Filed 9/19/18 P. v. Hernandez-Perez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, Thomas D. Glasser, Judge. Affirmed.

James R. Bostwick, Jr., 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, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

In December 2015, defendant Omar Hernandez-Perez threatened to kill his mother while kicking in her front door. A jury found him guilty of making a criminal threat (Pen. Code, § 422) and vandalism (Pen. Code, § 594, subd. (a)). The trial court placed him on probation for 36 months. On appeal, defendant contends the trial court erred by admitting evidence that he battered his mother in 2013, which the prosecution argued was relevant to the intent element of the current criminal-threat charge. (See Evid. Code, § 1101, subd. (b).)[1] He further contends the court erred by instructing the jury it could consider the evidence for this purpose. We reject these contentions, and affirm.[2]

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

In December 2015, 24-year-old defendant lived in a two-story house in Lake Elsinore with his parents, R.M. (Mother) and Rolando H. (Father). The parents, who were separated but sometimes lived together for financial reasons, slept in separate bedrooms in the upstairs living quarters. Defendant lived in the converted basement studio, which was accessed from an outdoor stairway.

On the evening of December 21, defendant and Father argued in the downstairs studio because defendant was looking through Father's personal documents. Mother heard the argument from upstairs. After arguing for five or 10 minutes, Father went upstairs.

A few minutes later, defendant went upstairs to make soup. When defendant briefly left the kitchen, Mother told Father to hide a bag of lemons because she knew defendant would want to use them in his soup, and she needed them for her own homeopathic remedy. When defendant returned, he noticed the lemons were gone and became upset. He asked his parents what happened to the lemons, and they claimed to not know. Defendant became agitated and began yelling and cursing, then headed downstairs for a few minutes.

Defendant had a history of mental health issues and often became violent. When Mother heard defendant returning upstairs, she locked the front door and told Father to barricade it with the sofa. Father complied. Mother called 911, and a recording of her call was played for the jury. According to a transcript of the recording, Mother told the 911 operator (in part):

"We need help immediately. My son [sic] we had to barricade the door. He threatened our lives. [¶] . . . [¶] He's psychotic . . . . [¶] . . . [¶] I don't know if he has a weapon outside or, ah, I don't know what he has. I don't want to get near the [door]. [¶] . . . [¶] [W]e're on the inside and we're trying to keep the door barricaded. He already busted the door and broke . . . . [¶] . . . [¶]

" . . . He . . . started threatening us and he left in a huff and so, I closed the door and locked and my husband had the keys to the lock. He took our keys and he took my husband's keys and he started to talk to him that he's going to fuck us up and he wanted us dead. . . . And, um, he's been in the psychiatric hospital before but, he's getting super violent."

The operator indicated she would send help.

Deputy Perry Willow of the Riverside County Sheriff's Department testified that December 21, 2015, was an "[e]xtremely busy" shift. Consequently, about 20 minutes passed from the time Mother called 911 to the time he was dispatched. Due to this passage of time, Willow called Mother before responding to determine whether his "immediate response was still necessary." According to the deputy, Mother responded, "He's still here. Please hurry." Mother, on the other hand, testified she told the deputy to "hurry up, because [she] was afraid [defendant] was going to leave," thereby defeating her purpose of obtaining mental health assistance for him.

Deputy Willow arrived at the scene within three or four minutes of calling Mother. As the deputy approached the front gate to the property, he encountered defendant, who appeared "pretty agitated" and "came to [Willow] with a cell phone in his hand, wanting to record everything . . . ."[3] Willow spoke to defendant for about 45 minutes, during which time defendant admitted "he kicked in the door" because "his parents refused to let him in." The deputy then left defendant (who was neither handcuffed, detained, nor arrested) to go upstairs to speak with Mother.

When Willow arrived at the entrance to the upstairs living unit, he observed the front door was "folded down," meaning "[t]he only hinge that was attached was the bottom hinge, and it was leaning against the couch." The wood casing from around the deadbolt "was laying in the middle of the living room."

Deputy Willow spoke with Mother for about 30 minutes. The conversation "started off very calm," but Mother became "very agitated" after the deputy explained the criteria were not satisfied for him to take defendant on a "5150 hold," as Mother desired.[4] Willow explained the only offense for which he could arrest defendant was vandalism. Mother refused to press charges, and "demanded" that Willow call his supervisor.

Willow's supervisor told him to explain "the 5150 criteria once again, explain that [defendant] did not meet it, and advise [Mother] that the only crime [Willow] could arrest [defendant] for was criminal threats," which would require that Mother sign a "private person's arrest form" (Arrest Form) because the offense was a misdemeanor committed outside the deputy's presence. Mother signed the Arrest Form, and Willow arrested defendant.[5]

After defendant's arrest, Mother told the district attorney's office that defendant had not made a criminal threat or damaged her property. She repeated these denials at trial. Mother claimed she instigated the incident when she intentionally antagonized defendant by hiding the lemons, and locking and barricading the front door. She explained defendant never expressly threatened to kill her; rather, he merely said, " 'I wish you were dead' " or " 'I want you dead.' " Mother also stated the front door had sustained damage from a previous, unrelated incident. She denied she was "afraid of" defendant; rather, she was "scared for" him due to his mental health issues. (Italics added.) She acknowledged she installed a deadbolt on her bedroom door, but claimed it was for security when she travels.

