Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF140033 Eric G. Helgesen (Retired judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
In a two-count information, defendant Roman Deonn Hellems was charged with inflicting corporal injury on his girlfriend, Bridgette F., in count 1 (Pen. Code, § 273.5, subd. (a)), and with criminally threatening her in count 2 (Pen. Code, § 422). A jury found defendant guilty as charged in count 1 but not guilty in count 2. On count 1, defendant was sentenced to the middle term of three years in prison, and appeals.
The evidence at trial showed that around 4:30 p.m. on May 4, 2007, defendant and Bridgette F. were driving separate vehicles in opposite directions in Moreno Valley. After they spotted each other, defendant made a U-turn and followed Bridgette F. into the parking lot of a nearby strip mall anchored by a Stater Bros. market. There, defendant dragged Bridgette F. from her car, punched her in the face, pursued her as she tried to escape, and threatened her with physical harm.
Defendant claims: (1) the prosecutor committed Batson/Wheeler error in peremptorily excusing two African-American prospective jurors on the basis of race; (2) the trial court violated his Sixth Amendment right to confrontation and state hearsay law in admitting evidence of out-of-court statements made by two unidentified witnesses during two 911 calls placed from the Stater Bros. parking lot; and (3) the trial court abused its discretion under Evidence Code section 352 in admitting evidence of prior acts of domestic violence defendant committed against two other women in April and November 2002.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
All further statutory references are to the Evidence Code unless otherwise indicated.
We find each of these claims without merit and affirm the judgment.
II. THE EVIDENCE PRESENTED AT TRIAL
At approximately 4:30 p.m. on May 4, 2007, the dispatch center of the Riverside County Sheriff’s Department received two 911 calls concerning an incident occurring near a Stater Bros. market in Moreno Valley. The first caller, Stater Bros. store clerk Jeremy Yates, told the operator that a man was beating a woman in the store parking lot and asked for help. The second caller, an unidentified female, reported seeing a Black male strike a Black female in the face and chase her around a vehicle, punching his fist in the air in a threatening manner. The unidentified caller asked the dispatcher to hurry and send assistance.
Riverside County Sheriff’s Deputy Mario Moreno was dispatched to the Stater Bros. parking lot area in response to the 911 calls. There, he contacted Bridgette F. and immediately noticed her hair was “messed up” and she had a swollen lip. She was crying and appeared frightened as she spoke to the deputy. She showed the deputy her injuries, which were consistent with having been punched in the face and dragged from her car. She had an abrasion inside her swollen lip, and redness on her neck and ear. Her lip was bleeding and she said she was in pain.
Bridgette F. told Deputy Moreno she was driving northbound on Indiana Boulevard and approaching Alessandro Boulevard when she saw defendant driving southbound on Indiana Boulevard in his friend’s car. Defendant made a U-turn and got behind her car. She pulled into the parking lot of the strip mall and, knowing defendant would be violent, began honking her car horn. Defendant approached Bridgette F., struck her in the face, and dragged her from her car. He began chasing her around her car, but she was finally able to escape from him. As she was walking toward the Stater Bros. store, defendant said to her, “‘Bitch, I should just finish you off right now.’”
Bridgette F. told Deputy Moreno that defendant’s threat frightened her and that he had made a similar threat to her about two weeks earlier. At that time, defendant showed up at her house uninvited, and she invited him in to avoid an altercation between him and her family members. Defendant cursed at her, accused her of sleeping with other men, and told her he had a gun in his car and would kill her if he ever found out she was involved with another man.
Bridgette F. also told Deputy Moreno that defendant had threatened her with a gun on several prior occasions while the two of them were living in Iowa. In one such instance, defendant slept with a gun next to his bed in order to prevent Bridgette F. from leaving the house during the night. Bridgette F.’s relationship with defendant also involved other instances of physical and verbal abuse, and she told Deputy Moreno that she finally ended her relationship with defendant in December 2006 due to the abuse. At Bridgette F.’s request, Deputy Moreno obtained an emergency protective order prohibiting defendant from contacting her.
At trial, Bridgette F. either recanted or claimed not to recall most of the statements she made to Deputy Moreno on May 4, 2007. She testified she met defendant in 2000 or 2001, while both were living in Iowa, and he adopted her then-infant daughter. While they were living in Iowa, defendant would stay with Bridgette F. about once each week and would stay with his other girlfriends the rest of the time. His other girlfriends included Lori E. and Traci S.
Bridgette F. further testified that she and defendant moved from Iowa to Moreno Valley together in 2003. By 2007, they were no longer “in a relationship” but still occasionally had sex. In April 2007, defendant came to Bridgette F.’s home because she had been “calling around looking for him.” According to Bridgette F., defendant wanted to know whether there was a problem with their daughter, and he wanted nothing more to do with Bridgette F. Bridgette F. told defendant she only wanted to talk to him and have sex with him.
Bridgette F. next saw defendant on May 4, 2007, as she was driving home from work. They were driving in separate cars in opposite directions. After they saw each other, they drove into the parking lot of a nearby strip mall, which included a Stater Bros. store. Several other stores were in the mall, and Bridgette F. parked away from the Stater Bros., near one of the other stores.
Defendant got out of his car and wanted to talk to Bridgette F. about a program their daughter was having at school. She was angry with defendant, she became loud and belligerent, and an argument ensued. As she began to walk away from defendant, he grabbed her by the arm and she pushed him away. She claimed she hit herself in the face as she pushed defendant away. She continued to walk away, and the next thing she knew “the police drove up” and she was “cryin’ and hollerin’” at defendant to leave her alone. She claimed defendant was only trying to talk to her.
Bridgette F. further testified that Deputy Moreno asked to see her lip and asked her what had happened. She initially denied telling the deputy that defendant pulled her from her car, hit her on the lip, chased her, and threatened to kill her. She later admitted making these statements to the deputy, but claimed she did so because she was angry and wanted defendant to go to jail. She claimed defendant had never been violent toward her in the past, and she did not recall telling Deputy Moreno that defendant had been physically and verbally abusive toward her.
