Filed 4/18/17 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

RAY DENNEL JOHNSON,

Defendant and Appellant.
H041823
(Santa Clara County
Super. Ct. No. C1234085)

I. INTRODUCTION
Defendant Ray Dennel Johnson was charged with the felonies of personally inflicting great bodily injury on N.W., the mother of his child (count 1; Pen. Code, §§ 273.5, subd. (a); 12022.7, subd. (e)) and inducing N.W. to testify falsely by threat of force (count 2; Pen. Code, § 137, subd. (b)) and the misdemeanor of violating a protective order (count 3; Pen. Code § 273.6, subd. (a)). A jury, after hearing three days of testimony and deliberating for about a day and a half (over three days), convicted defendant of inflicting corporal injury on the mother of his child and violating a protective order. He was acquitted of count 2. When the jurors were unable to agree on whether the bodily injury was significant or substantial, the court declared a mistrial as to the enhancement. At the sentencing hearing, as recommended by the probation officer, the trial court suspended imposition of sentence and placed defendant on formal probation for three years with one condition being a year in jail and another being five years without contact with N.W. except as authorized by a court to provide for child custody and visitation.
The only issues raised by defendant on appeal are whether the trial court erred by admitting additional evidence of domestic violence under Evidence Code section 1109 and whether his trial counsel adequately objected to that evidence under Evidence Code section 352. For the reasons stated below, we will affirm the judgment after finding no prejudicial error by the trial court or defense counsel.
II. TRIAL EVIDENCE
A. THE CHARGED OFFENSES
1. Infliction of Corporal Injury
N.W. met defendant at a nightclub in San Jose in 2008 when N.W. was about 21 or 22 years old and defendant was about 26. They became romantically involved and had a daughter when N.W. was 23. This was N.W.’s second child, as she then had a four-year-old son with a different father. N.W. never lived with defendant in terms of them both signing a lease, but N.W. spent many nights at defendant’s various residences, first in Livermore, then Pleasanton, then Fremont, then Sunnyvale. They even lived with N.W.’s mother in Sunnyvale for a few months.
According to N.W., the relationship began well, but “after about a year is when it started to get rocky and real bad.” They began to argue. When they argued, N.W. and her children stayed with her mother.
On Monday morning, January 16, 2012, N.W. and defendant argued about defendant taking their daughter to visit Texas. N.W. was opposed because the daughter was still nursing. Near the beginning of that argument, as in most of their arguments, he said “ ‘watch’ ” to her. It was a verbal shorthand that she took as a threat, as meaning watch what will happen to you if something happens to me.
During that argument, N.W. said she wanted to leave and she tried to leave defendant’s residence. He grabbed her arm to pull her away from the door. He told her if she left he would end her life. When N.W. broke free of his grasp, he pulled her back and punched her once in the face. N.W. lost consciousness for a moment. Defendant lowered himself to where she was on the floor and apologized, saying he did not mean to do it.
N.W. called her mother that day and reported that defendant had punched her in the face. N.W. tried to talk her mother out of calling the police. N.W. sounded weak and sleepy. She told her mother that it was a sucker punch and that defendant’s cousin helped her get up and onto the bed.
Around 11:30 a.m. on January 16, 2016, Sunnyvale Public Safety Officer Gregory Othon and his partner responded to a 911 call from N.W.’s mother. Steve Brisco, a relative of defendant from Texas, answered the officer’s knock on the door of defendant’s apartment. Defendant approached the officers through the hallway. Photographs of defendant’s appearance were in evidence. He had no visible injuries.
Officer Othon located N.W. sitting on the bed hanging her head and crying. She looked up briefly, but hung her head again in an apparent attempt to avoid eye contact. Photographs of her appearance that day were in evidence. She appeared to Othon to be in distress and “kind of out of it a little bit . . . .” She denied anything had happened.
When the officer told her what her mother had reported on the telephone, N.W. admitted that defendant had struck her. She said she and defendant were engaged and had an 18-month-old daughter. N.W. and her daughter had spent the night. In the morning they argued in the bedroom about defendant taking their daughter to Texas to visit his family. N.W. told Othon that the argument had escalated into mutual profanities. Defendant threatened to take her to court. Because N.W. was involved in custody battles over her son, she became “really enraged.” After she started slapping defendant with both hands, he punched her with a closed right hand to the left side of her face, knocking her off the bed. She was knocked out momentarily. Defendant was immediately apologetic and got her an ice pack from the kitchen.
