Opinion
H046824
04-21-2021
THE PEOPLE, Plaintiff and Respondent, v. KELLY PRESTON FREEMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 16CR03516, 16CR06066)
A jury found defendant Kelly Preston Freeman guilty of criminal threats, false imprisonment, and domestic violence battery. In a second case, Freeman pleaded no contest to first degree residential burglary. In both cases, he admitted he had suffered a prior serious felony conviction. The trial court imposed an aggregate term of 11 years eight months in state prison.
Freeman raises three claims on appeal. First, he contends his right to conflict-free counsel was violated because his trial counsel had previously represented a witness for the prosecution. Second, he contends he was denied the right to be present at a critical stage in the proceedings because he was excluded from discussions in which his attorney disclosed her prior representation of the prosecution witness. Third, he contends the trial court erred by admitting evidence of prior domestic violence acts under Evidence Code section 1109.
For the reasons below, we conclude these claims are without merit and we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
1. Case No. 16CR03516
The prosecution charged Freeman with three counts: Count 1—criminal threats (Pen. Code, § 422); count 2—false imprisonment (§ 236); and count 3—domestic violence battery (§ 243, subd. (e)(1)). The information further alleged Freeman had suffered a prior serious felony conviction (§ 667, subds. (a)(1), (b)-(i)).
Subsequent undesignated statutory references are to the Penal Code.
The case proceeded to trial in May 2018. The jury found Freeman guilty on all three counts as charged and he admitted the special allegations.
Freeman raises no claims in connection with this case.
The prosecution charged Freeman with three counts: Count 1—first degree residential burglary (§ 459); count 2—assault with intent to commit a felony (§ 220, subd. (a)); and count 3—false imprisonment by violence (§ 236). The information further alleged Freeman had suffered a prior serious felony conviction and that the offenses were committed while Freeman was released on bail or his own recognizance. (§§ 667, subds. (a)(1), (b)-(i), 12022.1.) Freeman pleaded no contest to count 1 and admitted the prior conviction in exchange for dismissal of the remaining charges.
3. Sentencing
The trial court imposed an aggregate term of 11 years eight months, consisting of four years for count 1 in case No. 16CR06066; one year four months for each of counts 1 and 2 in case No. 16CR03516; and five years for the prior conviction. The court imposed a concurrent term of 180 days on count 3.
B. Facts of Case No. 16CR03516
The facts of case No. 16CR06066 are immaterial to this opinion.
Freeman and the victim M.C. began a sexual relationship in 2015. M.C. considered the relationship to be a casual "friends with benefits" arrangement. She was dating another man at the time. In December 2015, she found out she was pregnant, but she knew Freeman was not the father and told him so. They met three or four times after that, and nothing unusual happened during these encounters.
1. Uncharged Acts Against M.C.
At some point, M.C. began to have problems with Freeman. He started showing up at her house uninvited, and she started ignoring his calls and texts. One night, he knocked on M.C.'s door, but she did not answer. About ten minutes later, she saw him outside near the hood of her car. She asked him what he was doing, and he responded, "I'm taking the GPS out of your car." M.C. was afraid for her safety and told him to leave. Freeman ended up screaming in her face as she screamed at him to leave. M.C.'s young daughter had come outside and started screaming and crying. Freeman left at some point and M.C. tried to put her daughter to bed.
At some point after that incident, M.C. came home to find all the plants outside her door had been ripped out. M.C. suspected Freeman did it, but she did not know for sure. On another occasion, she came home to find "Pregnant meth whore" spray-painted in her carport. Freeman had been calling and texting earlier that day, and M.C. had seen him outside her door.
2. Charged Acts
In April 2016, M.C. was working at the Dollar Tree store when she went outside for a work break. As she was walking toward her car in the parking lot, she saw Freeman walking rapidly in her direction and screaming at her. He pinned her up against the car and told her, "I'm going to fucking kill you. You lied to me. You lied to me." He had his hands on her shoulders and held her back against the car. He held her there for four or five minutes and refused to let her go. He kept repeating, "You fucking lied to me."
At that point, a group of bystanders intervened and separated Freeman from M.C. One of the bystanders called 911. Freeman screamed at them, went to his truck, and starting driving away aggressively. He circled back around and yelled out the window at the bystanders as he drove away. M.C. was terrified by the incident and never returned to work at the Dollar Tree.
