Filed 8/23/17 P. v. Humphrey CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JULIUS HUMPHREY,

Defendant and Appellant.
C081455

(Super. Ct. No. 15F04861)




A jury convicted defendant Julius Humphrey of assault with a deadly weapon, criminal threats, and false imprisonment. On appeal, he contends the trial court erred in admitting evidence of a 22-year-old domestic violence conviction, under Evidence Code section 1109. We disagree and affirm.
BACKGROUND
Defendant was charged with multiple counts arising from an August 9, 2015, incident. Before trial, the prosecution moved to introduce evidence, under sections 1101 and 1109, of a domestic violence conviction from 1992.
The 1992 Incident
As described in the motion, in 1992, defendant kidnapped his then wife. She had married him out of fear; he threatened her when she refused to marry him. For three months, defendant would not let her go to work — wanting to be around her all the time. Defendant would also use drugs and become paranoid.
Three months into their marriage, defendant held a switchblade to his wife’s chest and told her to go to the car. Afraid, she complied. He told her to drive to his sister’s house where he kept her for three days. She eventually escaped by ruse.
The Charged August 9, 2015, Incident
The motion also alleged facts of the charged offense. The victim had been staying at her friend’s house for about a week. Defendant was her friend’s uncle. The victim had known defendant for five years, but the two had never dated.
In the afternoon of August 9, 2015, the victim heard a knock on her window. Defendant came in through the window. He told the victim to take her clothes off. She asked what he was doing, and he responded: “ ‘Shut the fuck up.’ ”
Defendant locked the bedroom door, closed the window, and yelled for her to take off her clothes. He pulled a knife from under the mattress and continued to tell her to take her clothes off. Scared, she did.
Defendant began to talk to himself, and eventually he fell asleep. When he did, the victim texted her friend for help. Defendant woke and hit the victim in the shin with the knife blade. The victim eventually escaped when defendant fell into a deep sleep.
The Trial Court Initially Rules the 1992 Incident Inadmissible
Initially, the court did not admit evidence of the 1992 incident under either section 1101 or 1109. As to section 1101, it found the incident not particularly probative as to lack of mistake.
As to section 1109, the court noted the 1992 conviction was old, but the fact that defendant had been in and out of prison since that time, indicates it should not be considered remote. But the bigger issue, the court noted, was whether there was a dating relationship in the current offense. “If there is testimony that [the victim] . . . was, in fact, at the time in a dating relationship or a sexual relationship with this defendant, 1109 applies . . . .” But, “at this point . . . it is not admissible.”
It added, “If during the course of cross-examination or direct examination she indicates” she was in a dating relationship, “the Court would revisit it . . . .”
The Victim Testifies to the August 9th Incident
At trial, the victim testified to a substantially different version of the events than she had originally reported. She testified defendant was her boyfriend. At the time of the incident, she was staying with defendant’s niece. Defendant would stay in her bedroom while she was there. They had shared a bed for roughly a month, and they had dated for almost two years.
On August 9th, defendant came home with beer and cigarettes. Defendant and the victim drank and got high on crystal methamphetamine. For a couple of hours, they were intimate.
In the afternoon, defendant left. Believing defendant had gone across the street to be with another girl, the victim got angry and called the police. She testified she had lied to the police. “I lied about everything because I was hurt. That man didn’t do anything to me. He loves me, just like I love him.”
The Trial Court Again Considers the Section 1109 Evidence
Following the victim’s testimony, the court again considered the admissibility of the 1992 incident. Defense counsel argued that, at over 20 years old, the prior incident was remote. The prosecutor noted the victim had now testified she and defendant were in a dating relationship.
The court admitted the 1992 incident. It noted the incident involved a domestic violence situation, and “[t]he similarity in the 1992 event is striking given that the defendant kept that victim at knife point for a three-day period and would not allow her to leave. It’s very similar to the case here.” The court added, “the probative value is far greater than the prejudicial effect.”
Jury Verdict and Instructions
The jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), criminal threats (Pen. Code, § 422), and false imprisonment. As to the criminal threats and false imprisonment counts, it found he had used a deadly weapon. (Pen. Code, § 12022, subd. (b)(1).) The jury, however, acquitted him of second degree robbery, the lesser included count of petty theft, and a second count of assault with a deadly weapon.
DISCUSSION
On appeal, defendant challenges the admission of the 1992 incident. He argues its remote nature required the section 352 analysis be applied with especially strict scrutiny. The court failed to consider the similarity between his prior conduct and the charged offense. There is a serious question of whether he and the victim had a dating relationship, which weakens the probative value of the evidence. And the 1992 incident was not sufficiently similar, in that the only factor noted by the court was the use of the knife. We disagree.
Section 1109, subdivision (a)(1) permits evidence of other domestic violence acts to show propensity for domestic violence, so long as the evidence is not made inadmissible by section 352. Section 352 renders inadmissible evidence of past domestic violence where the prejudicial impact substantially outweighs probative value. (People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson).) The principal factor affecting probative value is the prior act’s similarity to the charged offense. (Ibid.)
Acts occurring more than 10 years before the charged offense are inadmissible, unless the court determines their admission is in the interest of justice. (§ 1109, subd. (e)).) We review admission of section 1109 evidence for abuse of discretion. (Johnson, supra, 185 Cal.App.4th at p. 531.)
Here, the trial court acted within its discretion in admitting evidence of the 1992 incident. The court prudently declined to admit the incident while there was no evidence defendant and the victim had a relationship. But once the victim supplied such evidence, admitting the incident was within the court’s discretion.
Indeed, as the trial court explained, the similarity between the two instances was “striking.” In both instances, defendant used a knife to control the victim’s movements and actions. In 1992 he kept the victim in a house; in 2015 he kept the victim in her room. In 1992 he forced the victim to drive; in 2015 he forced the victim to take and keep her clothes off.
The trial court did not abuse its discretion in admitting evidence of the 1992 incident.
DISPOSITION
The judgment is affirmed.



/s/
Blease, J.


We concur:



/s/
Raye, P. J.



/s/
Renner, J.