Opinion
F069906
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. NATHANAEL MAINE, Defendant and Appellant.
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF152495A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Nathanael Maine was convicted at the conclusion of a jury trial on July 11, 2014, of domestic violence causing injury (Pen. Code, § 273.5, subd. (a), count 1) and torture (§ 206, count 2). The jury found true an allegation defendant caused great bodily injury (§ 12022.7, subd. (e)). In a bifurcated hearing, the trial court found true allegations defendant had three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a prior serious felony enhancement (§ 667, subd. (a)), and a prior prison term enhancement (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise indicated.
On August 8, 2014, the trial court sentenced defendant to prison for life with the possibility of parole on count 2, plus consecutive terms of five years for the great bodily injury enhancement, five years for the prior serious felony conviction, and one year for the prior prison term enhancement. The court stayed defendant's sentence on count 1 pursuant to section 654. Defendant's total prison term is an indeterminate sentence of life with the possibility of parole plus a determinate term of 11 years.
On appeal, defendant contends the court erred in permitting into evidence a prior uncharged act of assault against a male in June 2009. Defendant contends the prosecutor committed misconduct in closing argument by using a quote from Erich Fromm regarding the relationship between a victim and a sadistic person. Defendant argues the two errors were prejudicial when considered cumulatively. Defendant also seeks independent review of police personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the judgment.
FACTS
New Year's Day Attack
At the time of trial, six months after the incident, Kayla McKinney was 19 years old with two children from defendant, both under two years old. McKinney testified she was in a romantic relationship with defendant for three years and still loved him. On December 31, 2013, McKinney was drinking from a half gallon bottle of Captain Morgan rum at her kitchen table with defendant, her sister Karissa, Karissa's friend Allie, and McKinney's friends Clay and Brandy.
McKinney stated she did not recall anything else from that evening except waking up the next day at 9:00 a.m. in her parents' house. When she awoke, McKinney had a black eye, which she could not open for about six hours, and her eye and head were in pain. McKinney's eye took days to heal. Her lip remained swollen for another day. McKinney testified she did not recall how she received her injuries. McKinney said she remembered nothing from New Year's Eve and did not remember telling her mother what had happened. McKinney denied making statements to sheriff's deputies about the incident.
About a week after the incident, McKinney talked to a social worker from child protective services. The social worker was looking at the injury to McKinney's eye. McKinney told the social worker she did not know what had happened, though McKinney admitted she and defendant were involved in domestic violence on New Year's Eve. The social worker told McKinney she knew what had happened and advised McKinney to get a restraining order on defendant or McKinney's children would be taken from her. McKinney denied making specific statements about the incident to the social worker.
McKinney told the social worker she had had a food fight with defendant at their home in March 2013. In retaliation, defendant threw a perfume bottle at McKinney, hitting her in the left cheek. McKinney's mother came over and took McKinney to her home where she called the sheriff's office because McKinney had asked her to do so. McKinney talked to a deputy about the incident. Defendant had stomped on McKinney's pinky toe and she showed deputies the injury.
A few days after the New Year's Day incident, McKinney filled out an application for a protective order prepared by someone from the Family Alliance who had read the deputies' report of the incident. McKinney obtained a protective order against defendant. Three recorded phone conversations McKinney had with defendant in January 2014 were played for the jury. McKinney admitted she visited defendant in January 2014 and several times since then. Defendant's parents visited McKinney. McKinney said she did not want defendant prosecuted for what happened on New Year's Eve and January 1, 2014, because she still loved defendant and wanted him to come home.
On New Year's Eve 2013 and New Year's Day 2014, Kimberly Harvey lived next door to McKinney and defendant. McKinney's bathroom window was five feet from Harvey's front door. Harvey was awakened by her daughter who heard a woman screaming for help from the residence next door. Harvey recognized McKinney's voice because their children played together. Harvey heard McKinney screaming "Stop. Stop. Help." Harvey also heard defendant yelling at McKinney and calling her "slut, bitch, whore." Harvey heard defendant repeatedly hitting and slapping McKinney for 30 minutes.
Because she did not have a phone, Harvey could not immediately intervene, but she got to a phone 30 minutes later and called 911. The recording of Harvey's 911 call was played to the jury. When deputies arrived and talked to Harvey, Harvey heard defendant slap McKinney again. Defendant was arrested. McKinney told Harvey once that defendant was very physically and mentally abusive to her. McKinney thanked Harvey for saving her life because defendant would have killed her. After Harvey was subpoenaed to testify at trial, McKinney told her not to come to court. Harvey was convicted twice for theft in 2014.
