P. v. Woods

Filed 10/11/06 P. v. Woods CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob, Jennifer A. Jadovitz, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Phillip Eugene Woods appeals from judgment entered following jury convictions for willful infliction of corporal injury (domestic violence) on January 12, 2005, (Pen. Code §, 273.5, subd. (a)^[1]; count 2^[2]) and misdemeanor battery (§ 242; count 4). The jury found defendant not guilty of possession of marijuana for sale (Health & Saf. Code, § 11359; count 3). In addition, in accordance with the People’s request, at the beginning of the trial, the court dismissed count 1 (willful infliction of corporal injury on August 13, 2004, in violation of section 273.5, subd. (a)). The court sentenced defendant to a total prison term of three years.

Defendant contends the trial court erred in (1) admitting evidence that, prior to the charged offenses, the victim, K.W.,^[3] sustained on August 13, 2004, injuries similar to those inflicted in the charged domestic violence offense; (2) admitting an irrelevant, prejudicial portion of a 911 recorded call; and (3) giving inappropriate instructions on flight (CALJIC No. 2.52) and on prior acts of domestic violence (CALJIC No. 2.50.02). Defendant also alternatively argues, in the event he waived these issues, that he received ineffective assistance of counsel, and complains of cumulative prejudicial error. We conclude that there was no prejudicial error, either individually or cumulatively, and thus affirm the judgment.

1. Facts

Defendant and K.W. had been dating since 1999, and had two children.

On January 12, 2005, around 11:00 a.m., K.W.’s aunt, Karen J., went to K.W.’s house to drive her to an appointment. As Karen J. approached K.W.’s front door, she heard defendant yelling at K.W. and K.W. asking why he kept beating her. K.W. was screaming and crying. Karen J. knocked once on the door and then listened some more. K.W. told defendant twice to stop beating her.

Karen J. went across the street to a market, called 911 and reported the incident to the dispatcher. She then returned to K.W.’s house and went inside. Defendant was still yelling at K.W. and K.W. was crying. They were in a room with the door closed. Karen J. again went across the street and called 911. The dispatcher said an officer was on the way or was already there.

Karen J. went back to K.W.’s house and again went inside. Karen J. saw K.W. stumbling out of the bedroom or bathroom, naked and beaten up. Her mouth and nose were bleeding, and her eyes and face were swollen and bruised. Karen J. noticed bite-marks on K.W.’s back. K.W.’s bra was lying on the floor, torn in two. Defendant was leaving the hallway. He was in his boxers. Karen J. started yelling and screaming when she saw K.W. Defendant grabbed Karen J. and tried to keep her from leaving the house.

Karen J. got away. She went across the street and called 911 a third time. She told the dispatcher defendant was beating her niece and had grabbed Karen J. in an attempt to prevent her from leaving the house.

Sheriff’s Deputy Necochea arrived at the scene. As he stood outside the front door, he heard a man yelling and a woman crying. Officer Necochea rang the doorbell twice. Both times no one responded and the man and woman continued arguing. After Officer Necochea loudly knocked on the door, the arguing stopped and Officer Necochea heard someone open the side door. He ran to the door but did not see anyone, although the screen door was ajar.

A little later Officer Necochea saw K.W. walking outside. She appeared to have been crying, her left eye was bruised, her forehead and lips were swollen, her lip was cut, and she had dried blood on her lips. Karen J. approached Officer Necochea and pointed out a bite mark on K.W.’s back. Karen J. told Officer Necochea she had seen defendant punching K.W. Officer Necochea did not find defendant in K.W.’s house and he did not show up during the 90 minutes Officer Necochea was at K.W.’s home. Officer Necochea found a torn bra and a puddle of fresh blood on the floor of K.W.’s home.

2. Admission of Evidence of Prior Domestic Violence

Defendant contends the trial court erred in allowing evidence that K.W. sustained injuries on August 13, 2004. Defendant argues the evidence was irrelevant and prejudicial because there was no evidence linking the prior injuries to defendant.

A. Procedural Background

The prosecution filed a motion in limine seeking admission of evidence of defendant’s prior acts of domestic violence under Evidence Code section 1109. For purposes of proving the charge of domestic violence on January 12, 2005, the prosecution requested the court to permit it to introduce evidence of a prior domestic violence involving defendant and K.W., including the incident on August 13, 2004.

