Opinion
H036372
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. WARREN SON SORN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC954412)
A jury found appellant Warren Son Sorn guilty of one count of inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (e)(1), count one), and one count of child endangerment (Pen. Code, § 273(a), subd. (b), count two). After appellant waived his right to a jury trial on prior conviction and prison prior allegations, the court found true the allegation that within seven years of the current offense of inflicting corporal injury, appellant had a prior conviction for inflicting corporal injury on a spouse or cohabitant in Santa Clara County Superior Court case number CC454699; and prior serious/violent felony convictions for attempted robbery (Pen. Code, §§ 211-212.5) in Santa Clara County Superior Court case number CC094388, and had served a prior prison term for that case.
The court noted that in case number CC094388 there were two separate victims. Further, the court found that the prior prison term for that case was within five years.
Subsequently, following a successful Romero hearing where the court struck one of appellant's prior strike convictions, the court sentenced appellant to state prison for nine years on count one (double the midterm because of the strike prior, plus one year for the prison prior), and 120 days in county jail on count two to be served concurrently. The court awarded appellant 436 actual days credit for time served plus 218 days conduct credits.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497.
Appellant filed a timely notice of appeal.
On appeal, appellant challenges the admission of evidence of prior instances of domestic violence against a different victim and argues that the court erred in calculating his custody credits. We agree with appellant that his custody credits were miscalculated and will modify the judgment accordingly. However, we are not persuaded that there was any error in admitting evidence of the prior instances of domestic violence.
Facts
The victim in this case, Clarinda Eing, refused to testify. However, over defense counsel's objection, a recording of her 911 call was played for the jury.
The victim also refused to testify at the preliminary hearing.
The 911 Recording
On September 5, 2009, Clarinda Eing called the San Jose Emergency dispatch center and reported that her boyfriend hit her and knocked her against a window causing the window to break. She was scared that her boyfriend "might get more crazy" because he hit her son. Ms. Eing said that her boyfriend was drunk and told the dispatcher "he just broke the window just right now." Ms. Eing identified her boyfriend as Warren Sorn.
Testimony at Trial
San Jose Police Officer Vince Troia was dispatched to the address that Ms. Eing gave to the emergency call taker. When Officer Troia arrived, he found Ms. Eing sitting in a chair in the living room; she was holding her baby. Both were crying. Ms. Eing appeared to be upset and frightened. Personnel from an ambulance company were attending to Ms. Eing. Ms. Eing told Officer Troia that appellant had punched her and the baby and kicked her in the head; one of the punches hit her so hard that her head hit the window and it broke. Ms. Eing's voice was "shaky." Officer Troia observed a lump on Ms. Eing's head and an abrasion on her back. Ms. Eing said that appellant was drunk and in their bedroom sleeping.
Officer Trent Tessler went into the bedroom that was located on the northwest side of the home. Appellant was on the bed. The window in the bedroom was broken. After Officer Tessler arrested appellant, he read appellant his Miranda rights. Appellant yelled 10 to 15 times, "Bring that bitch out here. She's not hurt. Bring that bitch out here, motherfucker." Appellant was "verbally aggressive." Appellant used a lot of swear words and demeaning language.
Ly Un, appellant's former live-in girlfriend, testified that she had lived with appellant from 2002 until 2004. In May 2004, she received a telephone call from a male coworker. Appellant became angry; he began screaming at her and pushed her face-first off the bed onto a concrete floor. As a result, Ms. Un hit her head. She had bruises on her face and forehead from this incident, but she did not seek medical attention.
Ms. Un stated that during the course of her relationship with appellant, he physically abused her approximately once a week. The first incident that she could remember occurred about one to one and one-half months after their relationship began. She was arguing with appellant and "snuck out" to go to her cousin's house. At some point, she told appellant where she was because she thought that they had "worked everything out," but she was "fooled." Appellant came to pick her up in his car. Once in the car, appellant began "cussing" at her, telling her she was stupid. As soon as they got to the house in which they were living, appellant punched Ms. Un multiple times on the side of her face. She "just got bumps from [the attack]." She said that she never sought medical attention.
