From Casetext: Smarter Legal Research

People v. Penn

Aug 30, 2018
D073706 (Cal. Ct. App. Aug. 30, 2018)




THE PEOPLE, Plaintiff and Respondent, v. KORY JON PENN, Defendant and Appellant.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF 1500704) APPEAL from a judgment of the Superior Court of Riverside County, Steven G. Counelis, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Kory Jon Penn was charged by amended information with two counts of inflicting upon Jane Doe (K.D.), who at the time was in a dating relationship with defendant, corporal injury resulting in a traumatic condition (Pen Code, § 273.5, subd. (a), counts 1 & 2); and with one count of false imprisonment by "violence, menace, fraud, and deceit" (§ 236, count 3). The amended information further alleged that defendant in count 1 had personally inflicted great bodily injury on K.D. (§§ 12022.7, subd. (e) & 1192.7, subd. (c)(8)), and that he had sustained two prior serious and violent felonies for purposes of the Three Strikes law (§§ 667, subds. (c), (e)(2)(A) & 1170.12, subd. (c)(2)(A)).

All further statutory references are to the Penal Code unless noted otherwise.

The jury found defendant guilty as charged. Defendant admitted he had two prior convictions, as alleged in the amended information. The court sentenced defendant to an indeterminate term of 25 years to life on count 1; to the determinate middle term of six and four years on counts 2 and 3, respectively, to run concurrently; and to four years for the great bodily injury enhancement connected to count 1.

On appeal, defendant contends the court erred when it refused pretrial to strike one of his strike priors under People v. Vargas (2014) 59 Cal.4th 635 (Vargas), which held that multiple convictions based on a single act count as only one strike. He also contends that the court erred when it admitted under Evidence Code section 1109 evidence of a suicide attempt by Jane Doe (C.E.), a former long-term girlfriend of defendant, and when it admitted under Evidence Code section 1101 other-crimes evidence involving victim Tyler M. (who is the subject of a separate appeal, D073708); that there was insufficient evidence in the record to support his conviction on count 3; and alternatively, that the court improperly defined the term "menace" for purposes of count 3.

As we explain, we agree with defendant that the court erred when it admitted under Evidence Code section 1109 evidence of C.E.'s attempted suicide, but conclude that error was harmless. We also reject each of defendant's other contentions and thus affirm his judgment of conviction.


We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to each of defendant's contentions of alleged error are discussed post.

K.D. testified that she and defendant began dating in about June 2014, after she had finished "rehab"; that after they met, she relapsed; that she and defendant lived in her car or with friends; and that starting in late November 2014, they lived at defendant's parents' home. During their relationship, defendant sold drugs, including methamphetamine, heroin, and Xanax. He also gave K.D. heroin, as she was an addict and without the drug, she became ill. K.D. testified she and defendant used heroin and other drugs on a daily basis during their relationship.

K.D. testified about an incident that took place on July 4, 2014. Defendant returned to a friend's home where the couple had been staying and found K.D. and one of defendant's friends using methamphetamine in a bathroom. Concerned defendant would become angry, K.D. hid behind the bathroom door. When defendant saw K.D. hiding, he grabbed her by the neck, choked her, pushed her into the bathtub, and hit her in the eye and on her jaw. Defendant then prevented K.D. from leaving the home by placing her car keys in a secured mailbox that she could not access.

K.D. testified this was not the first time defendant had strangled her. She recalled another time when he used his forearm to place her in a chokehold, after they had left a friend's home. When K.D. lost consciousness, defendant let her "limp" body fall to the ground, causing her to hit her head and, as later reported by defendant, to convulse. K.D. awakened and saw defendant sitting next to her, who repeatedly demanded she "get up."

K.D. testified that while they were dating, defendant broke her nose a "couple of different times by punching [her]" in the face and by kneeing her in the face. Regarding the latter incident, K.D. recalled she and defendant had been arguing. When defendant became angry, she knew defendant "was going to hit [her]." On this occasion defendant came up to her while she was sitting on the bathroom floor and kneed her in the face "really hard." K.D. did not seek medical treatment.

K.D. recalled on another occasion when they were in the car defendant "socked [her] in the face really hard," causing her nose to break and bleed. When K.D. started to cry, defendant told her to "shut [her] bitch ass up" and then "popped" her nose back into place, making it less crooked.

K.D. testified she had a scar on her right triceps from an incident when defendant stabbed her with scissors after they had argued. This incident occurred at a friend's home, where they sometimes stayed. K.D. noted they fought over "drugs a lot" because defendant believed she was stealing drugs from him and because defendant believed she was unfaithful to him.

K.D. described an incident in January 2015 that took place in the parking lot of a large department store. They were with a friend nicknamed "Bubba." Once inside the store, defendant began stealing items. Because they had been caught stealing a few months earlier, K.D. testified she left the store and went back to the car, where she and Bubba waited for defendant. When defendant returned, he was angry with K.D. for leaving him alone inside the store and accused K.D. of "fooling around" with Bubba. K.D. climbed into the backseat. Rather than get into the front passenger seat as K.D. had expected, defendant got into the backseat with K.D. and began hitting her. Bubba yelled at defendant to stop, but defendant continued to hit K.D. At some point the police were called. During the fight defendant used "hair clippers" to strike K.D., causing her to bleed. He also bit one of K.D.'s fingers so hard he almost "bit [it] off."

The instant offenses involved an incident that took place in the early morning hours on December 24, 2014 (before the parking lot incident). K.D., defendant, and their friend Alex had been at a bar in Moreno Valley. Afterwards, Alex drove them to "Jimmy's" home, who was another of their friends. According to K.D., they went to Jimmy's home for the night because defendant's mother, Kyle Penn (Ms. Penn), had been upset they had gone out that evening. Jimmy allowed defendant and K.D. to sleep in his room, while he went upstairs to sleep in his sister's room.

As she and defendant hung out alone, defendant became upset and accused K.D. of being unfaithful, which K.D. denied. Unprovoked, defendant then used his fist to strike K.D. underneath her right eye, causing her nose to bleed profusely. Defendant next instructed K.D. to go to the bathroom and clean herself up. As she was in the bathroom washing the blood off her face, Jimmy came back downstairs and asked what had happened. Afraid defendant would hit her again, K.D. remained silent as defendant stood beside her in the bathroom. Jimmy ordered defendant to leave the home. Because K.D. feared defendant would become jealous and strike her again if she stayed in the home alone with Jimmy, she left with defendant.

After leaving Jimmy's home, they began walking towards defendant's parents' home, which K.D. estimated was about two miles away. Because defendant had punched her in the face, K.D. walked on the opposite side of the street from defendant, who chose to walk in the middle of the street as it was the middle of the night. At some point a police officer stopped them. On contact, an officer saw defendant throw away what turned out to be a "meth pipe" and an "Exacto blade." Defendant was arrested.

Scared that defendant would retaliate and the "cycle" of domestic violence would "start all over again," K.D. testified she then did not disclose to police that defendant had just punched her in the face. Instead she merely asked another officer to take her to defendant's parents' home, where they had been staying. On arrival, she went to the back of the home and encountered defendant's mother, Ms. Penn, who seemed surprised to see her. K.D. disclosed defendant had hit her in the face, which was partially numb. According to K.D., Ms. Penn gave her an icepack and told her to go lie down.

