Opinion
H043483
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSUE DAVID TEJADA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B1473471)
Defendant Josue David Tejada was convicted by jury in this domestic violence case of one count of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); two counts of attempting to intimidate a witness (id., § 136.1, subd. (b)(1)); and three misdemeanor counts of violating a protective order (id., § 166, subd. (c)(1)).
On appeal, defendant contends the trial court erred when it admitted evidence regarding two prior uncharged incidents of domestic violence pursuant to Evidence Code section 1109 (all undesignated statutory references are to the Evidence Code). He argues the court erred in admitting evidence regarding the first incident because it did not meet the statutory definition of domestic violence abuse. He contends the court abused its discretion when it admitted evidence of the second incident because its prejudicial nature outweighed any minimal probative value and therefore should have been excluded under section 352. He argues "[t]hese two errors collectively" were prejudicial and it is probable he would have received a better result if the trial court had not erroneously admitted the evidence of the prior acts of domestic violence. He also argues these errors violated his Fourteenth Amendment due process rights. We will reject defendant's contentions and affirm the judgment.
FACTS
I. Prosecution's Case
A. Victim's Testimony
Defendant and R.W. (victim) dated for about a year and half and broke up in May 2013. They lived together for a "couple [of] months" toward the end of their relationship. After they broke up, victim tried to "stay friends" with defendant.
On June 25, 2014—more than a year after they broke up—victim went to a bar with a large group to celebrate a friend's birthday and invited defendant to join them. Defendant drove victim and some of her friends to the bar. Defendant and victim remained at the bar for five or six hours.
Unless otherwise stated, all date references are to 2014.
That night, victim drank beer and shots of Fireball whiskey. She did not know how much beer she drank, since they "ordered a bunch of pitchers" for the group. Victim took part in the activities at the bar, which included volleyball, darts, pool, and karaoke. Defendant and victim did not interact much while at the bar. Victim, a waitress, was one of the first in her group to leave, since she had to work the next day. Defendant offered her a ride home.
On cross examination, defendant challenged victim's credibility with evidence that she had been inconsistent in describing how much she had to drink that night in her statements to the police and at the preliminary hearing.
As defendant drove victim home, they started arguing. Defendant questioned victim about her friends and accused her of flirting with one of the men in the group. At a stoplight, defendant tried to kiss her, and she told him to stop. He then asked her to go to a hotel with him, which she declined. Defendant started driving "[r]eally fast and crazy" and yelling at her. Victim felt unsafe and asked to get out of the car; defendant said "no." At one point, he slapped her while he was driving. Victim yelled at him but did not push or otherwise get physical with him.
Defendant pulled over in a parking lot in a commercial area. Victim got out of the car and started running. Defendant caught her and slapped her "as hard as he [could] over and over and over" and said, " 'I hate you bitch, you fucking whore. This is what you deserve.' " Defendant tripped her and she fell to the ground. Defendant continued slapping her and kicked her while she was on the ground. He also threatened to kill her. Victim said defendant "smacked" her in the face until she "went unconscious"; when she awoke, two men were calling the police for her.
B. Testimony of A.P.
A.P. had left his car in the parking lot where defendant stopped. When A.P.'s friend dropped him off at his car, A.P. noticed defendant's car parked nearby. A.P. saw victim seated in the passenger seat and defendant standing outside the car on the passenger side. Victim yelled to A.P. through the open driver's side window and asked if he could take her home. She sounded panicked and scared.
A.P. noticed that defendant and victim had been drinking and asked whether they needed help to get home safely. Victim jumped out of defendant's car, ran to A.P.'s car, and sat in the front passenger seat. Defendant walked up to A.P. and asked whether he was taking victim home. When A.P. offered to help them figure out how to get home safely, defendant said, " 'You better not drive anywhere. This is my hood. Do you know who VMV is?' " A.P. knew "VMV" meant Varrio Mountain View—a violent Norteño gang in Mountain View. A.P. felt intimidated and nervous to be involved with a VMV member. He told defendant he knew what VMV is. As A.P. sat down in the driver's seat of his car, defendant stood by the open car door and leaned in to intimidate A.P. further.
Victim cried "hysterically" and tried to call her father. Defendant said he knew "everybody in Mountain View," pulled out his phone, and took several photographs of A.P.'s car and license plate. Meanwhile, A.P. sent a text message to his friend, asking him to come back and to call 911. Defendant then said he had a picture of A.P.'s car and threatened that if A.P. drove off, "this picture will be sent out to people."
