P. v. Bernabel

Filed 9/12/07 P. v. Bernabel CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. John T. Doyle, Judge. Affirmed.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Kenneth J. Kao, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Defendant appeals his conviction of two counts of battery in violation of Penal Code section 242. He contends the dismissal of two male jurors violated his right to a representative jury, and that admission of evidence of a prior injury to the victim was improper under Evidence Code section 1109. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant was charged in an information with two counts of corporal injury to a cohabitant. (Penal Code,  273.5, subd. (a).)[1] The testimony at trial disclosed that defendant and his victim had different versions of events.

Prosecution Case.

The victim, Sandra Gramajo, testified that at the beginning of spring semester the prior year, she met defendant through a mutual friend. Gramajo needed a place to stay and moved in with defendant. Initially, they lived as roommates but then became girlfriend and boyfriend. She had known him three to four months when she moved in with him. They lived with defendants aunt and then moved to a house, where they lived for three months.

Gramajo worked as a dancer at a club that closed at 2:00 a.m. About 2:05 a.m. in the morning on May 12, 2006, she called defendant to pick her up from work. She called him numerous times, and finally reached him at 2:16 a.m. Defendant told her he would be there in 10 minutes, but he did not arrive until 3:15 a.m. Everyone had left her work, and Gramajo was alone. She was angry and asked him where he had been, and he told her to shut the fuck up, got angry and hit her in the face. Gramajo started crying and defendant drove them home. After they went inside, she realized she had inadvertently left her book bag in the car and asked defendant for the keys. She asked him several times. Defendant picked her up and threw her on the bed, straddled her, and began hitting her. She ran into the living room and after several minutes took the car keys and got her things out of the car. Defendant fell asleep in the bedroom. Gramajo believed he had been drinking. She denied that she had been drinking the night of the attack. She slept on the living room floor because she did not want to go near defendant.

Later, after she woke up, she saw that her face was bloodied and bruised on the left side near her eye and nose. She decided to leave and packed her belongings in her car. Defendant woke up and came out and got her, took her inside, and threw her on the bed. Defendant started screaming and asked for her cell phone. Defendant threw it in the toilet.

Gramajo went to the police. The police took pictures of the bruises on her face and chest. She told them the bruises on her chest were from a different occasion when she and defendant were arguing and he pushed her into the refrigerator with an open hand.

Gramajo had twice before attempted to obtain a restraining order against defendant, but one of the cases was dismissed when she failed to appear at the hearing. She did not attend the second hearing because she was told she did not need to because she already had a three-year restraining order. The court took judicial notice that the second case was also dismissed due to Gramajos failure to appear.

Gramajo denied taking defendants TV with her when she left his apartment. She does not have any utility bills or other invoices showing that she lived at defendants address. She took pictures of Gramajos face where she had visible injuries to both eyes and a cut, as well as pictures of her leg where there was bruising. One of the photographs showed bruising on Gramajos breast area that Gramajo told police was from a prior incident. The bruises did not appear to be fresh.

Defense Case.

Gramajo identified defendants aunt, Elba Ruiz, from whom they had rented an apartment, at trial, although she had never met defendants aunt because his aunt spent most of her time in Texas. Gramajo spoke to her once on the phone.

Defendants aunt testified she owned the property that defendant rented in August 2005. There was no one else on the rental agreement, and Ruiz never spoke to Gramajo. Ruiz returned from Texas in June 2006. Sometime in February 2006, defendant moved out of the apartment because she was selling the property.

Maria Jimenez testified that she worked with defendant at Deardens Furniture in Huntington Park. She could not recall the exact date, but sometime before June 2006 defendant came into work with scratches on his face.

Rogelio Ramos was defendants current landlord. Defendant moved into his apartment in February 2006, and moved out in May 2006. Defendant was the only party on the rental agreement. Ramos occasionally saw defendant with girls, and recognized Gramajo and believed she was defendants girlfriend. She was in defendants apartment one time when Ramos went in to fix the shower.

Defendant testified that in May 2006, he and Gramajo were dating and had a sexual relationship. He had met her at a club in 2005. Defendant did not live with Gramajo, although on occasion she would visit him. Sometimes she spent the night, but she did not have any furniture in defendants apartment, nor did she keep any clothes there. She did not receive any mail at his apartment, and they did not have any children together.