K.D. testified that she told Ms. Penn that she wanted to leave defendant; that she felt "trapped" in their relationship; that he would tell her nobody loved her, including her own family; that he called her derogatory names every day; and that in response she felt "worthless" and believed she "would be better off dead." Ms. Penn offered to drive K.D. to K.D.'s mother's home the following day, believing defendant would remain incarcerated at least until then.

A few hours later, defendant unexpectedly returned to his parents' home. Angry, defendant demanded money from K.D. to pay for the taxi waiting outside. He next went to her wallet, took money from her, and paid the taxi. Aware that defendant had returned, Ms. Penn instructed K.D. to pack her things because she then was going to drive K.D. home. With his mother standing in the doorway, defendant told K.D., who was kneeling on the floor packing her belongings, she was "not fucking going anywhere." K.D. testified the cycle of violence started all over again.

Specifically, K.D. testified defendant pushed her over, got on top of her, and struck her on the lip and again on the temple/jaw, causing her to bleed profusely. After screaming for help, Ms. Penn came to the door. Defendant in response went downstairs to the kitchen and grabbed two knives. Defendant then told K.D. to "get the fuck up and go wash [her] fucking face off, because [she] had blood on [her] face, and to go clean up and to go take a shower."

While showering as defendant had instructed, defendant came into the bathroom and informed K.D. that his mother was calling the police and that he was not going back to jail. Still traumatized by his blows, K.D. got out of the shower only to find defendant sitting on the bathroom floor adjacent to the door, cutting his wrists with a knife. K.D. testified that this was "typical behavior" for defendant, as he would physically abuse her and then cut himself. During this incident, defendant repeated he was going to "kill [himself]" and "want[ed] to die."

A short time later, K.D. heard the police outside the home. "Frantic," K.D. tried to leave the bathroom but defendant prevented her from opening the door, as he had wedged himself between the door and a wall. Shortly thereafter, police announced their presence and began banging on the bathroom door, which defendant refused to open. After K.D. repeatedly screamed for help, police kicked in the door and pulled her out of the bathroom.

Police photographed K.D.'s injuries that same day, including injuries defendant had inflicted on her while they were at Jimmy's home. K.D. also took photographs of her injuries a few days later, including of her lip, which had been torn from her gum. Because she was still experiencing facial numbness and pain, K.D. sought medical treatment on December 27, or three days after the two incidents. At trial, K.D. testified she was still experiencing problems with her right eye stemming from the blows she received on December 24.

The record shows the court conducted an Evidence Code section 402 hearing before admitting the photographs K.D. took of herself a few days after the two incidents.

K.D. testified she initially tried to protect defendant when police arrived at Ms. Penn's home because she was fearful of defendant and she also had some "empathy" for him. However, as the police interview continued, K.D. finally disclosed what defendant had done to her. Police later drove K.D. to her own mother's home.

Defendant was released from jail sometime before January 1, 2015. K.D. then was living at a hotel. K.D. testified they "got back together" shortly thereafter. For the next few weeks, defendant and K.D. lived in various hotels. However, on January 18, 2015, K.D. called her mother and said she needed help. K.D. testified she did so because she knew she was "going to die, whether it was from an overdose or whether it was in the hands of [defendant]." K.D. then went into a drug rehabilitation program for more than a year.

Ms. Penn testified about the December 24 incident involving defendant, her son. She awakened at about 3:00 a.m. and found K.D. alone inside her home, which greatly upset her because K.D. appeared under the influence. K.D. disclosed she was alone because police had arrested defendant. Ms. Penn testified that she let defendant and K.D. live in her home because she was concerned they would be living on the street. Ms. Penn then knew that K.D. had a "drug problem" because K.D. had been in "rehab," but then claimed not to know that her son also was using drugs.

Ms. Penn initially testified that when K.D. came home alone in the middle of the night on December 24, K.D. did not disclose that defendant had struck her in the face earlier that night. Ms. Penn later changed her testimony and agreed K.D. had made this disclosure. Ms. Penn also testified she did not see "anything wrong" with K.D.'s face that night and denied getting K.D. an icepack or telling her to lie down. Instead, according to Ms. Penn, K.D. merely went into the bedroom to fold clothes.

The record shows Ms. Penn twice refused to review a transcript of a recording between her and a police officer in which she advised the officer that, when she encountered K.D. in her home at about 3:00 a.m., K.D. had in fact disclosed to Ms. Penn that defendant had hit her in the face, noting "they can write anything they want." Outside the presence of the jury, the prosecutor played the relevant portions of the audio to refresh Ms. Penn's memory.

At about 5:00 a.m. defendant returned to his parents' home. Ms. Penn observed defendant then was very emotional "and acting like he was on something." Ms. Penn testified that she instructed defendant to leave K.D. alone; that he refused to listen; and that she then decided to call 911 because her seven-year-old grandson was staying the night in the home.

Ms. Penn testified that at some point she heard defendant and K.D. talking. She went to the bedroom door and saw defendant on top of K.D., pinning her to the floor. Defendant would not let K.D. up. Ms. Penn testified she could not recall telling the police that she was scared because defendant was irate and was "starting to grab the knives"; or that K.D. was screaming while defendant pinned her to the floor; or that she told the 911 operator that "defendant was out of control and beating up his girlfriend." Ms. Penn described her son as a "very loving person" who got "upset very easily."

The record shows the prosecutor, in response to Ms. Penn's testimony, played a recording of the 911 call for the jury, in which Ms. Penn stated, "He's out of control and beating up his girlfriend." Ms. Penn also disclosed to the operator her belief that both her son and K.D. were under the influence of methamphetamine, despite her earlier testimony that she did not learn about her son's drug use until informed by police later that morning. The transcript of the 911 call was included in the record.

Despite the 911 call, Ms. Penn testified she did not see defendant punch K.D. while pinned to the floor. She also denied ever hearing defendant and K.D. argue. Instead, she stated the couple merely had "disagreements."

Ms. Penn testified that, after the police arrived, she felt "embarrassed" because she had "caused all this commotion" by calling the police over nothing, as defendant and K.D. had "made up" and were, she assumed, in the shower together. Ms. Penn denied hearing any shouting or screaming coming from the bathroom.

Sheriff Deputy Jose Corona testified he was on duty and dispatched to Ms. Penn's home at about 5:30 a.m. on December 24, 2014. On arrival, he contacted Ms. Penn outside the home. She informed Deputy Corona that she saw defendant, whom she described as "irate," on top of K.D. with "his arm around her neck." She also told deputies that she was scared and that defendant had a "history of alcohol and drug use." (Italics added.)

Deputy Corona and another officer knocked loudly on the bathroom door and identified themselves. He could hear "muffled arguments" and saw someone was trying to open the door, which was followed by someone slamming it shut. It was then he heard a woman later identified as K.D. frantically yelling for help.