Ms. Un remembered another incident that happened at the mall when appellant pulled her by her hair. This time she did not suffer any injury. Ms. Un recalled that there were other occasions when appellant would kick or punch her while she was on the floor. At no time during the abuse did she ever seek medical attention.
Discussion
1109 Evidence
Before trial the prosecutor moved the court to admit testimony from Ms. Un pursuant to Evidence Code section 1109. Specifically, in a written motion, the prosecutor asked that the court admit evidence that in 2004 appellant had become angry and jealous when Ms. Un received a telephone call from a male coworker and pushed her off the bed onto a concrete floor. When she stood up, appellant pushed her back down. She sustained bruising to her eye and a bump on her forehead. Un told officers that appellant "beat her regularly," on average once a week.
Over defense counsel's objection, the court ruled the evidence admissible under section 1109. The court conducted a section 352 analysis and found that although the injury was different in nature to the one sustained by Ms. Eing, the distinction did not implicate section 352. Rather the similarity between the two incidents was the commission of a violent act against an intimate partner. Further, given that the incident involving Ms. Un was not remote in time and there were "basic similarities" the evidence was not more prejudicial than probative.
All further unspecified statutory references are to the Evidence Code.
Accordingly, Ms. Un was allowed to testify and testified as detailed ante.
Appellant does not challenge the court's determination as it related to the incident where appellant pushed Ms. Un off the bed onto the concrete floor (hereafter the bed incident). However, appellant argues that "despite [his] objections, the trial court also decided that unspecified 'other acts' that went unreported and occurred prior to [the bed incident] were admissible even though the parties and the court did not know what these events included."
Appellant frames the issue as whether a trial court can properly make a 352 determination without knowing the substance of the prior acts. Appellant asks that we conduct denovo review, rather than the standard of review applicable to the admission of evidence, including prior misconduct evidence—abuse of discretion.
In order to address this issue it is necessary to examine in detail the proceedings that occurred before and during trial with respect to the admission of Ms. Un's testimony.
As noted the prosecutor made a written motion seeking the court's permission to allow Ms. Un to testify to the bed incident. The only mention of any other acts in the prosecutor's motion was a sentence that stated that Ms. Un had told officers that appellant "beat her regularly." The prosecutor went on to inform the court that the "defense was generally notified of evidence to be proffered under Evidence Code section 1109 upon receipt of the complaint and the prior conviction was proven at the preliminary examination on March 5, 2010. Counsel for Defendant, Nisreen Baroudi, has also been provided with the police reports relating to Ms. Un."
Defense counsel filed a written response in which counsel argued that the bed incident should be excluded under section 352 because it occurred nearly six years ago and there had been no intervening allegations of domestic violence. Counsel asserted that because Ms. Eing was refusing to testify, the court was not in a position to conduct a section 352 balancing test to determine "whether the facts of the prior case contain both the similarity of kind and similarity of character as required by [People v.] Falsetta [(1999) 21 Cal.4th 903]." Defense counsel stated that the prosecution had yet to provide the defense with any written statements with respect to Ms. Un's expected testimony. However, the prosecution had disclosed in chambers that Ms. Un was expected to testify that what she told the police in 2004 is her account now of what occurred and that the prosecution had provided Ms. Un with a police report "of the incident."
Subsequently, during the hearing on the prosecutor's in limine motion to admit Ms. Un's testimony, the prosecutor told the court that she was seeking "to admit pursuant to Evidence Code Section 1109, the testimony of the prior victim, the investigating officer in the prior case as well as the actual prior conviction."
It appears that appellant pleaded guilty to a misdemeanor violation of Penal Code section 273.5 in 2004 as a result of the bed incident and served a nine month sentence.
