Filed 8/22/17 P. v. Strawn CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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A jury found defendant James Edward Strawn guilty of inflicting corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a)),[1] torture (§ 206), and possession of a firearm by a felon (§ 29800, subd. (a)). The jury also found true the allegation that he personally inflicted great bodily injury during the commission of the corporal injury offense. (§ 12022.7, subd. (e).) The trial court sentenced defendant to an indeterminate term of life in prison on the torture offense, plus a consecutive determinate term of eight months on the firearm offense. The trial court sentenced defendant to a term of eight years on the corporal injury offense and stayed sentence under section 654.

On appeal, defendant contends his torture conviction must be reversed because the conviction is not supported by substantial evidence. Defendant further contends the trial court committed reversible error in admitting evidence of prior acts of domestic violence under Evidence Code sections 1109 and 352. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

1. Prosecution Case

a. R.J.’s Testimony

In May 2014, the victim, R.J., lived with defendant in two “fifth-wheel” trailers in the town of Oak Run. R.J. and defendant had been a couple “[o]ff and on” for approximately seven years, and had lived together for the past year. Defendant possessed several guns, including a sawed-off shotgun.

Around 11:30 p.m. on May 11, 2014 (Mother’s Day), defendant got into an argument with R.J. after she attempted to smoke marijuana without his permission. Defendant yelled at R.J. and repeatedly struck her in the head, causing her to fall down multiple times. Defendant called R.J. a “cunt” and accused her of “[t]rying to go over [his] head.” According to R.J., the assault lasted for more than two hours. Although she lost track of time, R.J. indicated that defendant was still assaulting her when the sun came up.

During the assault, defendant made R.J. put her hands down so she could not defend herself and then he hit and head-butted her in the face. When R.J. was knocked down, defendant kicked her. R.J. begged defendant to stop but he refused to do so. As he was assaulting her, defendant told R.J.: “Happy fucking Mother’s Day, cunt!” At one point, defendant gave her a drink of water and told her, “[Y]ou know I love you, right?” Defendant then started hitting R.J. again and knocking her down.

When R.J. grabbed a kitchen knife that had fallen onto the floor, defendant said, “You going to fucking stab me, bitch?” After R.J. indicated that she was not going to do so, defendant took the knife from her, threw it aside, and began head-butting and hitting her again. R.J. explained that each time she was knocked down, defendant would kick her and demand she “[g]et up [and] face [him] like a man.”

After hours of being hit, kicked, and head-butted, R.J. was swollen and had trouble hearing. She was bleeding and had been knocked unconscious once or twice. R.J. noted that defendant was also bleeding from a cut on his forehead. R.J. estimated that defendant head-butted her around seven times and kicked her at least 10 to 15 times while she was on the ground begging him to stop. In response to her pleas to stop, defendant said: “I may go away for a long time. You’re going to be ruler of the roost. I have a problem hitting women.”

When defendant was done assaulting R.J., he told her that she needed to get cleaned up. He ordered her to take a shower and then tore the bathroom door off its hinges so he could watch her shower. After she was finished showering, defendant threw cups of cold water on her as she stood in front of him shivering. In response to her request, defendant allowed R.J. to go to the other trailer and get warm. While they were inside the trailer, defendant claimed he saw someone outside. He then screamed, “Get out of here,” and fired two shots from his sawed-off shotgun out the trailer door. Thereafter, R.J. fell asleep. When she woke up, defendant was placing her hand on his erect penis. R.J., who was too afraid to say no to defendant, had sexual intercourse with him.

R.J. explained that at this point her body felt numb. Her face was so swollen she could see her cheeks and eyelids. When defendant ordered her to look in the mirror, R.J. said her face was unrecognizable. She described it as looking like “Freddy Krueger.” Her entire face was swollen and bruised, and her head felt like it was covered with “Play-Doh.” R.J.’s neck, arm, and ribs were also swollen and bruised. Defendant told R.J., “That looks like a woman that just learned her lesson.” He also told her, “I wouldn’t let anyone see you if I were you,” and “I wouldn’t go anywhere if I were you.” He said, “If anybody sees you, they’re going to call the cops.”

When defendant left the property around 9:00 or 10:00 a.m., R.J. got into her car and went to a friend’s house. The police were called but R.J. did not wait for them to arrive because she wanted to “protect” defendant and was afraid. The next day, R.J. went to her brother’s house. She called the police the following day (i.e., May 14, 2014).

