Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE261914 Laura P. Hammes, Judge.
HUFFMAN, Acting P. J.
A jury convicted Darnell D. Green of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery on a spouse (§ 243, subd. (e)(1)). The trial court subsequently found true an allegation that Green had served a prior prison term (§ 667.5, subd. (b)) and had violated probation in another case. The court sentenced Green to prison for a total term of four years and eight months.
All statutory references are to the Penal Code unless otherwise specified.
The jury found Green not guilty of a charge of making a criminal threat upon a spouse.
Green appeals, contending the trial court prejudicially abused its discretion in admitting three prior uncharged acts of domestic violence under Evidence Code sections 1109 and 352 and in rejecting his request to modify the jury instruction (CALCRIM No. 852) regarding such prior domestic violence acts consistent with People v. James (2000) 81 Cal.App.4th 1343 (James). We affirm.
FACTUAL BACKGROUND
On June 7, 2006, San Diego County Sheriff deputies Andrew Mowins and Bret Reed responded to a domestic violence call at an apartment complex in Spring Valley and were directed by a neighbor named Kecia Barrett who had called 911 to the apartment occupied by Green, his wife Ishali Green (Ishali), their two children and his stepson, Ishali's son, Anthony H. When the deputies entered the apartment, Mowins talked with Anthony in the hallway, while Reed talked with Ishali about 20 feet away in another room.
Anthony, who was visibly upset and appeared scared, told Mowins that from his bedroom he had heard an argument going on in the front room. When he heard some "gurgling noises," he got up and from the hallway saw Green on top of his mother, who was on the floor on her back, with his hands around her neck and his arms around his mother's arms. Anthony said this went on for about five minutes before Green let her go when Anthony walked in the living room. His mother told him that he should call 911 if Green strangled her again. Anthony said his mother was having problems breathing and he felt as if Green was going to kill her.
Ishali, who also appeared upset, distraught, and was having trouble breathing, immediately told Reed that she had been a victim of domestic violence and that her husband had strangled her. Complaining of pain around her neck and throat area, she then explained that she had been on the computer and telephone with someone when Green had come home and asked her to write up a bill of sale. When she said, "[n]ot right now," an argument ensued. Green then put both of his hands around her neck, pulled her out of her chair, and put her on the floor. She felt his grip tightening around her neck and his legs controlling her from moving her arms or legs. Ishali thought that Green had his hands around her neck for a couple of minutes, stopped and then did it again for several more minutes. At one point Green told her, "I'll kill you, I'll kill you." Green finally released his grip when they saw Anthony in the hallway. Ishali believed that the entire incident went on for about seven minutes.
Green was subsequently charged with the domestic violence related charges in this case. At trial, Reed and Mowins testified consistently with the above facts. Reed additionally stated that neither Ishali nor Barrett appeared to have been under the influence of any alcohol, drugs or stimulants on the night in question, that there had been no unusual odor emanating from Ishali's person that night, and that he had not seen any drug paraphernalia in the apartment that night.
Anthony, Ishali and Barrett, however, all testified as reluctant witnesses against Green, denying or claiming lack of memory of their respective statements to the deputies on the night in question. Anthony was 11 years old at the time of trial and loved Green as his own father. He essentially tried to minimize his earlier statements to Mowins by saying he only told the deputy he saw Green with his hands around his mother's neck because he had heard his mother talking with the other deputy about what had happened. Anthony also claimed he really just heard his mother say she "needed some breath" and not that he heard her gasping for air.
Ishali testified that she and Green had been married eight years. When he came home on June 7, 2006, she was sitting at the computer, talking on the phone with her friend Barrett and doing drugs. Ishali said they had words that led to a "tussle" when Green walked over to her, saw some drugs and paraphernalia, became upset and tried to take them away. She claimed she then fell backwards from her chair and tried to hit Green to prevent him from taking her "stuff." When she did so, they both ended up on the floor, with Green on top of her holding her hands. After about 15 minutes, Green grabbed her cell phone and went to their bedroom. The next thing she knew, the police were knocking at their door.
