Filed 5/26/17 P. v. Bratcher 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

LOREN SCOTT BRATCHER,

Defendant and Appellant.


C082050

(Super. Ct. No. 15F05820)


A jury found defendant Loren Scott Bratcher guilty of infliction of corporal injury on a person in a dating relationship and violation of a protective order. The trial court denied defendant’s motion to strike his prior strike conviction and found the prior strike allegation true, as well as three prior prison terms. The court sentenced defendant to serve nine years in state prison.
On appeal, defendant contends the trial court erred by (1) admitting evidence of other prior acts of domestic violence, (2) instructing the jury regarding flight pursuant to CALCRIM No. 372, and (3) denying his Romero motion to strike his prior strike conviction. We conclude the trial court did not abuse its discretion in admitting evidence of other prior acts. The trial court did not err in instructing on flight, but even if it did, any error was harmless under any standard. Finally, defendant’s contention that the trial court erred in denying his Romero motion is forfeited because he did not include the hearing transcript or trial court’s ruling in the appellate record. We affirm the judgment.
FACTUAL BACKGROUND
Defendant and K.T. dated for approximately six months, beginning in February 2015. K.T. lived at the Remarcable Board and Care in Sacramento (board and care), along with several roommates.
Current Offense
The prosecution proved its case by the prior statements K.T. and her roommate made to the responding police officers.
K.T. testified that on the morning of September 12, 2015, defendant went to the board and care where K.T. lived. Defendant and K.T. argued because K.T. could not find her purse or the keys to her truck. K.T. asked defendant if he took her purse and key. Defendant said he did not have them. K.T. testified she thought defendant had “slipped the key in his braids, his hair. [¶] . . . [¶] . . . in his dreads.” She searched through his hair to see if the key was hidden in his braids. At trial, K.T. affirmed her prior testimony at the preliminary hearing that her blood-sugar was elevated and she backed up into the corner and fell and hit her head. She lost consciousness for about 10 to 15 minutes. When she regained consciousness, she asked Janice Carpenter, one of her roommates, to call the police and said, “I think Scotty [defendant] has my keys and my purse.” Later, K.T. found her purse and keys, which “suddenly appeared.” K.T. testified she only vaguely remembered the September 12, 2015, incident.
Carpenter testified she heard K.T. and defendant arguing over whether defendant had taken K.T.’s truck keys and money. She walked into K.T.’s room and saw K.T. lying on the floor, unconscious. At trial, Carpenter denied either seeing, or telling the responding police officer, defendant threw K.T. to the ground. Carpenter testified defendant said, “ ‘I think it would be a good idea to call an ambulance to see if she’s okay,’ ” and “[I]t is not what you think. She fell. She passed out. Got angry, passed out and fell backward.” Carpenter testified defendant was “leaving the situation” and “he just wants to leave.” Before defendant left, she asked him where the keys to the truck were and if he had taken any of K.T.’s money. Defendant denied taking K.T.’s keys or her money. When Carpenter asked to search him, defendant said, “I didn’t take it,” and left. Carpenter testified K.T. called 911 and medical personnel arrived in an ambulance.
Sacramento Police Officer Jason Wacker responded to a domestic violence call at the board and care. He spoke with Carpenter, who stated she awoke to the sound of K.T. and defendant arguing over K.T.’s keys. Carpenter stated K.T. told her the last time defendant and K.T. argued, defendant took K.T.’s credit cards and other personal belongings. Carpenter told Wacker she “saw the whole thing,” stating she went to K.T.’s room and saw defendant throw K.T. to the ground. K.T. hit her head on the floor, causing bruising. Defendant said he was going to leave.
Sacramento Police Officer Jason Finnicum also responded to the board and care. K.T., who was “visibly shaken,” told Finnicum defendant forced his way into her home, woke her up, and attempted to take her keys from her. When she refused, defendant slammed her to the ground, knocked her unconscious, and then fled the scene. K.T. also told Finnicum that, when she regained consciousness, defendant was on top of her. Finnicum noted K.T. had visible injuries, including injuries above her left eye and on her left shoulder, bruising to her left arm, and a laceration to her left bicep, as recorded in photographs admitted into evidence at trial. K.T. confirmed she sustained the injuries during the attack by defendant. K.T. also stated her roommate walked in during the assault.
