Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Super. Ct. Nos. SWF023067, SWF024008, SWF024077, SWF025429, SWM073835, Michael B. Donner, Judge.
NARES, J.
In this domestic violence case, a jury convicted Kevin Dale Powell (Powell) of the following 11 offenses against Lorrie Powell (Lorrie): (1) making criminal threats on September 18, 2007 (count 1: Pen. Code, § 422); (2) spousal battery resulting in traumatic condition on or about December 18 (count 2: § 273.5, subd. (a)); (3) making criminal threats on or about December 20 (count 3: § 422); (4) false imprisonment on or about December 20 (count 4: § 236); (5) stalking on or about December 24 (count 5: § 646.9, subd. (a)); (6) felony vandalism on or about March 25, 2008, causing damage in the amount of $400 or more (count 7: § 594, subd. (b)(1), hereafter § 594(b)(1)); (7) stalking while a restraining order was in place on or about March 25, 2008 (count 8: § 646.9, subd. (b)); (8) spousal battery on or about September 18 (count 9: § 243, subd. (e)(1)); (9) unlawful possession of a firearm on or about December 20 (count 10: § 12021, subd. (g)(2)); (10) misdemeanor contempt of court for violating a no-contact court order on or about March 25, 2008 (count 12: § 166, subd. (a)(4)); and (11) resisting arrest on or about October 11 (count 13: § 148, subd. (a)(1)).
We will refer to Lorrie Powell by her first name for purposes of clarity and ease of reference. No disrespect is intended.
All further date references are to calendar year 2007 unless otherwise specified.
All further statutory references are to the Penal Code unless otherwise specified.
During trial, Powell pleaded guilty to the following two additional counts, resulting in his conviction of a total of 13 counts: (12) felony evading an officer on or about March 25, 2008 (count 6: § 2800.2); and (13) misdemeanor obstruction of a police officer (count 11: § 148, subd. (a)(1)).
At the sentencing hearing, Powell admitted the truth of three out-on-bail enhancement allegations (§ 12022.1, as to counts 4, 5 & 8), and the court then struck two of those allegations. The court sentenced Powell to an aggregate state prison term of 11 years.
On appeal, Powell raises eight contentions: (1) He was denied his state and federal constitutional rights to effective assistance of counsel when his counsel failed to object to, and request a limiting instruction regarding, the testimony of Detective Andrew Dorcas of the Murrieta Police Department concerning domestic violence; (2) the court had a sua sponte duty to give a limiting instruction concerning Detective Dorcas's expert testimony regarding the "cycle of violence, " and its failure to do so was prejudicial error; (3) he was again denied his state and federal constitutional rights to effective assistance of counsel by his counsel's failure to request a limiting instruction with regard to the evidence of uncharged domestic violence the court admitted under Evidence Code section 1109; (4) the court erred by denying his request for an instruction on the defense of necessity, and thereby violated his rights to a trial by jury and to due process under the Fifth, Sixth and Fourteenth Amendments to the federal constitution; (5) the court erred by failing to stay under section 654 his sentence on count 12 (§ 166, subd. (a)(4): contempt of court for violating a no-contact court order on or about March 25, 2008); (6) count 7 (felony vandalism on or about March 25, 2008, causing damage in the amount of $400 or more in violation of § 594(b)(1)) must be reversed because the court violated his Fourteenth Amendment rights to due process and fundamental fairness by admitting under Evidence Code section 1101, subdivision (b) (hereafter referred to as Evidence Code section 1101(b)) evidence of previous uncharged acts of vandalism; (7) count 7 must also be reversed because the court prejudicially failed to give a unanimity instruction as to that count; and (8) the cumulative effect of the errors committed at the trial rendered it fundamentally unfair. We affirm the convictions, but vacate under section 654 the sentence imposed as to count 12 (contempt of court for violating a court order on March 25, 2008, in violation of § 166, subd. (a)(4)), and remand the matter for resentencing consistent with the directions expressed in this opinion.
FACTUAL BACKGROUND
A. The People's Case
In 2007 Powell and Lorrie had been married for about 21 years. At the time of trial in this matter in late 2008, their two children, Zachary and Travis, were 19 and 17 years of age, respectively.
In July of 2007, Powell asked Lorrie to move out of the home they shared, and she did. Lorrie testified she did not file for divorce because she was "afraid of him if [she] did." A few weeks later, Powell called Lorrie and asked her to come home. She stated she moved back into the house for three days and then moved out again because Powell was "physical with [her]" and she "couldn't take it anymore."
After she left for the second time, Lorrie applied for a restraining order because Powell had threatened to kill her on hundreds of occasions, and he was also constantly threatening her parents.
1. September 18 Chick-Fil-A Incident (Counts 1 & 9)
On September 18, the day she applied for the restraining order, Lorrie was working at the Chick-Fil-A restaurant in Murrietta. Powell went into the restaurant, grabbed Lorrie's arm and demanded her car keys. Lorrie gave him the keys.
Powell returned to the restaurant around 8:15 p.m. that same day after making threatening phone calls to Lorrie at work. She walked out of the restaurant to where Powell was sitting in her car. Lorrie did not want to talk to Powell and started to walk away from the car. Powell got out of the car and approached her, screaming in her face to get in the car. He told her he had a gun in the car and threatened to kill her. Powell told her he knew about the restraining order and told her to "call it off" or he would kill her and her parents.
Powell then grabbed Lorrie by the hair and the back of her neck and tried to push her into the passenger side of the car. The general manager of the restaurant and someone else came over to help her. Lorrie was then able to get back inside the restaurant.
The next day, Powell called Lorrie and told her he was "coming to get [her]."
2. October 11 Hemet Courthouse Incident (Count 13)
On October 11, Powell and Lorrie were both present at the Hemet courthouse for a hearing on Lorrie's application for a restraining order. The court granted her a two-year restraining order against Powell.
Immediately after the hearing, Powell approached Lorrie from behind as she stood in the hallway outside the courtroom and said in a threatening manner, "I'll see you at the house later, bitch."
3. December 18-24 Incidents (Counts 2, 3, 4, 5 & 10): Southwest Justice Center, False Imprisonment, and Threatening Phone Calls
On December 18, Powell forced Lorrie to drive separately to his preliminary hearing in Murrietta. Powell, who went to the hearing with their son Zachary, wanted her to tell the prosecutor to drop the charges that had resulted from the Chick-Fil-A restaurant incident in September.
After the hearing, while Powell and Lorrie were still in the courthouse, Powell pushed her and yelled at her off the main hallway. Powell told Lorrie he was going to speak with his attorney, and then he left with Zachary while she waited in the courthouse hallway. As she looked out the window, however, she saw her car being driven away from the courthouse. Powell had asked Zachary to drive the car away.
As Lorrie began walking to the district attorney's office, Powell appeared from the elevators and approached her. He grabbed her hand and squeezed it until she relinquished the cell phone she had in her hand. Powell then broke the phone into two pieces. Lorrie ran from Powell into the district attorney's office and reported what had happened.
After being stranded at the courthouse for an hour and a half, Lorrie called Powell from a pay phone and asked him for a ride home. Powell agreed to pick her up at the courthouse and take her to a Starbuck's to meet Zachary and retrieve her car. However, when she got into Powell's car, he drove very fast in a direction away from the Starbuck's and began screaming profanities at her. He had a copy of the police report about the Chick-Fil-A incident in his hand and was yelling at her that it was all her fault.
Powell drove to a freeway, continued yelling at Lorrie, grabbed her hair and slammed her head against the passenger's side window. When Powell exited the freeway and pulled into a drive-thru fast food restaurant, Lorrie tried to get out of the car, but he grabbed her, fastened her seatbelt and pulled it tight while holding onto her, and told her she was not going anywhere.