R.J. explained that she has residual injuries from the assault. She suffers from headaches and experiences dizzy spells, which did not occur prior to the assault. She also noted that she has a loose tooth from the assault.

b. Deputy Greg Ketel’s Testimony

On May 14, 2014, Shasta County Sheriff’s Deputy Greg Ketel responded to R.J.’s report of domestic violence. He interviewed R.J. and photographed her injuries. Deputy Ketel observed bruising, redness and scratches on R.J.’s face, a laceration on her forehead, bruises on her arms, large bruises near her shoulders, and redness and scratches on her neck. R.J. told Deputy Ketel that defendant had head-butted her, and that she lost consciousness more than two times. She explained that defendant used his palm, rather than his fist, to strike her.

Despite her injuries, R.J. declined to be transported to Redding for medical treatment. She also indicated that she did not want to be taken to Redding to obtain a restraining order against defendant.

When Deputy Ketel interviewed defendant, he explained that he and R.J. got into an argument because R.J. had taken some marijuana that belonged to a customer of his. He did not indicate to Deputy Ketel that there had been a “mutual fight” or that he felt “attacked” by R.J. Instead, defendant admitted that he got upset and slapped R.J. “around a little bit.” Defendant also admitted that R.J. might have some injuries to her face around her eyes and nose. However, he denied that he punched, kicked, or shoved R.J. He also claimed that he did not have any injuries, and that the laceration on his forehead was caused when he hit his head on a car he was working on. Deputy Ketel did not observe any injuries on defendant’s hands.

While defendant was incarcerated in county jail, his telephone calls were monitored and recorded. Portions of the calls were played for the jury. During the calls, defendant made several admissions, including that he “slapped [R.J.] around a little bit,” “beat on” her “a little bit,” and “straight[ened] her out” for stealing from him. He indicated that R.J. got what was coming to her, and that she needed a whole lot more. He said that R.J. needed to be “stomp[ed] on,” hung, and given a “red headache.”[2] He also indicated that he was “going after her ass” as soon as he got out of jail. In addition, defendant made numerous derogatory remarks about R.J., and attempted to persuade his grandfather to conceal the fact that he illegally possessed firearms.

c. Domestic Violence Propensity Evidence

At trial, the court took judicial notice of defendant’s prior convictions for domestic violence against two of his former girlfriends: (1) a 2002 misdemeanor conviction for infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a)); and (2) a 2004 felony conviction for infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a)). The prosecutor did not call a witness to testify about the details of the 2002 conviction. Two Shasta County Deputy Sheriffs, Pat Lanham and Evan Armstrong, testified about the 2004 conviction.

Deputy Lanham testified that he responded to a report of abuse involving defendant and a cohabitant named “H.” When he arrived at the hospital, H. explained the details of the assault. Deputy Lanham observed and photographed H.’s injuries, which included bruising and swelling on her forehead and other areas of her face, neck, and back, as well as scratches and other marks on her back and legs. Deputy Lanham noted that H. had a bruise in the shape of a boot or shoe print on her back. According to Deputy Lanham, H.’s injuries corroborated the details of the assault she had described to him.

Deputy Armstrong testified that he and three other officers went to the property where defendant was living and arrested him. At the property, the officers found two rifles inside his truck. When interviewed, defendant admitted he had argued with H. He claimed that she punched him in the forehead, and that he slapped her in the face one time. He said that H. then got into her car and left with her children. When defendant was asked about an injury to his foot, he claimed that he had kicked a television. Defendant, however, had no explanation for the injuries on the knuckles of his right hand.

d. R.J.’s Recall Testimony

After Deputy Lanham testified, R.J. was recalled to testify about defendant’s prior acts of abuse. R.J. testified that defendant hit her for the first time when they had been together for less than six months. She said that he “smacked” her in the mouth “[l]ike a slap down.” A few months later, R.J. said that defendant head-butted her, causing a big knot on her forehead. On another occasion, defendant became enraged and accused her of infidelity. As she attempted to drive away, defendant threw a large piece of wood through her window, causing a large bruise on her arm. In another incident, defendant became angry at R.J. and chased her. When she attempted to drive away, he fired shots at her with his rifle. On yet another occasion, R.J. said defendant “clocked [her] left and right” on each side of her head. R.J. also recounted an incident in which defendant hit her and knocked her to the ground. She explained that he kicked her while she was on the ground and then told her to get back up. During the incident, defendant said that he was “just toying with [her].” Finally, in an incident stemming from an argument about a computer keyboard, defendant choked R.J. so hard she could not breathe. He also injured her ribs when he took her to the ground and landed on top on her.