Defense counsel offered to stipulate to the prior conviction and objected to any evidence being admitted concerning the prior conviction on section 352 grounds. At this point in the proceedings, the court made no ruling concerning the admission of the prior conviction, but told counsel that the court wanted to talk about the evidence underlying the conviction. The court outlined its understanding of defense counsel's objection to Ms. Un's testimony as being that the evidence was inadmissible under section 352. Defense counsel confirmed that the court was correct. The court went on to ask defense counsel if the factual basis for that argument was that the events were remote in time, because they occurred in 2004 and were dissimilar from the events in this case. Again, defense counsel confirmed that the court was correct. The court summed up counsel's argument as being that "there [was] minimal probative value on account of the remoteness and dissimilarity, and that probative value is outweighed by the prejudice." Again, defense counsel confirmed that the court was correct, but went on to say, "And I do just want to add that especially given the way that this case is proceeding, we don't have a victim that's going to be testifying. Generally 1109, you know, obviously comes in in domestic violence cases, but at the end of the day we are going to mostly be talking to the alleged victim in the 1109 incident as opposed to the empty chair that Ms. Eing is not going to be occupying. So I think that adds to the prejudicial effect in this case, because my client may get convicted simply based on the jury assuming that he's a domestic batterer, because of the old victim[,] having heard absolutely nothing from the alleged victim who's not going to be testifying. [¶] So I think in terms of 352, I think that that supports the defense position that this is -- this testimony in this particular case is highly inflammatory and prejudicial and very likely to cause my client to be possibly convicted simply based on her testimony alone."
The court dismissed this argument and went on to ask counsel to outline the factual basis for the conclusion that the events were dissimilar. Defense counsel explained that the information she had was that in the "1109 case . . . there was some kind of phone call by a male co-worker and my client supposedly got jealous and pushed the alleged victim off of the bed. She later recanted her statement and said that she was at a party and got into a physical fight with a woman -- who my client had cheated on. [¶] So basically in this case we don't have a recanting victim, because we don't know why the alleged victim is refusing to testify. So that's one. [¶] Secondly, we don't know about the facts of this case. We don't know anything about whether jealousy was involved. It's not clear if the prior incident involved any alcohol. The injury to the alleged victim in the 1109 case was, I believe, she had a black eye. The victim, alleged victim in this case suffered -- well, in the pictures, what appears to be a superficial redness on her back. [¶] So I don't think that we have enough information and from what we do have that these cases are in fact similar."
Thereafter, the prosecutor pointed out section 1109 "does not require similarity in the same fashion that 1101(b) does." The prosecutor argued that the "similarity is the fact that these are domestic violence-related events. It is much like 1108 in which -- if a defendant committed a prior 314 [indecent exposure] that might be admissible in a 288 case [lewd act on a child]. [¶] So the fact that we're talking about a black eye versus a bump to the head . . . is not the relevant inquiry, it is the domestic violence aspect of the differences of the cases that make them admissible under 1109." The prosecutor then went on to address defense counsel's remoteness argument and stated "2004 is certainly well within -- it was about five years prior to the incident in question here, and the defendant was in custody for nine months after that case."
Defense counsel clarified that she was not arguing that similarity is "akin to 1101(b), the point is . . . 1109 is dealing with propensity, so of course -- of course the cases say that the offense must [be] similar in character to the underlying offense to be probative on the issue of propensity. So that's why I'm discussing whether or not they're similar and I'm saying how can the Court engage in a proper 352 analysis when we don't necessarily know how similar or dissimilar the events are based on the information that I have at this point. That's why I'm arguing that they're dissimilar."
The court stated that it understood defense counsel's response to be similarity or dissimilarity was a 352 issue. Defense counsel confirmed that the court was correct. Counsel stated, "Everything I argue is under 352." The court held, "[t]he previous incident of domestic violence is admissible under 1109." (Italics added) The court conducted a section 352 balancing as detailed ante.
Thereafter, the court noted that the defense had raised an untimely disclosure issue with respect to Ms. Un's testimony and asked the prosecutor to address the issue. During the discussion of this issue, defense counsel again reiterated that she had been told only that Ms. Un would testify that what she told the police officers in 2004 was correct.
It appears that defense counsel had received a statement from one of the District Attorney's investigators only the day before. In the statement the investigator noted that she had not interviewed Ms. Un. Defense counsel was concerned that because there had been no interview of Ms. Un nobody knew the substance of her testimony.
The court reserved ruling on defense counsel's request for an untimely disclosure jury instruction until after Ms. Un testified.