The prosecution introduced evidence of two prior acts of domestic violence defendant committed against ex-girlfriends Lori E. and Traci S. in 2002 while defendant and the two women were living in Iowa. On November 25, 2002, defendant encountered Traci S. while both were at a club. Defendant approached Traci, ordered her to sit down, and started an argument with her. He yelled at her and struck her on the cheek with an open hand. Defendant said, “Bitch, I’ll fuck you up.” Traci got into her car, drove to a nearby convenience store, and called police. Traci obtained a no-contact order against defendant.
Also while living in Iowa, defendant had a relationship with Lori E. On April 3, 2002, Lori, defendant, and some friends went to a club and later went to a friend’s apartment. In the apartment, defendant struck Lori in the mouth with his fist, causing her teeth to penetrate her lower lip. He then struck her several times in the head, causing swelling and severe head trauma. Defendant put toothpaste on Lori’s injures in order to reduce the swelling, and locked Lori in the bedroom. The ordeal ended when police arrived at the apartment. Responding officers noticed serious injuries to Lori’s eyes, eyelids, and lip. Lori obtained a no-contact order against defendant.
III. DISCUSSION
A. Defendant’s Batson/Wheeler Claims Lack Merit
Defendant contends the trial court erroneously denied his Batson/Wheeler motion challenging the prosecutor’s use of her fifth and sixth preemptory challenges to excuse two female African-American prospective jurors, namely, S.C. and C.G., on the basis of race. He argues the prosecutor’s stated reasons for excusing S.C. and C.G. are not supported by substantial evidence; the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s reasons; and a comparative juror analysis also shows that S.C. and C.G. were excused on the basis of race.
We reject these claims. We conclude the prosecutor’s race-neutral reasons for excusing S.C. and C.G. were plausible, the trial court adequately evaluated the prosecutor’s reasons and found them credible, and substantial evidence shows that both S.C. and C.G. were excused for race-neutral reasons. Nor does defendant’s comparative juror analysis demonstrate that either S.C. or C.G. were excused on the basis of race.
1. Relevant Background/Jury Voir Dire
After excusing several prospective jurors on hardship grounds, the trial court called the first 18-member panel into the jury box from an 80-member venire. S.C. was among the first 18 panelists called. S.C. lived in Moreno Valley and worked as a counselor for Riverside County Unemployment Services. She was widowed and had two children, a 16 year old and an adult who was unemployed. Five or six years earlier, she served on a jury in a criminal case, and the jury reached a verdict. She said there was no reason she could not be impartial.
In response to defense counsel’s question whether a person’s past actions make him or her more likely to act in a certain way in the future, S.C. responded: “Well, I believe you can go either way, because I know people who you didn’t think was [sic] going to make it through school, but here they are in college and doing well. So not necessarily what people do in the past is their future. So it can go either way. They can go the same way, or they can go a different way. And that’s part of life. But, you know what, everybody deserves a fair shot.”
The prosecutor and defense counsel then posed additional questions to the panel and peremptorily excused a total of seven prospective jurors, four by the prosecutor and three by defense counsel. At that point, S.C. was still on the panel and C.G. was among the seven replacement panelists called.
C.G. lived in Riverside and worked as a legal assistant. She was not married and had one child who attended the University of California at San Diego. She had served on three juries, two in civil cases and one in a criminal case. The criminal case did not involve charges similar to those against defendant. In response to the court’s question, C.G. said she had no problem with the presumption of innocence and the requirement of proof beyond a reasonable doubt in a criminal case, and she knew of no reason why she could not be fair and impartial.
In response to defense counsel’s question to the panel regarding seeing someone pulled over by an officer while driving and wondering what the person did, C.G. agreed with another juror that it is human nature to be curious, but the evidence must prove guilt. In response to the prosecutor’s questions regarding her employment, C.G. said she was a legal assistant in worker’s compensation, she worked with and liked working with attorneys, and she did not think attorneys talk too much. The prosecutor then asked C.G: “Is there anything about working with attorneys that you’re just like, Oh, God, I don’t want to be doing jury duty, or are you okay to be here?” C.G. responded, “I’m okay.”
When peremptory challenges resumed, the prosecutor used his fifth peremptory challenge to excuse S.C. and his sixth to excuse C.G. Following the excusal of C.G., defense counsel made a Batson/Wheeler motion on the grounds both S.C. and C.G. were African-American and neither had “raised any concern one way or the other that they wouldn’t be fair.” The court asked the prosecutor to explain her reasons for excusing S.C. and C.G.
The prosecutor first asked the court whether it was finding the defense had made a prima facie showing, and the court responded it was making that finding. The prosecutor then explained: “First of all, Your Honor, there’s multiple [B]lack people still on the jury. The next best in line I think are better than the two that I just recently kicked.” The prosecutor then explained she excused S.C. because her appearance was sloppy, she was a widow, and the prosecutor “didn’t get a good sense from [S.C.] from the very beginning” because she did not smile at the prosecutor even though the prosecutor smiled at her, and she refused to make eye contact with the prosecutor. Regarding C.G., the prosecutor said she did not want a juror who worked in the legal profession. Moreover, the prosecutor did not “get a good feeling” from C.G., either, and she was not married.
The court asked defense counsel whether there was anything more she wanted to add, and defense counsel responded, “No.” The court then ruled: “I’m going to find that the challenges were valid challenges at this point. And we will resume.”
After peremptory challenges resumed, the defense excused two prospective jurors, the prosecutor excused another, and the prosecutor accepted the panel as constituted. The defense then excused another prospective juror and seven additional panelists were called. When peremptory challenges resumed, the court excused three of the most recently called panelists for cause. The prosecutor then peremptorily excused one more panelist and the defense excused another. Both then accepted the panel as constituted and the jury was sworn.
Though the record does not disclose the racial composition of the 12 seated jurors, the People argue “it can be safely assumed that the prosecutor did not challenge all of the African-Americans” on the jury panel because the prosecutor said, and neither the court nor defense counsel disputed, that there were multiple African-Americans on the panel at the time the defense made its Batson/Wheeler motion, and the prosecutor’s subsequent peremptory challenges did not result in a further or renewed Batson/Wheeler motion. We agree. Based on the prosecutor’s undisputed comments, there must have been at least two African-Americans on the jury panel at the time the motion was made. And, given that the defense never renewed the motion, it is reasonable to infer that the prosecutor did not use any of her postmotion peremptory challenges to excuse any African-Americans.
