P. v. Devera

Filed 7/24/07 P. v. Devera CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found appellant guilty of one count of inflicting corporal injury on a spouse, one count of criminal threats with the personal use of a knife, and one count of assault.[1] (Pen. Code,  273.5, subd. (a), 422, 12022, subd. (b)(1), 240.) Appellant admitted enhancing allegations of a strike prior, a prior serious felony, and a prior prison term. (Pen. Code,  667, subds. (b)-(i), 1170.12, 667.5, subd. (b), 667, subd. (a).) Appellant contends that the trial court erred in admitting evidence of appellant's prior acts of domestic violence and his possession of knives.[2] We affirm.

Evidence at Trial

Virginia Devera testified that she was married to appellant and that they had three children together. She said that she was testifying because she had been subpoenaed but that she did not think that appellant "being in jail or in prison is fair without giving him a chance to get help for his problems."

Ms. Devera testified that in May 2003, she "kicked [appellant] out of the house." Appellant had "never been faithful" and was using methamphetamine. After they separated, their relationship was "just a mess." On September 19, 2003, appellant came to the house "mad about everything" and accused Ms. Devera of "seeing somebody." One reason he was mad was that he thought Ms. Devera had reported him for missing his anger management classes. At trial, Ms. Devera could not remember whether appellant brandished a knife during their argument but, when reminded of her statement to the police that appellant did have a knife in his hand, acknowledged "if that's what I said, then he probably did." Ms. Devera testified that, after they argued, "We made up and we had sex, and he laid down on my bed and he was just out." While appellant slept, Ms. Devera went through his clothes, wallet, and cell phone. She did this because, "he was accusing [her] of cheating, and [she] wanted to prove to him he was the one cheating." She called the numbers of every woman listed on his cell phone, having a conversation with the father of one, and also found a condom in appellant's wallet. She shook appellant and yelled at him to get out. This caused him to wake up "in a grumpy mood" and he slapped her.

One of the women from appellant's cell phone list called and Ms. Devera "tried to have him confront her on the phone." Instead, appellant slapped Ms. Devera. Ms Devera testified, "I hung up the phone, then it started going from slap to punches." As she tried to block the punches, appellant hit her in the face, cutting her lip, and on the legs. He knocked everything off of her dresser and called her names.

Appellant took some of his belongings from the garage as Ms. Devera cried in the bathroom. He came and gave her a hug but she "didn't hug him back." After appellant left, she called 911. A recording and transcript of this call were introduced into evidence. Ms. Devera told the 911 dispatcher that appellant "just beat me up" and that he was angry and high on crank. She said that appellant had a knife and that "he pulled it out, but he didn't use it on me." The responding police officer photographed Ms. Devera's injuries and the photographs were introduced into evidence. The officer gave Ms. Devera a form for a temporary restraining order against appellant.

The next day, September 20, 2003, was the first birthday of Ms. Devera and appellant's son I., and a party had been planned. That morning, Ms. Devera heard the sound of her side gate squeaking open. She heard a scraping noise at her window. Although she told the responding police officer that she saw appellant trying to pry her window open with a knife, she testified at trial that she had not actually seen a knife and that she had just assumed that he was using one. Because it was early in the morning, and Ms. Devera did not want appellant to awaken their children, she opened the front door and appellant walked in. Because Ms Devera knew that appellant would be upset about the restraining order, she slid it under her VCR on top of her television. While "moping around" the house, appellant found the restraining order. He "snapped."

Appellant started calling Ms. Devera names, and said "You tried to set me up." Ms. Devera testified that her first reaction was "I just screwed up my son's birthday because of all this." Appellant and Ms. Devera argued. Appellant threw Ms. Devera on the couch and threatened to kill her and then himself. Appellant said, "I should just fuck you up." Ms. Devera told him, "Whatever you're going to do, don't do it in front of the kids." At trial, Ms. Devera testified that appellant "did not put a knife to my throat." However, she acknowledged that she had told the 911 operator and the responding officers that appellant had done so. She acknowledged testifying at the preliminary examination that appellant had something up against her neck but that she was not sure what it was. When I. climbed on appellant's back, appellant stopped.

