Opinion
E051469 Super.Ct.No. SWF027951
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CHRISTOPHER RODRIGUEZ, Defendant and Appellant.
Catherine White, 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, and William A. Wood and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed with directions.
Catherine White, 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, and William A. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Manuel Christopher Rodriguez appeals from his conviction of stalking (Pen. Code, § 646.9; count 2) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3) with associated enhancement allegations. Defendant contends (1) the trial court violated his rights to due process and a fair trial by allowing the jury to rely on prejudicial other-crimes evidence under Evidence Code section 1109 as to the stalking charge, because stalking is not a crime involving domestic violence; (2) the trial court violated his constitutional rights by admitting evidence of prior acts of domestic violence and in instructing the jury it could use that evidence to infer guilt even if it was proven only by a preponderance of the evidence; and (3) the evidence was insufficient to establish that he possessed a usable quantity of methamphetamine. We find no reversible error; however, we note that a clerical error in the abstract of judgment requires correction.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant and Jane Doe 1 started dating in 1999 and got married in 2004. Their relationship was stormy, and they broke up and reunited many times.
A. Evidence of Current Charges
In February 2009, Doe 1 found defendant's methamphetamine pipe, and she told him the relationship was "really over." Defendant became angry. He continued to contact Doe 1 by telephone calls, text messages, and visits. He said he was sorry and he loved her, and he asked for another chance. Doe 1 changed the locks to her home.
On February 8, 2009, Doe 1 found defendant in her bedroom hiding under the pillows. She was scared and started yelling, and she told him to get out of the house. Defendant said he wanted to talk, and he closed the bedroom door. They argued, and Doe 1 tried to leave, but defendant would not let her out. Defendant picked up a metal pole, and Doe 1 felt threatened. He jumped on top of her and straddled her while she struggled and yelled for him to get off. He covered her mouth and nose with both hands so she could not breathe.
Doe 1's roommate, Desiree Flores, heard the commotion and kicked the bedroom door in. Flores saw defendant on top of Doe 1 holding a pillow over her face. Flores tried to pull defendant off, and defendant turned around and came toward Flores. Flores ran to another room and called the police. Defendant fled. Doe 1 told the responding officer that it felt like she was going to pass out when defendant was covering her mouth. At trial, however, Doe 1 testified she did not recall whether defendant had covered both her mouth and nose.
In the reporter's transcript, Desiree Flores was inadvertently referred to as Jane Doe 2.
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The next night, February 9, 2009, Flores awakened and saw defendant going through Doe 1's purse near the couch. She told him he was not supposed to be there, and he fled. Flores called the police. Doe 1 testified that money was missing from her purse.
On February 10, 2009, defendant texted Doe 1 more than 50 times. He came to her home and tried to force his way in. He told her he knew she was seeing another man and that he was going to kill them both. Doe 1 was afraid.
On February 11, 2009, defendant was found hiding in a neighbor's garage and was arrested. During a search incident to the arrest, defendant said he had methamphetamine in his pocket. Lab tests confirmed that he possessed .09 grams of methamphetamine. He also had hypodermic needles and a glass pipe in a bag.
B. Prior Crimes Evidence
1. Crimes Involving Doe 1
In January 2006, defendant had just been released from prison, and he and Doe 1 argued. He started to hit her, so she hit him back. He then head butted her so hard she bled. She spent three or four months in a battered women's shelter, and she had bruising to her nose and eyes that lasted three weeks. Doe 1 obtained a restraining order against defendant.
Defendant was incarcerated as a result of the incident, but was released in March 2006, and he and Doe 1 got back together. In December 2006, defendant was returned to prison because of his contact with Doe 1 and their children.
Defendant was released from prison in October 2007, and he and Doe 1 resumed their relationship. However, defendant started using drugs, and Doe 1 kicked him out. He was angry and started calling her and texting her 10 times a day, "trying to get [her] back." Doe 1 contacted the police about defendant's conduct.
On July 18, 2008, defendant came to Doe 1's home and pleaded for her to talk to him. She refused to open the door but spoke to him through a window. After she walked away, defendant "came flying in" through the window, cutting himself in the process. Doe 1 was scared and did not know what he would do next; she called the police.
On July 26, 2008, Doe 1 reported to the police that defendant had been telephoning her and sending her text messages. In one call, he told her he was not "going down without a fight." She told the police she was afraid defendant would break into her house and kill her. At trial, however, she denied telling the police that.
2. Crimes Involving Doe 2
Jane Doe 2, who was 31 years old at the time of trial, had dated defendant when she was 15 or 16 years old. After she ended the relationship, he continued to show up at her house and sometimes hid in her bedroom. He told her how much he loved her. One time, she returned home and found that all of her clothes had been taken from her closet and moved to an empty apartment next door. Another time, defendant accused her of seeing other people and threatened that if he could not have her, no one else could. On one occasion, defendant dragged her by the hair down the sidewalk and head butted her in the face. He threatened to take her child away, and he continued to harass her until he was arrested.