After kicking in the door, Deputy Corona observed a man later identified as defendant sitting on the floor, right next to the door, with a knife in his hand. There was blood on the floor. Deputy Corona ordered defendant to drop the knife and then quickly grabbed K.D., who appeared fearful and scared. Deputy Corona then observed "numerous injuries" to K.D.'s face, including bruising and a substantially swollen top lip, which appeared to affect her speech; discoloration in the "whites of her eye, and discoloration on her eyelid"; and markings around her neck.

During their initial contact, K.D. seemed hesitant to tell Deputy Corona how she had been injured. However, once defendant had been taken to the hospital for treatment, K.D. told Deputy Corona about both incidents. At some point later that day, Deputy Corona went to the hospital and interviewed defendant, after defendant waived his Miranda rights. That interview was recorded and played for the jury.

Miranda v. Arizona (1966) 384 U.S. 436.

A transcript of the December 24, 2015 interview of defendant by Deputy Corona was included in the record.

During the interview, defendant denied being asked to leave Jimmy's home the night before the incident, instead saying they had left the home (in the middle of the night) because they were bored. As they walked home, they were contacted by police. Defendant admitted to having a "pipe" on him, which led to a "paraphernalia possession, um, ticket or whatever." On release, defendant stated he took a cab home and got money from his wallet, and then tried to talk to K.D. However, defendant's mother stated K.D. needed to leave the home and K.D. said she also wanted to go. Defendant told Deputy Corona that his mother was blowing the incident out of proportion and that neither he nor K.D. "g[o]t into it" until K.D. "tried to grab the knives away from [him]" inside the bathroom.

Defendant denied intentionally hitting K.D. in the eye or on the lip and denied seeing any bruising or blood on K.D. When asked how K.D.'s lip had become so swollen, defendant surmised his elbow had accidently hit K.D.'s face while they were wrestling over the knives, which defendant admitted he intended to use allegedly to kill himself. When confronted about the statements by K.D. and Ms. Penn that he had punched K.D. in the face, defendant claimed neither of them cared about him and they were "over exaggerat[ing] a few things."

The doctor who treated K.D. on December 27, 2014, testified her injuries were consistent with being struck in the face. His notes showed that K.D. complained of pain to her face and neck; that he observed bruising on the right side of her face, and bleeding in, and redness on, her eyeball; and that she had a bump on the back of her head. A CAT scan showed K.D. had sustained two fractures to her right eye socket. The radiologist who read the films similarly testified K.D.'s injuries were consistent with being struck by a closed fist.

Detective Christian Vaughan of the Riverside Police Department, a member of the domestic violence unit, testified on the issue of domestic violence including why a victim would stay with his or her abuser. Detective Vaughan testified an abuser typically used intimidation, emotional abuse, isolation, and jealousy to exert "power and control" over a victim. Detective Vaughan noted it was common for a victim to minimize or deny being abused.

He also noted that abusers also sometimes will play the role of victims, threatening to harm themselves including to commit suicide, which he noted was "not uncommon" in his experience. Detective Vaughan noted such tactics were "a very powerful, manipulative tool to play on the emotions of someone who would never be the type of person who would want that on their conscience or know that because — or even if it's not true, to be made to feel that's something they did, or they could have something better, or if they had only treated him [or her] the right way, that this person wouldn't feel like killing themselves. A lot of people don't want to have that on their conscience."



Relying on Vargas, supra, 59 Cal.4th 635, defendant contends the court erred in refusing pretrial to strike one of his two prior conviction allegations because the two convictions were allegedly based on the same act. We disagree.

A. Guiding Principles

In Vargas, supra, 59 Cal.4th 635, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of forcibly taking the victim's car. (Ibid.) The trial court used both convictions to sentence the defendant to the indeterminate term of 25 years to life. In reversing the defendant's sentence, the Vargas court held that when a defendant has been convicted of committing a single criminal act on a single victim that results in two felony convictions under different statutes, a trial court abuses its sentencing discretion if it fails to strike one of the two convictions for purposes of the Three Strikes law. (Id. at pp. 640-649.) In reaching its decision, the court reasoned that when an offender commits but a single act, he or she does not pose a greater risk to society merely because the Legislature has chosen to criminalize the act in different ways. (Id. at p. 646.)

The Vargas court noted it had previously found that multiple crimes may constitute multiple strikes when crimes are tried together (People v. Fuhrman (1997) 16 Cal.4th 930, 933) or even when, because the multiple crimes occur during a single course of conduct, punishment of only one crime is imposed and punishment is stayed under section 654, subdivision (a) with respect to the other crimes (People v. Benson (1998) 18 Cal.4th 24, 27-31 (Benson)). (Vargas, supra, 59 Cal.4th at pp. 638-639.) Thus, the court in Vargas distinguished the situation when, as in the case before it, there are "multiple criminal convictions stemming from the commission of a single act[ ]" (id. at p. 648), from "multiple criminal acts" committed in a single course of conduct (ibid.).

In Benson, the two prior strike convictions were based on an incident in which the defendant returned to a neighbor's apartment to retrieve his keys, grabbed his neighbor, forced her to the floor, and repeatedly stabbed her. (Benson, supra, 18 Cal.4th at p. 27.) After the defendant in Benson was convicted of residential burglary and assault with intent to commit murder, the trial court stayed one of the convictions pursuant to section 654, subdivision (a), because both offenses were based on the same course of conduct. (Benson, at p. 28.) When the defendant reoffended, both of his convictions were later alleged as strikes.

On appeal, the defendant in Benson contended that section 654 prevented both burglary and assault charges to be used as strikes. (Benson, supra, 18 Cal.App.4th at p. 28.) Our high court disagreed, concluding that a stay under section 654 did not prohibit the imposition of multiple strikes. (Benson, at pp. 28-31.) In reaching its decision, the Benson court distinguished the situation where "multiple convictions arise out of a single act by the defendant," from the situation in which "multiple acts [are] committed in an individual course of conduct . . . ." (Id. at p. 36, fn. 8.)

B. Additional Background

Defendants' two prior strikes are based on an incident dating back to January 28, 2010, that occurred at the home of victim Jonathan O. The incident was recorded by surveillance cameras located outside the home and was also the subject of a police report.

Division Two of this court previously reserved for consideration with this appeal defendant's request to take judicial notice of Jonathan's testimony in case number RIF1500175, which is the subject of a separate appeal (D073708). We now decline that request, as the record in D073708 shows the trial court did not base its decision to deny defendant's pretrial Vargas motion on Jonathan's trial testimony, which issue defendant also raised in this separate appeal, but was instead admitted pursuant to Evidence Code section 1101, subdivision (b). Nor did defendant ask the court to revisit its denial of that pretrial motion after Jonathan completed his trial testimony.

On that day, defendant and companion C.E. went to Jonathan's home to exchange a camera for money. The police report noted that defendant, C.E., Jonathan, and Jordan O., who lived at the same address as Jonathan, had known each other for many years; that Jonathan previously had lost a pair of sunglasses belonging to C.E.; and that defendant and C.E. in return had a camera belonging to Jonathan, which they were holding as "collateral" until he paid her for the sunglasses.