2. Applicable Legal Principles/Overview
The federal and state Constitutions prohibit parties from using peremptory challenges to exclude prospective jurors on the basis of group bias, including race. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) Such discriminatory practices violate opposing parties’ Fourteenth Amendment right to equal protection of the laws and state constitutional right to trial by a jury drawn from a representative cross-section of the community. (People v. Lewis and Oliver, supra, at p. 1008.) The exclusion by peremptory challenge of even a single juror on the basis of group bias, including race, is an error of constitutional magnitude requiring reversal. (People v. Silva (2001) 25 Cal.4th 345, 386.) Here we are concerned only with whether the prosecutor excused two African-American female jurors, namely, S.C. and C.G., or either of them, on the basis of race. Defendant did not claim in the trial court nor does he claim on this appeal that either S.C. or C.G. were excused on the basis of gender.
The procedures and standards trial courts are required to follow in handling and ruling on Batson/Wheeler motions are well settled. (People v. Hawthorne (2009) 46 Cal.4th 67, 78.) First, “[t]here is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial [or gender] exclusion” by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, “[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
“A prosecutor asked to explain his conduct must provide a ‘“clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
The question for the trial court on the third step is whether “the reason given for the peremptory challenge [was] a ‘legitimate reason, ’...” (People v. Reynoso (2003) 31 Cal.4th 903, 925 (Reynoso).) “‘[T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.... [Citation.]” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) “[T]he trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....” [Citation.]’” (Reynoso, supra, at p. 919.)
We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications deferentially, examining only whether substantial evidence supports its conclusions. (Lenix, supra, 44 Cal.4th at p. 613.) “We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]” (Id. at pp. 613-614.) “‘So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’” (Id. at p. 614.) “‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reasons for exercising a peremptory challenge is being accepted by the court as genuine.’” (People v. Hamilton (2009) 45 Cal.4th 863, 901, citing Reynoso, supra, 31 Cal.4th at p. 919.)
3. Analysis
(a) Batson/Wheeler’s First Step
We first question whether the defense made a prima facie showing that S.C. and C.G., or either of them, were excused based on race. The defense had “the burden of demonstrating that the facts and circumstances of the case raise[d] an inference that the prosecutor excluded prospective jurors based on race[, ]” and the defense should have made “as complete a record of the circumstances” as feasible. (People v. Hawthorne, supra, 46 Cal.4th at p. 79.) Though the trial court found that defense counsel made the required prima facie showing that S.C. and C.G. were excused on the basis of race, apparently because both were African-American and neither defense counsel nor the court could recall “anything” either of them said or did that would indicate they would not be fair and impartial, neither the trial court nor defense counsel disputed the prosecutor’s observation that at least two other African-Americans were on the 18-member panel immediately after the prosecutor excused S.C. and C.G.
To be sure, defense counsel never claimed the prosecutor was using peremptory challenges to strike most or all African-Americans from the jury panel. Nor does the record indicate precisely how many African-Americans were still on the jury panel at the time the motion was made-whether two or more than two-or how many African-Americans, if any, were in the venire after S.C. and C.G. were excused. The record is also silent concerning how many African-Americans were seated on the jury. (People v. Hawthorne, supra, 46 Cal.4th at pp. 79-80 [defense failed to make prima facie showing that three African-Americans were excused based on race, given that the prosecutor peremptorily excused eight non-African-Americans and the record did not show how many African-Americans were on the jury panel or in the venire after the three African-Americans were excused, or how many African-Americans were seated on the jury].) It is also notable that, after the trial court found that the prosecutor’s excusals of S.C. and C.G. were “valid challenges at this point, ” the defense never renewed its Batson/Wheeler motion.
(b) Batson/Wheeler’s Second and Third Steps
Assuming, however, that the defense made the required prima facie showing, we address defendant’s claims that the prosecutor’s reasons for excusing S.C. and C.G. were “vague, vacuous and unsupported by the record, ” and that the trial court failed to make “a sincere and reasoned attempt” to evaluate the reasons. Defendant argues the trial court “was required” to engage in “some sort of inquiry” concerning the sincerity of the prosecutor’s reasons, because neither the court nor defense counsel could recall anything either S.C. or C.G. did that would indicate they would not be fair and impartial. For the reasons we explain, we reject these claims.
(i) Prospective Juror S.C.
The prosecutor said she excused S.C. based on her “sloppy” appearance, her status as a widow, her refusal to smile when the prosecutor smiled at her, and her refusal to make eye contact with the prosecutor. The prosecutor also “didn’t get a good sense” from S.C. “from the very beginning.”
First, we assume the prosecutor’s description of S.C.’s appearance and behavior was accurate because neither the court nor defense counsel disputed it. (People v. Hamilton, supra, 45 Cal.4th at p. 905.) Further, the “slovenly... appearance” and “bare looks and gestures” of a prospective juror are race-neutral, legitimate reasons for excusing him or her. (Id. at pp. 904-905; People v. Turner (1994) 8 Cal.4th 137, 171.) Thus, the prosecutor’s race-neutral reasons for excusing S.C. were both plausible and supported by the record, and the trial court implicitly found the reasons genuine. And, because nothing in the record indicates the prosecutor’s reasons were not genuine, the trial court’s implicit finding that the reasons were genuine is entitled to “‘great deference’” on this appeal. (Reynoso, supra, 31 Cal.4th at pp. 925-926.)
It is also notable that S.C. was among the first group of 18 panelists and the prosecutor excused four other non-African-Americans before using her fifth peremptory challenge to excuse S.C. And there were at least two African-Americans on the panel after the prosecutor excused S.C. and C.G. These circumstances further support the trial court’s implicit finding that the prosecutor’s race-neutral reasons for excusing S.C. were genuine. (Reynoso, supra, 31 Cal.4th at p. 926; see also People v. Phillips (2007) 147 Cal.App.4th 810, 819.)
(ii) Prospective Juror C.G.
