Opinion
H035645
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE DE JESUS PEREZ TEJEDA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County
Super. Ct. No. SS091640A)
A jury found appellant Jose Tejeda guilty of one count of attempted murder (Pen. Code, § 664, 187, count one), one count of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a), count two), child endangerment (§ 273a, subd. (a), count three) and battery with serious bodily injury (§ 243, subd. (d), count four). In addition, the jury found true the allegations that during the commission of counts one through four, appellant personally used a firearm (§ 12022.5), and, as to counts one and two, personally inflicted great bodily injury on the victim under circumstances of domestic violence (§ 12022.7, subd. (e)).
All unspecified statutory references are to the Penal Code.
On May 20, 2010, the court sentenced appellant to a total prison term of 24 years. The next day, appellant filed a notice of appeal.
On appeal, appellant contends that there was insufficient evidence to support his conviction on count three—child endangerment. Further, the trial court erred in admitting evidence of several instances of cohabitant abuse. We shall affirm the judgment.
Facts and Proceedings Below
Evidence Adduced at Trial
Appellant and Jane Doe had a contentious relationship marked by many arguments and physical abuse, but they had two children together, nine-year old N. (a boy) and six year old B. (a girl).
We refer to the victim as Jane Doe or Jane to protect her anonymity.
As long ago as 1999, Jane obtained a protective restraining order against appellant. At the time, Jane was living with her mother. Jane remembered that one night appellant called and told her to come outside. Jane got into appellant's car and he drove off. Appellant put his hands down Jane's pants and inside her body; he accused her of "cheating" on him. Jane denied that she was cheating. Appellant drove to Big Sur; he told Jane that he was going to take her somewhere "far and dark" where nobody could find her. When they reached Palo Colorado, appellant stopped the car in a wooded area and threatened to drown Jane. At the time they were by a stream or river and appellant and Jane were outside of the car. Appellant had Jane by the neck and tried to pull her head down to the water. Jane was kneeling trying to grab onto appellant's leg so that he could not push her down. However, at one point her face touched the water. Jane told appellant "no." Finally, he stopped. Jane recalled that they went to a hotel and stayed the night. Jane did not tell anyone about what had happened because she wanted to protect appellant.
Jane recounted that even before this incident there had been other instances of abuse where appellant had inflicted injuries such as "[b]ruises, scratches, black eyes."
Sometime in 1999, there was in incident when Jane and appellant were staying in a hotel. Again, appellant thought Jane was cheating on him; he thought that Jane had "hickeys by somebody else." Appellant grabbed Jane by the throat and called her derogatory names. Appellant pulled her earrings from her ears and threw her down onto the bed. Subsequently, when Jane sought a restraining order, she reported this incident. Although Jane got a restraining order the relationship did not stop.
In 2000, Jane's son N. was born. Appellant and Jane were living together at this time in Big Sur. However, their relationship did not change; there was still physical abuse. Jane recalled one time when appellant went out drinking and came home intoxicated. They started arguing. Jane, who had the baby in her arms, was pushed by appellant from the living room to the bedroom; appellant then pushed her onto the bed. Jane told him to stop, but he did not so she called the police. Appellant had a beer bottle in his hand, raised, as if he was going to hit her. Jane was able to get off the bed and go outside; a sheriff arrived. Jane had a scratch below her neck. The sheriff took Jane to her mother's house. Jane could not remember exactly what year this incident took place.
At some point Jane began living with appellant again in Marina. This was after her daughter B. was born, which was in 2003. The relationship was "okay," but there were still problems of the same kind. At some point after B. was born appellant moved out and went to live with his sister. Jane and appellant continued to have a relationship, but did not live together again. During this time, however, appellant still exhibited signs of jealousy; he would check up on Jane by calling her about the children. He would tell Jane " 'I know you are out messing around' " and that he knew she had somebody else. Jane told appellant that he was crazy.