He picked Gramajo up from work twice. Gramajo had her own car that she drove to defendants apartment. Gramajo called four times on May 12, 2006; defendant did not pick up until the last call because he was asleep. When he got to the club where she worked, Gramajo was angry and yelling at him, asking him where the hell were you? As they drove back to his apartment, Gramajo was not wearing her seat belt. He told her to put it on, but she continued yelling at him and asking why it took him so long to get there to pick her up. Gramajo jumped on him and scratched his face. Gramajo grabbed the steering wheel and turned it. Defendant lost control of the car, and hit some newspaper vending machines on the sidewalk. Gramajo hit her face on the dashboard. When they got back to defendants apartment, Gramajo had trouble getting out of the car, but defendant did not help her. They both went inside his apartment. Gramajo was still angry. Defendant did not see any blood on her face. Gramajo went to sleep in the bedroom, and defendant slept in the living room because Gramajo smelled like alcohol. She did not ask for his car keys.

When he woke up the next morning, he went outside and saw that his car was open, with his papers scattered all over. He went inside, and asked Gramajo to leave. She looked at him in a threatening manner, and said, You [are] going to see whats going to happen. He saw that she had a cut above her eyebrow. The next day, he noticed his television was missing.

Later, he was served with a restraining order at his job. After the accident, there was blood on the inside of his car, but he took it to the car wash. He did not throw her cell phone into the toilet, but the next day found his phone lying next to the toilet with water all over it.

Defendant denied hitting Gramajo, either on May 12, 2006, or on any prior occasion.

Rebuttal.

Detective Louis Paglialonga testified that he spoke to defendant on May 31, 2006, concerning the alleged attack on Gramajo. Detective Paglialonga did not see any scratches on defendants face, and defendant did not tell him that defendant had photographs showing scratches on his face. Defendant stated that he had recently been involved in an accident and had to step on his brakes very hard, but that he did not hit anything. When he stopped, Gramajo hit her head on the dashboard.

Francisco Rangel worked as the maintenance man at the club where Gramajo worked. He would lock up the club when it closed, and on occasion, would wait with Gramajo for her ride. Rangel saw defendant pick up Gramajo almost every day. He never observed Gramajo to be intoxicated, and Rangel knew that employees of the club were not allowed to drink.

Surrebuttal.

Defendant, who is from the Dominican Republic, has been in the United States two years, and speaks primarily Spanish. He speaks a little English and understands some English. When he spoke to Detective Paglialonga, he did not understand all of the detectives questions. Defendant forgot to tell the detective that he hit something with his car when he was arguing with Gramajo. He told the detective that Gramajo had scratched his face.

Junior Martinez, defendants cousin, testified that in May 2006 defendant had a lot of scratches on his face.

The jury convicted defendant on both counts of the lesser included offense of battery against a partner/spouse ( 243, subd. (e)). The trial court reduced the convictions to simple battery ( 242) based upon defendants argument of instructional error, denied defendants motion for a new trial, suspended sentence, and imposed summary probation.

DISCUSSION

I. WHEELER ISSUE.

Defendant contends that the trial court erred in denying his Wheeler[2]motion based upon the prosecutions peremptory challenge of two male jurors.

A. Factual Background.

During voir dire, defendant made a Wheeler motion based on his belief that the prosecution was engaged in a pattern of dismissing men from the jury. Defendant argued that in a domestic violence case, dismissal based on gender was a form of discrimination. The prosecution stated that the two men dismissed were students, stating I dont like to keep students. They dont have enough invested in the community. I dont find them to usually have enough work experience behind them.[3] The trial court denied defendants Wheeler motion.

B. No Wheeler Error.

In People v. Wheeler (1978) 22 Cal.3d 258, our Supreme Court held that peremptory challenges could not be used to remove prospective jurors solely on the basis of presumed group bias. We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (People v. Johnson (1989) 47 Cal.3d 1194, 1215.) On the other hand, specific bias is a bias relating to the particular case on trial or the parties or witnesses thereto. Challenges are permissible if based upon specific bias. (Ibid.)

Under Wheeler, if a party believes the opponent is using peremptory challenges for a discriminatory purpose, he or she must raise a timely challenge and present a prima facie case of improper group bias. (People v. Johnson, supra, 47 Cal.3d at p. 1216.) To establish a prima facie case, the defendant must (1) make as complete a record of the circumstances as is feasible; (2) establish the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule; and (3) from all of the circumstances of the case demonstrate a strong likelihood that such persons are being challenged based upon their group association. (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154.)