Shortly thereafter, the prosecutor asked the court for clarification on the ruling concerning the 1109 evidence. The court stated "I have overruled the defendant's objection to the People's evidence concerning the incident with Ms. Un."
It is quite apparent from the foregoing that at this point in time, at least the court and defense counsel, were operating under the assumption that only one incident involving appellant and Ms. Un (the bed incident) was the subject of the 1109 evidence because there is nothing in the record to suggest that they were aware of the substance of any other instances of violence other than the brief statement in the prosecutor's written in limine motion that Ms. Un reported to "officers that the defendant beat her regularly."
Later, during a discussion of whether an expert witness would be allowed to testify concerning intimate partner battering, the prosecutor repeated that she did not "know exactly what Ms. Un [was] going to say . . . how much detail with respect to the multiple incidents that she could be testifying about." The prosecutor went on to say that "Ms. Un informs the officers, and it is in my moving papers, that she suffered from multiple incidents of violence at the hands of the defendant, and so those, large number of incidents were unreported and that is a subject matter that [the expert] can address."
The court summarized the prosecutor's argument as "[the expert]'s testimony would be relevant to explain why Ms. Un failed to report other instances of domestic violence." Defense counsel strenuously objected to the expert testifying. She told the court "this is becoming a trial within the trial, because now this expert witness is going to be testifying as to why a 2004 victim did not report prior incidents." Defense counsel told the court that she did not see the relevance of the expert's testimony, or how the testimony would assist the jury in this case. Defense counsel argued that while it would assist the jury in considering whether "Ms. Un [was] possibly a battered woman" her client had already pleaded to that, "it was from 2004, and so I don't believe that his testimony is probative in terms of how it would assist the jury in this case . . . ." The prosecutor responded that the expert would not be testifying about Ms. Eing or Ms. Un, but rather "generically about domestic violence and the effect . . . o[n] battered women. Ms. Un will be testifying with respect to an act that she reported. She also will be testifying to previously unrelated acts of domestic violence."
Then, the following discussion occurred.
"THE COURT: And do the People intend to put in evidence that she failed to report these other incidents?
[THE PROSECUTOR]: My belief is she will answer the question, like, did you report the prior incidents[,] in the negative, so yes.
THE COURT: So the answer is, yes, the People propose to offer evidence that Ms. Un failed to report other incidents of domestic violence?
[THE PROSECUTOR]: Yes.
THE COURT: Why?
[THE PROSECUTOR]: Because there are additional 1109 acts that I'm seeking to admit in my moving papers.
THE COURT: No. The question is why are you asking her about other incidents of domestic violence? Why are you asking whether she failed to report other incidents of domestic violence?"
The prosecutor explained that she thought defense counsel would ask Ms. Un on cross examination whether she had reported the other acts to the police and the answer would be no. The court interrupted the prosecutor to ask defense counsel if she intended to cross examine Ms. Un as the prosecutor had outlined. Defense counsel said that because she did not know what the prosecutor was going to ask Ms. Un she could not share her trial strategy with the court at that precise moment; she said that she might not ask the witness any questions at all.
After further discussion on expert witness testimony, the court tentatively ruled that until there was evidence presented that either Ms. Eing or Ms. Un had failed to report incidents of domestic violence, the expert witness's testimony was not relevant.
The prosecutor asked the court to clarify the ruling. The prosecutor said that she expected Ms. Un to testify there were prior acts of domestic violence that she did not report. The court told the prosecutor that if Ms. Un so testified, that would be a basis for the prosecutor to ask the court to reconsider the ruling. The court went on to say, "I don't think it's relevant for the People to ask on direct questions which basically impeach the credibility of your own witness, the only explanation you've given for that is to preemptively ask questions first, which will be asked on cross, and I understand that it's not the present intention of the defendant to ask those questions on cross."
The prosecutor responded to the court, "The People were anticipating on asking Ms. Un about her recantation . . . in light of an expectation that that would be cross-examination material. The People have been seeking to introduce the acts of violence she suffered by the defendant that were unreported also and intend to question her on that, and that is in my in limine motions . . . ."
The court moved on to other matters.