While appellant was not looking, Ms. Devera called 911. A recording and transcript of this call were introduced into evidence. Ms. Devera told the 911 operator that appellant was "going to kill himself or he's going to kill somebody." She said, "He's got a knife. He raised it up to my neck already." When asked by the operator if appellant still had a knife with him, Ms. Devera answered, "Yes. He does. He put it up to my neck. . . . When he found the papers, he almost cut my neck." She said, "He's gonna kill me" and that, although at that point he was driving away, "He'll come back. I know he will." Crying, Ms. Devera told the 911 operator, "He took the knife out, he put it up on my neck, called me names. Told me he was going to kill me." She said, "God I was so scared he was actually going to slit my throat in front of my daughter." The officer who responded to Ms. Devera's 911 call testified that Ms. Devera was crying and upset. Ms. Devera told the officer that appellant held a knife with a silver handle and silver curved blade to her throat for 10 seconds.

Three days later, another police officer called Ms. Devera to discuss this incident. A recording and transcript of this call were introduced into evidence. Ms. Devera told the officer that appellant had a drug problem. She said he needed "serious help" and that "outpatient is not going to work for him." She described a suicide attempt by appellant and said, "There's no reason for that. He's got three kids. I mean we all need him." She told the officer that appellant "shouldn't have beat me up" but because she attributed his conduct to the influence of drugs she said, "I just don't want him to go to jail for this when it's not even him." She asked the officer "how long . . . guys like this usually go?" She said, "the only charge that I . . . am going to say is that he did beat me up," but said that she did not want "to press charges on the knife." She said that she wanted to "take that back." When the officer explained that the District Attorney, not the officer, would make the charging decision, Ms. Devera asked how she could "get a hold of the District Attorney."

At trial, Ms. Devera said that she had lied to the 911 operator about appellant having the knife because she had wanted the police to arrive quickly. She said that she had lied to the responding officers about the knife because she had wanted the officers to "take it more seriously" and find appellant. Ms. Devera was shown photographs of three knives. These knives had been seized by the police when appellant was arrested at a motel in December. Appellant and another man had been found in the room with methamphetamine and several knives. Ms. Devera testified that she did not recognize the knives.

Over defense objection, Ms. Devera testified that before the charged offenses, appellant had slapped and shoved her but had not punched her. In 2001, another woman told Ms. Devera that appellant was cheating on Ms. Devera. Ms. Devera confronted appellant about this. He slapped her and put his hand around her neck until she "blacked out a little." He then "pull[ed] out a knife" and said, "I could fucking kill you right now if you don't fucking leave me alone and shut the fuck up and don't ever hit me or I will kill you." In 2003, appellant was pushing and shoving her one or twice a week, sometimes triggered by seeing a "smirk" on Ms. Devera's face. In July 2003, appellant questioned Ms. Devera about where she had gotten money to buy new shoes to wear to her children's baptism. When she said that her mother had given her the money, he called her a liar, threw the shoes into the yard, shoved her into a wooden bed frame, and dragged her around the house by her hair. Ms. Devera saw appellant at his sister's house after the charged incidents but before his arrest. He asked her about a number on her cell phone and when she said that she did not know who it was appellant called her a liar and punched her in the stomach.

Appellant testified that in 2003 he was a heavy user of crystal methamphetamine and that it made him delusional.[3] He admitted slapping and punching Ms. Devera on September 19. He admitted arguing with Ms. Devera on September 20 after finding the restraining order. He said that he grabbed her from behind while holding his flip-open cell phone. He said he called her a "bitch" and said "You fucking set me up. You fucking set-up artist." He denied threatening to kill her. He said that the knives that were found in the motel room belonged to the other man in the room. He admitted the prior incidents of domestic violence and said that now that he had entered a substance abuse recovery program he felt "terrible about what happened." He testified that he loved Ms. Devera "to death."

Recordings and transcripts of some phone calls made by appellant to Ms. Devera from the jail were introduced into evidence.[4] In these calls, appellant said to Ms. Devera, "I told the attorney there was no knife involved." When appellant heard that the police had photographed Ms. Devera's bruises, he told her that the domestic violence charges were "gonna stick . . . . Unless you tell them that they weren't from me. That you did that on your own." He told Ms. Devera, "you're the one that holds the key to my freedom right now." Ms. Devera told appellant that he had almost killed her. He told her, "I almost killed Ryan, I almost killed Marissa, I almost killed Ron." He explained that he had thought someone had taken his drugs so he told those that he suspected that if "my dope doesn't come up right now, I swear to God I will slice each one of you guys' throats." In another call, appellant told Ms. Devera that his "problem" could "be dropped easy . . . . By just a statement." She responded, "I already told them and once they get through the knife issue, it'll be flying colors."

