Opinion
E049914
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY PHIPPS, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI802620)
OPINION
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mark Anthony Phipps appeals his conviction of one count of criminal threats, one count of assault by means likely to produce great bodily injury (GBI), one count of corporal injury to a spouse, and one count of felon in possession of a firearm. He raises some evidentiary issues, and argues that he should have been awarded an additional day of presentence custody credit. The People argue that defendant's evidentiary claims are unmeritorious, but indicate that the custody credits issue is moot, because defendant has already been awarded the requested credit. For the reasons which follow, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In 2008, defendant and his girlfriend, Paula Bradach, lived together in Hesperia. Bradach has severely impaired vision, and is legally blind. Defendant received a small stipend from the county to act as Bradach's part-time caregiver.
Defendant and Bradach lived next door to Tiffany Durbin and Annette Burns.
On the evening of December 7, 2008, Durbin arrived home from work and saw Bradach bending over a trash can in the front yard. Bradach was crying and her face was bloody. Bradach told Durbin that defendant had beaten her, and she wanted to come inside for a drink of water. Bradach appeared shaken up and scared. Bradach said that she was having difficulty breathing because defendant had kicked her in the ribs. Defendant had choked her and said he was going to kill her a couple of days earlier.
Durbin drove Bradach to the hospital. Burns met them at the hospital, where Bradach again said that defendant had beaten her up and struck her in the head several times.
Bradach was treated at the hospital where she received four stitches on her eye. CT scans and X-ray films showed she had suffered fractures to both eye orbits, one of her sinuses, and her jaw. Bradach told the physician's assistant who treated her that she had been assaulted by her boyfriend, and it was not the first time it had happened. The physician's assistant testified at trial that it was highly unlikely that one blow could cause so many fractures in multiple bones and blacken both eyes.
Deputy Marszalek was dispatched to the hospital to investigate the report of domestic violence. At the hospital, Deputy Marszalek saw Bradach, who was crying and had blood on her face. Bradach told Deputy Marszalek that her boyfriend had inflicted her injuries. Bradach related that on December 5, 2008, she and defendant had gone to a sports bar. Bradach became upset because she thought defendant was paying attention to another woman at the bar. When Bradach questioned defendant about the woman, he became upset in turn. Defendant put his hands around Bradach's neck, choking her. They fell to the floor, breaking a nightstand. Defendant also threatened to kill Bradach. Bradach told Deputy Marszalek that she wanted to "just live through this one."
The next day, Bradach told Marszalek, she had gotten a shotgun out of the closet, cocked it, and pointed it at defendant. Bradach wanted to scare defendant, but he was not frightened; he told Bradach that he knew the gun was not loaded.
On December 7, 2008, Bradach asked defendant to take her back to the bar. Eventually, he agreed. When they returned home, they found that one of their pet dogs had dug a hole under the fence and gotten into the neighbor's yard. Defendant was angry and yelled at Bradach. Bradach told the deputy that defendant had grabbed her by the hair, pushed her into the wall, and repeatedly punched her in the face, calling her names. She tried to leave, but defendant pulled her back and continued to hit her. Eventually, she was able to get to a neighbor for help. Bradach told Deputy Marszalek that she was waiting for defendant to kill her. She said nothing about having fallen on a dog gate.
Deputy Marszalek left the hospital and went to defendant's residence. Defendant was at home. Defendant told the deputy that he had punched Bradach with his fist after she slapped him; he admitted he had hit her once in the eye. During the investigation, Deputy Marszalek recovered a shotgun from the bedroom closet and a .22-caliber rifle from under the bed. There was only one bedroom in the home.
At trial, Bradach changed her story. She said that she and defendant went to a sports bar on December 7, 2008. Bradach had some drinks and became upset because defendant was talking to another woman at the bar. Bradach confronted defendant about the other woman both at the bar and later at home, where she pinched him and brought up the matter again. Bradach blamed the incident on her own insecurities, and said that she had perhaps wanted to start a fight with defendant. Defendant laughed at Bradach; she became so upset that she tried to hit him. Defendant grabbed Bradach by the throat and she "kind of went down to the ground." Bradach claimed that she was intoxicated and had lost her balance. Bradach admitted that defendant "said something [like he] would kill [her]," and that she was scared "a little." Defendant squeezed her throat "to get [her] attention," but not "for a long period of time." Bradach denied telling Deputy Marszalek that she just hoped to live through the choking incident. Instead, she testified that she had tripped over furniture or stepped on the dogs to explain her condition.