Although Ishali said she had told the deputies that night that Green had just strangled her, she claimed she only told them that to get Green out of the house so she could do what she wanted to do. She also said she was crying when the deputies came only because she wanted her drugs back. She conceded that she had never told anyone about the drugs before testifying at trial and that she had testified to a different version of events at the preliminary hearing in this case that was consistent with her statements to the deputies the night of the incident.
When asked whether this was the first time Green had ever physically hurt her, Ishali replied, "No." When she was then asked about some incidents that had occurred in 2000, Ishali claimed not to remember anything from March 2000. After being shown a police report regarding an incident on March 27, 2000, Ishali said that the incident may have happened, but that she did not remember it. She admitted that it was her handwritten statement attached to the report, that the incident happened, but that she did not remember "no details or nothing like that." She only remembered that she had gotten hit by Green with a bed rail.
When then asked about incidents on March 9 and February 25, 2000, even after being shown copies of the police reports, Ishali claimed she did not remember the incidents. She agreed, however, that those incidents were probably fresher in her mind at the time the police reports were taken and acknowledged that she had made reports in the past to the police for violence that Green had inflicted upon her.
On cross-examination, Ishali stated that she and Green had gotten in quite a few arguments over the years and that she would sometimes get so angry that she would hit or scratch him. She also said that she had set his clothes on fire one time and had trashed a custom painted car of his. She could not recall whether such acts were part of the same incident where Green hit her with the bed rail. She explained that she had still been angry with Green at the time she testified at the preliminary hearing in this case because she was still using drugs and was afraid he might still be seeing an ex-girlfriend.
Ishali also stated she had been arrested after the preliminary hearing for drug offenses and had spent several months in jail.
In addition to a medical expert then testifying about strangulation and its various effects, Barrett finished off the prosecution case, testifying she had called the police on June 7, 2006 when she became concerned because "[a]ll of a sudden, there was nobody on the phone [while she was talking with Ishali] and I heard a noise in the background." When Barrett heard what she thought were "choking" or "gurgling" noises, she used her cell phone to call the police. Barrett said she may have overreacted because she had been a domestic violence victim before and she had been drinking that night. She also thought the sounds could have been from a television. She did not recall telling the deputies that she had heard screaming while she was on the phone as she had at the preliminary hearing. She did recall telling them that she had heard Green ask Ishali, "Do you think I'm playing with you?"
After the redacted 911 audiotape was played for the jury, Barrett conceded that it was her voice on the tape, and she had reported what she believed had occurred moments before making the call. Neither the tape nor the transcript of the tape is a part of the record on appeal.
DISCUSSION
I
ADMISSION OF OTHER ACTS OF DOMESTIC VIOLENCE
In limine, the prosecutor sought to admit evidence of other acts of domestic violence Green had committed on Ishali as well as on an ex-girlfriend; five against Ishali and five against the former girlfriend. Green brought a counter motion to exclude such evidence, arguing that the majority of the acts would consume undue time and be more prejudicial than probative. Green did not object to the admission of the incident on March 9, 2000 in which he slapped Ishali and she pushed him.
At the hearing on the matter, the trial judge tentatively ruled that because there were so many incidents and the older ones were with a different victim, and the prosecution case appeared strong at that point, "it would be overkill to put in all . . . of those prior incidents, and especially those on another victim. I would say initially, stick to the current victim. The probative value on another victim gets really attenuated, and especially if those are the older ones . . . . So I would say stick to the current ones from 2000. I don't think those are too remote. They are the same victim. I think that is very probative on the relationship between the two, especially where you, apparently, don't have any physical injuries on this one. But I would say stick to three. Pick your best three, and you can . . . say, 'I want to talk about one on this date, this date and this date' and zero in on those, but the rest would be more prejudicial than probative." The court stated that was its tentative and also noted that Ishali could be generally asked a question about how many times Green had hit her in the past.
The prosecutor then brought up the problem that Ishali was now appearing to be "completely recanting," so she was not sure how to proceed with the prior domestic acts of violence evidence. Defense counsel further noted that if Ishali denied remembering any of the prior incidents, he would ask that the court not permit her to be impeached with the police reports concerning those prior acts. The court said it would rule on such concerns when it was brought up during Ishali's testimony.
Later, when Ishali testified at trial, she was asked about the earlier three incidents as noted in the factual background above. Neither counsel requested the court make further rulings on the evidence and Green did not specifically object to the testimony regarding those prior acts of domestic violence at that time.