Officer Othon asked if N.W. wanted a restraining order, mentioning that the police had responded to another call six months earlier. She was adamant she did not want a restraining order.
As Othon spoke to her, he noticed her face swelling and her eye closing, so he had the fire division examine her. They recommended a hospital examination. N.W. said she would have her mother take her. N.W. was very groggy when her mother took her to the emergency room. She kept saying she wanted to rest.
Doctor Anthony Musielewicz examined N.W. in a hospital emergency room beginning around 2:00 p.m. on January 16, 2012. Her chief complaints were vomiting, dizziness, loss of consciousness, and eye, nasal, and neck pain. She said her level of pain was nine out of 10. A CT scan revealed she had a broken left eye socket (“left medial and orbital floor fracture”) and a nasal fracture.
During a medical examination two days later, N.W. complained of blurry vision and a headache. She described her pain as eight out of 10. Medical records described surgery performed on February 17, 2012 to reduce the eye socket fracture and move her nose back into place. According to Doctor Musielewicz, short- and long-term loss of memory can result from a concussion.
N.W. said the pain was so severe she was unable to work or eat solid foods until the end of March or beginning of April 2012. She continued to have dizzy spells up to the time of trial in October 2014.
2. Violation of a Restraining Order
After January 16, 2012, N.W. did apply for and obtain a restraining order. Defendant kept calling her even after the restraining order issued, though he then began calling from a restricted number. In evidence was a photograph of N.W.’s phone call log showing calls from a restricted number.
Defendant called her twice a day, sometimes apologetic, other times angry. He asked her to drop the criminal case, to say that it her was fault and she started it, to say that she had fallen and injured herself. He also asked her to get the order changed to allow peaceful contact. He threatened to hurt N.W. and to take their daughter somewhere N.W. would not find them. He threatened to stab N.W. and, because of his training with weapons, make it look self-inflicted.
N.W. went to court on June 6, 2012 in order to change the restraining order to allow for peaceful contact. In court, N.W. began to tell the truth in response to a question by the court. As she and defendant were leaving court, from behind he said “watch” to her. She understood it as a threat. She was upset and began crying and shaking.
A court employee who helps prepare restraining orders for self-represented litigants was in court that day. When the judge denied the request to vacate the restraining order, N.W. sat down and was crying and visibly shaken. The employee brought her some Kleenex and talked to her. N.W. shook her head “no” when asked if she was upset that her request was denied. She nodded “yes” when asked if she was afraid of what defendant was going to do to her. She shook “no” when asked if she had come to court of her own free will. She nodded “yes” when asked if defendant had intimidated her into filing the motion to vacate. She nodded “yes” when asked if defendant had let her know that day she was unsafe.
That day the court bailiff observed defendant glaring at N.W. in court. The bailiff approached N.W. when he saw she was crying and shaking. He spoke to her after the other court employee finished. N.W. told him that defendant said “watch” after glaring at her, which she understood to be a threat. She said she had come to court that day in response to defendant’s threats. He had threatened to stab or kill her. N.W. remained visibly upset throughout their 20-minute conversation.
On June 7, 2012, Santa Clara County Sheriff’s Detective Joanna Michalak interviewed N.W. N.W. said there was a history of violence between N.W. and defendant. He had threatened her and put a gun to her head. When he was arrested, he was always able to bail out. He said he would disappear with their daughter if she did not change the restraining order.
3. Defendant’s Testimony
According to defendant, the night before the alleged assault, N.W swallowed a number of pills from a bottle after they had argued about defendant’s recent visit to Texas being two weeks longer than the week he had promised. After taking the pills, she was nauseated and vomited and appeared intoxicated. Defendant took care of her that night, giving her water.
The next morning N.W. told him she did not want him taking their daughter to Texas. There was no argument, but N.W. started throwing boxes of his art supplies in front of their daughter. Defendant put their daughter in another room near his cousin.
N.W. slammed a door three times. Defendant went to see what she was doing in the bedroom. She appeared to be looking for something. He followed her out of the room and she turned on him and started punching him. Defendant put his hands in front of his face, backed away, put his hands down, and said he was not trying to fight her. She came at him swinging. He closed his eyes and felt metal hit his eyes.
Defendant opened his eyes when N.W. stopped hitting him and saw her falling backwards. He believes that she knocked herself down. She hit the wall. He saw blood coming from her nose. Defendant said he was going to jail. He went to help her, but she crawled into the living room to his cousin. Defendant got her a wet towel. She did not lose consciousness.
