Filed 6/23/17 P. v. Garlington CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH PAUL GARLINGTON,
Defendant and Appellant.

A143580

(Contra Costa County
Super. Ct. No. 1401405)


Defendant Joseph Paul Garlington appeals a judgment entered upon a jury verdict finding him guilty of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor violation of a protective order (Pen. Code, § 273.6, subd. (a)). He contends the trial court improperly admitted evidence of prior convictions involving domestic violence and that his counsel rendered ineffective assistance. We shall affirm the judgment.
I. BACKGROUND
A. The Current Crimes
The victim in this case, Georgina P., dated defendant on and off for several years, until their relationship ended in 2010. In the days before the incident at issue here, defendant had called her phone. In the past, he had left her angry messages.
The evening before the incident, defendant stopped by Georgina’s home and asked Georgina’s roommate, Paula Mendes, “What’s up?” She told him Georgina was not home, and he left. He was driving his black Blazer or Bronco with a white top. Mendes testified that defendant stopped “in the middle of the road all the time right in front of the house.”
Early in the morning of November 19, 2012, Georgina heard a “big crash” outside her home. She looked out the window and saw defendant’s car, a Blazer, driving away. Her neighbors yelled to her that her van had just gotten “smashed into the garage,” and she went outside. Dot Amaral, a friend who was living in a camper in Georgina’s driveway, told Georgina that defendant had run into her van and that Amaral had called the police. The Dodge Caravan had been driven almost all the way through the garage door and was “all crushed.” The back end of the van was damaged.
The jury heard a transcript of Amaral’s call to 911. She told the police, “my roommate’s ex-boyfriend, Joe, he, he just pulled up in the driveway and hit my roommate’s car and put it through the garage door,” then drove away. She said his vehicle was an older model black and white Blazer or Bronco. Toward the end of the call, the dispatcher asked Amaral for Joe’s last name. She replied, “[M]y roommate just came out, let me ask her. Hang on a minute, please. . . . . What’s Joe’s last name? . . . Garlington.”
Tamin Issa, who lived across the street from Georgina, testified that he saw a black or dark blue Blazer with a white top drive into his neighbor’s minivan, back up, and ram into the van a second time, pushing it through the garage door. The vehicle was not a newer model. Issa got a good look at the driver and identified him with 100 percent certainty as defendant.
Natalie K., the mother of defendant’s three children, testified defendant was renting a room from her mother in November 2012. Natalie told defendant she had heard that the police had come to her mother’s house and taken measurements of his car, and defendant told Natalie “that he rammed his truck into that dumb bitch’s Mercedes. She was supposed to be on the other side of the door on the computer, his computer, and it was his job to rid the world of that evil.” Natalie testified she knew defendant was speaking of Georgina “[b]ecause that’s his latest victim.” Defendant also said that if the police had thought to look over into the other yard, they would have seen that he had two trucks and had switched their bumpers.
Officer James McMurry of the Antioch Police Department investigated the case. He met with defendant at his residence, and saw a black and white 1974 Chevrolet Blazer. Defendant told him the Blazer was his only vehicle. McMurry showed defendant photographs of Georgina’s vehicle; defendant pointed to the front of his own vehicle and said, “Looks like, you know, this—this did it.” He paused briefly and said, “But it didn’t.” He told McMurry he had replaced “an inner trim portion on the front grill,” then said something like, “Looks like I’m in trouble.” McMurry later visited defendant’s mother at an address associated with defendant; she pointed out a vehicle in the driveway, a Chevrolet GMC Jimmy, and told him it was also defendant’s vehicle. It was missing its grill. McMurry carried out research and concluded that the grill currently on defendant’s Blazer looked like it belonged to a GMC Jimmy.
Defendant’s mother testified that the GMC Jimmy had no engine, and he used it for parts for his Blazer.
B. The Prior Offenses
1. Georgina P. – 2010 Incident
Georgina P. testified that her relationship with defendant ended after an incident of domestic violence that took place in February 2010. The couple got into an argument, and defendant threw her onto the ground. He was “bear hugging” her and would not let her go. Georgina’s two daughters were present, and one of them, Jessica K., tried to kick defendant off Georgina. Jessica also testified about the incident. She said when she started kicking defendant, he threw her on the ground on top of her mother.
The parties stipulated that defendant sustained a misdemeanor conviction on July 2, 2010, for violation of Penal Code sections 242, and 243, subdivision (e)(1), battery on a spouse or cohabitant, and that a Contra Costa County Superior Court judge issued a three-year criminal protective order prohibiting defendant from harassing Georgina, disturbing her peace, or coming within 100 yards of her.
2. Natalie K. – Incidents in 1992, 1996, and 2000
Natalie K. testified that three incidents of physical violence had occurred between her and defendant. In 1992, as she approached the door of her residence with some friends, defendant leapt toward her, grabbed her, and said, “Guess who gotcha.” He strangled her to unconsciousness, laid her on the ground, and kicked her in the head multiple times. She had obtained a restraining order against him the previous day.
In 1996, when Natalie had a restraining order against defendant, he came to her home, and her children told her “Daddy’s here.” Natalie locked the door and defendant pounded on it. She looked outside and saw that her children were in the back of defendant’s truck. She went outside to get the children, and defendant came in the door. When Natalie tried to get a phone to call for help, he grabbed her by the throat, dragged her around, and slammed her against a wall. The phone was ripped out of the wall. She described that incident as “one of the most minor incidents” between them.
Defendant and Natalie were involved in a custody battle in 2000. She had regained custody of the children and went to his parents’ home to retrieve them. After defendant and his parents refused to allow her to take the children, defendant followed her out to the truck, yelled obscenities, told her he would kill her, and spat in her face.
Natalie testified that after she received her subpoena to testify, defendant had called her residence and asked to speak with her and her husband. On cross-examination, she was asked when defendant had last physically touched her. She replied that he had last threatened to kill her a year previously, at the time of her son’s wedding, by leaving a message on her daughter’s phone.


