Opinion
D073612
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ALLEN BUTLER, Defendant and Appellant.
Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF1403380) APPEAL from a judgment of the Superior Court of Riverside County, Jerome E. Brock, Judge. (Retired judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
In a fit of rage, Jonathan Allen Butler told his wife Jane Doe, "[y]ou have about one freakin' millisecond before I twist your head off like a fuckin' chicken in the goddamn field." He forcibly carried her out of the family's recreational vehicle (RV), told his son to lie to law enforcement, and hid his firearms and ammunition. The jury heard a contemporaneous recording of the incident. It convicted Butler of attempting to make a criminal threat (Pen. Code, § 422) and other charges, and found true the allegation that he had a prior felony strike. The court denied Butler's motion to dismiss his prior strike at sentencing and sentenced him to 11 years in state prison. Butler challenges four pretrial evidentiary rulings and the denial of his Romero motion. Finding no error, we affirm.
Further statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Butler lived in Temecula with his wife Jane Doe, their young daughter K.B., and Butler's teenage son J.B. The marriage was faltering; Doe had recently obtained a restraining order that she had yet to serve on Butler and had consulted a divorce lawyer.
On the morning of October 23, 2014, J.B. started getting ready for school. Doe was lying down next to K.B., trying to coax her back to sleep. She asked J.B. to wait a few minutes so K.B. could fall asleep; he agreed. Not hearing movement, Butler yelled at J.B. to make his breakfast. When J.B. turned on the light, Doe again asked for a few more minutes for K.B.
At that point Butler erupted from bed and screamed at Doe to stop giving J.B. a hard time. He told J.B. to step outside the RV. His demand and aggressive movements frightened Doe because he had threatened to punch her in the face the previous week. She grabbed two cell phones—hers and her daughter's—and pressed the record button on her phone. The recording captured Butler yelling at Doe,
"I'm gonna say this to you one fuckin' time and one time only. You have about one freakin' millisecond before I twist your head off like a fuckin' chicken in the goddamn field."Butler then picked up Doe against her will, threw her over his shoulder, and dropped her outside the RV. He let J.B. come inside but prevented Doe from entering, prompting her to call 911 on her daughter's phone. Her own phone had fallen inside the RV when Butler carried her out and continued to record.
Inside the RV, Butler told J.B. he needed his help when police arrived to avoid jail time. He told J.B. to say that Doe had attacked him and that Butler protected him by pulling her off and carrying her outside. Butler instructed J.B. to tell the police he did not threaten Doe. He asked J.B. to hand him rifles that were in the RV; Doe saw him come outside the RV and suspected he was hiding firearms. Riverside County Sheriff Deputies Perez and Garcia responded to the scene. They searched the brush outside the RV and found a .308 rifle, ammunition, and two pellet guns. Doe later turned over the recording of the incident.
Butler testified in his defense at trial and stated he was merely directing his son to testify as to what he believed had actually happened. J.B. testified that Doe had lunged at him and could not recall whether his father had directed him what to say to law enforcement.
The Riverside County District Attorney's Office filed an information charging Butler with making a criminal threat (§ 422, subd. (a), count 1), dissuading a witness (§ 136.1, subd. (b)(1), count 2), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3), unlawful possession of ammunition (§ 30305, subd. (a), count 4), and spousal battery (§ 243, subd. (e)(1), count 5). The information also alleged that Butler had a prior conviction for a serious felony (§ 667, subd. (a)) and a strike offense (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
The jury convicted Butler of the lesser included offense as to count 1 of attempting to make a criminal threat (§§ 422, 664). It otherwise found him guilty as charged and found the prior strike allegation true. The court denied Butler's motion to dismiss the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and imposed a term of 11 years in state prison.
