Filed 1/12/18 P. v. Escobar CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

FELIX ESCOBAR,

Defendant and Appellant.
D072250



(Super. Ct. No. SCS291040)

APPEAL from a judgment of the Superior Court of San Diego County, Gary G. Haehnle, Judge. Affirmed.
Aaron J. Schechter, 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 Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Felix Escobar of elder abuse (Pen. Code, § 368, subd. (b)(1)); aggravated assault (§ 245, subd. (a)(4)); violation of a protective order (§ 166, subd. (c)(1)); and battery (§ 242). Escobar admitted a strike prior (§ 667, subds. (b)-(i)) and one prison prior (§ 667.5, subd. (b)). The court sentenced Escobar to an eight-year prison term.
In this appeal, Escobar challenges only the trial court's decision to admit Escobar's previous unlawful act of assaulting his then 77-year-old mother about 15 months before his current attack on the same victim. The prior act was admitted as propensity evidence under Evidence Code section 1109. Escobar contends the court abused its discretion in admitting such evidence, that it was unduly prejudicial and that he was denied due process. We will find the trial court acted well within its discretion in admitting the prior act evidence. There was no error, hence no denial of due process.
STATEMENT OF FACTS
A. Prior Incident of Elder Abuse Presented as Propensity Evidence
In September 2015, Escobar was living with his mother (Mother). At that time, Mother was 77 years old. She did not approve of a number of Escobar's lifestyle choices, such as his drug and alcohol abuse, or how he cavorted with different girls, bringing them to the apartment, and then locking away with them in his room to drink or do drugs.
On September 19, 2015, Escobar brought a girl to stay the night with him at the apartment. The following morning, Mother voiced her displeasure and told Escobar that the girl had to go. Escobar became angry at his mother and started pushing her around. He also wrapped his hands around her throat and lifted her momentarily off the ground. At some point thereafter, Escobar asked his mother not to tell police that the girl had been using drugs.
Mother left the apartment, went to a neighbor's, and called the police. As a result of this incident, the court issued a protective order barring Escobar from coming near his mother.
B. The Instant Offense
In December 2016, the protective order was still in place. But Escobar was again living, off and on, with Mother because she felt sorry for him. On Christmas Day 2016, Escobar asked his mother to take him to a perfume store so that he could buy a gift for his girlfriend. When she refused, Escobar struck her in the face with his fist, causing a bruise near her eye. Scared, and hoping to calm Escobar down, Mother agreed to go with him to the store, though she insisted it would be closed. They walked to the bus stop and waited.
While sitting at the bus stop, Mother pointed out to Escobar that because all the shops around were closed, the perfume shop would also be closed. Escobar again became angry and hit his mother on her legs several times, causing additional bruises. He accused her of never buying him things and not paying attention to him, and then walked off.
When Mother returned to her apartment, Escobar was not there at first. When he returned later, Escobar refused to acknowledge the injuries his mother tried to show him and made no attempt to apologize for his behavior.
The following day was Mother's birthday. Her daughter, Rosalinda, came over that morning. Once inside the home, Rosalinda saw the bruise on her mother's face. Her mother also showed her the bruises on her legs. Mother explained what Escobar had done to her the day before. Rosalinda insisted that they go to the police to make a report.
As Rosalinda drove her mother to the police station, they saw Escobar riding his bike. Rosalinda stopped her car, got out, and confronted her brother about having beaten their mother. Escobar denied having done anything. When Rosalinda told Escobar that they were going to the police to report what he had done, Escobar grabbed his sister and held her tightly to stop her. He asked her not to go to the police.
As Rosalinda struggled to break free from Escobar and demanded that he let her go, patrolling police officers happened upon the scene and stopped. When Rosalinda saw the police, she called out and beckoned for them to come over. Escobar let go of his sister and tried to get back to his bike, but the police stopped him.
The police saw and documented the bruises on Mother and upon learning what Escobar had done, arrested him.
DISCUSSION
Escobar essentially argues the events of the prior act in September 2015 were highly inflammatory, confusing and the prejudicial value of such evidence outweighed its probative value. Thus, he argues the court erred in permitting the introduction of the challenged evidence.
A. Legal Principles.
Ordinarily, evidence of a defendant's prior bad acts is not admissible to prove propensity to commit criminal acts. (Evid. Code, § 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, Evidence Code section 1109 created an exception to the general rule for prior acts of domestic violence, elder or dependent abuse or child abuse. Where a defendant is charged with elder abuse, Evidence Code section 1109 permits the court to admit evidence of relevant prior acts to establish the defendant's propensity to commit such crimes. The protective feature of the statute is that the court must determine the probative value and the prejudicial effect of such evidence as mandated by Evidence Code section 352. (People v. Disa (2016) 1 Cal.App.5th 654, 671.)
When we review evidentiary decisions of the trial court we apply the abuse of discretion standard of review. Under that standard, we will not overturn a trial court's decision in the absence of a clear showing of abuse of the court's discretion. (People v. Disa, supra, 1 Cal.App.5th at p. 672; People v. Johnson (2010) 185 Cal.App.4th 520, 531; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
A. Analysis
Escobar challenges the trial court's decision to admit evidence of the September 2015 attack by Escobar on his mother as a prior bad act. Escobar claims the prior act was so inflammatory, as compared to the instant crime, that its admission deprived him of due process. He further argues the victim's testimony was confused such that the jury would not be able to distinguish between the prior act and the current offense. We do not find either argument persuasive on this record.
First, the 2015 incident is somewhat different than the current offense in that Escobar choked his mother when he did not get what he wanted. In the present case, he beat her when his demands were not met. We are at a loss to understand why the first attack on his mother was "unduly inflammatory." Escobar's conduct at the first event was certainly disgusting, but the same must be said for the charged offense. He did not inflict serious injury on his mother in either instance. He was abusive, ill-tempered and violent in each offense. However, we reject the notion that the fact the first event involved brief choking made it so "inflammatory" as to unduly prejudice the defendant. The trial judge was aware of the facts involving both incidents and did not find the September 2015 incident to be inflammatory. We cannot say the trial court abused its discretion on this point.
We turn next to the claim the jury might have been confused by the mother's testimony, which was not entirely clear as between the incidents. While there is evidence of some confusion on her part, there is independent evidence to clarify each incident.
The September 2015 incident was reported by a 911 call. The call was recorded and the jury was aware of what was reported. Escobar argues, however that the December 2016 incident was not reported in the same manner, thus there is no independent evidence of the facts. While the 2016 events were not reported to police the day they happened, Escobar's sister became aware of the facts the next day.
When the sister learned of Escobar's attack on his mother, she proceeded to take her mother to police. In the process, she encountered Escobar, who then struggled with the sister to try to stop her from reporting the incident to police. It was only when a passing police officer intervened and arrested Escobar, that Mother was able to report the detail of the assault to authorities.
Clearly, the sister's intervention, Escobar's reaction and prompt arrest by police provided abundant corroboration of the details of the 2016 assault. A reasonable trial judge could easily conclude there was no significant risk of confusion by the jury. There was no abuse of discretion in admitting the prior bad acts evidence.
DISPOSITION
The judgment is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:


NARES, J.


DATO, J.