Defendant and victim started to argue with A.P. seated between them. Victim said defendant had bashed her head into the ground and tried to show A.P. that her head was bleeding. Defendant said there was nothing there, claimed victim scratched his face first, and tried to show A.P. his scratches. When A.P. said he did not want to get involved, defendant told him to get victim out of his car. When A.P. refused, defendant called victim a " 'stupid bitch' " and ordered her out of the car. Defendant spent two or three minutes trying to get victim out of the car. Victim cried the entire time and said she would not go with defendant.
A.P.'s friend arrived. When he realized A.P.'s friend was there defendant got in his car and drove off. The police arrived right after defendant left.
C. Testimony of Officer Low
Mountain View Police Officer Thomas Low and other officers responded to the 911 call. Officer Low arrived at the parking lot where A.P.'s car was located around 12:45 a.m. on June 26. Victim was crying and shaking and the officer observed fresh injuries to her face. Victim said her boyfriend had beaten her up: he punched her in the face, kicked her in the ribs, and slammed her head into the concrete multiple times.
As Officer Low interviewed victim, defendant called her. Defendant said he was sorry and offered to come back and get her. Officer Low instructed victim to tell defendant to return to the parking lot. Officer Low saw defendant's car approach, then turn around and drive away after defendant saw police cars in the parking lot. The officers followed defendant and arrested him a few blocks away.
Officer Low returned to the parking lot and interviewed A.P. and his friend. The officer interviewed victim at the police station and photographed her injuries, which included red marks on her face, cuts and bruises on both elbows, and scratches and a bump on the top of her head. Victim complained of pain in her head and ears and trouble hearing out of one ear. Officer Low asked if she needed medical attention multiple times, but victim declined, saying she had no medical insurance.
On cross examination, Officer Low testified that victim had objective signs of intoxication: she smelled of alcohol, had slurred speech and glassy eyes, and admitted she had had two drinks. Although some of victim's statements were inconsistent and confusing, Officer Low recognized that she was intoxicated, had just gone through a traumatic experience, and had been hit on the head. Officer Low also noticed objective signs of alcohol consumption by defendant.
At victim's request, Officer Low obtained an emergency protective order, which provided that defendant was to have no contact with victim. Defendant was not to call her, text her, or come within 300 yards of her. After he obtained the emergency protective order from the on-call judge, Officer Low read it to defendant and gave him a copy, which was placed with his personal property at the jail. This occurred around 2:00 a.m. on June 26.
Defendant called victim from jail more than five times on June 26. Victim did not pick up his calls, so defendant left messages in her voicemail. The gist of the messages was that defendant did not want to stay in jail and he asked victim to "fix this." Victim understood this to mean that defendant wanted her to drop the charges.
D. Victim's Injuries
Victim's injuries included bruises on her ribs, side, face, left ear, and the back of her head. Victim declined medical treatment because she did not have health insurance. Several hours after she was assaulted, victim went to work. Halfway through her shift, she started bleeding from her left ear and could not hear out of that ear. Victim went to the emergency room. The doctors told her she had "a major concussion" and to stay off work for a month. Victim could not afford not to work and did not take any time off. The doctors told her to see an ear specialist, but she did not go for financial reasons.
At trial, victim claimed the following permanent injuries: (1) hearing loss in her left ear; (2) memory loss, including trouble remembering customer orders; and (3) difficulty balancing trays at work. Because of the concussion, she could not completely recall what occurred at the time of the assault.
E. Testimony of Detective Nanez
On June 27, victim met with Mountain View Police Detective Jessica Nanez, who did the follow-up investigation. Victim's statement to the detective was consistent with her testimony at trial. Detective Nanez observed bruises on the left side of victim's face, scratches on her elbows, and a bump on the top of her head. Victim told the detective she had been kicked in the low back and ribs and complained of bleeding from her ear. The detective photographed victim's injuries; the photos show bruising and red marks on the left side of victim's face, and bruises and cuts on her elbows from trying to block defendant's blows. Detective Nanez looked at victim's cell phone and recorded eight voicemail messages defendant had left her in the first 36 hours after the protective order was issued.
