Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 06NF0186 M. Marc Kelly, Judge.
Brent F. Romney for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Michael Gary Martinez of inducing false testimony, criminal threats, and misdemeanor battery. (Pen. Code, §§ 137, subd. (b); 242, 422.) Defendant contends the trial court erred in admitting evidence of prior domestic violence he perpetrated on a girlfriend and in declining to strike for purposes of sentencing his prior felony conviction for criminal threats against the girlfriend. As we explain below, defendant’s arguments are without merit and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005, 14-year-old C.P. visited his grandmother’s house, where defendant, his cousin, resided. C.P.’s 20-year-old brother, Kenny, also lived in the home. C.P. left the house with his mother, grandmother, and a younger brother, D., to get a late-night snack and when they returned around midnight or 1:00 a.m., C.P. and D. were talking and laughing. Defendant called out angrily from his bedroom, “be quiet� and “shut up.� Unable to control their giggling, C.P. and D. retreated to the kitchen. A door slammed, defendant stormed into the kitchen, grabbed C.P.’s shirt, and punched him hard twice, once in the chest and on the arm as he fell to the floor. The blows knocked C.P.’s breath away. He gasped from his knees, “Please don’t kill me.� Defendant was angrier than C.P. had ever seen him.
Kenny entered the kitchen, shepherding C.P. and D. into his room in the garage. When defendant entered the garage, blandishing, “I know you’re tougher than that,� C.P. bolted outside in fear. Defendant followed, yelling, “I am your friend. Don’t do this.� Still frightened, C.P. circled back to the house to find Kenny to comfort him. After Kenny stepped outside with his girlfriend to discuss the matter, defendant confronted them with vulgar epithets, ordered them to leave and never return and, when Kenny’s girlfriend protested, defendant advanced towards her. Kenny grappled with defendant and the pair fell to the ground. The girlfriend called the police, who arrested defendant and took a statement from Kenny.
Defendant immediately began threatening Kenny, first in a phone call from jail (“if you don’t get this taken care of, something bad is going to happen�) and then in person. For instance, Kenny awoke in the garage to find defendant standing over him, demanding Kenny “get the situation straightened out . . . .� To no avail, defendant contacted C.P.’s father to have him persuade C.P. to change his story. Defendant became angrier and more insistent. He prevailed on the grandmother to evict Kenny if he testified. He browbeat Kenny to have C.P. refuse to testify, demanded C.P.’s address and phone number, and ordered Kenny to identify another cousin as the perpetrator. Confronting Kenny in the garage, he snarled, “What do I have to do to make you understand. Rip your fucking head off and shit down it.�
Defendant’s rage grew as a court hearing date approached. He cornered Kenny, warning him he had “two mother[-]fucking days to get the situation handled.� When Kenny responded that he would not lie in court, defendant struck him in the throat. Kenny left the house, jumping two fences with defendant in pursuit. Defendant chased Kenny into a cul-de-sac, told Kenny he was going to die, and further threatened Kenny that his “home boys� would kill him. Kenny spotted a pedestrian nearby, asked her to dial 911, and eluded defendant until the police arrived.
Darlene Lyburtus, a former girlfriend and the mother of defendant’s child, testified he struck her and threatened to kill her on multiple occasions. In August 1999, she picked him up at the grandmother’s house; he was intoxicated and they argued because he wanted to use her car. He threatened to kill her and the baby, adding he would bury her bones in the desert so they would not be found. She called 911 after he bloodied her lip with a punch to the mouth. In February 2001, defendant argued with Lyburtus over the telephone concerning his request for a ride. He threatened to kill her and take their daughter, and that he would kill her family members one by one. Compelled by his threats, Lyburtus went to defendant’s house, where he punched her in the eye and hit her numerous times all over her body, leaving visible bruises on her body and face.
II
DISCUSSION
A. No Error Admitting Prior Domestic Violence under Evidence Code Section 1109
Defendant contends admission of evidence concerning his assaults and threats against Lyburtus in 1999 and 2001 violated his right to equal protection of the law and due process. He acknowledges that because his cousins C.P. and Kenny fell within the requisite degree of consanguinity (Fam. Code, § 6211, subd. (f)), the present charges for misdemeanor battery against C.P. and criminal threats against Kenny “technicallyâ€� amounted to domestic violence (see Evid. Code, § 1109, subd. (d)(3)), opening the door to admission of prior domestic violence conduct under Evidence Code section 1109, subdivision (a)(1). (Subsequent section references are to the Evidence Code unless noted otherwise.) But defendant contends the prior incidents involving Lyburtus were too dissimilar from the present charges to have any probative value, and served only to inflame the jury against him. Indeed, he argues the dissimilarity adds a constitutional dimension to erroneous admission of the evidence, violating his right to equal protection of laws generally barring evidence of propensity derived from prior conduct (§ 1101) and thus thwarting his due process right to a fair trial.
Section 1109, subdivision (a)(1), provides: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [s]ection 1101 if the evidence is not inadmissible pursuant to [s]ection 352.� Subdivision (e) specifies that acts of domestic violence occurring 10 or more years earlier are generally inadmissible and subdivision (f) provides that the findings in some regulatory proceedings concerning health care agencies are also inadmissible.