On appeal, Green argues that the trial court abused its discretion when it admitted the prior domestic abuse acts regarding his wife under Evidence Code section 1109 over his Evidence Code section 352 objections. He specifically argues that the prior offenses admitted were not sufficiently similar to the charged offenses to demonstrate a pattern of domestic violence and the court failed to weigh the probative value of the three incidents actually chosen by the prosecutor to admit into evidence via Ishali's testimony. We conclude the trial court did not abuse its discretion in admitting the other acts evidence under Evidence Code section 1109.
As a preliminary matter, we note that with regard to state evidentiary claims, such will be waived where a defendant does not specifically object below on the ground raised on appeal. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124 (Kipp).) Because Green did not specifically object below to the admission of the prior acts evidence concerning Ishali on grounds the incidents were not sufficiently similar to the current incident to show a clear pattern of domestic violence that would unequivocally demonstrate that he was likely to commit the charged offenses or to the fact the court did not further evaluate the probativeness of the three incidents the prosecutor chose to admit into evidence, his appellate assertions regarding such claims are essentially waived. As the record reflects, the probativeness of the three incidents was reviewed together with two other incidents pretrial when the court made its tentative ruling on the matter, impliedly finding each of the five incidents was equally probative of the on-going violent domestic relationship between Green and Ishali. Green did not ask for any final ruling or further object when the three incidents were discussed later during Ishali's testimony.
As to the objection Green did make concerning the admission of any of Ishali's Evidence Code section 1109 evidence, i.e., that it would necessitate an undue consumption of time and create substantial danger of undue prejudice, we note that subject to Evidence Code section 352, Evidence Code section 1109 permits a jury to consider prior incidents of domestic violence for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current charge of domestic violence. (Evid. Code, § 1109, subd. (d).) Although before Evidence Code sections 1108 and 1109 were enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, § 1101; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913 (Falsetta)), their enactment created statutory exceptions to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses and other acts of domestic violence in cases charging such conduct to prove the defendant's disposition to commit the charged offense. (Falsetta, supra, 21 Cal.4th at p. 911; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025 (Hoover).)
However, because Evidence Code section 1109 conditions the introduction of prior domestic violence evidence on whether it is admissible under Evidence Code section 352, Green's specific objection, as well as any derivative due process assertion, necessarily depends on whether the trial court here sufficiently evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) As the Supreme Court stated in Falsetta, "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, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.)
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."
On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1109 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under Evidence Code section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting such other acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.)
Applying these rules in this case, we conclude the trial court's analysis was reasonable and sufficient to indicate it carefully and properly weighed prejudice against probative value before admitting three of the incidents proffered regarding Ishali under Evidence Code section 1109. As noted above, after the court considered the matters presented in the parties' briefs as well as oral argument, it excluded some of the proffered evidence of other domestic violence acts and allowed only a portion of it to come into evidence at trial. As to the evidence admitted, the court stated reasons on the record for finding no undue prejudice and consumption of time after weighing the probativeness of the evidence on the current charges against the prejudice inherent in its admission. The evidence of prior acts of domestic violence against Ishali, which was presented to provide a history of the abusive relationship between her and Green, was relevant, material and noncumulative to show Green's propensity to commit violent acts against his domestic partner, his wife, and thus the evidence had great relevance to the issues the jury had to decide. In addition to the evidence falling within the 10-year cutoff for Evidence Code section 1109 evidence, the evidence was short, basically innocuous, no more egregious than the charged offenses, and posed no danger of jury confusion.
Contrary to Green's arguments on appeal, the prior acts of hitting or slapping Ishali were no more inflammatory than the charged acts, which stemmed out of Green choking Ishali with his hands. Nor was the evidence confusing because Ishali claimed a lack of recall regarding all the events or their details and had to determine whether Green had committed those uncharged offenses by a preponderance of the evidence. (See People v. Reliford (2003) 29 Cal.4th 1007, 1016.) Green has only speculated to jury confusion.
In sum, on this record, we cannot find that the trial court abused its discretion in finding Ishali's Evidence Code section 1109 testimony was not unduly prejudicial, i.e., its probative value outweighed its prejudice. No evidentiary error in this regard is shown.