R.J. explained that she would leave defendant after he abused her, but would eventually come back because she loved him. She further explained that she never called the police because she “wanted the good Jimmy to come out.”

B. Defense Case

Defendant testified on his own behalf. He admitted to having numerous arguments with R.J. He also admitted he had prior convictions for domestic violence in 2002 and 2004.

Defendant claimed that R.J. yelled at him a lot and had assaulted him three times in the past, including on the evening of May 11, 2014. He explained that the argument on May 11, 2014 was about R.J. taking marijuana without his permission. He was extremely upset about R.J.’s behavior and demanded she move out. Defendant admitted that he yelled at R.J. and slapped her. According to defendant, R.J. then came after him with a butcher knife. He explained that he took the knife away from R.J., slapped her “rather hard” in the face three or four times, and then went outside to cool down. When they talked later that evening, R.J. apologized and begged him to let her stay. He said that they slept together that night and had consensual intercourse in the morning. He also said that R.J. agreed to leave the property but was very angry.

Defendant denied or did not remember, among other things, hitting R.J. for an extended period of time, kicking her, knocking her to the floor and beating on her, head-butting her, hitting her with his fist, forcing her to take a shower, or shooting his shotgun. He also claimed he did not observe that she had been knocked out. He also denied that he made nasty comments about R.J.’s looks or committed any of the prior incidents of abuse recounted by R.J. Defendant said that R.J. was a “dirty bitch,” a “thief,” and a “liar.”

On cross-examination, defendant conceded that he had a problem hitting women. He admitted that he had previously hit two former girlfriends and was convicted of felony corporal injury in 2004. He also admitted that he never mentioned to Deputy Ketel that R.J. had attempted to stab him with a butcher knife, and that he lost his temper and struck R.J. out of “revenge” because she was “ripping [him] off.” He explained that he was very angry and “[t]ired of getting ripped off.” In addition, defendant acknowledged that he said R.J. needs “to be stomped on,” and that he enjoyed calling her names. He also acknowledged that he attempted to persuade his grandfather to lie about the guns found by the police because he knew he was not allowed to possess them.

C. Verdict and Sentencing

A jury found defendant guilty of inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a)), torture (§ 206), and possession of a firearm by a felon (§ 29800, subd. (a)). The jury also found true the allegation that defendant personally inflicted great bodily injury during the commission of the corporal injury offense. (§ 12022.7, subd. (e).) The jury found defendant not guilty of false imprisonment by violence (§ 236), attempted false imprisonment by violence (§§ 664, 236), forcible rape (§ 261, subd. (a)(2)), and discharge of a firearm with gross negligence (§ 246.3).

The trial court sentenced defendant to an indeterminate term of life in prison for the torture offense, plus a consecutive determinate term of eight months for the firearm offense. The trial court imposed an aggregate term of eight years on the corporal injury offense and stayed sentence pursuant to section 654.

Defendant filed a timely notice of appeal.

DISCUSSION

A. Substantial Evidence

Defendant contends that his torture conviction must be reversed because the conviction is not supported by substantial evidence. We disagree.

1. Standard of Review

“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)

2. Torture Conviction

Section 206 defines the crime of torture as follows: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain.”

“Thus, for purposes of section 206, torture has two elements: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. [Citation.] Torture focuses upon the mental state of the perpetrator. [Citation.] In this respect, revenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning, ‘ “the infliction of pain on another person for the purpose of experiencing pleasure.” ’ [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 370-371.) Black’s Law Dictionary defines “revenge” as: “Vindictive retaliation against a perceived or actual wrongdoer; the infliction of punishment for the purpose of getting even.” (Black’s Law Dict. (10th ed. 2014) p. 1513.)

Defendant argues the evidence presented at trial was insufficient to establish that he had the requisite intent to cause “ ‘cruel or extreme pain and suffering’ ” because he did not use a gun, knife or any other weapon during his assault on R.J. According to defendant, while R.J. “may have been seriously injured,” she did not “suffer deep cuts,” and her injuries “did not result in permanent scars or disfiguration of her face.”