The incident arose after Jonathan gave C.E. $65, but she refused to return Jonathan's camera. They began arguing, leading C.E. to push Jonathan. As the argument continued, defendant approached, pulled out a black revolver from his waistband, pointed it at Jonathan, and demanded that Jonathan leave C.E. alone. Jonathan reported he was scared when defendant pointed the gun at him.

Jonathan next saw Jordan and Kimberly S., who also had been at the home, arguing with C.E., who in response "punched [Jordan] in the face with a closed fist." Jordan and Kimberly then began fighting with C.E. Jonathan saw defendant assisting C.E. by "hitting and kicking" Jordan and Kimberly. Jonathan intervened and stopped the fight.

Jonathan followed behind defendant and C.E. as they were walking to their car to leave, after the altercation had ended. Jonathan then informed defendant and C.E. he was going to report the incident to police. Defendant in response pulled out the gun a second time, pushed it into Jonathan's stomach, and stated, "I'm going to blow you away." Scared, Jonathan stopped talking and quickly went inside the home. The police report noted Jonathan asked for protection from defendant.

The police report also included a witness interview of Jordan. She confirmed defendant yelled several times he was going to "blow away" Jonathan as defendant and C.E. walked toward their car.

The police report noted that C.E. was contacted at her home shortly after the incident. C.E. told police that defendant was inside the home but denied defendant had a gun. Police called defendant's cellphone and demanded he come outside. Defendant complied. When asked about the gun, defendant told police it was a "watergun [sic]," which he claimed to have thrown out the car window while they were driving to C.E.'s home.

C.E. gave police permission to search the home, again insisting defendant never had a gun. During a search of the residence, a gun and unspent ammunition were located in C.E.'s room. A records check showed the gun was registered to Ms. Penn. On questioning, Ms. Penn reported defendant did not have her permission to take the gun.

As a result of this incident, defendant was charged with, and ultimately pleaded guilty to, making a criminal threat to another (i.e., Jonathan) "which would result in great bodily injury and death," in violation of sections 422 and 12022.5, subd. (a) (count 1 of Apr. 5, 2010 amended information in case No. RIF10000706); and attempting to "prevent and dissuade" another (i.e., Jonathan), who might be a witness, "from reporting a suspected crime to a law enforcement agency . . . by means of force and threats of unlawful injury" (i.e., using a .38 caliber revolver), in violation of sections 136.1, subdivision (c)(1), 12022.5, subdivision (a) and 1192.7. subdivision (c)(8) (count 2).

The record in the instant case shows the trial court, after considering the parties' papers and hearing the argument of counsel, found that there was a "temporal distinction" between counts 1 and 2 and that the counts involved "two completely separate acts" by defendant. Relying on language from Vargas that the voting public would reasonably have understood "that no one can be called for two strikes on just one swing" (Vargas, supra, 59 Cal.4th at p. 646), the court found defendant did not take just "one swing" at Jonathan, but rather "two": as there were "two different occasions where the defendant, according to the police reports, pulled out a firearm, and threatened [him,] one that occurred before the victim said that the victim was going to call the police, and one that occurred after the victim made an indication of reporting to the police." Thus, the court denied defendant's Vargas motion, finding the two prior offenses were separate acts involving the same victim.

C. Analysis

Here, we conclude the facts of defendant's two strike priors are similar to the facts of Benson and not Vargas. Although the record shows both offenses occurred on the same day and involved the same victim, the record further shows defendant's two convictions did not involve a single act (see Vargas, supra, 59 Cal.4th at p. 642), but rather involved two separate and distinct acts: making a criminal threat by use of a firearm during the altercation; and, once the altercation had ended, attempting to prevent or dissuade by use of a firearm the same victim from reporting the incident to police, after the victim followed defendant and his companion to their car and stated he was going to report the incident to police, both of which acts were committed in an indivisible course of conduct. (See Benson, supra, 18 Cal.4th at p. 36, fn. 8.) As such, we conclude the court properly refused to treat defendant's two strike priors in case number RIF10000706 as a single strike.

Defendant nonetheless contends the court erred because, in denying his Vargas motion, it did not consider whether his conduct in case number RIF10000706 satisfied the elements of the offenses. The record, however, shows that defendant pleaded guilty to counts 1 and 2, and thus, there was no reason for the prosecutor to prove the elements of either offense.

Defendant also pleaded guilty in case number RIF10000706 to count 3, a misdemeanor, which is not relevant to this analysis.

In any event, it is clear the trial court properly exercised its discretion in refusing to strike one of defendant's prior convictions based on its finding of a "temporal distinction" between the two acts of defendant, which finding, we note, is supported by substantial record evidence, as summarized ante. (See People v. Brooks (2017) 3 Cal.5th 1, 57 [noting in a challenge to the sufficiency of the evidence, "[w]e ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value' " ' "].)

Defendant also contends he was deprived of due process because the trial court did not separately consider when ruling on his Vargas motion whether to strike one of his priors "in furtherance of justice" pursuant to section 1385, subdivision (a), as interpreted in People v. Williams (1998) 17 Cal.4th 148 (Williams).

In Williams, our high court ruled that, when deciding whether to strike a prior conviction under section 1385, a trial court "must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) We find defendant's contention unavailing.

First, we note defendant's motion to dismiss a strike prior was made pretrial. As such (and without a crystal ball), defendant then could not have known the outcome of his trial in the instant case. Thus, it would have made little sense at that stage of the proceedings to consider whether he was outside the spirt of the Three Strikes law under Williams, which includes as a factor "the nature and circumstances of his [or her] present felonies." (See Williams, supra, 17 Cal.4th at p. 161, italics added.)

Second, the record shows at sentencing, defendant did not ask the trial court to dismiss a strike prior when the court sentenced him to the indeterminate term of 25 years to life. As such, he forfeited this claim of error. (See People v. Carmony (2004) 33 Cal.4th 367, 375-376 [explaining that "any failure on the part of a defendant to invite the court to dismiss under section 1385 following [People v. Superior Court] Romero [(1996) 13 Cal.4th 497] waives or forfeits his or her right to raise the issue on appeal"].)

Third, to forestall a claim of ineffective assistance of counsel and, in light of defendant's request for remand to allow the trial court to address this issue, we reach the merits of this claim of error and conclude the trial court did not abuse its discretion in sentencing defendant as a third-strike offender.

Indeed, we note defendant did not even attempt to demonstrate in his opening brief that he fell outside the spirt of the Three Strikes law. And for good reason. The record shows defendant has a lengthy criminal record, which, as noted by the probation report and the court at sentencing in the instant (and related) case, also showed defendant was engaging in more dangerous and serious crimes.

Specifically, the probation report found that defendant's convictions were increasing "in size and seriousness"; that he had been afforded numerous opportunities "via probation to rehabilitate, remain in society, and become a productive citizen but he ha[d] failed to do so"; and that his failure to do so was evidenced by "his prior convictions, failure to successfully abide by terms and conditions set forth by probation, pending cases (RIF1500175, RIF1402874, RIM1415296, RIM1501369), and the instant matter."