Defendant admitted he had no visible injuries from her attack. He denied striking or even touching N.W. in anger on that occasion and on earlier occasions. He denied threatening her to request a change in the restraining order.
B. PRIOR DOMESTIC VIOLENCE INCIDENTS
1. Ankle-kicking
The punch was not defendant’s first physical assault on N.W. During an argument in 2010 while N.W. was pregnant and they were living with N.W.’s mother, he kicked her ankle when she was standing in a parking lot near her car at her apartment. It was not a serious injury. She told her mother about it. Her mother told defendant he could not stay at her place anymore. According to her mother, defendant was yelling and said N.W. was lying.
2. Handgun Threat
On another occasion when they were in the living room of his apartment in Fremont, defendant threatened N.W. with a handgun he owned. He aimed it at her head and said he would kill her, causing her to be afraid. When she promised to not walk out of his residence, he put the gun away. She did not recall the time of day, time of year, or year.
3. Punching and Choking
At trial, N.W. had virtually no recollection of an incident on June 22, 2011, other than that defendant had pushed her down during an argument while she was holding their daughter and their daughter hit her head on the kitchen counter. However, contemporary statements by N.W. were recorded and played at trial.
In a recorded 911 call, N.W. reported that defendant had punched her in the face, twisted her arm, choked her, and pushed her down to the ground while she was holding her nine-month-old infant. She said no weapons were involved.
Sunnyvale Public Safety Officer Stephen Cronin and his partner went to defendant’s apartment on June 22, 2011 in response to the 911 call. In an interview recorded by Officer Cronin, N.W. elaborated on her call. She and defendant had been arguing that morning in person and by text because defendant was unable to explain why N.W. had found another woman’s jacket in his residence. After N.W. returned to the apartment from picking up her son, she attempted to grab her belongings and leave. Defendant pulled stuff out of her hands and tried to prevent her from leaving his apartment. He pushed her in the stomach. She slapped his hand away. He grabbed her wrists and pulled her back into the apartment while she was holding their daughter. She pulled her wrists away. He punched her in the face, grabbed her by the throat with one hand, and choked her. He pushed her down by the back of her neck and told her to leave his apartment. When she got up, he kicked her left leg. He pushed her down again and told her to get out. He grabbed a baby’s toy out of her hand and threw it and all the baby’s items out the door. Defendant dared her to call the police and she did.
N.W. told Officer Cronin she was not seriously injured, though her arms and neck hurt. She had not seen defendant’s handgun for at least four months, though she had seen the holster. He did not use the gun. He had not threatened her with it. There had been prior incidents of domestic violence, but she had not reported them because defendant had promised to behave.
Cronin found a holster in defendant’s apartment, though not a gun. As defendant was not in the apartment, Cronin advised other officers he may be armed. The apartment manager directed the officers to where defendant was standing outside the apartment complex. Defendant had no visible injuries. Photos of his appearance that day were in evidence. Cronin took defendant into custody and another officer located a handgun inside the apartment.
When N.W. said she wanted a restraining order, the officer obtained a temporary order for her. Though N.W. recalled her daughter suffering a concussion, the parties stipulated that no injury was detected when the daughter was taken by ambulance to a hospital.
The parties also stipulated that on the day scheduled for trial of defendant’s assault charge, November 28, 2011, N.W. changed her story. She told the prosecutor that she was upset about finding a female’s jacket in defendant’s apartment, so she physically attacked him. He merely blocked her strikes. She called the police after telling defendant that she was going to lie about him because he was lying to her. Defendant did not want to leave her that day because she has asthma and panic attacks and has passed out at the wheel after getting upset. Defendant had never put his hands on her. Defendant’s case was dismissed that day.
At trial N.W. did not recall making those statements to a prosecutor. She did not remember the outcome of the incident. She did recall obtaining a restraining order, but not what conduct preceded the order. She recalled defendant telling her on more than one occasion to say if she talked to the police either that she was the aggressor or that she had fabricated a story out of anger.
A licensed marriage and family therapist testified as an expert about intimate partner violence, what used to be called “battered woman’s syndrome.” Such a relationship does not always involve physical violence, sometimes just threats or slamming doors and pounding walls. Victims sometimes appear to be acting against their own best interests by remaining in the relationships. Victims tend to feel at fault for the confrontations. Such relationships involve a repetitive cycle of tension building, acute outburst, and loving contrition or remorse and reconciliation. Sometimes trigger words or phrases are used as warnings. Recanting by the victim is a frequent occurrence.