Subsequently, on the morning of May 6, during further discussions of in limine motions, the prosecutor asked the court once again to clarify "whether or not Ms. Un is going to be allowed to testify to the additional acts of violence that went unreported." (Italics added.) The court did not rule, but noted "So there's an issue about whether she testifies to those acts and then there's an issue about whether she testifies that they are unreported; right?" The prosecutor confirmed that was the issue.
On the afternoon of May 6, the court resumed jury selection. Once the jury was selected, the court told counsel that after a short recess the court would "go on the record and give . . . some rulings." Thereafter, the court returned to the "remaining in limine issues." After ruling that appellant's prior domestic violence conviction could not come in because it would be more prejudicial than probative, the court stated "I think I have already ruled that Ms. Un's 1109 testimony is coming in. I see that that was on the list of other acts concerning Ms. Un, I have ruled that that comes in . . . ." Later, the court stated that Ms. Un was going to be "allowed to testify about other acts." We can find nothing in the record that indicates the substance of these "other acts."
Later, on the day before Ms. Un was due to testify, the court and counsel returned to the subject of in limine rulings. Defense counsel asked the court for clarification concerning Ms. Un's testimony. Specifically counsel stated, "my understanding of the Court's in limine ruling is for the People not to elicit her recantation or bring up prior unreported incidences. Am I mistaken or am I correct?" Thereafter, the following colloquy occurred.
"THE COURT: Did you meet and confer about in limine rulings?
[DEFENSE COUNSEL]: Yes, we did.
[PROSECUTOR]: Yes. We didn't because -- and please correct me, [defense counsel] -- the Court ruled on Ms. Un's unreported acts.
[DEFENSE COUNSEL]: The acts, but that she never reported them to the police.
THE COURT: Or that she recanted.
[PROSECUTOR]: Yes, and the recantation. I think we're all on the same page, but I recall the Court's -- or my understanding and perhaps I misunderstood the Court -- that the Court would allow the People to ask Ms. Un about the additional acts that went unreported, but that I could not ask her whether or not she reported those to the authorities and any reasons for her lack of reporting.
[DEFENSE COUNSEL]: And as long as I didn't ask or elicit that, for example, on cross . . . .
THE COURT: Okay. Who's got the definitive list of the summary of the in limine rulings?
[DEFENSE COUNSEL]: The list that [the prosecutor] and I presented with the Court earlier.
THE COURT: Okay. The clerk just handed me a three-page document which looks like a combination of People's list and defendant's list.
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: So what portion of this is the definitive statement agreed upon between counsel?
[DEFENSE COUNSEL]: If you look at page 2, Your Honor, it's handwritten notes, that's my writing, number eight there it says defendant moved to preclude prosecution from eliciting
THE COURT: Listen to the question.
[DEFENSE COUNSEL]: Okay.
THE COURT: What portion of this three-page document is the definitive list of the in limine rulings?
[DEFENSE COUNSEL]: There is --I don't believe there is one. It's just -- you asked me --what you asked us both to provide a list with it.
THE COURT: And then I ordered you to meet and confer to the extent that your lists were different so the product is a definitive and exhaustive list agreed to by both counsel. [¶] So what portion of this represents that?
[PROSECUTOR]: We did meet and confer and we are in agreement that both of the lists were accurate, and I believe I misunderstand [defense counsel]'s issues with respect to that issue, because we certainly don't have the same understanding.
THE COURT: And the point of making the list and meeting and conferring was you would be on the same page. [¶] So I guess that's not where we are.
[DEFENSE COUNSEL]: Well -- okay.
[PROSECUTOR]: I think we are on the same page. It was based on a misunderstanding of what your notes meant and not understanding of the ruling is why we indicated to the Court we are on the same page. We agree on everything except we're asking for clarity in terms of prior . . . unreported incidents by the recantation. So if I understand the Court I can't raise it on direct and I can't raise recantation.
THE COURT: Correct. [¶] So my ruling was Ms. Un can testify about the prior incidents, but not the fact that they went unreported.
[DEFENSE COUNSEL]: Okay. Yes."
