P. v. Morgan



















Filed 4/26/13 P. v. Morgan CA2/8













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION EIGHT




>

THE PEOPLE, Plaintiff and Respondent, v. REGINALD LOUIS MORGAN, Defendant and Appellant.

B240863 (Los Angeles County Super. Ct. No. SA076055)

APPEAL
from a judgment of the Superior Court of Los Angeles County. Robert P. O’Neill, Judge. Affirmed.



Jeane Ballantine,
under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.



__________________________



Reginald Louis Morgan appeals from
the judgment following his convictions for attempted voluntary manslaughter and
other offenses against his wife, Tina P.
We affirm.



FACTS AND PROCEEDINGS



Appellant
Reginald Louis Morgan and Tina P. met in Las Vegas in November 2008. Three months later, they married on
Valentine’s Day 2009. Fueled by alcohol
and illegal drugs, their marriage was tumultuous.

In
the early evening of November 28, 2010, appellant and Tina were driving home on
the freeway carrying packing supplies they had bought for moving out of their
apartment. As Tina drove, appellant
socked her several times in the face.
When they arrived home, Tina hit appellant “upside his head” and told
him she was ending their marriage. Tina
spent the rest of the evening packing her belongings while drinking vodka and
smoking marijuana laced with cocaine. At
3:00 a.m., appellant, who had been smoking marijuana, confronted
Tina. He looked angry to Tina, “like
Jack Nicholson in The Shining.” He
accused her of hurting him and his family financially by spending all his
money. He told Tina that “before sunrise
we will both be dead and [she] wasn’t going to make it out there alive.” Tina took appellant’s threats seriously.

Appellant
began moving toward the kitchen, where Tina believed he was going to get a
knife to attack her. Running to the
front door hoping to escape, Tina felt a sharp pain in her back. Appellant testified, “I walked in the
kitchen, she jumped up and ran to the door. . . . I don’t know how to explain it, but I got
scared, so I grabbed the knives, and I walked to the door, by the time I got
the door, she was opening the door, and I stabbed her in the back.” Appellant continued to attack Tina outside in
the apartment walkway, but Tina fought him off and escaped. Appellant then got in his car and drove to
his sister’s home. Appellant told his
sister that he had stabbed Tina and asked his sister to call 911 to report the
knifing.

The
People charged appellant with corporal injury of a spouse, aggravated mayhem,
and attempted willful, deliberate, and premeditated murder. Appellant pleaded not guilty. The jury convicted appellant of corporal
injury to a spouse. The jury acquitted
appellant of aggravated mayhem, but convicted him of the lesser included
offense of mayhem. The jury also
acquitted appellant of attempted murder, but convicted him of the lesser
included offense of attempted voluntary manslaughter. The jury found true that appellant used a
deadly weapon against Tina and inflicted great bodily injury under
circumstances involving domestic violence.
The court sentenced appellant to 11 years and 6 months in state
prison. This appeal followed.



DISCUSSION



>1.
Admission
of Prior Uncharged Domestic Violence



The
court permitted the prosecution to introduce evidence of multiple prior
uncharged acts of domestic violence by appellant against Tina. Prior acts of domestic violence are
admissible to show a defendant’s propensity to commit a current offense
involving domestic violence. Evidence
Code section 1109 states: “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 [generally barring propensity evidence] if the
evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a).)href="#_ftn1" name="_ftnref1" title="">^[1]

Appellant
did not object to admission of evidence about a May 2009 act of domestic
violence, the prior uncharged act for which the prosecution offered the most
detailed testimony. One day in May 2009
appellant spent his day socializing with friends. When appellant arrived home, Tina angrily
confronted him about his being gone all day.
Instead of going to their bedroom where their dispute might escalate,
appellant remained in the living room with other adult family members, but Tina
“nudged” him several times to go to their bedroom where they could discuss
their dispute in private. Prompted by
the nudges, appellant went to the bedroom accompanied by his sister,
Myrlyn. When appellant entered the
bedroom, Tina started swinging and grabbing at him. Myrlyn grabbed Tina, pulled her to the floor,
and sat on her. Myrlyn told Tina she
would let Tina up when Tina calmed down.
Myrlyn then released Tina, at which point Tina slammed appellant’s head
into their bed’s headboard. Tina and
appellant wrestled on the bed, during which appellant bit Tina on her cheek and
torso. Appellant then left the house and
Tina called 911. Police arrived and
interviewed Tina. Before the police
left, appellant returned to the house and the police arrested him. While booking appellant, an officer saw appellant
had injuries which the officer believed were “defensive injuries” from Tina’s
having defended herself against appellant.