Powell drove them away from the drive-thru restaurant, grabbed Lorrie again by the hair, and slammed her head into the window a few times and then into the center console of the car. In reaction to having her head forced down, Lorrie reached up and grabbed the steering wheel. She testified on cross-examination that she did not yank the steering wheel; she was just reaching up, trying to get him to let go of her.
After Lorrie grabbed the steering wheel, Powell slammed on the brakes and pulled the car over. He let go of Lorrie's head, and she sat back in her seat. He then slammed his fist into her face, giving her a black eye and causing her nose to bleed profusely. The police later found blood on the floorboard, dashboard, and center console.
Powell drove them to his house, where he forced Lorrie into the house and into the bed in the master bedroom. Screaming, Powell grabbed his gun case in the bedroom and took out the gun. Crying and still in pain, Lorrie pulled the blankets over her head. A second later, Lorrie heard the trigger click. Powell said, "You stupid bitch, it's not even loaded, " or something to that effect. Powell kept Lorrie at his house for three days against her will. She could not call the police because Powell had broken her cell phone, he had taken the phone out of the bedroom, and the only other phone was in his office.
On December 20, police officers surrounded Powell's house and detained him after someone reported that Lorrie was missing. Deputy Sheriff Mark Buelna of the Riverside County Sheriff's Department testified that Lorrie had facial bruising and swelling when he spoke with her after the arrest. During a search of the house, officers found a gun wrapped in a towel inside the dryer in the laundry room.
On December 23 and 24, Lorrie received several calls on her cell phone from an unknown number. When she called the number back, a man answered and told her that her husband had hired him to kill her. Lorrie testified that although she did not recognize Powell's voice at the time of this call, later during the call he confessed to her that he was the one talking to her. Lorrie recorded this phone call and the tape was played for the jury. A transcript was provided to the jury, but was not admitted as evidence.
Powell was arrested on December 24 at a motel in Redlands.
4. March 25, 2008 Vandalism Incident at Denny's Restaurant and Powell's Flight (Counts 6, 7, 8, 11 & 12)
On March 25, 2008, Lorrie went on a date with another man, and they met at a Denny's restaurant in Murrietta. Lorrie had driven her mother's Toyota Camry to the restaurant. While there, Lorrie received some hang-up calls on her cell phone from numbers she did not recognize.
When she left the restaurant and walked to the car, Lorrie noticed the tires were flat and there were scratches all along both sides of the car. She flagged down police officers and reported the damage to the car. The police took Lorrie home, where she found three long and deep scratches on her front door.
Police officers determined that some of the phone calls Lorrie had received at the restaurant that night had come from a pay phone located at a nearby gas station. At trial, the clerk who was working at the gas station that night identified Powell as a customer who had come to the gas station just before the calls were made and had asked for change to use the pay phone.
The surveillance video from the gas station also showed Powell entering the gas station store and receiving change at around the time of the phone calls Lorrie received at the restaurant that night. The videotape was played for the jury.
5. Uncharged Incidents of Vandalism
As evidence that Powell vandalized Lorrie's car on March 25, 2008, as alleged in count 7, the court admitted evidence of four uncharged acts of vandalism (discussed, post).
B. Defense Case
Powell and Lorrie's son, Travis, testified he believed Lorrie is not an honest person. He had heard his parents argue, but had never seen Powell hit Lorrie. Lorrie returned to the house sometime prior to December 20, and he remembered her being there two or three days prior to that date. During that time, Lorrie did not say anything to him about wanting to be at the house, and she did not ask him to assist her in leaving. It did not appear that she was prevented from leaving in any way; they would go out to eat as a family, and he saw Lorrie use the telephone. After December 20, he saw Lorrie at the house three or four times.
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL (DETECTIVE DORCAS)
Powell first contends he was denied his state and federal constitutional rights to effective assistance of counsel when his counsel failed to object to, and request a limiting instruction regarding, the testimony of Detective Dorcas concerning domestic violence and the so-called "cycle of violence." We conclude that although Powell has met his burden of showing his counsel failed to act in a manner to be expected of a reasonably competent attorney when she failed to object to, and request a limiting instruction regarding, Detective Dorcas's testimony, he has not met his burden of establishing his counsel's omissions were prejudicial.
A. Background
Detective Dorcas testified on behalf of the prosecution that he had been a peace officer for over nine years, and he had received training related to domestic violence and stalking cases. During his career, he had investigated about 1, 500 domestic violence cases and several hundred stalking cases.
The prosecutor asked Detective Dorcas, based on Detective Dorcas's training and experience, whether it was common for victims of domestic abuse to return to their abusers. Defense counsel objected on multiple grounds, stating "[l]acks foundation[, ] [i]mproper opinion[, ] Evidence Code Section 801." The court overruled these objections.
Outside the presence of the jury, during a sidebar conference requested by the defense, Powell's counsel challenged Detective Dorcas's qualifications as an expert on domestic violence and complained that the prosecutor was improperly attempting to bolster Lorrie's credibility through Detective Dorcas's testimony.
1. Ruling
Noting that the prosecutor did not ask Detective Dorcas why victims of domestic abuse return to their abusers, the court ruled that Detective Dorcas was qualified to answer the question of whether it was common for victims of domestic abuse to return to their abusers The court told the prosecutor, however, that if she asked Detective Dorcas why domestic abuse victims return to their abusers, defense counsel's objection "would be absolutely appropriate" because she would then be "getting into a field of psychology [that] is far beyond the expertise of this detective."
The prosecutor agreed and replied she would keep her questioning of Detective Dorcas "very limited to general domestic violence." The court reiterated that "[t]he why question is going to get you in trouble.... [¶]... Because under no circumstances can I see him qualifying as an expert in the psychology of domestic violence victims. He can state what he has observed, based upon his personal experience."
When defense counsel objected to "any hypotheticals that mirror too closely... the facts of this case, " the prosecutor responded, "I'm not intending to ask any hypotheticals or any questions specific to [Lorrie's] actions. Just generally, based on [Detective Dorcas's] experience with domestic violence, because I believe it's outside the common knowledge of most jurors." The court admonished the prosecutor again to "keep away from the why, because you walk right into the psychological component, and that is a field well beyond [Detective Dorcas's] knowledge and experience."
2. Detective Dorcas's testimony
Back in the presence of the jury, Detective Dorcas testified, based on his training and experience, that it is "common for domestic violence victims to go back to their abuser[s], " and he had seen that happen in hundreds of cases. He indicated that in about 75 percent of the cases he investigated, the victims of stalking arising out of domestic violence relationships continued contact with the stalkers.
Detective Dorcas also testified he was familiar with what the prosecutor called the "cycle of violence." The prosecutor then asked him, "generally, what is the cycle of violence?" Without an objection from defense counsel, Detective Dorcas answered:
"There's different phases to it. First phase would be the abuse. It could be sexual, physical or emotional. Next phase would be guilt for─the offender would feel guilty for committing the offense or guilty that he may be caught. Next phase would be the rationalization where they rationalize what they had done, whether they were drunk or the victim caused the abuse. And after that, it would be the normal phase, like the honeymoon phase, where everything's okay, everything's normal. Everything is the way it should be. At that point they are fantasizing of abusing again. And then from that phase, they would start to plan the next abuse."
The prosecutor then asked, "did you use that cycle of violence when you were investigating domestic violence and stalking cases?" Detective Dorcas replied, "Yes, it's pretty consistent."