The court then clarified the ruling. "So we're all clear, Ms. Un will be allowed to testify about incidents of domestic violence between her and defendant, that which is captured in the photographs which were just admitted into evidence and prior incidents. [¶] However, she is not allowed to testify about the fact that prior incidents went unreported or that she at some point recanted, her recanting of any of these incidents." Both the prosecutor and defense counsel confirmed that was their understanding of the court's ruling. The prosecutor went on to inform the court and defense counsel that she was meeting with Ms. Un later in the day and would advise her of the court's in limine ruling. Then, the prosecutor gave an offer of proof as to what Ms. Un would testify. Specifically, she stated, "Ms. Un is going to testify largely consistent with what she told the police, but you have to specifically interview her about the exact facts of that report and it is entirely possible, because in the world of domestic violence my experience is that two minutes before they testify they tell you that this is what happened, and they take the stand and say something completely the opposite. [¶] So my expectation is Ms. Un will testify consistent with what she reported to Sergeant Carley, and that there were additional acts of violence that went unreported. Although I didn't ask about unreported acts, she could say 'I was hit by a baseball bat.' I don't know what she's going to say."
Prior to these discussions, San Jose Police Sergeant Daniel Carley had testified for the prosecution to events as they pertained to the bed incident in 2004 involving appellant and Ms. Un. Photographs taken at the time of the incident showing the extent of Ms. Un's injuries were admitted into evidence.
Defense counsel confirmed that her understanding was that Ms. Un had been provided a copy of the police report in her case. Counsel asked that if Ms. Un was "going to be testifying to anything new or different than what's stated in the police report, I would ask the prosecutor to inform me of that before the witness testifies." The court asked counsel how she would like that to be achieved. Counsel said that the prosecutor could email her. The prosecutor said that would be fine, but represented that she would not be telling Ms. Un what to say or tell her what questions she would ask. Rather, she would be explaining the "process."
Defense counsel reiterated that she needed to have "some [kind of] notice" before Ms. Un took the stand if she was going to say something other than what was in the police report. The court summed up the conversation saying, "if [the prosecutor] becomes aware of such testimony she will be advising you by e-mail. She can't be a guarantor of what the witness will say." Defense counsel continued, "I think that either the investigator or the witness herself needs to tell us tomorrow morning before the jury comes in and before she takes the stand if there's anything different than what's stated in the police report so I have some kind of notice as to what she's going to say." The court asked defense counsel if she was suggesting that Ms. Un take the stand outside the presence of the jury. Defense counsel replied that she thought that the court, or the prosecutor in the presence of the court, should ask Ms. Un if she had reviewed the police report and if there was anything new or different that she would be testifying to on the stand. The prosecutor confirmed that was the basis on which she would be asking questions. The court asked defense counsel if she was asking for something different. Defense counsel replied that all she was asking for was notice; all she had been told was that neither the prosecutor nor her investigator had a statement from Ms. Un. Defense counsel reiterated that she was entitled to a statement by the witness as to what she would be testifying. The court pointed out that defense counsel had been given that. Defense counsel said that she would "go with that for now, but if she says something different and if the People have that, the investigator for the People has interviewed, and everything she knows right now is what she is going to say is stated in the report, all right, then I will go with that." The prosecutor confirmed that she had given defense counsel every statement from Ms. Un and that Ms. Un had not been interviewed so there were no additional statements to provide. The prosecutor cautioned that "as in any case when a witness takes the stand and might testify to something differently, that's just what the reality of what may occur in the trial. We cannot predict what people are saying." Again the prosecutor confirmed that she had provided Ms. Un with the statement she gave to Sergeant Carley. Defense counsel accepted the prosecutor's representations. Thereafter the court moved on to other matters.
When Ms. Un testified not only did she testify to the bed incident, but the prosecution specifically elicited from her details of other unreported acts as indicated ante Defense counsel did not object when the prosecutor asked Ms. Un to detail incidents that she could remember.
We refer to these incidents as the unreported incidents; specifically, the hair pulling incident and the face punching incident.
We do not and need not address appellant's contention that if this court were to find that he has forfeited his arguments on appeal because his attorney failed to object when Ms. Un testified, his counsel was ineffective. The record shows that defense counsel strenuously objected to all the 1109 evidence as being more prejudicial than probative and was told by the court that she was not required to object again to the admission of any testimony that the court had already ruled on.