Kern County Deputy Sheriff Eric Hughes was dispatched with Deputies John Puga and David Rutter to McKinney's home at 3:00 a.m. on January 1, 2014. Hughes announced his presence, knocked on the door, and saw defendant walking down the hallway. Hughes could see defendant peeking out the blinds and run down the hallway before coming back a minute and a half later and opening the door eight or nine inches. Hughes explained he was investigating a domestic disturbance. Defendant told Hughes McKinney and their children were asleep. Hughes, however, saw blood on defendant's hand and realized he needed to make entry to check on the welfare of the other inhabitants. Hughes pushed the door open and ordered defendant to sit on a couch.
McKinney stepped out of the bathroom. Her face had blood running down it, her lip was busted, and her eye was swollen. McKinney was distraught and crying. Her pants were down around her ankles. McKinney told Hughes defendant had beaten her. She was transported to the hospital.
The jury was shown photographs taken by Deputy Puga the evening of the incident depicting the extent of McKinney's injuries. Puga explained that when he went towards the bathroom to check on McKinney, she reached out to grab his hand. McKinney's lips were swollen and bleeding, her eyes were swollen shut, her face was bloody, and she was crying. McKinney told Puga she was afraid that if she did not get up from the floor, the deputies would leave and defendant would come back and continue beating her. McKinney was afraid for her life. Puga did not believe McKinney was intoxicated and saw no symptoms of her being under the influence of an alcoholic beverage.
Puga followed McKinney to the hospital where she was able to answer his questions without hesitation. McKinney told Puga defendant had a prior domestic violence incident in which she was the victim about a year earlier. McKinney explained defendant got together with friends at a New Year's Eve party, had several alcoholic beverages, accused McKinney of cheating on him, and started hitting her. McKinney screamed and pled for defendant to stop. At one point during defendant's attack, McKinney lost consciousness when defendant kicked her in the face.
McKinney was treated at the hospital by a physician's assistant. She suffered from a contusion and abrasion along her face on the right superior orbit, resulting in a hematoma. McKinney complained of a head injury and loss of consciousness.
At defendant's and McKinney's residence, Hughes noticed the bathroom and bedroom doors had large holes in them. The frame of the bathroom door was cracked. Both Hughes and Puga believed someone tried to kick the doors open.
Social worker Debra Vallejo with the Kern County Department of Human Services was assigned to McKinney's case. Vallejo contacted McKinney on January 7, 2014, and observed an injury to McKinney's eye that included swelling and broken blood vessels in the eye itself. The skin underneath the eye was yellow. McKinney told Vallejo she and defendant had been partying on New Year's Eve and got into a physical altercation when they got home. Defendant broke down the bathroom door and hit McKinney several times. Defendant pulled McKinney by the hair onto the bathroom floor, kicking her head and her body.
Prior Assault of Juan Rocha
Pursuant to Evidence Code section 1101, subdivision (b), evidence was admitted through the testimony of Clay Dalton that on June 14, 2009, Dalton and defendant were outside a 7-Eleven when Juan Rocha asked them for change. Dalton and defendant told him no. Rocha asked for a cigarette and was again told no. Rocha became angry and walked toward defendant and Dalton and took a swing at them. Defendant swung back and began fighting with Rocha. The two combatants landed on the ground and continued fighting. Two women came out of a car with a bat but stopped approaching defendant when a sheriff's deputy arrived.
Sheriff's Deputy Marcus Moncur testified he was a deputy on patrol and observed a fight on June 14, 2009, in front of a 7-Eleven. Moncur saw Rocha flat on the ground with defendant in a standing position pull his leg up and dropping it into Rocha with his full body weight. Moncur never saw defendant on the ground struggling with Rocha. Defendant dropped his weight on Rocha using his knee three or four times. Two females had exited their vehicle carrying a tire iron and were yelling at defendant.
Dalton told Deputy Moncur Rocha was "talking shit" to defendant and defendant probably started fighting because Rocha was Mexican. Rocha's lip was cut and swollen. Rocha was wearing gauges, or big circles in his earlobes. A gauge was missing in one ear and the skin connecting to the earlobe was ripped open. Defendant was a juvenile, under the influence of alcohol, and was arrested by Moncur.