II. DISCUSSION
A. Admission of Evidence of Prior Acts of Domestic Violence
Defendant contends evidence of his prior acts of domestic violence against
Natalie K. were inadmissible because the offenses with which he was currently charged, vandalism and violating a restraining order, do not involve domestic violence for purposes of Evidence Code section 1109 and Penal Code section 13700. He also contends his trial counsel rendered ineffective assistance by failing to object on this ground.
“ ‘Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109).’ [Citation.] ‘[T]he California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.’ [Citation.] Section 1109, in effect, ‘permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]’ [Citation.]” (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
Section 1109 provides that, with certain exceptions, “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to section 352.” (§ 1109, subd. (a)(1).) Section 1109 defines domestic violence as having the meaning set forth in Penal Code section 13700, and, if the act occurred within five years of the charged offense, the additional meaning set forth in section 6211 of the Family Code, subject to a hearing under section 352. (§ 1109, subd. (d)(3).)
Penal Code section 13700, subdivision (b) defines domestic violence to mean abuse of a current or former spouse or cohabitant, a person with whom the suspect has had a child, or a person with whom the suspect is having or has had a dating or engagement relationship. “Abuse” means “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.” (Pen. Code, § 13700, subd. (a).) Defendant argues the charged offense of vandalism does not meet this definition because it is not a crime of violence against a person. (See People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1291 [vandalism not a crime of violence against a person within meaning of multiple-victim exception to Penal Code section 654].) We disagree.
In deciding whether vandalism is a crime of domestic violence for purposes of section 1109, we look to the facts of the particular case, not simply to the elements of the crime of vandalism. (See People v. James (2010) 191 Cal.App.4th 478, 482-483 [burglary treated as offense involving domestic violence where defendant broke down door of victim and made threatening remarks, placing her in fear of injury].) Here, defendant drove to Georgina’s residence and crashed his vehicle into her parked van, pushing it through her garage door. He told Natalie he did so in the hope that Georgina would be behind the door and he could “rid the world of that evil.” The trial court could reasonably conclude defendant’s actions involved “intentionally or recklessly causing or attempting to cause bodily injury” and therefore constituted an offense involving domestic violence for purposes of Penal Code section 13700, subdivision (a). Defendant also argues that the second crime with which he was charged—violating a restraining order—does not involve domestic violence. This does not affect the result. Both this charge and the vandalism charge were based on the same conduct. Consequently, the trial court did not err in admitting evidence of the prior acts of domestic violence.
In any case, there was no prejudice. This was not a close case. Georgina recognized defendant’s vehicle as it drove away, Amaral recognized defendant and identified him by name when she called 911, Issa described defendant’s vehicle accurately and identified him positively, and Natalie testified that defendant admitted that he had committed the crime. We see no reasonable probability that defendant would have achieved a more favorable result if the evidence had not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Marks (2003) 31 Cal.4th 197, 226-227 [application of ordinary rules of evidence does not implicate federal constitution, and allegations of error are reviewed under Watson standard].)
Because we conclude there was neither abuse of discretion nor prejudice, we also reject defendant’s contention that his counsel rendered ineffective assistance by failing to object to the evidence of the prior acts on the ground defendant’s current charges did not involve domestic violence. (See People v. Dennis (1998) 17 Cal.4th 468, 540-541 [to show ineffective assistance, defendant must show both performance falling below objective standard of reasonableness and prejudice].)
B. Additional Challenges
Defendant makes two additional challenges related to the evidence of prior acts of domestic violence. First, he complains that the jury was permitted to review a packet of information regarding his conviction of two offenses in connection with the 1996 incident of domestic violence against Natalie. The packet included a criminal complaint charging defendant with seven misdemeanor counts and a minute order indicating defendant had pled no contest to two of those counts and the others were dismissed in the interest of justice. He argues that the jury was improperly left to speculate about the meaning of the documents and that it should have been explicitly informed that he was not convicted of all charges. We see no likelihood of confusion. The minute order states clearly that five of the seven counts were dismissed. In any case, the jury had heard Natalie’s testimony about the nature of the incident, and there is no reason to conclude it was confused by having the court documents before it.
Defendant’s second challenge concerns the stipulation that he had been convicted of violating Penal Code sections 242, and 243, subdivision (e)(1), battery on a spouse or cohabitant, in 2010. Defendant asked the trial court to read to the jury the definition of battery (Pen. Code, § 242) and Penal Code section 243, subdivision (e)(1). The trial court denied the request, stating, “I think that they know what battery on a spouse or cohabitant is.” Defendant suggests this was a request for a “pinpoint” instruction, which the trial court should have granted. It is true that, “on request, a criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence. [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 542.) Defendant asserts that the lack of the requested instruction “denied the jury the information it needed to assess [the] evidence,” but suggests no manner in which the statutory language it asked the court to read would have supported his defense. The jury heard both Georgina and her daughter testify that defendant threw Georgina to the ground and pinned her in a bear hug. There is no reason to conclude that hearing the statutory language would have assisted defendant in persuading the jury this incident either did not occur or that it did not constitute battery or domestic violence.
III. DISPOSITION
The judgment is affirmed.







_________________________
Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.