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People v. Zuniga

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
May 4, 2018
E066918 (Cal. Ct. App. May. 4, 2018)

Opinion

E066918

05-04-2018

THE PEOPLE, Plaintiff and Respondent, v. GABRIEL AMBROSIO ZUNIGA, Defendant and Appellant.

John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1500731) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury found defendant and appellant Gabriel Ambrosio Zuniga guilty of willfully inflicting corporal injury on a cohabitant (Pen. Code, § 273.5; count 1), a felony, and violating a protective order (§ 166, subd. (c)(1); count 2), a misdemeanor. Zuniga admitted to five alleged prison priors (§ 667.5, subd. (b)), and allegations that two of those five prior offenses were serious or violent felonies within the meaning of the Three Strikes Law (§§ 667, subds. (c) & (e)(2)(A), and 1170.12, subd. (c)(2)(a)). The trial court sentenced Zuniga to 10 years in prison.

Further undesignated statutory references are to the Penal Code. --------

In this appeal, Zuniga contends that the erroneous admission of evidence of a previous act of domestic violence requires the reversal of his conviction. We find no error, and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from events occurring on July 7, 2015. Zuniga and the victim were in a relationship, had lived together for 14 years, and had three children together. Sometime between midnight and 1:00 a.m., Zuniga and the victim were awake and in their bedroom along with their daughter, then nine years old, who regularly slept on a separate bed in the same room, and their infant child, who regularly slept in the middle of Zuniga and the victim's bed, between them. Zuniga and the victim got into an argument. The argument turned physical after Zuniga picked up the victim's phone and keys and tried to leave the room. During the incident, Zuniga struck the victim once in the head with a closed fist. The physical struggle stopped when another family member who lived in the house, Zuniga's uncle, entered the room and intervened. The victim went to the hospital in the morning, seeking treatment for pain in her eye, ear, and jaw, and ringing in her ear. She was found to have several bruises and a scratch on her arm, and a bump on her head. She testified that the ringing in her ear lasted about two weeks.

At trial, Zuniga and the victim told the jury differing stories about exactly how the argument turned physical. The victim testified that after Zuniga grabbed her phone and keys, she got up from the bed where she had been lying down, and stood in a location where he would have to go past her to exit the bedroom. She stretched out her hand toward him, telling him to give her the keys, and that he could "go walking" but "he wasn't going to take the car." She did not want him to drive the car because he had no license, and the car had previously been impounded because he had driven it. In response, he struck her in the head with his fist. She then tried to wrestle the keys away from him, attempting to grab them from his hand and then, after he put them in a pocket, to reach into the pocket and take them. She was unsuccessful.

Zuniga testified that the victim initiated the physical struggle, grabbing him by the wrist as he tried to leave the room. She then "shoved up" on him, pressing her weight against him, making it hard for him to maintain his balance. He yelled for her to let him go, and "shoved her away." She started to slap and scratch at his face, while still trying to reach into his pocket for the keys. He then hit her once, not because she was blocking him from leaving, but because she "wouldn't get off" of him and was "shoving up" on him. After the family member intervened, Zuniga walked outside, and soon drove away.

During trial, the victim was permitted to testify about a previous incident of domestic violence between her and Zuniga, which occurred on January 18, 2014. The victim's testimony regarding that incident had been the subject of a prosecution motion in limine, requesting its admission pursuant to Evidence Code section 1109. The defense had objected, stipulating to the conviction for violation of Penal Code section 243, subdivision (e)(1), and requesting that any further evidence of the incident be excluded pursuant to Evidence Code section 352. After a pretrial hearing pursuant to Evidence Code section 402, the trial court ruled that evidence of the January 2014 incident could be presented to the jury at trial pursuant to Evidence Code section 1109.

At trial, the victim testified that on January 18, 2014, Zuniga had been drinking alcohol and "was saying some things" that she "didn't understand" and "didn't remember." He threw a full can of beer at her, striking her in the forehead. She called the police for help, and he was arrested. She subsequently obtained a protective order against him. Zuniga was convicted of one count of misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), and spent some time—the victim did not remember for how long—"locked up" as a result of the incident.

During his testimony at trial, Zuniga disputed the details of the victim's account of the January 2014 incident. He admitted to throwing a beer can, but testified that it was empty, not full. He further contended that the can did not strike the victim in the forehead, but rather "just went off of her just by her hair. It didn't even hit her." Additionally, he asserted that he did not intend to throw the can at the victim, but rather at a speaker, and the victim was struck, if she was struck at all, only by a ricochet.

The jury was instructed that it could consider the January 18, 2014, incident for limited purposes, using CALCRIM No. 852. This instruction directed, among other things, that if the jury found the January 18, 2014, conduct had been proven by the prosecution by a preponderance of the evidence, it could, but was not required to, conclude that Zuniga "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 charged offense involving domestic violence, as charged here in Count #1." The instruction further directed that if the jury decided Zuniga had committed the January 18, 2014, domestic battery, that fact was "not sufficient by itself to prove that [he] is guilty of the charged offense in this case involving domestic violence," and that the prosecution "must still prove the charge beyond a reasonable doubt."

