Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. RIF124385, Douglas E. Weathers, Judge.
Rex Williams, 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, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
On June 6, 2005, defendant argued and fought with his stepfather and tried to stab him. He also threatened to kill his stepfather and his uncle.
A jury convicted defendant of one count of assault with a deadly weapon (§ 245, subd. (a)(1)); two counts of making criminal threats (§ 422); one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)); and two counts of dissuading a witness. (§ 136.1, subd. (c)(1).) The third count included a special allegation, which the jury found true, that defendant had personally used a firearm. (§ 12022.5, subd. (a).) Defendant admitted he had served a prison term for a felony conviction. (§ 667, subd. (b).) The court sentenced defendant to a total prison term of 15 years four months.
On appeal, defendant challenges the admission of evidence of his gang affiliation and prior acts of domestic violence. He also asserts there was insufficient evidence for counts 2 and 3, making criminal threats. He contends the court abused its discretion when it dismissed a juror. Finally, defendant claims two sentencing errors: one involving consecutive sentencing and another involving the failure to stay the sentence on count 2. We generally reject defendant’s contentions and affirm the judgment except we direct the abstract of judgment be modified to stay the eight-month sentence on count 2.
2. Facts
Defendant’s mother and stepfather, Maria and Gabriel Martinez, lived on Fourth Street in downtown Riverside. Defendant stayed with them a few nights a week and kept his belongings there.
A Riverside police officer, Kenneth Beebe, testified that he responded to an afternoon call for the Martinez residence. When he contacted Gabriel and Maria waiting on the sidewalk, they were upset and Gabriel had a cut under one eye. Gabriel said defendant had fought with him and tried to stab him. During the fight, defendant had obtained a nine-inch steak knife from the kitchen. Defendant warned Gabriel and Maria he would try to kill them if they called the police. Maria gave a similar statement. She also identified defendant as a Southsider gang member and she described his tattoos. The police located a steak knife on a table in the backyard.
Beebe interviewed Arturo Ruiz, Maria’s brother and defendant’s uncle, who said defendant had threatened to kill him and shoot up his truck. Then defendant displayed under his shirt a semiautomatic handgun with black grips.
At trial, Gabriel testified that Ruiz had come to Gabriel’s workplace and told him defendant had been misbehaving toward Maria. Gabriel was very angry and decided defendant should leave their residence. He had previously discussed this matter with Maria. That afternoon, Gabriel came home from work and screamed at defendant to “Get the fuck out of here, leave.” He threatened to call the police. Ruiz was present initially but then left the scene.
Gabriel argued with defendant and Maria tried to stop them until defendant shoved Gabriel and grabbed him in a headlock. Gabriel freed himself and they continued arguing. At one point defendant went in the kitchen and began waving an object that was “dark or brown,” “kind of short,” and “looked like a knife.” Defendant swung at Gabriel once and Gabriel struck defendant and knocked him down. Gabriel did not remember at trial how he received a scratch or cut under his eye.
When the police came, Gabriel told them defendant had possessed a knife with a wood handle. The police recovered a kitchen knife from a table on the back patio. At trial, Gabriel denied having told the police defendant had tried to stab him.
Maria’s version of events generally tried to minimize defendant’s conduct. She testified defendant had started to call her names while they watched television with Ruiz, who left when defendant and Gabriel began arguing and returned later. When Gabriel came home, he was in the kitchen with defendant and loudly telling him to leave. She tried to calm them down and prevent a fight. She pushed Gabriel into the living room. Defendant followed and grabbed Gabriel in a headlock. She could not remember whether defendant hit Gabriel.
At trial, Maria claimed she was confused about whether defendant obtained a steak knife from the kitchen. She recalled him swinging an object around. She only saw the scratch on Gabriel’s face afterwards. She yelled at a neighbor to call the police. But she did not remember telling the police defendant had tried to stab Gabriel several times and threatened to kill him. She also did not remember telling the police defendant had threatened to kill Ruiz and herself. She further denied saying defendant was a Southsider gang member.
Ruiz testified that he was visiting but he left when defendant and Gabriel began fighting. Earlier he had contacted Gabriel at his workplace and told him defendant was “getting out of hand.” He told the police defendant had lifted up his T-shirt and displayed a “silver semiautomatic handgun with a black grip” but it was actually a cell phone. He also told the police defendant had threatened to kill him, which he regarded as an empty threat. When he returned to check on Maria, the police had arrived.
