Filed 12/17/18 P. v. Roach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed.

Richard Power, 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 Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found Jessee Roach guilty of first-degree burglary, domestic battery with injury with prior conviction for violence, and two violations of a protective order. Roach appeals following the imposition of a seven year, four month sentence. Roach contends the court’s refusal to sever the burglary and domestic battery charges for trial constituted an abuse of discretion. He also argues the trial court erred by admitting, pursuant to Evidence Code section 1109, propensity evidence of two prior domestic violence incidents. We find no error and affirm the judgment.

FACTS

Roach and A.B. dated for approximately four years. They have a son together. In 2016, A.B. lived with Roach and their son in an apartment, along with a roommate. Roach moved out at the end of July 2016. In August 2016, the roommate installed a security device in the apartment with a silent alarm and a camera. A.B. had a protective order against Roach.

1. The October 23, 2016 Incident (Count 2)

On October 23, 2016, the roommate was in her bedroom when she heard A.B. scream. The roommate activated the silent alarm. The roommate stood outside A.B.’s bedroom door and observed A.B. and Roach struggling over their son. The roommate also witnessed Roach kick A.B. After A.B. grabbed their son, Roach left the apartment.

Garden Grove police arrived at the apartment minutes after the silent alarm was activated. A.B. was crying hysterically. She complained of pain in her inner thigh and an officer observed a knot on the back of her head.

A.B. told police Roach entered the apartment and told her “come on, we’re going now.” He then grabbed the lower portion of her legs. A.B. fell down and Roach pulled her towards the doorway of her bedroom. A.B. screamed. Roach hit A.B. in the face. He then grabbed a plastic mattress cover and pulled it over A.B.’s face and punched her in the back of the head. After Roach removed the mattress cover from A.B.’s head, he pulled her up by the hair. A.B. pushed Roach away and said she would tell the police everything. Roach responded she was a “fucking rat” and picked up their son. He left the apartment without the child after being confronted by the roommate.

2. The October 26, 2016 Incident (Count 1)

Three days after the first incident, A.B.’s roommate heard a loud noise in the apartment. She went to the bathroom and saw the window was broken. She then looked in A.B.’s bedroom and saw Roach taking items. A.B. signaled to her roommate to call the police. The roommate then triggered the silent alarm.

The roommate locked herself inside her bedroom and accessed the security camera in the living room through her computer. She witnessed A.B. and Roach fighting and soon after heard A.B. scream. She then heard a knock on her bedroom door. She opened it to let A.B. and her son inside. The roommate relocked the door and called 911.

Garden Grove police again responded to the apartment. They heard cries for help and saw the broken bathroom window. As the officers approached, they found three people inside the apartment who reported there was a person inside the residence with a knife. Police apprehended Roach inside the bathroom of the apartment. Roach was standing in the bathtub; there was broken glass and a kitchen knife on the floor of the tub. At trial, the roommate identified the knife as one kept in the apartment’s kitchen.

A.B. told police she was inside her bedroom when she heard banging on the window. Shortly thereafter, she heard a window break. A.B. saw Roach in her bedroom and told him to leave because he was not allowed to be there. Roach hid in her bedroom closet, and A.B. took their son and ran to her roommate’s bedroom.

3. Pretrial, Trial, and Sentencing

An information charged Roach with first-degree residential burglary with the intent to commit assault with a deadly weapon and stalking (Pen. Code §§ 459-460, subd. (a);[1] count 1); willful infliction of corporal injury on a former cohabitant with a prior domestic violence conviction (§ 273.5, subd. (a)-(f)(1); count 2); and two counts of violation of a protective order (§ 166, subd. (c)(1); counts 3 and 4). It was specially alleged that a non-accomplice was present during the residential burglary (§ 667.5, subd. (c)(21)). It was further alleged Roach had a prison prior (§ 667.5, subd. (b)).

Prior to trial, Roach moved to sever count 1 from count 2. His counsel argued, “I do think that the [section] 1109 evidence that is admissible. Because of count 2 I don’t think [it] would be admissible in a separate trial with count 1, and I do believe that the inflammatory nature of the [section] 1109 evidence being admitted on count 2, I don’t think there’s a limiting instruction that would prevent the jury from taking into consideration the [section] 1109 evidence with relation to the residential burglary . . . .”

The People argued in response that the incidents in counts 1 and 2 were close in time, involved the same victim, and the People’s theory regarding count 1 was that Roach entered the apartment to commit a domestic assault and stalking. The People suggested a limiting instruction regarding propensity evidence. The trial court denied Roach’s severance motion.

Also before trial, the People moved to introduce, and Roach moved to exclude, prior domestic violence evidence from 2014 and 2015, both involving A.B. Ultimately, the trial court admitted the earlier acts of domestic violence. As to the October 2015 incident, Roach also made separate Evidence Code section 352 objections to specific information, including that Roach forced A.B. to disrobe, that the incident occurred at a domestic violence shelter, and that Roach was under the influence of drugs. The court excluded that evidence. It also gave a limiting instruction to the jury to curb any potential inflammatory effect as to the propensity evidence that was admitted.