The prosecution presented testimony from three other eyewitnesses to the incident. Two of the witnesses testified that they were in the Dollar Tree store parking lot when they saw Freeman screaming loudly at M.C. while he physically held her against the car. The third witness testified that she heard the yelling and saw a woman "pushed, kind of leaning, against the car" while "a man was with his hands over her . . . not making contact, but kind of closing her in." One of the witnesses testified that Freeman used the word "bitch" and said, "I know where you live, and I know where you work."
The prosecution played the audio recording of the 911 call placed by one of the bystanders. Freeman could be heard yelling in the background and threatening to have M.C.'s child taken away from her.
The parties stipulated that Freeman later sent text messages to M.C. in September 2016. Among other things, the texts said, "Please know I am truly sorry. You didn't deserve my wrath. Unfortunately, the realization that our friendship wasn't real to you was very painful."
3. Other Prior Crimes and Bad Acts
The prosecution presented evidence under Evidence Code section 1109 to show Freeman had a propensity to commit acts of domestic violence. The evidence included court records of four prior convictions: domestic violence battery in 2008; violation of a court order in 2009; exhibiting a deadly weapon in 2009; and domestic violence battery in 2015.
The prosecution introduced the testimony of Lorena Miller to prove the facts of the 2009 conviction for exhibiting a deadly weapon. Miller testified that her mother was married to Freeman at the time, and all three of them were living in the same house. Miller was in the living room at the house when she heard noise from a bedroom. Miller went to the bedroom and opened the door, whereupon she saw her mother and Freeman. Her mother was crouching down on the floor on her knees. Freeman swung a bat within inches of the mother's head and struck a desk. When he raised the bat up again, Miller yelled and called 911. Freeman grabbed his keys and fled.
The prosecution also introduced the testimony of K.S., who was a friend of M.C. K.S. testified she was dating Freeman in 2015 when she introduced him to M.C. K.S. got into an argument with Freeman when he told her he was having sex with M.C. At one point, Freeman was driving K.S. home when they got into an argument, and Freeman called her "a cunt and a whore." Freeman was driving fast and erratically. K.S. demanded to be let out of the car, whereupon Freeman stopped and pulled her out of the front passenger's seat before she had a chance to gather her belongings. Freeman threw K.S. to the ground while yelling and calling her names. Neighbors called the police, and paramedics arrived soon after to ensure K.S. was okay.
II. DISCUSSION
A. Defense Counsel's Prior Representation of a Prosecution Witness
In his opening brief, Freeman argued his conviction in case No. 16CR03516 must be reversed because his right to conflict-free representation was violated by his trial counsel's prior representation of a prosecution witness. The Attorney General contends defense counsel did not have a conflict of interest, and that even assuming counsel had a conflict, there was no prejudice or adverse effect on her representation. In his reply brief, Freeman concedes he cannot show prejudice and that reversal on this claim is unwarranted. We will accept the concession for the reasons below.
1. Background
As described above in section I.B.3, the prosecution called K.S.—a friend of M.C.—to testify at trial. Before K.S. testified, the prosecution informed defense counsel K.S. had suffered three prior misdemeanor convictions for petty theft between 2012 and 2014. The court and counsel for the parties agreed defense counsel would be permitted to confront K.S. with the fact of the convictions and the basic facts of each offense—e.g., "you were convicted of stealing whatever item from a location on such and such a date."
As part of her direct examination, the prosecutor elicited the fact that K.S. had suffered three convictions for petty theft. When the prosecution asked K.S. if she had taken responsibility for and pleaded guilty to those offenses, K.S. responded, "Yes. I was trying to get my daughter a Christmas present, and I didn't have money."
Before cross-examining K.S., defense counsel informed the court at a sidebar discussion that when K.S. entered the courtroom to testify, counsel recognized her as a former client. Counsel had represented K.S. in one of the petty theft convictions on which counsel now intended to impeach her.