III. THE EVIDENCE OF EARLIER DOMESTIC VIOLENCE
On appeal defendant contends the trial court erred by admitting evidence of earlier domestic violence under Evidence Code section 1109 to establish his propensity and that his trial counsel inadequately objected to the evidence under Evidence Code section 352.
A. RULING ADMITTING EVIDENCE OF EARLIER DOMESTIC VIOLENCE
In advance of trial, the prosecutor filed an in limine motion seeking admission of evidence that defendant had previously engaged in domestic violence under section 1109.
During pretrial hearings, the prosecutor asked to admit evidence of: a dismissed prior misdemeanor assault charge; another occasion in 2011 when defendant pointed a gun at NW’s head; an incident in 2010 where he fractured her hand; an incident in 2010 when he strangled her almost to unconsciousness while she was pregnant; an incident when he punched her in the back while she was pregnant; an incident in 2010 when he kicked her ankle; and other occasions when he forcibly prevented her from leaving his residence.
Defense counsel objected to the vagueness of several incidents, the lack of documentary evidence, and to the earlier charged offense because it had been dismissed after N.W. recanted her statement. As to the gun threat, defense counsel said, “that’s 352, in our position.” As the current charges had “[n]othing relating to any gun, so we would ask that to be excluded. Also it is very prejudicial.”
During the hearing, the court asked the prosecutor to elaborate on the specific incidents as they were not mentioned in the moving papers. The court stated, “what the court must consider is whether this is 352. And without knowing what specific incidents there are, like whether something involves a gun or pregnant woman, I cannot know whether it’s so prejudicial as to be—or so time consuming as to be something that the court must consider excluding for other reasons beside lack of notice. So that’s why I’m asking. That’s why I asked for the details. You provided me with a bit more. We’re going to continue going through them.” Ultimately the court admitted some of the evidence, specifically the incident underlying the earlier dismissed charge, the gun threat, the ankle kicking, and other incidents when he prevented her from leaving.
B. THE STATUTES AND JURY INSTRUCTIONS
Section 1101, subdivision (a), prohibits producing evidence of other misconduct by a defendant to prove his or her propensity or disposition to act in a certain way. (People v. Bryant (2014) 60 Cal.4th 335, 405-406.) However, section 1109 creates an exception to section 1101 by authorizing admission of “evidence of the defendant’s commission of other domestic violence” if it is admissible under section 352 when “the defendant is accused of an offense involving domestic violence.” (§ 1109, subd. (a)(1); People v. James (2000) 81 Cal.App.4th 1343, 1353, disapproved on another ground by People v. Loy (2011) 52 Cal.4th 46, 73.) Section 1109 incorporates definitions of “[d]omestic violence” found in section 13700, subdivision (b) and Family Code section 6211. (§ 1109, subd. (c); People v. Ogle (2010) 185 Cal.App.4th 1138, 1143; People v. Brown (2011) 192 Cal.App.4th 1222, 1234.) Section 352 states: “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.”
The jury was instructed in terms of CALCRIM No. 852: “The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: defendant committed a threat with a firearm, strangulation, verbal threats, and other assaults.
“Domestic violence means abuse committed against an adult who is a person with whom the defendant has had a child.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from 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 of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit each of the charged offenses, the allegation, and the lesser included offense, as charged here. If you conclude that the defendant committed the uncharged domestic violence, 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 Count 1, the allegation under Count 1, Count 2, Count 3 or the lesser included offense. The People must still prove each charge and allegation beyond a reasonable doubt.
“Do not consider this evidence for any other purpose.”
C. ARGUMENT AND JURY DELIBERATIONS
The prosecutor began argument to the jury by asserting that “defendant started his violence and started threatening [N.W.] in 2009. There were some prior acts of abuse testified to in this trial,” specifically that defendant kicked her ankle on one occasion, threatened her with a gun to her head on another occasion, and strangled her with one hand and pushed her to the floor on a third occasion. Less than two months after she recanted her statement to a deputy district attorney, defendant punched her in the face, resulting in the pending charge.
