Opinion
A130045
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR275826)
A jury convicted defendant of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) in connection with an attack on his girlfriend of almost three years. Defendant argues that (1) the trial court erred in giving a flight instruction (CALCRIM No. 372), (2) the court abused its discretion by allowing the prosecution to present evidence of four prior acts of domestic violence by defendant against the victim, and (3) the verdict was not supported by substantial evidence. We disagree and affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of April 21, 2010, defendant and the victim argued in their Fairfield apartment about whether the victim would give her income tax refund check to defendant, as he had requested. Defendant pulled the victim's hair, slapped her, and grabbed her by the neck with one hand, which hurt her. She could not swallow or breathe, and she became lightheaded. Defendant held her neck for about two or three minutes. The victim then went to the bathroom, until defendant came and shoved her out of the room.
Defendant and the victim left the apartment. The victim ran, attempting to get to a Fairfield police substation located at the end of the apartment building. Defendant "went after" the victim, and he grabbed her by the neck and hair, then "almost carried [her] to the car." The victim was "desperate," and was trying to escape from defendant. At some point, defendant slapped the victim, which caused the victim's mouth to start bleeding.
As defendant was trying to force the victim into his car, a maintenance supervisor at the apartment building intervened. The supervisor testified that he ran toward the couple as he was yelling. He testified, "And as I was running down the steps, [defendant] continued to literally drag [the victim] from under the armpits, towards the van, and when I came down to intercept the two of them, he stopped what he was doing, told me who he was." Defendant continued to grab the victim in the supervisor's presence, and he "literally put both hands around her neck," according to the supervisor. The supervisor asked defendant why he was treating the victim that way, and defendant let go of the victim's neck after the supervisor separated the two. The supervisor testified that the victim was gasping as she sunk to the ground. Another maintenance worker joined them, and the two workers walked the victim to the office of the apartment buildings. The victim was upset and crying.
Defendant walked in front of the victim toward the apartment office, and he was "getting in [the] face" of the maintenance supervisor, and took a fighting stance about three times. The maintenance supervisor testified that defendant was yelling in a loud, aggressive tone, and he appeared to be angry and intoxicated. Both defendant and the victim entered the office. The manager asked the victim (in front of defendant) whether the victim wanted to call police, and the victim said that she did. The manager called 911, then said that the police were on the way. Apparently defendant was yelling after the police were summoned, because the apartment manager told defendant, " 'If you don't quit screaming and yelling, I'm going to have to ask you to leave.' " Defendant left the office. The maintenance supervisor testified that "in the process of the police arriving, [defendant] briefly left the manager's office on feet running."
A police officer who responded to the apartment office spoke with the victim, who was crying and appeared to be very upset and shaken. The victim told the officer that she felt as if she could not breathe or get enough air. The victim testified that her neck hurt, and she had trouble swallowing until the next day, when the pain from defendant choking her went away. The responding police officer testified that the victim declined medical attention, because she stated that she did not have any serious injuries.
The victim described defendant to the responding officer, but the officer was not able to locate defendant. Police made phone calls (apparently to both his home and work) and stopped by his apartment, eventually making more than 20 attempts to contact defendant. Defendant voluntarily went to the Fairfield Police Department about one week after the incident.
Defendant was charged by information with inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)—count 1) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)—count 2).
As discussed in greater detail below, the victim testified at trial about four incidents when defendant had abused her in the past.
The jury found defendant not guilty of causing corporal injury to a cohabitant (count 1), but found him guilty of assault by means likely to produce great bodily injury (count 2). The trial court sentenced defendant to the low term of two years, and this timely appeal followed.
II.
DISCUSSION
A. No Error to Give Instruction on Flight.
Defendant first argues that the trial court committed reversible error by instructing the jury, at the People's request, that if jurors found that defendant fled immediately after he committed the crime, that conduct may show his consciousness of guilt. "A flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene or his usual environs . . . logically permits an inference that his movement was motivated by guilty knowledge. [Citations.]" (People v. Turner (1990) 50 Cal.3d 668, 694.) The instruction must be given whenever the prosecution relies on evidence of flight to show consciousness of guilt (Pen. Code, § 1127c), and there is substantial evidence of flight. (Turner at p. 694.) "Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 328, original italics.)