The trial court asked counsel if she was concerned she had confidential information from the prior representation that might inhibit her cross-examination. Counsel stated, "I do not have any independent memory of the details of her case, but I am concerned in a couple of ways. One is, I would have been the person to coach her on taking the plea deal. So if we're talking about, well, you chose to take responsibility, and we get into, well, there are different reasons that people take a plea deal, I was intimately involved in that decision, even though I don't remember it." Counsel then told the court, "I'm almost fearful to even begin cross exam of her. I haven't brought this issue to my client yet. So if there's any kind of confidentiality or privilege that needs to be waived, he needs to waive that too. I just feel like I'm being backed in because of the specific answers that came out. She didn't just say, 'Yes, I was convicted.' "
The trial court then asked defense counsel how she intended to cross-examine K.S. Counsel responded that she planned to challenge the witness's assertion that she had stolen to give her daughter a present. The court responded, "I'll permit you to ask her as to each of the convictions, where it occurred, when it occurred, what store it occurred in, and what was taken." The prosecutor stated she would "clean it up" by eliciting the witness's admission that not all of the thefts were for presents. Defense counsel added, "Then the other thing is, you know, bringing up, well, you didn't necessarily just taking responsibility [sic]. There are multiple reasons that you can take a plea deal, you know, in order to—for example, I know that in at least one of these cases another charge was dismissed, and that was an identity theft charge." The trial court asked counsel whether she "really want[ed] to do that" given that Freeman had also taken a plea deal, and counsel responded, "I think my problem is that—well, I'm also just thinking about this out loud as I speak to it, but I've been precluded from arguing what she has effectively just elicited through testimony. [. . . ¶ . . .] And so I now am kind of trapped because she's gotten to say something that I was precluded from arguing in the first place, and it's negative to my case." The trial court ruled that counsel could question the witness on that issue. Finally, counsel expressed concern that the witness might recognize counsel while the witness was on the stand, causing the jury to react negatively.
Counsel never stated whether the witness's statement was made in connection with the matter on which counsel had represented her. Counsel's statements imply she did not recall which of the three theft convictions was the case in which she had provided counsel.
After the parties discussed the details of the anticipated cross-examination, the trial court found there was no disqualifying conflict of interest because defense counsel had no memory of her interactions with K.S., and counsel's cross-examination of the witness would not be affected. The court reiterated that if counsel wanted to ask K.S. about whether she had really stolen something to get a present for her daughter, counsel could pursue that line of questioning.
The prosecutor then re-initiated her direct examination of K.S. and attempted to elicit admissions that K.S. had not stolen to get presents for her daughter. K.S. responded, "That was the reason I stole, yeah."
Defense counsel then cross-examined K.S., and the witness admitted that one of the thefts—a $50 bottle of vodka from Safeway in 2012—was not a present for her daughter. K.S. also admitted she had stolen items worth $420 from Macy's in 2013 and items worth $320 from Kohl's in 2014.
2. Legal Principles
"A defendant's Sixth Amendment guarantee to effective assistance of counsel includes the right to counsel free from conflicts of interest." (People v. Woodruff (2018) 5 Cal.5th 697, 739 (Woodruff).) A conflict may arise when an attorney represents a defendant in a criminal matter and formerly had an attorney-client relationship with a person who is a witness in that matter. (Ibid.) " 'An attorney is forbidden to use against a [present or] former client any confidential information . . . acquired during that client relationship. [Citations.] Moreover, the attorney has a duty to withdraw, or apply to a court for permission to withdraw, from representation that violates those obligations.' " (People v. Bonin (1989) 47 Cal.3d 808, 835 (Bonin).) " '[T]o obtain reversal of a criminal verdict, the defendant must demonstrate that (1) counsel labored under an actual conflict of interest that adversely affected counsel's performance, and (2) absent counsel's deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different." ' [Citation.]" (Woodruff, at p. 739.)
3. Defense Counsel's Prior Representation Did Not Result in Prejudice
The parties disagree on whether defense counsel suffered from an actual conflict of interest that adversely affected her performance. Freeman concedes, however, that reversal is unwarranted if he cannot show prejudice, and he concedes he cannot show prejudice in this instance. The concession is well-taken. The evidence of the offense was strong. Three eyewitnesses to the incident independently corroborated the complaining witness's account. Furthermore, K.S. was not a critical witness in the prosecution's case; she was not a witness to the charged conduct, and there was no dispute that Freeman had engaged in the prior bad acts against K.S.
He raises the claim here to preserve his right to contest it in future proceedings.
We conclude that, even assuming defense counsel suffered from an actual conflict of interest that affected her representation of Freeman, he cannot show it is reasonably probable the result of the proceeding would have been different in the absence of any conflict. (Woodruff, supra, 5 Cal.5th at p. 739.) This claim is therefore without merit.