Although evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts (§ 1101), the Legislature has created exceptions to this rule in cases involving domestic violence (id., § 1109). Section 1109 defines "[d]omestic violence" by reference to Penal Code section 13700, subdivision (b) as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked.' " (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)
Although section 1109 permits evidence of past domestic violence in domestic violence prosecutions, it precludes admission of past acts more than 10 years old "unless the court determines that the admission of this evidence is in the interest of justice." (§ 1109, subd. (e).)
Thus, under section 1109, evidence of a prior act or acts of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence, when the defendant is charged with an offense involving domestic violence. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114 (Rucker).)Nevertheless, "[s]ection 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.)
" 'The prejudice which exclusion of evidence under . . . 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 section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' [Citation.]" (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (Rucker, supra, 126 Cal.App.4th at p. 1119.)
As can be seen from the foregoing discussion regarding the unreported acts evidence, no one, not even the prosecutor was sure how Ms. Un would describe these incidents. Since one of the relevant factors that the court should look at when determining prejudice is whether the prior acts of domestic violence are more inflammatory than the charged conduct, we have to question how a court can engage in that evaluation without knowing at least some basic facts concerning the prior acts.
Appellant argues that the trial court's failure to screen this "highly prejudicial" evidence violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 15 of the California Constitution because it rendered his trial fundamentally unfair. Thus, he contends that per se reversal is required.
It is settled that "[w]hen a section 352 objection is raised, 'the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value.' [Citations.]" (People v. Leonard (1983) 34 Cal.3d 183, 187.) However, as California Supreme Court cases make plain, although the record must affirmatively show that the trial court weighed prejudice against probative value in admitting evidence of prior bad acts (see, e.g., People v. Wright (1985) 39 Cal.3d 576, 582, People v. Green (1980) 27 Cal.3d 1, 25), the trial judge "need not expressly weigh prejudice against probative value-or even expressly state that he [or she] has done so [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 656; People v. Crittenden (1994) 9 Cal.4th 83, 135.) Thus, as the cases reflect, our Supreme Court is willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement. In several cases our Supreme Court found that from the argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and probative value, it could be inferred that the court was aware of the section 352 issue and thus of its duty to weigh probative value against prejudice. (See, e.g., People v. Garceau (1993) 6 Cal.4th 140, 179, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. Clair (1992) 2 Cal.4th 629, 660-661; People v. Edelbacher (1989) 47 Cal.3d 983, 1016-1017; People v. Montiel (1985) 39 Cal.3d 910, 924.)
Given the foregoing discussion on the unreported acts evidence, these guideposts are not sufficiently present in the record of this case. Nevertheless, although we believe that the lower court erred in failing to make a determination that the probative value of the unreported acts evidence was not outweighed by the risk of undue prejudice, we are not convinced any error occurred in admitting this evidence. To put it another way, we are convinced that had the lower court known of the substance of the unreported acts and conducted a section 352 analysis, the court would have admitted that evidence because, as we shall explain, the probative value of the evidence was not outweighed by the risk of prejudice. Further, since the court would not have exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125), we would have upheld that decision on appeal.
As noted, appellant argues that the failure to fulfill the duty to analyze the evidence results in the denial of a fair hearing and a deprivation of fundamental procedural rights requiring per se reversal. Respectfully, we disagree. Appellant was deprived of due process and his trial would have been fundamentally unfair only if the evidence was more prejudicial than probative. Simply put, as our Supreme Court observed in People v. Falsetta, supra, 21 Cal.4th 903, 913, "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." "In order to establish a due process violation, appellant bears a heavy burden of showing that admission of evidence pursuant to section 1109 unduly offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. [Citations.]" (People v. Escobar (2000) 82 Cal.App.4th 1085, 1095.)