In opening argument, the prosecutor said that "it's ridiculous to believe that a woman who is in fear and terror could specifically describe the instrument causing the fear and terror in the defendant's hand accidentally confusing that with a flip cell phone." Defense counsel conceded that appellant was guilty of the September 19 domestic violence charged in count 1 but maintained that appellant was not guilty of count 2, the September 20 assault with a deadly weapon, or count 3, the criminal threats. Counsel argued that Ms. Devera was credible in her testimony that appellant did not have a knife and that, although appellant had threatened Ms. Devera, the language that he used was too conditional to meet the statutory definition of criminal threats. During deliberations, the jury sent a request to the court stating, "We would like to hear the 911 recordings and transcripts by Virginia Devera."

The jury convicted appellant of count 1, inflicting corporal injury on a spouse, and count 3, criminal threats, finding true the allegation that appellant was armed with a knife during the commission of that offense. The jury acquitted appellant of count 2, assault with a deadly weapon, but convicted him of the lesser included offense of simple assault. After a hearing, the trial court denied appellant's motion to dismiss his prior strike conviction and sentenced him to 13 years eight months in state prison. [5]

Evidence of Domestic Violence

Appellant contends, "The admission of evidence of appellant's prior domestic violence, pursuant to Evidence Code section 1109, violated appellant's federal constitutional rights to due process and equal protection." He contends, "Even if admissible, the evidence should have been excluded under Evidence Code section 352."

Background

Before trial, the prosecutor moved under Evidence Code section 1109 to introduce evidence of appellant's prior acts of domestic violence. Defense counsel objected saying "All it shows is bad character." The trial court overruled the objection and found that the probative value of this evidence outweighed its prejudicial impact. The prosecution introduced evidence including the incident in 2001 when appellant pulled out a knife and the 2003 occasion when appellant assaulted Ms. Devera after she bought shoes to wear to the children's baptism.

Discussion

Evidence Code section 1109 provides in pertinent part: "(a)(1) Except as provided in subdivision (e) or (f), 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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."[6]This provision thus overrides the general rule prohibiting the admission of so-called "propensity" evidence when the charged offense involves domestic violence.

Appellant contends that the introduction of evidence of his prior acts of domestic violence violated due process. Appellant "recognizes that the California Supreme Court had upheld the constitutionality of a parallel statute (Evid. Code, sec. 1108) against a due process challenge, and that this Court is bound by that decision. (People v. Falsetta (1999) 21 Cal.4th 903; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; People v. Chavez (1980) 26 Cal.3d 334, 350.)" Appellant raises this argument to preserve it for further review. For the reasons appellant acknowledges, we must reject it.

Appellant argues that the introduction of uncharged prior acts of domestic violence violated his right to equal protection. He argues, "Evidence Code section 1109 treats criminal defendants accused of domestic violence differently from all other criminal defendants except sex offenders, by allowing evidence of prior domestic violence to be admitted for all purposes, including showing a propensity to commit the charged crime." Appellant argues, "Domestic violence neither represents the most serious, nor the most frequently committed criminal offense. If murder cannot be proved through the use of propensity evidence, then no compelling state interest justifies the use of such evidence in a less serious offense."

Evidence Code section 1109 is facially neutral, treating "all defendants charged with domestic violence equally"; it only distinguishes between domestic violence defendants and defendants accused of other crimes. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1311.) "Neither the federal nor the state [C]onstitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as if they were the same. The equal protection clause simply requires that, 'in defining a class subject to legislation, the distinctions that are drawn have "some relevance to the purpose for which the classification is made." ' [Citation.] Absolute equity is not required; the Constitution permits lines to be drawn. [Citation.] The distinction drawn by section 1109 between domestic violence offenses and all other offenses is clearly relevant to the evidentiary purposes for which this distinction is made." (Id. at p. 1311.)

The secretive nature of domestic abuse, combined with the special relationship between victim and abuser, sufficiently distinguishes these cases from general criminal conduct. (People v. Jennings, supra, 81 Cal.App.4th at p. 1313.) The Legislature could rationally distinguish domestic violence cases from other offenses "in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused." (Ibid.)

Appellant contends that the evidence of his prior acts of domestic violence should have been excluded under Evidence Code section 352. He argues, "Appellant was never arrested, charged or convicted of any of the prior alleged incidents of domestic violence. Any relevance to appellant's acts of domestic violence was far outweighed by the prejudicial effect of the evidence, especially in light of the volatile relationship between the parties."