C. Defense Evidence
Defendant testified in his own behalf. He admitted he had pleaded guilty to a charge of criminal threats in 1996 as a result of his conduct with Doe 2. He was released from prison in 1997 but then committed a robbery in 1998, to which he pleaded guilty, and he served another 13 months in prison. He started dating Doe 1 in 2000 but was then incarcerated for three years. Upon his release, he resumed his relationship with Doe 1. Four months later, he violated his parole and was returned to custody.
Defendant admitted he and Doe 1 had argued in January 2006, and he slapped her, but he claimed it was she who had head butted him. He pleaded guilty to misdemeanor domestic violence to avoid a felony charge. He violated his parole and served another 10 months.
Defendant denied jumping through Doe 1's window in July 2008. He testified the window had broken when he and Doe 1 were trying to open it. He denied making any threatening telephone calls.
Defendant claimed Doe 1 had kicked him out on February 8, 2009, because he was not working, and Doe 1 was jealous. He went back to the apartment that night because he still lived there. He climbed on the bed to sleep, and Doe 1 awakened him by striking him with a pole; she hit him with the pole, and he took it away from her. He denied covering her face.
He testified a friend had let him into the apartment the next night, and he was asleep on the couch when Flores saw him and started yelling. He denied taking money from Doe 1's purse.
He went to the apartment on February 10, 2009, to get clothes and because he wanted to get back together with Doe 1. He had threatened to kill himself, not Doe 1.
He denied possessing methamphetamine the night of his arrest. He claimed the baggie in his pocket was merely a wrapper he did not want to leave lying around.
D. Verdicts and Sentencing
The jury found defendant guilty of stalking (§ 646.9) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) but not guilty of an additional charge of criminal threats (§ 422). In bifurcated proceedings, the trial court found true two prior prison term convictions (§ 667.5, subd. (b)) and two prior serious felonies (§ 667, subds. (c) & (e)).
The trial court sentenced defendant to 52 years to life.
III. DISCUSSION
Defendant contends the trial court violated his rights to due process and a fair trial by allowing the jury to rely on prejudicial other-crimes evidence under Evidence Code section 1109 in connection with the stalking count, because stalking is not a crime of domestic violence and the other-crimes evidence should have been inadmissible as to that count.
1. Forfeiture
The People contend defendant has forfeited his challenges because he failed to assert them below. (Evid. Code, § 353; People v. Ogle (2010) 185 Cal.App.4th 1138, 1142.) Because the People have analyzed the issue on the merits, and to forestall any claim of ineffective assistance of counsel, we will reach the merits of the issue despite any forfeiture. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1146, fn. 11.)
2. Analysis
With certain exceptions, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a)(1).)
Defendant contends that stalking is not a crime of domestic violence for purposes of Evidence Code section 1109, and evidence that was admissible as to the count of criminal threats was therefore not admissible as to the count of stalking. However, in People v. Dallas (2008) 165 Cal.App.4th 940, 958 (Dallas) [Fourth Dist., Div. Two], this court held it was not error to allow the jury to consider evidence of the defendant's prior acts of child abuse as to all counts, including a count that did not fit within the statutory definition of domestic violence. We explained: "In Evidence Code section 1109, the Legislature specifically referred to 'a criminal action.' (Italics added.) An 'action' embraces all of the counts (and other allegations) charged. If the Legislature had wanted to make the evidence admissible only in connection with a particular count, it could have said so. In fact, it said just the opposite." (Ibid.) Although defendant argues that Dallas was wrongly decided, we do not find his arguments persuasive, and we decline to reconsider our decision in that case.
Defendant further argues that stalking was not a crime involving domestic violence within the meaning of Evidence Code section 1109, and the prior-crimes evidence was therefore inadmissible as to that count. Because, as we have concluded above, the challenged evidence was admissible as to all counts (Dallas, supra, 165 Cal.App.4th at p. 958), we need not further consider defendant's argument.
B. Evidence of Prior Acts of Domestic Violence
Defendant contends the trial court violated his constitutional rights by admitting evidence of prior acts of domestic violence and permitting the jury to use that evidence to infer guilt even though it was proven only by a preponderance of the evidence.
Defendant acknowledges that our Supreme Court has rejected a claim virtually identical to his in the context of the closely analogous Evidence Code section 1108 (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta)) and that numerous Courts of Appeal, including this court (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029 [Fourth Dist., Div. Two]; see also People v. Cabrera (2007) 152 Cal.App.4th 695, 704 & cases collected) have found the Falsetta court's reasoning applicable to Evidence Code section 1109. Defendant raises his challenge to preserve it for further review.
Defendant argues that Falsetta, and by extension, its progeny, were wrongly decided. We reject his arguments. Evidence Code section 1109 was modeled on Evidence Code section 1108, and the Supreme Court's holding in Falsetta is binding on this court. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1331; see also People v. Loy (2011) 52 Cal.4th 46, 72 (Loy), stating that cases arising under Evidence Code sections 1108 and 1109 are "different but functionally identical situations"].) Moreover, defendant has provided no persuasive reason for us to reconsider the issue, even if we were free to do so.