At sentencing, the record shows the court relied on California Rules of Court, rule 4.421, and found the offenses in the instant case involving K.D. involved a "high degree of cruelty, viciousness, and callousness"; that K.D. was vulnerable; and that defendant took advantage of that vulnerability and used his position of trust in committing the instant offenses.

As to the defendant, the court noted he had "engaged in violent conduct that indicates a serious danger to society. His prior convictions as an adult which are numerous or of increasing seriousness. That he was on probation when the crime was committed. And that his performance on probation was unsatisfactory." The court also found no factors in mitigation with respect to the instant offense(s) or to defendant.

On this record, we conclude the trial court did not sentence defendant in an absurd, irrational, or arbitrary manner for purposes of the Three Strikes law when it concluded — and apologized for being "blunt" — that defendant was a "danger to society." (See People v. Myers (1999) 69 Cal.App.4th 305, 309-310 [noting a defendant who "seeks reversal must demonstrate that the court's decision was irrational or arbitrary"].) We thus reject this claim of error.


Defendant next contends the court prejudicially erred when, over objection, it admitted evidence that his former girlfriend C.E. attempted suicide as a result of domestic violence by defendant.

A. Additional Background

The record shows the court conducted an Evidence Code section 402 hearing outside the presence of the jury to determine whether to admit evidence of C.E.'s suicide attempt. During this hearing, C.E. testified that she endured years of verbal abuse from defendant, who "every day" called her "fat" and a "piece of shit"; that over the six or seven years they were together, he also physically abused her; that he was seeing other women and not telling C.E.; and that in March 2014, she therefore "drank and took some Xanax and slit [her arm] with a box cutter," after her "whole world [had come] crash[ing] down."

At the conclusion of the hearing, the court ruled to exclude evidence that Ms. Penn worked at the same hospital that treated C.E. after her suicide attempt; that Ms. Penn paid C.E.'s hospital copay; and that C.E. heard Ms. Penn tell hospital staff her son was to blame for C.E.'s suicide attempt. However, the court found C.E.'s attempt to commit suicide was the "cumulative effect" of defendant's abusive behavior and ruled this testimony was admissible under Evidence Code section 1109.

C.E. testified before the jury that she and defendant were in a dating relationship from 2006 until about April 2014; that a couple of months into their relationship, he became verbally abusive, calling her fat, making other comments about her weight, and saying she was a P-O-S, which she testified meant "piece of shit"; that such comments made her depressed; and that at about the same time he began verbally abusing her, the abuse turned physical. C.E. recalled an incident when she was driving with defendant seated next to her. They began arguing and defendant became mad and without warning "punched [her] in the side of the head" with a closed fist.

C.E. testified about an incident that occurred after December 25, 2009. She had given defendant a gaming console as a Christmas gift. She discovered defendant had been communicating with his former girlfriend and asked defendant to leave her home. Defendant would not leave without his new gaming console. When C.E. stated he did not deserve the gift, defendant became angry and started pushing C.E.

According to C.E., they ended up in a bathroom, where defendant attempted to throw the console out a window. When C.E. tried to stop him, defendant began hitting her in the stomach and chest, causing C.E. to fall to the floor and bleed. After this incident, C.E. testified defendant still would not leave her home. Instead, he blocked the bathroom door and would not move until C.E.'s father began calling her name.

C.E. described another incident when she and a group of friends went to socialize at a bar. During the evening, she contacted defendant outside the bar. At that time, they were taking a "break" in their relationship. Defendant became angry because C.E.'s friends included other men. Defendant demanded C.E. leave the bar with him. After dropping off some of his friends, defendant became angry with C.E., claiming she had been rude to his friends during the car ride. Defendant then hit her on the left side of the face.

C.E. testified that over the course of their seven-year relationship, defendant rarely had a "legal" job, but instead sold drugs and depended on her financially. In March 2014, C.E. tried to take her own life because of the constant verbal and physical abuse she endured from defendant during their relationship; his taking advantage of her financially, as she helped support him; and his constant lying about not seeing other women. C.E. took Xanax, drank alcohol, and used a box cutter to cut herself. After she began bleeding, C.E. realized what she had done was "stupid" and sought help from her parents, who were home at the time. She testified her father took her to the hospital. Even after this incident, C.E. wanted to be with defendant because she "loved him."

B. Guiding Principles

Evidence Code section 1101 makes inadmissible "evidence of a person's character or a trait of his or her character . . . to prove his or her conduct on a specified occasion." However, evidence of prior acts of domestic violence offered pursuant to Evidence Code section 1109 is admissible to show the defendant's propensity to commit domestic violence unless there is a probable danger that undue prejudice will substantially outweigh the probative value of this evidence. (People v. Callahan (1999) 74 Cal.App.4th 356, 368.) Evidence Code section 1109 makes past acts of domestic violence highly probative. (See People v. Johnson (2000) 77 Cal.App.4th 410, 419 [noting 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' "].)

"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 (Rodrigues).) "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) "[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213.)

"The court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. [Citation.]" (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) Such rulings are reversed only upon " 'a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

Evidence Code section 1109, subdivision (d)(3) defines the term "domestic violence" as follows: " '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."

Section 13700, subdivision (b) further defines this term in relevant part as follows: " 'Domestic violence' means 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." Subdivision (a) of this same statute defines "abuse" to mean "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."

Section 6211 of the Family Code, part of the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (DVPA)), provides in relevant part, " 'Domestic Violence' is abuse perpetrated against . . . (c) [a] person with whom the respondent is having or has had a dating . . . relationship." "Abuse" for purposes of the DVPA is defined in Family Code section 6203 as "(a) . . . any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault."

Finally, Family Code section 6320, subdivision (a) lists various behaviors the court may enjoin including the "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."

C. Analysis

Here, defendant specifically contends the court erred in admitting under Evidence Code section 1109 C.E.'s testimony that she attempted suicide because attempted suicide does not fall within the definition of "domestic violence" set forth in section 13700, subdivision (b), as further defined in subdivision (a). However, the definition of "domestic violence" is not limited to section 13700, but also includes the DVPA, as noted.

The case of People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle) informs our analysis on this issue. There, the defendant argued the court erred when it instructed the jury it could consider a stalking incident to prove propensity under Evidence Code section 1109 because, much like defendant in the instant case, the defendant in Ogle claimed stalking did not qualify as "domestic violence" within the meaning of Evidence Code section 1109. (Ogle, at p. 1143.) The defendant in Ogle relied on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala) to support his claim.

In Zavala, the defendant was charged with stalking his wife after she obtained a restraining order. The trial court allowed evidence of prior acts of violence against the wife to prove appellant's propensity to commit the stalking offense, pursuant to Evidence Code section 1109. The Zavala court concluded that the acts of prior violence were admissible under Evidence Code section 1101, subdivision (b), to prove defendant's intent and wife's state of mind, but not to prove propensity, because stalking was not a crime of domestic violence within the meaning of Evidence Code section 1109. (Zavala, supra, 130 Cal.App.4th at pp. 771-772.)