The trial court invited defense counsel to relate the "facts of the case of the previous incident" so that the court could weigh the probative value of this evidence. After reviewing a police report of the 2001 incident and transcripts of the jail telephone calls in which the 2003 beating was discussed, the trial court considered Evidence Code section 352 and ruled that the evidence was admissible. We find no abuse of discretion in the court's ruling. The evidence was neither complicated nor time consuming and, given that the victim of the prior incidents was the same as the victim of the offense charged, highly relevant. In any event, given appellant's admission to committing prior acts of domestic violence as well as the charged domestic violence after Ms. Devera went through his wallet and questioned him about having a condom, there is no probability that appellant would have obtained a more favorable verdict if evidence of his prior misconduct had been excluded.

Evidence of Possession of Knives

Appellant contends, "The admission of evidence of appellant's possession of knives on December 13, 2003, that were not identified as having been used in the charged offenses was inadmissible character evidence." He contends, "Even if the admission of the evidence did not violate due process, the probative value of the evidence was substantially outweighed by the prejudicial effect; the trial court therefore abused its discretion by failing to exclude the evidence."

Background

Outside the presence of the jury and referring to Ms. Devera's description of the knife that appellant had held to her throat, the prosecutor told the trial court, "The victim identified the knife as being silver plated with an opening. Five knives were recovered from the defendant during his arrest. Three of them matched that description. They were recovered in the room where the defendant was arrested. So, first, it's relevant under Evidence Code 1105, habit and custom that he carried the knife . . . ." The prosecutor argued that this evidence was relevant and important to the prosecution because Ms. Devera was "going slightly sideways, which is not uncommon with domestic violence victims." The prosecutor sought introduction of photographs of the three knives, out of the five found with appellant in the motel room, that matched the description that Ms. Devera gave to the officer who responded to her 911 call. The prosecutor told the court, "[Ms. Devera] is not going to identify a knife here in court. She's going to say 'I'm not sure there was a knife.' . . . So my burden is to prove there was a knife in accordance to what she said on the date of the incident. These knives match the description of what she said he used. They were knives he carried all the time." The court agreed, saying that the prosecutor could "introduce those photographs of the knives as long as they limit it to those three."

Discussion

Appellant contends that evidence about the knives was propensity evidence that violated his right to due process. He argues, "There was no relevance to appellant's knives two and a half months after the charged crimes. [Ms. Devera] failed to identify any of the weapons at trial as having been used in the charged crimes." Respondent argues that "evidence that appellant, when he was arrested, had in his possession knives matching [Ms. Devera's] description and the photographs of three knives were admitted on the theory that a jury could reasonably infer from this evidence that appellant used one of those knives to assault [Ms. Devera] a disputed fact of consequence in the action."

"Relevant evidence is defined in Evidence Code section 210 to mean (in pertinent part) ' . . . evidence . . .  having any tendency in reason to prove or disprove any disputed fact. . . .' [] This definition of relevant evidence is manifestly broad. Evidence is relevant when no matter how weak it is it tends to prove a disputed issue." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843, italics added.) Evidence showing the defendant possessed a weapon that could have been the one used in the crime being prosecuted can be relevant. "There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]" (People v. Riser (1956) 47 Cal.2d 566, 577, disapproved on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98 [error to admit gun and ammunition that could not have been used in murders].)

Recently, in People v. Prince (2007) 40 Cal.4th 1179, a capital case, the defendant argued that the trial court had abused its discretion under state law and violated various constitutional rights by admitting into evidence four knives that police had seized from the defendant's automobile upon his arrest. The defendant had been convicted of several offenses including six counts of first degree murder and five counts of burglary. The defendant asserted that the knives simply constituted bad character evidence and were used to support the prosecutor's argument that the defendant was the kind of person who likes to arm himself with knives. Our Supreme Court said, "Although none of the knives evidently was used as a murder weapon, it is reasonable to conclude that defendant used one or more of them during the various charged burglaries and attempted burglaries that were committed subsequent to the murders. There was evidence that at least in the Schultz and Keller murders, defendant came armed with his own knife, and the subsequently committed burglaries and attempted burglaries bore enough similarities to those murders (and the burglaries related to those murders) to enable the jury to reasonably conclude he was armed with his own knife (perhaps one of the knives discovered in his automobile) when he committed some of the charged burglaries and attempted burglaries." (Id. at p. 1248.) Here, because the three knives found with appellant matched the rather specific description Ms. Devera had given to the police officer, any one of them could have been the knife appellant held to her neck, and therefore this evidence had some relevance. There was no evidence that the knives in the photographs admitted at trial could not have been the knife which appellant had on September 20. The fact the knives were discovered two and one half months after the charged offenses affects the weight, not admissibility, of the evidence. Although the evidence did not establish that any of the knives in the motel room was necessarily on appellant's person on September 20, the evidence that knives were recovered from the motel room was relevant and admissible as circumstantial evidence that appellant had the knife described by Ms. Devera with him at the time of the offenses. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1052 [witness properly testified defendant said he kept a gun in his van because "this evidence did not merely show that defendant was a person who possesses guns, but showed he possessed a gun that might have been the murder weapon"]; People v. Neely (1993) 6 Cal.4th 877, 896.)