During the hearing on the motion, the prosecutor indicated such evidence would include K.W.’s testimony and her prior statements. Defendant objected to the evidence under Evidence Code section 352. Defense counsel was concerned K.W.’s testimony would include highly prejudicial statements concerning prior incidents. The trial court indicated that under section 1109, evidence of prior domestic violence was admissible and the court would address the extent to which K.W. could testify concerning the details of such incidents when she testified.

Prior to trial, the People requested dismissal of count 1 because, at the preliminary hearing, K.W. invoked her Fifth Amendment right not to testify and refused to testify concerning the events on August 13, 2004. Apparently, she had provided conflicting and false information to the police concerning the August 13, 2004, incident. As a consequence, the trial court, in accordance with the People’s request, dismissed count 1, along with the out-on-bail enhancements (§ 12022.1) attached to counts 2 and 3.

Later, the prosecution inquired as to whether it could use evidence of the August 13th domestic violence incident under Evidence Code section 1109 as evidence of a prior, uncharged act of domestic violence. Defendant objected to the evidence on the ground it was unreliable since count 1 had been dismissed because K.W. may have filed a false police report concerning the incident. Defendant further objected on relevance grounds because there was no evidence establishing who caused the injuries. In addition, defendant requested that, in the event the evidence was permitted, defendant be allowed to introduce evidence that K.W. admitted filing a false police report concerning the August 13th incident and evidence K.W. stated defendant was not involved in the August 13th incident.

The trial court concluded the evidence of the August 13th incident was admissible under Evidence Code sections 1109 and 352, but only as to Officer Douglas’s observations of K.W.’s injuries and as to his photos of K.W. The court further ruled K.W.’s statements that defendant did not commit the August 13 abuse were inadmissible as not being sufficiently trustworthy.

As a consequence, Officer Douglas testified regarding K.W.’s injuries on August 13th, and evidence that K.W. had stated defendant was not involved in the August 13th incident was excluded.

During the trial, Officer Douglas testified that on August 14, 2004, he was dispatched in response to a call made the day before, involving K.W. He did not meet K.W. at her home. He contacted her on a sidewalk adjacent to a parking lot. Officer Douglas noticed K.W. had a bruised and swollen left eye, a raised bump in the middle of her forehead, and a bite mark on her right hand. At trial, Officer Douglas acknowledged that on August 14th, he had taken photographs of K.W.’s injuries. The photographs were shown to the jury.

During closing argument, the prosecutor suggested that the jury could infer from K.W.’s August 13th injuries that defendant also inflicted K.W.’s subsequent January 12th injuries. The prosecutor showed the jury during closing argument the photos of K.W.’s injuries sustained in January 2005, noting she had a large bump on her forehead, a bruise and welt on her left eye, a bleeding, cut lip, and a bite wound on her back. The prosecutor then referred to Officer Douglas’s testimony concerning K.W.’s injuries in August 2004. The prosecutor noted that Officer Douglas met with K.W. at a business establishment, and then the prosecutor interjected that the jury “Couldn’t hear anything else because of the restriction about what she may have said, but what we have is we have hard photos of the injuries she suffered that day. Whatever inference you have regarding those photos is yours -- is your prerogative, but I say to you look at the similarity.”

The prosecutor added: “Josiah Douglas testified that she had a knot to the head, bruising left eye, and a bite wound. There’s the bruising to the left eye and a knot to the head. Again, there’s another picture of it. He’s a biter. He bites. There is a bite wound to the hand. It is not a coincidence, ladies and gentlemen. It is not a coincidence. [Y]ou heard testimony from Karen [J.] that she heard the victim crying, asking the defendant why he’s abusing her.”

B. Analysis

The prosecutor in this closing argument compares K.W.’s injuries in August and January to show that on more than one occasion defendant physically abused K.W. But there was no evidence that defendant inflicted the August injuries or that defendant was even present when K.W. was injured on August 13, 2004. Officer Douglas’s testimony thus was not only improper but also potentially prejudicial.

The critical question is thus whether it was reasonably probable that, had Officer Douglas not testified, the trial outcome would have been more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)

We recognize that Officer Douglas’s testimony and the prosecutor’s closing argument relating to that testimony was potentially prejudicial because it suggested defendant injured K.W. in August and in January. Nevertheless, there is such overwhelming evidence that defendant committed the charged offenses that we cannot say that the error in admitting Officer Douglas’s testimony amounts to reversible error.