The jury was specifically instructed, "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." (CALCRIM No. 372.)
The record contains ample evidence to support the flight instruction. The victim and the maintenance supervisor both testified that defendant left the apartment office after police were summoned, permitting an inference that defendant departed the scene to avoid arrest. (People v. Bonilla, supra, 41 Cal.4th at p. 328.) The maintenance supervisor specifically testified that "in the process of the police arriving, [defendant] briefly left the manager's office on feet running." Police made extensive efforts to contact defendant, but were unable to do so until about a week later (when defendant voluntarily went to the Fairfield Police Department), further suggesting a purpose to avoid being arrested.
In arguing that his actions did not reflect consciousness of guilt, defendant claims that he left the apartment office only because the office manager told him to leave, and that "[h]e complied, as directed." The maintenance supervisor testified that the apartment manager told defendant, " 'If you don't quit screaming and yelling, I'm going to have to ask you to leave,' " suggesting that the manager directed defendant to stop yelling, and not necessarily to immediately leave the office. Even though a responding police officer testified on cross-examination that the maintenance supervisor had told him (the officer) that defendant did not leave until he was told to do so by the manager, there was other evidence that supported the flight instruction. Witnesses who, unlike the police officer, were actually present in the apartment office said that defendant ran out of the office after police were summoned. Because of this evidence, we reject defendant's argument that his rights to a fair trial and due process were somehow violated because he did not have a right to an absence of flight instruction. (People v. Staten (2000) 24 Cal.4th 434, 459 [no right to absence of flight instruction].)
People v. Green (1980) 27 Cal.3d 1, upon which defendant relies, is clearly distinguishable. Because the crime in Green was committed in a remote area at night, defendant could not have been expected to wait in that location until the victim was reported missing, a search was organized, and the crime was discovered, a process that could have taken several days or longer. (Id. at pp. 36-37, overruled on other grounds by People v. Martinez (1999) 20 Cal.4th 225, 234-237 and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
Even assuming arguendo that the trial court erred in giving the flight instruction, any such error was harmless. (People v. Turner, supra, 50 Cal.3d at p. 695; People v. Watson (1956) 46 Cal.2d 818, 836.) Because there was ample evidence supporting defendant's conviction independent of the brief testimony regarding his flight from the apartment office (post, § II.C.), we see no reasonable probability that the flight instruction affected the verdict.
B. No Error to Admit Prior Domestic Violence Evidence.
1. Background
The prosecution moved in limine pursuant to Evidence Code section 1109 to admit evidence of defendant's prior, uncharged acts of domestic violence against the victim. The People sought to introduce evidence that defendant (1) slapped the victim while they were playing dominoes with another person in November 2007, (2) struck the victim with a belt 64 times in June 2008 because he believed the victim had spent too much time with her family in Texas, (3) slapped the victim in front of her mother while the victim was driving in November 2008, and (4) pulled the victim's hair, slapped her, and ripped her shirt because he felt she took too long when she went to retrieve something from the car when they were in a store in May 2009 in the state of Washington. Defendant requested a hearing pursuant to section 402, which the trial court granted, stating that it wanted to hear from the victim as to why she did not report the previous incidents to police or seek medical attention.
All further statutory references are to the Evidence Code unless otherwise specified.
The victim testified at the section 402 hearing that she did not contact the police after defendant hit her with a belt in 2008 because she was afraid that "something worse could happen." Defendant had stated he wanted to hit the victim 100 times, but she "couldn't stand it." Her bottom was covered in bruises after being hit 64 times. As for the incident when defendant hit her in the parking lot of a store in the summer of 2009, the victim acknowledged that she did not cry out for help, and she did not call police because she was afraid.
