No. 852 violated his constitutional right to due process “by undercutting the reasonable doubt standard.”
As explained above, the admission of domestic violence propensity evidence did not violate defendant’s right to a fair trial under the due process clause. We therefore address only defendant’s contention CALCRIM No. 852 is unconstitutional because it allegedly allows a jury to convict a defendant by a preponderance of the evidence.
In Brown, supra, 77 Cal.App.4th at page 1335, the defendant contended a predecessor instruction to CALCRIM No. 852 (the 1999 revised version of CALJIC No. 2.50.02) violated his right to due process because it allowed the jury to find “him guilty under a standard that was less than beyond a reasonable doubt.” (Brown, at p. 1335.) CALJIC No. 2.50.02 allowed the jury to find (by a preponderance of the evidence) that the defendant committed a prior domestic violence offense, and to infer there from that the defendant was “‘likely to commit and did commit the crimes charged against him,’” but warned the jury such finding was “‘not sufficient by itself to prove that he committed the charged offenses.’” (Brown, at p. 1334.) Brown held CALJIC No. 2.50.02 “did not allow the jury to infer that [the defendant] committed the charged crime solely from proof that he committed the prior acts of domestic violence.” (Brown, at p. 1335.)
In People v. Pescador (2004) 119 Cal.App.4th 252, an appellate court agreed with Brown and rejected the defendant’s contention that CALJIC No. 2.50.02 “undermin[ed] the beyond a reasonable doubt standard to be applied to the charged offense.” (Pescador, at p. 261; see also People v. Reliford (2003) 29 Cal.4th 1007, 1016 [affirming the constitutionality of CALJIC No. 2.50.01, permitting jurors to consider propensity evidence of the defendant’s uncharged sexual offenses if proven by a preponderance of the evidence].)
Here, CALCRIM No. 852 goes a step beyond CALJIC No. 2.50.02 and expressly admonishes jurors that, even if they find the defendant committed other acts of domestic violence, the People must still prove each element of the charged crime beyond a reasonable doubt. Thus, defendant’s constitutional challenge to CALCRIM No. 852 is without merit.
The Court Did Not Abuse Its Discretion Under Section 352 by Admitting Lamb’s Testimony on Uncharged Conduct That Allegedly Lacked Supporting Details
Defendant contends the court abused its discretion under section 352 by admitting Lamb’s testimony that defendant “‘physically assaulted’ her at least 12 times in 2001 [citation]; no less than five times from January 17, 2006[] to February 27, 2006 [citation], and engaged in escalating anger and violence from February 27, 2006 [to] March 13, 2006.” He asserts the same complaint about Lamb’s testimony that defendant routinely called her, “fucking cunt bitch whore.” He argues the court “should have relied on section 352 to exclude all propensity evidence other than the three incidents for which [Lamb] was able to provide supporting details.” The three uncharged incidents for which Lamb offered extensive corroborating details occurred (1) in 2001, when defendant broke into the apartment and Lamb hid in a parking lot; (2) in 2005, when defendant threatened to burn Lamb’s house and break her husband’s legs; and (3) in 2006, when Lamb met a male friend at a pharmacy and defendant later threw her across the back of the van. Defendant complains of the “sheer number” of remaining uncharged incidents as to which Lamb testified, but gave no substantiating details.
As to the 2001 and 2005 “corroborated” incidents, in response to the People’s pretrial motion, the trial court found the facts were not inflammatory and engaged in an express balancing under section 352 before ruling the evidence of these two incidents was admissible.
“Section 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial.” (Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.) “‘“The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.”’” (People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).) “[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under... section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) “We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (Jennings, supra, 81 Cal.App.4th at p. 1314.)
The factors to be considered by a trial court in conducting the section 352 weighing process depend upon “the unique facts and issues of each case....” (Jennings, supra, 81 Cal.App.4th at p. 1314.) Among the relevant factors regarding propensity evidence are (1) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (2) whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (3) the degree of certainty of the uncharged offense’s commission; and (4) “the likelihood of confusing, misleading or distracting the jurors from their main inquiry.” (Ibid.; Harris, supra, 60 Cal.App.4th at pp.738-740 [regarding propensity evidence of other sex crimes under section 1108].)
