Opinion
A151680
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD COLLINS, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17-NF-000213A)
James Edward Collins, Jr., was convicted of threatening and beating his wife (Jane Doe) and threatening and endangering his teenage son (D.D.) during an altercation outside D.D.'s school. Collins argues the court erred in admitting prior incidents of domestic violence pursuant to Evidence Code sections 1101, subdivision (b) and 1109. We affirm.
Undesignated statutory references are to the Evidence Code.
I. BACKGROUND
Collins was charged by information with two counts of felony criminal threats (Pen. Code, § 422, subd. (a); counts 1, 2), felony corporal injury on a cohabitant (id., § 273.5, subd. (f)(1); count 3), and misdemeanor child endangerment (id., § 273a, subd. (b); count 4). As to the felonies, it was alleged Collins had served four prior prison terms within the meaning of Penal Code, section 667.5, subdivision (b) and was presumptively ineligible for probation because he had at least two prior felony convictions and was on felony probation when he committed the instant offenses (id., § 1203, subds. (e)(4), (k)).
Doe testified that on January 4, 2017, she drove with Collins to pick up 16-year-old D.D. from school. Collins became angry because Doe moved a business card on the dashboard. Collins told her to move to the passenger seat, and he drove into the high school parking lot. Collins demanded Doe's phone and ripped her pocket in a struggle to get possession of it. He yelled at her and told her not to appear afraid when D.D. got into the car, "or I'm going to take you around the corner, and beat you, and kill you, and throw you in the trunk of the car." Collins then drove from the parking lot to a stop sign, slapped Doe, and punched her 10 to 15 times in her head and face with closed fists as she attempted to block the blows. When D.D. approached the car, Collins exited, and Doe locked the doors and told D.D. to run. D.D. ran toward the school. Doe drove to the school and entered the school office, where staff called the police. Doe was "very frantic, shaking," and she had lumps on her head, a scratch on her neck, and a very sore neck and scalp.
D.D. testified he saw the car initially stopped at a stop sign and saw his mother and father get out of the car and change positions. They then drove past him and into the school parking lot. It appeared Collins was yelling at Doe. The car swerved back in D.D.'s direction, and he saw Doe's hands were on the steering wheel and Collins was hitting her with a closed fist. The car stopped and started shaking. D.D. ran over and saw Collins hunched over Doe hitting her hard with a closed fist as she screamed. D.D. shut an open door on Collins's leg. Collins got out and told D.D., "Get your ass in the car or I'm gonna hit you." When D.D. refused, Collins said, "I'm gonna hit you with the car." D.D. ran toward a school security officer, asking her to call the police. The security officer testified she heard Collins threaten to beat D.D. and heard D.D. say Collins was beating Doe. D.D. looked very afraid. Police were called. Collins left before officers arrived.
About 8:00 p.m. that night, while Doe and D.D. were home, Collins banged on the window and door and asked to be let inside. They called the police, who responded and apprehended Collins nearby.
Doe testified Collins physically abused her at irregular intervals since before their marriage in 1990, which made her feel like she was "walking on eggshells." Collins previously punched her in the nose, causing her to lose consciousness; dragged her down the street by her hair; and hit her in the eye with his elbow, giving her black eyes. She had reported incidents to the police but never pressed charges. D.D. testified Collins once "socked" him in the chest, and he had witnessed Collins hit D.D.'s brother with an open hand and attempt to goad his brother to fight. Doe testified that D.D. also had witnessed Collins raising a fist to hit her, and Collins pushed D.D. against a wall, telling him to stay out of their business.
The jury convicted Collins of all charges, and the court found the enhancement allegations true. The court struck the prison term enhancements and sentenced Collins to a total prison term of four years and eight months: four years for the corporal injury conviction, a consecutive eight-month term for one of the criminal threats convictions, and concurrent two-year and six-month terms for the other criminal threats and misdemeanor convictions.
II. DISCUSSION
Collins challenges his conviction on the sole ground that the trial court erred in admitting evidence of his prior acts of domestic violence against Doe and D.D. "Evidence that a defendant has committed a prior crime or other bad act may . . . be admissible '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.' ( . . . § 1101, subd. (b).) Where the defendant is charged with 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).) [¶] Section 352 . . . grants the trial court discretion to 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.' The statute requires that 'the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.' [Citations.] We review the trial court's determination for abuse of discretion and will affirm it unless the ruling was ' "arbitrary, whimsical, or capricious as a matter of law." ' " (People v. Culbert (2013) 218 Cal.App.4th 184, 192.)
We find no error and affirm. A. Background
The prosecutor moved in limine to admit Collins's prior acts of domestic violence against Doe and D.D. pursuant to section 1109 to prove a propensity to commit domestic violence and pursuant to section 1101, subdivision (b), to help prove the sustained fear element of the criminal threats charge. At hearing on the motion, the prosecution proffered evidence of a 2016 incident when Collins threw a soda at Doe, a 2012 incident when he punched and dragged her by her hair, an incident in which he hit and tried to fight D.D., and general testimony of recurrent abuse against Doe during their 23 years of marriage. Over objection, the court ruled it would admit the evidence under both sections 1101 and 1109. B. Admission to Prove Sustained Fear
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (Pen. Code, § 422, subd. (a).)