DISCUSSION
1. Pretrial Evidentiary Rulings
Butler challenges several pretrial evidentiary rulings. He argues the court erred in admitting Jane Doe's secret recording of the October 23 incident and evidence regarding a 2009 domestic violence conviction involving a different victim. He also contests the court's exclusion under Evidence Code section 352 of six other recordings and testimony concerning Doe's prescription drug use.
a. No error in admitting the secret recording
A critical piece of evidence at trial was the contemporaneous audio recording on Doe's phone of the October 23 incident. Butler filed a motion in limine seeking to exclude this evidence under section 632, subdivision (d) and challenges on appeal the denial of that motion. As we explain, however, even if the recording captures a confidential communication within the meaning of section 632, the court reasonably found it admissible under the exception found in section 633.5.
"The California Invasion of Privacy Act (§ 630 et seq.) was enacted in 1967, replacing prior laws that permitted the recording of telephone conversations with the consent of one party to the conversation. [Citation.] The purpose of the act was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation." (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768-769 (Flanagan).) Section 632 "prohibits eavesdropping or intentionally recording a confidential communication without the consent of all parties to the communication." (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 928; § 632, subd. (a).) The statute creates an exclusionary rule:
"Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding." (§ 632, subd. (d).)There are certain exceptions to section 632. Under section 633.5, a party to a confidential communication may record to obtain evidence reasonably believed to relate to the commission of any felony involving violence against the person.
In his motion, Butler argued the recording should be excluded under section 632 because Doe did not seek his consent. The trial court denied the motion on grounds the recording was not of a "confidential communication" and it fell within the section 633.5 exception:
"It looks like we have a disagreement with regard to the definition of confidential communication, because I don't -- I don't -- to me what this was -- it's not even a confidential form of communication. This was a loud -- loud violent argument that took place in front of other people, whether they were right there or they were right outside the door. And when [the statute] says that it excludes communication in any circumstance which the parties' communication may reasonably expect to be overheard, it seems to me to take it out of the confidential communication definition altogether. So I'm going to base my decision on that.Butler challenges both aspects of this ruling.
"But to make it clear, that even if someone disagrees with me and says no, you're wrong about that, this is a qualifying confidential communication, I think the uncontroverted evidence regarding the situation when recording was initiated by (Ms. Doe) satisfies me that it comes within [section] 633.5. It was an overreaction by Mr. Butler to the situation. She described his demeanor, his aggressive body language, his threatening behavior. And then removing [his son] as a possible witness to what was going to go on, and then there's the contents of the actual tape, fully convinces me that she reasonably anticipated there may be violence there."
We review evidentiary rulings made on motions in limine for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1, 264, 266; People v. Sarpas (2014) 225 Cal.App.4th 1539, 1555.) "The abuse of discretion is not a unified standard; the deference it calls for varies according to the aspect of the trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.) Thus, where the ruling turns on the proper application of section 632 to undisputed facts, we apply independent review. (People v. Nakai (2010) 183 Cal.App.4th 499, 516-517.) We apply substantial evidence review to any factual findings, such as whether Jane Doe reasonably believed Butler was about to commit a felony involving violence.
A communication is "confidential" under section 632, subdivision (c) "if a party to the conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded." (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1396, citing Flanagan, supra, at pp. 768, 774-776.) The "presence of others does not necessarily make an expectation of privacy objectively unreasonable." (Lieberman v. KCOP Television, Inc., (2003) 110 Cal.App.4th 156, 168.) Instead, it merely raises a fact question as to whether there was an objectively reasonable expectation of privacy. (Id. at p. 169.)
We need not decide whether the recorded communication in this case was "confidential." Even if it was, the court reasonably found it admissible under section 633.5, which specifies that section 632 does not "prohibit one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of . . . any felony involving violence against the person, including, but not limited to, . . . domestic violence as defined in Section 13700." (§ 633.5.) Evidence so obtained is not made inadmissible by section 632, subdivision (d). (Ibid; see People v. Parra (1985) 165 Cal.App.3d 874, 879 [secret recording made to obtain evidence of defendant's intent to carry out prior threats of physical violence was admissible].)