Finnicum observed damage to the gate to K.T.’s apartment complex. K.T. told him the gate was not damaged prior to defendant’s arrival. She also told Finnicum she had a restraining order against defendant, and defendant was not allowed to be at her residence. K.T. told Finnicum her purse and personal items, including cash, bank cards, home and car keys, I.D., wallet, and cell phones, were missing.
Louise Pilawski, another one of K.T.’s roommates, testified she awoke that morning and heard defendant and K.T. yelling at each other. She stayed in her room and did not see any physical altercation, but was later told by Carpenter that K.T. and defendant had been physically fighting.
Prior Incident
K.T. testified regarding an incident that occurred three months prior, on June 27, 2015, when she and defendant had an argument over the keys to her truck. Defendant was driving his friend, Slim, and K.T. around in K.T.’s truck. When they arrived at defendant’s house, defendant refused to give K.T. the keys to the truck.
K.T. testified she was punched by defendant’s friend. She stated, “I thought I was thrown to the ground. I don’t know if I slipped.” She said she did not remember if defendant hit her, adding, “I don’t know who punched me.” Later, she testified, “I don’t think he [defendant] punched me in the face. I remember falling. And I remember the friend hitting me.” The prosecution played an audio recording of the 911 call and provided a transcript of the call to the jury, after which K.T. testified she could not remember what she told police.
K.T. testified she and defendant “were up in each other[‘s] face” and when defendant finally gave her the key to the truck, “his friend just started kind of whaling on me. I remember that.”
Sacramento Police Officer Chai Vang responded to a domestic violence call at the board and care on June 27, 2015. He spoke with K.T., who was upset and looked like she had been crying. K.T. told him defendant was driving her and Slim around in K.T.’s new truck. When they arrived at defendant’s house, they began arguing because defendant refused to give her the keys to her truck. While she stayed outside and Slim remained in the truck, defendant walked into the house and then came back outside, followed by his mother. Defendant approached K.T., punched her once in the mouth, and then threw her to the ground. He stood over her and punched her two or three more times, hitting her in the thigh and causing it to bruise. K.T. got up and ran to the truck. As defendant retrieved his things from the truck, he and K.T. tussled until she was able to get her keys back. K.T. started the engine but, before she could drive off, Slim punched her in the head from the back seat approximately six times until defendant’s mother was able to pull him out of the truck. K.T. sped off and drove home. Vang observed injuries to K.T.’s face and thigh.
Sacramento Police Officer Sang Park also observed K.T.’s injuries that included a laceration and swelling on her lower lip, a cut on the left side of her chin, and a bruise on the inside of her right thigh.
The parties stipulated that, on July 14, 2015, defendant pleaded no contest to, and was convicted of, misdemeanor infliction of corporal injury resulting in a traumatic condition on a person in a dating relationship. (Pen. Code, § 273.5.) The parties further stipulated to the protective order issued against defendant, as well as the 911 calls received by the Sacramento Police Department on June 27, 2015, and September 12, 2015.
PROCEDURAL HISTORY
Defendant was charged by amended information with first degree residential burglary (§ 459 – count one), infliction of corporal injury on a person in a dating relationship (§ 273.5, subd. (a) – count two), violation of a protective order, a misdemeanor (§ 166, subd. (c)(1) – count three), vandalism (§ 594, subd. (a) – count four), and battery with serious bodily injury (§ 243, subd. (d) – count five). The information alleged, with respect to count one, another person other than an accomplice was present in the residence during commission of the burglary in violation of section 667.5, subdivision (c)(21); and, with respect to count two, defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (e), and sustained a prior domestic violence conviction within the meaning of section 273.5, subdivision (f)(1). The information further alleged defendant sustained a prior strike conviction (§§ 667, subds. (a) & (b)-(i), 1170.12) and three prior prison terms (§ 667.5, subd. (b)).