Bradach testified that, on the Sunday, December 8, 2008, she and defendant were in the bedroom, arguing about the dog digging under the fence; defendant was also upset because Bradach was drunk. Bradach said that she tried to get away from the confrontation by walking over the bed. She became entangled in the covers and fell. She claimed she did not remember defendant hitting or choking her. Instead, she remembered falling on or tripping over the dog gate.
Defendant's version at trial was that, on a Friday in December 2008, he and Bradach had met friends at the sports bar. Bradach was drinking, and she went on a "rampage" about another woman. When he and Bradach arrived home, she continued the disagreement, and then pinched and hit defendant. Defendant claimed he held Bradach by the neck to block her blows. He stated that she fell in the hallway. Later, Bradach brought out a shotgun and pointed it at defendant. When she slapped him, he took the shotgun away from her and placed it under the couch. He gave it back to her the next day, however.
On Sunday, they went out to the bar again, where they each had some drinks. When they returned home, they had another argument; this time, Bradach was jealous of a barmaid at the bar, and they also argued about the dog. Defendant told Bradach to go get the dog from the neighbor's house. Bradach flew at defendant, enraged, and punched him, bloodying his nose. She left the room, but defendant heard her fall. He found her on the floor and tried to help her up. She went outside, where he saw her fall against his truck. Defendant denied threatening to kill Bradach, and he denied hitting her. Instead, he insisted that she had fallen accidentally.
As a result of the incidents, defendant was charged by information with making criminal threats (count 1, Pen. Code, § 422), assault by means likely to cause GBI (count 2, Pen. Code, § 245, subd. (a)(1)), corporal injury to a spouse or cohabitant (count 3, Pen. Code, § 273.5, subd. (a)), and possession of a firearm by a felon (count 4, Pen. Code, § 12021, subd. (a)(1)). The information alleged a special allegation as to counts 2 (assault by means likely to cause GBI) and 3 (corporal injury to a cohabitant) that defendant had personally inflicted GBI under circumstances involving domestic violence. (Pen. Code, § 12022.7, subd. (e).)
The jury convicted defendant as charged on all counts and found the special allegations true.
The court sentenced defendant to four years on count 3, plus a consecutive term of five years on the enhancement special allegation. The court imposed and stayed a term of one year (one-third the middle term) on count 2, plus a stayed term of five years for the special allegation. The court also imposed consecutive terms of eight months each on count 1 and count 4 (one-third the middle term), for a total aggregate imposed term of 10 years eight months.
Defendant filed a timely notice of appeal.
ANALYSIS
I. The Evidence Was Sufficient to Support a Conviction as a Felon in Possession of a
Firearm
Defendant first argues that the evidence was insufficient to sustain his conviction on count 4, felon in possession of a firearm because there was no evidence to show that defendant had knowledge of the firearm. Defendant claims there was no evidence to show that he knew the shotgun was in the house. The guns found in the house belonged to Bradach's sister. He argues that, according to the evidence, Bradach was the only person who handled the gun. When Bradach brought out the shotgun and pointed it at defendant, he supposedly told her to put it away, and get it out of the house. If defendant possessed the gun at all, it was only momentary for the purpose of disposing of it.
The argument is without merit. While conviction of the offense of felon in possession of a firearm does require that the accused have knowledge of the weapon (In re Daniel G. (2004) 120 Cal.App.4th 824, 831), the evidence here was more than ample to show defendant had such knowledge, and that he had constructive possession of the gun. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1147.)
The guns were kept in the house; the shotgun was kept in the bedroom closet. There was only one bedroom in the house. Even though Bradach attempted, in her testimony, to show that she normally slept in the bedroom and defendant slept on the couch, she acknowledged that they sometimes switched places. In any event, the testimony was sufficient to show that the house, including the sole bedroom, was habitually occupied by both Bradach and defendant. (See People v. Kanos (1971) 14 Cal.App.3d 642, 652 [finding of a sport coat in the hall closet in the apartment where the defendant lived was substantial evidence to show that the coat belonged to the defendant].) Defendant had full access to all the rooms of the house, including access to the bedroom closet. Other testimony showed that defendant was obviously familiar with the gun. When Bradach pointed it at him, he laughed at her because he knew the gun was not loaded. Defendant also testified that he took the gun away from Bradach when she pointed it at him, placed it under the couch, and gave it back to her the next day. Although the evidence showed that defendant and Bradach had discussed getting rid of the guns, there was no evidence that they had taken active steps to do so. Contrary to defendant's contention, the evidence was well more than sufficient to show that he had knowledge and constructive possession of the shotgun. His conviction on count 4 is affirmed.