After the jury returned its verdicts and defendant admitted to the enhancement allegations, the trial court imposed an aggregate prison term of 10 years, as follows: a three-year term on count 1, doubled to six years on the basis of one of the strike enhancements, plus four consecutive one-year terms for the remaining prior prison term enhancements, and a concurrent one-year term on count 2.

III. DISCUSSION

Zuniga contends that it was prejudicial error for the trial court to allow the jury to hear evidence of the January 18, 2014, incident of domestic violence. We find no error.

Evidence of prior bad acts of a defendant is generally inadmissible to show a predisposition to commit crimes except for sexual offenses and domestic violence cases. (Evid. Code, §§ 1101, 1108 and 1109; People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.) By its incorporation of Evidence Code section 352, Evidence Code section 1109, subdivision (a)(1) makes evidence of past domestic violence inadmissible only if the court determines its probative value is substantially outweighed by its prejudicial impact. (People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson).)

In determining whether evidence should be excluded under Evidence Code section 352 because it is more prejudicial than probative, the trial court should consider (1) "whether the prior acts . . . were more inflammatory than the charged conduct"; (2) "the possibility the jury might confuse the prior acts with the charged acts"; (3) "how recent were the prior acts"; and (4) "whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The "'"similarity to the charged offense"'" has been described as the "'"principal factor affecting the probative value of an uncharged act."'" (Johnson, supra, 185 Cal.App.4th at p. 531."

We will only disturb the trial court's exercise of discretion under Evidence Code section 352 "when the prejudicial effect of the evidence clearly outweighed its probative value." (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) A trial court abuses its discretion when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)

Here, the domestic violence by Zuniga on January 18, 2014, was similar in character to the July 7, 2015, incident charged in the present case, even if the details differ in some respects. (See Johnson, supra, 185 Cal.App.4th at p. 532 ["[Evidence Code section 1109] was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.'"].) In each case, a verbal dispute with the victim escalated to a physical one, and in each case, Zuniga struck the victim in the head. In the earlier case, the blow was with a beer can, rather than a fist; in the earlier case, Zuniga claimed to have struck the victim only by accident, rather than intentionally, but in self-defense. Nevertheless, the trial court did not exceed the bounds of reason by concluding that the evidence of the earlier incident had substantial probative value.

The trial court also did not exceed the bounds of reason in its evaluation of the prejudicial effect of the challenged evidence. Although Zuniga argues otherwise, the January 2014 incident was at least arguably less egregious than the one giving rise to the current charges, because the victim was not injured by the earlier crime. Thus, the evidence of the prior incident was unlikely to provoke any additional emotional bias against Zuniga. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1315-1316 [no abuse of discretion in admitting evidence of a prior domestic violence incident no more egregious than the charged offense].)

Further, there was no reasonable probability that the jury might confuse the two incidents. (People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) The evidence of the prior incident was straightforward, and there is no indication in the record that the jury might have been confused by it. The trial court instructed the jury with CALCRIM No. 852, explicitly distinguishing the January 18, 2014, incident from the one giving rise to the present charges, as well as explaining the permissible uses of the evidence. In the absence of evidence to the contrary, we presume the jury understood and followed the instructions given. (People v. Gray (2005) 37 Cal.4th 168, 217.)

Next, the prior offense was not remote in time. Under Evidence Code section 1109, subdivision (e), a prior incident is presumptively remote if it occurred more than 10 years previously. (Johnson, supra, 185 Cal.App.4th at p. 537.) Here, the prior incident was only about a year and a half before the current offense and therefore was presumptively admissible. (See People v. Morton (2008) 159 Cal.App.4th 239, 248 [stating that the onus was on the defendant to explain why a nine-year-old incident was not reliable or probative].)

Finally, Zuniga suffered a misdemeanor conviction arising from the January 18, 2014, incident, and the jury heard that he had been arrested and "locked up." In People v. Balcom (1994) 7 Cal.4th 414, the court noted that the prejudicial impact of prior crimes evidence is reduced if the defendant was convicted of and sentenced for the prior crime, because the jury would then not be tempted to punish the defendant for his prior crime, and the jury would not have to determine separately whether the defendant had in fact committed the prior crime. (Id. at p. 427.)

In sum, we find nothing in the record requiring the conclusion that the trial court exceeded the bounds of reason in balancing of the relevant factors and ruling that the evidence of the January 2014 incident was admissible under Evidence Code sections 1109 and 352. We therefore find no abuse of discretion in the trial court's determination of that issue.

Zuniga further argues that the admission of the evidence of the prior incident of domestic violence violates his due process rights under the United States Constitution. He concedes, however, that California precedent requires that we reject this argument (see Johnson, supra, 185 Cal.App.4th at p. 529; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027), raising "his facial challenge solely to preserve it for federal review." We accept his concession, and reject the argument. We also acknowledge that Zuniga has raised his due process argument on appeal, without addressing the parties' dispute as to whether the matter was adequately preserved for review by objection in the trial court.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J. We concur: MILLER

Acting P. J. FIELDS

J.


Summaries of

People v. Zuniga

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
May 4, 2018
E066918 (Cal. Ct. App. May. 4, 2018)
Case details for

People v. Zuniga

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GABRIEL AMBROSIO ZUNIGA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: May 4, 2018

Citations

E066918 (Cal. Ct. App. May. 4, 2018)