In
addition to admission of the May 2009 domestic violence evidence to which
appellant did not object, the court admitted over appellant’s objection
evidence of other acts of uncharged domestic violence. They were:



● Appellant
poured vodka over Tina’s head during their honeymoon and “almost bit” off her
hand trying to pull her wedding ring from her finger.



● Appellant
woke Tina up one night in October 2010 and told her he wanted to “party.” Instead of joining him in partying, Tina went
to the bathroom to dress for work. From
the hallway outside the bathroom, appellant threw a glass into the bathtub,
shattering the glass. Appellant then
shoved Tina onto the glass in the tub and, grabbing her throat, threatened to
“snap” her neck if she continued to yell.
When she quieted, he released her.



● Appellant
threatened Tina with a knife during arguments on “about three occasions.”



Appellant
notes that section 1109 requires the trial court to weigh the probative value
of uncharged prior acts of domestic violence against their prejudicial effect
under section 352. Appellant contends
the trial court violated his right to due process by improperly weighing the
evidence under section 352 to admit the uncharged acts of domestic violence
because they were not probative of a specific intent to kill. (People
v. Partida (2005) 37 Cal.4th 428, 435 [misweighing of evidence under
section 352 can support claim of due process violation]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314 [due
process requires court to properly weigh prior domestic violence under sections
1109 and 352].) Appellant admits he
stabbed Tina, but he denies having formed a specific intent to kill, which is
an element of attempted murder and attempted voluntary manslaughter for which
he was tried. (People v. Smith (2005) 37 Cal.4th 733, 739 [attempted murder
requires specific intent]; People v.
Montes (2003) 112 Cal.App.4th 1543, 1549-1550 [attempted voluntary
manslaughter requires specific intent].)
According to him, the uncharged acts of domestic violence to which he
objected were either too vague or too dissimilar to his current alleged
offenses against Tina to be probative of his intent. (Contrast People
v. Johnson (2010) 185 Cal.App.4th 520, 531-531 [similarity of prior
act and current offense supports probative value]; People v. Morton (2008) 159 Cal.App.4th 239, 242, 246-247
[same]; People v. Harris (1998)
60 Cal.App.4th 727, 740 [same].) He
asserts none involved an attempt to kill, and two of them (the honeymoon and
bathtub incidents) involved no deadly weapon at all. And although Tina testified there were “about
three occasions” involving threats with a knife, she did not testify that he
tried to follow through with those particular threats. The uncharged prior acts, appellant seems to
imply, showed at most that he was a wife-beater, but not an attempted murderer. Because the key dispute at trial was not
whether he had stabbed Tina but instead his intent, the prior uncharged acts
served only to cast him in a bad light without illuminating whether he had
formed a specific intent to kill.
Moreover, appellant contends the prior uncharged acts were not corroborated,
which further undermined their probative value.href="#_ftn2" name="_ftnref2" title="">^[2] (People
v. Rucker (2005) 126 Cal.App.4th 1107, 1113 [independent corroboration
supports probative value; lack of corroboration is factor that tends toward
exclusion].)