F. Violations of Protective Order (counts 5, 6, and 7)
When the complaint was filed on June 30, the court issued a further protective order, which was valid for one year. After that, defendant contacted victim "every couple days" via text message. He told her to "fix it" and said the district attorney was lying and victim did not have to press charges. Sometimes victim responded and said, "Leave me alone."
On August 5, victim went to the Mountain View Police Department and reported that defendant had violated the no-contact order by calling her and sending her a message on social media. Police Officer Britton Moore testified that victim played three voicemail messages for him from defendant that violated the protective order. Those messages were dated June 29, July 24, and July 25 and were the basis for the charges in counts 5, 6, and 7 (violating a protective order). Defendant continued to call victim after the protective order was renewed in August 2015. Victim testified that she was "scared" defendant is "never going to leave [her] alone."
G. Testimony Regarding Prior Domestic Violence
Victim testified about two prior incidents of domestic violence. In the first incident, victim was riding in a car with defendant. Defendant yelled at her and drove "crazy," meaning in an unsafe manner. He drove too fast, turned quickly, and made fast stops, just like he did on June 26. Victim feared for her safety and when defendant stopped at a stop light or stop sign, she got out of the car. Defendant pulled over and started throwing her things at her. There was a lot of yelling and someone called the police. (We shall hereafter refer to this incident as the "Driving Incident.") After the Driving Incident, defendant apologized; victim forgave him and stayed with him.
The second incident occurred in May 2013, when victim was living with defendant. Although they lived together, they had separate bedrooms. They had sexual intercourse in victim's room and started arguing. They had both been drinking. Defendant left and victim thought he had gone to his room. She walked into his room, knocked his television (TV) off its stand onto the floor, and left. At the time, she was not wearing any clothing. She thought defendant was in the room; defendant's brother was there instead. Victim would not have entered unclothed if she had known defendant's brother was there.
At one point, victim was alone in her bed. Defendant came in and poured beer on her and threw her 52-inch TV at her. The TV hit the side of the bed and fell to the floor; it did not hit her. The TV was plugged in, which prevented it from traveling farther and hitting her. Victim did not recall becoming enraged, scratching defendant, or ripping his shirt. She could not recall who pulled down whose TV first. (We shall hereafter refer to this incident as the "TV Incident.") Victim testified that this was the only other time defendant laid his hands on her in an angry way.
Victim was frightened and moved out that night. Defendant later apologized. Victim forgave him, but she was done with their relationship and told him she wanted only "to be friends."
II. Defense Case
Defendant testified. On the night of the assault, he drank about six beers at the bar. According to defendant, victim was "highly intoxicated" when they left the bar. As he drove her home, she became upset with him. She reached over, pushed him, hit him in the left eye, and scratched the left side of his face and his hand. Defendant became worried about driving safely, pulled over at the next exit, and told victim to get out of his car. He got out of the car and opened the passenger door for her. She pushed the door "aggressively" and fell to the ground as she stepped out of the car. She tripped over her legs and a curb and hit the ground face first. He tried to help her up and said, " 'You dumb bitch. This is what happens every time you drink. You always fall down.' " Victim tried to kick him. He helped her up and she sat back down in the passenger seat of his car.
About this time, A.P. arrived. Victim got up and went to A.P.'s car. Defendant walked over to A.P. and asked if he was taking victim home. Defendant loves victim and was concerned for her safety, since he did not know A.P. He told A.P. to tell victim to get out of his car. He also said, "I'm VMV," even though he is not a gang member. He thought telling A.P. he was VMV would intimidate him and make him tell victim to get out of his car.
Defendant tried "many times" to get victim out of the car, but she did not comply. Defendant then said, " 'Fine, she's your problem' " and left. He was concerned for victim's safety and took photographs of A.P.'s car in case she did not make it home. He went back later to make sure victim was "okay" and was detained by the police. Defendant said victim was lying when she told police and testified in court that he hit her; she got injured because she was drunk and fell. Defendant could not explain how victim got a bump on the top of her head if she landed on her face.
Defendant said he ended up in jail with "ridiculous charges," including kidnapping, domestic violence, and making terrorist threats. He called victim several times that day, asking her to tell the truth and "fix this" because he thought the charges were false and unfair.
Although the police originally suspected kidnapping, victim told Detective Nanez she got in defendant's car willingly, and the district attorney never charged defendant with kidnapping.