“Courts have interpreted intent to inflict ‘cruel’ pain and suffering as intent to inflict extreme or severe pain. [Citation.]” (People v. Burton (2006) 143 Cal.App.4th 447, 452.) However, it is not necessary that the defendant cause prolonged pain, or intend to do so. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1427.) The intent to torture is a state of mind which can be established by the defendant’s own statements or the circumstances surrounding the commission of the offense. (People v. Mungia (2008) 44 Cal.4th 1101, 1137.) A jury may consider the severity of the victim’s wounds in determining whether defendant intended to torture. (People v. Mincey (1992) 2 Cal.4th 408, 432-433.) “ ‘[A] jury may [also] infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim.’ [Citation.]” (People v. Hamlin, supra, at pp. 1426-1427.) Intent can be reasonably inferred when the defendant “deliberately strikes his victim on an area of the body that is already injured.” (Id. at p. 1430.)

We conclude there is ample evidence in the record to support defendant’s torture conviction. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have concluded that defendant inflicted great bodily injury on R.J. with the intent to cause severe pain and suffering for the purpose of exacting revenge on R.J. because, he says, she stole from him. There is evidence defendant repeatedly punched, head-butted, and kicked R.J. over the course of several hours to teach her a lesson. There is also evidence defendant made R.J. keep her hands down while he repeatedly struck her in the face, and then made her get up off the floor so she could “face [him] like a man.” The record discloses R.J. suffered numerous injuries, including a laceration on her forehead, swelling on her head, bruising on her arms, neck, ribs, and shoulders, and swelling and bruising on her entire face. R.J. testified that her face was so swollen from the attack that she could see her cheeks and eyelids. She described her face as unrecognizable, explaining that her face looked like “Freddy Krueger” and her head felt like it was made out of “Play-Doh.” When defendant testified, he admitted that he was very angry and struck R.J. out of “revenge” because she stole from him. After his arrest, defendant said he “straight[ened]” R.J. out for stealing from him, and R.J. got what was coming to her and needed a whole lot more. Defendant also admitted he “beat on” R.J.

We are not persuaded by the cases defendant relies upon to argue that torture requires more than the facts of this case demonstrate. The fact there are other cases in which the injuries suffered were more severe and the acts committed more horrific is irrelevant. “There is no question there are cases in which the acts of torture were more gruesome. However, ‘[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.’ [Citation.]” (People v. Odom (2016) 244 Cal.App.4th 237, 248.) The facts of this case amply support a finding of intent to torture.

Contrary to defendant’s contention, the crime of torture does not require the use of a gun, knife, or any other weapon. (People v. Martinez (2005) 125 Cal.App.4th 1035, 1044 [“the crime of torture does not require the use of any weapon”].) Nor, as defendant suggests, does the crime of torture require deep cuts or permanent scars or disfiguration. (People v. Pre (2004) 117 Cal.App.4th 413, 420 [“Section 206 does not require permanent, disabling, or disfiguring injuries; ‘[s]ection 206 only requires “great bodily injury as defined in Section 12022.7” . . . . “Abrasions, lacerations and bruising can constitute great bodily injury” ’ ”].)

B. Domestic Violence Propensity Evidence

Defendant contends the trial court committed reversible error in admitting evidence of prior acts of domestic violence under Evidence Code sections 1109 and 352. According to defendant, the trial court erroneously took judicial notice of his 2002 domestic violence conviction because it was beyond the 10-year period established by Evidence Code section 1109 and was not sufficiently similar to the charged offenses to be admissible. Defendant further argues that the cumulative effect of the admission of the 2002 conviction and the testimony regarding his 2004 domestic violence conviction was unduly prejudicial. We disagree.

1. Additional Background Information

Prior to trial, the prosecutor filed a motion to admit evidence of defendant’s prior acts of domestic violence to show his propensity to commit such crimes. Specifically, the prosecution sought to admit evidence regarding defendant’s 2002 misdemeanor conviction for infliction of corporal injury upon a cohabitant and defendant’s 2004 felony conviction for infliction of corporal injury upon a cohabitant. In support of the motion, the prosecutor provided details of the two prior incidents of domestic violence. The prosecutor also noted defendant had hit R.J. throughout their seven-year relationship, which began in 2007.