Prior Assault of McKinney
Pursuant to Evidence Code section 1101, subdivision (b), evidence was admitted from the testimony of sheriff's deputy Ryan Pitcher that on March 30, 2013, Pitcher spoke to McKinney. McKinney told Pitcher she and defendant had been drinking alcohol when McKinney thought they had had too much to drink and began to pour a bottle of alcohol down the sink. Defendant became angry. Defendant tried taking the bottle from McKinney and stomped on her pinky toe. Defendant hit McKinney in the face and pushed her as he was trying to take the bottle out of McKinney's hand. When McKinney tried to call her mother, defendant punched her in the face and threw hair care products at her. Pitcher photographed the injuries defendant inflicted on McKinney.
Expert Opinion Testimony
Nada Yorke is a licensed clinical social worker who owns Yorke Consulting and Correctional Counseling for Change, a batterer intervention program for people ordered or self-referred to a 52-week domestic violence program. Yorke was also a probation officer for 24 years and has a bachelor degree in psychology and criminal justice and a master degree in social work. Yorke has testified as an expert witness in intimate partner violence in criminal and civil court.
Yorke explained domestic violence involves a pattern of coercive, controlling behavior designed to control a partner. Most perpetrators do not consider themselves to be violent. Relationships often start with intense, powerful feelings. When people have not learned how to deal with conflict in a healthy way, it starts with verbal abuse and then escalates into violence. Victims can recant allegations of domestic violence when the case gets into the criminal justice system. Sometimes victims will explain away the abuse to prevent a partner from being arrested. Some of the reasons for recanting an allegation of abuse include a sense of guilt, a feeling by the victim that he or she initiated the assault, and the common occurrence of the victim taking personal responsibility for being assaulted.
Often the victim is concerned the partner will receive a lengthy prison sentence and the victim concludes that despite very serious injuries, the sentence is disproportionate to the injuries. Victims can feel enough embarrassment that they do not want to share the abuse they suffered with family members, and the fear the violence from the partner will get worse if an incident is reported.
Defense Evidence
McKinney's older sister Karissa Thompson testified she picked up McKinney on New Year's Eve 2013, and they went out to be with friends. Thompson said McKinney cannot handle alcohol very well and was "get[ting] crazy," so Thompson took her home. Though McKinney does not drink alcohol very often, when she does drink, she is overindulgent. McKinney was irritated when Thompson brought her home. McKinney was acting out by yelling at people and falling on the ground. She was also hitting her face and head. Thompson supports McKinney's relationship with defendant. When McKinney was back home, she was hurting her face in the bathroom. According to Thompson, defendant was trying to calm down McKinney and did not lay a hand on her.
Rachelle Perez, McKinney's mother, testified McKinney does not have a drinking problem but does not handle alcohol well. Perez also explained McKinney has a mental health issue. When she was 13 or 14 years old, McKinney tried to hurt herself a lot and received counseling. McKinney would bang her head on the wall and the ground. Once she had four or five knots on her head and caused herself to have two black eyes. Perez was not present at the New Year's Eve party.
Defendant testified lies had been told about him at trial. McKinney had been his girlfriend for three years and was now his fiancée. Defendant said that during the 7-Eleven incident, he was 17 years old. He was with his father and Dalton smoking a cigarette outside the store when Rocha asked for a cigarette and money. When defendant and Dalton told him no, Rocha said in Spanish what defendant interpreted to mean "suck my dick." To defendant, these were fighting words and he felt threatened by Rocha. Defendant denied hating people of Mexican ancestry. The fight happened very fast and a sheriff's deputy showed up. Defendant had a packet with marijuana in it. He went to prison and had convictions for theft and making a "beer run" with theft prior convictions.
Defendant saw McKinney hurt herself. Once she tried to cut herself with a knife. McKinney reported defendant was responsible for the knife incident, but it was a false report of domestic violence. Defendant described McKinney as the love of his life, but said she drank too much and had mental health issues. Defendant said McKinney hurt her head 20 times in the past and he witnessed 12 or 15 of those events. During the food fight episode, it was McKinney who accused defendant of cheating on her and she was the one yelling at him. Defendant did not hit McKinney but only threw food back at her. McKinney threw a half empty bottle of a hair care product at defendant. He tossed it back at McKinney but did not throw it at her. During the incident, McKinney stubbed her toe and blamed defendant.
On New Year's Eve, defendant and McKinney were having a good time. She had recently given birth to their second child and was recovering. They invited Dalton, his girlfriend, and Thompson to their home. Defendant was drinking beer and smoking cigarettes while McKinney and her friends drank shots from a half gallon of Captain Morgan rum. Around 7:30 p.m., the three women decided to go to a party. Defendant and Dalton stayed behind but eventually took four beers with them and walked to Dalton's residence. Defendant said he was not drunk.