B. Defendant's Absence from Discussions Regarding His Counsel's Conflict
As described above in section II.A.1, defense counsel disclosed to the trial court and the prosecution that she had previously represented K.S., a prosecution witness. At a sidebar discussion, the court and the parties discussed how to proceed. Defense counsel informed the court she had not told Freeman about the prior representation and she had not obtained a conflict waiver. The trial court ruled there was no conflict of interest, and defense counsel proceeded to cross-examine the witness.
Freeman contends his exclusion from this discussion violated his right to be present at a critical stage of the proceedings. The Attorney General contends Freeman had no right to be present because there was no conflict of interest and no adverse effect on counsel's representation. The Attorney General further contends any error was harmless.
1. Legal Principles
"It is established that a defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings 'that is critical to its outcome if his presence would contribute to the fairness of the procedure.' [Citations.] In addition, a defendant has the right to be personally present at critical proceedings, pursuant to the state Constitution [citations], as well as pursuant to statute [citations]." (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357.)
"[A] defendant's right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant's presence would contribute to the fairness of the proceeding. [Citation.] Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding." (People v. Perry (2006) 38 Cal.4th 302, 312 (Perry).)
" 'A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that [the defendant's] personal presence could have substantially benefited the defense. [Citation.]' [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 408.) " 'An appellate court applies the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court's decision entails a measure of the facts against the law.' [Citation.] Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice." (Perry, supra, 38 Cal.4th at pp. 311-312.) "[W]e evaluate federal constitutional error for harmlessness under the Chapman beyond a reasonable doubt standard, and state law error under the Watson reasonably probable standard." (People v. Perez (2018) 4 Cal.5th 421, 438.)
Chapman v. California (1967) 386 U.S. 18.
People v. Watson (1956) 46 Cal.2d 818.
2. Freeman Suffered No Prejudicial Error
To support his claim he had a constitutional right to be present for the discussion over his counsel's prior representation of a witness, Freeman cites Perry, supra, 38 Cal.4th at page 313. In Perry, two jurors in the guilt phase of a capital trial overheard courtroom spectators—including Perry's wife—discussing the case. (Id. at p. 309.) The trial court held a bench conference to discuss the matter, and Perry was excluded from the discussion. The record showed defense counsel made statements in the bench conference expressing concern about excluding Perry's wife from the courtroom because Perry might become unmanageable, disrupt the trial, and harm counsel. On appeal, Perry argued his exclusion from the bench conference violated his right to be present at a critical stage of the proceedings.
The California Supreme Court rejected this claim. (Perry, supra, 38 Cal.4th at pp. 314-315.) In doing so, the court discussed cases Perry had cited from other jurisdictions analyzing a defendant's right to be present in proceedings concerning an attorney's conflict of interest. In discussing these cases, the court stated, "We do not dispute that a defendant may be entitled to be present at a conference called to consider whether to remove his counsel for conflict of interest or any other reason, because the removal of counsel will affect defendant's representation at trial, and is a matter on which defendant's views should be heard. Here, however, the bench conference was not called to consider such a crucial matter, but only to determine whether certain spectators should be excluded from the courtroom—a routine procedural matter for which defendant's attendance is not required." (Id. at p. 313, italics added.) Here, Freeman relies on the first sentence of this analysis to support his claim that he had a right to be present for the sidebar in his trial. But as the Supreme Court noted, the argument in Perry did not concern the removal of counsel for a conflict of interest. The statement in Perry that Freeman relies upon therefore constitutes dicta. "Only statements necessary to the decision are binding precedents; explanatory observations are not binding precedent." (Western Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61.) We consider dicta from the California Supreme Court to be persuasive but not binding. (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272.)
Freeman does not cite any other California case for the proposition that a defendant has the right to be present at a sidebar discussion regarding a potential conflict of interest by counsel. If the trial court conducts an inquiry into the potential conflict and concludes there is an actual conflict, it follows that the court must seek a waiver of the conflict from the defendant, which would necessarily require the defendant's presence. (Bonin, supra, 47 Cal.3d at pp. 837-838.) But if the trial court inquires into the matter, "it may decline to take any action at all if it determines that the risk of a conflict is too remote." (Id. at p. 837.)