As for the TV Incident, defendant got mad at victim after they had sex and poured half a beer on her. She "attacked" him: she ripped his shirt and scratched him. While he was in the bathroom, victim went into his room and toppled over his TV. He was so upset, he went into her room and toppled over her TV. He denied throwing the TV at her. He broke up with her that day and asked her to move out.
Defendant's brother testified regarding the TV Incident. He said he was in defendant's room watching TV when victim walked in completely naked, pulled the TV off of its wall mount, and left. She did not throw the TV at him. Defendant entered the room. His shirt was torn and he had scratches on his face. Defendant was upset because it was a new TV. Defendant knocked over victim's TV after victim broke defendant's TV. Defendant told his brother not to call the police.
PROCEDURAL HISTORY
The prosecution charged defendant in a first amended information with four felonies: assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 1); criminal threats to victim (id., § 422, count 2); and two counts of attempting to intimidate a witness (A.P. and victim) (id., § 136.1, subd. (b)(1), counts 3 & 4). The prosecution also alleged three misdemeanor violations of a restraining order on June 29, July 24, and July 25, 2014 (id., § 166, subd. (c)(1), counts 5, 6, & 7). In addition, the information alleged, as to count 1, a great bodily injury enhancement within the meaning of Penal Code section 12022.7, subdivision (a).
The case went to trial in August 2015. A jury found defendant guilty of all counts except the criminal threats charged in count 2. The jury also found that the great bodily injury enhancement attached to the assault count was not true.
In January 2016, the court denied probation and sentenced defendant to four years in prison. The sentence included the four-year upper term on the assault count; a two-year middle term, concurrent, on each of the witness intimidation counts; and 30 days, concurrent, on each of the misdemeanor counts for violating a restraining order. The court also imposed fines and fees that are not at issue on appeal.
DISCUSSION
Defendant challenges the admission of evidence of the two prior incidents of domestic violence under section 1109. He argues the testimony regarding the Driving Incident was inadmissible because it does not meet the statutory definition of domestic violence in section 1109. He contends the testimony regarding the TV Incident was inadmissible "because its prejudicial nature far outweighed its minimal probative value" and therefore should have been excluded under section 352. He argues these two errors were prejudicial both individually and collectively. He asserts this case was "effectively a credibility battle" and it is probable he would have received a better result if the trial court had not erroneously admitted the propensity evidence. Finally, he argues the error violated his Fourteenth Amendment right to due process.
I. Background
At trial, the prosecution made a motion in limine pursuant to section 1109 to introduce evidence of defendant's prior physical abuse of victim, and defendant made a motion in limine to exclude such evidence. The prosecutor argued that both the Driving Incident and the TV Incident met the statutory definition of domestic violence and were admissible under section 352. Defendant argued that section 1109 does not apply since defendant had "no prior convictions involving domestic violence and there is no corroborating evidence regarding any past acts involving domestic violence." He argued that any evidence of prior bad acts involving domestic violence would be unduly prejudicial and should be excluded or bifurcated from the trial of the charged offenses.
During trial, the court held a hearing outside the presence of the jury pursuant to section 402 regarding the circumstances of the uncharged domestic violence. Both victim and defendant's brother testified at the section 402 hearing. As for the Driving Incident, victim testified that such conduct occurred a few times while riding with defendant. Defendant would get angry with her while driving. They would argue, he would say mean things that scared her. Victim testified that defendant "drives like a crazy person. I have a child. I don't want to die." She said she feared for her life and had to get out of the car. Victim's testimony about the TV Incident at the section 402 hearing was consistent with her testimony before the jury at trial.
In addition to those two incidents, victim testified that defendant was very jealous and said "mean" things to her weekly. On a "couple of occasions, defendant screamed at her in the middle of the street and threw her purse and things at her. The neighbors called the police and the police came out. In argument, the prosecutor characterized defendant's conduct as "constant verbal abuse" that is typical of the cycle of violence in domestic violence cases.
The court granted the prosecution's motion in limine as to the Driving Incident and the TV Incident and denied the motion as to the other incidents. The court found victim credible at the section 402 hearing and described the factors it considered in weighing the admissibility of the evidence under section 352.
As for the TV Incident, the court considered that the incident involved the same victim; the court concluded the conduct qualified as domestic violence under section 1109 since it involved a former cohabitant, and the conduct satisfied the statutory definition of abuse. The court noted the following similarities between the uncharged TV Incident and the charged offenses: both involved an assault, defendant was angry and had been drinking, defendant called victim names, and victim feared for her safety. The court concluded the TV Incident was not too remote in time having occurred a little over a year before the charged offenses. The court also found no undue prejudice since defendant's conduct during the TV Incident was not more inflammatory than the charged assault.
