Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR034986. Mitchell C. Rigby, Judge.
R. Shanti Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Poochigian, J.
Following a jury trial, Alexander Joseph Romero, Sr. (appellant) was found guilty of spousal abuse (Pen. Code, § 273.5, subd. (a)) and the allegation that he had a prior spousal abuse conviction within the past seven years was found true (§ 273.5, subd. (e)). In a bifurcated proceeding, the trial court found true the allegation that appellant was on bail at the time of the offense (§ 12022.1). The trial court sentenced appellant to six years four months in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court prejudicially erred in admitting prior acts of domestic violence as rebuttal evidence. We disagree and affirm.
FACTS
On April 16, 2009, appellant and his wife, Mrs. Romero, were arguing. The verbal altercation escalated to physical violence and appellant grabbed her sweater and pulled her to the ground. Appellant told Mrs. Romero to get up, but she refused and screamed, “Just kill me if you’re going to kill me now, ” and “Go ahead and beat me like you always do. It’s all that you’ve been good at.” Appellant then grabbed Mrs. Romero’s clothing and dragged her to the concrete patio in the back of the house. Mrs. Romero got up and scratched appellant and ripped his shirt. Appellant knocked her to the ground, banged her head on the concrete, and continuously hit her shoulders and arms. He also pulled her hair. Mrs. Romero said she was in a lot of pain and begged appellant to take her to the hospital. He refused, saying she just wanted to put him in prison. Later that night, appellant told Mrs. Romero that if she really wanted to put him in prison, she should get away from him before he “fuck[ed] [her] up even worse.”
The next morning, Mrs. Romero got away and called the police. She then returned to the house and told the children she had called the police. She needed the car keys and told appellant she had called the police. Appellant said, “I don’t want to go to prison, ” and “Let’s all leave.”
Sheriff deputies responding to the call saw a car traveling toward them. Inside the car were a male driver, a female passenger who appeared to be crying, and three small children in the backseat. The deputies stopped the car. Appellant told the deputies he was taking his wife to the doctor because she had a migraine headache. The deputies spoke to Mrs. Romero, who was “crying, very upset.” She had bruises on her left temple, above her left eyebrow, on her left arm, and on the inside of her left knee.
Appellant testified that he and his wife argued on April 16, but there was no physical violence. He denied hitting her that evening, and added “I don’t hit my wife. I do not hit my wife.” According to appellant, Mrs. Romero became very agitated, threw herself on the ground, and in the process banged her head on a chair, causing the red mark on her forehead. The next morning she called the paramedics because she had a migraine.
DISCUSSION
Did the Trial Court Prejudicially Err in Admitting Prior Acts of Domestic Violence in Rebuttal?
Relying on Evidence Code sections 352, 1101, and 1102, appellant contends the trial court erroneously admitted Mrs. Romero’s testimony of specific instances of domestic violence as rebuttal evidence. Respondent argues any error was harmless. We review a trial court’s evidentiary rulings under these code sections for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 335; People v. Gray (2005) 37 Cal.4th 168, 202.)
Procedural History
Prior to trial, the district attorney moved, pursuant to Evidence Code section 1109, to admit eight prior acts of domestic violence committed by appellant. The incidents consisted of two that occurred in 1997, three in 1998, one in 2002, and two in 2006. The trial court ruled that the three incidents which occurred in 2002 and 2006 could be admitted, but found the remainder of the incidents cumulative and potentially prejudicial.
Evidence Code section 1109, subdivision (e) forbids evidence of acts of domestic violence that occurred more than 10 years before the charged offense “unless the court determines that the admission of this evidence is in the interest of justice.”
The prosecutor subsequently presented evidence of the three incidents of domestic violence during his case-in-chief. Specifically, Mrs. Romero testified as follows:
In 2002, during an argument, appellant hit Mrs. Romero on the back and on the head. He also tried to choke her and put a pillow over her face. The incident resulted in bruises on Mrs. Romero’s neck, face, arm, and eye.
In August of 2006, appellant, who was very intoxicated, hit and slapped Mrs. Romero, making her fall to the ground and hit her head on the concrete. Others had to restrain him.
In October of 2006, appellant and Mrs. Romero attended a concert together. The two had been drinking and Mrs. Romero wanted to stay in town rather than return home. When she opened the door of the moving car to get appellant to stop the vehicle, appellant slapped her and ripped her shirt. Mrs. Romero hit back.