Deputy Willow contradicted Mother's testimony at trial. He testified Mother reported to him that "she lives in constant fear" of defendant, "to the point that she installed that [deadbolt] on her [bedroom] door." Mother reported "she called 911 because there was a verbal argument at the house, and her son had kicked in the door and threatened to kill her and her husband." Willow also testified about his observations of the damage to the front door.

Father testified defendant has never threatened him. Father said the front door had sustained damage from a previous incident, but the deadbolt and all its hinges still worked as of December 21. Father acknowledged the "door had to be fixed" again after the December 21 incident.

The prosecution also introduced evidence of a 2013 incident involving defendant and Mother. Mother testified she and defendant were on the front porch, when he said something that upset her. She then told him that he "shouldn't be using [her] Wi-Fi for free," and she "tried to snatch" his laptop from him. Defendant tried to "[s]hield[] the laptop with his body." Mother testified she "was the aggressor" in this incident, that she tried to choke defendant, and that he was merely defending himself. Mother admitted she sustained bruises to her wrists and scrapes to her knees during this incident. Mother called 911. She denied telling the responding sheriff's deputy (Tommy Mix) that defendant attacked her.

Deputy Mix testified "to show that [defendant] has been aggressive with his mother in the past." Mix explained the 2013 incident arose after another deputy had responded to the residence earlier, and the parties agreed defendant would leave after one hour. "The hour expired. [Mother] had gone outside. He was on his laptop . . . computer. She said she went to close it, and he attacked her. He took her to the ground, had his knee on her stomach and held her wrist." Mix observed Mother "had some slight bruising on both of her wrists and . . . her knees had been skinned." Mother called 911 and "was adamant about pressing charges." She also "requested for the fire department to arrive, because she had complain[ed] of pain to her stomach." Mix reiterated Mother "was adamant about pressing charges, because [defendant] was physical with her." Defendant told Mix he (defendant) "would press charges and have his mother arrested if she was pressing charges first."

Mother and defendant both signed Arrest Forms. Deputy Mix arrested defendant, took him to a Starbucks, and released him from custody on the promise that he would appear in court. Mother later wrote to the district attorney asking that charges against defendant be dropped. Ultimately, neither defendant nor Mother were prosecuted in connection with the 2013 incident.

Defense Case

Defendant's sister (Sister) was the sole defense witness. She testified that the front door of her parents' home had previously been damaged when her uncle locked everyone out, and Sister and defendant kicked in the door. However, she acknowledged the door was subsequently fixed enough to close and be secure.

Sister also testified she spoke with Mother by phone at least twice on December 21, 2015. Mother sounded frustrated about defendant's mental health issues, but never mentioned she was in fear for her life.

Charges, Jury Verdicts, and Sentencing

Defendant was charged with two counts of making criminal threats (count 1 as to Mother; count 2 as to Father) and one count of vandalism (count 3). At the close of the prosecution's case-in-chief, the trial court granted defendant's motion to dismiss the count pertaining to Father. After deliberating for about five hours, the jury returned guilty verdicts on the remaining counts.

The trial court granted defendant probation for 36 months, subject to serving 120 days in local custody (to be satisfied through custody credits and work-release).

DISCUSSION

• I. No Error In Admitting Evidence of the 2013 Incident

Defendant contends the trial court erred by admitting Deputy Mix's testimony about the 2013 incident because the incident was too dissimilar to the pending criminal-threats charges to be admissible as proof of intent under section 1101, subdivision (b).[6] He further contends the trial court erred in concluding under section 352 that the probative value of the evidence outweighed the risk of undue prejudice. We decline the Attorney General's invitation to declare these challenges forfeited. The contentions fail on their merits.

• • A. Background

The prosecution moved in limine to admit evidence of the 2013 incident under three theories: (1) under section 1101(b) as proof that defendant intended to make a criminal threat to his parents; (2) under section 1109, subdivision (a)(2) as substantive evidence of defendant's propensity to engage in elder abuse;[7] and (3) to impeach Mother if she recanted her allegations that defendant made a criminal threat to her. Defendant, on the other hand, moved in limine to exclude any evidence offered under section 1101(b), though his motion did not specifically address the 2013 incident.

After discussing the prosecution's motion with both parties off the record, the trial court noted on the record that defense counsel did not oppose admission of evidence regarding the 2013 incident and, "[i]n fact, the defense wants that in."[8]

During the prosecution's case-in-chief, Mother testified about the 2013 incident as described in our factual summary. Defendant's trial counsel neither objected nor requested a limiting instruction. The trial court, however, sua sponte gave the jury the following limiting instruction:

"Ladies and gentlemen, apparently, there has just been given to you and is going to be given to you evidence of uncharged misconduct on the part of the defendant. You may not use this evidence to conclude that the defendant is a person of bad character, or that he has a propensity to commit the charged offenses. You will be instructed in the last set of instructions that I give to you on how to use this evidence of the 2013 incident."