The prosecutor said she excused C.G. because C.G. worked in the legal profession, the prosecutor did not get a “good feeling from her, ” and she was unmarried. A prosecutor may excuse a prospective juror whose occupation, in the prosecutor’s estimation, renders the prospective juror not the best type of juror to sit on the case. (Reynoso, supra, 31 Cal.4th at pp. 924-925.) Here, the prosecutor could have reasonably believed that, given C.G.’s work as a legal assistant, she may have attempted to exert undue influence on other jurors during deliberations.
Further, nothing in the record contradicts the presumptive genuineness of the prosecutor’s demeanor-based reason for excusing C.G., specifically, that she did not “get a good feeling” from C.G. Thus, the trial court’s implied finding that the prosecutor’s demeanor-based reason for excusing C.G. was genuine is entitled to deference on this appeal, and the court was not required to make further inquiries concerning it. (Reynoso, supra, 31 Cal.4th at pp. 925-926.)
(c) Comparative Juror Analysis
Defendant attacks as pretexual or “contrived and weak” the prosecutor’s claim that she excused both S.C. and C.G. at least in part because they were unmarried. He observes that after S.C. and C.G. were excused, seven unmarried prospective jurors were still on the jury panel and six of these were ultimately seated as jurors. He also points out that, like S.C., another seated juror was a widow, had two children, and expressed an ability to be impartial.
A comparative juror analysis is only one factor for the trial court to consider in determining whether a peremptory strike was racially motivated. (People v. Mills (2010) 48 Cal.4th 158, 177.) “Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batson’s third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons.” (Lenix, supra, 44 Cal.4th at p. 607.) Comparative juror analysis is based on the “unremarkable principle that reviewing courts must consider all evidence bearing on the trial court’s factual finding regarding discriminatory intent.” (Ibid.) A comparative juror analysis must be performed on appeal even when, as here, it was not conducted in the trial court. (Ibid.)
As our Supreme Court has recently explained, “‘[c]omparative juror analysis is a form of circumstantial evidence’ [citation] courts can use to determine the legitimacy of a party’s explanation for exercising a peremptory challenge, although such evidence may not alone be determinative of that question [citation], can be misleading, especially when not raised at trial [citation], and has inherent limitations given the ‘[m]yriad subtle nuances’ of a persons’ demeanor that might communicate meaning to an attorney considering a challenge [citation].” (People v. Mills, supra, 48 Cal.4th at p. 177 , citing Lenix, supra, 44 Cal.4th at pp. 620, 622, 626-627.)
We find defendant’s comparative juror analysis unpersuasive because it disregards the fact that S.C. and C.G.’s unmarried status was only one of several reasons the prosecutor cited as reasons for excusing them. For the reasons explained, the prosecutor’s demeanor-based reasons for excusing both S.C. and C.G.-that she did not get a “good feeling” from either prospective juror-were plausible, were not contradicted by anything in the record, and were therefore reasonably credited as genuine by the trial court.
Nor does the record indicate that any of the 12 seated jurors, including the six jurors who were single, had other characteristics similar to S.C. and C.G. As the People point out, the record does not indicate that any seated juror had a sloppy appearance, avoided eye contact with the prosecutor, refused to smile when smiled at, worked as an unemployment benefits counselor like S.C., worked in the legal profession like C.G., or worked in any profession similar to S.C.’s or C.G.’s. Indeed, the prosecutor excused the only prospective juror other than C.G. who had ties to the legal profession, namely, A.T., whose husband was a defense attorney, and the prosecutor excused A.T. before she excused C.G.
In sum, based on all the available evidence, the trial court reasonably credited as genuine the prosecutor’s race-neutral reasons for excusing S.C. and C.G. and therefore properly denied defendant’s Batson/Wheeler motion concerning the prosecutor’s peremptory excusals of both prospective jurors.
B. The Hearsay Statements of the Two Unidentified Women Who Reported the Incident During the 911 Calls Were Properly Admitted
Defendant next contends the trial court violated his Sixth Amendment right to confrontation and abused its discretion under state law in admitting testimonial hearsay statements by two unidentified women who saw defendant strike and threaten Bridgette F. in the parking lot of the Stater Bros. store. We conclude the two women’s hearsay statements were properly admitted as excited utterances and contemporaneous statements (§§ 1240, 1241) and were not testimonial (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)).
1. The Trial Testimony
The hearsay statements of the two unidentified women were introduced at trial through the testimony of two witnesses, namely, 911 dispatcher Connie Dyer, who testified she received a 911 call reporting the incident from an unidentified caller, and Stater Bros. store clerk Jeremy Yates, who testified he called 911 after an unidentified Hispanic woman told him to do so because a man was hitting a woman outside the store.
Dyer testified she received a call from an unidentified female at 4:28 p.m. on May 4, 2007. The caller reported that a Black man and a Black woman were arguing in the parking lot of the Stater Bros. store, the man had hit the woman in the face, and the man was chasing the female around a vehicle. The caller then reported that the man was punching his fist into his hand in a threatening manner while following the woman as she was walking toward the Stater Bros. store. The caller described the approximate ages of the man and woman, what they were wearing, and the makes and models of the cars they were driving.
Dyer testified concerning the 911 call she received based upon her independent recollection of the call and as refreshed by a computer automated dispatch log or “CAD log” of 911 calls made on May 4, 2007. Dyer independently recalled the 911 call itself and the caller reporting that a man was chasing a woman around the car and punching his fists. Her recollection of other portions of the call was refreshed by the CAD log. She explained that not every word a caller says is placed into the CAD log, and the CAD log she used to refresh her recollection recorded the contents of two different 911 calls, the other having been received by dispatcher Jennifer Hall. The CAD log was not admitted into evidence.
Yates testified he was collecting shopping carts in the parking lot of the Stater Bros. store on May 4, 2007, when a Hispanic woman approached him and asked him to call 911 because a man was hitting a woman in the parking lot. Yates described the Hispanic woman as “concerned, ” “disturbed, ” and speaking in a “stern voice.” He complied with her request and called 911 on his cell phone. Immediately before the Hispanic woman approached him, Yates noticed that people were standing around in the parking lot and that a man and woman were arguing. He did not see the man hit the woman, nor did he know whether the Hispanic woman saw the man hit the woman, but he heard people saying “oh” as if the man had hit the woman, so he assumed the man had hit the woman. Also, from the look on the Hispanic woman’s face, he believed she saw the man hit the woman.