The trial court granted defendant’s motion to bifurcate trial of the prior convictions. Defendant was tried by a jury and found not guilty of counts one and four, and guilty of counts two and three. The jury was unable to reach a verdict on either count five or the great bodily injury allegation as to count two, and the trial court declared a mistrial as to that count and allegation.
In a bifurcated proceeding, the court found true the prior strike and three prior prison term allegations. The court denied defendant’s motion to strike the prior strike and sentenced him to serve an aggregate term of nine years in state prison, comprised of the middle term of four years on count two, doubled for the prior strike, plus one consecutive year for the prior prison term. The court also imposed a consecutive term of 90 days in county jail on count three.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Admission of Other Acts Evidence
Defendant contends the trial court abused its discretion in admitting evidence of the June 27, 2015, incident (the prior incident). We disagree.
Background
On the issue of the admissibility of the prior incident, the trial court ruled in relevant part as follows:
“[Section] 1109(a)(1) does allow a criminal – in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence. And the limitation as [defendant’s counsel] points out is consideration of the probative value and the prejudicial effect under Evidence Code section 352.
“I did review the Court’s file in [defendant’s] prior case. It’s 15M0851. I listened to the 911 recording related to that 15M case. And the call based upon what I can tell from the recording was placed and it’s [K.T.] making the call within about 10 minutes of the event and she’s describing what had happened and she does indicate and counsel informed the Court of this in chambers earlier today, that that conduct involved not only [defendant] but some friend of [defendant’s] that she – only name is Slim, S-l-i-m, on that call. Otherwise there’s no other identification.
“And after having listened to the recording I find that both prongs of . . . Evidence Code section 1240 are satisfied. So the recording is admissible as a spontaneous statement.
“The previous acts involve the same victim that’s alleged in this case. The acts involved acts of physical abuse which is what is being claimed in the current case against [defendant].
“There’s some other similarities between them we’ve been discussing, the alleged abuse in this case arose out of [defendant’s] desire, I suppose, to use [K.T.’s] vehicle; that’s what happened allegedly in the first instance. That’s what’s being claimed in this current case.
“His prior act of domestic violence I find that it is relevant evidence showing [defendant’s] propensity to commit violence against a girlfriend or someone he has a relationship with.
“And it does come squarely within the meaning of Evidence Code section 1109. The People can establish it really beyond the documents. In terms of they do have the 911 recording. The People can prove it – well not only should the complaining witness come in but they can prove it independent of her really by using the 911 recording, and also the Court documents pursuant to Evidence Code section 452.5(b).
“And that Evidence Code section does allow an official record of conviction to prove the commission of a criminal offense. And that’s what [section] 1109 permits. Other acts that show some commission of an act of domestic violence so they actually work in tandem with each other.
“[Defendant] was convicted by way of a plea in that prior case. The records reflect it was a plea to the charge or – I’m sorry, the Count One violation of [section] 273.5 and the victim in the case is the same victim as we have here the same victim alleged in the prior case.
“Just point out that there’s a case – there’s been some argument by defense about the admissibility of these records under [section] 452.5. The case I cited to you is [People v. Westin]. You might be familiar with it. It’s a 2006 case. 138 Cal.App.4th, at page 959 where the Court held that proof by use of court documents alone were found proper under Evidence Code section 1108. [Section] 1108 is not obviously [section] 1109 evidence but it’s a parallel statute that allows admission of evidence of other sexual offenses to prove propensity, so for that reason I’m deciding it.
“In weighing [section] 352, I don’t find that this prior conduct to be inflammatory. The conduct itself doesn’t appear to be any more egregious than what happened in this particular case. In fact, this case might be more egregious than that one. There’s an allegation of serious bodily injury in the other case, a misdemeanor actually. So it doesn’t appear to be – to rise to the level of conduct of seriousness in this particular case.
“I don’t find that it would be confusing to the jury to provide CALCRIM 852 as the limiting instruction so that they would be – the jury would be informed as to how they should properly consider this evidence.