Just before midnight, defendant, without Dalton, walked over to the party the women attended. Defendant talked to McKinney but did not drink. McKinney was drinking rum and whiskey and became "sloshy." McKinney asked for defendant's wallet and house keys so she could go buy alcohol. It was about midnight. McKinney came back from the party being supported by Thompson as they walked. Defendant described McKinney as falling down drunk. McKinney suffered a fall outside their residence.
Defendant said he heard a metal chair screeching in the kitchen and then a "boom, boom, boom, like somebody hitting the table." He heard McKinney speaking to Thompson, accusing defendant of breaking her cell phone. When he went inside, he found McKinney on the ground. She had fallen and hit her head. Defendant said he heard McKinney and her sister "starting to get into it" and "bumping heads." Although Thompson was trying to hold McKinney, McKinney fell and hit her head on the wall of the residence. McKinney injured her right eye.
According to defendant, McKinney went to the bathroom by herself. Defendant heard a noise. McKinney had hit herself falling again. Defendant could hear Thompson "[s]creaming like bloody murder, stop, stop." It was about 3:00 a.m. Defendant said he heard McKinney grabbing at the counter and a metal towel rack when she slipped again and hit the plastic bathtub. McKinney was bleeding from her nose. Defendant did not hit McKinney's face. Thompson closed the bathroom door because McKinney still needed to urinate and Thompson left.
Defendant explained he took off his shirt to get ready for bed when he heard another bang. He went to the bathroom, but the door was locked. Defendant yelled to McKinney to find out what happened but she did not respond. Defendant kicked a hole in the door and then reached his hand through the hole to open it. McKinney was bloody, lying on the ground, and her pants were not around her ankles. There was a knock on the door that turned out to be from the sheriff's deputies.
Defendant denied an adjudication he had when he was 13 years old for an assault causing serious bodily injury, offering an alternative explanation of events. Defendant admitted committing a prior vandalism, denying he committed a robbery. When asked if he was prosecuted for assaulting and trying to steal cigarettes from a 7-Eleven clerk, defendant said he just smashed the window of the store and did time for attempted robbery. Defendant denied his conviction in 2009 for robbery was anything more than committing a petty theft with prior convictions. Defendant then admitted he pled no contest to robbery. Defendant conceded he was served with a restraining order prohibiting him from contacting McKinney shortly after the New Year's incident.
DISCUSSION
1. Admission Of Prior Assault Evidence
Issues
Defendant contends the trial court erred in ruling during in limine motions that the prosecution could present evidence pursuant to Evidence Code section 1101, subdivision (b) concerning the assault of Rocha in 2009. The trial court found the evidence was relevant to show defendant's intent. Defendant argues the prosecution tried to establish defendant was a bigot who did not like people with Mexican heritage, and the evidence only showed defendant's propensity to commit violent acts. Defendant contends the evidence should have been excluded pursuant to Evidence Code section 352 because its probative value was overcome by its unduly prejudicial nature.
The People respond the challenged evidence established defendant's intent to torture McKinney as alleged in count 2, and the assault of Rocha had similar characteristics. The People argue the admission of the evidence was harmless even if it should have been excluded. Defendant replies that because he denied hurting McKinney, he did not place the issue of his intent before the jury. We find that even if defendant's intent was not a proper basis under Evidence Code section 1101, subdivision (b) for the admission of the 2009 incident, the evidence was still admissible to show the absence of an accident, which was the central theme to the defense at trial.
Admissibility of 2009 Incident
Evidence Code section 1101 prohibits admission of evidence of a person's character, including specific instances of uncharged misconduct, to prove the conduct of the person on a particular occasion. Subdivision (b) of Evidence Code section 1101 clarifies that this prohibition does not apply to admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition. (People v. Fuiava (2012) 53 Cal.4th 622, 667; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).)
Subdivision (b) of Evidence Code section 1101 provides in relevant part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ... ) other than his or her disposition to commit such an act."
Evidence a defendant committed crimes other than those he or she is currently charged with is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue such as motive, intent, preparation, or identity. The trial court has the discretion to admit such evidence after weighing its probative value against the prejudicial effect pursuant to Evidence Code section 352. In reviewing the admissibility of other crimes evidence, a court must consider (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crimes evidence to prove or disprove a fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant, because this type of evidence can be damaging. (People v. Fuiava, supra, 53 Cal.4th at p. 667.)