During his 911 call, Yates heard the man yelling in a loud voice. He also saw that the woman who had been arguing with the man appeared “scared” and the man was chasing her around a vehicle and following her as she was attempting to get away from him. The woman’s hair appeared to be “messed up” as though she had been hit. He told the dispatcher that the man was chasing the woman.
2. The Motion to Exclude the Hearsay Statements
The defense moved in limine to exclude the statements of the two unidentified women who spoke to Dyer and Yates on hearsay, confrontation, and due process grounds. Defense counsel argued the statements were inadmissible as either excited utterances or contemporaneous statements (§§ 1240, 1241), and he had a right to confront and cross-examine the two unidentified women because their statements that a man was hitting a woman and threatening her were testimonial (Crawford, supra, 541 U.S. 36).
Following a section 402 hearing during which Yates testified, and after considering the prosecutor’s offer of proof concerning Dyer’s testimony, the court ruled that the unidentified Hispanic woman’s statements to Yates and the other unidentified woman’s statements to Dyer were admissible under both the spontaneous statements and contemporaneous statements exceptions to the hearsay rule, and were not testimonial.
3. Analysis
(a) The Two Unidentified Women’s Hearsay Statements to Dyer and Yates Qualified as Spontaneous Statements and Were Not Inherently Unreliable
Defendant claims hearsay statements of the two unidentified women who spoke to Yates and Dyer were erroneously admitted in violation of the hearsay rule, because the statements did not qualify as either spontaneous statements (§ 1240) or contemporaneous statements (§ 1241) and were otherwise unreliable. We conclude the statements qualified under the spontaneous statements exception and were therefore inherently reliable. Accordingly, we need not consider whether the statements also qualified under the contemporaneous exception.
Hearsay is evidence of an out-of-court statement offered to prove the truth of the matter the statement asserts. (§ 1200, subd. (a); People v. Alvarez (1996) 14 Cal.4th 155, 185.) Hearsay evidence is inadmissible unless the out-of-court statement falls within an exception to the general rule requiring its exclusion. (§ 1200, subd. (b); People v. Alvarez, supra, at p. 185.) One such exception is for spontaneous statements. A spontaneous statement is one which (1) “[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant” (§ 1240, subd. (a)), and (2) “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception” (§ 1240, subd. (b)).
Defendant argues the two unidentified women’s statements to Yates and Dyer did not qualify as spontaneous statements, because it was unclear from the testimony of Yates and Dyer whether the women were basing their statements on their perception of events as they were occurring or on information other persons at the scene were relaying to them. Stated in other terms, defendant argues that because neither Yates nor Dyer were present when the women “allegedly perceived what they were reporting, ” “there [was] no way” the trial court could have reasonably determined, based on their testimony, that either of the two women actually “witnessed the events firsthand, ” or were competent as witnesses.
Defendant’s argument misapprehends the testimony of Yates and Dyer and our standard of review. The foundational or preliminary facts required to admit a spontaneous declaration, including whether the declarant perceived the events he or she were reporting, requires proof by a preponderance of the evidence. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178.) In determining whether the necessary preliminary facts have been proved, the trial court exercises its discretion, and we must uphold the trial court’s findings if substantial evidence supports them. (Id. at p. 178; People v. Rincon (2005) 129 Cal.App.4th 738, 752.) Based on the testimony of Yates and Dyer, the trial court could have reasonably determined that the two unidentified women who spoke to Yates and Dyer actually perceived the events they were reporting.
In a section 402 hearing outside the presence of the jury, Yates testified that he called 911 because a Hispanic woman approached him and told him there was “a man over there hitting a woman.” Yates also said the Hispanic woman appeared to be “upset” and was speaking to him in a “stern” voice. Based on this testimony, the trial court could have reasonably determined that the unidentified Hispanic woman actually saw the man hit the woman, or actually perceived the events she was reporting. In other words, substantial evidence supports the trial court’s implicit determination that the prosecution proved this key foundational fact by a preponderance of the evidence.
Defendant points out that, while testifying under cross-examination during trial, Yates admitted he did not know whether the unidentified Hispanic woman actually saw the man hit the woman. This was not brought out by the defense during the section 402 hearing which was conducted to admit the unidentified Hispanic woman’s statements to Yates. Nevertheless, Yates further testified during trial that he “believed” the unidentified Hispanic woman actually saw the man hit the woman based on the look on the Hispanic woman’s face. Thus, Yates’s trial testimony, as well as his testimony outside the presence of the jury, supported a reasonable determination that the prosecution proved that the Hispanic woman actually perceived the events she reported to Yates by a preponderance of the evidence.
Defendant also argues that insufficient evidence supports the trial court’s implicit determination that the other unidentified woman who called 911 and spoke to Dyer, the 911 operator, actually perceived the events she reported to Dyer. He emphasizes that Dyer was “clearly” not present in the Stater Bros. parking lot during the 911 call and was therefore “unable to know what the caller had actually witnessed.” Here, too, defendant misapprehends Dyer’s trial testimony, which comported with the prosecutor’s offer of proof concerning its contents, and the inferences the court could have reasonably drawn from the offer of proof and the testimony. Dyer testified that the unidentified female caller reported seeing a Black male arguing with a Black female, punch the female in the face, chase her around the parking lot, and raise his fist in a threatening manner. More specifically, Dyer testified that the unidentified female “had a visual” of a Black male adult and a Black female adult that were arguing and “had a visual, the [B]lack male hit the female.” Based on this testimony, the trial court could have reasonably determined that the unidentified woman who spoke to Dyer actually perceived the events she was reporting.
Finally, we reject defendant’s further claim that the two unidentified women’s statements to Dyer and Yates were nevertheless unreliable, even though they qualified as spontaneous statements. The “foundation” or rationale for the spontaneous declaration exception is that “‘“if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is ‘that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.’” [Citation.]’ [Citation.]” (People v. Rincon, supra, 129 Cal.App.4th at p. 752.) Because these foundational or preliminary factual requirements were met for each of the two unidentified women’s statements, the statements were reliable as a matter of law.