The Ogle court expressly disagreed with Zavala, noting that decision had expressly "overlook[ed] Family Code section 6211, which defines domestic violence more broadly and includes stalking." (See Ogle, supra, 185 Cal.App.4th at p. 1144.) The court in Ogle next turned to Family Code section 6211 and noted that it defined "domestic violence" to require "abuse," and that section 6203 of the Family Code defined "abuse" to include any of the behaviors in Family Code section 6320, which included "stalking" as set forth in subdivision (a) of that statute, as we too have noted ante. (See Ogle, at p. 1144.)

The Ogle court thus recognized that the definition of "domestic violence" for purposes of Evidence Code section 1109 was broader than the definition set forth in section 13700: Evidence Code "[s]ection 1109 applies if the offense falls within the Family Code definition of domestic violence even if it does not fall within the more restrictive Penal Code definition. (People v. Dallas (2008) 165 Cal.App.4th 940, 952.) In Dallas, abuse of a baby was admissible pursuant to [Evidence Code] section 1109 because it was domestic violence within the meaning of Family Code section 6211, although it was not domestic violence within the meaning of section 13700, which did not include the baby in its narrower class of protected victims.

"Appellant argues that the Family Code reference in section 1109's definition of domestic violence was intended only to bring abuse of children of domestic partners within the statute and that it was not really intended to incorporate all forms of abuse that fall within the broader Family Code definition. We must reject the argument because the statute unequivocally incorporates the Family Code definition without limitation: ' "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.' ( [Evid. Code,] § 1109, subd. (d)(3).) The plain language of a statute proscribes its interpretation by the courts. (Code Civ. Proc., § 1858.) 'When statutory language is clear and unambiguous, there is no need for construction and [the] courts should not indulge in it.' (People v. Overstreet (1986) 42 Cal.3d 891, 895.) ' "If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute). . . ." ' (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.)" (Ogle, supra, 185 Cal.App.4th at pp. 1144-1145.)

We agree with the reasoning of Ogle that "domestic violence" for purposes of Evidence Code section 1109, subdivision (d)(3) is not limited to the statutory definition set forth in section 13700, subdivisions (a) [defining "abuse"] and (b) [defining "domestic violence," which requires "abuse"] as defendant argues, but instead includes the definition of that term as set forth in Section 6211 of the Family Code, "if the act occurred no more than five years before the charged offense." (Evid. Code, § 1109, subd. (d)(3).) This conclusion does not end our analysis on this issue, however.

Indeed, the question becomes whether attempted suicide itself — as opposed to the various uncharged incidents of "bodily injury" (see § 13700, subds. (a) & (b)) and/or the other forms of "abuse" (see Fam. Code, §§ 6211, 6203 & 6320) defendant allegedly committed against C.E. during their dating relationship — was admissible under Evidence Code section 1109. Clearly, the evidence of physical abuse defendant committed against C.E. was admissible under Evidence Code section 1109, as defendant himself tacitly recognizes based on his decision not to challenge on appeal the court's ruling to admit such testimony. Also admissible was any evidence of "abuse" as defined in the DVPA, so long as such abuse occurred within five years of December 24, 2014, the date of the offenses against K.D. (See Evid. Code, § 1109, subd. (d)(3).)

However, on this record we conclude the trial court erred in admitting evidence of C.E.'s attempted suicide in April 2014 based on the "cumulative effect" of defendant's domestic violence against her during their lengthy dating relationship. We note from the record that C.E. testified she attempted suicide not only because defendant was physically and verbally abusive, but also because he was taking financial advantage of her and her family, and was lying about dating other women. C.E. also testified that she still loved defendant and they continued to see each other, even after her suicide attempt. We thus conclude that C.E.'s attempted suicide does not meet the definition of "domestic violence" as set forth in Evidence Code section 1109.

We nonetheless conclude that the admission of the attempted suicide evidence was harmless error because it is not reasonably probable that a result more favorable to defendant would have been reached if such evidence had been excluded. (See Ogle, supra, 185 Cal.App.4th at p. 1145 [noting error in admitting evidence of a defendant's prior acts of domestic violence as propensity evidence under Evidence Code section 1109 is subject to the People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson) standard of prejudice].)

First, defendant tacitly concedes it is not reasonably probable he would have been acquitted of counts 1 and 2 had the evidence of C.E.'s attempted suicide been excluded.

Second, even without this concession, the other evidence against defendant was compelling. K.D. testified count 1 took place at Jimmy's home, after defendant became enraged, accused her of being unfaithful, and without warning punched her in the right eye, causing her nose to bleed. Jimmy in response ordered defendant to leave his home. As K.D. and defendant were walking to his mother's home about two miles away, police contacted defendant, and ultimately arrested him for possession of drug paraphernalia. Police gave K.D. a ride to Ms. Penn's home. Although it was early in the morning, K.D. spoke to Ms. Penn and told her what had happened, including that defendant had punched her in the face and had been arrested as they walked home. Ms. Penn, who worked in a hospital, gave K.D. an icepack and told her to lie down.

Count 2 took place a few hours later, when defendant came home unexpectedly after being released from custody. K.D. testified defendant was angry. Ms. Penn told K.D. to pack her things. K.D. testified defendant became enraged when he learned K.D. was leaving, told K.D. she was "not fucking going anywhere," and then attacked her as she was on the floor packing. Specifically, defendant pushed K.D. over, got on top of her, and punched her in the lip and again on the temple/jaw, causing her to bleed and her lip to detach from her gum. Defendant then demanded she shower and wash "her fucking face off" to hide the evidence of his assault.

Although Ms. Penn denied most of K.D.'s account of what transpired during the second incident (i.e, count 2), the record shows it was Ms. Penn who called the police on her son and told the 911 operator he was "out of control and beating up his girlfriend." In addition, responding Deputy Corona testified he contacted Ms. Penn outside her home at about 5:30 a.m. and she described defendant as "irate," acknowledged her son had a "history of alcohol and drug use," which knowledge Ms. Penn later denied, and that she had seen defendant on top of K.D. with "his arms around her neck," which she also later denied. On contact with K.D., Deputy Corona observed "numerous injuries" to her face, including bruising and a very swollen lip, which, he noted, made talking difficult for K.D.

But there's more. During a recorded interview with Deputy Corona shortly after the incident, defendant claimed K.D. and his mother were "over-exaggerating a few things" when confronted with their statements that defendant had repeatedly punched K.D. in the face. Defendant denied seeing any bruising or blood on K.D.'s face, but at the same time claimed K.D. likely got injured by his "elbow" when she attempted to take the knives away from him during his alleged suicide attempt.

Moreover, as noted defendant on appeal has not contested the admissibility of the uncharged acts of domestic violence against C.E. The record shows there was substantial similarity between those uncharged acts and the charged offenses involving K.D. (See People v. Johnson (2010) 185 Cal.App.4th 520, 531-532 [noting the " ' "principal factor affecting the probative value of an uncharged act is its similarity to the charged offense" ' "].)

The record shows that with both victims defendant primarily struck them in the head and/or face with a closed fist; that he verbally abused both victims constantly during his relationships with them, calling C.E. "fat" and a "piece of shit," and calling K.D. a "bitch ass" and other derogatory names; and that drug use was prevalent in both relationships, as defendant separately supplied both C.E. and K.D. with drugs, himself used drugs with them, and sold drugs to make money during his respective relationships with them.