II. The Trial Court Did Not Err in Admitting Evidence of a Prior Incident of Domestic
Violence
Tiffany Durbin, the next-door neighbor, testified that she found Bradach on December 7, 2008, crying, bloody, and with two black eyes. Durbin took Bradach to the hospital. Durbin was also permitted to testify that she had seen Bradach on another occasion, a few months earlier, with a black eye. Bradach had come to Durbin for help to cover up the bruising with makeup; Bradach did not want her father to see the bruising and get angry at defendant. Bradach told the neighbors, Durbin and Burns, that defendant had given her the black eye. At trial, Bradach claimed that she had injured her eye accidentally, running into the door of defendant's truck.
Defendant urges that the court erred in admitting this evidence. A trial court's determination to admit evidence of prior acts, under Evidence Code section 352, is reviewed for abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) Defendant argues that the court abused its discretion here, because the evidence was highly prejudicial and of only slight probative value.
We disagree. Defendant points out that evidence of remote crimes, or crimes that are dissimilar to the charged crime, or crimes which are more serious than the charged crime, should be excluded as likely to inflame the emotions of the jurors. (See People v. Harris (1998) 60 Cal.App.4th 727, 738-740.) Here, however, the prior act was not remote. It was similar to the charged crime, but it was far less serious than the charged crime. It added some probative value, but the prejudicial value, in light of the horrific facts of the charged offenses, was not great. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [no error under Evid. Code, § 352 where prior acts were not remote and were less serious than the charged crime].)
Defendant contends that the evidence of his guilt was not overwhelming, because both he and Bradach had testified that the injuries were inflicted accidentally. To the contrary, however, the trier of fact may well have viewed the evidence as overwhelming. Bradach had two blackened eyes, she had to have stitches to her eye, the bones around her eye sockets were fractured, as were other bones in her skull, surrounding the maxillary sinus, and the upper mandible (jaw). The treating physician's assistant opined that such severe injuries were unlikely to have been accidentally inflicted. The crucial issue was, as defendant asserts, the credibility of the witnesses, but the jury had ample reason to reject defendant's and Bradach's stories at trial, and instead to place reliance on their statements at the time, as well as on the evidence of the other witnesses, and the medical evidence. There is little likelihood that the outcome would have been different had the trial court ruled differently on the evidentiary issue. The trial court did not abuse its discretion in admitting the evidence; even if the court erred, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant also, in essence, mounts a challenge to the constitutionality of Evidence Code section 2009, which does permit the admission of propensity evidence in domestic violence cases. He recognizes that similar challenges have already been rejected by the California Supreme Court (People v. Falsetta (1999) 21 Cal.4th 903, 917-918) and the Courts of Appeal, including this court. (See, e.g., People v. Price (2004) 120 Cal.App.4th 224, 239-241; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 [Fourth Dist., Div Two]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.)
Here, the trial court properly balanced the appropriate considerations in determining whether to admit the evidence. The evidence was brief, and relatively mild in comparison to the charged offense. It was quite recent, within three or four months, and related to similar, though less egregious, conduct. There was no error, constitutional or otherwise, in the admission of the evidence.
III. Defendant Was Awarded the Additional Conduct Credit He Sought
Defendant's opening brief on appeal requested correction of the credits awarded to him for pretrial custody. He urged that he was entitled to credit for actual days of custody, both for the date of his arrest, and the date of sentencing, so he should have been awarded 50 days of actual custody pretrial credit, rather than 49 days. The People responded that the matter was moot, because the trial court had already corrected the oversight and amended the abstract of judgment. Defendant acknowledges that the correction has already been made. Consequently, we do not address the issue.
DISPOSITION
Substantial evidence showed that defendant had knowledge of the firearm sufficient to support his conviction as a felon in possession of a firearm. The trial court did not err in admitting into evidence a brief and mild reference to a recent prior act of domestic violence. Defendant's contentions otherwise are without merit. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.