Butler argues Doe did not reasonably believe that he was about to commit any felony involving violence. But substantial evidence supports the trial court's finding to the contrary. Doe testified she started recording conversations because Butler was becoming increasingly aggressive, and she wanted a record to protect her young child in case something happened to her. A week before the incident, Butler threatened to punch her in the face. On October 23, Butler overreacted and was behaving very aggressively, "like a bull." Doe hit record because she was concerned when Butler asked his son to step outside the RV. She did not know what Butler would do, but his threat and demeanor were "very scary." This evidence supports the finding that Doe recorded the incident "for the purpose of obtaining evidence reasonably believed to relate to the commission by [Butler] of . . . any felony involving violence against the person." (§ 633.5.)
By convicting Butler only of attempting to make a criminal threat, the jury may have questioned whether Doe was actually in fear. But Butler does not, and could not, argue that such a finding would adversely impact the court's evidentiary ruling under section 633.5. A preliminary finding on a collateral fact affecting the admissibility of evidence is subject to proof by a preponderance of the evidence; the law does not require proof beyond a reasonable doubt. (People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 11 & 966; People v. Cottone (2013) 57 Cal.4th 269, 286; see Evid. Code, §§ 115, 405.) Even if the jury ultimately entertained a reasonable doubt as to whether Butler's statements made Doe actually fear for her safety, that would not undermine the preliminary evidentiary finding that Doe reasonably anticipated violence. (People v. Homick (2012) 55 Cal.4th 816, 868 ["That defendant found his brother's defense implausible—as apparently did the jury—does not mean there was no evidentiary basis for it."] (Homick).)
In short, the trial court did not abuse its discretion in admitting Doe's recording of the October 23 incident. Substantial evidence supports its finding that Doe reasonably believed Butler would commit an act of domestic violence, rendering the recording admissible under Evidence Code section 633.5.
Given our ruling, we need not decide whether the right to truth-in-evidence provision, enacted in 1982 by California voters through Proposition 8, abrogates section 632 subdivision (d)'s exclusionary rule as to criminal proceedings. (Cal. Const., art. I, § 28, subd. (f), par. (2).) Although one recent case held it did, the Supreme Court has granted review on that question (People v. Guzman (2017) 11 Cal.App.5th 184 , review granted July 26, 2017, S242244).
b. Even if the claim were preserved, there was no error in admitting Butler's prior domestic violence conviction
During motions in limine, the People moved to admit Butler's 2009 domestic violence conviction under Penal Code section 273.5, subdivision (a) and true finding that he had inflicted great bodily injury (§ 12022.7, subd. (a)). The conviction related to a 2007 incident in which Butler choked his then-girlfriend and left facial fractures. The court ruled the evidence admissible under Evidence Code section 1109 but limited testimony to acts that resulted in Butler's conviction.
Butler argues evidence of his prior conviction was inadmissible under Evidence Code section 1109 because he was not charged in the present case with a domestic violence offense. Both parties fail to note in their briefs that defense counsel conceded admissibility below. During pretrial motions, defense counsel questioned only how the evidence should come in, stating,
"Absolutely the prior conviction comes in. The prior conviction is the prior bad act. And whether the Court takes judicial notice of it or receives a certified copy of the conviction, it's the same fact, and it shouldn't be allowed to be put before the jury in three separate formats."The court left it to the parties how to introduce the evidence but agreed with defense counsel that the conviction would come in under Evidence Code section 1109. Defense counsel stated he could "absolutely work out a stipulation."
The issue came up again when the court addressed whether to allow testimony by Butler's former girlfriend, the victim in the prior domestic violence case. Defense counsel stated, "I think that the acts which were the basis of the counts upon which my client was convicted are admissible under [Evidence Code section] 1109," but he asked that the testimony to be limited to those acts and not uncharged acts that did not result in conviction. The prosecutor stated she would not venture into any uncharged acts, and defense counsel replied, "So I think we're actually in agreement."