(b) The Two Unidentified Women’s Statements Were Not Testimonial
Under the confrontation clause of the Sixth Amendment, a witness’s out-of-court testimonial statements may not be admitted in evidence in a criminal trial unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 53-54; People v. Romero (2008) 44 Cal.4th 386, 421.) Testimonial statements generally include statements made to police during the course of an interrogation. (Crawford, supra, at p. 68; Davis v. Washington (2006) 547 U.S. 813, 829-830 (Davis); People v. Cage (2007) 40 Cal.4th 965, 978 (Cage).)
In Davis, the high court considered whether statements made to law enforcement personnel during a 911 call and at a crime scene were testimonial and therefore subject to the requirements of the Sixth Amendment confrontation clause. (Davis, supra, 547 U.S. at p. 817.) The high court concluded that: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822, fn. omitted; Cage, supra, 40 Cal.4th at p. 982.)
The high court in Davis formulated and applied this crucial distinction between testimonial and nontestimonial interrogation statements in considering two companion cases, State v. Davis (2005) 154 Wn.2d 291 [111 P.3d 844] and Hammon v. State (Ind. 2005) 829 N.E.2d 444 (Hammon). (Davis, supra, 547 U.S. at pp. 817-821.) In State v. Davis, the victim of a domestic dispute dialed 911 and told the operator she was at home and the defendant was assaulting her with his fists. The operator asked the caller to identify the defendant by name, and the caller did so. (Davis, supra, at pp. 817-818.) Within four minutes of the 911 call, two police officers responded to the home and saw that the victim had “‘fresh injures on her forearm and her face[.]’” (Id. at p. 818.) The defendant was charged with violating a domestic no-contact order. (Ibid.) At trial, the prosecution’s only witnesses were the two officers who responded to the call. (Ibid.) The victim/911 caller did not appear, but the trial court admitted the transcript of the 911 call in which the caller identified the defendant as her assailant. (Id. at p. 819.)
In Hammon, police officers responded to a “‘reported domestic disturbance’” at the home of the defendant and his wife, Amy Hammon. (Davis, supra, 547 U.S. at p. 819.) They found Amy on the front porch appearing “‘“somewhat frightened.”’” (Ibid.) Though Amy told the officers “‘“nothing was the matter, ”’” she allowed them to enter the home where they found the defendant in the kitchen. (Ibid.) The defendant told the officers that he and Amy had had an argument but “‘everything was fine now’” and the argument had not become physical. (Ibid.) The officers took Amy into the living room and “‘again asked [her] what had occurred.’” (Ibid.) Amy told the officers that defendant had broken their furnace and “‘shoved [her] down on the floor into the broken glass....’” (Id. at p. 820.) After hearing Amy’s account, the officers had her sign a battery affidavit. (Ibid.) The officers did not allow the defendant to participate in their living room conversation with Amy, and he became angry when he was rebuffed. (Ibid.) The defendant was later charged with domestic battery and violating his probation. (Ibid.) Amy did not testify at trial, but one of the officers who questioned Amy testified to what Amy told him and authenticated her battery affidavit. (Id. at pp. 820-821.)
The high court concluded that the victim/911 caller’s statements to the 911 operator in State v. Davis, supra, were not testimonial, but that Amy’s statements to the interrogating officer in Hammon were testimonial. (Davis, supra, 547 U.S. at pp. 828, 830.) As indicated, the critical distinction between the two scenarios was that the statements in State v. Davis, supra, were made “under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency, ” while in Hammon there was no ongoing emergency, and the “primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, at p. 822, fn. omitted.)
The high court further explained that the victim/911caller in State v. Davis, supra, was not acting as a witness and was not testifying. (Davis, supra, 547 U.S. at p. 828.) Her statements lacked the solemnity of a “‘“declaration or affirmation made for the purpose of establishing or proving some fact”’” (id. at p. 826) and concerned events as they were actually happening rather than as they had happened (id. at p. 827). Moreover, the victim/911 caller in State v. Davis, supra, was facing an ongoing emergency, and her statements were elicited in order to resolve that emergency. (Davis, supra, at p. 827.)
By contrast, Amy’s statements to the officer in Hammon were given in response to an interrogation that was intended to ascertain what had happened as opposed to what was happening, and there was no ongoing emergency. (Davis, supra, 547 U.S. at pp. 829-830.) Instead, Amy solemnly and deliberately recounted what had happened in response to the officer’s questions. (Id. at p. 830.) As such, Amy’s statements were an “obvious substitute for live testimony” and were “inherently testimonial.” (Ibid., fn. omitted.)
In Cage, the California Supreme Court distilled “several basic principles” from Davis. (Cage, supra, 40 Cal.4th at p. 984.) “First... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Ibid., fns. omitted.)
Applying the principles articulated in Davis and Cage, it is abundantly clear that the two unidentified women’s statements to Dyer and Yates that a man was hitting a woman in the parking lot and chasing her around a vehicle were not testimonial. In view of all the relevant circumstances, viewed objectively, the women’s statements were given for the primary purpose of enabling law enforcement officers to respond to an ongoing domestic violence emergency, as the emergency was occurring, and were by no means intended to establish or prove facts that had occurred for use in a criminal trial. (Davis, supra, 547 U.S. at p. 822; Cage, supra, 40 Cal.4th at p. 984.)
Defendant attempts to distinguish Davis on the ground that here, unlike the victim/911 caller in State v. Davis, supra, the two unidentified women who spoke to Dyer and Yates were not victims of a crime in progress, nor were either of them involved in the ongoing emergency they were reporting. For this reason, he argues the women’s statements “act[ed] as witness statements.” More broadly, he argues that when as here, “the caller is not seeking assistance for herself, the focus of the call may be more inclined toward apprehension and punishment of one who had engaged in illegal behavior rather than to provide information about an ongoing emergency.”