As for the Driving Incident, the court noted several similarities with the charged offenses, including defendant saying mean things to victim while driving, driving dangerously, getting angry at victim, and forcing her out of the car. The court concluded that these matters were relevant and may explain why victim asked a total stranger to take her home. The court also noted that the Driving Incident was not too remote in time, since defendant and victim had not dated for that long.
As for the verbal abuse and yelling at victim in the street, the court found that conduct did not meet the section 1109 definition of domestic violence because the conduct at issue required corroboration under that definition and there was no evidence of corroboration. In addition, victim's testimony regarding those incidents was not sufficiently specific to determine whether they were similar to this case. The court therefore excluded evidence about those incidents.
II. Applicable Legal Principles
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (§ 1101, subd. (a) [citations].) This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness (id., subd. (c)). (See People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)" (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).)
More specifically, section 1101, subdivision (a) provides that subject to the exceptions in section 1101 and those "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." Subdivisions (b) and (c) of section 1101 set forth exceptions to this general rule of inadmissibility. Under subdivision (b), "evidence that a person committed a crime, civil wrong, or other act" is admissible "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." (§ 1101, subd. (b).) Subdivision (c) provides that nothing in section 1101 "affects the admissibility of evidence offered to support or attack the credibility of a witness." (§ 1101, subd. (c).)
In addition to the exceptions in section 1101, the "Legislature has . . . created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses (§ 1108, subd. (a)), and domestic violence, elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)-(3))." (Villatoro, supra, 54 Cal.4th at p. 1159.) As relevant here, section 1109 provides: "(a)(1) [I]n 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] . . . [¶] (d) As used in this section: [¶] . . . [¶] (3) 'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense."
"[B]oth sections 1108 and 1109 limit the admissibility of evidence of prior misconduct if its probative value is substantially outweighed by its prejudicial effect. (§§ 352, 1108, subd. (a), 1109, subd. (a).) The specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1109, provides 'a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.' " (People v. Brown (2000) 77 Cal.App.4th 1324, 1334.) "Thus, even relevant evidence of past domestic violence may be excluded when 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.' (§ 352.)" (People v. Disa (2016) 1 Cal.App.5th 654, 671 (Disa).)
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."
"We review the trial court's ruling on the admissibility of evidence for abuse of discretion." (Disa, supra, 1 Cal.App.5th at p. 672.)
III. Driving Incident
Defendant contends the trial court erred when it admitted evidence of the Driving Incident because that incident does not qualify as domestic violence under section 1109. The Attorney General responds that defendant has forfeited this contention by failing to object on this ground in the trial court.
A. Forfeiture
Defendant argues this claim has not been forfeited since he objected on this ground below. While arguing the motions in limine, defense counsel stated: "Getting out of a complete[ly] stopped car because someone is angry or upset but hasn't touched you in any way is of . . . no relevance and . . . doesn't show any domestic violence." This was sufficient to preserve the claim that the Driving Incident does not meet the statutory definition of domestic violence. We therefore conclude this claim has not been forfeited.
B. Analysis
Section 1109 provides that when the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence may be admitted "if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a).) Section 1109 provides two alternative definitions of the phrase "domestic violence" by referencing the definitions in "Section 13700 of the Penal Code" and "Section 6211 of the Family Code." (§ 1109, subd. (d)(3).)
Penal Code section 13700 defines " '[d]omestic violence' " in relevant part 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." (Pen. Code, § 13700, subd. (b), italics added.) Family Code section 6211 defines domestic violence as "abuse perpetrated against" six enumerated categories of persons. (Italics added.)
Penal Code section 13700 defines " '[a]buse' " as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a).) Family Code section 6203 defines " 'abuse' " as used in the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) as including, among other things, "[t]o intentionally or recklessly cause or attempt to cause bodily injury" (Fam. Code, § 6203, subd. (a)(1)) and "[t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or another." (Fam. Code, § 6203, subd. (a)(3).) Since the Family Code definition of "abuse" includes language that is almost identical to the language in Penal Code section 13700, subdivision (a) ("intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another"), we shall not separately analyze the question presented under the definitions of domestic violence and abuse in Family Code sections 6203 and 6211.