At trial, Butler's former girlfriend gave limited testimony about the 2007 incident. The jury received the parties' stipulation as to the conviction. Having conceded admissibility before the trial court, Butler cannot be heard to challenge them on appeal. (People v. Rogers (1978) 21 Cal.3d 542, 548 [noting "the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"].) Nevertheless, "in order to forestall a claim of ineffective assistance of counsel, we consider that claim on the merits." (People v. Riazati (2011) 195 Cal.App.4th 514, 530.) Even if Butler had preserved the claim, it would fail.
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid.Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid.Code, § 1108) and domestic violence (Evid.Code, § 1109)." (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) "Section 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes.' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown).) Unless inadmissible under Evidence Code section 352, such propensity evidence can be received "in a criminal action in which the defendant is accused of an offense involving domestic violence." (Evid. Code, § 1109, subd. (a)(1).) "Domestic violence" is defined to include "placing [a spouse] in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Evid. Code, § 1109, subd. (d)(3); § 13700, subds. (a)-(b).)
If the prior incident occurred within five years of the charged offense, "domestic violence" also encompasses the definitions set forth in Family Code, section 6211. (Evid. Code, § 1109, subd. (d)(3).)
Butler argues his prior conviction was inadmissible propensity evidence because the present offense was not one "involving domestic violence." (Evid. Code, § 1109, subd. (a)(1).) As discussed, the court found that Doe reasonably anticipated violence when Butler made his threat. Had Butler challenged the admissibility of his prior domestic violence conviction, Doe's same pretrial testimony would have supported a finding that she was placed "in reasonable apprehension of imminent serious bodily injury." (§ 13700, subd. (a).) Thus, the court could have reasonably found that Butler's present offense was one involving domestic violence, making his prior domestic violence conviction admissible under Evidence Code section 1109.
Such a finding would have been reasonable notwithstanding the fact that the jury ultimately convicted Butler of a lesser included offense, perhaps due to doubt as to whether Doe actually feared injury. (Homick, supra, 55 Cal.4th at p. 868.) All that matters is that Butler was "accused of an offense involving domestic violence" based on the prosecution's theory of the case. (Evid. Code, § 1109, subd. (a)(1), italics added; Brown, supra, 192 Cal.App.4th at pp. 1234-1235, 1237 [defendant charged with murdering his former girlfriend was "accused of an offense involving domestic violence" based on the prosecution's theory of the case].)
Butler recasts the October 23 incident as a "domestic argument" and suggests applying Evidence Code section 1109 here would turn every marital spat into an offense involving domestic violence. Not so. On the prosecution's theory and pretrial evidence in this case, the court could have found that Doe reasonably anticipated imminent serious bodily injury. A crime may qualify as an "offense involving domestic violence" based on its unique facts, as would be the case here. (People v. James (2010) 191 Cal.App.4th 478, 483 [prior domestic violence evidence properly admitted in burglary case]; Brown, supra, 192 Cal.App.4th at p. 1237 [prior domestic violence evidence properly admitted in first degree murder case].)
c. No error in excluding six prior recordings
During motions in limine, Butler sought to admit six prior recordings made by Jane Doe. He claimed these recordings put the secret recording in context. Specifically, he argued that they showed Doe's motive in summoning police was not to make a record in case something happened to her, but instead to gain an advantage in upcoming dissolution and custody proceedings. He pointed to Doe's statement to her five-year-old daughter at the end of one of the six recordings that she had gotten her out of the trailer, and "that's all that matters."
The People opposed Butler's motion, arguing it was not improper impeachment evidence. Even if the recordings violated section 632, such a violation was not a crime of moral turpitude that reflected on Doe's honesty. To the extent the evidence was offered as affirmative evidence, the prosecutor argued it should be excluded under Evidence Code section 352. He asserted the prior recordings had no bearing as to what happened on October 23, 2014 and would therefore result in an undue consumption of time.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Defense counsel made further argument as to why the recordings were admissible under Evidence Code section 352. He maintained they were probative of Doe's state of mind—namely, whether she was truly in fear, an element under section 422, subdivision (a). Counsel suggested the recordings would show that Doe was actually motivated by a separate desire to secure custody after divorce.