Appellant argues that the failure to exclude the evidence of the knives was an abuse of the trial court's discretion under Evidence Code section 352. Appellant argues that Ms. Devera "told the police soon after the incident that she wanted to withdraw the allegation that appellant assaulted her with a knife on September 20, 2003. At the preliminary hearing, she also testified that she did not know whether appellant used a knife. At trial, she similarly testified that she assumed he had a knife, and failed to identify any of the photographs of the weapons seized at the time of appellant's arrest as having been used during the charged crime." Although Ms. Devera did change her statement about the knife, this change in her position must be balanced with the evidence of her panicked call to 911 and her initial statement to the officer describing the knife. We disagree with appellant that this inconsistency in her position makes the evidence of appellant's possession of the knives "marginally relevant." We consider it to have been within the trial court's discretion to admit this evidence that appellant was found in possession of three knives which matched Ms. Devera's original description of the weapon used by appellant.

Appellant contends, "The November, 2001, incident in which appellant pulled a knife was remote and failed to establish any common scheme or plan, or 'modus operandi,' justifying admission of the evidence." Appellant argues that "evidence that appellant brandished a knife in the uncharged incident bore little, if any, relevance to the jury's determination of whether he used a knife in the charged crime." We do not consider an event that occurred less than two years earlier to be particularly remote, and that it involved the same two parties increased its relevance and probative value. Although brandishing a knife and using a knife may be distinct concepts within criminal law, this distinction does not make evidence of one irrelevant as proof of the other, and we find no abuse of discretion in admitting this evidence.

Even if we were to find merit in appellant's contentions about the evidence that the court admitted, we would be compelled to find any error harmless. Were the evidence as prejudicial as appellant argues, it is very unlikely that the jury would have reached the verdict that it did. Appellant was convicted of the domestic violence which he had admitted and criminal threats with the knife use enhancement. However, the jury acquitted appellant of the assault with a deadly weapon charge, finding him guilty only of simple assault. The evidence that appellant had held the knife to Ms. Devera's throat, based on her 911 call and her statement to the responding officer, was quite compelling. But so was the evidence that Ms. Devera sought to influence the outcome of the case, hoping for a lenient disposition to give appellant "a chance to get help for his problems." It may be that what had the greatest influence on the jury's verdict was the evidence that, a few days after the incidents, and referring specifically to the charge of assault with a knife, Ms. Devera told the officer, "I don't want him to be charged with that. . . . 'Cause I know . . . that's a bad one."

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] The assault charge was a lesser included offense of the count of which the jury acquitted appellant, assault with a deadly weapon. (Pen. Code,   245, subd. (a)(1).)

[2] In his supplemental opening brief, appellant contends that if his trial counsel's objections to the admission of evidence were insufficient to preserve constitutional objections on appeal, he was deprived of the effective assistance of counsel. We consider counsel's objections to have been sufficient to preserve his constitutional challenges. (People v. Partida (2005) 37 Cal.4th 428, 438.)

[3] Appellant admitted three prior felony convictions. The trial court did not permit the prosecutor to introduce evidence that one of appellant's prior convictions was for assault with a deadly weapon.

[4] Prominently placed signs at the jail, and recordings at the outset of calls from the jail, warn inmates that phone calls are monitored.

[5] This appeal concerns case no. CC335320. Appellant's sentencing hearing combined this case with case no. CC336460, in which appellant pleaded no contest to possession for sale of methamphetamine, possession of a stolen vehicle (his brother-in-law's), and simple possession of methamphetamine and admitted a strike prior and a prior prison term. In that case, the trial court imposed sentence consecutive to the domestic violence case and it contributed one year four months to the total sentence imposed.

[6] Evidence Code section 1101 provides: "(a) Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [] (b) 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. [] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."