Evidence of defendant’s guilt, included Karen J.’s testimony she heard defendant yelling at K.W. and beating her; she heard K.W. ask why defendant kept beating her; she saw K.W. naked with recently inflicted injuries; and defendant tried to prevent Karen J. from leaving K.W.’s house to report the abuse. In addition, Officer Necochea testified he heard defendant yelling at K.W. and K.W. crying; afterwards he saw K.W.’s recent injuries, a torn bra, and a fresh pool of blood on the floor of K.W.’s house; and K.W. and Karen J. told him defendant had beaten K.W. The jury also heard Karen J.’s recorded 911 call in which Karen J. told the dispatcher defendant was beating K.W., defendant had frequently beaten her in the past, and K.W.’s face was all bruised from defendant beating her. Karen J. also told the dispatcher defendant had grabbed Karen J. to keep her from leaving to call for help.

In view of this evidence, it is not reasonably probable the jury would have reached a result more favorable to defendant had Officer Douglas not testified.

3. Admissibility of 911 Call

Defendant asserts that the trial court erred in admitting into evidence portions of Karen J.’s third 911 call on January 12th. Before trial, the prosecutor requested the court to allow the 911 tape to be played for the jury on the grounds it would corroborate Karen J.’s testimony and was relevant to her credibility. The trial court tentatively agreed to allow it subject to reviewing the transcript. Defense counsel said he needed to see the transcript as well.

The following day, the court heard argument on admission of the tape. The prosecutor acknowledged that some of the dispatcher’s commentary might raise Evidence Code section 352 issues but argued the commentary was not overly prejudicial when weighed against the probative value of the portion of the tape the prosecution was seeking to admit. The prosecutor played for the court the portion of the tape in question. Defense counsel requested the court to cut off the portion of the tape played for the jury prior to the dispatcher’s comment, “What is that? Is she sick or something?”

The prosecutor responded he wanted the tape to extend a little beyond that comment so that it would include Karen J.’s statements that K.W.’s face was all bruised from defendant beating her and that defendant had grabbed Karen J. in an attempt to prevent her from leaving the house. Defense counsel objected, arguing that this additional portion was repetitive of what was already stated in the preceding portion of the tape and contained prejudicial comments by the dispatcher that should be excluded.

The trial court ruled under Evidence Code section 352 that it would allow the extended portion of the tape, as requested by the prosecution. As a consequence, the prosecutor played the court-approved portion of the 911 tape during Karen J.’s trial testimony and again for the jury during closing argument. The jury was also provided with a two and a half page transcript of that portion of the tape.

“Under Evidence Code 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. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Thus, we review the trial court’s decision for an abuse of discretion. (Ibid.)

Defendant claims the trial court abused its discretion in allowing the following portion of the 911 tape:

“Dispatch: What is that, is he sick or something?

“[Karen J.]: I don’t know what’s wrong with him he needs to be somewhere. He don’t need to be on the streets. All is he is abusive, a drug dealer and a user. That’s all he does.

“Dispatch: Oh, jeez Karen.”

These statements were made right after Karen J. told the dispatcher that defendant was beating K.W., and when Karen J. tried to leave K.W.’s house to call for help, defendant grabbed her in an attempt to prevent her from leaving. The prosecution objected to the court cutting off the tape before the objectionable portion because the prosecution wanted the court to play the statements following the objectionable part in which Karen J. states K.W.’s “face is all bruised up, beat up from him,” and that defendant “grabbed a hold of me trying to keep me from going outside of the house.”

While the portion of the tape to which defendant objects should have been redacted because it consisted of irrelevant opinion and was prejudicial, allowing the jury to hear it does not constitute reversible error. The objectionable portion of the tape was brief, relatively innocuous in the context of the conversation as a whole, and related primarily to defendant’s drug involvement. The drug-related statements apparently did not inflame the jury since there was other evidence concerning defendant’s involvement in drugs and the jury nevertheless found defendant not guilty of the drug-related offense. We cannot say that it is reasonably probable the trial outcome would have been more favorable had the portion of the tape in question been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

4. Instructional Error

Defendant asserts the trial court erred in giving instructions on flight (CALJIC No. 2.52) and on prior domestic violence (CALJIC No.2.50.02).

In addition to having a duty to instruct on all relevant principles of law, the trial court has a correlative duty to refrain from instructing on principles of law that either have no relevance to the issues raised by the evidence or may confuse the jury in its deliberation of the relevant issues in the case. (See People v. Armstead (2002) 102 Cal.App.4th 784, 792.)