The court denied Butler's motion, reasoning:
"None of these recordings resulted in any arrests of the victim, none of them resulted in convictions, felony or misdemeanor. There's no authority to indicate that a recording is a type of crime of moral turpitude. [¶] The Penal Code section 632 is a complex statute with lots of fact situations which take [a] recording out of the realm of criminal conduct. The probative value, in the Court's opinion, is minimal at best.
"More importantly, the minimal probative value of the evidence is substantially outweighed by the probability that if admitted would necessitate an undue consumption of time. But more importantly, create a substantial danger of confusion of the issues in misleading the jury."
Defense counsel revisited the issue during trial, claiming Doe's statement in one of the tapes impeached one aspect of her trial testimony—specifically, her claim that on October 23 she was primarily concerned about getting her daughter out safely. The court again denied the request under Evidence Code section 352.
Butler challenges the court's pretrial ruling. He argues the evidence was admissible under Evidence Code section 780, subdivision (f). Moreover, he claims their exclusion deprived him of his constitutional right to confront an adverse witness.
"Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to . . . [t]he existence or nonexistence of a bias, interest, or other motive." (Evid. Code, § 780, subd. (f).)
An accused has the right under federal and state constitutions (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15) and statute (§ 686, subd. (3)) to confront adverse witnesses in a criminal prosecution. (People v. Wilson (2008) 44 Cal.4th 758, 793 (Wilson).) " 'Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defense might wish.' " (Id. at p. 794.) "Although . . . a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations] '[t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than "slight relevancy" to the issues presented.' " (People v. Jennings (1991) 53 Cal.3d 334, 372 (Jennings).)
The admissibility of evidence lies squarely within the purview of the trial court. "We review for abuse of discretion rulings by the trial court on the admissibility of evidence, including rulings that turn on the relative probativeness and prejudice of the evidence in question." (People v. Hamilton (2009) 45 Cal.4th 863, 930.) A trial court's "exercise of discretion is not grounds for reversal unless ' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) As we explain, the court reasonably excluded the prior recordings under Evidence Code section 352.
The excluded recordings capture marital arguments between Butler and Doe in October 2014 as to why the marriage was failing and who was to blame. Butler and Doe can be heard verbally arguing over past business decisions, money shortfalls, sexual intimacy, division of chores and cooking duties, lack of appreciation or credit for past deeds, Butler's hunting and unemployment, and Doe's unwillingness to talk about the demise of their marriage. The recordings are more than three hours in length and cover topics having no conceivable bearing on the charges. Butler argues the evidence would show that Doe sought to use the criminal case as leverage in divorce and custody proceedings. But the recordings largely consist of Butler talking while Doe periodically interjects in disbelief, with "really, Jon?" If anything, Butler is the only one who threatens to separate Doe from their daughter in those recordings. There is nothing that remotely bears on Doe having an ulterior motive in contacting law enforcement on October 23, 2014. We simply disagree with Butler that these recordings "had significant probative value," "were the best evidence available to show Jane Doe's scheme," and showed Doe "recorded him for her own motive relating to the custody case."
The only possibly relevant statement in this regard was the one identified by defense counsel below. At the end of one of the tapes, Doe can be heard telling her daughter that she had gotten her out of the trailer, and that was all that mattered. Even if this had any bearing as to Doe's ulterior motive, as Butler suggests, the trial court reasonably found that playing several hours of audio for this purpose would take undue time and confuse the issues before the jury. Although Butler argues the recordings could have been edited for brevity, he made no such offer to the trial court.
After carefully weighing the evidence, the trial court properly excluded it as "resulting in the undue consumption of time taken up on this collateral matter." (Jennings, supra, 53 Cal.3d at p. 372.) "Because the evidence in question would impeach the witnesses on collateral matters and was only slightly probative of their veracity, application of Evidence Code section 352 to exclude the evidence did not infringe defendant's constitutional right to confront the witnesses against him." (Ibid.; see People v. Pearson (2013) 56 Cal.4th 393, 455 [defendant's confrontation clause rights were not violated by the exclusion of evidence under Evidence Code section 352 as to evidence of marginal value that would consume undue time].)