Defendant's counsel argued that the victim's testimony about defendant's previous acts of domestic violence should be excluded, because the victim had credibility issues, the incidents were not corroborated, and the prejudicial value of the testimony was "incredible," because the events "portray [defendant] as a woman beating monster." The prosecutor argued that the evidence would give the jury a full picture of the relationship between defendant and the victim, and that the evidence of prior acts was "not overwhelming," because the victim was not exaggerating her injuries. The prosecutor also explained at the section 402 hearing that the victim had given statements indicating that defendant had "repeatedly hit her, smacked her, slapped her often" throughout their relationship, but that the People were offering evidence of only those incidents where the victim could remember a specific date and details about the incidents.
The trial court allowed the prosecution to introduce each of the prior incidents of domestic violence, stating that it was satisfied that the victim was a credible witness. The court further explained, "I don't think [the prior incidents are] substantially or more prejudicial for reasons that they're not probative. In other words, the primary prejudice has to do with their probative value." The court noted that there were similarities between the prior incidents and the charged crimes, and that the evidence of prior incidents "just explains the history." The court concluded that "I just don't find, on this evidence, given this victim, that any of this should be excluded under Evidence Code Section 352. So I'm going to allow all of it in. [¶] And I also note that there are apparently other incidents that the People are not offering, because they are either less well remembered or the witness can't tie them to a particular date. So I have that in mind, as well." The court also explained that "one of the reasons I am allowing it is it's kind of connected and like dots almost all within two and a half years of the charges and kind of you don't—kind of you do a legal analysis on prior felony convictions on one and then another so there is no—he didn't really lead a blameless existence with her . . . ."
The victim testified at trial about the four prior incidents, consistent with the accounts that had been provided before trial, except that she was not certain the exact month defendant hit her multiple times with a belt. She testified that defendant slapped her in November 2007, but that she did not suffer any injury; that "around" July 2008 defendant gave her 64 lashes with a belt, which left her entire buttocks area covered with bruises; and that defendant slapped her "only once" in November 2008 while she was driving a car. She further testified that in May 2009, defendant slapped her multiple times in a parking lot, slapped her again when they got into the car, then continued to hurt her when they returned to their apartment, hitting her twice with a closed fist in the stomach, pulling her hair, slapping her, and kicking her on the ground. She testified that she had a bloody mouth because defendant "busted" it with the blows, but that she did not have any other injuries from the incident in May 2009.
2. Analysis
Defendant argues that the trial court "misunderstood and abused its discretion" by admitting evidence of his previous acts of domestic violence. (Underlining and boldface omitted.) Under section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence, when the defendant is charged with an offense involving domestic violence. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) "Section 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section 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, 1313-1314.) " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' [Citation.]" (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (Rucker at p. 1119.)
"We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] 'The [trial] court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.]" (People v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.) " '[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.' [Citations.]" (Id. at p. 1315.)
Applying the forgoing principles, the trial court's analysis in this case was sufficient. Contrary to defendant's argument, the trial court's comments clearly indicate that it understood its discretion under section 1109, and that it did not simply admit all probative domestic violence evidence, without considering its potential prejudicial effect. The court specifically referred to section 352 when ruling on the admissibility of the evidence. It also observed that the prior acts "connected [the] dots," by providing a history of the relationship between defendant and the victim. This is an appropriate consideration when admitting evidence pursuant to section 1109, as set forth in the legislative history of the statute: " '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 (2000) 77 Cal.App.4th 1020, 1027-1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.) Evidence of prior acts against the same victim as in the charged offense is particularly probative, because "evidence of prior quarrels between the same parties is obviously relevant on the issue whether the accused committed the charged acts." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585 [evidence of prior acts admissible under § 1101 to show identity].)
Defendant argues that the trial court abused its discretion by admitting evidence of all four prior incidents offered by the prosecution, which amounted to "overkill." We disagree. As the trial court observed, the prosecution limited the section 1109 evidence to incidents when the victim could remember specific dates and details, and the victim was not asked to describe generalized abuse, as she had apparently described to authorities after defendant's arrest. Moreover, evidence of the prior acts that were admitted was not more inflammatory than the testimony about the instant offense (two of the prior incidents involved a single slap that resulted in no injury), there was no probability of confusing the jury with the evidence, and the incidents all were relatively recent (all occurring less than three years before the charged offense). (People v. Rucker, supra, 126 Cal.App.4th at p. 1119; People v. Poplar, supra, 70 Cal.App.4th at p. 1139.) Defendant complains that there was no corroboration of any of the prior incidents; however, this was the subject of cross-examination below. Introduction of the evidence was not unduly prejudicial (§ 352), such that its admission amounted to a manifest abuse of discretion. (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.)