Appellant continued to maintain a relationship with the children, so in 2008, on New Year's Eve, Jane, appellant and the children spent the evening together. N. told his father that Jane had bruises on her back. N. said that they were "hickeys." Appellant asked if that was true, but Jane told him "no." Appellant went to get a gun from downstairs; Jane knew that he kept a gun in a drawer. When appellant came back upstairs he grabbed Jane by the hair and said, " 'You want to cheat on me?' " He pushed Jane downstairs and asked her if she wanted to die. Jane told him "no." The children were upstairs screaming and crying. Nevertheless, Jane spent the night. The next day she went to work, but did not tell anyone what had happened.
The relationship continued until 2009, but appellant and Jane were not living together. Eventually, Jane told her brother about the gun incident. Jane explained that she told appellant what she had done so that appellant would leave her alone. Through the spring time of 2009, appellant continued to see the children. At one point, after leaving work Jane went to meet appellant in the parking lot of a Home Depot. Jane was late for the meeting. Again, appellant accused her of cheating on him. Appellant had a gun with him; he showed a silver gun to Jane and told her that he had a bullet for her and one for her brother. Jane left and went to the Seaside Police Department. Her brother encouraged her to make a police report. Jane was afraid that appellant might do something to her brother. However, although Jane told the police about the Home Depot incident she did not file charges because she did not want appellant to get into trouble. Jane did file for a restraining order, but according to Jane, she could not have it served because she did not know where appellant was living. However, she did tell him about the order in a telephone call.
Jane explained that when appellant came to see the children she did not give him a copy of the order because she had been told that she was not to serve it.
Jane got the restraining order in May 2009. Through May and June of 2009 her contact with appellant was over the telephone. Appellant continued to accuse Jane of cheating on him. Jane told appellant that she did not want to have anything more to do with him. In response, appellant accused her of finding someone else.
On June 28, 2009, Jane was not working because it was a Sunday. While she was away from her house, Jane spoke with appellant on her cell phone sometime in the afternoon. Appellant wanted to see the children. Jane told appellant that the children were not with her. Appellant became angry telling Jane that the children were supposed to be with her as it was her day off. Appellant accused Jane of being out with her other boyfriend. Jane said that she was not and hung up the phone. Appellant called again and asked Jane if she was going to let him see the children because it might be the last time he could see them as he was leaving town. Jane said that the children were with her brother. However, Jane's brother called her to let her know that he had taken the children to her house, so Jane went home. Appellant had told Jane that he wanted to take N. out to eat, but when Jane got home N. was not there so she went to look for him. Jane put B. in her car in the back seat and drove to the house of N.'s friend. As she was driving on Crescent Avenue she saw appellant right behind her. Appellant stayed behind her the whole time she was looking for N. N. was not at his friend's house so Jane checked the skate park, but N. was not there. Appellant parked across the street from the skate park. At this time, Jane's car was stationary but still running and appellant got into the passenger side. Jane drove down the street to the stop sign at Zanetta and Hillcrest on her way home.
Before Jane started driving from the skate park appellant pulled a gun out from his waistband and pointed it at Jane's waist. Appellant told Jane that she was going to die; she was going to tell him "right now" where she had been and with whom she was cheating on him. Again, appellant told Jane that he had one bullet for her and one for her brother. Jane could see the bullets in the gun. B. was still in the back seat of the car so Jane told appellant to stop being silly and put the gun away. Appellant did not respond. As Jane drove the car on Zanetta, appellant moved the gun "real close" to her face. The next thing that Jane heard was a bang and she felt a burning sensation on her face. She put the car in park and grabbed her cell phone. Appellant ran from the car. Jane called the emergency services and started honking her horn. Neighbors came to assist Jane. The police and an ambulance arrived. Jane was taken from the car; a neighbor was holding B. Jane was taken by ambulance to a helicopter and then on to "San Jose Regional."
Jane was in the hospital in San Jose for almost a month. She had three surgeries, but lost the sight in her left eye. She was off work for four months. She was in pain and her face was swollen and scarred. At the time of trial, Jane still had one more surgery scheduled.