With respect to these factors, defendant contends the unsubstantiated propensity evidence against him was inflammatory because of the “overwhelming number of the uncharged acts....” He claims it was speculative because it was uncorroborated by any factual details from Lamb. He asserts these unsubstantiated acts were “lumped... with other incidents of physical abuse,” and confused the jury into thinking he “was a brutal monster who physically victimized women” and that it could convict him “for the totality of his abusive conduct....” Defendant argues the unsubstantiated propensity evidence lacked probative value, because it was impossible to determine if the acts were similar to the charged conduct or even constituted domestic violence within the meaning of section 1109.
We disagree. The challenged evidence — lacking any graphic details and given in the form of Lamb’s testimony — was no stronger or more inflammatory than the evidence of the offenses of which defendant was convicted. It was not “‘uniquely intended to provoke an emotional bias against’ appellant.” (Jennings, supra, 81 Cal.App.4th at pp. 1315-1316.) Yet Lamb’s testimony about defendant’s uncharged “unsubstantiated” acts did provide enough details to show the basic type and degree of abuse and its similarity to the charged offenses. The 11 “unsubstantiated” acts in 2001 were physical assaults against Lamb, most of which did not make her fear defendant was “out of control” or might kill her. The three “unsubstantiated” acts in the period from January through February 27 of 2006 involved threats or physical abuse against Lamb, but she still believed he could change. During defendant’s period of escalating anger and violence from February 27 to March 13 of 2006, he was more hurtful to Lamb and hit her more often. These details and the evidence of name calling were similar enough to the charged offenses to be probative of a pattern of abuse. (Id. at p. 1316.) There was no danger of jury confusion since CALCRIM No. 852 instructed the jurors they could convict defendant only for an offense whose elements were proved by the People beyond a reasonable doubt and that propensity evidence alone could not support a conviction. (See also Brown, supra, 77 Cal.App.4th at p. 1338 [“there was no risk of confusion because the prior acts of domestic violence were less serious than the charged act”].)
Thus, the court’s admission of the challenged evidence was not arbitrary or capricious. Although the court did not expressly discuss the admissibility under section 352 of this “unsubstantiated” propensity evidence, the record demonstrates the court understood and fulfilled its obligations there under because the court expressly discussed the section 352 issue as to two of the three “substantiated” uncharged acts.
In any case, defendant was not prejudiced by the admission of this “unsubstantiated” propensity evidence; in fact, defense counsel apparently saw no need to lodge an objection to it. Given the introduction of other stronger and more inflammatory evidence of defendant’s pattern of abusing Lamb, there is no reasonable probability the jury would have acquitted defendant absent Lamb’s brief references to the number of uncharged “unsubstantiated” incidents. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The Trial Court Did Not Abuse Its Discretion by Denying Defendant’s Invitation to Dismiss a Prior Strike Conviction
Defendant contends the trial court abused its discretion by denying his invitation under Penal Code section 1385 to dismiss one or more of his prior strike convictions. He argues he “will spend the rest of his life in prison based on inconsistent testimony from a woman who maintained a six-year affair with him.” He notes one of his prior strikes was also “constructed solely from [Lamb’s] accusations against him.” He points out neither of his prior strikes “involved weapons or acts of physical violence,” and his current offenses were not violent or serious felonies. He claims “the charged offenses were fueled by his untreated addiction to methamphetamine and alcohol,” substances he has abused for the past 15 years because he could not afford treatment. He asserts he has worked to support himself throughout his life, has helped support his two daughters, has strong family ties to his mother and sisters, and, at the time of the sentencing hearing, was 41 years old (such that he will be nearly 70 before he becomes eligible for parole). Defendant concludes that, “[w]hen compared to [his] crimes, the harshness of this sentence is unjust.”