Once defendant has established the prima facie case, the burden shifts to the prosecution to show a neutral explanation related to the particular case to be tried. To carry this burden, the prosecutor need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. [Citations.] (People v. Arias (1996) 13 Cal.4th 92, 136.) Thus, justification for a challenge may be properly found in bare looks and gestures that may alienate a party, and a challenge based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Turner (1994) 8 Cal.4th 137, 165, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) We presume the prosecution used the peremptory challenges properly and give deference to the trial courts ruling on defendants Wheeler motion. (People v. Turner (2001) 90 Cal.App.4th 413, 417.)

We review the entire record of voir dire to see if the record suggests any grounds upon which the prosecution might reasonably have challenged the excluded jurors. If so, we affirm. (People v. Turner, 8 Cal.4th at p. 165.)

Here, the prosecution justified its removal of male jurors on the grounds they did not have enough invested in the community because they were students. Defendant argues this ground is insufficient to establish group-neutral reasons for dismissing the jurors because it is too vague to be meaningful. He contends that nothing suggests that college students would not take their job as jurors seriously; to the contrary, their education would provide them with more understanding and appreciation of their civic duties.

Defendant failed to provide a record that allows us to determine whether the jury was ultimately composed of persons not representative of the community. Assuming that the record was sufficient, however, we find no error.

As defendant acknowledges, limited life experience is a valid, group-neutral explanation. (People v. Perez (1994) 29 Cal.App.4th 1313, 1328; People v. Sims (1993) 5 Cal.4th 405, 429-431.) Defendant argues, however, that the explanation the prosecution proffered -- that college students did not have enough invested in the community -- differs from this legitimate ground for challenge, and in fact college students have much to offer a jury in terms of their education and appreciation of their civic duties.

We conclude the prosecutions explanation withstands scrutiny as being group-neutral in this instance. Whether or not college students would in fact make better jurors as defendant contends is not the focus of our inquiry, but whether the prosecutions reasons reflect group bias. Here, they did not. The prosecution expressed its prior experience with jurors that college students did not possess the work experience and investment in the community necessary to make them good jurors. First, this explanation is very similar, if not identical (lack of work experience versus life experience) to the explanations upheld in Sims and Perez. Second, it is a neutral explanation that does not evidence any group bias or pretext. The explanation could apply equally to an individual in any suspect group and relates to individual characteristics; here it was based on the circumstances of the jurors in question. Finally, the explanation reflects the prosecutions prior experience, and as such is grounded on even more than the permissible hunch. (People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6 [[J]urors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias.].)

II. PRIOR BAD ACT EVIDENCE.

Defendant contends the trial court erred in failing to exclude photographic evidence of a prior act of domestic violence against the victim under section 1109 as a remedy for the prosecutions late disclosure of the evidence, and that the jury instruction the trial court gave was an ineffective remedy for the prosecutions late disclosure. He contends the evidence prejudiced him because it likely caused the jury to reject his defenses that Gramajo was the aggressor and that she initiated the prosecution to retaliate against him for throwing her out of his apartment. We disagree.

A. Factual Background.

Prior to trial, the prosecution sought to introduce evidence of a prior uncharged act of domestic violence pursuant to Evidence Code section 1109. Defendant objected to the evidence, which was a photograph of a bruise on Gramajos breast received approximately a week before the charged offenses when he allegedly pushed her into a refrigerator, on the grounds he had not received adequate notice of its intended use. (Evid. Code,  1109, subd. (a).) Defendant objected that he had not been given 30 days notice of the prosecutions intent to use evidence under Evidence Code section 1109 and Penal Code section 1054.7.

The prosecution argued that the bruise evidence was brought up at the preliminary hearing and that the magistrate considered it irrelevant. At the time, the prosecution admitted it was aware there was a third separate incident that would not be charged, but that the incident could form the basis for Evidence Code section 1109 evidence. In any event, the prosecution considered the fact that the evidence was discussed at the preliminary hearing sufficient notice to defendant that it might be used under Evidence Code section 1109, and not believe any formal notice, oral or written, was necessary. The trial court pointed out that it was one thing to be on notice an act occurred, and another to be on notice that the evidence would be used under Evidence Code section 1109.