A. Flight Instruction

Defendant argues the trial court erred in giving, over defendant’s objection, the flight instruction, CALJIC No. 2.52, which states the following: “The flight of a person after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”

Defendant argues there was insufficient evidence of flight to support the instruction in connection with count 2 (domestic violence on January 12th). Although defendant left K.W.’s house after the charged offenses, defendant claims this was not a sufficient basis for the instruction. Evidence was required that defendant left due to circumstances suggesting a consciousness of guilt, and there was no such evidence since defendant did not live in K.W.’s home and Karen J. merely testified he was not there when she returned after making the third 911 call.

As defendant notes, “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citations.] ‘”[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ [Citation, original italics.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055; see also § 1127c and People v. Smithey (1999) 20 Cal.4th 936, 982.)

Here, there was evidence defendant left the crime scene under circumstances suggesting he did so due to a consciousness of guilt. Officer Necochea testified that upon reporting to K.W.’s home, he heard a man yelling, a woman crying, and some “wrestling.” After he rang the doorbell twice, there was no response and the argument continued. When Officer Necochea knocked loudly, the argument stopped and someone turned the volume up on the TV. Officer Necochea heard the side door open, and when he ran to the side door, he noticed it was ajar. Upon securing the premises, it was apparent defendant had fled. Officer Necochea then made contact with Karen J. and K.W. who both stated that defendant had just beaten K.W.

This evidence is sufficient to show that, when defendant became aware of Officer Necochea’s presence while defendant was in the midst of abusing K.W., defendant fled through the back door so as to avoid contact with Officer Necochea. Such evidence shows consciousness of guilt and thus supports the flight instruction.

B. Instruction on Prior Domestic Violence

Defendant argues that, because there was no evidence of any prior domestic violence, the trial court erred in giving CALJIC No. 2.50.02.

CALJIC No. 2.50.02 defines the terms “domestic violence” and “abuse.” It also explains that if the jury finds defendant committed prior domestic violence, it may infer that defendant had a disposition to commit another crime of domestic violence; but this alone is not sufficient to prove defendant committed the charged domestic violence offense.

The People argue defendant waived his objection to the court giving CALJIC No. 2.50.02 because he did not raise it in the trial court. Defendant responds that, if there was waiver, it constituted ineffective assistance of counsel.

Regardless of whether defendant waived his objection to the instruction, there was no prejudicial error. We agree, as discussed above, that there was insufficient evidence defendant committed domestic violence on August 13, 2004, and therefore CALJIC No. 2.50.02 should not have been given. Officer Douglas testified to observing and photographing K.W.’s injuries sustained on August 13, 2004, but there was no evidence as to who inflicted the injuries or under what circumstances.

Nevertheless, the instruction was harmless. The instruction allowed the jury to infer that defendant committed the charged offense if the jury found there was evidence defendant committed prior domestic violence but there was no evidence defendant committed prior domestic violence. There was no evidence defendant caused K.W.’s injuries on August 13th. Therefore the instruction should not have been given.

Even if the jury assumed defendant had committed a prior act of domestic violence, the instruction states that this alone is not sufficient to support a conviction for the charged offense. Since there was overwhelming evidence defendant committed the charged offense of domestic violence on January 12th, it is not reasonably probable defendant would have obtained a more favorable outcome had the trial court not given CALJIC No. 2.50.02.

For these same reasons we reject defendant’s alternative ineffective assistance of counsel argument, in which defendant claims his trial counsel provided ineffective assistance in failing to object to CALJIC No. 2.50.02. To establish constitutionally ineffective representation, defendant must show not only counsel’s deficient performance, but also prejudice -- i.e., a reasonable probability that a more favorable outcome would have resulted absent counsel’s failings. (People v. Lucero (2000) 23 Cal.4th 692, 728.) Without a showing of prejudice, we may reject defendant’s claim of ineffective assistance without determining the adequacy of counsel’s performance. (People v. Brodit (1998) 61 Cal.App.4th 1312, 1332.)

Here, any failure to object to CALJIC No. 2.50.02 was harmless error. It is not reasonably probable the result would have been more favorable had the instruction not been given.

Cumulative Error

Defendant argues that even if the errors raised in this appeal do not constitute prejudicial error individually, in aggregate they compel reversal. We disagree. There was such strong evidence that defendant committed the charged offenses that it is not reasonably probable defendant would have received a more favorable result had the court not erred in admitting Officer Douglas’s testimony, allowing the objectionable portion of the 911 taped conversation, and giving CALJIC No. 2.50.02 on prior acts of domestic violence. The cumulative impact of these errors does not require reversal. (People v. Hill (1998) 17 Cal.4th 800, 844-845.)