“It’s not remote the prior – the prior conduct occurred . . . [¶] . . . [¶] . . . two and a half months later. Not quite three months prior to the current charges. And it clearly is within the ten years actually required by section 1109.
“As far as consumption of time, it wouldn’t take very much time to present this evidence either through the complaining witness herself, and even with the additional evidence of the 911 call and the certified records it would take no time at all to present this evidence.
“So, I do find the probative value far outweighs any prejudicial impact. And his conduct bears so much on the issues of the case that the jury should consider it.”
Applicable Law
“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition,’ such as identity, common plan, or intent. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common plan, and intent ‘only if the charged and uncharged crimes are sufficiently similar to support a rational inference’ on these issues. [Citation.] We review the trial court’s determination for abuse of discretion, and view the evidence in the light most favorable to the trial court’s ruling. [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 711; accord, People v. Garrison (1967) 252 Cal.App.2d 511, 514.)
Evidence Code section 1109 provides that, in cases in which the defendant is accused of domestic violence, “evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1); People v. Morton (2008) 159 Cal.App.4th 239, 245-246.) “Section 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.]’ ” (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)
A trial court has 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.” (Evid. Code, § 352.) “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Bolin (1998) 18 Cal. 4th 297, 320.)
Analysis
Defendant claims the prior incident, in which he struck K.T. forcefully enough to knock her to the ground and repeatedly punched her, was much more serious than the current case, in which he threw or pushed K.T. down causing her to hit her head on a piece of furniture. He argues that, although contrary to K.T.’s statements to investigating officers that defendant was responsible for her injuries on September 12, 2015, (the current offense), K.T. and Carpenter’s trial testimony was “firm” that K.T. became dizzy and fell down on her own rather than being thrown or pushed. We are not persuaded.
We must view the evidence in the light most favorable to the trial court’s ruling. (People v. Edwards, supra, 57 Cal.4th at p. 711; People v. Garrison, supra, 252 Cal.App.2d at p. 514.) In doing so, we find there is little distinction between the two incidents. The prior incident began with an argument between K.T. and defendant over the keys to K.T.’s truck. Defendant punched K.T., threw her to the ground, and punched her several more times. K.T. sustained injuries to her lip, chin, and thigh. The current offense began with an argument between K.T. and defendant over K.T.’s purse and the keys to her truck. Defendant threw K.T. to the ground, causing her to hit her head and knocking her unconscious. K.T. sustained injuries to her eye, shoulder, and arm. The two crimes are sufficiently similar to support an inference defendant inflicted corporal injury on K.T. on September 12, 2015.
Defendant contends the prejudicial impact of the prior incident evidence substantially outweighed its probative value. He claims this is so because the evidence of the current offense was “not overwhelming,” the jury’s verdicts revealed the jury rejected some of the People’s arguments regarding the current offense, and the fact the jury could not reach verdicts on the battery with serious bodily injury charge (count five) and the personal infliction of great bodily injury allegation suggests the jury did not believe he intentionally inflicted great bodily injury on the victim. He further claims there were substantial discrepancies between the trial testimony of K.T. and Carpenter, on the one hand, and K.T.’s statements made to investigating officers and in the 911 call, on the other hand. He argues it is reasonably probable a different result would have occurred had evidence of the prior incident not been admitted.
While the jury could not agree on whether defendant inflicted great bodily injury on K.T., the guilty verdicts reveal the jury did agree on the facts as described by the police officers who observed K.T. and spoke with her after the incident. That is, defendant attacked K.T. and was responsible for her injuries. The jurors’ disagreement on whether that injury constituted great bodily injury benefited defendant in that the disagreement resulted in a mistrial on count five and the great bodily injury allegation. As for discrepancies in the evidence, while K.T. testified she only vaguely remembered the details of the September 12, 2015, incident and thought she might have been injured when she fell and hit her head, there was other evidence it was defendant who inflicted K.T.’s injuries. Officer Finnicum spoke with K.T., who told him defendant forced his way into her home, woke her up, and tried to take her keys from her. Then, when she refused, defendant slammed her to the ground, knocking her unconscious. Officer Finnicum observed K.T.’s injuries and confirmed she sustained them during the attack by defendant. Officer Wacker testified Carpenter heard defendant arguing with K.T. about the truck keys and saw defendant throw K.T. on the ground, causing her to hit her head. K.T.’s other roommate, Pilawski, testified that, although she did not see a physical altercation between K.T. and defendant, she heard them yelling at each other and learned from Carpenter they had indeed had a physical altercation.