Third, there is more than sufficient other evidence to support the jury's finding that defendant caused K.D. great bodily injury in connection with count 1, which concerned defendant's assault of K.D. at Jimmy's home when he punched her in eye. Indeed, the record shows as a result of this assault, K.D. sustained a fracture to her eye socket in two places.

Finally, with respect to his conviction on count 3, false imprisonment by "violence, menace, fraud, and deceit" (§ 237), the record shows that before defendant barricaded the bathroom door, he told K.D. she was "not going fucking anywhere"; that he struck her in the lip and on the temple/jaw; that he demanded she "get the fuck up and go wash [her] fucking face off," because he had bloodied her; that he then went downstairs to the kitchen, got two knives, and followed K.D. into the bathroom; that he positioned himself between the door and a wall to prevent K.D. from leaving or police from entering; that when officers arrived, they could not open the bathroom door because as they pushed on the door to open it, someone (i.e., defendant ) was pushing back on the other side of the door to keep it closed; that the officers also saw someone trying to open the door from inside the bathroom (i.e., K.D.) and someone slamming the door closed (i.e., defendant); that K.D. repeatedly yelled for help because defendant prevented her from leaving the bathroom; that while inside the bathroom, he began cutting himself with a knife while still preventing K.D. from leaving the bathroom; and that it was only after police kicked in the bathroom door and pulled K.D. to safety that she was able to escape defendant. We conclude this evidence, and the inferences to be drawn from it, are more than sufficient to show defendant possessed the requisite intent to confine K.D. in the bathroom.

As discussed post, defendant also challenges the court's instruction that he committed count 3 with "violence or menace" as set forth in sections 236 and 237, subdivision (a).

In sum, we conclude the evidence C.E. attempted suicide was harmless error not only as to counts 1 and 2, as defendant concedes, but also as to the findings K.D. sustained great bodily injury in connection with count 1, and his intent to confine K.D. in connection with count 3. (See Ogle, supra, 185 Cal.App.4th at p. 1145.)


Defendant next contends the court also erred in admitting under Evidence Code section 1101, subdivision (b) his assault of Tyler resulting in great bodily injury.

As noted, defendant was convicted of this offense in case number RIF1500175, which he has separately appealed (D073708).

A. Additional Background

The prosecution pretrial moved to admit evidence of defendant's assault on Tyler. Over objection, the court admitted the evidence, ruling the "[Tyler] case is ... sufficiently similar . . . to disprove the innocent mental state or [lack of] accident or inadvertence or self[-]defense or good faith in th[e] . . . case . . . involving K.D."

Tyler testified before the jury that defendant had been his "drug dealer" and had sold him methamphetamine and heroin. On October 12, 2014, Tyler accompanied a friend who wanted to buy drugs from defendant because defendant owed Tyler $20. They met in a parking lot at about 6:00 a.m. K.D. was with defendant. Tyler testified he went up to defendant's car and knocked on defendant's car window. Defendant in response became aggressive and, according to Tyler, said, "Why are you in my face?" Defendant next opened the car door and pushed Tyler to the ground, causing Tyler's cellphone to break. When Tyler demanded defendant buy him a new cellphone, defendant claimed Tyler owed him money for damage to the front-end of defendant's truck, after defendant had rear-ended another car earlier in the week while attempting to answer one of Tyler's myriad phone calls regarding the $20. Defendant next grabbed some expensive headphones out of Tyler's hand and told him to go back to his friend's car.

Tyler testified that when he tried to grab his headphones back, defendant unexpectedly "socked [him] in the eye," "split[ting his] eye open." Defendant continued to swing at Tyler as he attempted to retrieve his headphones from defendant. Defendant next smashed Tyler's head against the hood of defendant's car, causing Tyler to "black[] out." When he regained consciousness, Tyler was laying on the ground against a car tire. Tyler stated his vision was blurry and his head was bleeding "like a water fountain."

Despite his injuries, Tyler's friend still wanted to buy drugs from defendant. Tyler testified his friend called defendant to arrange to purchase the drugs at another location. While his friend was talking with defendant on the telephone, Tyler grabbed the phone and asked defendant why he had attacked him. Defendant in response "just said, 'Don't call the cops' and hung up."

The record shows the court instructed the jury with CALCRIM No. 375 as follows: "If you decide that the defendant committed the uncharged acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether [¶] . . . [¶] [t]he defendant's alleged actions were not the result of mistake or accident; or [¶] . . . [¶] [t]he defendant's alleged actions were not in good faith, by inadvertence, or in self[-]defense."

B. Guiding Principles and Analysis

Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

"Evidence that a defendant committed crimes other than those for which he [or she] is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive [or] intent" (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels)) or to "overcome [a defendant's] defense." (People v. Wilson (1991) 227 Cal.App.3d 1210, 1216.)

On appeal, the trial court's determination of whether to allow evidence under Evidence Code section 1101, "being essentially a determination of relevance, is reviewed for abuse of discretion." (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter); see People v. Edwards (2013) 57 Cal.4th 658, 711 [noting an appellate court reviews the trial court's determination under Evid. Code, § 1101 for abuse of discretion in the light most favorable to the trial court's ruling].) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (Carter, at p. 1149.)

Here, the record shows defendant denied intentionally striking or assaulting K.D. either at Jimmy's home (count 1) or at his mother's home (count 2) on questioning by Deputy Corona shortly after his arrest. When asked how K.D. had been injured, defendant instead claimed his elbow must have accidently struck K.D.'s face while they were wrestling over the knife inside the bathroom in his mother's home. As noted, however, K.D. claimed she sustained her injuries as a result of defendant's unprovoked attacks on her, after he had become angry and lashed out at her for little or no reason.

Similarly, the record shows defendant immediately became aggressive, demanded Tyler get "out of his face," and pushed Tyler to the ground merely because Tyler had knocked on his car window and asked about the $20. When Tyler complained defendant had broken his cellphone and owed him a new one, defendant became even more angry, socking Tyler in the eye and "split[ting]" it open. Defendant next smashed Tyler's head against the hood of defendant's car, causing Tyler to suffer a significant scalp injury.

We conclude the trial court did not err when it found the other-crimes evidence involving Tyler relevant to disprove both the innocent mental state of defendant and the lack of accident, in connection with the injuries K.D. sustained to her face and right eye caused by defendant. In both the charged and uncharged (in this case) crimes, defendant initiated the assaults; in both situations, he used his fist to strike his victim in the face and eye without warning or provocation; and both involved assaultive conduct by defendant on victims who did not, or could not, fight back.

Although we recognize there are dissimilarities between the assaults by defendant on K.D. and on Tyler, as K.D. was his girlfriend and Tyler was merely his friend who also purchased drugs from defendant, we nonetheless conclude on balance the court did not abuse its discretion in finding the other-crimes evidence was relevant to support the inference that K.D.'s substantial injuries were not the result of an accident, or the product of an innocent intent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 [noting the "least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent"].)