B. Applicable Legal Principles
1. Ineffective assistance of counsel
Defendants have a constitutional right to the effective assistance of counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335, 339- 340.) The burden is on the defendant to prove he received ineffective assistance of counsel and to do so the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney, and counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 425.)
To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
2. Expert witness testimony
Evidence Code section 720, subdivision (a) provides in part that "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Evidence Code section 801, subdivision (a) "permits the introduction of testimony by a qualified expert when that testimony may 'assist the trier of fact.' " (People v. Brown (2004) 33 Cal.4th 892, 900 (Brown).)
3. Battered women's syndrome and expert witness qualifications
Although the instant case involves evidence of what has been denominated the "cycle of violence" in domestic violence cases, the following principles regarding battered women's syndrome (BWS) are pertinent. BWS "has been defined as 'a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.' " (People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1; Brown, supra, 33 Cal.4th at p. 903.)
Evidence Code section 1107, subdivision (a) specifically authorizes expert testimony on BWS in a criminal action if relevant to prove or disprove a disputed issue, such as the victim's credibility or whether the victim acted reasonably. (Brown, supra, 33 Cal.4th at pp. 895, 903; Humphrey, supra, 13 Cal.4th at pp. 1081-1082, 1088.) "Under subdivision (b) of that section, the foundation for admission is sufficient 'if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness.'" (Humphrey, supra, 13 Cal.4th at p. 1082, fn. omitted, italics added.)
"Evidence Code section 1107 was adopted in 1991, effective January 1, 1992. (Stats. 1991, ch. 812, § 1.)" (People v. Humphrey (1996) 13 Cal.4th at 1073, 1082, fn. 1 (Humphrey).) It currently provides in part: "(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. [¶] (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven. [¶] (c) For purposes of this section, 'abuse' is defined in Section 6203 of the Family Code, and 'domestic violence' is defined in Section 6211 of the Family Code and may include acts defined in Section 242, subdivision (e) of Section 243, Section 262, 273.5, 273.6, 422, or 653m of the Penal Code. [¶] (d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended." (Italics added.)
C. Analysis
Powell acknowledges that Detective Dorcas was "within the scope of his expertise" when he testified that victims returned to their abusers in about 75 percent of the domestic violence and stalking cases he had investigated. He asserts, however, that Detective Dorcas "crossed way over the line" set by the court when he "testified to the underlying psychology of the 'cycle of violence.' " He maintains his trial counsel provided ineffective assistance by (1) failing to object to Detective Dorcas's testimony on the "psychology of domestic abusers"; and (2) failing to request a limiting instruction informing the jurors they were prohibited from using Detective Dorcas's testimony that domestic violence victims often return to their abusers "as evidence of domestic abuse" (italics omitted), thereby "allow[ing] the jurors to use [D]etective Dorcas'[s] objectionable pseudo-psychological testimony as affirmative evidence that [Powell's] actions were consistent with what goes on inside the head of a domestic abuser, and that Lorrie's repeated returns to [Powell were] indicative of the behavior of an abused woman."
We first conclude that Powell has met his burden of showing his counsel failed to act in a manner to be expected of a reasonably competent attorney when she failed to object to the testimony of Detective Dorcas. As already noted, in its sidebar ruling on Detective Dorcas's expertise and the permissible scope of his testimony, the court found the prosecutor had laid a sufficient foundation for Detective Dorcas to answer the question of whether it was common for victims of domestic abuse to return to their abusers. The court, however, repeatedly indicated to the prosecutor that Detective Dorcas was not qualified to testify to the underlying psychology of why domestic abuse victims return to their abusers or about the psychology of abused women or their abusers, and thus he was limited to testifying about what he had observed, based upon his personal experiences and training.
When Detective Dorcas began to testify about what he believed were the various phases of what the prosecutor referred to as the "cycle of violence, " and about the psychology of domestic abusers, he exceeded the permissible scope of his testimony as determined by the court. At that point, a reasonably competent defense attorney would have objected on behalf of Powell that (among other things) Detective Dorcas was not qualified to give such expert testimony, and he had exceeded the permissible scope of his testimony in violation of the court's ruling.
The People's reliance on Brown, supra, 33 Cal.4th 892 and People v. Riggs (2008) 44 Cal.4th 248 (Riggs) for the proposition that "[t]he California Supreme Court has expressly upheld expert testimony about the 'cycle of violence, ' " is unavailing. The question here is not whether the Supreme Court has upheld the admission of such expert testimony, but whether Detective Dorcas's testimony exceeded the permissible scope of his testimony as determined by the court; and, if it did, whether his counsel provided ineffective assistance by failing to object.
The People's reliance on Brown is also misplaced because the expert witness in that case, the program manager of the Antelope Valley Domestic Violence Council, was qualified to give expert opinion testimony on whether domestic violence victims often recent their previous allegations of abuse as part of the particular cycle of violence behavior patterns commonly observed in abusive relationships. (Brown, supra, 33 Cal.4th at pp. 895, 897, 907.) Here, the court determined that Detective Dorcas was not qualified to give such expert testimony, and the People do not challenge that determination on appeal. As Powell points out in his reply brief, "the Attorney General's discussion of the 'relevance' of the evidence concerning 'the cycle of violence'... completely misses the mark."
The People's reliance on Riggs is also misplaced because the expert witness in that case, a social psychologist who specialized in the study of domestic violence, was a qualified expert who gave opinion testimony concerning the psychological characteristics of BWS that might lead a woman in an abusive relationship to follow the demands of her abuser and not try to end the relationship. (Riggs, supra, 44 Cal.4th at p. 262.) As already noted, the court determined that Detective Dorcas was not qualified to give expert testimony about the cycle of violence.
We also conclude Powell has met his burden of showing his counsel failed to act in a manner to be expected of a reasonably competent attorney when she failed to request a limiting instruction regarding the permissible scope of the jury's use of Detective Dorcas's testimony. CALCRIM No. 850 informs jurors that evidence of BWS "is not evidence that the defendant committed any of the crimes charged" and limits them to "consider[ing] this evidence only in deciding whether or not [the victim]'s conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of [her] testimony." In Brown, the Supreme Court noted with approval that "[b]efore permitting the jury to consider [the expert's] testimony, the trial court instructed: 'This evidence is not going to be received and must not be considered by you to prove the occurrence of the act or acts of abuse which form the basis of the crimes charged.' " (Brown, supra, 33 Cal.4th at p. 897.)
Here, similarly, counsel should have requested a limiting instruction under CALCRIM No. 850 or an equivalent instruction to the effect that (1) the jury was not allowed to consider Detective Dorcas's testimony that domestic violence victims often return to their abusers as evidence that Powell committed domestic violence in this case; and (2) the jury should consider this testimony only in deciding whether Lorrie's conduct was not inconsistent with the conduct of someone who has been abused and in evaluating Lorrie's credibility.
We also conclude, however, that Powell has not met his burden of establishing his counsel's omissions were prejudicial. Specifically, we conclude he has not met his burden of showing a reasonable probability he would have obtained a more favorable result but for his counsel's failure to object to Detective Dorcas's testimony regarding the cycle of violence, and his counsel's failure to request a limiting instruction with respect to Detective Dorcas's testimony that domestic violence victims often return to their abusers. (See Strickland, supra, 466 U.S. at p. 694.) The prosecution presented substantial independent evidence from which any rational jury could have found that Lorrie's testimony was truthful regarding Powell's alleged acts of abuse. For example, with regard to Powell's conviction of count 9 (spousal battery at the Chick-Fil-A restaurant on September 18), the prosecution presented the testimony of Juan Valadez, the Chick-Fil-A restaurant manager, who corroborated Lorrie's testimony by stating that, as he was watching through a window from inside the restaurant that night, Powell argued with Lorrie outside in the parking lot and then pulled her by the arm and hair so that she was going backwards. Valadez indicated he then went outside to the parking lot to assist a male customer in "rescu[ing]" Lorrie, but the male customer "was already in between them, " and Lorrie was running back inside the restaurant.