Here, it not clear that Freeman's counsel had an actual conflict in this matter. Counsel never asserted she had an actual conflict and never moved to withdraw. When the trial court inquired into the matter, counsel stated she was "concerned" but had no memory of the details of her representation of K.S. Counsel expressed concern about her ability to challenge the witness regarding her claims about taking responsibility for the thefts, but the trial court ruled counsel would be permitted to do so on cross-examination. Finally, counsel expressed concern the witness might recognize her. The trial court ruled there was no actual conflict of interest because counsel had no memory of any confidential attorney-client information arising from her representation of K.S. and her representation of Freeman would not be affected. Nothing in the record undermines the trial court's findings about counsel's recollection.
Freeman contends an actual conflict existed under the analysis set forth in Bonin, supra, 47 Cal.3d 808. In Bonin, the defendant in a capital case moved to substitute his appointed attorney with retained counsel just before the start of the guilt phase. (Id. at p. 825.) The prosecution objected on the ground, among others, that retained counsel had previously represented a prosecution witness. Retained counsel admitted he had spoken with the witness about the case but counsel denied he had entered into an attorney-client relationship with the witness and counsel denied he was aware of any confidential information from his interactions with the witness. The prosecution asserted otherwise and expressed concern that the defendant would be able to assert a conflict on appeal. The defendant was present at the relevant hearings. Ultimately, the trial court allowed retained counsel to represent the defendant at trial without obtaining a waiver from the defendant. In its analysis, the California Supreme Court assumed without deciding that retained counsel had an actual conflict and held the trial court erred by failing to obtain a waiver from the defendant. (Id. at pp. 839-843.) Nonetheless, the California Supreme Court held the error was harmless because Bonin had failed to show any adverse effect on retain counsel's performance.
Freeman also cites People v. Friend (2009) 47 Cal.4th 1 (Friend). In Friend, the defendant's attorney was a public defender whose office had represented a prosecution witness in another matter. (Id. at p. 45.) On appeal, Friend argued his counsel had a conflict of interest that prevented counsel from impeaching the witness about the offense on which the office had provided representation. The trial court ruled defense counsel could not impeach the witness on that offense but allowed counsel to impeach the witness with 16 other criminal cases. The California Supreme Court held that because defense counsel was prevented from impeaching the witness about the one offense on which the office provided representation, Friend had shown an actual conflict of interest—that is, " 'a conflict that affected counsel's performance—as opposed to a mere theoretical division of loyalties.' [Citation.]" (Id. at p. 46.) Nonetheless, the Supreme Court held Friend had not suffered prejudice because his counsel was able to impeach the witness with numerous other offenses.
We agree with Freeman that, if his counsel had an actual conflict of interest, he had a right to be informed of the conflict and be present at a hearing on the matter because proceeding with the representation would have required the court to obtain a knowing, voluntary, and informed waiver of the conflict from Freeman. (Bonin, supra, 47 Cal.3d at pp. 843-844.) As in Bonin, however, we conclude that even assuming trial counsel had an actual conflict, any error in this regard was harmless. First, there is no indication in the record that Freeman's counsel was adversely affected. Counsel was not prevented from cross-examining the witness as desired. Although the prosecutor attempted to elicit admissions from K.S. that she had not committed the thefts for the benefit of her daughter, it was defense counsel's cross-examination that exposed the witness's lack of candor.
Furthermore, K.S. was a peripheral witness in the prosecution's case. The evidence from the complaining witness was strong, and three eyewitnesses independently corroborated her account of the incident. Freeman then inculpated himself with his subsequent text messages to the victim. Any defect in counsel's representation was harmless beyond a reasonable doubt, and Freeman suffered no prejudice under either the Watson state law standard or the Chapman federal standard.
Freeman contends he was harmed by his absence from the sidebar discussion because he could have moved for substitution or disqualification of his counsel if he had been made aware of the asserted conflict, resulting in a mistrial. He cites no California law, however, supporting this theory of prejudice. Indeed, reversal based on the theoretical possibility that a defendant could have obtained new counsel would be indistinguishable from reversal based on structural error, and California courts have rejected that approach. (Perry, supra, 38 Cal.4th at pp. 311-312.) Although he has argued otherwise, Freeman effectively urges us to adopt a structural error approach based on cases from other jurisdictions. We decline to do so.
Freeman cites People v. Soojian (2010) 190 Cal.App.4th 491, for the proposition that the reasonable possibility of a hung jury constitutes prejudice. But that case involved the erroneous denial of a motion for a new trial based on newly discovered evidence, not prejudice from an asserted conflict of interest by defense counsel.
For the reasons above, we conclude this claim is without merit.