Michael Elliot, a neighbor, heard a commotion and went outside where defendant and Gabriel were scuffling with one another. Maria was panicked and yelling for someone to call the police. Elliot called 911 and told the operator that defendant was trying to stab Gabriel and Maria while Maria tried to stop defendant. Elliot told the operator he did not see a knife but that defendant had one. At trial, he testified he could not remember seeing a knife.
3. Gang Membership
Defendant objects to the admission of his mother’s statements to the police that he was a member of the Southsider gang; describing his tattoos, including the letters “I” and “E” (for “Inland Empire”); and giving his nicknames as “Johnny” or “Clumsy.”
Defendant contends such evidence is more prejudicial and inflammatory than relevant and probative: “Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’ [Citations.] In cases not involving a section 186.22 gang enhancement, it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’ [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it. [Citation.]’ [Citations.] [¶] A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.)
Evidence a witness is afraid to testify or is fearful of retaliation is relevant to the credibility of that witness. Evidence of gang membership may be relevant and admissible when a witness gives inconsistent statements. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.) Defendant’s gang membership was relevant to the two counts of making criminal threats to show Gabriel and Ruiz had reason to be afraid of defendant. (§ 422; People v. Cox (1991) 53 Cal.3d 618, 660.) The evidence was also relevant given the repeated inconsistencies and evasions demonstrated by the victim-witnesses.
In this instance, moreover, the evidence was not unduly prejudicial because it was limited in scope to Maria’s brief statements about the Southsider gang, defendant’s tattoos, and his nicknames. It was not an abuse of discretion to admit such slight evidence about gang membership. Nor could it be considered prejudicial error in light of the other, highly convincing evidence against defendant. (People v. Avitia, supra, 127 Cal.App.4th at p. 194.) The victims’ statements to the police were corroborated by the other witness, Elliot, the neighbor. The victims’ efforts to change their testimony at trial to protect defendant were patently obvious—even from the cold written record. The trial court did not abuse its discretion in allowing Maria’s testimony about defendant’s possible gang connections.
4. Past Domestic Violence
Two women, defendant’s ex-wife and his former sister-in-law, testified that he had committed past acts of domestic violence against them.
His ex-wife, Rosalinda Gonzalez testified about several incidents. In August 1997, when Gonzalez was pregnant, defendant and Gonzalez hit each other and she called the police. In March 1998, they fought and he burned her on the face with a cigarette and slapped her. In April 1998, defendant hit her in the face with a phone and they scuffled. In another incident, he beat her, Gonzalez’s aunt hit him with an iron, and Gonzales stabbed him. Gonzalez agreed their relationship was mutually violent and she admitted using methamphetamine.
Defendant’s former sister-in-law, Eve Mendes, testified that, in April 2002, she and defendant had been sharing a residence while her husband, defendant’s brother, was in prison. On one occasion they were drinking together and began arguing but she did not remember telling the police he had punched her multiple times.
Based on a misreading of Evidence Code section 1109, defendant argues it was reversible error to allow admission of the foregoing as propensity evidence concerning count 3 for making a criminal threat (§ 422) against Ruiz and count 6 for dissuading a witness (§ 136.1) against Maria.
The relevant portions of Evidence Code section 1109 are as follows:
“(a)(1) 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] . . . [¶]
“(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.
“(d) As used in this section: [¶] . . . [¶]
“(3) ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.
“(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
In the present case, the incidents involving Gonzalez occurred more than five years but less than 10 years before the charged offenses. That evidence is subject to the definition of “domestic violence” set forth in section 13700, subdivision (b), providing:
“‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, ‘cohabitant’ means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.”
Gonzalez was defendant’s wife and the abuse defendant committed against her in 1997 and 1998 was therefore admissible under Evidence Code section 1109 and Penal Code section 13700.
The 2002 incident involving Mendez occurred within five years of the charged offense and it is subject to the other statutory source for defining “domestic violence,” Family Code section 6211, which provides:
“‘Domestic violence’ is abuse perpetrated against any of the following persons: [¶] . . . [¶]
“(b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] . . . [¶]
“(f) Any other person related by consanguinity or affinity within the second degree.”