A trial court's ruling on the relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352 is reviewed under the abuse of discretion standard. (People v. Scott (2011) 52 Cal.4th 452, 491; People v. Fuiava, supra, 53 Cal.4th at pp. 667-668.) We further review the evidence in the light most favorable to the trial court's ruling. (People v. Edwards (2013) 57 Cal.4th 658, 711.) The trial court's exercise of discretion will not be set aside unless it is so arbitrary, capricious, or patently absurd that it results in a miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another ground as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
For other-crimes evidence to be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. The pattern and characteristics must be so unusual and distinctive as to be like a signature. (People v. Kipp (1998) 18 Cal.4th 349, 369-370; Ewoldt, supra, 7 Cal.4th at p. 403.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. The common features between the charged and uncharged crimes must indicate the existence of a plan rather than a series of similar spontaneous acts. The plan need not be distinctive. The least degree of similarity is required to establish relevance on the issue of intent. For this purpose, the uncharged crimes need only be sufficiently similar to the current alleged offenses to support an inference the defendant probably harbored the same intent in each incident. (Kipp, supra, at p. 371; Ewoldt, supra, at pp. 402-403.)
In proving intent, the act is conceded or assumed. What is sought is the state of mind that accompanied it. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2; People v. King (2010) 183 Cal.App.4th 1281, 1301 (King).) When Evidence Code section 1101 was enacted in 1965, it was meant to codify existing law, including, specifically, common scheme or plan, preparation, motive, intent, knowledge, identity, or the absence of mistake or accident. (Ewoldt, supra, at pp. 399-400; People v. Spector (2011) 194 Cal.App.4th 1335, 1375.) In Spector, the defendant tried to show the victim of homicide had committed suicide, which then made other-crimes evidence admissible to prove the cause of the victim's death was neither an accident nor a suicide. (Spector, supra, at pp. 1376-1377.)
The parties devote most of their argument to whether it was permissible for the prosecutor to prove defendant's intent when defendant denied the allegations. Because the least degree of similarity in the charged and uncharged crimes is necessary to show intent, we find no abuse of discretion in the trial court's ruling finding the 2009 incident to be admissible. In his reply brief, however, defendant argues his denial of the allegations did not make his intent relevant, citing the King case.
In King, the defendant was charged with sexual crimes, and the prosecution brought into evidence an uncharged act to prove intent under Evidence Code section 1101, subdivision (b). The court in King found the evidence inadmissible because in proving intent, the act is conceded with the goal of establishing the state of mind that accompanied intent. Because the defendant was challenging the allegations, they were not conceded and his intent was not at issue. (King, supra, 183 Cal.App.4th at pp. 1300-1301, citing Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) The decision in King relied on a civil case, Bowen v. Ryan (2008) 163 Cal.App.4th 916, 919-923.)
The decision in King announced a very sweeping rule based on a cryptic statement in a footnote of the Ewoldt opinion, and a civil case in which the plaintiff does not bear the burden of proof beyond a reasonable doubt as do the People in a criminal action. Even if we assume King is a proper statement of law and the 2009 assault of Rocha was not admissible to prove defendant's intent, the other-crimes evidence was admissible to disprove the defense that McKinney harmed herself by her own drunkenness. The defendant in Spector attempted to prove the victim committed suicide, opening the door for the prosecution to establish other uncharged crimes committed by the defendant to show the absence of mistake or accident. (People v. Spector, supra, 194 Cal.App.4th at pp. 1376-1377.)
The entire defense focused on McKinney's alleged mental health issues and her behavior when drinking alcohol. By defendant's account, McKinney fell, hitting herself, before she came home, just before she entered the home, on multiple occasions in the house, and while she was supposedly locked in the bathroom. Defendant not only tried to establish this through his own testimony, but through the testimony of McKinney's mother and sister. If the 2009 assault was inadmissible to show defendant's intent to torture McKinney, it was admissible to show the absence of mistake or accident by the victim. Assuming arguendo that the trial court incorrectly admitted the other-crimes evidence for the wrong reason, if the trial court issues a ruling reaching the correct result but for the wrong given reason, the ruling will not be disturbed on appeal. (Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1054, citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)
Evidence Code section 352After finding the 2009 incident admissible under Evidence Code section 1101, subdivision (b), the court further found the prejudicial effect of admitting the evidence did not outweigh its probative value. Defendant argues to the contrary.