Penal Code section 1385, subdivision (a), authorizes a court, on its own motion or a prosecutor’s application, “to strike prior felony conviction allegations in cases brought under the Three Strikes law” in furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero).) “[A] defendant may invite the court to exercise its power..., and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.” (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442.) “[T]he underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (People v. Garcia (1999) 20 Cal.4th 490, 500.)
Our Supreme Court has set forth guidelines on “how trial and appellate courts should undertake to rule and review in this area.” (People v. Williams (1998) 17 Cal.4th 148, 152.) When ruling on a Penal Code section 1385 motion in the context of a Three Strikes case, a trial court must consider the defendant’s constitutional rights and “the interests of society represented by the People.” (Romero, supra, 13 Cal.4th at p. 530.) The court should take into account “‘individualized considerations’” (id. at p. 531), such as “the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects” (Williams, at p. 161). The ultimate question is whether “the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.)
A trial court’s Penal Code section 1385 ruling is “subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “In reviewing for abuse of discretion, [an appellate court must be] guided by two fundamental precepts.” (Id. at p. 376.) “First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.”’” (Ibid.) “Second, a ‘“decision will not be reversed merely because reasonable people might disagree.”’” (Id. at p. 377.)
“The purpose of [the Three Strikes law] is to deter and punish recidivism by making repeat offenders serve longer sentences.” (People v. Williams (1996) 49 Cal.App.4th 1632, 1638.) Because the Three Strikes law “creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper,” a trial court’s decision not to strike a prior conviction will generally be upheld. (Carmony, supra, 33 Cal.4th at p. 378.) Abuse of discretion for failure to strike occurs only in “limited circumstances,” such as where the trial court was unaware of its discretion or “considered impermissible factors” or in an “extraordinary... case where the relevant factors... manifestly support the striking of a prior conviction and no reasonable minds could differ....” (Ibid.)
Here, the information alleged defendant had suffered two prior convictions of “serious and violent” felonies. One conviction stemmed from a 1996 residential burglary where defendant violated a temporary restraining order by jumping a fence and entering the backyard of a woman (not Lamb). The other conviction arose from his 2005 threats to burn Lamb’s house and break the legs and neck of her husband.
At the bifurcated trial, the court found the prior strike allegations to be true, bringing defendant within the Three Strikes sentencing scheme. The court then stated it had read defendant’s Penal Code section 1385 invitation, “the People’s sentencing brief and opposition to defendant’s invitation,” several letters in support of defendant, a mental health diagnosis of defendant, and defendant’s graduation diploma from a Bible study course. In denying defendant’s Penal Code section 1385 invitation, the court stated defendant’s “cruelty knows no bounds” and is “pathological,” and he was a danger to and preyed upon “potential victims,” i.e. “a certain percentage of the population” consisting of “desperate women who are willing to lower their standards just to have someone who would care for them or pretend to [do so] or be around them.” In addition, the court noticed “from the People’s sentencing brief... that [defendant] has gotten nothing but breaks along the way,” with low terms on his four prior convictions, “which should have been a wake-up call for him.” The court stated, “There just comes a time when enough is enough, and that time has come.”
The court did not abuse its discretion by declining defendant’s invitation to dismiss a prior strike conviction. The court considered defendant’s interests and those of society, and performed an individualized evaluation of the relevant factors under People v. Williams, supra, 17 Cal.4th 148. Although defendant now acknowledges he has a substance abuse problem which must be addressed, his four prior convictions “should have been a wake-up call for him.” Defendant fails to show the court’s ruling was irrational or arbitrary.
DISPOSITION
The judgment is reversed as to defendant’s conviction for violating a protective order. We affirm the judgment in all other respects. The trial court is directed to vacate the conviction on count 4 and to prepare an amended abstract of judgment reflecting the deletion of the conviction on count 4 and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: RYLAARSDAM, ACTING P. J.O’LEARY, J.