5. Jury and Judicial Misconduct

Defendant asserts reversal is required due to juror and judicial misconduct occurring at the beginning of deliberations. While the bailiff was taking exhibits into the deliberation room and explaining about filling out the form for submitting questions to the court, the jury foreperson asked the courtroom bailiff if the jury could consider outside experience on domestic violence. The bailiff responded that the jury was not supposed to bring in outside experience. Another juror then told the bailiff that as the jury was getting ready to deliberate he had told the other jurors an unrelated domestic violence “story.” The juror added he was not trying to sway the other jurors. He was just telling them a story. The bailiff informed the judge of this discussion with the jurors.

The court responded that jurors’ questions should be in writing and submitted to the court, as opposed to the bailiff answering their questions. The court acknowledged that the jurors could rely on their life experiences in deliberations. The court indicated there did not appear to be anything else that could be done concerning the matter and requested to hear from counsel. Neither attorney asserted there had been any error or misconduct nor requested the court to conduct further inquiry into the matter or admonish the jury not to consider the unrelated domestic violence story.

Defendant contends that the juror’s communication of extrinsic facts constituted juror misconduct and the trial court erred in failing to conduct a sufficient inquiry into the possible jury misconduct. The trial court is required to conduct a sufficient inquiry to determine facts alleged as juror misconduct “whenever the court is put on notice that good cause to discharge a juror may exist.” (People v. Burgener (1986) 41 Cal.3d 505, 519; see also People v. Davis (1995) 10 Cal.4th 463, 547.)

The People argue defendant waived his juror and judicial misconduct objections by not raising them in the trial court. We agree. (People v. Jenkins (2000) 22 Cal.4th 900, 1047; People v. Wisely (1990) 224 Cal.App.3d 939, 947-948 [claim of jury misconduct may be waived for failure to object below].) A contemporaneous objection at the time would have given the court an opportunity to cure any potential problem by conducting further inquiry into the matter or admonishing the jury not to consider the unrelated domestic violence story. (Wisely, supra, at pp. 947-948.)

Furthermore, we reject defendant’s misconduct challenges on the merits. In determining whether there was prejudicial error, we recognize that, “‘[a]s a general rule, juror misconduct “raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” [Citations.]’” (People v. Cochran (1998) 62 Cal.App.4th 826, 830.) Reversal is therefore required in a criminal case “‘whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ [citation.] ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’ [Citations.]” (Cochran, supra, at pp. 830 -831.)

The record in the instant case shows that the trial court did not abuse its discretion in not inquiring further concerning the juror’s incidental domestic violence story. Upon inquiring concerning the matter, the court reasonably concluded there was insufficient cause to take any further action in the matter, such as conducting a further inquiry into whether the jury had engaged in misconduct, admonishing the jury, or dismissing the juror who told the story. (People v. Davis, supra, 10 Cal.4th at p. 547.) There was no indication of bias on the part of the juror who told the unrelated domestic violence “story” or that he intended to persuade the jury by the story. In addition, neither party’s counsel requested further inquiry concerning the matter.

Here, the record supports the trial court’s conclusion that the juror’s story was insignificant, was not likely to have had any impact on the jury, and therefore did not require any further investigation. Apparently, trial counsel likewise were not concerned about the incident. Accordingly, the trial court did not abuse its discretion in not conducting a jury inquiry concerning the matter.

Even if there was juror or judicial misconduct, it was harmless error. The full record does not show a reasonable probability that defendant’s case was actually harmed by the claimed juror/judicial misconduct. In view of the People’s overwhelming evidence of defendant’s guilt, it is highly improbable that defendant’s case was actually harmed, even considering this asserted error in conjunction with defendant’s other errors asserted on appeal. (See People v. Ryner (1985) 164 Cal.App.3d 1075, 1082-1083; see People v. Cochran, supra, 62 Cal.App.4th at p. 831 [court may consider strength of prosecution’s case to determine prejudice].)

Since we reject defendant’s juror and judicial misconduct contentions on the merits and also conclude that, even if there was misconduct, it does not amount to prejudicial error, defendant’s alternative ineffective assistance of counsel argument is rejected as well.

6. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] After dismissing count 1, the trial court renumbered the remaining counts but for purposes of this appeal, we refer to the counts as originally numbered.

^[3] For the purpose of maintaining the victim’s anonymity, we identify the victim by her initials rather than using her name.