The Attorney General asserts defendant forfeited his constitutional attack by failing to raise it below. Defendant contested admission of the prior domestic violence evidence only on grounds it was more prejudicial than probative under section 352. Courts have upheld the constitutionality of admission of prior sexual misconduct under section 1108 and prior domestic violence under section 1109 based on the essential safeguard section 352 provides in such cases against a fundamentally unfair trial (see, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 922; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028) and against violation of equal protection (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 (Jennings)). An erroneous ruling under section 352 could therefore have constitutional implications. But we do not reach the issue of whether defendant’s constitutional claims have merit or are waived because the predicate is absent: simply put, we conclude the trial court’s section 352 ruling was correct. We review that ruling for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Defendant argues incidents of domestic violence involving a romantic partner are too unlike his physical and verbal attacks on his male cousins to have any probative value, but the trial court could reasonably conclude all the incidents shared important features. As observed in Jennings, “domestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general.� (Jennings, supra, 81 Cal.App.4th at p. 1313.) In People v. Brown (2000) 77 Cal.App.4th 1324, 1333, the court highlighted additional distinguishing features of domestic violence, including its repetitive nature and problems of proof stemming from uncooperative victims and fearful witnesses.
Here, defendant’s assaults and threats against his victims bore the earmarks of traditional domestic violence. The threats and physical attacks took place over a significant period of time predominantly in the family residence, where defendant had unlimited access to the victims, shielded from public view. Defendant preyed on his special relationship with the victims, invoking the conflicting loyalties generated by family ties in an effort to dissuade the victims and others from testifying. Defendant distinguishes Jennings by observing that the prior incidents there involved the same victim. The salient pattern, however, is not the identity of the victim but the defendant’s propensity to control special relationship victims with violence and threats. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.) Because defendant denied he made any criminal threats against Kenny, the prior incidents were therefore probative in undercutting his credibility and corroborating his victim’s account.
Defendant complains generally of prejudice, but the prejudice against which section 352 guards is not synonymous with “damaging.� (People v. Karis (1988) 46 Cal.3d 612, 638.) Defendant asserts the prior incidents only served to inflame the jury because they involved a female victim and the 2001 incident was more violent. But all the incidents involved battery and the trial court kept Lyburtus’s testimony short, admitting no photographs of her bruises. The trial court could reasonably conclude Lyburtus’s gender was not a reason to exclude the evidence, since C.P. and Kenny were also vulnerable victims by virtue of their youth, blood bonds to defendant, and regular proximity. In sum, the trial court could reasonably conclude the probative value of the prior incidents outweighed any undue prejudice. We discern no error in the admission of the evidence, and defendant’s constitutional claims therefore fail.
B. No Error in Declining to Strike Defendant’s Prior Strike
Defendant contends the trial court abused its discretion when it declined to strike his prior strike conviction for domestic violence against Lyburtus in 1999. (See Pen. Code, §§ 667, subds. (d) & (e)(1) [felony criminal threats conviction constitutes a strike]; 1170.12, subds. (b) & (c)(1) [same].) Recidivist sentencing based on prior strikes was “designed to increase the prison terms of repeat felonsâ€� within a spirit of “‘“fair prosecution of crimes properly alleged.â€� [Citation.]’â€� (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) The trial court retains discretion under section 1385 to dismiss a prior strike “in furtherance of justice.â€� (Romero, at pp. 529-530.)
Defendant argues his current conviction, which he characterizes as merely based on “slugging� a family member and idle threats to kill family members, does not warrant a harsh, 10-year sentence under the strike scheme. Defendant’s argument understates the terror experienced by domestic violence victims. He also fails to appreciate that the purpose of recidivist sentencing embraces more than just the current conviction. The touchstone for a trial court’s ruling on a Romero motion, and for our review, is “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part . . . .� (People v. Williams (1998) 17 Cal.4th 148, 161.) The record reveals the trial court followed these guidelines and considered the relevant factors in declining defendant’s motion. We note the standard of review is deferential, not de novo; the issue is whether the trial court’s decision “‘falls outside the bounds of reason’ . . . [citations].� (Id. at p. 162.)
Defendant’s prior criminal history and performance on probation and parole were abysmal. Convicted of car theft at age 18, he promptly violated probation, resulting in a 16-month stint in prison. Upon release, he violated parole three times and returned to prison each time. He subsequently suffered convictions for trespass, burglary, and other crimes in 1993; false report to a police officer in 1995; a DUI in 1997, after which he proceeded to violate probation three times; domestic violence battery and criminal threats convictions in 1998; possession of drug paraphernalia, false statements to a police officer, and driving on a suspended license in 1998; the domestic violence convictions for battery and criminal threats in 1999, including further probation and parole violations; two convictions for violating a restraining order in 2001; and resisting arrest and driving on a suspended license in 2002. On this lengthy record, we cannot say the trial court abused its discretion in concluding defendant fell within the spirit of recidivist sentencing.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.