Mendez was defendant’s sister-in-law and his cohabitant, making the 2002 offense against her admissible under Evidence Code section 1109 and Family Code section 6211.
Defendant incorrectly argues that Evidence Code section 1109 does not apply because the victims, Ruiz and Maria, do not qualify as victims of domestic violence under Evidence Code section 1109 and Penal Code section 13700. Ruiz, his uncle, was not a cohabitant with defendant and Maria, his mother, was a cohabitant but was not an unrelated person. But defendant offers no reason to construe Evidence Code section 1109 as being limited to certain kinds of victims. Evidence Code section 1109 concerns evidence of past conduct not the character of present victims. The definitions of domestic violence presented in Evidence Code section 1109, subdivision (b), apply to defendant’s prior conduct not to the present charged offenses which still constitute domestic violence under another statute. Independent of Evidence Code section 1109, Maria qualified as a victim of domestic violence both as a cohabitant and a related person and Ruiz qualified as a related person. (Evid. Code, § 1109, subd. (c); Fam. Code § 6011.)
We conclude, therefore, the evidence of defendant’s prior conduct was properly admitted: “The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion. [Citations.]” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
In Poplar, the court found no abuse of discretion in admitting evidence of the defendant’s prior acts of domestic violence in a prosecution for forcible rape of his live-in girlfriend. In each prior incident of domestic violence, there had been a family-type relationship and defendant had threatened the victim. The appellate court found defendant’s attempt to subject the admission of this evidence to the exacting standards governing admission of evidence under Evidence Code section 1101, subdivision (b), to be inappropriate because the evidence was independently admissible pursuant to Evidence Code section 1109. (People v. Poplar, supra, 70 Cal.App.4th at p. 1139.)
The decision in Poplar endorses any balancing determination under Evidence Code section 352 made by the trial court in this case. Before admitting the evidence of the assaults on other victims, the court held multiple hearings and explained the reasons for admitting the testimony. Given the care with which the judge treated the evidence, we see no abuse of discretion in the conclusion that the probative value of the evidence was not substantially outweighed by the danger of undue prejudice. Evidence about the past acts did not consume much time at trial. The past acts were determined by Evidence Code section 1109 to be highly probative. Accordingly, admission of the evidence of the past acts of domestic violence was not an abuse of discretion. (People v. Brown (2000) 77 Cal.App.4th 1324, 1338.) Because the domestic-violence evidence was admissible, the trial court also gave proper instruction to the jury based on CALCRIM No. 852.
5. Insufficient Evidence
Defendant was convicted on counts 2 and 3 for making criminal threats against Gabriel and Ruiz. In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant willfully threatened to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat was on its face and under the circumstances in which it was made so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety, and (5) that the threatened person’s fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant argues there is insufficient evidence of sustained fear suffered by the victims because both Gabriel and Ruiz testified at trial they were not afraid. However, notwithstanding the victims’ trial testimony favoring defendant, the record affords substantial evidence of sustained fear to sustain the conviction. (People v. Hatch (2000) 22 Cal.4th 260, 272.)
Gabriel told the police that defendant had yelled, “I’m going to kill you” and had slashed at him with the steak knife, forcing him to take evasive action. Gabriel and Maria had fled the house and waited outside on the street for the police to arrive. The neighbor, Elliot, confirmed that he thought defendant had tried to stab Gabriel while Gabriel tried to elude defendant. The responding officer described Gabriel as “visibly shaken,” his hair messed up like he had been fighting, with a small cut under his eye.
As for Ruiz, the evidence demonstrated that, after defendant threatened him and displayed a gun, Ruiz left the house and did not return until the police had arrived, indicating a sustained fear about his safety.
All these factors constituted substantial evidence supporting a jury verdict against defendant for making criminal threats against Gabriel and Ruiz.
6. Juror No. 3
The court dismissed Juror No. 3 because she had knowingly consulted a dictionary about the meaning of “preliminary,” “hearing,” and “self-defense.” She had shown a bias based on personal experience with the police and she had spoken with Gonzalez briefly in the hallway before she testified.