The 2002 incident involved A.B., who was defendant’s live-in girlfriend at the time. In that incident, A.B. called the police and reported defendant had assaulted her at their residence. She explained to the responding officers defendant became angry over an argument amongst her children. A.B. locked defendant out of the house and argued with him. When she let defendant inside, he began yelling even more than he was before. A.B. attempted to call the police but defendant took the phone from her and scratched her wrist. Defendant then hit her in the back of the head, causing her to fall down and hit her head on the kitchen sink. He also attempted to throw her off the deck. When the officers arrived at the residence, A.B. was bleeding, had scratches on her wrist, and complained that her head was hurting.

The 2004 incident involved H.A., who was defendant’s live-in girlfriend at the time. H.A. got into an argument with defendant and he assaulted her. Following the assault, a police officer met with H.A. at the hospital and observed she had sustained multiple injuries, including a large bump on her forehead, and bruising and scratching on her back, forehead, arms, leg, and back of her head. H.A. also had an imprint of the sole of a shoe on her back near some bruising. H.A. said defendant head-butted her, repeatedly struck her with his fist, grabbed her around the neck, and kicked her. H.A. said when she attempted to leave the residence with her children, defendant tried to ram the side of her vehicle with his truck. When interviewed, defendant claimed he had only slapped H.A. during an argument. However, he had visible injuries to his hands and knuckles and an injury to his foot. Defendant claimed that he injured his foot when he kicked a television but had no explanation for the injuries to his hands.

At the hearing on this issue, defendant objected to the admission of the prior acts evidence on the ground that the evidence would consume an undue amount of time, create a substantial danger of undue prejudice, and would mislead and confuse the jury. Defendant also argued the evidence should not be admitted because the prior acts were too remote in time. In ruling the evidence was admissible, the trial court concluded the prior acts evidence was highly probative on the issue of defendant’s propensity to commit acts of domestic violence, and the evidence was more probative than prejudicial. In so concluding, the trial court found the prior acts were remarkably similar to the acts giving rise to the charges in this case and were not too remote in time that they do not “speak” to the character of defendant to commit acts of domestic violence. The court concluded the jury would not have a hard time separating the prior acts from the charged offenses, and the prior acts evidence would not consume an undue amount of time because the prosecutor only intended to present the testimony of two police officers, which was estimated to take less than one hour. Finally, the court noted, because the parties agreed to a stipulation that would inform the jury that defendant was punished for the prior acts, the risk the jury would attempt to punish him for these acts was reduced.

At trial, the court took judicial notice of the prior domestic violence convictions without objection, two police officers briefly testified regarding the 2004 incident, and photographs of the victim involved in that case were introduced into evidence.

2. The Law

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) The Legislature, however, has created an exception to this rule in criminal domestic violence cases. (Evid. Code, § 1109; People v. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown).) In those cases, the Legislature concluded the policy considerations favoring admitting evidence of uncharged domestic violence offenses outweigh the policy considerations favoring excluding such evidence. (Brown, supra, at p. 1232.) “[Evidence Code s]ection 1109, in effect ‘permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]’ [Citation.]” (Brown, supra, at p. 1233.) “The admission of prior acts as propensity evidence encompasses both charged and uncharged acts. [Citations.]” (Ibid.)

“Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court’s exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (Brown, supra, 192 Cal.App.4th at p. 1233, fn. omitted.)

Evidence Code section 1109 also contains a provision addressing the remoteness of an uncharged prior act. Subdivision (e) of Evidence Code section 1109 states: “ ‘Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.’ Thus, while evidence of past domestic violence is presumptively admissible under subdivision (a)(1), subdivision (e) establishes the opposite presumption with respect to acts more than 10 years past.” (People v. Johnson (2010) 185 Cal.App.4th 520, 537, fn. omitted (Johnson).) Nevertheless, subdivision (e) “sets a threshold of presumed inadmissibility, not the outer limit of admissibility. It clearly anticipates that some remote prior incidents will be deemed admissible.” (Johnson, supra, at p. 539.) The “ ‘interest of justice’ ” exception under subdivision (e) may be “met where the trial court engages in a balancing of factors for and against admission under [Evidence Code] section 352 and concludes . . . that the evidence was ‘more probative than prejudicial.’ ” (Johnson, supra, at pp. 539-540.) This determination is reviewed for an abuse of discretion. (Id. at p. 539.)