Following appellant’s testimony, the district attorney moved to present evidence of the remainder of the uncharged domestic violence incidents. The district attorney claimed appellant’s testimony—“‘I’ve never hit my wife. I don’t ever hit my wife’”—amounted to character evidence, which opened the door to present rebuttal character evidence in the form of past instances of conduct. The trial court granted the motion, stating:
“It appears to me that [appellant] has made statements to the effect of his character beyond the mere fact of responding to a question in terms of, for example, ‘Did he hit his wife?’ My recollection is that the response was to the effect, ‘I didn’t hit my wife, ’ and then, ‘I don’t hit my wife.’ And I appreciate that that’s his perspective. But that is also getting into the character evidence.”
The court found that the probative value of the five prior acts of domestic violence outweighed the prejudice and permitted the district attorney to question Mrs. Romero about them.
Mrs. Romero then described being physically attacked and threatened by appellant on two occasions in 1997 and three occasions in 1998. She testified that, in April of 1998, appellant hit her so many times she thought he almost killed her. And in December of 1998, appellant knocked her down with their infant son in her arms.
Applicable Law and Analysis
Evidence Code section 1101, subdivision (a) provides:
“Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1102 provides:
“In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
In People v. Felix (1999) 70 Cal.App.4th 426, the defendant was convicted of possession of cocaine base after the drug was found on his person. The defense theory inferred that the officers planted the cocaine on the defendant; counsel called several witnesses to testify that the defendant used heroin but never cocaine. On rebuttal, the prosecutor introduced evidence that the defendant previously had pleaded guilty to possessing heroin and cocaine for sale. (Id. at p. 429.) The court in Felix determined that the trial court erred by allowing the prosecution to introduce independent proof of the defendant’s prior conviction under Evidence Code sections 1101 and 1102. (Felix, at pp. 431-432.) It subsequently found harmless error. (Id. at pp. 432-433.)
Appellant contends the trial court here erred similarly by allowing the prosecution to introduce evidence of additional prior acts of domestic violence. As noted previously, Evidence Code section 1101 generally excludes evidence of character or a trait of character to prove a person’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1102 creates an exception to this rule in criminal cases for evidence of the defendant’s character or a trait of his character “in the form of an opinion or … reputation, ” but not specified instances of conduct. (See People v. Wagner (1975) 13 Cal.3d 612, 618-619.) Mrs. Romero’s rebuttal testimony constituted evidence of specific acts.
Appellant contends further that evidence of the prior acts of domestic violence was more prejudicial than probative, in violation of Evidence Code section 352. Evidence Code section 352 allows the trial court “in its discretion” to “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 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.” (People v. Felix (1994) 23 Cal.App.4th 1385, 1396.) “Since ‘“substantial prejudicial effect [is] inherent in such evidence, ”’ uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded. [Citation.]” (People v. Leon (2008) 161 Cal.App.4th 149, 168.)
Respondent acknowledges that there is no statutory authority for eliciting specific instances of conduct from the victim to rebut a defendant’s claim of good character, citing to Evidence Code section 787, which provides, “Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.” But stating “[t]he line between conduct and character can often blur, ” respondent suggests that, perhaps, the prior instances of conduct could have been admitted to refute appellant’s factual claim that he had never hit his wife, citing Evidence Code section 780. That section provides in part that “[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] … [¶] (i) The existence or nonexistence of any fact testified to by him.” In any event, respondent contends any error was harmless.
We need not resolve the question presented. Even assuming evidentiary error, any error would be harmless, whether assessed under the federal (Chapman v. California (1967) 386 U.S. 18, 24) or state (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Felix, supra, 70 Cal.App.4th at p. 432) constitutional standard of review. There was overwhelming evidence of appellant’s guilt. Appellant’s testimony, that his wife’s hysterical behavior caused her injuries, was not credible. Mrs. Romero’s testimony that appellant physically abused her on April 16, 2009, was bolstered by photographic evidence of the injuries and the properly introduced prior instances of domestic violence admissible pursuant to Evidence Code section 1109. The case was not close, and “no grave doubt of appellant’s guilt existed.” (People v. Lankford (1989) 210 Cal.App.3d 227, 241.).
DISPOSITION
The judgment is affirmed.