We
review the trial court’s admission of prior uncharged acts of domestic violence
for abuse of discretion. (>People v. Johnson, supra,
185 Cal.App.4th at p. 531; People
v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.) In enacting section 1109, the Legislature
relied on links it found generally between domestic violence and other violent
crimes against a spouse. The Legislature
found, for example, that domestic violence often involves an abuser’s desire to
control the victim. The “legislative history of [section 1109] recognizes the special
nature of domestic violence crime, as follows:
‘The propensity inference is particularly appropriate in the area of
domestic violence because on-going violence and abuse is the norm in domestic
violence cases . . . [in which any one particular] battering episode is part of
a larger scheme of dominance and control . . . .’ ” (People
v. Johnson (2000) 77 Cal.App.4th 410, 419-420.) The Legislature also found that escalation in
the severity of violence is a hallmark of domestic abuse. (People
v. Johnson, supra, 185 Cal.App.4th at p. 532, fn 8.) Thus, appellant’s prior acts of domestic
violence tended to negate his claims of mutual combat and self-defense that
hung over the trial. The prior acts also
tended to negate his defense that he stabbed Tina impulsively in a moment of
unthinking rage. “name="SDU_532">Section 1109 was intended to
make admissible a prior incident ‘similar in character to the charged domestic
violence crime, and which was committed against the victim of the charged crime
or another similarly situated person.’
[Citation.] Thus, the statute
reflects the legislative judgment that in domestic violence cases . . . similar
prior offenses are ‘uniquely probative’ of guilt in a later accusation. [Citation.]
Indeed, proponents of the bill that became section 1109 argued for
admissibility of such evidence because of the ‘typically repetitive nature’ of
domestic violence. [Citations.]
This pattern suggests a psychological dynamic not necessarily involved
in other types of crimes.” (Id.
at pp. 531-532, fn. omitted.)
We find the court did not violate appellant’s right to due process or
abuse its discretion under sections 1109 and 352 in admitting evidence of the
prior acts as probative of appellant’s intent when he stabbed Tina.

Appellant
contends the evidence of the uncharged prior acts consumed undue time at
trial. The prototypical objection to the
undue consumption of time arises when a proponent of evidence objects to the
court’s exclusion of evidence on that ground.
Appellant cites no authority involving examples of the prototype’s
reverse; in other words, examples where the court admitted evidence over the
objector’s claim that the evidence consumed undue time. (But see People
v. Frazier (2001) 89 Cal.App.4th 30, 42 [noting “conceivably a case
could arise in which the time consumed trying the
uncharged offenses so dwarfed the trial on the current charge as to unfairly
prejudice the defendant” but defendant did not do so where uncharged offenses
consumed only a little more than one-quarter of trial time].) As a reviewing court, we are reluctant to
second-guess a trial court’s discretionary management of its calendar, time,
and case load. Thus we discern no grounds
for finding the court violated appellant’s right to due process or abused its
discretion by not, as appellant implies, “speeding things up” by excluding the
evidence of uncharged prior acts of domestic violence.



>2.
CALJIC
2.50.02



The
court instructed the jury with CALJIC 2.50.02.
The instruction states: “Evidence
has been introduced for the purpose of showing that the defendant engaged in an
offense involving domestic violence on one or more occasions other than that
charged in the case. [¶] . . .
[¶] If you find that the
defendant committed a prior offense involving domestic violence, you may, but
are not required to, infer that the defendant had a disposition to commit other
offense[s] involving domestic violence.
If you find that the defendant had this disposition, you may, but are
not required to, infer that [he] was likely to commit and did commit the crime
or crimes of which [he] is accused.
[¶] However, if you find by a
preponderance of the evidence that the defendant committed a prior crime or
crimes involving domestic violence, that is not sufficient by itself to prove
beyond a reasonable doubt that [he] committed the charged offense[s]. If you determine an inference properly can be
drawn from this evidence, this inference is simply one item for you to
consider, along with all other evidence, in determining whether the defendant
has been proved guilty beyond a reasonable doubt of the charged crimes. [¶]
You must not consider this evidence for any other purpose.”

Appellant
notes that attempted murder and attempted voluntary manslaughter are specific
intent crimes. (People v. Smith, supra, 37 Cal.4th at p. 739; >People v. Montes, supra,
112 Cal.App.4th at pp. 1549-1550.)
Appellant argues that CALJIC 2.50.02 permitted the jury to infer that he
formed a specific intent to kill based on prior acts of domestic violence. Appellant correctly observes that a “permissive
inference violates the Due Process Clause . . . if the suggested conclusion is
not one that reason and common sense justify in light of the proven facts
before the jury.” (>People v. Mendoza (2000) 24 Cal.4th
130, 180.) He claims CALJIC 2.50.02
violated his right to due process because inferring a specific intent to kill
from a history of domestic violence is unreasonable.