Moreover, Butler cannot show prejudice. Evidence of bias was already before the jury—Doe testified she was concerned about who would get custody of their daughter and that she had met with a divorce lawyer. Based on her testimony, defense counsel could and did argue that Doe was biased. Indeed, by convicting Butler only of the lesser included offense, the jury implicitly found Doe was not in fear. Any error in excluding the prior recordings for the purpose of making the same point is necessarily harmless under any standard.
d. No error in excluding evidence of Doe's prescription drug use
Before trial, defense counsel issued Doe a subpoena seeking her medical records to show her regular use of pain medication. At the preliminary hearing, Doe testified that she at times took Butler's pain medication to manage her chronic pain. Counsel argued the evidence was relevant because medication may have influenced Doe's behavior on October 23. The motion judge granted the People's motion to quash the subpoena, reasoning no injury had to be proven for the battery charge, and "there was nothing in the preliminary hearing transcript or any offer of proof that would indicate that the use of another person's prescription medication under the circumstances testified to would have any relevance to this particular incident."
During pretrial motions, the prosecution filed a motion in limine to exclude evidence of Doe's medication and/or alcohol use pursuant to Evidence Code sections 350 and 352. Defense counsel objected, reasoning that whether Butler's actions had caused Doe pain was relevant to whether Butler engaged in "harmful or offensive touching" for purposes of battery. The court rejected that argument and granted the People's motion. It found the evidence irrelevant because actual injury was not required for battery, and the People were not claiming that Doe had suffered any injury. Under Evidence Code section 352, the court found the probative value of Doe's prior drug use "very, very small compared to confusing the jury on the issue." It allowed Butler to revisit the issue should the prosecution open the door at trial.
Defense counsel then asked if Butler could testify about Doe's habit to take medication when she woke up, and that she did so on October 23, 2014. The prosecution argued such evidence would be significantly more prejudicial than it was probative. The court reserved ruling on the matter until Butler testified and suggested that defense counsel find out if Butler could do more than say Doe had taken unspecified medication on October 23.
The court made its final ruling before trial and excluded Butler's proffered testimony. It explained, "Right now we don't know the type of medication, the amount. We certainly don't know the effects. There's certainly no evidence at all from anybody that it had any effect upon her at all, especially from the deputy that was there." Because Doe's medication use would be relevant only if it resulted in some type of impairment, and there was no evidence of such impairment, the evidence was inadmissible under Evidence Code section 352. Without information about the type, amount, or effects, simply testifying that Doe was taking medication would have minimal probative value and too much potential for jury confusion. The court did permit defense counsel to ask Doe whether she was under the influence of drugs or alcohol on October 23 and if she was impaired in any way, but counsel chose not to make this inquiry.
At two points during trial, defense counsel renewed the request to introduce evidence about Doe's painkiller use. Each time, the court deemed the evidence inadmissible under Evidence Code section 352.
Butler argues evidence regarding Doe's use of painkillers was relevant to impeach her claim that she was afraid and to show she was actually manipulating Butler while in an impaired state. He asserts it was an abuse of discretion to quash the subpoena on one hand and then later bar reference to Doe's drug use due to the lack of evidence regarding what drugs she was taking. As a result, Butler contends, the trial court improperly restricted his cross-examination of Doe, violating his Sixth Amendment right to confrontation and state law. We agree with the People that the evidence was properly excluded under Evidence Code section 352.
"Evidence of a witness's drug use is inadmissible unless the testimony 'tends to show that the witness was under the influence thereof either (1) while testifying, or (2) when the facts to which he testified occurred, or (3) that his mental faculties were impaired by the use of such narcotics.' " (People v. Panah (2005) 35 Cal.4th 395, 478 [no error in excluding as irrelevant whether key prosecution witness had previously smoked marijuana with the defendant] (Panah).) " 'Evidence of habitual narcotics . . . use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties.' " (Wilson, supra, 44 Cal.4th at p. 794.)
