Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F05866
RAYE , J.The prosecution tried defendant Terry Mitchell on a theory of first degree murder for the stabbing of his girlfriend of five years, but a jury convicted him of voluntary manslaughter. He contends the trial court committed reversible error by admitting evidence he physically abused a former girlfriend and his daughter. Finding no abuse of discretion, we affirm.
FACTS
The victim’s children, 15-year-old Charlie and 23-year-old Katie, were present when defendant stabbed their mother in the abdomen with a kitchen knife. They both testified at trial. So did defendant. They all told the same basic story, but defendant insisted the stabbing was an accident. Thus, the sole issue at trial was intent.
The names of the victim’s children have been changed to protect their privacy.
Defendant and the victim had a tumultuous five-year relationship. He was a mean drunk. She used methamphetamine. They lived together with her children but broke up often. They had an argument the night before the stabbing and she asked him to move out.
Katie testified defendant was drunk and locked out of the house when she arrived home around 3:00 a.m. Charlie testified defendant still appeared angry and intoxicated around 9:00 a.m. as he was packing his things and taking them to the car. Defendant called Charlie’s mother “bitch” and “crankster” and accused her of “mess[ing] up his life.” Defendant told Charlie he was taking the bicycle he had bought him, but he was unable to close the trunk with the bicycle inside. Defendant testified he took a kitchen knife to cut a piece of rope to “tie the trunk down.”
The victim followed defendant into the garage, asking what he was going to do with the knife. Charlie testified that as his mother stood on the top step leading into the garage, defendant quickly thrust the knife into her stomach and then pulled it out. His mother yelled, “He stabbed me. The son of a bitch stabbed me.” Defendant testified he did not know the victim was right behind him when he went into the garage, and when he turned to say something to her, she ran into the knife. He felt the knife go in, said “oh, shit,” and pulled it back.
Charlie testified that, after the stabbing, defendant walked toward the front door without saying a word. Katie testified that her mother fell to the floor, her intestines protruding from her wound, and defendant walked out the front door. Katie grabbed a metal dog leash and ran after defendant. Shrieking, she approached him from behind. He turned, swinging the knife at her, and they both fell off the porch. A scuffle ensued.
A neighbor’s cousin came to help and performed CPR until emergency personnel arrived. The victim died a few hours later. Defendant turned himself in to the police later that day.
DISCUSSION
Defendant contends the trial court erroneously admitted evidence of his prior acts of physical abuse of a former girlfriend and his daughter in violation of Evidence Code sections 1101, subdivision (b), 1109, and 352. We conclude the trial court did not abuse its discretion by admitting the evidence.
All further statutory references are to the Evidence Code.
Background
The prosecution sought to introduce the testimony of three witnesses, all of whom would offer evidence of prior acts of physical assault on family members or domestic partners. While the court disallowed the testimony of defendant’s daughter about defendant’s assault on her brother, it allowed the testimony by his former girlfriend and daughter about defendant’s assaults of each of them. The court explained its methodical analysis of the admissibility of the evidence at great length. It stated, in pertinent part:
“In order for uncharged crimes to be relevant to prove intent in a charged crime, the other evidence must be sufficiently similar to support the inference that the defendant harbored the same intent. [¶] . . . [¶] The instant case alleges an act of violence on a person with whom the defendant was involved in a personal relationship. The defendant was residing with the victim and allegedly stabbed her while involved in an argument.
“In the prior incidents, it is likewise alleged the defendant was involved in acts of violence on individuals with whom he had a personal relationship.
“In the current case and the prior case involving Ms. Moore, the defendant was in a dating relationship with the alleged victim. In the prior case involving his children, the defendant was also involved in alleged acts of domestic violence.
“Although the current case and the prior cases have some dissimilarities, in that the defendant allegedly used a weapon and killed the named victim in the current case and only allegedly used fists and inflicted nonlethal injuries in the prior cases, all cases involved acts of physical violence on persons with whom the defendant had a personal domestic relationship. All cases allege facts involving an imbalance of power and control in a family or dating relationship. [¶] . . . [¶]
“The court finds the alleged prior acts of violence are admissible under Evidence Code Section 1101(b). Similar prior acts of domestic violence are relevant evidence in this case for the jury to determine material issues of disputed fact, including the defendant’s mental state, motive and intent.”