We do not accept appellant's premise that when no section 352 analysis is performed, the admission of the 1109 evidence must be unconstitutional requiring per se reversal. Appellant relies on People v. Penoli (1996) 46 Cal.App.4th 298, 305-306 (Penoli)to support this argument. In Penoli, the issue was whether the trial court exercised discretion in the first instance when it had a policy of requiring a defendant, as a condition of probation, to waive credit for time served in a residential treatment program. (Id. at p. 303.) The Penoli trial court refused to apply a relevant sentencing statute out of categorical preference for its own policy analysis. (Id. at p. 306.) That did not happen in this case. Here, the trial court did not refuse to conduct a section 352 analysis; rather it just failed so to do with regard to the uncharged acts evidence. We find Penoli inapposite.
As appellant concedes, evidence of prior instances of domestic violence is relevant and thus admissible if the evidence is not made inadmissible pursuant to section 352. The weighing process under section 352 depends upon the consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
Appellant's principal argument seems to be that the evidence of the attacks on Ms. Un was more egregious than the evidence of his attack on Ms. Eing; that Ms. Un 's testimony portrayed him as a psychologically conniving and enraged monster. We are not persuaded.
Here, the prior hair pulling incident and the face punching incident involving Ms. Un were no more egregious than the incident involving Ms. Eing; in fact, they were less egregious than the bed incident that appellant concedes was properly admitted pursuant to section 352. The similarity of the earlier events to the offense charged in this case was quite remarkable. The pattern of abuse was unmistakable. As appellant acknowledges, in weighing the probative value of the evidence of the bed incident involving Ms. Un, the court had before it Officer Troia's report of his conversation with Ms. Eing in which she stated that there had been between three and 10 prior incidents of violence by appellant in the preceding three years.
Appellant's attempt to argue that the face punching incident involved "psychological trickery" and was therefore more prejudicial than probative is unavailing. Appellant distorts the record by contending that the evidence showed that he attempted to isolate Ms. Un from the safety of others and punched her while in his vehicle in order to heighten her fear. There was absolutely no evidence presented that appellant engaged in any sort of psychological trickery. Although Ms. Un said that she was fooled into thinking she had worked things out with appellant, it is reasonable to infer from her testimony that she called appellant and not that appellant called her in an attempt to manipulate the situation and isolate her.
Further, similarly, with regard to the hair pulling incident, appellant's attempt to argue that the evidence showed that he tried to publicly humiliate Ms. Un by pulling her hair at the mall is unavailing. There was absolutely no evidence presented that anyone observed the incident.
Moreover, in attempting to characterize his attacks on Ms. Un as more egregious than his attack on Ms. Eing, appellant conveniently forgets that his son was struck during the attack on Ms. Eing so much so that Ms. Eing requested an ambulance to check on her son. By contrast Ms. Un testified that she never sought medical treatment for any of appellant's attacks from which we may infer that her injuries did not require medical attention. The evidence of the hair pulling incident and the face punching incident were no more compelling than the evidence of the present incident that included evidence that appellant struck his son and kicked and punched Ms. Eing so hard that her head broke a window.
Since the evidence of the unreported acts was not more prejudicial than probative, we find no error in its admission and thus no due process violation. (Estelle v. McGuire (1991) 502 U.S. 62, 70 [the admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair]; accord, People v. Falsetta, supra, 21 Cal.4th at p. 913.)
Custody Credits
Appellant was taken into custody on September 5, 2009. It appears that he remained in custody continuously through the date of sentencing—November 18, 2010. However, at sentencing the court credited him with only 436 actual days of custody. As appellant notes, and the People concede, the period between September 5, 2009 and November 18, 2010 is 440 days. Accordingly, appellant is entitled to additional days of credit for a total of 660 days rather than 654 days. (Former Pen. Code, § 4019, subds. (b)(2), (c)(2) & (f), as amended by Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50.)
We note that Penal Code section 4019 was amended effective January 25, 2010, to increase the rate at which certain prisoners could earn conduct credits. Although part of appellant's custody occurred during the time the January 25, 2010 amendment was in effect, the benefit of that amendment would not apply to appellant because he has a prior serious/violent felony conviction, which disqualifies him from earning conduct credits at the increased rate. (Former Pen. Code, § 4019, subds. (b)(2), (c)(2) & (f), as amended by Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50.)
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Disposition
The judgment is modified to reflect that appellant has 660 days credit for time served. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified the judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.