After determining that defendant's prior conviction was relevant and admissible under Evidence Code section 1101, the trial court must then determine whether the evidence was made inadmissible by Evidence Code section 352. A court has discretion to exclude relevant evidence pursuant to Evidence Code section 352 if its admission would necessitate an undue consumption of time or create substantial danger of undue prejudice, confuse the issues, or mislead the jury. The prejudice referred to in Evidence Code section 352 applies to evidence uniquely tending to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. In applying Evidence Code section 352, prejudicial evidence is not made inadmissible because it is damaging. Prejudicial evidence is not synonymous with damaging evidence. The relevant factors for determining prejudice are whether the prior acts were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, whether the prior acts were more recent or remote in time, and whether the defendant had already been convicted and punished for the prior offenses. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
The People argue that the extreme violence of defendant's conduct on both victims, especially after they were rendered helpless by defendant's own violence, coupled with little or no provocation by either victim, showed defendant harbored a sadistic purpose to torture McKinney. The beating of Rocha was intense, though brief, compared to defendant's prolonged beating of McKinney. A gauge in Rocha's ear was pulled out, damaging his ear. Moncur witnessed defendant kicking and punching Rocha when Rocha was already on the ground and unable to continue fighting defendant.
Defendant argues the admission of this evidence was particularly prejudicial because of the implication defendant was a bigot who hated people with Mexican heritage. It was Dalton, however, who introduced this point in a statement he made to Moncur immediately after the incident. Dalton's main point regarding the incident was that Rocha angered defendant by verbally provoking him and then moving in on defendant and taking a swing at him after defendant and Dalton refused to give him money or cigarettes.
Although there are similarities between defendant's attack of Rocha and McKinney, defendant's assault of Rocha was not as bad as his assault on McKinney. The greatest difference between the two episodes is that defendant's assault on McKinney lasted so long, at least 30 minutes. The 2009 assault happened over a much shorter time. Because the attack on McKinney was longer and far more intense, there would be less prejudicial impact on the jury hearing testimony about the 2009 incident. The probative value of defendant's assault of Rocha is important because it shows the ferocity of defendant's temper when he faces little or no provocation. The trial court did not err in finding evidence of the 2009 assault admissible under Evidence Code section 352.
Harmless Error
Defendant asserts the admission of the other-crimes evidence was so prejudicial it caused his trial to be fundamentally unfair so as to violate his right to due process. The People respond that even if the other-crimes evidence was erroneously admitted, any error was harmless. We agree with the People.
When evidence is admitted in violation of Evidence Code section 1101, it is not always prejudicial error. Pursuant to People v. Watson (1956) 46 Cal.2d 818, 836, it must be reasonably probable that a result more favorable to the defendant would have resulted absent admission of the evidence. (People v. Welch (1999) 20 Cal.4th 701, 749-750; People v. Ghebretensae (2013) 222 Cal.App.4th 741, 755.)
The jury was instructed with CALCRIM No. 303 that when evidence is admitted for a limited purpose, the jury must consider it for the limited purpose and for no other. The jury was also instructed on other-crimes evidence with CALCRIM No. 375, which explained the People have to prove an uncharged act by a preponderance of the evidence. It also instructed the jury it had to evaluate the evidence for its similarity, or lack of similarity, to the charged offenses and the uncharged crime evidence could not be used for any other purpose, including defendant's bad character or disposition to commit crime. Jurors are presumed to understand and follow the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Holt (1997) 15 Cal.4th 619, 662; People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
In addition to the limiting instructions given by the court concerning how the jury could evaluate evidence of defendant's 2009 assault, the evidence defendant tortured McKinney without provocation was strong. McKinney's neighbor Harvey heard McKinney being hit and slapped by defendant for 30 minutes before she could reach a phone and call the authorities for help. Even after sheriff's deputies arrived, Harvey could still hear defendant hitting McKinney. McKinney lost consciousness during the beating after defendant kicked her in the face. When deputies found McKinney in the bathroom, her lips were swollen and bleeding, her eyes were swollen shut, her face was bloody, and she was crying. Although McKinney later recanted her statements to deputies and the social worker, her original statements were corroborated by Harvey and investigating deputies.
Defendant described McKinney as being so drunk that she repeatedly fell at the party, just outside their home, and multiple times in the home. According to defendant, McKinney kept falling down in the bathroom, repeatedly hitting herself on bathroom fixtures. Defendant's explanation of events was not credible. If the trial court erred in allowing the uncharged crime into evidence, the evidence was harmless under the Watson standard of review. Defendant has failed to establish the error, if any, was so prejudicial as to rise to the level of federal constitutional error or a denial of due process.