Here, however, the two unidentified women were not focused on apprehending or punishing defendant. Instead, based on the testimony of Dyer and Yates, it is clear that the women were focused squarely on the ongoing emergency, and their primary purpose in reporting the emergency was to obtain emergency assistance for Bridgette F. There is no indication either of the women solemnly or deliberately calibrated their statements to Dyer and Yates for the purpose of building a criminal case against defendant. (See Tyler v. United States (D.C. 2009) 975 A.2d 848, 854-856 [anonymous 911 callers’ statements held not testimonial because calls were made while a shooting victim was likely still on the ground and in need of assistance, the shooter was still at large, and the callers “merely ‘describe[d] current circumstances requiring police assistance’”].)
Defendant further argues the women’s statements were testimonial because “there is no way to determine” whether they were “‘speaking about events as they were actually happening.’” This argument misconstrues Davis. Statements made for the primary purpose of obtaining assistance during an ongoing emergency are not testimonial merely because they report some events not precisely as they are occurring, but shortly after they have occurred. It is sufficient if the events are reported either as they are occurring or shortly thereafter. (Tyler v. United States, supra, 975 A.2d at p. 855 [911 callers’ statements to 911 operator made “right after” the caller and a third person on the call witnessed a shooting were nontestimonial]; Hester v. State (2008) 283 Ga. 367, 371 [659 S.E.2d 600] [assault victim’s statements to police officer within minutes of the assault were necessary to resolve present emergency and were not testimonial].) The testimony of Dyer and Yates showed that the women who spoke to them reported that defendant struck Bridgette F. very shortly after he apparently did so. (Davis, supra, 547 U.S. at p. 827.) Again, there was no time for either of the women to deliberately calibrate their statements in order to build a criminal case against defendant. Nor did either woman do so.
(c) Defendant’s Due Process Claim Lacks Merit
Defendant argues that even if the two unidentified women’s statements to Dyer and Yates were nontestimonial, their admission violated his Fifth and Fourteenth Amendment due process rights due to their unreliability. Relying on Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled in Crawford, supra, 541 U.S. at pages 53 and 54, he argues the statements violated his due process rights because they did not fall within a “‘firmly rooted hearsay exception’” or otherwise bear “‘particularized guarantees of trustworthiness.’” (See Crawford, supra, at p. 60.) We summarily reject this claim.
Unless a hearsay statement is testimonial, its admissibility is governed solely by state hearsay law. (Crawford, supra, 541 U.S. at pp. 53-54, 68; Davis, supra, 547 U.S. at p. 821.) There is no authority for the proposition defendant advances here-that nontestimonial hearsay statements that are properly admitted under an exception to the hearsay rule violate a criminal defendant’s due process rights unless the statements fall within a firmly rooted exception to the hearsay rule and did not otherwise bear particularized guarantees of trustworthiness.
C. The Prior Acts Evidence Was Properly Admitted
Lastly, defendant claims the trial court abused its discretion in allowing the prosecutor to introduce evidence that defendant committed prior acts of domestic violence against two of his former girlfriends, Lori E. and Traci S., in Iowa in April and November 2002, respectively. (§§ 352, 1109, subd. (a)(1).) He argues the evidence was unduly prejudicial, inflammatory, and tended to evoke an emotional bias against him, and portions of the evidence were cumulative and consumed undue time and expense. For the reasons we explain, the prior acts evidence was properly admitted.
1. The Prior Acts Evidence
Lori E. testified she met defendant in Iowa around 1999 or 2000, had a dating relationship with him, and lived with him a “[c]ouple of different times.” They had a 14-year-old daughter together. On April 3, 2002, Lori E. and defendant went to a club with some friends, including a woman named Liz, and began arguing after the group returned to defendant’s apartment. Defendant first struck Lori E. in the mouth, causing her tooth to stick through her lip. He then beat her in the face and head, causing her to suffer lumps all over her head and “severe head trauma.” He also threatened to kill her. After he realized what he had done, defendant put toothpaste on Lori’s E.’s face in an attempt to relieve the swelling, and locked her in a bedroom so no one could see her. The next day, Liz returned to the apartment and Lori E. pleaded with Liz to call the police.
Officer Sandy Roozeboom of the Des Moines Police Department testified she was dispatched to meet Liz at defendant’s apartment. When officers entered the apartment, they found Lori E. seated on a couch with white toothpaste on her face, two black eyes, and a split lip. Several photographs of Lori E.’s injuries were admitted into evidence. Lori E. was fearful and reluctant to talk, but asked that a no-contact order be issued against defendant.
Traci S. testified concerning an altercation she had with defendant at a Des Moines nightclub on November 25, 2002. Traci S. is the mother of defendant’s son, who was 14 years old at the time of trial and seven years old in November 2002. Traci S. and defendant lived together before their son was born. On November 25, 2002, Traci S. went to a nighclub with some friends and saw defendant there. He asked her to sit down, and an argument ensued because their son was waiting outside in a car while Traci S. was in the nightclub. The argument escalated, and defendant slapped Traci S. in her face and told her, “Bitch, I’ll fuck you up.” Traci S. said she did not fear defendant and did not recall him physically assaulting her on any other occasion.
Officer Michael Bartak of the Des Moines Police Department testified he met Traci S. at a convenience store approximately two blocks from the nighclub after she called police. She was crying, smelled of alcohol, and requested a no-contact order against defendant because, she said, she was worried defendant would assault her again. According to Officer Bartak, Traci S. told him defendant said to her, “Bitch, don’t make me fuck you up here, ” and slapped her in the face.
2. The Motions in Limine
The defense and prosecution moved in limine to exclude and admit, respectively, the prior acts evidence concerning Lori E. and Traci S. The defense argued the evidence should be excluded under section 352 because the April and November 2002 incidents were too remote in time to the May 2007 incident involving Bridgette F., and the evidence was more prejudicial than probative on the question whether defendant battered and threatened Bridgette F. in May 2007. The People argued the evidence was admissible because it showed defendant had a propensity to abuse women and was not too remote in time. (§§ 352, 1109.) The People further argued the evidence was admissible to show defendant intended to batter Bridgette F. in May 2007.
The trial court ruled that the prior acts evidence was not too remote in time and was admissible if “otherwise relevant.” Thereafter, Lori E., Traci S., and the two Des Moines police officers testified as described above. The jury was instructed that if it decided defendant committed the uncharged acts of domestic violence, it may, but was not required to, conclude from the evidence of the uncharged acts that “defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that defendant was likely to commit the charged offenses.” (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 852.)