II
CALCRIM NO. 852
During preliminary jury instruction discussions, when the court noted it would generally refer to the acts of domestic violence in 2000 being admitted as other acts evidence and then specifically note the charges alleged in this case later in the instruction, defense counsel reminded the court that this was the instruction for which she was asking the court to "look at the use note." Counsel had not submitted any proposed modification to the instruction, but was asking that the "disposed" language be removed, which was the last paragraph or changed to "inclined," and to also "remove the bracketed or excise the words 'and did commit' infliction of corporal injury to a spouse or roommate as charged here." Counsel noted that such language had "come into some disapproval" under James, supra, 81 Cal.App.4th 1343, and that the court should give instead:
" 'If you decide that the defendant committed the uncharged domestic violence, you may consider that evidence and weigh it, together with all the other evidence received during the trial, to help you determine whether the defendant committed . . . (blank). [¶] Remember, however, that evidence of uncharged domestic violence is not sufficient alone to find the defendant guilty of (blank). The People must still prove every element of (blank) beyond a reasonable doubt.' "
Counsel asked the court to follow the suggestion in James, supra, 81 Cal.App.4th 1343 that more general terms be used "to instruct the jury how they may use evidence of other domestic violence offenses . . ., leaving particular inferences for the argument of counsel and the jury's common sense . . . ." The prosecutor did not think that any change was needed because the instruction as currently written properly stated the law.
The trial judge stated it had mixed feelings about the matter because it had been six years since James, supra, 81 Cal.App.4th 1343 was decided and the CALCRIM and CALJIC instructions regarding prior domestic violence acts had remained the same, upholding "this kind of propensity language being [used] . . ." and, even if the language suggested in James were used, "you've got plenty of leeway to use those priors for the jury to consider how they want to consider it. It leaves it open not only to the propensity language, but anything else they can dream up. . . ." Although the court did not think the instruction modeled after James would hurt the prosecution, it asked that the prosecutor prepare two cleaned-up versions of CALCRIM No. 852, one with the James language and one without, and bring them to court the next day for further discussion and a ruling.
The next day, after further argument, the court denied the defense request to give a so-called James instruction, stating it had reviewed the use notes and commentary to CALCRIM No. 852 and found that "James seems to be out there on its own." The court did not think that the general language suggested by James was much different than the existing language in the CALCRIM instruction of being told the other acts evidence could be considered for whether "there's a disposition or inclination to commit the offense" or that it was much help to the defendant.
Although the court ruled it was going to give CALCRIM No. 852 as is, it granted defense counsel's request to excise the bracketed portion "and did commit" from the instruction because it thought such improperly told the jury that the fact a defendant did it before meant it could be used to show he did it again.
The court subsequently instructed the jury under the modified CALCRIM No. 852 as follows:
"The People presented evidence that the defendant committed domestic violence in the year 2000 that was not charged in this case. 'Domestic violence' means abuse committed against an adult who is a spouse. 'Abuse' means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit assault with force likely to cause great bodily injury, battery on a spouse or simple assault as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of assault with force likely to cause great bodily injury, battery on a spouse or simple assault. The People must still prove each element of every charge beyond a reasonable doubt."
On appeal, Green contends, as he did below, that the trial court should have granted his request to modify CALCRIM No. 852 as suggested in James, supra, 81 Cal.App.4th 1343 because it was an accurate statement of the law, and that the failure to do so to clarify that the prior acts of domestic violence could be used for general purposes and not simply to show his propensity to commit the charged offenses "violated [his] ability to present a defense[;] to a fair trial by jury; due process; a trial free from improper lessening of the prosecution's burden of proof; and a reliable and non-arbitrary determination of guilt in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the analogous provisions of the California Constitution. . . . [Citations.]" Green also contends that CALCRIM No. 852 as given was argumentative and served as an improper pinpoint instruction on the prosecution's theory of the case. We conclude there was no error in the instructions and the court properly exercised its discretion in refusing to further modify CALCRIM No. 852 under James, supra, 81 Cal.App.4th 1343.