Those foundational prerequisites were not met here. Defense counsel did not ask Doe whether she was impaired or ask the Sheriff deputies if they observed any signs of impairment. There is no suggestion in the record that as a result of drug use, Doe "misperceived or misrecollected the details of the crimes." (Wilson, supra, 44 Cal.4th at p. 794.) Her testimony "was clear and direct and betrayed no suggestion [her] recall of the [morning] in question was at all impaired by [her] previous drug use." (Ibid.) And there is simply no evidentiary basis for Butler's speculative assertion that Doe's drug use "was relevant to the critical issue of whether she was a frightened victim, or a manipulator looking to implicate her husband in conduct that would further her interests in a pending divorce."
To the extent the evidence had any probative value, that value was significantly outweighed by the substantial danger of confusing the issues. (Evid. Code, § 352.) Evidence is unduly prejudicial where it tends "to evoke an emotional bias against a party because of extraneous factors unrelated to the issues." (People v. Cortez (2016) 63 Cal.4th 101, 128.) Butler sought to portray Doe in an unflattering light, as a manipulator seeking to gain an advantage in custody proceedings. This is quintessentially the type of evidence properly excluded under Evidence Code section 352. The court did not abuse its discretion in excluding evidence regarding Jane Doe's possible use of prescription pain medication. "Because the trial court's ruling was proper, 'there is thus no predicate error on which to base the constitutional claims.' " (Panah, supra, 35 Cal.4th at p. 478; see People v. Henriquez (2017) 4 Cal.5th 1, 29 ["The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' "].)
2. Romero Motion
At sentencing, Butler sought to dismiss his prior strike under Romero, supra, 13 Cal.4th 497. He filed eight letters of support from friends and family attesting to his character. In his brief, Butler argued he was an appreciated member of the community who fell outside the spirit of the "Three Strikes" law. He had completed probation for his prior conviction, and the circumstances of the current case were not violent. He argued he had never been to prison, and a lesser sentence would have punitive effect while addressing community concerns. The People opposed the motion, arguing the current conviction was only a second strike, requiring doubling of his punishment rather than an indeterminate term. It argued both offenses involved domestic violence and very serious conduct.
The court denied Butler's Romero motion. It noted that both the prior conviction and current incident were "extremely serious" and involved great bodily injury or the threat of great bodily injury against domestic partners. Moreover, the 2009 conviction was not remote in time to the current offense. The court was "extremely impressed" by the heartfelt and sincere letters submitted in support of Butler, but it could not reconcile those letters with the evidence at trial, which reflected poorly on Butler's character. Having listened to the trial evidence and the excluded audio recordings, the court found it "striking" that Butler had
"absolutely no insight into the criminality of his actions. He admits no wrongdoing. He accepts no responsibility. He expresses absolutely no remorse for what he has done. [¶] He places total blame on the victims."The court also considered Butler's statement to the probation officer disclaiming wrongdoing and saying the system had failed.
Considering Butler's lack of insight into his criminality, the court deemed his future prospects poor and denied the motion. Pursuant to the Three Strikes law's scheme, it sentenced Butler to "twice the term otherwise provided as punishment for the current felony conviction." (§ 667, subd. (e)(1); § 1170.12, subd. (c)(1).) Butler challenges the denial of his Romero motion.
The Three Strikes law does not remove a sentencing court's discretion to dismiss a defendant's prior strike under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530; People v. Clancey (2013) 56 Cal.4th 562, 582.) "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) A defendant may file a motion requesting the trial court to exercise its discretion to strike a prior conviction under section 1385. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
"A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited." (Romero, supra, 13 Cal.4th at pp. 529-530.) It may not dismiss or strike priors based on purely extrinsic factors, such as to ease court congestion, or because of personal antipathy for the effect the Three Strikes law would have on the defendant. (Id. at p. 531.) Instead, it "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law'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." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.)