3. Analysis

On this record, we conclude the trial court did not abuse its discretion. The court properly found that evidence of defendant’s prior acts of domestic violence was probative of his propensity to engage in acts of domestic violence. “ ‘ “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.” ’ [Citation.]” (Johnson, supra, 185 Cal.App.4th at pp. 531-532.) In this case, defendant’s prior acts of domestic violence in 2002 and 2004 involved defendant hitting a cohabitant. The prosecutor did not call a witness to testify regarding the details of the 2002 incident,[3] and the testimony at trial showed that the facts of the 2004 incident were similar in many relevant respects to the current charges. In the 2004 incident, defendant and his live-in girlfriend got into an argument and defendant assaulted her. When interviewed by the police, defendant claimed the victim assaulted him, and that he slapped her in the face one time. However, the record discloses the victim was repeatedly hit and/or kicked, as she suffered numerous injuries (e.g., bruising, scratches, and swelling) to various parts of her body, including her back, legs, neck, head, and face. The record also discloses the victim was kicked or stomped on so hard that she had a bruise in the shape of a boot or shoe on her back. There was also evidence defendant hit and kicked the victim so hard he suffered injuries, including an injury to his foot and injuries to the knuckles on his right hand. In view of the substantial similarities between the 2004 domestic violence incident and the charged offenses involving R.J., the 2004 incident was highly probative of defendant’s propensity to engage in acts of domestic violence. Taken together, the evidence regarding the prior domestic violence convictions and R.J.’s testimony shows a continuous pattern of domestic abuse. Accordingly, the prior acts evidence was highly relevant and probative because it created a strong inference that defendant had a propensity to commit the acts R.J. claimed occurred on May 11 and 12, 2014. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.)

The probative value of the prior acts evidence was not substantially outweighed by its prejudicial impact. “Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) In this case, the evidence regarding the 2002 and 2004 incidents came from sources independent of the sources of evidence supporting the charged offenses, which reduces the danger of fabrication. (Johnson, supra, 185 Cal.App.4th at p. 533.) In addition, the prior acts of domestic violence in 2002 and 2004 resulted in convictions, and the testimony describing the 2004 incident was limited and did not reflect that the incident was more aggravated or inflammatory than the charged crimes. (People v. Tran (2011) 51 Cal.4th 1040, 1047 [potential for prejudice is decreased “when testimony describing the defendant’s uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense”].) Defendant does not argue, and nothing in the record suggests, that the jury might have confused the prior acts of domestic violence and the charged offenses.

While the evidence of defendant’s pattern of abusing his girlfriends was no doubt damaging to his defense that R.J. was not telling the truth, in applying Evidence Code section 352, “ ‘ “ ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276.) Undue prejudice does not refer to evidence that tends to prove guilt; it refers to evidence that prompts an emotional reaction against defendant that tends to cause a jury to decide the case on an improper basis. (Id. at pp. 1276-1277.) Evidence is unduly prejudicial under Evidence Code section 352 “if it invites the jury to prejudge ‘ “ ‘a person or cause on the basis of extraneous factors’ ” ’ [citation]. ‘Painting a person faithfully is not, of itself, unfair.’ ” (Johnson, supra, 185 Cal.App.4th at p. 534.) In light of the record, we cannot conclude the prior acts evidence was unduly prejudicial.

We reject defendant’s contention the trial court erroneously took judicial notice of his 2002 domestic violence conviction.[4] Contrary to defendant’s contention, the fact this conviction was more than 10 years old does not render the conviction too remote such that the trial court erred by taking judicial notice of it. “Remote prior conduct is, at least theoretically, less probative of propensity than more recent misconduct. [Citation.] This is especially true if the defendant has led a substantially blameless life in the interim . . . .” (Johnson, supra, 185 Cal.App.4th at p. 534.) However, this was not true in this case. Defendant’s prior domestic violence convictions and R.J.’s testimony showed an ongoing pattern of domestic abuse, which is precisely what the Legislature was concerned with in enacting Evidence Code section 1109. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 [“ ‘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’ ”]; see People v. Cabrera, supra, 152 Cal.App.4th at p. 706 [“Because of the unbroken nature of appellant’s abuse, the fact that the first of the five incidents was almost 10 years old did not render it unduly remote”].) The trial court did not abuse its discretion in admitting this evidence. The court could have reasonably determined that admission of the evidence was “in the interest of justice.”

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

MURRAY , J.

RENNER , J.