As the People correctly point out, Green did not object to the giving of CALCRIM No. 852 on grounds it was argumentative, an improper pinpoint instruction, violated his rights to present a defense, to a fair trial, to due process or that it lessened the prosecution's burden of proof on his current charges. Because Green did not make any such specific objections, he has technically forfeited such claims on appeal. (See People v. Geier (2007) 41 Cal.4th 555, 611.) Regardless, none of his arguments has merit.
Essentially relying on James, supra, 81 Cal.App.4th 1343, Green suggests CALCRIM No. 852 should have been modified to instruct the jury that it could properly consider the past acts evidence for purposes other than merely to determine his propensity to commit the charged offenses. He claims that without such modification the jury was not permitted to use the uncharged domestic violence evidence for more general purposes like showing Ishali had a tendency to file incomplete police reports or change her testimony at her whim. In support of his position, Green primarily points to dicta in footnote 8 in James, supra, 81 Cal.App.4th at page 1357 which agreed that the 1999 revisions of CALJIC Nos. 2.50.01 (regarding prior sex offenses) and 2.50.02 (regarding prior domestic violence acts), which in essence provide the same instruction as CALCRIM No. 852, were an improvement over the previous versions, but stated that with regard to CALJIC No. 2.50.2 that:
James, supra, 81 Cal.App.4th 1343, dealt with the 1997 version of CALJIC No. 2.50.02, which did not include a paragraph cautioning the jury it was not sufficient by itself to find the prior crimes true to support the beyond a reasonable doubt standard for conviction of the current crimes. CALCRIM No. 852, like the 1999 version of CALJIC No. 2.50.02, does include such a paragraph.
"[T]o the degree it still suggests that other offense evidence is relevant only to infer guilt from propensity, we believe the instruction simultaneously overstates and unduly limits the use of such evidence. The Falsetta court acknowledged that other crimes evidence may be considered for a variety of purposes 'such as establishing defendant's motive, intent, or identity (if those issues remain contested), or bolstering the young victim's credibility.' [Citation.] We believe an instruction in general terms would be more appropriate, leaving particular inferences for the argument of counsel and the jury's common sense. At a minimum, deleting the words 'and did commit' from the standard instruction would remedy many of the concerns addressed above." (James, supra, 81 Cal.App.4th at p. 1357, fn. 8.)
In addition to such dicta lacking precedential value (see People v. Macias (1997) 16 Cal.4th 739, 743), the court in James did not imply or hold that the 1999 amended version of CALJIC No. 2.50.02 was constitutionally infirm but only that it could be improved. Rather, the constitutionality of the 1999 version of CALJIC No. 2.50.02, which is analogous to CALCRIM No. 852, was upheld in People v. Brown (2000) 77 Cal.App.4th 1324, after that court reviewed the instruction in light of the discussion in Falsetta, supra, 21 Cal.4th 903 regarding the constitutionality of CALJIC 2.50.01, which is virtually identical to CALJIC No. 2.50.02 except that it applies to use of prior sexual acts. (Brown, supra, 77 Cal.App.4th at pp. 1335-1336.) No court has invalidated the revised version of CALJIC No. 2.50.02, its analogous instruction 2.50.01, or CALCRIM No. 852. We agree with the holding and reasoning in Brown that CALJIC No. 2.50.02 passes constitutional muster and believe that such reasoning applies equally to CALCRIM No. 852, i.e., that it accurately states the law, does not impermissibly lighten the prosecution's burden of proof, and does not violate due process.
Moreover, nothing in CALCRIM No. 852 given here precluded Green's defense counsel from arguing that Ishali was not a credible witness based upon her testimony concerning the earlier domestic violence incidents and the "and did commit" language the court in James, supra, 81 Cal.App.4th 1343, found particularly troublesome was deleted at defense counsel's request thereby remedying many of Green's stated concerns on appeal.
Contrary to Green's assertion that CALCRIM No. 852 is an argumentative pinpoint instruction, our Supreme Court in People v. Kelly (1992) 1 Cal.4th 495, upheld the giving of instructions, like the one in CALCRIM No. 852, that may not only pinpoint evidence the jury may consider but also tells the jury "it is not sufficient by itself to prove guilt. [Citation.]" (Id. at p. 531; italics in original.)
In sum, Green has not shown how the trial court abused its discretion in refusing to further revise CALCRIM No. 852. No instructional error is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDonald, J., AARON, J.