The court went on to conclude that the probative value substantially outweighed the prejudicial effect. “The incident involving Alexandria Moore is similar. It is not remote, and it is far less inflammatory than the instant case. [¶] Presentation of the evidence will involve one witness who is subject to cross-examination and will not result in an undue consumption of time or mislead or confuse the jury. [¶] Although the incident involving Stacey Mitchell is further back in time, any issue of remoteness is negated by the fact that the defendant spent a significant amount of time between that case and the instant case in prison for a domestic violence conviction and being returned for parole violations.” The court repeated that the evidence involved only one witness, who would be subject to cross-examination. Thus, section 352 did not preclude admission of the evidence of prior bad acts.
Evidence of Domestic Violence
Defendant’s 28-year-old daughter testified that when she was 13 years old her father brutally assaulted her. He routinely became violent when he was high on drugs and alcohol, so when he arrived at his daughter’s friend’s apartment and asked his daughter to leave with him, she refused. He grabbed her by the shirt and pulled her out of the apartment. He threw her onto the ground, causing her head to slam into the concrete, and while she was on the ground, he punched her in the face with his fist. She tried to escape, but he grabbed her and yanked her to the ground again. She landed on her wrists. While she lay on the ground, defendant stomped on her chest and punched her “a couple more times” in the face. By the time it was over, her lip and nose were bleeding, her head hurt, and she had chest pains. The injuries to her wrists are permanent.
Alexandria Moore had a relationship with defendant from 2000 to 2005. She testified he was mean and violent when he drank. One evening in April 2004 he drank a bottle of brandy, knocked over an ashtray, and refused to pick it up. He left for a short time, but when he returned he remained agitated and told Moore, “Fuck you.” When she objected to how he was behaving, he punched her in the face. She withdrew but he became more upset. He slapped her in the face, grabbed her head by the hair, and pulled out five or six braids. She screamed for help and family members had to pry defendant’s fingers out of her hair. When she threatened to call the police, he slapped her again.
Analysis
Although section 1101 prohibits the admission of evidence of other crimes to prove propensity or bad character, subdivision (b) of section 1101 allows this evidence when relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Section 1109 provides an express exception to section 1101’s ban on propensity evidence. Section 1109 allows evidence of prior criminal acts to show a defendant’s disposition to commit such acts in cases involving domestic violence. Evidence admissible under sections 1101, subdivision (b) and 1109 may be excluded “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) We review the court’s evidentiary rulings for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
Defendant contends the trial court abused its discretion by admitting toxic evidence of prior crimes that was sure to inflame the jury and was nothing more than prohibited propensity evidence under section 1101. He insists the misconduct was not sufficiently similar to the stabbing to support the inference that defendant probably harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) He points out that in the earlier incidents defendant had not used a weapon; the incident involving his daughter had occurred 13 years earlier; the victims’ children, unlike his daughter, had not expressed any fear of him; and, unlike his assault of Moore, there had been no escalation of violence against the victim before he stabbed her.
Defendant minimizes the obvious parallels and overstates the degree of similarity needed when other crimes evidence is introduced to prove intent. “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) Other crimes evidence is relevant to the issue of intent because “‘“if a person acts similarly in similar situations, he probably harbors the same intent in each instance” [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent.’” (People v. Gallego (1990) 52 Cal.3d 115, 171, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.)
The California Supreme Court has recently addressed analogous facts. In People v. Whisenhunt (2008) 44 Cal.4th 174 (Whisenhunt), the defendant was also charged with first degree murder and he, too, claimed the death of the victim was an accident. (Id. at p. 190.) To rebut the defense that he never intended to kill his girlfriend’s 19-month-old daughter, the prosecution introduced evidence that he frequently kicked his own two young children. (Id. at p. 189.)