When the prosecutor called Deputy Mix to the stand, defense counsel objected: "I withdraw my stipulation to allow this witness to testify, and I object to this witness being called as a witness because I don't believe that anything that he can offer is relevant to this case." When the court asked what stipulation defense counsel was referring to, the prosecutor clarified there was no stipulation; rather, defense counsel had previously stated he merely had no objection to the anticipated testimony. After an unreported sidebar conference, the trial court ruled: "All right. If there's an objection, it's overruled. [¶] Proceed." Deputy Mix then testified as described in our factual summary.

• • B. Relevant Legal Principles

Under section 1101, subdivision (a), " ' "[e]vidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition . . . ." ' " (People v. Thomas (2011) 52 Cal.4th 336, 354 (Thomas); see § 1101.)[9] "Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, for example, " ' "evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes." ' " (Thomas, at p. 354.)

"To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones (2011) 51 Cal.4th 346, 371.) "The least degree of similarity is required to prove intent or mental state. A higher degree is required to prove common plan . . . ." (Thomas, supra, 52 Cal.4th at p. 355; see Ewoldt, supra, 7 Cal.4th at pp. 402-403.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity." (Ewoldt, at p. 403.)

" ' "There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (Thomas, supra, 52 Cal.4th at p. 354; see § 352.)

" ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under . . . sections 1101 and 352." [Citation.]' " (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)

• • C. Analysis

We find no abuse of discretion in the trial court's admission of Deputy Mix's testimony about the 2013 incident under section 1101(b).[10] The evidence was relevant to at least three elements of the charged offense:[11] "whether defendant intended to make a threat, whether the charged threat caused [the victim] to be in sustained fear for her safety, and whether such fear was reasonable." (People v. Fruits (2016) 247 Cal.App.4th 188, 204 (Fruits); see also People v. Wilson (2010) 186 Cal.App.4th 789, 808 (Wilson) [the victim's knowledge of the defendant's prior conduct is relevant in establishing the victim was in a state of sustained fear]; People v. McCray (1997) 58 Cal.App.4th 159, 172 (McCray) [evidence of past violence against the victim was relevant to the defendant's intent to place the victim in fear and to whether the victim's fear was reasonable].)[12]

Defendant nevertheless contends his prior battery of Mother lacks probative value because it is too dissimilar to the current criminal-threat count, reasoning battery and making a criminal threat require proof of distinct elements. We are not persuaded. Indeed, courts routinely admit evidence of various differing prior acts in criminal-threat cases. (See, e.g., Fruits, supra, 247 Cal.App.4th at pp. 199, 203-205 [battery]; McCray, supra, 58 Cal.App.4th at pp. 171-173 [domestic violence]; People v. Ogle (2010) 185 Cal.App.4th 1138, 1143 [stalking].)

In rejecting a similar argument regarding prior domestic violence, the court in McCray explained: "[W]hile the past incidents involved actual violence while the present offenses involved at most threats of violence, the evidence that [the defendant] had been violent toward [the victim] in the past was plainly relevant to the jury's determination whether [the defendant] intended to cause [the victim] fear on [the date the charged offense was committed], as it tended to demonstrate both that [the defendant] was capable of inflicting physical harm upon [the victim] and that [the victim] would have reason to fear his threats might be carried out." (McCray, supra, 58 Cal.App.4th at p. 172.) This reasoning applies with equal force to defendant's prior battery of Mother.

We likewise find no abuse of discretion in the trial court's balancing of considerations under section 352. The evidence was highly probative because it related to three elements of the charged offense. "Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense." (People v. Garrett (1994) 30 Cal.App.4th 962, 967.) By contrast, the 2013 incident was not exceptionally inflammatory. It involved a brief scuffle, after which defendant was released from custody at a Starbucks. The jury also heard Mother's claim that she was the initial aggressor in the incident. Moreover, both defendant and Mother signed Arrest Forms seeking to have the other arrested. Finally, as we will discuss below, the trial court gave the jury a limiting instruction to "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."

In sum, the trial court did not err by admitting evidence regarding the 2013 incident—defendant was "not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim's relationship was peaceful and friendly." (Fruits, supra, 247 Cal.App.4th at p. 204.)

• II. No Instructional Error Regarding the 2013 Incident

In a related argument, defendant contends that because the trial court erroneously admitted evidence of the 2013 incident, the court further erred by instructing the jury that it could consider this evidence "to prove intent." We again decline to declare a forfeiture, and reject the contention on the merits.

The trial court instructed the jury with CALCRIM No. 375 as follows:

"The People presented evidence that the defendant committed the offense of Battery on [Mother] on 3-26-13 that was not charged in this case.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

"If the People have not met this burden, you must disregard this evidence entirely.

"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether the defendant acted with the intent that his statement be understood as a threat, as charged in Count 1 only.

"Do not consider this evidence for any other purpose.

"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.

"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offense charged in Count 1. The People must still prove each charge beyond a reasonable doubt."

Because the trial court properly admitted evidence regarding the 2013 incident, the court properly instructed the jury regarding the limited use it was permitted to make of this evidence.

DISPOSITION

Affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.