Since this incident, B. had changed from being a very talkative, playful and silly child to being really quiet, only able to sleep sometimes and not wanting to leave her mother's side. Jane testified that B. comes to her in the middle of the night, but will not talk about the shooting.
Numerous witnesses testified to seeing part of the incident. In the evening of June 28, 2009, Francesca Mayer was outside when she heard a gunshot and saw someone armed with a handgun run from a car. As he ran, the man tucked the gun into the back of his pants.
James Brooks was in his garage when he noticed a man run through his yard. Brooks saw the man climb several fences; Brooks ran after him with a friend. They found the man hiding in bushes. Another neighbor Rick Ward asked the man what he was doing. The man replied, " 'I don't do nothing.' " Then, he said, " 'Girl get shot. Girl get shot.' " A neighbor came out and kicked the man's feet from under him and slammed him to the ground. The police came and detained him. Brooks was sure that as the man was running he saw an object in the man's hand that was a gun, but Brooks did not see him discard the gun.
Charles Cullers was outside playing with his dog, when he saw someone coming through his yard with a gun in his hand. The man put the gun into his waistband after he saw Cullers. The man walked past Cullers and tried to climb a fence, but he appeared to be having difficulty climbing over the fence. Finally, Cullers opened the gate to his yard and ordered the man to get out. The man did not appear intoxicated nor did he smell of alcohol.
Rick Wright heard a gunshot and walked out to his front yard where he saw a man hiding in the bushes of his neighbor's yard. By this time, there were other neighbors there. They confronted the man and held him until the police arrived.
Officer Pablo Andrade was called to the area of Zanetta Drive and Weber Circle on June 28, 2009. He was told that a victim of a shooting was inside a vehicle and that the suspect in the shooting had run off in the direction of Weber Circle. Officer Andrade found three people holding someone on the ground. Knowing that a weapon had been involved in the incident, Officer Andrade drew his weapon and told the three males to move away. Then, he took the man into custody; Officer Andrade identified appellant as that man. Concerned that appellant had dropped the gun and that children could pick it up, Officer Andrade asked appellant what happened to the gun. Appellant told him that he did not know, but if he knew he would tell him. Appellant explained that Jane had left him for someone else. More concerned with the whereabouts of the gun, Officer Andrade asked appellant again where the gun was located. This time, appellant said that he did not know anything about a gun. As far as Officer Andrade knew a gun was never recovered.
Meanwhile, Officer Amanda Stanford, who was the first to arrive on scene, grabbed her medical bag and ran to the driver's side of a Mazda 3. Officer Stanford found Jane sitting with her hands on her thighs and blood draining from her face to her chest. Some of the blood was free flowing and some that was sticky and "gel-like" was hanging from her chin. Officer Stanford wrapped Jane's head in gauze. Jane told her that it hurt. Officer Stanford asked Jane how many times she had been shot, but at first Jane said that she did not know. Then, she said just once. Officer Stanford asked Jane who shot her and Jane told her it was appellant.
Initially, when Officer Stanford arrived on scene, someone told her that Jane's daughter was in the car. As Officer Stanford was treating Jane, Jane asked where B. was; someone told the officer that they were holding B. Eventually, Officer Stanford talked to B. B. was still shaking, breathing rapidly and was visibly upset. Officer Stanford asked B. what had happened. At first, B. "teared up," but after Officer Stanford reassured her and told her that she needed to know what had happened, B. said " 'daddy shoot my mommy.' "
Appellant testified in his own defense that he had the gun in his waistband because he was going to take Jane and B. to the shooting range and then out to dinner; that he was intoxicated; and that the gun went off accidentally after he removed it from his waistband because it had begun to bother him.
The Monterey County District Attorney charged appellant by amended information with attempted willful, deliberate, premeditated murder (§§ 664, 187), inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), child endangerment (§ 273a, subd. (a)) and aggravated mayhem (§ 205). The information alleged that appellant used a firearm during the commission of all the crimes charged and, as to the attempted murder and inflicting corporal injury counts, inflicted great bodily injury on the victim under circumstances of domestic violence within the meaning of section 12022.7, subdivision (e).