Here it is acknowledged that the juror committed wilful misconduct by independently consulting a dictionary. (People v. Karis (1988) 46 Cal.3d 612, 642.) Additionally, the juror disregarded the trial court’s instructions when she continued to converse with Gonzales after finding out she was defendant’s ex-wife. Her willful violation of the court’s instructions in two instances supplied good cause to believe she was not able to perform her duty as a juror. (§ 1089; People v. Daniels (1991) 52 Cal.3d 815, 864.)
Furthermore, the juror also admitted that she was skeptical about the testimony of Officer Beebe based on his police report because of her personal experience with an inaccurate police report when her father was murdered. Her actual bias against the police meant she was unable to deliberate fairly and rendered her subject to discharge. (People v. Barnwell (2007) 41 Cal.4th 1038, 1051-1053.)
Defendant asks us to speculate about the absence of prejudice. He contends there was no likelihood the juror’s misconduct influenced the jury’s deliberations because she did not share the dictionary definitions with the other jurors and there was no showing the definitions were relevant or wrong. (People v. Mincey (1992) 2 Cal.4th 408, 467; People v. Cabrera (1991) 230 Cal.App.3d 300, 305; People v. Harper (1986) 186 Cal.App.3d 1420, 1426.) He argues her brief contact with Gonzales was harmless and her attitude toward police testimony was part of her “experience in life” rather than demonstrable bias.
Had there been only one objectionable instance of conduct by the juror, we might have been more inclined to consider defendant’s arguments. But the cumulative effect of the juror’s conduct suggests she was unable or unwilling to follow the legal rules for a jury. Even if she had not yet prejudiced the jury, she certainly threatened to do so if not removed. Under these circumstances, the court did not abuse its discretion by dismissing Juror No. 3.
7. Sentencing
The court sentenced defendant to six years as the principal count on count 3, including an enhancement, for making an armed criminal threat against Ruiz. The court imposed consecutive sentences on the other counts. In counts 1 and 2, defendant attacked Gabriel with a knife and threatened to kill him. In counts 5 and 6, he threatened Gabriel and Maria if they called the police. Defendant contends the court should have imposed concurrent sentences of one year eight months on counts 1 and 2 and three years each on counts 5 and 6. Additionally, he maintains the court should have stayed the eight-month sentence on count 2 under section 654. In other words, he seeks to reduce his sentence of 15 years four months to 13 years eight months.
Defendant did not object below and forfeited his claim about consecutive sentencing. (People v. Davis (1995) 10 Cal.4th 463, 551-552.) Nevertheless, the court properly exercised its discretion. (People v. Jenkins (1995) 10 Cal.4th 234, 254; People v. Giminez (1975) 14 Cal.3d 68, 72.)
Consecutive sentencing may be imposed where there are separate acts of violence against multiple victims, as in counts 5 and 6. (People v. Deloza (1998) 18 Cal.4th 585, 594-595; People v. Valenzuela (1995) 40 Cal.App.4th 358, 363-365; People Calderon (1993) 20 Cal.App.4th 82, 87.)
Defendant’s criminal history demonstrated an increasing pattern of criminal conduct and an ongoing societal danger, both factors relating to the defendant which the court was entitled to consider in its sentencing choices. (Cal. Rules of Court, rules 4.421(b), 4.425(b).) Therefore, the consecutive sentences on both counts 1 and 2 and counts 5 and 6 were appropriate.
As to section 654, defendant argues the evidence shows the two crimes of stabbing Gabriel while threatening to kill him comprised an indivisible course of conduct engaged in with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Therefore, defendant maintains section 654 precludes multiple punishment for counts 1 and 2. (People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217.)
Applying Latimer, we agree with defendant. The People argue defendant had two intents—to harm Gabriel physically and to instill fear in him. We do not find this to be a reasonable or plausible interpretation of the record. Although the stabbing and the threat were separate acts, the evidence does not suggest any separate intent or objective. Defendant’s effort to stab Gabriel was inextricably intertwined with his shouted threat to kill him. Count 2 should be stayed under section 654.
8. Disposition
We affirm the judgment but order the abstract of judgment to be modified to stay the eight-month sentence on count 2.
We concur: Hollenhorst, Acting P. J., Richli J.