At trial, the People introduced evidence about the first prior domestic violence incident, which occurred on September 27, 2014. Rancho Cucamonga police responded to a call of a male assaulting a female inside a pickup truck. A.B. told the officer Roach got upset with her and slapped a cereal bowl out of her hand. She also said Roach punched her with a closed fist several times. Her eyes were bruised and swollen and she had bruises on her arms.

The second prior domestic violence incident occurred on October 13, 2015. City of Orange police responded to an emergency call. On the scene, officers encountered Roach, who was drenched in sweat and appeared angry. A.B. had visible injuries, including redness and swelling on her neck and arms. A.B. told officers Roach located her on social media. Once he arrived, A.B. invited him inside because she was afraid he would make a scene. She also feared for her safety and for her son’s safety if she did not let Roach in. Once inside, Roach assaulted A.B. in the bedroom. He pulled her by the hair, knocked her to the ground, and straddled himself on top of her. Roach then began choking A.B., who said she went in and out of consciousness. A.B. was able to escape from her bedroom. She knocked on her neighbor’s door, and yelled for the neighbor to call 911.

At trial, A.B. testified she did not remember much about the prior incidents. She stated she had lied a lot and made a lot of mistakes while under the influence of drugs. She testified Roach did not physically assault her during the October 23, 2016 incident, stating her injuries were from consensual, rough sex with Roach. The People’s investigator who interviewed A.B. prior to her testimony said she stated she did not want to testify because she was afraid.

The jury found Roach guilty of all counts and found true the special allegation as to count 1. The trial court sentenced Roach to seven years and four months in prison.

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion by Denying Roach’s Motion to Sever Counts 1 and 2

Roach contends the trial court erroneously denied his motion to sever counts 1 and 2. He further asserts joinder of the counts resulted in prejudice resulting in a denial of due process. None of his contentions have merit.

Section 954 provides in relevant part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . .” The statute also provides that “the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (§ 954.) Because consolidation or joinder of charged offenses ordinarily promotes efficiency, that “‘is the course of action preferred by the law.’” (People v. Soper (2009) 45 Cal.4th 759, 771.) “[P]ursuant to section 954 an accusatory pleading may charge two or more different offenses so long as at least one of two conditions is met: The offenses are (1) ‘connected together in their commission,’ or (2) ‘of the same class.’” (Id. at p. 772.)

A trial court’s ruling denying a severance motion is reviewed for abuse of discretion. (People v. Kraft (2000) 23 Cal.4th 978, 1030.) An abuse of discretion is shown where the trial court’s ruling ““““falls outside the bounds of reason.”””” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) On appeal, the reviewing court considers ‘“(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.’” (Id. at pp. 1220-1221.)

Roach first argues joinder was improper on counts 1 and 2 because the offenses were not of the same class. He contends the burglary charged in count 1 was a property crime, while the domestic violence charged in count 2 involved a physical attack. Roach’s arguments lack merit.

“Although the crime of burglary is not a crime of domestic violence on its face, [a] trial court [may] properly [find] that under the facts of the case, the burglary was a qualifying offense allowing the People to seek to present propensity evidence under section 1109.” (People v. James (2010) 191 Cal.App.4th 478, 484 (James) [burglary with intent to commit domestic violence falls within the definition of domestic violence under section 13700^[2]].) Where a defendant burgles with the intent to commit domestic violence, that “intent . . . makes the burglary an offense ‘involving domestic violence.’” (Id. at p. 484.)

The James court explained the nexus between burglary and domestic violence well: “Although burglary is not, in every instance, an offense involving domestic violence, under the facts of this case the crime of burglary was an offense ‘involving domestic violence.’ Defendant broke down the door of K.M., a person with whom he had a dating relationship, and repeatedly made threatening remarks towards her. His actions placed K.M. in reasonable apprehension of imminent serious bodily injury to herself. Thus, his actions, which resulted in his conviction for burglary, involved domestic violence.” (James, supra, 191 Cal.App.4th at p. 483.)

Here, much like the facts in James, in the incident charged in count 1, Roach broke into A.B.’s apartment, forcing her to hide in a bedroom with her son and roommate until the police arrived. Responding officers heard yells for help and crying because there was a person inside the residence with a knife. Under these facts, A.B. was in reasonable apprehension of imminent serious bodily injury to herself, and Roach’s actions in count 1 involved domestic violence.

We next consider Roach’s argument that joinder of counts 1 and 2 resulted in prejudice amounting to a denial of due process. A defendant must make a clear showing of prejudice to establish the trial court abused its discretion by consolidating counts. (People v. Mendoza (2000) 24 Cal.4th 130, 160.) We consider the same factors identified above, namely cross-admissibility of evidence, joining inflammatory charges, and joining a strong case with a weak one. (§ 954; People v. Ochoa (1998) 19 Cal.4th 353, 409-410.) While all factors are considered, they are not of equal weight: “Cross‑admissibility is the crucial factor affecting prejudice.” (People v. Stitely (2005) 35 Cal.4th 514, 531.) “Where evidence would have been cross-admissible in separate trials, . . . ‘“any inference of prejudice is dispelled.”’” (People v. Gray (2005) 37 Cal.4th 168, 222.)