The jury found appellant not guilty of aggravated mayhem, but as noted, found him guilty of the lesser included offense of battery with serious bodily injury. Further, the jury found that in the commission of the attempted murder count, appellant did not commit willful, deliberate, premeditated attempted murder.
Discussion
Sufficiency of the Evidence
As to the child endangerment charge, the court instructed the jury with CALCRIM No. 821 that to find appellant guilty on count three, "the People must prove that: [¶] One, the defendant willfully inflicted unjustifiable physical pain or mental suffering on a child. Or, one, the defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering. And, two, the defendant inflicted pain or suffering on the child or caused or permitted the child to suffer, be injured, or be endangered under circumstances or conditions likely to produce great bodily harm or death. And, finally, three, the defendant was criminally negligent when he caused or permitted the child to suffer the injury or be in danger."
CALCRIM No. 821 tracks the language of section 273a, which provides: "(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered . . . ."
Appellant contends that the evidence to support count three was insufficient. In particular, he submits that the evidence was insufficient to show that B. suffered unjustifiable mental suffering. Appellant points out that the officer who responded to the scene testified that B. was shaking and breathing rapidly. She was " 'visibly upset.' " She was crying. Jane testified that before the shooting B. was very talkative, playful and silly. Since then, however, she is very quiet and is reluctant to leave Jane's side. Sometimes, B. comes to Jane in the middle of the night, but she never discusses the shooting. Appellant claims that this evidence is insufficient to show unjustifiable mental suffering. Appellant concedes that while B. had just witnessed a horrific event, he believes it is also true that the symptoms described by the police officer could have been the result of a much more benign event. For example, a child may cry or become visibly upset when she is told she has to share a toy. Appellant asserts that he does not mean to suggest that B.'s behavior was not the result of the shooting; rather, he thinks that B.'s symptoms as described should not constitute unjustifiable mental suffering so as to impose criminal liability. Appellant admits that there was testimony that since the shooting B. has become very quiet and reluctant to leave Jane's side and this could be evidence of mental suffering. Nevertheless, he believes that there was no testimony linking this change in behavior to the shooting.
Appellant points out that he is not arguing that the offense was not committed under circumstances or conditions likely to produce great bodily harm or death. Appellant concedes that having fired a shot while Jane was driving a car qualifies as under circumstances or conditions likely to produce great bodily harm or death.
In reviewing the sufficiency of evidence in a criminal appeal, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) An appellate court must presume the existence of every fact a trier of fact could reasonably deduce from the evidence. (People v. Redmond(1969) 71 Cal.2d 745, 755.)
Initially, appellant points out that People v. Burton (2006) 143 Cal.App.4th 447 (Burton)seems to be on point and disagrees with his contentions.
In Burton, the defendant attacked his girlfriend, slashing her face several times, while their eight-year-old son was nearby. (Burton, supra, 143 Cal.App.4th at pp. 454-455.) Although the son did not actually see the attack, he was "on the scene while the attack took place and witnessed its bloody immediate aftermath." (Id. at p. 454.) Based on the son's "presence . . . at the scene of the attack" and the sight of "the immediate and bloody results of his father's handiwork on his mother's face," the court concluded that the defendant "likely caused . . . mental suffering." (Id. at p. 456.)
Here, the prosecution's theory was that by attacking Jane in B.'s presence, appellant willfully inflicted unjustifiable mental suffering on B. The prosecutor told the jury "we have a photograph of B[.]'s view in evidence from the back seat. And you can see that there is a space in between both seats where the console is that B[.] saw daddy shoot mommy. Jane Doe told us how B[.] has fared since then. That she's a different person, she's quiet. She doesn't want to leave mommy's side. And she has nightmares."