Defendant nonetheless relies on People v. Jandres (2014) 226 Cal.App.4th 340 (Jandres) to support his claim of error. In Jandres, a prosecution for rape, the court held that the trial court had erred by admitting evidence that defendant put his finger into a young girl's mouth during an attempted kidnapping, because "[g]iven the many differences between the two offenses," the uncharged act by the defendant of putting his finger into the girl's mouth did not show propensity to commit rape. (Id. at p. 356.) In contrast to Jandres, as noted there were sufficient common characteristics between the unprovoked assaults involving K.D. and Tyler to make the other-crimes evidence relevant in the instant case.

We further conclude the trial court properly decided that the probative value of the evidence of defendant's assault of Tyler was not substantially outweighed by a danger of undue prejudice, confusion or consumption of time. (See Rodrigues, supra, 8 Cal.4th at p. 1124.) We note the testimony describing defendant's assault on Tyler was relatively brief and "was no stronger and no more inflammatory than the testimony concerning the charged offenses" involving K.D. (See Ewoldt, supra, 7 Cal.4th at p. 405.) Finally, there was strong evidence defendant committed both the charged and, at least with respect to the instant case, the "uncharged" offenses. (See ibid.)

In any event, even if the court erred in admitting the other-crimes evidence involving Tyler, defendant again tacitly concedes this error was harmless under the Watson standard of prejudice with respect to counts 1 and 2. We further conclude that error was harmless with respect to the intent to confine in count 3 and the great-bodily injury enhancement, as summarized ante in our discussion of C.E.'s attempted suicide. We thus reject this claim of error.


Defendant next contends the record evidence does not sufficiently support the finding he committed misdemeanor or felony false imprisonment. The distinction between these offenses has been well analyzed in another case:

"The misdemeanor offense requires no force beyond that necessary to restrain the victim. All that is necessary is that ' "the individual be restrained of his [or her] liberty without any sufficient complaint or authority therefor, and it may be accomplished by words or acts . . . which such individual fears to disregard." [Citations.]' [Citation.] ' "Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his [or her] liberty or is compelled to remain where he [or she] does not wish to remain, or to go where he [or she] does not wish to go, is false imprisonment." ' [Citation.] [¶] As to the felony's elements, the jury was instructed . . . that 'Violence, within the terms of this instructions [sic] means the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint. [¶] Menace means a threat of harm express or implied by word or by act.' ... The instruction's distinction between violence and force is consistent with dictum in People v. Arvanites (1971) 17 Cal.App.3d 1052, 1059-1060 and footnote 7, where the court noted that a contrary statutory interpretation, rendering 'violence' synonymous with 'force,' would allow the felony offense to largely swallow up the misdemeanor. We agree and conclude the instruction accurately states the meaning of 'violence' in section 237. [Citation.]" (People v. Babich (1993) 14 Cal.App.4th 801, 806-807 (Babich); see also People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 [noting the trial court erred when it found that "force was solely an element of felony false imprisonment," as misdemeanor false imprisonment also requires force but "becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint"].)

Here, as noted ante, there is more than sufficient evidence to support the finding that defendant "intentionally confined" K.D. inside the bathroom and that such act made K.D. "stay . . . somewhere against [her] will" for purposes of misdemeanor false imprisonment under section 236. (See Babich, supra, 14 Cal.App.4th at p. 806.) Thus, the narrow question presented here is whether the court properly instructed the jury regarding the meaning of "menace" and if so, whether there was sufficient evidence that defendant used violence or menace, over and above that force necessary to effectuate the false imprisonment, upon K.D. (See § 237, subd. (a) [providing felony false imprisonment arises when the imprisonment is "effected by violence, menace, fraud, or deceit"]; see also CALCRIM No. 1240.)

The jury was instructed with a modified version of CALCRIM No. 1240 as follows: "The defendant is charged in Count 3 with false imprisonment by violence or menace in violation of Penal Code section 236 [sic]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally confined someone by violence or menace; [¶] AND [¶] 2. The defendant made the other person stay or go somewhere against that person's will. [¶] Violence means using physical force that is greater than the force reasonably necessary to restrain someone. [¶] Menace means a verbal or physical threat of harm. The threat of harm may be express or implied. [¶] An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] False imprisonment does not require that the person restrained be confined in jail or prison." --------

Defendant contends the court erred when, over objection and in response to a jury question regarding whether menace applied only to K.D. or also could apply to defendant for purposes of count 3, it responded: "Menace means a verbal or physical threat of harm to any person." Defendant contends this instruction is incorrect as a matter of law because menace for purposes of subdivision (a) of section 237 only applies to the threat of harm to another, as opposed to oneself. Because the prosecutor in closing argued he was only relying on a "menace theory," defendant contends his felony conviction on count 3 must be reversed.

Respondent the People contend the court properly instructed the jury that menace means a threat to harm "any person," as the statute does not limit the threat of harm to a victim but rather, the threat must cause the victim to remain confined as the statute itself merely requires the imprisonment to be "effected" by one of the elements. (See § 237, subd. (a).) The People further contend the defendant's threat to harm himself, as opposed to K.D., constituted the requisite menace to support his conviction on count 3.

We need not resolve this dispute because we conclude there is more than sufficient evidence in the record to support the finding that defendant effectuated the false imprisonment of K.D. by threatening to harm her. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 [noting "[i]t is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury"].)

Here, the record shows that just minutes before defendant followed K.D. into the bathroom and prevented her from leaving by barricading himself behind the door, he told K.D. she was "not fucking going anywhere," pushed K.D. over onto the ground, got on top of her and began strangling her, twice punched her in the face causing her to sustain serious injury to her lip and face, and then demanded she "go wash [her] fucking face off" in the bathroom — the same room he restrained her after grabbing two knives from the kitchen. And this was not the only assault on K.D. that day by defendant, as earlier he had punched her in the eye at Jimmy's home. We conclude this evidence, including the inferences to be drawn from such evidence, amply supports the jury's finding that defendant used the ongoing threat of violence, or menace, over and above that necessary to effectuate the restraint of K.D. for purposes of section 237, subdivision (a).

That defendant claims that he was harming himself and not K.D. inside the bathroom; and that he allegedly did not intend to renew what K.D. referred to as the "cycle of violence" against her, or to confine her, in the bathroom, even after he wedged himself between the door and a wall and repeatedly pushed the door closed as police attempted to push the door open, does not change our conclusion. When a jury's finding is supported by sufficient record evidence, as is the case here in connection with count 3, a court of review is not entitled to reweigh the evidence and reach new or contrary findings even if there is evidence to support such alternative findings. (See People v. Farnam (2002) 28 Cal.4th 107, 143 [noting "if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding"].) We thus reject defendant's claim of error on this issue.


The judgment of conviction is affirmed.


BENKE, J. WE CONCUR: /s/_________

McCONNELL, P. J. /s/_________


Summaries of

People v. Penn

Aug 30, 2018
D073706 (Cal. Ct. App. Aug. 30, 2018)
Case details for

People v. Penn

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KORY JON PENN, Defendant and…


Date published: Aug 30, 2018


D073706 (Cal. Ct. App. Aug. 30, 2018)