After taking the matter under submission, the court heard argument on the issue. On the issue of notice, the prosecution argued that at the preliminary hearing during the prosecutions direct examination of the victim she stated that she received the bruises about one week before the incidents forming the basis of the two charged offenses. Further, the prosecution contended the turning over of paperwork containing arrest reports and crime reports mentioning the prior act constituted sufficient notice under Evidence Code section 1109, subdivision (b) and Penal Code section 1054.7. The prosecution admitted that it knew all along it intended to offer the evidence under Evidence Code section 1109.

Defendant requested the court to exclude the evidence if it found improper notice. The trial court concluded that the prosecutions failure to disclose its intended use of the evidence was willful, but that it was not sufficiently blatant and egregious to warrant the sanction of exclusion. The trial court agreed to permit defense counsel to interview the victim to determine whether a continuance was necessary. After the interview, defendant stated that a continuance was not necessary, and withdrew his request. The court left the issue of sanctions open pending a later request from defendant, and stated that it would consider instructing the jury on the issue.

During Officer Floress testimony, the prosecution introduced the photograph of the old bruise. The prosecution and defense made argument addressing the proposed sanction for the discovery violation. Defendant argued for exclusion and the prosecution argued the evidence should be admitted with some guidance to the jury on its use. The court instructed the jury with CalCrim No. 852, Evidence of Uncharged Domestic Violence. The instruction provided that the prosecution had failed to give adequate notice of its intended use of the evidence, and that the jurors could consider the consequence, if any, of its late disclosure.

B. Discussion.

Evidence Code Section 1109 sets forth an exception to the rule excluding propensity evidence for prior acts of domestic violence. Subdivision (a)(1) of Evidence Code section 1109 provides in pertinent part: [I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code Section 352]. Evidence Code section 352 gives the trial court discretion to 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.

Evidence Code section 1109 was enacted expressly to address the problem of domestic violence, which by its very nature tends to be continuous and escalating in its severity. (People v. Johnson (2000) 77 Cal.App.4th 410, 419 (Johnson).) Therefore, the Legislature determined that the policy considerations favoring the exclusion of uncharged domestic violence evidence must yield to the policy consideration in domestic violence cases of admitting such evidence. (Id. at p. 420.) As Johnson observed, Evidence Code section 1109 is limited to domestic violence cases; further, Evidence Code section 352 provides a safeguard against undue prejudice. (Ibid.) As the statutory language directs, the evidence is admissible in domestic violence cases, subject to an evaluation under Evidence Code section 352.

In evaluating Evidence Code section 352 prejudice under Evidence Code section 1109, 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, the recent nature of the prior acts, and whether the defendant had been punished for the prior acts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) We review the trial courts evidentiary rulings for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.)

In this case, because defendant withdrew his request for a continuance after interviewing the witness, the trial court gave a jury instruction as a remedy for the discovery violation. Defendant argues this was inadequate because the evidence was so inflammatory it should have been excluded and therefore the trial court erred in failing to exclude the evidence under Evidence Code section 352. We find no abuse of the trial courts discretion in admitting the evidence. The single bruise on Gramajos breast was a less extensive injury than the multiple bruises and lacerations she received to her face in connection with the charged offenses, and therefore less inflammatory. The prior act was very close in temporal proximity to the charged offenses, occurring just one week before. Finally, there was no danger the jury would confuse the two incidents as Gramajo testified in detail to the injuries she received in the charged offenses. (People v. Rucker, supra, 126 Cal.App.4th at p. 1120.)

Even if the trial court had erred, the issue would be whether it was reasonably probable the admission or exclusion of the evidence affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, it would not have. Although this was a case of conflicting stories, Gramajos testimony supporting defendants guilt was strong. On the other hand, defendants version of events contained several weak points, such as his explanation of his failure to preserve the blood evidence in his car; his failure to advise the police he had photographs of his injuries; and his failure to advise them that he hit something with his car. Furthermore, the jury convicted defendant of the lesser included offense, indicating that they decided the case on the facts presented to them, rather than any desire to punish defendant.

DISPOSITION

The judgment of the superior court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. JOHNSON, J.

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[1] All statutory references herein, unless otherwise noted, are to the Penal Code.

[2]People v. Wheeler (1982) 22 Cal.3d 258.

[3] Two other jurors that were part of defendants Wheeler motion made at this time are not at issue on appeal. One had a prior domestic violence arrest, and the other had problems being away from his job to serve on jury duty.