Also, with regard to Powell's conviction of count 2 (spousal battery resulting in traumatic condition on December 18), the prosecution presented independent evidence that corroborated Lorrie's testimony that after Powell pulled the car over after driving them away from the courthouse, he slammed his fist into her face, giving her a black eye and causing her nose to bleed profusely inside the car. Specifically, the prosecutor presented evidence that the police found fresh blood on the passenger-side floorboard carpet and dashboard.
As another example, regarding Powell's convictions of count 3 (making criminal threats on December 20 in violation of § 422) and count 10 (unlawful possession of a firearm on December 20 in violation of § 12021, subd. (g)(2)), the prosecution presented independent evidence that corroborated Lorrie's testimony that Powell used a gun to threaten her after he drove her to his house and forced her to go inside. Specifically, the prosecutor presented evidence that when the police surrounded Powell's house and detained him after someone reported that Lorrie was missing, officers searched Powell's house and found a gun, three magazines and a holster wrapped in a towel inside the dryer in the laundry room.
In sum, we conclude Powell has not, and cannot, meet his burden of showing a reasonable probability he would have obtained a more favorable result but for his counsel's failure to object to Detective Dorcas's testimony and request a limiting instruction.
II. COURT'S FAILURE TO SUA SPONTE GIVE A LIMITING INSTRUCTION
Powell next contends the court "had a sua sponte duty to instruct the jury on the limited use they could make of Detective Dorcas'[s] expert testimony, " and its failure to do so was prejudicial error that "requires reversal of all counts." Specifically, Powell complains that as a result of the court's failure to sua sponte give an instruction on the limited use the jury could make of Detective Dorcas's testimony (discussed, ante), "there was nothing to stop the jurors... from using [D]etective Dorcas'[s] testimony... as affirmative evidence of abuse, or as affirmative evidence that [Powell] was a scheming and controlling man with exactly the sort of mental machinations and relationship with his wife that are consistent with domestic abuse." Powell maintains there is a reasonable probability he would have obtained more favorable results at trial had the court sua sponte given a limiting instruction regarding Detective Dorcas's testimony. We conclude these contentions are unavailing.
Evidence Code section 355 provides that, "[w]hen evidence is admissible... for one purpose and is inadmissible... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Italics added.) "[A]bsent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction." (People v. Macias (1997)16 Cal.4th 739, 746, fn. 3 (Macias), citing Evid. Code, § 355; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316 (Jennings) [in the absence of a request, a trial court generally has "no duty to give a sua sponte instruction limiting the purpose for which evidence may be considered"].)
Here, in claiming the court had a sua sponte duty to give a limiting instruction regarding the jury's use of Detective Dorcas's testimony, Powell acknowledges the testimony was "admissible... for one purpose and [was] inadmissible... for another purpose" within the meaning of Evidence Code section 355. Because it is undisputed Powell did not request such a limiting instruction, we conclude the court did not err in failing to give one. (Evid. Code, § 355; Macias, supra, 16 Cal.4th at p. 746, fn. 3; Jennings, supra, 81 Cal.App.4th at p. 1316.)
In an attempt to avoid the foregoing legal principles, Powell cites People v. Housley (1992) 6 Cal.App.4th 947, which held that a trial court has a sua sponte duty to give a limiting instruction on the use of expert testimony about child sexual abuse accommodation syndrome (CSAAS). (Id. at pp. 958-959.) Powell's reliance on Housley is unavailing, however, because the holding in that case was limited to criminal prosecutions involving CSAAS evidence, which is not involved in the instant case.
Even if we were to conclude the court had a sua sponte duty to give a limiting instruction regarding the use of Detective Dorcas's testimony, we would also conclude any error by the court in failing to give such an instruction was harmless. For reasons discussed, ante, we have already concluded that Powell has not, and cannot, meet his burden of showing a reasonable probability he would have obtained a more favorable result but for his counsel's failure to request a limiting instruction regarding Detective Dorcas's testimony. We conclude for the same reasons that any failure by the court in failing to sua sponte give a limiting instruction was harmless.
III. INEFFECTIVE ASSISTANCE OF COUNSEL (EVID. CODE, § 1109 )
Powell contends he was again denied his state and federal constitutional rights to effective assistance of counsel by his counsel's failure to request a limiting instruction with regard to the evidence of uncharged domestic violence the court admitted under Evidence Code section 1109. We reject this contention.
A. Background
1. Counts 2 and 9
Powell was charged in count 2 with felony spousal battery resulting in traumatic condition on or about December 18 (§ 273.5, subd. (a)), and in count 9 with misdemeanor spousal battery on or about September 18 (§ 243, subd. (e)(1)).
2. Evidence of uncharged acts of domestic violence
Over objection by defense counsel, the court permitted the prosecution to present evidence of various uncharged acts of domestic violence allegedly committed by Powell against Lorrie. Specifically, the prosecutor was permitted to elicit from Lorrie testimony that (1) Powell "torture[d]" anyone who help her in attempting to end her relationship with him; (2) Powell made various threatening phone calls to her after the Chick-Fil-A incident on September 18; (3) Powell called her while she was away on business in late September 2007 and threatened to kill her and her parents; and (4) Powell used a friend's car on October 23 to drive by her apartment and intimidate her.
2. CALCRIM No. 852
As to the two spousal battery counts alleged in counts 2 and 9 (discussed, ante), the court gave the following modified version of CALCRIM No. 852, which instructed the jury regarding its consideration of the propensity evidence of Powell's prior acts of domestic violence (also discussed, ante) that the prosecution presented under Evidence Code section 1109:
"The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically prior threats and assaults throughout the marriage of Lorrie Powell to Kevin Powell. Domestic violence means abuse committed against an adult who is a spouse, former spouse or person with whom the defendant has had a child. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence.
"Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that [decision], also conclude that the defendant was likely to commit spousal battery, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of spousal battery. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
B. Analysis
Citing the last sentence of the bench notes following CALCRIM No. 852, Powell claims his trial counsel was "remiss for failing to request that CALCRIM No. 852 be modified, as per the Bench Notes, to include a sentence that expressly tells the jurors that the evidence of prior domestic violence could not be considered when determining [Powell's] guilt on any of the non-domestic violence counts." In the absence of such an admonishment, he claims "[t]he jurors may have believed that if [he] had a disposition to commit domestic violence, he likely had a propensity to commit violence in general, including vandalism, and that he had precisely the disposition of the sort of bitter angry person that stalks, threatens, falsely imprisons, and commits the other crimes for which he was on trial." We reject these claims.
The final sentence in the bench notes following CALCRIM No. 852 states: "Give the final sentence that begins with 'Do not consider' on request." That sentence in the model CALCRIM No. 852 form provides: "[Do not consider this evidence for any other purpose [except for the limited purpose of _____________
As already noted, the modified version of CALCRIM No. 852 that the court gave clearly informed the jury it "may" conclude from the evidence Powell committed uncharged domestic violence that he was "disposed or inclined to commit domestic violence, and based on that [decision], also conclude that [he] was likely to commit spousal battery, as charged here." (Italics added.) That instruction also informed the jury that the evidence Powell committed uncharged domestic violence was "not sufficient by itself to prove that the defendant is guilty of spousal battery." (Italics added.)