Although Family Code sections 6203 and 6211 define abuse and domestic violence "more broadly" than Penal Code section 13700 (People v. Dallas (2008) 165 Cal.App.4th 940, 953 (Dallas)), our analysis does not rely on these broader definitions from the Family Code.
Defendant does not dispute that victim meets the first part of the definition of domestic violence, which focuses on the relationship between the defendant and the victim. Indeed, victim was a person with whom defendant "has had a dating . . . relationship." (Pen. Code, § 13700, subd. (b); see also Fam. Code, § 6211, subd. (c).)
Defendant's argument addresses the question whether his conduct constitutes "abuse" for the purpose of the domestic violence statutes. He contends the Driving Incident does not meet the statutory definition of "abuse" in either Penal Code section 13700 or Family Code section 6211.
Defendant argues the acts that satisfy the statutory definitions of domestic violence and abuse "are most commonly serious and violent acts." He then lists a number of acts that have been found to constitute domestic violence abuse, with case citations. Those acts include: "[s]trangling, stalking, and attempting to kill someone" (People v. Brown (2011) 192 Cal.App.4th 1222, 1234 (Brown); People v. Ogle (2010) 185 Cal.App.4th 1138, 1144 [stalking]); "scalding a child's genitals, fracturing a child's skull, breaking a child's arm, or suffocating a child with a trash bag" (Dallas, supra, 165 Cal.App.4th at p. 957); breaking down a door and threatening physical harm (People v. James (2010) 191 Cal.App.4th 478, 483-484); and pointing a gun at someone's face (People v. Rucker (2005) 126 Cal.App.4th 1107, 1118).
Defendant argues that driving, in contrast, is not domestic violence or abuse. He argues that victim did not explain what she meant when she said defendant was "driving crazy." He asserts he did not hit victim, attempt to hit her, or threaten her with violence and that his conduct during the Driving Incident was a "far cry" from the conduct in the cases he cites. He contends the trial court erred when it relied on victim's testimony that she had a child and did not want to die; he also argues her fear was not reasonable under the circumstances.
Neither the Penal Code nor the Family Code definition of abuse contains a list of enumerated domestic violence offenses. (Pen. Code, § 13700; Fam. Code, § 6203; Brown, supra, 192 Cal.App.4th at pp. 1234, 1238.) As we have noted, Penal Code section 13700 defines "abuse" as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a); accord Fam. Code, § 6203.) Contrary to defendant's assertion, the statutory definition of abuse does not require a serious or violent act. Further, it is not limited to extreme acts like the ones in the cases defendant cites.
The evidence here met the statutory definition of abuse because it supported the conclusion that defendant's conduct during the Driving Incident placed victim "in reasonable apprehension of imminent serious bodily injury to . . . herself." (Pen. Code, § 13700, subd. (a).) Victim testified at the section 402 hearing that defendant got angry with her while driving, said mean things that scared her, and drove "like a crazy person." She said she yelled back at him, feared for her life, and had to get out of the car. Initially, she testified that she got out of the car while it was moving; later she said she got out of the car as soon as it stopped at a stop light. In front of the jury, victim clarified what she meant when she said defendant drove "like crazy." She explained that he drove in an unsafe manner: he drove too fast, turned quickly, and made fast stops. Victim described an emotionally charged situation in which she and defendant argued and he drove in a reckless, unsafe manner, risking injury to both of them. In our view, it was reasonable for victim to fear imminent serious bodily injury if they got into a car accident under the circumstances she described. Thus, the evidence regarding the Driving Incident met the definition of abuse in Penal Code section 13700, subdivision (a). For these reasons we reject defendant's contention that the Driving Incident did not qualify as domestic violence under section 1109.
IV. TV Incident
Defendant contends the trial court erred when it admitted evidence regarding the TV Incident because its prejudicial nature outweighed its probative value (§§ 352; 1109).
As we have noted, section 1109 provides that evidence of defendant's commission of other acts of domestic violence may be admitted "if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a).) "Evidence is not inadmissible under section 352 unless the probative value is ' "substantially" outweighed by the probability of a "substantial danger" of undue prejudice.' " (People v. Fruits (2016) 247 Cal.App.4th 188, 205-206 (Fruits), citing People v. Holford (2012) 203 Cal.App.4th 155, 167 (Holford).) Thus, "even relevant evidence of past domestic violence may be excluded when 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.' (§ 352.)" (Disa, supra, 1 Cal.App.5th at p. 671.)