C. Substantial Evidence Supports Conviction.
Finally, defendant argues that insufficient evidence supports his conviction for assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). "In reviewing a criminal conviction challenged as lacking evidentiary support, ' "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
As the jury was correctly instructed, the crime of assault by means likely to produce great bodily injury requires proof that (1) defendant did an act that by its nature would directly and probably result in the application of force to a person, (2) the force used was likely to produce great bodily injury, (3) defendant did the act willfully, (4) defendant was aware of facts that would lead a reasonable person to realize that his act would directly and probably result in the application of force, and (5) defendant had the present ability to apply force likely to produce great bodily injury. (CALCRIM No. 875.)
Defendant first argues that his conviction was not supported by substantial evidence, because the victim "was not credible." " ' "To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" ' " (People v. Mayberry (1975) 15 Cal.3d 143, 150.) Defendant points to some minor inconsistencies in the victim's testimony. However, there was no physical impossibility that the victim's statements—many of which were corroborated by a maintenance supervisor who witnessed some of defendant's actions on the morning in question— were true, and their falsity was not apparent.
As the prosecutor explained during her closing argument, defendant potentially committed two assaults—one in the apartment, and another after the couple left the apartment. The prosecutor explained, and the jury was instructed, that defendant could not be found guilty of the single charged offense of assault by means likely to produce great bodily injury unless jurors unanimously agreed that defendant committed at least one of the acts, and jurors agreed on which act he committed. (CALCRIM No. 875.) Whichever incident the jury relied on in convicting defendant, substantial evidence supports the conviction.
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Defendant relies on a case decided nearly 60 years ago, where the court discounted as "fantastic" a witness's testimony that her estranged husband kidnapped her at gunpoint. (People v. Carvalho (1952) 112 Cal.App.2d 482, 489.) In Carvalho, the wife had multiple chances to escape from her estranged husband but did not do so, she waited about a month to talk to police about being kidnapped, and "[n]either during the time the complainant was with appellant nor in the month thereafter did her actions and conduct reflect any fear of him." (Id. at p. 490.) Here, by contrast, the evidence revealed that the victim tried to escape defendant by heading toward a police substation near her apartment building, she told the apartment manager that she wanted the police to be called to report the attack almost immediately after it occurred, and she appeared to be upset and shaken by defendant's assault.
Defendant also briefly argues that the force used was neither intended to, nor likely to, produce great bodily injury. He claims that defendant and the victim had "a routine," whereby defendant would "manhandle her, but not seriously hurt her." As the jury was instructed, assault by means of force likely to produce great bodily injury does not require a specific intent to produce great bodily injury. (People v. Covino (1980) 100 Cal.App.3d 660, 666.) "The only intent required is that required in the case of any assault, i.e., to attempt a battery or, in other words, to intend an act the natural consequence of which is the application of force on the person of another. [Citations.] The force used must be such as would be likely to produce great bodily injury, but it is not required that a defendant intends to inflict such injury." (Id. at pp. 666-667 [testimony that defendant squeezed victim's neck, causing interruption of breathing and reddening of skin but no substantial damage to bodily tissues, sufficient to support conviction for assault by means of force likely to produce great bodily injury].) Actual injury to the victim is not an element of the crime. (Id. at p. 667.)
Here, the maintenance supervisor testified that defendant held the victim's neck and did not let go until he separated the two, and the victim was gasping after defendant released her. The victim testified that defendant's actions interrupted her breathing and her ability to swallow, she felt lightheaded, and her neck hurt until the following day. "[T]estimony as to the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of [defendant's] assault, the choking, was likely to produce a serious injury." (People v. Covino, supra, 100 Cal.App.3d at pp. 667-668.) Substantial evidence supports defendant's conviction.
III.
DISPOSITION
The judgment is affirmed.
Sepulveda, J. We concur: Reardon, Acting p.J. Rivera, J.