We
begin by noting that appellant did not object to the court’s instructing the
jury with CALJIC 2.50.02, thus arguably waiving the point on appeal. But in any case, whether logic and common
sense support a jury instruction’s permissive inference is a question of law
that we independently review. (>Kidron v. Movie Acquisition Corp. (1995)
40 Cal.App.4th 1571, 1580; see also People
v. Posey (2004) 32 Cal.4th 193, 218.)
We see no illogic in inferring a specific intent to kill from a history
of domestic violence. The evidence
showed appellant repeatedly harbored ill will and criminal intent toward Tina
and with those states of mind attacked her repeatedly during their
marriage. The Legislature has found that
such ill will can intensify during an abusive relationship, moving from
beatings to killings. Domestic violence “usually escalates in frequency and severity. . .
. If we fail to address the very essence
of domestic violence, we will continue to see cases where perpetrators of this
violence will beat their intimate partners, even kill them, and go on to beat
or kill the next intimate partner.” (>People v. Johnson, supra, 77 Cal.App.4th
at p. 419.)

P>eople v. Pescador (2004)
119 Cal.App.4th 252 is instructive.
There, the defendant asserted CALJIC 2.50.02 permitted the jury to rely
on uncharged domestic violence by him against his wife to infer he was likely
to have committed premeditated murder of his wife. (Pescador,
at pp. 255, 258.) >Pescador found nothing irrational about
the inferences permitted by the instruction.
Pescador held it was
reasonable to infer from a history of prior domestic violence a propensity to
commit further domestic violence. (>Pescador, at p. 259.) Pescador
further held it was reasonable to infer that the prior commission of domestic
violence, whether or not impulsive, suggested a propensity for committing
domestic violence even if it involved premeditation, such as murder. (>Pescador, at p. 260.)

Likewise
here. CALJIC 2.50.02 permits the jury to
infer from appellant’s previous acts of domestic violence his commission of
“other offenses involving domestic violence.”
The backdrop of an intimate relationship informs our analysis because it
separates domestic violence from ordinary physical assault. One might believe, as appellant implies, that
one cannot logically infer an intent to kill from a history of ordinary
physical assaults that, say for example, one might find among neighborhood
bullies or barroom brawlers. But the
Legislature has rationally concluded that an intent to kill can be inferred
from a history of domestic violence, a finding that underpins CALJIC 2.50.02.

Appellant
also contends CALJIC 2.50.02 is argumentative.
We disagree. An argumentative
instruction selects specific disputed
facts or evidence for highlighting and directs
the jury to draw from those facts and evidence inferences favorable to one
side. (People v. Wright (1988) 45 Cal.3d 1126, 1135.) CALJIC 2.50.02 does not direct the jury to
infer from domestic violence an intent to kill.
Instead, it instructs the jury that it may, but is not required to, draw
from prior acts of domestic violence that appellant may have committed the
current charged offense involving domestic violence. Furthermore, the instruction emphasizes that
the jury must not convict appellant of the charged offense solely on the basis
of the prior acts of domestic violence.
(Compare Wright, at
p. 1135, fn. 5 [argumentative instruction told jury that “in
determining whether a reasonable doubt exists as to the guilt of [defendant]
you may consider that:
(1) All of the robbers wore masks . . . .” [and other
selected pieces of evidence presumably deemed favorable by defendant].) Appellant’s contention that the instruction
is argumentative thus fails.



3.
Prosecutor’s
Misstatement of Legal Element



During
closing argument, the prosecutor misstated one element of attempted voluntary
manslaughter as a lesser included offense of attempted murder. The prosecutor told the jury: “The two ways to get from an attempted murder
to voluntary manslaughter, there are – you can either find he had >no intent to kill due to acting in the
imperfect self-defense, or that he had no
intent to kill, because he was acting under the heat of passion. Either one of these routes will get you down
to the lesser included crime.”href="#_ftn3"
name="_ftnref3" title="">^[3] Defense counsel did not object to the
misstatement, arguably forfeiting the point on appeal. (People
v. Anzalone (2006) 141 Cal.App.4th 380, 393.) But even if one assumes the point remains for
appeal, the court properly instructed the jury in its written and oral
instructions. Additionally, the court
told the jury that the court’s instructions, not counsel’s arguments, stated
the law the jury must follow.
Accordingly, we find that the prosecutor’s passing misstatement, which
the prosecutor did not dwell upon or elaborate, did not constitute reversible
error. (People v. McDowell (2012) 54 Cal.4th 395, 438; >People v. Seaton (2001) 26 Cal.4th
598, 661.)



DISPOSITION



The
judgment is affirmed.







RUBIN,
ACTING P. J.

WE CONCUR:







FLIER,
J. GRIMES,
J.