On appeal, we presume the jurors understood and followed the trial court's instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.) Thus, we presume the jury in this case understood and followed the modified version of CALCRIM No. 852 given by the court. That instruction clearly informed the jury that if it decided that Powell committed the uncharged domestic violence, it was permitted (but not required) to conclude that Powell had a propensity to commit domestic violence and, if it decided Powell had such a disposition, it could use that decision as one factor to consider in deciding whether he committed spousal battery as charged in this case. It did not inform the jury it could consider the evidence of uncharged domestic violence as evidence that Powell had a propensity to commit, and did commit, any of the nondomestic violence offenses charged in this case. We thus construe as advisory, not mandatory, the last sentence of the bench notes following CALCRIM No. 852. (See fn. 5, ante.)
Accordingly, we conclude Powell has failed to meet his burden of showing his trial counsel failed to act in a manner to be expected of a reasonably competent attorney by failing to request the suggested modification of CALCRIM No. 852. (See Strickland, supra, 466 U.S. at pp. 687-688; People v. Pope, supra, 23 Cal.3d at p. 425.) In light of our conclusion, we need not address Powell's claim he suffered prejudice as a result of deficient assistance of counsel in this matter.
IV. COURT'S FAILURE TO GIVE A NECESSITY DEFENSE INSTRUCTION
Powell also contends the court prejudicially erred by denying his request for an instruction on the defense of necessity with respect to the charge of spousal battery resulting in traumatic condition "on or about December 20" alleged in count 2, and thereby violated his rights to a trial by jury and to due process under the Fifth, Sixth and Fourteenth Amendments to the federal constitution. We reject these contentions.
A. Background
1. The evidence
Lorrie testified on direct examination that after she got into the car with Powell, and as Powell was driving her away from the courthouse, he put a copy of the police report about the Chick-Fil-A incident in her face and screamed at her that it was all her fault and he was going to kill her. He grabbed Lorrie's hair and slammed her head against the passenger-side window. She also testified that, later, after driving them away from a drive-thru fast food restaurant, Powell grabbed her "by the back of [her] hair, " and "slammed [her] into the window a couple times" and then into the center console of the car. Lorrie stated she reached up in reaction to Powell's forcing her head down, she "got the steering wheel, " and they "ended up on the side of the road." She testified Powell then pulled her head back, let go, and "slammed" his right fist right into her face.
In the interest of convenience and clarity, we again summarize this portion of Lorrie's testimony on direct examination.
On cross-examination by defense counsel, Lorrie stated that after Powell drove away from the drive-thru and was about to turn onto the freeway, he reached over, grabbed her head, and "slammed [her] down into the console." She then testified: "[T]hat's when I─just a natural [reaction], I guess I reached up. And I got a hold [sic] of the steering wheel, and then he slammed on the brakes. He pulled the car over and slammed on the brakes." (Italics added.) Soon thereafter, the following exchange took place between defense counsel and Lorrie:
"[Counsel]: And do you remember grabbing something that felt like a steering wheel?
"[Lorrie]: Yes.
"[Counsel]: And that made the car yank over to one side or the other?
"[Lorrie]: Um, I don't know what it made the car do. I wasn't driving, and my head was down in the middle of the console. I don't know what was happening. I just know that the car stopped.
"[Counsel]: Okay.
"[Lorrie]: He was operating it, not I.
"[Counsel]: Right. So you're not sure what happened after you grabbed the wheel. Do you remember how far you yanked it?
"[Lorrie]: No. I didn't yank it. I was just reaching up. I was trying to get him to let go.
"[Counsel]: Do you remember how far you pulled the wheel?
"[Lorrie]: I didn't pull the wheel. I was just reaching up. I was just reaching out to try and get─
"[Counsel]: Do you remember the object you were holding moving at all?
"[Lorrie]: It must have been the steering wheel.
"[Counsel]: Do you remember that object sort of moving?
"[Lorrie]: Not really. It all happened sort of instantly.
"[Counsel]: And then you remember the car coming to an abrupt stop; is that correct?
"[Lorrie]: Uh-huh, and he was screaming. [¶]...
"[Counsel]: Isn't it true that you actually yanked on the wheel and were screaming at Mr. Powell that you just wanted to just end it all?
"[Lorrie]: No. No...." (Italics added.)
Later during the cross-examination, the following exchange took place between defense counsel and Lorrie:
"[Counsel]: But when you yanked the wheel, the car obviously─I'm sorry─grabbed the wheel, the car obviously moved one way or another?
"[Lorrie]: Yes. I don't know if I did that or Kevin did. I believe it was Kevin.
"[Counsel]: And almost simultaneously, or just immediately after that occurred, your grabbing motion, the car came to a complete stop?
"[Lorrie]: Yeah, he slammed on the brakes." (Italics added.)
Still later during cross-examination, the following exchange took place between defense counsel and Lorrie:
"[Counsel]: And how long was your head down on the center console, if you can remember?
"[Lorrie]: Probably a few seconds.
"[Counsel]: All right. And then you were grabbing at something?
"[Lorrie]: I reached up, correct.
"[Counsel]: And then the car came to an abrupt stop?
"[Lorrie]: Yes.
"[Counsel]: And that's wh[en] you went back [up]; is that correct?
"[Lorrie]: He let go so I sat back up, yes." (Italics added.)
2. Defense request for a necessity defense instruction
With respect to count 2, based on Lorrie's testimony, defense counsel requested an instruction on the defense of necessity, arguing: "[Lorrie] testified at the time that she was struck in the nose she... was either at the time or just briefly prior is my recollection yanking on the steering wheel as they were driving the car onto an on ramp on the freeway. She also testified close in that time, if not simultaneously, Mr. Powell had to slam on the brakes. She remembers the car coming to an abrupt stop. [¶] And I think just based on that, those facts are sufficient to have a necessity defense because it calls into question whether or not she was intentionally hit or if this was merely a reaction or something to do to get an individual away from the steering wheel at the time the car was apparently going onto the freeway."
3. Ruling
The court denied the request for a necessity defense instruction, finding:
"I do recall that testimony very, very clearly. And it's my recollection that the distinction was made that this was a voluntary strike by Mr. Powell. I understand there is an argument to be made as to how that occurred and I expect that argument to be advanced to the jury. But I do not believe that the argument and inference from some of that testimony that has been represented here this morning rises to the level allowing me to give the necessity instruction. I will not give it for the reasons stated."
4. Jury note
During deliberations, the jury sent the court a note (the jury note) asking:
"Count 2 - In the higher charge it does not state as it does in the less[e]r charge that the act must be unlawful. How do we interpret the actions of Mr. Powell if his intent was to get Mrs. Powell off of the wheel (and his actions may have resulted in an injury)?"
In its written response to the jury note, the court (1) directed the jury to strike the words "and unlawfully" from CALCRIM No. 841, the instruction on simple spousal battery (§ 243, subd. (e)(1)); (2) referred the jury to CALCRIM No. 252, the instruction on intent; (3) directed the jury to see CALCRIM No. 3404, the instruction on the defense of accident (§ 195); and (4) directed the jury to review CALCRIM No. 840, the instruction on inflicting spousal injury resulting in traumatic condition (§ 273.5, subd. (a)).
After the jury indicated it was deadlocked on count 2, the court gave a Moore instruction directing the jury to deliberate further as to count 2. The jury deliberated again and ultimately reached a verdict of guilty on count 2.
People v. Moore (2002) 96 Cal.App.4th 1105.