In argument to the jury, defense counsel said that N.W. was deceptive. “She either deceived the police officer on June 21st [sic] when she said that [defendant] was attacking her, or she deceived the district attorney when she told the district attorney that [‘]I made up these allegations against him. He was not the aggressor; I was trying to get him in trouble.[’]” What precipitated that incident was N.W.’s jealousy about finding another woman’s jacket in defendant’s apartment. She believed he was fooling around and that made her more upset. She told the district attorney later she had lied to get defendant in trouble. The photographs of her at the time did not show injuries consistent with either choking or punching her face. The prosecution did not produce the apartment manager or any neighbor to testify about what occurred. That case was dismissed.
As to the other incidents, defense counsel asserted that N.W. told the officer on June 22, 2011 that defendant had never threatened her with his handgun. There was no independent evidence he had threatened her with a gun. N.W.’s mother did not see defendant kick N.W.’s ankle and he denied doing it at the time.
The prosecutor did not mention the prior incidents in a brief rebuttal argument.
During deliberations, the jury asked the court five written questions. The first day of deliberations they asked for readback of the statements of defendant and N.W. When the court asked the jurors to narrow those requests, they asked for defendant’s testimony about the time period after he arrived at a bus station from Texas through the cross-examination. They asked for N.W.’s testimony about the struggle on January 16 resulting in the blow to her face. The second morning of deliberations, they asked about what to do if they could not agree about “the allegation to count 1.” The court instructed them to deliberate as long as is reasonable, but also that they could stop if truly deadlocked. About a half-hour after receiving this response, they took a break from deliberating that day before noon, and resumed the next morning. After deliberating for a half-hour the third day, the jurors advised the court they continued to be deadlocked about the enhancement. They asked the court for guidance about the definition of “ ‘significant or substantial physical injury.’ ” The court instructed them that it was a factual question for them to answer, applying CALCRIM No. 3163, whether the bodily injury was great. Less than an hour later, the jury’s verdict was announced, including a deadlock on the enhancement.
D. THE VALIDITY OF THE COURT’S RULING
Sections 1108 and 1109 have parallel provisions, with section 1108 authorizing proof of a charged sexual offense by evidence that the defendant has committed other sexual offenses and section 1109 authorizing proof of a domestic violence charge by evidence that the defendant has committed other acts of domestic violence.
While People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) involved section 1108, it is also a touchstone for admitting evidence under section 1109, with the substitution of “act of domestic violence” for “sex offense.” (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).) Falsetta stated that courts “must engage in a careful weighing process under section 352. Rather than admit or exclude every [act of domestic violence] a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other [acts of domestic violence], or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, at p. 917.)
Falsetta continued by stating: “In [People v.] Balcom [1994) 7 Cal.4th 414], we explained that the probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] We also observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (Falsetta, supra, at p. 917; cf. People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
On appeal, defendant concedes that the evidence of earlier domestic violence was admissible under section 1101. The jury was accordingly instructed in terms of CALCRIM No. 375 that the evidence that “the defendant committed a threat with a firearm, strangulation, verbal threats and other assaults” could be considered for the limited purposes of deciding whether defendant intended to cause N.W. to testify falsely (count 2) or whether “defendant’s alleged actions were the result of mistake or accident.” But defendant contends “the jury should not have been able to consider this evidence to show his propensity.”
Defendant accurately points out that, unlike cases where the evidence was that the defendant had been convicted of earlier domestic violence (e.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1315), in this case no prior incident resulted in a conviction. While one incident had resulted in a criminal assault charge, that charge was dismissed because N.W. recanted on the day of trial. Defendant asserts “there is a real danger that the jury in this case was appalled at and likely convicted [defendant] of the instant assault based on an apparent pattern of abuse that [defendant] was never held accountable for.”
We recognize the potential for prejudice when a jury hears evidence that a defendant apparently went unpunished for prior criminal conduct. We also recognize the uniquely probative value of previously unreported crimes and victim recantations when the criminal conduct amounts to domestic violence and there is expert testimony about how common it is for domestic violence victims to recant claims of abuse. (Cf. People v. Fruits (2016) 247 Cal.App.4th 188, 206-207 [evidence of elder abuse admitted under section 1109, subd. (a)(2)].) The prior domestic violence incidents were not remote in time and had increased probative value because they involved the same victim. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 (Hoover).)
As to the punching and choking incident underlying the earlier charge and also the gun threat, defendant contends that “[t]hese incidents, unlike the facts that should have been at issue, suggested that [defendant] had the capacity and willingness to kill N.W., and also that he was craven enough to assault her as she held their young child. Thus, these incidents were far more inflammatory than the facts surrounding the instant assault, and [defendant] believes that this fact likely diverted the jury’s attention from the facts that should have been at issue.”
“ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988) 46 Cal.3d 612, 638.)” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 (Poplar); People v. Johnson (2010) 185 Cal.App.4th 520, 534 (Johnson).)
We agree with the Attorney General that neither incident was substantially more inflammatory than the charged offense, which was based on testimony that defendant threatened to end N.W.’s life if she left his residence and that he punched her in the face with sufficient force to fracture her nose and left eye socket. While the jurors in this case were ultimately unable to agree beyond a reasonable doubt that defendant personally inflicted a significant or substantial physical injury on N.W., the court did not know that when it ruled on the prosecutor’s in limine motion.
As to the handgun threat, “any felony in which the defendant personally inflicts great bodily injury on any person” (Pen. Code, § 1192.7, subd. (c)(8)) and “any felony in which the defendant personally uses a dangerous or deadly weapon” (Pen. Code, § 1192.7, subd. (c)(23)) are deemed equally by statute to be serious and indeed violent felonies (Pen. Code, § 667.5, subd. (c)(8)). We acknowledge that the particular circumstances of one kind of assault might be regarded as more serious than another kind of assault, but, in this case, there were no particular details offered about the handgun threat that made it appreciably more serious or shocking than the circumstances of the charged assault. N.W.’s recollection of the handgun threat was vague and there was no recorded contemporary report of the details.
As to what the court instructed the jury was evidence of a prior “strangulation,” that characterization appears to be an exaggeration of the facts presented. The evidence of the June 2011 incident was that defendant briefly grabbed N.W.’s throat with one hand. He made no concerted effort to strangle N.W., instead pushing her to the ground. The incident resulted in a charge of misdemeanor assault, not attempted murder. Though we cannot say, as did People v. Brown, supra, 77 Cal.App.4th 1324, that “the prior acts of domestic violence were less serious than the charged act” (id. at p. 1338), neither do we regard that evidence as appreciably more serious than the charged offense, even though N.W. was holding an infant at the time.
We review the admission of evidence of domestic violence under section 1109 for an abuse of discretion. (Poplar, supra, 70 Cal.App.4th 1129, 1138; Johnson, supra, 185 Cal.App.4th 520, 531, 537.) “ ‘Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.’ (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of its discretion under section 352 ‘ “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citations.]’ (People v. Rodrigues, supra, at p. 1124.)” (Brown, supra, 77 Cal.App.4th 1324, 1337.)
Here the trial court decided to admit evidence of some prior incidents of domestic violence, while excluding others. We are not convinced the trial court abused its discretion in doing so. If the evidence was indeed as prejudicial as defendant claims, it would seem the jury would not have deadlocked on the great bodily injury enhancement or acquitted defendant of inducing false testimony by threat of force. Defendant suggests that the prosecutor’s partial success indicates that the jurors had doubts about NW’s credibility. That may be so, but the jury questions during deliberations focused on the evidence of the charged offenses, not the prior incidents. The jurors questions contradict any speculation that the jurors were distracted by the evidence of the prior incidents.
Because we conclude the evidence of earlier domestic violence was properly admitted as more probative than prejudicial under section 352, we reject defendant’s claim that admission of the evidence violated his right to due process. (Hoover, supra, 77 Cal.App.4th 1020, 1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096, and cases there cited.) We also do not reach the Attorney General’s argument that any error was harmless.
E. THE EFFECTIVENESS OF DEFENSE COUNSEL
In a supplemental opening brief, defendant contends that, if we conclude that his trial counsel inadequately objected under section 352 to admitting evidence of earlier domestic violence under section 1109, then his trial counsel was unconstitutionally ineffective.
We summarily reject this alternative contention, as we have not concluded that this objection was forfeited. As noted above (in part III.A), defense counsel did object to the evidence of the gun threat under section 352 as too prejudicial. It was unnecessary for defense counsel in this case to amplify this objection. The trial court was well aware, in the court’s own words, that under section 1109, “what the court must consider is whether this [evidence] is 352.” No further objection was required by defense counsel.
IV. DISPOSITION
The judgment is affirmed. 
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RUSHING, P.J.





WE CONCUR:




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GROVER, J.










___________________________________
WALSH, J.*








People v. Johnson
H041823