P. v. Vasquez

Filed 10/12/07 P. v. Vasquez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant was convicted by jury of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), stalking while a restraining order was in effect (Pen. Code, 646.9, subd. (a)), two counts of vandalism (Pen. Code, 594, subd. (a)), four counts of making criminal threats (Pen. Code, 422), explosion of a destructive device with intent to injure or intimidate (Pen. Code, 12303.3), and arson (Pen. Code, 451, subd. (d)). The trial court found true allegations defendant had a prior serious felony (Pen. Code, 667, subds. (b)-(i); 1170.12), and a prior prison term (Pen. Code, 667.5, subd. (b)). Sentenced to 28 years 4 months in prison, defendant appeals. He contends it was error to admit evidence of his prior assaults because they were not proper domestic violence evidence under Evidence Code section 1109. He further contends trial counsel was ineffective in failing to object to such evidence. We find the evidence was properly admitted and affirm.

FACTS

A.G. had a boyfriend-and-girlfriend relationship with defendant beginning in September 2004. She claimed she ended it in January 2005 because defendant was controlling. Other witnesses testified she continued to be with defendant that spring.^[1]

Defendant could not accept the breakup of the relationship and continued to follow A.G., leave threatening phone messages, and engage in several acts of violence. On March 30, 2005, A.G. ran into defendant at Longs Drugstore. He wanted to talk to her and waited outside. She ran away from him and he followed her in his car. She had to jump into the bushes to avoid being hit. A.G. ran to the office of the apartment manager. Defendant followed; he was angry and yelling and had to be restrained. Defendant was so angry he broke the sunroof on his car.

A.G. moved in with her son. Defendant continued to call and would wait in front for her. Concerned for the safety of her sons family, A.G. moved again. She moved in with a friend, Jack Lowas.

On September 28, there was an incident where defendant came over and threw a sewer grate at the fence. A.G.s father called the police and let them listen to the threatening messages defendant had left on his phone.

Another time defendant followed A.G. while she was driving Jacks truck. At a stop light, defendant got out, broke the window on Jacks truck and told A.G. that Jacks blood was on her hands. When she got home, Jack was injured and on the ground. He was bedridden for three weeks.

In early October, defendant went to Jacks home and called A.G. out. He told her he would kill her if she did not leave with him. She kicked him in the groin and got away. Defendant then broke seven windows in the house. A.G. went to the police that evening and played some of the threatening messages from defendant.

On October 13, A.G. was at Jacks home with some other women. Defendant called, angry. Another woman took the phone and argued with defendant. Defendant came over and continued to argue with that woman, saying he would blow up the house. They then saw fire on the side of the house and defendant sped off. When the police arrived, there was the smell of gas in the air and burnt grass. The police found remnants of a Molotov cocktail at the scene and a gas can in defendants car.

The prosecution also offered evidence of defendants prior acts of domestic violence. R.M. testified she lived with defendant from May until August 1996, when she moved back home. When she returned to pick up her clothes, defendant choked her. He came over to her parents home, claiming they had dinner plans. R.M. went outside to talk to defendant; she told him she did not love him anymore. Defendant said she was wrong. He told her not to call anyone in the house because he had a gun. The next thing she knew, she was by the flower bed. Defendant had hit her, leaving a scar from her elbow to her wrist. Her father, E.S., came out and defendant hit him. E.S. lost consciousness and later had surgery for his eye socket and jaw. The parties stipulated that defendant was convicted of the offenses against R.M. and her father.

DISCUSSION

Assault on E.S.

Defendant contends the trial court erred in admitting the evidence of his assault upon E.S.. He contends this evidence was not admissible under Evidence Code section 1109 because it was not domestic violence, he did not have a sufficient relationship with E.S.

Under Evidence Code section 1109, in a criminal action involving domestic violence, evidence of defendants commission of other domestic violence may be admitted if the evidence is not inadmissible under Evidence Code section 352. (Evid. Code, 1109, subd. (a).) The term domestic violence is defined in Penal Code section 13700. (Evid. Code, 1109, subd. (d)(3).)

Domestic violence means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or a person with whom the suspect has had a child or is having or has had a dating or engagement relationship. (Pen. Code, 13700, subd. (b).) Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (Pen. Code, 13700, subd. (a).)

Defendants assault upon Renee R.M. and her father qualifies as domestic violence. Defendant had cohabitated with R.M., so any abuse against her was domestic violence. (Pen. Code, 13700, subd. (b).) The assault on her father was abuse because it placed R.M. in reasonable apprehension of imminent serious bodily injury to herself and another, her father. (Pen. Code, 13700, subd. (a).) Defendants assault on Edward E.S. was part of the domestic violence he committed against R.M. (Cf. People v. Truong (2001) 90 Cal.App.4th 887 [stabbing estranged wifes boyfriend was domestic violence under Pen. Code, 12022.7].)

The trial court did not err in admitting the evidence of defendants assaults upon R.M. and E.S. under Evidence Code section 1109.

Ineffective Assistance of Counsel

Defendant contends his trial counsel was ineffective in failing to object to the evidence of his assault on E.S. He further contends counsel was ineffective in failing to object to A.G.s testimony that suggested defendant had assaulted Jack Lowas.^[2] These contentions are meritless.

A defendant claiming ineffective assistance of counsel must first establish that counsels representation fell below an objective standard of reasonableness. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].)

As explained above, evidence of the assault on E.S. was proper evidence of prior domestic violence. Defense counsel did object on the basis of Evidence Code section 352, but that objection was overruled. Counsel is not ineffective for failure to raise a meritless objection. (People v. Adams (1990) 216 Cal.App.3d 1431, 1437; People v. Constancio (1974) 42 Cal.App.3d 533, 546.)

A.G.s testimony that defendant told her that Jacks blood was on her hands and that Jack was injured was also properly admitted. It was an act of domestic violence as it placed A.G. in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (Pen. Code, 13700, subd. (a).) It was also probative to show defendant tried to control and intimidate A.G. through acts of violence and that his threats reasonably caused her to fear for her safety, an element of the charges of making criminal threats. (Pen. Code, 422.) Counsel was not ineffective for failing to raise a meritless objection. (People v. Adams, supra, 216 Cal.App.3d at p. 1437; People v. Constancio, supra, 42 Cal.App.3d at p. 546.)

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

DAVIS , Acting P.J.

HULL, J.

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^[1] The jury acquitted defendant of stalking between January and March 2005, battery in March on someone with whom defendant had had a dating relationship, and attempted kidnapping in October.

^[2] The prosecutor wanted to introduce testimony from a neighbor that defendant stabbed Lowas. The defense objected under Evidence Code section 352. The trial court sustained the objection, finding that although the evidence was probative, it was also highly prejudicial and time consuming.