2. Alleged Prosecutorial Misconduct
Issues
Defendant contends the trial court erred in failing to grant his motion for a mistrial for alleged prosecutorial misconduct. Defendant contends that during oral argument the prosecutor quoted a provocative passage from Erich Fromm about the relationship between a sadist and his victim. Defendant argues the quote seriously undermined his case and unduly prejudiced him. The People argue the issue is forfeited and, if not, it did not constitute error. We do not find forfeiture or error.
Background
During her closing argument, the prosecutor included a slide displayed to the jury with the following quote from the philosopher Erich Fromm:
"'The sadistic person is as dependent on the submissive person as the latter is on the former; neither can live without the other. The difference is only that the sadistic person commands, exploits, hurts, humiliates, and that the masochistic person is commanded, exploited, hurt, humiliated. This is a considerable difference in a realistic sense; in a deeper emotional sense, the difference is not so great as that which they both have in common: fusion without integrity.'"
As the prosecutor displayed this slide, she argued to the jury: "This is not the law. It's just an idea. But that both perpetrator, the sadistic person, and the person who is the submissive person, they have a connection, and one depends on the other." Defense counsel immediately objected to the quote, arguing it misstated the law and constituted evidence outside of the trial. After a sidebar with counsel, the trial court instructed the jury with the following:
"Ladies and gentlemen, please disregard—of course, this slide, ... disregard the previous quote from Dr. Fromm. As I understand, it's only being used for illustrative purposes. It does not state the law. The law will be read to you in the form of jury instructions, which you have the right, should you so request, to have them brought back into the jury room for you to peruse and/or you can request explanation regarding any jury instruction through your foreperson to the Court, and then we'll discuss the notes with counsel and then respond to you appropriately. But disregard it. Counsel may use it for illustrative purposes only."
The prosecutor proceeded with her argument, reiterating that the quote was not the law. The prosecutor argued a sadistic person is "commanding, exploiting, hurting, and humiliating another person, but that the other person is then humiliated, exploited, hurt, and commanded. And that although they're extremely different, there's still an issue there." The prosecutor pointed out McKinney was in the position of being commanded, exploited, and manipulated by defendant, and McKinney allowed this to happen. The prosecutor further argued the People have a duty to prosecute crimes like those charged against defendant because the People have a duty to protect those who cannot protect themselves. The prosecutor finished this line of argument by noting the jurors had to consider the evidence before them even though McKinney did not want the prosecution to go forward.
Prior to his own closing argument, defense counsel then brought a motion for mistrial based on the prosecutor's posting of the slide and her argument concerning the quote from Erich Fromm. Defense counsel represented to the court that the slide was shown to the jury for 30 seconds and defined sadism in a way that did not comport with California law. Defense counsel described the quote as an extrajudicial piece of evidence. Defense counsel argued the bell had been rung, it could not be unrung, and if the mistrial motion was denied, he would have to comment on who Erich Fromm was. Defense counsel described Fromm as a notorious person, a staunch anti-American communist who fled this country, and because of this, defendant's due process right to a fair trial was violated.
The prosecutor replied the purpose of the quote was to illustrate the submissiveness of one person to another, to show the connectedness of McKinney to defendant, and to show why she testified the way she did. She pointed out the slide was taken down immediately. The court could not remember if it admonished the jury to disregard the quote. The prosecutor stated the court did so. Defense counsel stated he did not want to re-ring the bell. The court found the prosecutor did not violate the law and denied defendant's motion for a mistrial.
In his closing argument to the jury, defense counsel explained Erich Fromm was born in Germany in 1900. He was Jewish and fled the Nazis, going to Geneva and then America. Fromm was a philosopher who published books that audaciously criticized our country, stating its nationalism was a form of incest, idolatry, and insanity. Defense counsel argued Fromm dedicated that book to Karl Marx, the founder of communism. Fromm left this country and lived in Mexico until his death.
Forfeiture
The People argue defendant forfeited his assertion of prosecutorial misconduct because his defense counsel did not object to the slide of the Erich Fromm quote on this specific ground. Defense counsel argued instead the slide misstated the law and was evidence outside of the trial. In his reply brief, however, defendant accurately points out that a prosecutor who states a fact not in evidence to the jury during argument commits misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 212-213.) Because defense counsel's objection included a ground for prosecutorial misconduct, we reject the People's argument this issue was forfeited for appellate review.