Penal Code, section 422 "incorporates a mental element on the part of not only the defendant but the victim as well." (People v. Garrett (1994) 30 Cal.App.4th 962, 966.) The prosecution must establish that as a result of the threat "the victim was in a state of 'sustained fear' " [and] "the nature of the threat, both on 'its face and under the circumstances in which it is made,' was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable." (Id. at pp. 966-967.) In Garrett, our colleagues in Division Three held that prior acts of domestic violence between the defendant and victim were relevant to prove these elements. (Ibid.; see People v. Ogle (2010) 185 Cal.App.4th 1138, 1143.)
Collins does not challenge admission of the prior acts evidence to prove the requisite sustained fear element of the criminal threats charges pursuant to section 1101, subdivision (b), and the People argue admission for this purpose renders Collins's objections under section 1109 irrelevant. Collins disagrees, noting the jury was not instructed to consider the evidence only with respect to the relevant elements of the criminal threats charge. In fact, the jury was affirmatively instructed it could infer from the prior incidents that Collins had a propensity to commit the charged offenses. We therefore consider whether it was error to admit the incidents under section 1109. C. Admission to Prove Propensity
Collins argues the court erred in admitting the prior incidents under sections 1109 and 352 and in failing to determine whether the incidents fell within certain time limits set forth in section 1109. We conclude there was no error.
"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. [Citation.]' [Citations.] . . . [¶] . . . [¶] Even if the evidence is admissible under section 1109, the trial court must still determine, pursuant to section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
We separately consider the court's admission of prior acts of violence against Doe and D.D.
1. Prior Acts of Violence Against Doe
As noted, section 1109, subdivision (a)(1) provides: "Except as provided in subdivision (e) . . . , 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." Section 1109, subdivision (e) provides: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."
Collins has forfeited any argument that the trial court failed to make the interest of justice determination as to older evidence required by section 1109, subdivision (e). During pretrial argument on the issue, defense counsel generally made a section 352 objection and commented he did not know how old the incidents were. We construe this as a tentative objection on remoteness grounds under section 352, not an invocation of the 10-year presumptive limit in section 1109, subdivision (e). In any event, the prosecutor specified the dates of two incidents, both of which fell within the 10-year period of section 1109, subdivision (e), and also mentioned an undated incident and recurring abuse throughout the couple's 23-year marriage. Defense counsel did not further pursue the timing issue in the in limine proceedings. When Doe testified at trial, she did not provide dates for the specific incidents she described, nor was she asked to do so on cross-examination. She generally described a pattern of abuse that had lasted more than 26 years. Again, defense counsel did not object. Evidentiary objections are forfeited if not timely raised in the trial court. (§ 353; People v. Partida (2005) 37 Cal.4th 428, 433-434.)
We reject Collins's further argument that the court abused its discretion in admitting the evidence under section 352. "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The court reasonably found the prior incidents of punching Doe in the nose, elbowing her in the eye, and dragging her by her hair were not more inflammatory than Collins's charged beating of Doe and threats to kill her or hit D.D. with a car. There was no risk the jury would confuse the incidents. As discussed ante, defense counsel failed to make a record regarding any of the prior incidents' remoteness in time. The court did not abuse its discretion in admitting the evidence.
2. Prior Acts of Violence Against D.D.
"Domestic violence" is defined to have "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." (§ 1109, subd. (d)(3).) Family Code section 6211 defines domestic violence to include abuse perpetrated against a cohabitant as defined in Family Code section 6209, which is "a person who regularly resides in the household." It is undisputed that D.D. was living with Collins at the time of the offense.
Prior acts of child abuse may be admitted as propensity evidence in child abuse prosecutions. (§ 1109, subd. (a)(3).) However, this case did not involve "child abuse" as defined by section 1109, subdivision (d)(2).
Evidence of abuse against D.D. was subject to the five-year statutory limit of section 1109, subdivision (d)(3). Collins, however, has forfeited any argument the incidents should have been excluded on this ground. Nothing in the record indicates any of the incidents described at trial occurred outside the five-year time frame, and Collins did not raise a relevance objection in pretrial proceedings or at trial. Accordingly, the issue is forfeited. (§ 353.)
We reject Collins's further argument that the court abused its discretion in admitting the evidence under section 352. The prior incidents of Collins hitting D.D. in the chest and pushing the boy against a wall, or D.D.'s witnessing Collins slap D.D.'s brother and raise a fist to hit his mother, were not more inflammatory than Collins's charged beating of Doe and threats to kill her or hit D.D. with a car. There was no risk the jury would confuse the incidents, which took place in different settings, and as noted ante, defense counsel failed to make a record regarding any remoteness in time. We find no abuse of discretion.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------