3. Applicable Law
Evidence that a defendant committed a prior act of domestic violence is admissible to show the defendant has a propensity to commit acts of domestic violence when the defendant is charged with an offense involving domestic violence, if the evidence is not inadmissible under section 352. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114; §§ 1109, subd. (a)(1), 352.) Evidence of prior acts occurring more than 10 years before the charged offense is inadmissible unless the court determines the admission of the evidence would serve the interests of justice. (§ 1109, subd. (e).)
A trial court has broad discretion under section 352 to exclude evidence of prior acts of domestic violence 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.” (People v. Rucker, supra, 126 Cal.App.4th at p. 1114.) For purposes of section 352, evidence is considered unduly prejudicial if it “‘“‘uniquely tends to evoke an emotional bias against the defendant as an individual....’”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1118; People v. Crew (2003) 31 Cal.4th 822, 840.) The statute uses the term “prejudice” in its etymological sense of “prejudging” a person on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
Relevant factors trial courts should consider in determining whether the admission of evidence of prior acts of domestic violence will be unduly prejudicial include (1) “whether the prior acts... were more inflammatory than the charged conduct, ” (2) “the possibility the jury might confuse the prior acts with the charged acts, ” (3) “how recent were the prior acts, ” and (4) “whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) In excluding or admitting evidence under section 352, the trial court “need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrates the trial court understood and fulfilled its responsibilities under... section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.)
We review a trial court’s decision to admit or exclude evidence under section 352 for an abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 832-833.) The trial court’s ruling will not be upset absent a clear showing of an abuse of discretion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.)
4. Analysis
Defendant argues the evidence of his prior acts of domestic violence against Lori E. and Traci S. was erroneously admitted because it was unduly prejudicial. He argues that the evidence he severely beat Lori E., confined her in an apartment for over a day, and threatened her with harm, was “more egregious” than the evidence supporting the current charges-that he merely dragged Bridgette F. from her car, slapped her, and threatened to harm her. As such, he argues, the evidence involving Lori E. was inflammatory and unduly prejudicial. He further argues the evidence he slapped and threatened Traci S. was also unduly prejudicial because it supported the prosecution’s theory that he continued to abuse women after his relationships with the women had ended. We disagree that any of the prior acts evidence was inflammatory or unduly prejudicial.
Indeed, the evidence of defendant’s prior acts involving Lori E. and Traci S. was properly admitted, principally because the prior incidents bore substantial similarities to the 2007 incident involving Bridgette F. In each case, defendant punched his victims in the face, causing injury. In each case, he threatened either to kill them or “fuck them up.” And in each case, the victims requested that no-contact or restraining orders be issued against defendant.
In addition, the prior acts evidence involving Lori E. was not substantially more egregious than his acts against Bridgette F. Though defendant beat Lori E. more severely than he beat Bridgette F. and confined Lori E. in an apartment, both incidents involved defendant hitting the women in the face and threatening them with harm. It also appeared that defendant would have inflicted further injuries on Bridgette F. had the incident involving her occurred in a private rather than a public place. In view of these similarities, the prior acts evidence involving Lori E. was by no means inflammatory or unduly prejudicial. And, though defendant’s slapping Traci S. in the face after they were no longer seeing each other tended to bolster the prosecution’s theory that he abused women even after his relationships with them had ended, this actually bolstered the probative value of the prior acts evidence; it did not render it unduly prejudicial.
As this court observed in People v. Hoover (2000) 77 Cal.App.4th 1020 [Fourth Dist., Div. Two], in enacting section 1109 the Legislature recognized that evidence of prior acts of domestic violence is particularly probative in demonstrating the propensity of the defendant to commit further acts of domestic violence. We said: “‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked....’” (People v. Hoover, supra, at pp. 1027-1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)
And, as Division One of this court observed in People v. Cabrera (2007) 152 Cal.App.4th 695, 706, the probative value of the prior acts evidence presented in that case lay principally in its cumulative nature. Taken together, the testimony of two victims of the defendant’s prior acts of domestic violence showed “a continuous and fairly unbroken pattern of domestic abuse, ” and the testimony of the defendant’s current victim showed “the pattern commenced again when [the defendant] began dating her.” Here, too, the 2002 prior acts evidence involving both Lori E. and Traci S. showed that defendant had engaged in a distinct and particular pattern of domestic violence against women, and the evidence he later committed similar acts of domestic violence against Bridgette F. showed he was continuing to engage in the same pattern of abuse.
Defendant further argues that the fact he suffered no criminal conviction for his prior acts against Traci S. increased the danger the jury may have been inclined to punish him for the prior acts and increased the likelihood of confusing the issues, regardless of whether the jury considered him guilty of the charged offenses, because the jury had to determine whether he, in fact, committed the prior acts involving Traci S. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Even so, it is not reasonably probable the jury punished defendant for his prior acts against Traci S., principally because the jury acquitted him of the criminal threats charge. (People v. Pierce (2002) 104 Cal.App.4th 893, 901.) This showed that the jury focused on the evidence presented and was not motivated by any desire to punish defendant for his acts against Traci S.
Defendant also argues the evidence of the April and November 2002 prior acts should have been excluded because it was too remote to the charged offenses. Not so. The charged offenses, which occurred in May 2007, occurred only four and one-half to five years after the 2002 incidents. That is not too remote in time, particularly in view of the substantial similarities between the 2002 prior acts and the 2007 charged offenses. (People v. Cabrera, supra, 152 Cal.App.4th at pp. 705-706 [prior acts occurring five and seven years before charged acts not remote in time]; People v. Morton (2008) 159 Cal.App.4th 239, 246-247 [evidence of prior acts of domestic violence is particularly probative when it demonstrates common plan or design].)
Finally, defendant argues that the testimony of the Des Moines police officers should have been excluded because it was cumulative and consumed undue time and expense. Again, we disagree. The testimony of both officers consumed only 28 pages of reporter’s transcript and it was not cumulative because it tended to bolster the credibility of both Lori E. and Traci S., whose credibility the defense impeached with prior theft offenses.
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli J.