It appears the trial court impliedly determined at least some evidence relevant to count 2 would be admissible in a separate trial on count 1. Cross-admissible testimony seemed to include evidence of A.B. and Roach’s relationship, Roach’s attempts to control A.B.’s behavior, and resulting threats and physical violence.

As to the other factors, Roach similarly failed to demonstrate prejudice. He claims a weak burglary case was joined with a stronger domestic violence case in order to inflame the jury against him. The evidence related to the burglary charge involved Roach entering A.B.’s apartment after smashing her bathroom window and thereafter arming himself with a kitchen knife. From such evidence, a reasonable juror might well infer he harbored the intent to commit assault with a deadly weapon and to stalk A.B. The same juror could have reasonably concluded count 1 was just as serious as the domestic battery charged in count 2. Each count was supported by substantial evidence. Roach fails to show count 1 was weaker or more inflammatory than count 2.

Resulting efficiencies also weighed in favor of joinder. Counts 1 and 2 involved the same victim, A.B., as well as the same roommate, and several police officers. Consolidation avoided the need for multiple witnesses to appear in court and testify twice. It also prevented repetitive presentations in each case.

The trial court did not abuse its discretion in denying Roach’s motion to sever counts 1 and 2. Roach fails to demonstrate joinder resulted in prejudice amounting to a denial of due process.

2. The Trial Court Did Not Abuse Its Discretion by Admitting Propensity Evidence

Roach next contends the trial court abused its discretion by admitting Evidence Code section 1109 propensity evidence concerning prior domestic violence against A.B., over his Evidence Code section 352 objection. As a result, Roach claims he was denied due process and a fair trial on count 1. The People argue evidence regarding Roach’s prior acts of domestic violence was particularly relevant to the charged offense of committing a residential burglary with the intent to commit assault with a deadly weapon and stalking. We conclude the court properly exercised its discretion in admitting the propensity evidence under Evidence Code section 1109.

Character evidence is generally inadmissible to prove the person’s conduct on a certain occasion. (Evid. Code § 1101, subd. (a).) An exception to this rule applies in cases involving sexual offenses (Evid. Code § 1108, subd. (a)), as well as those involving domestic violence, elder or dependent abuse, and child abuse (Evid. Code § 1109, subd. (a)(1)‑(3)). Thus, pursuant to Evidence Code section 1109, propensity evidence may be admissible in cases involving domestic violence. Such propensity evidence, however, may be excluded pursuant to Evidence Code section 352. Evidence Code section 352 provides: “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.”

In evaluating propensity evidence under Evidence Code section 352, “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 . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) The trial court must determine “whether ‘[t]he testimony describing defendant’s uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.’” (People v. Harris (1998) 60 Cal.App.4th 727, 738.)

We review the trial court’s decision to admit evidence of Roach’s prior domestic violence offenses under Evidence Code section 1109 for abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is “entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.” (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)

Before trial, Roach moved to exclude evidence of his prior domestic violence incidents against A.B., citing Evidence Code section 352. The trial court considered the moving papers on the issue, heard oral argument from counsel, and considered the Evidence Code section 352 factors, weighing prejudice against probative value. The court then concluded evidence of Roach’s prior domestic violence against the same victim was admissible since the prior domestic violence incidents were not remote in time and were sufficiently similar to the crimes charged in counts 1 and 2.

Furthermore, while the trial court admitted propensity evidence regarding the prior domestic violence incidents, the court excluded specific details related to the October 2015 incident, including the fact Roach forced A.B. to disrobe, the fact that the incident occurred at a domestic violence shelter, and the fact that Roach was under the influence of drugs at the time. The court also gave a limiting instruction to the jury to curb any potential inflammatory effect as to the propensity evidence that was admitted.

We disagree with Roach’s claim that “the prior acts involved more serious acts and injuries than the presently charged incident.” The prior acts of domestic violence involved physical violence similar to the acts charged in counts 1 and 2. During the 2014 incident Roach punched A.B. In 2015, Roach tracked A.B. down, assaulted her by pulling her hair, knocked her to the ground, and choked her. The crimes charged in counts 1 and 2 shared similar characteristics to the prior acts, and they were arguably just as serious, if not more serious, than the prior incidents. In the incident charged in count 1, Roach broke into A.B.’s apartment in violation of a protective order, took items from A.B.’s bedroom, and was apprehended with a knife. With respect to count 2, Roach grabbed A.B., struck A.B. in the face, covered her face with a plastic mattress cover, and struck her again in the back of the head. Roach’s acts resulting in counts 1 and 2 were serious and indeed eerily similar to his prior abuse against A.B.

The trial court did not abuse its discretion in concluding the 2014 and 2015 incidents were admissible as propensity evidence under Evidence Code section 1109. Given the court’s proper application of Evidence Code section 1109, Roach also fails to show a due process violation.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.