Analysis
A prosecutor commits misconduct if he or she misstates the evidence. (People v. Davis (2005) 36 Cal.4th 510, 550.) Prosecutors otherwise have wide latitude to draw inferences from the evidence presented at trial. They can vigorously present the facts favorable to the People's case unless they misstate the evidence or refer to facts not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 823, 827-828.) A prosecutor's misconduct must be so egregious it infects the trial with such unfairness as to constitute a denial of due process before it violates the Fourteenth Amendment to the federal Constitution. (Donnelley v. DeChristoforo (1974) 416 U.S. 637, 643; People v. Hill, supra, at p. 819.)
A prosecutor may, however, state matters not in evidence that are common knowledge, or illustrations drawn from common experience, history, or literature. The prosecutor has broad discretion to state the People's views regarding which reasonable inferences may or may not be drawn from the evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Hill, supra, 17 Cal.4th at p. 819.) A prosecutor may vigorously argue his or her case and is not limited to Chesterfieldian politeness; appropriate epithets may be used. (People v. Hill, supra, at p. 819.)
We conclude the prosecutor did not misstate evidence or refer to facts not in evidence when she referred to the slide quoting Erich Fromm. The prosecutor told the jury the quote was not the law, it was just an idea, and she explained how a sadistic perpetrator and a victim depend on each other. The prosecutor referred to the dependency a victim can have with an abuser to ultimately explain why in her testimony McKinney recanted her earlier statements to the social worker and sheriff's deputies concerning the details of defendant's abuse of her on New Year's Day.
The prosecutor's reference to the quote was a literary way to refer back to the expert testimony of Nada Yorke concerning the common relationship characteristics shared by abusers and victims of domestic violence. Yorke explained why victims of domestic violence recant their report of abuse once the matter reaches the judicial system. It was in the context of how McKinney changed her story that the prosecutor referred to the Erich Fromm quote. This reference to literature was a traditional and acceptable argument for a prosecutor to make. It was not evidence outside the record as defendant argues on appeal. There was nothing reprehensible about the prosecutor's reference to the quote. We further note the quote was before the jury, by defense counsel's reckoning, only 30 seconds.
The trial court also advised the jury the quote was not the law and to disregard it. The jury was instructed with CALCRIM No. 222 that the closing arguments of counsel are not evidence. As noted above, the jury is presumed to understand and follow the trial court's instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852; People v. Holt, supra, 15 Cal.4th at p. 662; People v. Hernandez, supra, 181 Cal.App.4th at p. 1502.) Defense counsel elected to refer to the Erich Fromm quote by launching into an attack on Fromm's character, questioning his politics, patriotism, and loyalty to America. In doing so, defense counsel successfully undermined Fromm's effectiveness as a social observer.
When reviewing a trial court's ruling on a motion for new trial, appellate courts apply the deferential abuse of discretion standard. (People v. Howard (2010) 51 Cal.4th 15, 42-43.) Defendant had failed to demonstrate the prosecutor's conduct was egregious or constituted misconduct. The trial court did not abuse its discretion in denying defendant's motion.
3. Cumulative Error
Where, as here, nearly all of defendant's assignments of error are rejected, there is no cumulative error. (People v. Jenkins (2000) 22 Cal.4th 900, 1056; People v. Bradford (1997) 15 Cal.4th 1229, 1382; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Defendant has failed to show cumulative error. 4. Pitchess Review
Pitchess motions are the procedure by which defendants can screen law enforcement personnel files for evidence that may be relevant to their defense without compromising the officer's reasonable expectation of privacy in those records. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) Subject to various restrictions not relevant here, a trial court must conduct an in camera review of potentially relevant personnel files if the defendant makes a showing of good cause for the discovery. (Id. at p. 1226.)
This process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. The custodian "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (People v. Mooc, supra, 26 Cal.4th at p. 1229.)
The trial court must then make a record of what documents it has examined to permit future appellate review. (People v. Mooc, supra, 26 Cal.4th at p. 1229.) "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Ibid.) These proceedings are then sealed. (Ibid.) On appeal, we independently examine the record made by the trial court "to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure of police personnel records." (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
The trial court complied with the required Pitchess procedures. The custodian of records was present and placed under oath. Potentially relevant documents were reviewed and considered in light of defendant's discovery motion. The court created an accounting of what was reviewed and why it was not relevant or subject to production. And these proceedings were stenographically recorded. (People v. Mooc, supra, 26 Cal.4th at p. 1229.) Our review of the relevant personnel information of sheriff's deputies Eric Hughes and John Puga revealed no discoverable information.
DISPOSITION
The judgment of the trial court is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.