C. Jury Instructions
Defendant contends the trial court erred in instructing the jury under CALCRIM No. 852 that his criminal disposition need be proved only by a preponderance of the evidence and, if proved, the jury could rely on criminal disposition to find him guilty of stalking in count 2. Defendant argues those instructions violated his due process rights by permitting the jury to infer guilt based on a finding of criminal disposition and by lessening the prosecutor's burden of proof.
1. Additional Background
The trial court instructed the jury that the prosecution had to prove prior acts only by a preponderance of the evidence. The trial court then instructed the jury with CALCRIM No. 852—that if it found the prior acts had been proven by a preponderance of the evidence, it could "conclude from that evidence that the defendant was disposed or inclined to commit the domestic violence . . . ." Once the jury made that inference of criminal disposition, it could then "conclude that the defendant was likely to commit and did commit the offenses charged in Counts 1 and 2."
2. Analysis
The Due Process Clause of the Fifth Amendment requires the prosecutor to prove all of the elements of a crime beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) The Sixth Amendment requires that the jury make such determination. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) Jury instructions violate those principles if "there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof" less than a reasonable doubt." (Victor v. Nebraska (1994) 511 U.S. 1, 6.)
In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), our Supreme Court addressed CALJIC No. 2.50.01, under which the jury was instructed as to the proper use of evidence of prior sexual offenses admitted under Evidence Code section 1108. (Reliford, supra, at p. 1012.) Like CALCRIM No. 852, the instruction informed the jury that if it found, by a preponderance of the evidence, that the defendant had committed a prior offense, it could infer that the defendant had a disposition to commit similar offenses, including the charged offense. The Supreme Court held that the instruction correctly stated the law, and the inferences it permitted were reasonable and legitimate. (Reliford, supra, at pp. 1012-1013.)
Our Supreme Court has recently reaffirmed its holding in Reliford. (Loy, supra, 52 Cal.4th at pp. 72-76.) It is inconceivable that our Supreme Court would reach any different conclusion with respect to CALCRIM No. 852. We therefore reject defendant's challenge.
D. Sufficiency of Evidence
Defendant contends the evidence was insufficient to establish that he possessed a usable quantity of methamphetamine.
1. Standard of Review
When a defendant challenges the sufficiency of the evidence to support his conviction, "'[w]e examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "[we] presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]'" (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
2. Additional Background
Defendant was found in possession of .09 grams of methamphetamine. Deputy Christopher Johnson testified as an expert concerning methamphetamine possession. He testified that methamphetamine can be "snorted," injected, ingested orally, or smoked. When asked if the amount of methamphetamine found on defendant was "sufficient for him to either heat it up, put it in the syringe or put it in the pipe," Deputy Johnson replied, "Yes. Anything that can be manipulated can be used to get some type of inhalation of the drug." He further testified that the "amount that is sufficient just to inhale, injected whatever the use is going to be," is no different than "what amount would be necessary to get somebody high," and "[n]o matter if it is a minute amount or if it is a large amount," "[a]ny person can get high off of a legal [sic] substance or have an effect of it," because "[i]t doesn't matter if it is a minor speck or over three grams or an ounce." In his opinion, ".09 grams . . . is still an efficient [sic] amount to put it in a pipe and smoke it."
The jury was instructed with CALCRIM NO. 2304 as follows: "A useable amount was a us[e]able quantity that's enough to be used by someone as a controlled substance. Useless traces are not useable amounts. On the other hand, a useable amount does not have to be enough, in either amount or strength, to [a]ffect the user."
3. Analysis
One element of the crime of possession of methamphetamine is that the quantity was sufficient to be "'usable for consumption or sale.'" (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) A mere trace or residue is not a usable quantity. (People v. Leal (1966) 64 Cal.2d 504, 512 (Leal).) The court in Leal held that "'possession of a minute crystalline residue of narcotic not intended for consumption or sale and useless for either of these purposes is insufficient evidence to sustain a conviction for known possession of a narcotic.' [Citation.]" (Id. at p. 510.) In People v. Rubacalba (1993) 6 Cal.4th 62, the court held that the "usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used." (Id. at p. 66, italics added.)
"Whether a defendant who possesses only minute traces of narcotics residue creates . . . potentiality [for future use or sale] is purely a question of fact which the prosecution must prove." (Leal, supra, 64 Cal.2d at p. 512.) Here, the unequivocal import of Deputy Johnson's testimony was that .09 grams of methamphetamine was a usable quantity. His testimony established that such amount of methamphetamine could be used in a pipe or needle and was thus not merely a residue or trace. (See People v. Rubacalba, supra, 6 Cal.4th at p. 66.) We conclude substantial evidence supports defendant's conviction for possession of methamphetamine.
E. Correction to Abstract of Judgment
We note the abstract of judgment does not reflect that defendant was sentenced under the "Three Strikes" law. On our own motion, we will therefore order the issuance of a new abstract of judgment reflecting that defendant was sentenced under section 667, subdivisions (b) through (i), or section 1170.12.
IV. DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a new abstract of judgment reflecting that defendant was sentenced under section 667, subdivisions (b) through (i), or section 1170.12, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.