In the context of evidence of a defendant's prior sex offenses, which is governed by the analogous provision in section 1108, the California Supreme Court explained in Falsetta how trial courts should evaluate such evidence under section 352: "By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917 (Falsetta); see also People v. Jennings (2000) 81 Cal.App.4th 1301, 1315 [applying the same factors to § 1109].)
As for the factors from Falsetta, defendant agrees the TV Incident did occur, that it occurred close in time to the charged offenses, and was less serious than the charged offenses, which is relevant to its likely prejudicial impact.
Defendant contends that contrary to the trial court's conclusion, the TV Incident was "markedly dissimilar from the charged offense." In discussing the admissibility of evidence under section 1109, it has been recognized that " ' "[t]he principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." ' [Citation.] Section 1109 was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.' (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, p. 5 (Assembly Analysis of Senate Bill 1876).) Thus, the statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became section 1109 argued for admissibility of such evidence because of the 'typically repetitive nature' of domestic violence. (Assem. Analysis of Sen. Bill 1876, supra, at pp. 6-7; [citation].) This pattern suggests a psychological dynamic not necessarily involved in other types of crimes." (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532, fn. omitted (Johnson).) Propensity evidence " ' "is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much." ' " (Falsetta, supra, 21 Cal.4th at p. 915.)
In ruling on the evidence regarding the TV Incident, the trial court gave a lengthy explanation of its reasons for admitting the evidence. As for the similarities between the TV Incident and the charged offenses, the court considered that both incidents involved the same victim (a former cohabitant) and the conduct satisfied the statutory definition of abuse. The court also noted that both incidents involved assaults; that on both occasions defendant was angry, had been drinking, and called victim names; and that victim feared for her safety. The court observed that after the TV incident, victim was so afraid, she decided to break off her relationship with defendant.
Defendant acknowledges only two of these findings (that both incidents were assaults and defendant had been drinking) and argues the trial court's characterization of the TV Incident is strained. Defendant downplays the assaultive nature of the TV Incident. He argues that it "was a childish back-and-forth between two adults that resulted in the mutual destruction of property in front of another family member. They got into an argument, he poured beer on her, and they broke each other's TVs." He contends this was very different from the violent assault in a parking lot at issue in this case and that at most the evidence of the TV Incident "demonstrates that [defendant] had a propensity to destroy property, but not to commit violence against her." Defendant's arguments ignore victim's testimony that defendant threw the TV at her; that the TV got within 15 inches of her and only missed hitting her because it was still plugged into the wall. Defendant also ignores the court's findings regarding the emotionally charged nature of both incidents: that on both occasions defendant was angry and called victim names and victim feared for her safety. The TV Incident thus involved more than the destruction of property.
That the conduct involved in the TV Incident was less violent that the beating in the parking lot does not make it any less probative or render it inadmissible. To follow defendant's logic, only evidence of a prior beating or equally violent act would be admissible under section 1109. Such a rule would prevent the prosecution from presenting evidence of less violent acts of domestic violence or evidence that the defendant's conduct was escalating in terms of violence. In our view, such a restriction is inconsistent with the purposes and legislative history of section 1109 described previously. For these reasons, we agree with the trial court's conclusion that the TV incident was sufficiently similar to the charged offenses.
Defendant contends that even if other aspects of the TV Incident were admissible, the court should have excluded the evidence that he poured beer on victim before he threw the TV at her. He argues that the evidence that he poured beer on victim had "no probative value to a situation that . . . alleged serious violence" and "would be highly prejudicial to a jury" because the "act is quite demeaning." In our view, the pouring of the beer speaks volumes about defendant's attitude toward victim and his inability to control his anger when arguing with her when he had been drinking. In addition, defendant had been drinking both at the time of the TV Incident and the charged offenses. This evidence was therefore highly probative.
As for the alleged prejudicial nature of this evidence, " ' "Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " ' " (Disa, supra, 1 Cal.App.5th at p. 671, quoting People v. Eubanks (2011) 53 Cal.4th 110, 144.) " ' "[T]he 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.' " ' " (Holford, supra, 203 Cal.App.4th at p. 167, italics omitted.) " ' " 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " ' " (Disa, supra, at p. 671.)