We review a failure to dismiss or strike a prior conviction or allegation under section 1385 for abuse of discretion to see whether the decision "is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) An abuse of discretion may be found where the court was not aware of its discretion to dismiss or considered impermissible factors, or where applying the Three Strikes law to a set of facts would produce an arbitrary, capricious, or patently absurd result. (Id. at p. 378.) " '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance[.]' " (Ibid.) In exercising its discretion, a court may make factual findings and weigh the evidence presented at trial. (In re Coley (2012) 55 Cal.4th 524, 561 [record supported the court's finding at sentencing that the defendant failed to register as a sex offender notwithstanding his contrary testimony at trial] (In re Coley).)
Based on similarities between the 2009 conviction and the current offense, the gravity of both incidents, and their proximity in time, the court reasonably concluded he lacked remorse and that his prospects were poor. There was strong evidence at trial that Butler threatened to twist his wife's head off like a chicken, tried to protect himself by telling his son to lie to law enforcement and help him hide his firearms, unpersuasively recast his prior domestic violence conviction as self-defense, and could be heard in recordings he sought to introduce shifting blame and refusing to accept responsibility for his actions.
This case bears similarities with Carmony. In that case, the trial court reasonably declined to dismiss two prior strikes because the defendant's lengthy and violent criminal record, unaddressed substance abuse problems, and spotty work history suggested poor future prospects. (Carmony, supra, 33 Cal.4th at pp. 378-379.) The nature and circumstances of the defendant's current offense were not violent—he failed to register as a sex offender. Nevertheless, the court properly balanced this with other relevant factors to conclude the defendant fell within the spirit of the Three Strikes law, and its "decision not to strike Carmony's priors is neither irrational nor arbitrary and does not constitute an abuse of discretion." (Ibid.)
Butler argues that the trial court abused its discretion by considering an impermissible factor—namely, in allegedly construing his claim of innocence as evidence of a "lack of remorse." But as Butler's own authority shows, it is not improper to consider lack of remorse at sentencing. (People v. Coleman (1969) 71 Cal.2d 1159, 1168 (Coleman); see People v. Bemore (2000) 22 Cal.4th 809, 854 [" '[R]emorse is universally deemed a factor relevant to penalty.' "].) Instead, what is "fundamentally unfair" is to infer a lack of remorse based on the defendant's failure to confess to guilt after being found guilty. (Coleman, supra, at p. 1168; People v. Boyette (2002) 29 Cal.4th 381, 454 (Boyette).) There is no indication the court did that here. It properly found that Butler lacked remorse based on evidence presented at trial. (See Boyette, supra, at p. 455 [prosecutor could argue facts at trial showed defendant lacked remorse]; People v. Brady (2010) 50 Cal.4th 547, 585 [comment that there was no evidence showing remorse did not improperly comment on defendant's silence].) Having presided over the trial, the court could compare Butler's version of events against the testimony of other witnesses and a contemporaneous audio recording of the incident to reject Butler's self-serving testimony. (In re Coley, supra, 55 Cal.4th at p. 561.)
In People v. Finney (2012) 204 Cal.App.4th 1034, 1039, the defendant filed a Romero motion to strike prior offenses, claiming they "were remote in time, that he was provoked by the victims, and that drugs and a chaotic homelife caused him to overact." The trial court reasonably rejected those claims based on evidence in the probation report that the defendant "had no remorse and has 'honed his hatred and found new outlets for his rage and self aggrandizement—continuing his pattern of intimidation and violence against those who are the most helpless.' " (Ibid.) For similar reasons, we find no error in the court's evaluation of Butler's lack of remorse.
The court understood the scope of its discretion and applied the correct standard—whether Butler should be deemed outside the spirit of the Three Strikes law based on individualized factors such as the current offense, prior convictions, background, character, and prospects. (Williams, supra, 17 Cal.4th at p. 161; Carmony, supra, 33 Cal.4th at p. 378.) Because the record does not "manifestly support the striking of [Butler's] prior conviction," the failure to strike was not an abuse of discretion. (Carmony, supra, at p. 378.)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. BENKE, J.