B. Applicable Legal Principles
"[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 1166, 1219.) A trial court need give a requested instruction concerning a defense only if substantial evidence supports the defense. (In re Christian S. (1994) 7 Cal.4th 768, 783.)
A necessity defense is recognized in California. (In re Eichorn (1998) 69 Cal.App.4th 382, 388).) However, its scope "is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct [only] if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile." (People v. Beach (1987) 194 Cal.App.3d 955, 971; distinguished on another point in People v. Neidinger (2006) 40 Cal.4th 67, 76-79.)
"To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [he] violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 (Kearns), italics added.)
An instruction on the affirmative defense of necessity is only required when the defendant meets his burden of proving there is substantial evidence from which a reasonable jury could find each element of the defense. (People v. Salas (2006) 37 Cal.4th 967, 982 (Salas); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165 (Verlinde).) In deciding whether there is substantial evidence, "the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " (Salas, supra, at p. 982.)
C. Analysis
Powell claims the court's denial of his request for a defense of necessity instruction requires reversal of count 2 because Lorrie's testimony raised a factual question as to "whether [he] punched her to stop her in a desperate effort to keep her from crashing the car" after she grabbed the steering wheel.
We reject this claim because Powell has not met, and cannot meet, his burden of proving there is substantial evidence from which a reasonable jury could find at least two of the essential elements of the defense: first, that he hit Lorrie in the face in order to prevent a significant and imminent evil; and second, that he hit her under circumstances in which he did not substantially contribute to the emergency. (See Salas, supra, 37 Cal.4th at p. 982; Verlinde, supra, 100 Cal.App.4th at p. 1165; Kearns, supra, 55 Cal.App.4th at p. 1135.)
No one else was present in the car when Powell hit Lorrie in the face, and no one else witnessed what happened. Powell did not testify at trial, and thus Lorrie's testimony is the only evidence in the record regarding this incident. We conclude there is nothing in Lorrie's testimony from which a reasonable jury could find that Powell hit Lorrie in the face in order to prevent a significant and imminent evil. On direct examination, she testified that after she reached up and "got" the steering wheel after Powell grabbed her hair and slammed her head down into the center console, the car "ended up on the side of the road." She also testified that Powell then pulled her head back and "slammed" his right fist into her face. Thus, her direct examination testimony shows that Powell hit her after the car "ended up on the side of the road."
Lorrie's testimony on cross-examination was consistent with her testimony on direct examination. She testified that "immediately after" she grabbed the steering wheel, Powell slammed on the brakes, the car came to a complete and abrupt stop, and then she was able to sit up. As already noted, her testimony on direct examination was that Powell hit her after she sat back up.
We conclude from the foregoing evidence that a reasonable jury could not find Powell hit Lorrie in the face in order to prevent her from causing the car to crash by turning the steering wheel she had grabbed. The evidence shows Powell hit Lorrie after he slammed on the brakes, after the car came to a complete and abrupt stop on the side of the road, and after she was able to sit up again after he had slammed her head down onto the center console.
We also conclude there is nothing in Lorrie's testimony from which a reasonable jury could find that Powell hit her under circumstances in which he did not substantially contribute to the emergency. On the contrary, all of the evidence shows Powell created the "emergency" by grabbing the hair on the back of Lorrie's head, slamming her head into the passenger-side window a couple of times, and then slamming her face down into the center console, causing her to react by reaching up and grabbing the steering wheel, which she testified she did not yank or pull one way or the other.
As Powell has not met, and cannot meet, his burden of proving there is substantial evidence from which a reasonable jury could find the foregoing two essential elements of a necessity defense, we need not address the issue of whether there is substantial evidence from which a reasonable jury could find the remaining four essential elements.
In his opening brief, Powell also claims the jury note is "proof positive of the prejudice caused by the trial court's refusal to instruct on the necessity defense." (Italics added.) In support of this claim, he asserts that, "[h]ad [the] jury been instructed on the defense of necessity, the record shows that one or more jurors would have likely found that although [he] did punch Lorrie, he did so out of necessity. This is shown by the fact that... the jurors submitted a note during deliberations that unequivocally signaled that some, if not all, of the jurors believed that [Powell] did in fact act out of necessity."
Powell's claim that the jury note is "proof positive" he suffered prejudice as a result of the court's failure to give a necessity defense instruction is unavailing. As discussed, ante, that note asked the court, "How do we interpret the actions of Mr. Powell if his intent was to get Mrs. Powell off of the wheel (and his actions may have resulted in an injury)?" Powell's reliance on the jury note as proof of prejudice is unavailing because we have concluded the court did not err when it denied the defense request for a necessity defense instruction. Because the court did not commit instructional error, we need not, and do not, reach the issue of whether any such error was prejudicial. Accordingly, we need not further address Powell's claim that the jury note is proof positive he suffered prejudice.
For all of the foregoing reasons, we conclude the trial court properly found there was insufficient evidence to support the giving of a necessity defense instruction as to count 2.
V. SECTION 654 (COUNT 12)
Powell next contends the court erred by failing to stay under section 654 his sentence on count 12 (misdemeanor contempt of court for violating a no-contact court order on or about March 25, 2008, in violation of § 166, subd. (a)(4)). He also asserts that if this court concludes that punishment on count 12 should have been stayed under section 654, the restitution fine (§ 1202.4, subd. (b)), parole revocation fine (§ 1202.45), and court security fine (§ 1465.8) "must be recalculated." For reasons we shall discuss, we conclude the court should have stayed under section 654 execution of the sentence it imposed as to count 12.
A. Background
1. Counts 7, 8, and 12
With respect to the hang-up call and the car vandalism incidents at the Denny's restaurant on March 25, 2008, Powell was charged with (among other things) the following three offenses: (1) count 7: felony vandalism causing damage in the amount of $400 or more in violation of section 594(b)(1)); (2) count 8: stalking while a restraining order was in place in violation of section 646.9, subdivision (b)); and (3) count 12: misdemeanor contempt of court for violating a no-contact court order in violation of section 166, subdivision (a)(4).
2. Prosecutor's closing argument as to count 12
During her closing argument, referencing the alleged acts of car vandalism and stalking that were the bases for counts 7 and 8, respectively, the prosecutor argued as follows that the jury should convict Powell of count 12:
"Count 12 is a violation of a court order. The Court lawfully issued a no contact order. That's the order from March 7[, 2008, that we showed you that Judge Walker told Mr. Powell specifically, okay. And it's in the printed minute order to have no contact. And it said absolutely no contact with [Lorrie]. He knew about that order[, b]ecause he was in court at the time.... He had the ability to follow it and he chose not to. He willfully violated that order on March 25th by having contact with her. He called her multiple times and hung up. And we know that he was in the area of her[, t]hat he had contact with her car. That's contact. Especially when he's vandalizing her car. [¶] And unanimity applies here. Meaning that you can find that the phone call violated the no contact order. You can find that the vandalism violated the no contact order. You just have to agree on one of them, and you have to all be unanimous about which one or both of them fits the elements." (Italics added.)
The court admitted into evidence a certified copy of a minute order dated March 7, 2008, ordering Powell to have no contact with Lorrie.
As already noted, the jury convicted Powell of all three counts.
3. Sentencing
At the sentencing hearing, defense counsel argued that section 654 applied to counts 7 and 8 because both charges involved the "same objective, " and "it was all part of the same course of conduct." The prosecutor responded that section 654 did not apply, stating:
"Just briefly, Your Honor, that... our position is not [section] 654. The vandalism is, although a part of the same date, the stalking applied more to the coming to the Denny's, the multiple phone calls that the victim received while at the Denny's. I believe... the defendant's objectives are irrelevant when looking at [section] 654. Instead[, ] we need to look at the separation in time and the different elements of each charge that they should not be [section] 654."