We hold that the evidence was sufficient to find mental suffering. The jury could reasonably believe that a child witnessing an attack by one parent against the other will suffer mentally from the experience. As the Burton court noted: "Children witnessing [domestic] violence suffer adverse effects similar to victims of direct physical and sexual abuse." (Burton, supra, 143 Cal.App .4th at p. 456, citing Comment, The Child Witness as a Victim of Domestic Violence: Prosecuting the Batterer Under California's Child Abuse Statute (1998) 19 J. Juv. L. 196, 197.) In addition, Jane testified that since the shooting B. was a different person—quiet, not wanting to leave her mother's side and unable to discuss the shooting. The jury could reasonably infer that B. was still suffering the effects of witnessing what had happened to her mother. Further, the responding officer saw that B. was shaking, breathing rapidly and was visibly upset. The evidence of the bloody attack and of B.'s response to seeing it provided sufficient evidence to support the jury's finding that appellant willfully inflicted unjustifiable mental suffering on B. Moreover, it is significant that as distinct from the child victim in Burton, B. actually observed "daddy shoot . . . mommy." We have no doubt that watching while one's father holds a gun to one's mother face and then pulls the trigger causing the kind and severity of damage to the face of one's mother with the attendant free flowing blood and sticky "gel-like" blood hanging from one's mother's chin, as happened in this case, is no less likely to cause mental suffering than being "at the scene of the attack" as occurred in Burton.
Accordingly, we reject appellant's challenge to the sufficiency of the evidence to support count three. We can conceive of very few things that could have been more traumatic for a little girl than witnessing the sequence of events caused by appellant.
Evidence Code Section 1109 Evidence
Before trial, appellant filed a motion in limine asking the court to "exclude the introduction of any prior bad acts the District Attorney intends to use against [him] under Evidence Code section 1109." In a written motion, the prosecutor argued that the evidence was admissible under Evidence Code section 1109 as propensity evidence to show "the cycle of violence and large scheme of dominance which predominates such cases. At the hearing on the motion, the court started going through the prosecutor's in limine motions and noted that the prosecutor had a paragraph B on page 13, which defense counsel stated "seems to tie in with 1109." The court asked defense counsel if there was "any objection to that"; defense counsel said, "No. We would have an objection to 1101, but not under 1109, just for the record." The court said, "Okay. The objection is overruled. Evidence of the - - 1109 evidence will be admitted, subject to reconsideration by the Court should I feel that it becomes cumulative and/or unduly prejudicial."
However, later, when the court asked defense counsel about his in limine motions, counsel stated, "Well, we had an objection under 1109 to present evidence, under 1109. Obviously I think that's been addressed in [the prosecutor]'s in limine motion. Just for the record, we did - - I did file that, and that was an objection that we had."
Accordingly, Jane was able to testify to the numerous instances of domestic violence as outlined in the statement of facts ante.
Appellant contends that this evidence should not have been admitted notwithstanding Evidence Code section 1109. In essence, appellant's argument is that the court abused its discretion in this case, and in so doing violated his due process rights, because the evidence was " 'too' relevant," i.e., it is likely that "the jury convicted him based more on the section 1109 evidence than on the actual facts of the case." Further, because the jury never learned about any convictions or punishment for the litany of offenses Jane described, it was likely the jury convicted him of the current offenses because they "figured he'd gotten any number of 'breaks' previously, and that it was time he was punished for his many acts of domestic violence."
In order to obtain appellate review of a claim of error in the admission of evidence, a party must make a timely objection to the evidence on the record, stated in a way that makes clear the specific ground of the objection. (Evid. Code, § 353, subd. (a).)
Explicitly, Evidence Code section 353 provides "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." (Italics added.)
Appellant has not preserved his claim for review. " 'It is, of course, "the general rule" '—to which we find no exception here—' "that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." ' [Citations.]" (People v. Alvarez (1996) 14 Cal.4th 155, 186.)
" 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal. [Citation.]' [Citation.]" (People v. Zapian (1993) 4 Cal.4th 929, 979, italics added; accord People v. Geier (2007) 41 Cal.4th 555, 610 [what is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling].)
Here, there was a timely objection, but it was not "specific." All defense counsel said in his written motion was that appellant objected to the introduction of the evidence of prior bad acts under Evidence Code section 1109. No mention was made of Evidence Code section 352, of his due process rights, or any other grounds for excluding the evidence, in either the written motion or at the hearing on the prosecutor's motion to admit the evidence.