In addressing prejudice under section 352, the trial court found that although the TV Incident was unadjudicated, the fact that defendant was not convicted or sentenced in that case would not cause undue prejudice. The court also found no undue prejudice since defendant's conduct during the TV Incident was not more inflammatory than the charged assault, was not misleading, would not confuse the issues, and did not require an undue consumption of time. The court noted that none of the witnesses defendant planned to call actually saw the TV incident.
At the end of defendant's case, defendant proposed recalling his brother and calling two other character witnesses to testify regarding defendant's reputation for peacefulness and honesty. After the court conducted a hearing under section 402, defendant elected not to call these witnesses.
Given the highly probative nature of the act of pouring beer on victim during the TV Incident, and the TV Incident itself, we agree with the trial court's prejudice analysis under section 352. "The potential prejudice claimed here . . . was that the jury would consider the evidence as propensity evidence to prove conduct in conformity therewith on the occasion in question. However, in enacting . . . section 1109, subdivision (a)(2), the Legislature has essentially transferred propensity from the undue prejudice side of the balance to the probative value side." (Fruits, supra, 247 Cal.App.4th at p. 206.)
Defendant challenges the trial court's assessment that the testimony would not require an undue consumption of time and complains that the evidence of the TV Incident was a "burdensome and distracting side show." He adds that he had to call his brother to testify about the TV Incident and asserts that a great deal of his own testimony and victim's testimony addressed that event.
Our review of the record reveals that the evidence regarding the TV incident consumed relatively little time. Defendant's brother's testimony (not counting the section 402 hearing) took 10 or 11 minutes. Victim was on the stand for two hours nine minutes; her testimony about the TV Incident consumed 16 percent of that time (about 20 minutes). Officer Nanez answered a few questions about victim's description of the TV Incident. Defendant testified for 42 minutes, and his testimony about the TV Incident consumed approximately 16 percent of that time (about seven minutes). Thus, the evidence regarding the TV incident consumed less than 45 minutes of a seven-day trial. The trial court did not err when it concluded this evidence would not involve an undue consumption of time.
Finally, we consider less prejudicial alternatives to the admission of the evidence regarding the TV Incident. Initially, the prosecution sought to introduce evidence of four prior incidents of domestic violence. The court excluded evidence regarding two of the incidents and admitted the evidence of the Driving Incident and the TV Incident, which were the most probative of the prior incidents offered.
Here, the trial court considered the factors from Falsetta and properly concluded that the probative value of the evidence of the TV Incident outweighed its prejudicial nature. We therefore conclude the trial court did not abuse its discretion when it admitted the evidence regarding the TV Incident.
Since we find no error in the admission of the evidence of the prior domestic violence, we shall not reach defendant's assertion that the admission of the evidence of the propensity evidence was prejudicial under the standard in People v. Watson (1956) 46 Cal.2d 818, 836-837.)
V. Due Process Challenge
Defendant contends the admission of the evidence of prior domestic violence under section 1109 "infused the trial with unfairness" and violated his Fourteenth Amendment right to due process.
Sections 1108 and 1109 "are remarkable not because they allow testimony about prior misconduct, but because they allow the jury to draw propensity inferences from the prior acts. (Compare § 1101 with §§ 1108, 1109.)" (Johnson, supra, 185 Cal.App.4th at p. 529.) Notably, both section 1108 and 1109 contain "the same conditional language, namely, that such evidence is admissible only 'if the evidence is not inadmissible pursuant to Section 352.' " (§§ 1108, subd. (a), 1109, subd. (a)(1), (2) & (3).) "Thus, there is an overriding safety valve built into each statute that continues to prohibit admission of such evidence whenever its prejudicial impact substantially outweighs its probative value. (§ 352.) It was precisely the incorporation of this safeguard that led the Supreme Court in . . . Falsetta . . . to uphold the constitutionality of section 1108 against" a due process challenge. (Johnson, supra, at p. 529; Falsetta, supra, 21 Cal.4th at p. 917 ["the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge"].) Although the California Supreme Court has not specifically ruled on the constitutionality of section 1109, the Courts of Appeal "have uniformly followed the reasoning of Falsetta in holding section 1109 does not offend due process." (Johnson, supra, at p. 529 [1st Dist./Div. 2], citing People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 [4th Dist./Div. 1]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 [4th Dist./Div. 2]; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420 [3d Dist.]; and five other cases from the First District.) We see no reason here to depart from this legal authority. We therefore reject defendant's due process challenge.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.