Defense counsel replied that "the defendant's objectives and intent are not irrelevant" and reiterated that, "as to Counts 7 and 8, the felony vandalism as well as the stalking charge were all part of the same course of conduct and part of the same intent."
In its ruling, the court disagreed with defense counsel's argument that section 654 applied to counts 7 and 8. The court stated:
"The stalking commenced with a whole series of phone calls, because as I recall, [Lorrie] was in the company of another man, and they were having a meal and a several-hour conversation, and during that period of time there were annoying phone calls that were made where people wouldn't speak. [T]hat would be activity which could be construed as stalking. Then separated, again, by time, or in this Court's mind, [a] distinct and separate event, because apparently whatever prompted Mr. Powell to make those calls, he decided to punish [Lorrie], and the punishment was scratching the car, and flattening the tires, all [of] which are, in this Court's mind, absolutely of a value exceeding $400, and so I see two completely separate and distinct acts with completely different motivation. [¶] One, to bother, annoy, harass, vex, intimidate and stalk; and the other to punish. And I see them as different events, separate in time, and different activities with a different motivation. And so I would respectfully disagree with you."
As to count 7 (§ 594(b)(1)), the court sentenced Powell to "eight months, which is one third the mid term." As to count 8 (§ 646.9, subd. (b)), the court sentenced Powell to 12 months, which was "one third the mid term." As to count 12 (§ 166, subd. (a)(4)), the court sentenced him to six months in local custody to "run concurrent with the sentence imposed on the felonies."
B. Applicable Legal Principles
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza)) and ensures that the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) If a defendant suffers two convictions and punishment for one is barred by section 654, that section requires that the sentence for one conviction be imposed and that the other be imposed and then stayed. (Deloza, supra, 18 Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.) If there were multiple objectives, punishment may be imposed for each crime even if the objectives were furthered by " 'common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465.) Further, if the evidence discloses the defendant's acts were independent and divisible, then "he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.)
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
C. Analysis
Powell asserts that he "does not take issue with the trial court's analysis of the [section] 654 issue with regard to counts 7 and 8, but submits that the trial court erred by not staying the punishment imposed on count [12] under section 654."
Although he acknowledges his defense counsel did not argue at the time of sentencing that sentence should be stayed as to count 12 under section 654, Powell may raise this claim for the first time on appeal. "A claim that a sentence is unauthorized... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
We conclude the court should have stayed, under section 654, execution of the sentence it imposed as to count 12 because (1) Powell was convicted of that count for violating the no-contact order on March 25, 2008; (2) the factual basis for his count 12 conviction was, as the prosecutor argued to the jury during her closing argument, his prohibited contact with Lorrie on that same date through either his act of vandalizing her car, for which he was convicted of count 7, or the harassing phone call he made to her on that same date, for which he was convicted of count 8; (3) his objective in violating the no-contact order was necessarily the same as his objective in committing whichever offense the jury unanimously found to be Powell's violation of that no-contact order; (4) thus, his predicate offense and the resulting violation of the no-contact order were both part of one indivisible course of conduct; and, therefore, (5) under section 654, the punishment imposed as to count 12 should have been stayed. Accordingly, we vacate the sentence imposed as to count 12 and remand the matter for resentencing, including recalculation of the fines imposed by the court.
VI. EVIDENCE OF UNCHARGED ACTS OF VANDALISM (COUNT 7)
Next, Powell contends that his conviction of count 7 (felony vandalism of Lorrie's car on March 25, 2008, causing damage in the amount of $400 or more in violation of § 594(b)(1)) must be reversed because the court violated his Fourteenth Amendment rights to due process and fundamental fairness by admitting under Evidence Code section 1101(b) evidence of previous uncharged acts of vandalism. Specifically, he claims the evidence of uncharged vandalism was inadmissible under Evidence Code section 1101 because it did not show a common design or plan, identity, or motive for purposes of subdivision (b) of that section and, "[e]ven if the evidence was theoretically admissible under [Evidence Code section 1101(b)], the trial court abused its discretion by not finding it excessively prejudicial under Evidence Code [section] 352." We reject these contentions.
A. Background
Over defense objection, the court permitted three witnesses─Larry Hansen, Juan Valadez, and Jennifer Jones─to testify under Evidence Code sections 1101(b) and 352 regarding four uncharged acts of vandalism. Before the first of these witnesses (Jones) testified, the court gave a limiting instruction informing the jury that any testimony regarding vandalism was admissible only as to count 7.
Jones, the owner of the Chick-Fil-A restaurant, testified that she lent her car to Lorrie after Powell took Lorrie's car. Jones stated that later, as she was getting ready to go to work on October 15, she discovered that all of the tires on her vehicle had been slashed. Jones also testified that Powell later called her to apologize for slashing her tires and to offer to pay for new tires.
Hansen testified that in September 2007 he and his wife assisted Lorrie in finding a place to stay. He stated that on September 30 he found that all four tires on his vehicle had been punctured and were flat. Hansen also testified that Powell had been to his home many times and knew what kind of vehicle he drove.
Juan Valadez, the general manager of the Chick-Fil-A restaurant, testified that in October 2007─after he helped Lorrie move out of her home─he found the two tires on the driver's side of his truck had been slashed. He also testified this was the second time his tires had been slashed. The first incident occurred after he intervened on Lorrie's behalf during the Chick-Fil-A incident (discussed, ante).
B. Applicable Legal Principles
"Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Subdivision (b) of that section "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101(b) provides that nothing in that 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."
In Brown v. Smith (1997) 55 Cal.App.4th 767, 791 (Brown), this court explained that under Evidence Code section 1101(b), "the admissibility of prior act evidence ' "depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the [prior act] to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." ' " (Italics omitted.) We noted that the "policy or rule" referred to is "primarily found in the provisions of Evidence Code section 352 and the weighing of the prejudicial effect of such evidence against its probative value." (Brown, supra, 55 Cal.App.4th at p. 791.)
We also explained in Brown that even where Evidence Code section 1101 does not require exclusion of the prior act evidence, a further inquiry under Evidence Code section 352 is required because such evidence " ' "is so prejudicial that 'its admission requires extremely careful analysis.' " ' " (Brown, supra, 55 Cal.App.4th at p. 791.) We further observed that since substantial prejudicial effect is inherent in such evidence, it is admissible only if it has substantial probative value. "Where the connection between the [prior acts] and the ultimate fact in dispute is not clear, the trial court should exclude the evidence." (Ibid.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence 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."
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.)
We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless Powell demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
C. Analysis
Applying the foregoing principles, we first conclude the evidence showing Powell committed prior acts of vandalism is relevant to prove a material fact other than his criminal disposition because the similarity between the circumstances of the prior acts and the alleged act of vandalizing Lorrie's car on March 25, 2008, by flattening its tires charged in count 7 supports the inference that he committed the vandalism offense charged in count 7 pursuant to the same design or plan he used to commit the uncharged acts of vandalism. " 'The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.' " (Ewoldt, supra, 7 Cal.4th at p. 393.) To be probative of a common design or plan, "evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' " (Id. at p. 402.)
Here, as discussed, ante, Jones, Hansen, and Valadez all testified that the tires on their vehicles were slashed after they provided assistance to Lorrie when she was experiencing difficulties in her relationship with Powell. Particularly probative is Jones's testimony that Powell later called her to apologize for slashing her tires and to offer to pay for new tires. The slashing or flattening of tires is a feature common to both the prior uncharged acts of vandalism and the car vandalism charged in count 7 in this case. Lorrie's testimony shows that the latter act of vandalism occurred in the parking lot outside the Denny's restaurant where she was having dinner with a man she was dating. We conclude the court did not abuse its discretion in finding the evidence of the prior uncharged acts of vandalism was admissible under Evidence Code section 1101(b).