Our conclusion that reversal is unwarranted should not be construed as an endorsement of the use of the bench discussion here, nor as an endorsement of defense counsel's conduct. Transparency in criminal proceedings is essential to counter the suspicion often held by defendants that appointed counsel, the prosecutor, and the trial court work together against the interests of the accused. The failure of appointed counsel to deal candidly with her client likely undermined his confidence in her ethical duties of loyalty and zealous advocacy. Defense counsel's best practice would have been to disclose the information regarding prior representation to her client and discuss with him the possibility of a waiver. The court's best practice would have been to conduct discussions and issue rulings, with Freeman present and the jury excused, regarding the effect of any potential conflict, thereby supporting both the perception and actuality of the integrity of the criminal justice system.
C. Admission of Prior Domestic Violence Acts Under Evidence Code Section 1109
Freeman contends the trial court erred in admitting evidence of multiple acts of prior domestic violence under Evidence Code section 1109. He argues the evidence was more prejudicial than probative under Evidence Code section 352, and that, as to two of the acts, the prosecution failed to satisfy the preponderance of evidence standard for admissibility. The Attorney General contends the trial court did not abuse its discretion in admitting any of the evidence, and that Freeman cannot prove prejudice even if the court erred.
1. Background
As set forth above in sections I.B.1 and I.B.3, the trial court admitted evidence of prior acts of domestic violence against M.C., K.S., and Freeman's ex-wife (Lorena Miller's mother). The court admitted this evidence—and excluded evidence of numerous other acts—in ruling on in limine motions by the prosecution to admit the evidence under Evidence Code section 1109. The admitted evidence included testimony by M.C. about Freeman threatening to tamper with her car, spray-painting "Pregnant meth whore" on her carport, and tearing out her plants (section I.B.1); testimony by Lorena Miller about Freeman swinging a bat near his ex-wife (Miller's mother) resulting in a conviction for exhibiting a deadly weapon in 2009 (section I.B.3); and judicial notice of the records of four prior convictions, including the 2009 conviction for exhibiting a deadly weapon and another conviction for violating a restraining order protecting his ex-wife.
The trial court excluded evidence of numerous acts of domestic and sexual violence against other women. Freeman does not challenge the admission of the testimony by K.S. about his pulling her out of the car, throwing her on the ground, and shouting obscenities at her (section I.B.3) or evidence of the resulting conviction. --------
2. Legal Principles
Evidence Code section 1101 generally excludes "evidence of a person's character or a trait of his or her character . . . when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) But Evidence Code section 1109 sets forth an exception to that general rule, providing, "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." (Evid. Code, § 1109, subd. (a)(1).) Evidence Code section 352 gives trial courts 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." (Evid. Code, § 352.)
In ruling on such evidence, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . ." (People v. Falsetta (1999) 21 Cal.4th 903, 917 [analyzing Evidence Code section 1108].)
The standard for proving past conduct is by a preponderance of the evidence. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1030.) We review the trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.)
3. Admission of the Evidence Did Not Constitute Prejudicial Error
Freeman contends the acts of domestic violence against his ex-wife were too remote in time, inflammatory, and lacking in prejudicial value. We are not persuaded. The incidents occurred in 2009, about seven years before the charged offense, and both incidents involved threats of violence or extreme anger against an intimate partner. The nature of the conduct described was not so inflammatory that it would have caused the jury to ignore its duty to evaluate the evidence of the charged act in accordance with the law. The trial court did not abuse its discretion in admitting this evidence.
Freeman argues the prior uncharged stalking and vandalism incidents described by M.C. were inflammatory, likely to confuse the jury, and not proven by a preponderance of the evidence. As to the assertion they were inflammatory and likely to confuse the jury, we disagree. The testimony concerning these incidents was not confusing in any fashion, and none of them involved conduct so inflammatory that the jury would have been biased. As to the two uncorroborated incidents in which M.C. never saw Freeman—the tearing out of the plants and the graffiti in the carport—we agree that the evidence supporting these accusations was not strong. Even assuming this evidence should not have been admitted, however, Freeman suffered no prejudice. First, neither of these incidents was particularly inflammatory. Second, the evidence supporting the charged acts was strong. Three witnesses independently corroborated M.C.'s narrative of the incident, and Freeman himself subsequently sent texts apologizing to M.C. for his undeserved "wrath".
We conclude this claim is without merit. Accordingly, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.