Further, although it does appear that the court did exercise its Evidence Code section 352 discretion, defense counsel did not raise the issue again even though the court implied that it would revisit the issue after hearing the testimony.
Even if this issue had been preserved for appeal, we would not find that the court abused its discretion in this case.
In relevant part, Evidence Code section 1109 provides, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1109, subd. (a)(1).) Evidence Code section 352 allows a court in its discretion to exclude evidence if "its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court's exercise of this discretion "will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 637.) The prejudice in question is not the prejudice that flows from relevant, highly probative evidence; rather, it is the prejudice caused by evidence that "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (Id. at p. 638.) Prejudicial is not synonymous with damaging. (Ibid.)
If the evidence of other incidents of domestic violence is deemed admissible, the jury is permitted, but not required, to consider it as evidence that the defendant has a propensity to commit acts of domestic violence and as substantive evidence that he committed the charged offense. (CALCRIM No. 852.) The jury was so instructed in this case with regard to counts one, two and four.
Specifically, the court instructed the jury that "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically domestic violence alleged to have occurred before June 28th, 2009. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. . . . [¶] . . . If you decide that the defendant committed the uncharged domestic violence, you may, but are not required, to conclude from the evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged in Counts 1, 2 and 4 or any of the lesser crimes included in those counts. . . . [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of these crimes. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence of prior domestic violence for any other purpose except for the limited purpose of determining the defendant's credibility."
We find that there was no abuse of discretion in this case. In determining whether to admit prior acts of domestic violence, the court considers such factors as whether the prior acts are more inflammatory than the charged conduct, the possibility that the jury might confuse the prior acts with the charged acts, the recentness of the prior acts, and whether the defendant has already been convicted and punished for the prior acts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, appellant's prior acts of domestic violence were far less inflammatory than the charged conduct. Even though the prior instances of abuse involved threats to kill Jane, they were significantly less inflammatory than shooting Jane in the face. Further, Jane testified to a series of prior acts that had taken place over several years, but were distinct from the incident that occurred on June 28, 2009. Moreover, although the prior acts started as long ago as 1999, they continued throughout Jane's relationship with appellant.
As noted, appellant's challenge to the evidence of prior instances of domestic violence seems to rest on his contentions that the evidence was "too" relevant— that is it is likely that the jury convicted him based on this evidence rather than the actual facts of the case; and because the jury did not learn of any punishment for the prior instances of domestic abuse, it was likely the jury convicted him of the current offenses in order to punish him for his past offenses. We are not persuaded.
The jury was instructed that if they concluded that appellant committed the uncharged domestic violence, that conclusion was only one factor to consider along with all of the other evidence; and was not sufficient by itself to prove that appellant was guilty of any of the charged crimes because the People still had to prove each charge and allegation beyond a reasonable doubt. Further, they were not to consider the evidence of prior domestic violence for any other purpose except for the limited purpose of determining appellant's credibility. Given this instruction, we do not believe that it is likely the jury convicted him of the current charges based on the prior instances of domestic violence in order to punish him. "We presume that jurors comprehend and accept the court's directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. [Citation.]" (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; accord People v. Smith (2007) 40 Cal.4th 483, 518 [courts presume that juries follow faithfully instructions given].) Appellant's showing here has left that presumption unrebutted.
Appellant's argument is undermined by the fact that although the jury found him guilty of attempted murder, they did not find that it was willful, deliberate and premeditated; and they found him not guilty of aggravated mayhem, but rather, guilty of only the lesser included offense of battery with serious bodily injury. These findings demonstrate that the evidence of prior instances of domestic violence did not cause the jury to "simply gloss over the actual facts of the case at hand" as appellant contends. Rather, they show that the jury conscientiously considered the evidence presented in returning their guilty verdicts.
Accordingly, we reject appellant's contentions that the trial court abused its discretion and deprived him of due process through the introduction of the evidence of his prior domestic violence.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.