We also conclude the court did not abuse its discretion under Evidence Code section 352 in finding that the probative value of the evidence was not outweighed by its prejudicial effect. As already discussed, the evidence was highly probative, particularly in light of Jones's testimony that Powell called her to apologize for slashing her tires. While the evidence of the uncharged acts of car vandalism was damaging to Powell's defense, for purposes of Evidence Code section 352 "damaging" is not synonymous with "prejudicial." (People v. Karis, supra, 46 Cal.3d at p. 638.)
VII. COURT'S FAILURE TO GIVE A UNANIMITY INSTRUCTION (COUNT 7)
Powell next contends his conviction of count 7 (felony vandalism on or about March 25, 2008, causing damage in the amount of $400 or more in violation of § 594(b)(1)) must also be reversed because the court prejudicially failed to give a unanimity instruction as to that count. We reject this contention.
A. Background
1. Count 7
In count 7 of the second amended information, Powell was charged with committing vandalism on March 25, 2008, causing damage in the amount of "Four Hundred Dollars ($400.00) and more" in violation of section 594(b)(1) (discussed, post).
2. Count 7 jury instructions
As to count 7, the court instructed the jury under the following modified version of CALCRIM No. 2900:
"The defendant is charged in Count 7 with vandalism in violation of Penal Code section 594. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant maliciously damaged, or destroyed real or personal property; [¶] AND [¶] 2. The defendant did not own the property...."
The court then gave the following modified version of CALCRIM No. 2901, which specifically addressed the essential "$400 or more" damage element of the section 594(b)(1) offense charged in count 7:
"If you find the defendant guilty of vandalism in Count 7, you must then decide whether the People have proved that the amount of damage caused by the vandalism was $400 or more. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved." (Italics added.)
3. Unanimity instruction
With respect to counts 4 and 12, the trial court gave the jury the following modified version of CALCRIM No. 3500 on the requirement of juror unanimity regarding the specific act constituting each offense:
"The defendant is charged with False Imprisonment in Count 4 sometime on December 20, 2007. Defendant is charged with a violation of a Court Order in Count 12 sometime on March 25, 2008. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
The court did not give a unanimity instruction with respect to count 7.
4. Count 7 verdict
The count 7 verdict form shows the jury found Powell "guilty of a violation of section 594[(b)(1)], VANDALISM, as alleged on or about March 25, 2008, as charged under count 7 of the second amended information." (Italics added.)
B. Applicable Legal Principles
1. Section 594(b)(1)
Section 594, subdivision (a), which generally defines the crime of vandalism, provides in part: "(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys." (Italics added.)
Section 594(b)(1), which applies when the amount of the damage is $400 or more, provides: "If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment." (Italics added.)
2. Constitutional right to a unanimous jury verdict
The right to a unanimous jury in criminal cases is guaranteed by the California Constitution. (See People v. Russo (2001) 25 Cal.4th 1124, 1132, citing Cal. Const., art. I, § 16 [which expressly states that "in a civil cause three-fourths of the jury may render a verdict, " thereby implying that only a unanimous jury may render a verdict in a criminal cause]; see also People v. Jones (1990) 51 Cal.3d 294, 321 ["the requirement of unanimity in criminal cases is of constitutional origin"], also citing Cal. Const., art. I, § 16).)
"It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citation.] [A unanimity] instruction is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.... [I]t is generally agreed that under such circumstances, a unanimity instruction of some kind is required to ensure the defendant's constitutional right to a unanimous verdict." (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.)
In People v. Russo, supra, 25 Cal.4th at page 1132, the California Supreme Court explained that the jury "must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act."
Thus, "[i]n a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, [a] standard unanimity instruction should be given." (People v. Jones, supra, 51 Cal.3d at pp. 321-322.) Accordingly, in such a case, a trial court must sua sponte give an appropriate unanimity instruction (e.g., CALCRIM No. 3500 or 3501) when the evidence shows more than one act could constitute an element of a charged offense. (See People v. Russo, supra, 25 Cal.4th at p. 1132; People v. Jones, supra, 51 Cal.3d at pp. 321-322.)
C. Analysis
Powell claims the court prejudicially violated his right to due process by failing to include in its unanimity instruction (discussed, ante) a reference to the vandalism offense charged in count 7. Pointing out that the prosecution presented evidence of two acts of vandalism, he claims that "either of them could have been the jury's basis for convicting [him] on count [7], " and "[t]he prosecutor... never elected to proceed on one versus the other act." We reject these claims.
The prosecution did present evidence of two incidents of vandalism that occurred on March 25, 2008. First, Lorrie testified that when she returned to her car after going to a Denny's restaurant on an evening date with another man, she found the tires were flat and there were scratches all along both sides of the car. Because a section 594(b)(1) vandalism offense requires proof of damage in the amount of $400 or more, the prosecution also presented the expert testimony of Detective Dorcas, who opined that the cost of replacing the four tires on the vandalized car was between $400 and $500. Detective Dorcas also opined that the cost of repairing the scratches on the car was more than $1,000. Second, Lorrie also testified that after her car was towed, the police took her home, where she found three long and deep scratches on her front door. Thus, the prosecution presented evidence of car vandalism and home door vandalism.
The record clearly shows the prosecutor elected the act of car vandalism as the basis for the count 7 vandalism charge. As already discussed, count 7 charged Powell with a violation of section 594(b)(1), which required the prosecution to prove beyond a reasonable doubt that the amount of damage caused by the act of vandalism was $400 or more. (§ 594(b)(1).) In his closing argument, the prosecutor specifically argued that Powell was guilty of the felony vandalism offense charged in count 7 because he "[was] the one who vandalized her car, " and "[t]he tires alone would be $400, not to mention the body work to fix the scratches on all four doors on that vehicle." The prosecutor specifically reminded the jury that to find Powell guilty of count 7, it was required to "make a finding that the amount of damage was $400 or more."
It is undisputed that the prosecution presented no evidence regarding the amount of damage done to the front door of Lorrie's residence. Thus, in order to convict Powell of count 7, as it did, the jury necessarily relied on the car vandalism, not the home door vandalism, as the factual basis for its guilty verdict on that count. Based on the court's clear instructions with respect to count 7, the nature of the evidence the prosecution presented at trial as to that count, and the prosecutor's closing argument as to that count, we conclude no rational jury could reasonably rely on the home door vandalism as the factual basis for its conviction of Powell on count 7.
For the foregoing reasons, we conclude no unanimity instruction was required with respect to count 7 as a matter of law, and Powell's contention the court violated his right to due process by failing to give such an instruction as to that count is without merit.
VIII. CUMULATIVE ERROR CLAIM
Last, Powell contends the cumulative effect of the errors committed at the trial rendered it fundamentally unfair. We reject this contention.
A. Applicable Legal Principles
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is entitled to a fair trial, but not a perfect one. (Ibid.)
B. Analysis
Powell has failed to meet his burden of showing the requisite series of trial errors and thus has failed to show any cumulative errors or prejudice. We conclude he has not shown he was denied a fair trial.
DISPOSITION
Powell's convictions are affirmed. The sentence imposed as to count 12 is vacated and the matter remanded for resentencing, including recalcuation of fines imposed by the court, consistent with the directions expressed in this opinion.
WE CONCUR: BENKE, Acting P. J.AARON, J.