The Supreme Court rejected the defendant’s argument that the trial court abused its discretion by admitting the evidence and explained: “[T]he trial court admitted defendant’s prior acts of child abuse to show intent and absence of accident. Treating intent and absence of accident as distinct and separate bases for admissibility, defendant first contends that evidence of his intent in his prior acts of child abuse was irrelevant to any element of intent required for the charged crimes of first degree premeditated murder and first degree murder by torture. Defendant contends that the evidence he kicked and hit his two children showed neither premeditation, intent to kill, nor intent to torture. But the trial court’s use of ‘intent’ and ‘absence of accident’ merely reflects two ways of describing the same relevant issue, namely, that defendant performed the acts that killed Kesha intentionally rather than accidentally. The prosecution’s burden of proving all the elements of the charged offenses included the threshold showing that the acts that caused Kesha’s death were performed intentionally rather than accidentally, and defendant’s prior acts of violence against other children were relevant to proving this.” (Whisenhunt, supra, 44 Cal.4th at pp. 203-204.)
Similarly, defendant contended the stabbing was accidental. Thus, the prosecution introduced evidence of the two brutal assaults on his girlfriend and his daughter to prove that defendant stabbed his then girlfriend intentionally rather than accidentally. An inference of an intentional stabbing could be drawn from the prior incidents where defendant demonstrated he would assault women and girls in a domestic confrontation. The evidence contradicted his assertion that thrusting a knife into his victim’s stomach was accidental.
Two cases cited by defendant are easily distinguished, and a third supports the admission of the prior crimes evidence. In People v. Deeney (1983) 145 Cal.App.3d 647, the issue posed was not whether the defendant’s conduct was accidental, but whether the victim, an alcoholic, accidentally fell and caused her fatal injuries. In People v. Sam (1969) 71 Cal.2d 194, the prior acts were introduced to show common plan or scheme, not, as here, to prove intent and “no connecting link between the prior and present acts was alleged or could reasonably be inferred.” (Id. at p. 205.) And in People v. Demetrulias (2006) 39 Cal.4th 1, the Supreme Court upheld the admissibility of another crime committed hours after the charged crime because in both cases the defendant claimed he had stabbed an older, solitary man in self-defense. The court wrote: “‘“[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negat[e] accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .”’ [Citation.]” (Id. at p. 16, italics omitted.)
The trial court ruled that the evidence was admissible under both sections 1101, subdivision (b) and 1109. We reject defendant’s argument that section 1109 does not apply because he was not charged with a domestic violence offense and there was no evidence the stabbing was an act of domestic violence. We agree with the Attorney General that defendant’s argument is disingenuous. At the time defendant stabbed the victim, he had been living with her for over a year, the utilities and cable service were in his name, and he paid some of the bills. As a result, the evidence was properly admitted as propensity evidence under the lax requirements of section 1109.
Even if the evidence passed the threshold test of admissibility under sections 1101, subdivision (b) or 1109, defendant insists the evidence should have been excluded under section 352 because it was substantially more prejudicial than probative. The evidence, in fact, was exceedingly probative. The brutal attack on his daughter and the physical abuse of his former girlfriend demonstrated he responded to domestic problems with extreme violence. We reject defendant’s suggestion that thrusting a knife almost nine inches into his victim’s abdomen was less egregious than slapping his girlfriend and pulling her hair, and punching his daughter in the face and stomping on her chest, although we find it troubling to rate the degree of each appalling act of violence. In any event, the prior crimes were no more inflammatory than the stabbing. And they were both highly probative as to defendant’s mental state in stabbing his victim.
We note the trial court carefully weighed the probative value against the prejudicial impact of each crime and excluded one of the three proferred by the prosecution. As to the assaults the court admitted, it noted that the testimony was limited and would not consume an undue amount of time. Yet defendant had the opportunity to confront his accusers and to cross-examine them at trial.
On this record we can find no abuse of discretion and no violation of defendant’s rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution. The jury could properly consider defendant’s propensity as allowed by section 1109, and the jury was properly instructed how to consider the evidence to prove intent. Section 1109 has withstood both due process and equal protection challenges. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310.) The federal cases defendant cites are inapposite because they do not address the admissibility of evidence under section 1109 and both have been superseded by statute. (Michelson v. United States (1948) 335 U.S. 469, 475-476 [93 L.Ed. 168]; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380-1385.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J. SIMS , J.