In light of the significant evidence of defendant’s guilt, it is not reasonably probable defendant would have obtained a different result even if the evidence of the prior incident had not been admitted.
Finally, defendant does not argue, and there is no indication in the record, evidence of the prior incident resulted in an undue consumption of time, confused the issues, or misled the jury. In the absence of these things, or any undue prejudice, the prior incident evidence was admissible under Evidence Code section 352.
We conclude the trial court did not abuse its discretion in admitting evidence of the June 27, 2015, prior incident.
II
Flight Instruction (CALCRIM No. 372)
Defendant contends the trial court erred by instructing the jury with CALCRIM No. 372, as follows: “If the defendant fled immediately after the crime was committed that conduct may show that he was aware of his guilt. If you conclude that the defendant fled it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.” Defendant contends the instruction was not supported by the evidence, was prejudicial given the case was close, and denied him his right to due process and a fair trial.
“ ‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his [or her] movement was motivated by a consciousness of guilt.” ’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328; People v. Howard (2008) 42 Cal.4th 1000, 1020-1021.) Flight does not require the physical act of running or the reaching of a faraway haven. (People v. Wallace (2008) 44 Cal.4th 1032, 1074.) It only requires “ ‘ “a purpose to avoid being observed or arrested.” ’ ” (Ibid.) In other words, an instruction on flight requires an action from which a jury could infer the flight reflected consciousness of guilt. (People v. Crandell (1988) 46 Cal.3d 833, 869.)
Here, the prosecution informed the trial court it was going to argue flight, and did indeed argue flight in its closing argument as follows: “One more factor to consider is an instruction about flight. If you believe the defendant fled after the crime was committed or tried to flee, that’s relevant. Very simply: Why run? I’m sure [defendant’s counsel] will talk about how she fell on her own. He never touched her. [¶] If your girlfriend falls whether it is due to slippage, due to any reason, do you run away? Even if there was a roommate yelling at you, do you run away? You do not even call for help? You take off. That’s a factor to consider.”
“[W]here evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: The flight of a person immediately after the commission of a crime, or after he [or she] is accused of a crime that has been committed, is not sufficient in itself to establish his [or her] guilt, but is a fact which, if proved, the jury may consider in deciding his [or her] guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” (§ 1127c; People v. Wallace, supra, 44 Cal.4th at p. 1074.) It is not the introduction of evidence that might be construed as flight, but rather the prosecution’s reliance on such evidence to prove guilt, that triggers the duty to instruct on flight. (People v. Tuggles (2009) 179 Cal.App.4th 339, 367.) The prosecution’s reliance on evidence of flight was sufficient to justify giving the instruction.
Defendant contends, without citation to the record, Carpenter’s testimony does not support an inference of flight. “The evidentiary basis for the flight instruction requires sufficient, not uncontradicted, evidence.” (People v. Richardson (2008) 43 Cal.4th 959, 1020.) In any event, even if the instruction was given in error, any error was harmless because it is not reasonably probable defendant would have achieved a better result had the CALCRIM No. 372 instruction not been given. (People v. Mendias (1993) 17 Cal.App.4th 195, 202; People v. Watson (1956) 46 Cal.2d 818, 836 [standard of harmless error applicable to this state law error].) As the trial court noted, and the jury was instructed, CALCRIM No. 372 includes language that evidence the defendant fled cannot prove guilt by itself. Thus, the instruction allows the jury to make its own factual determination regarding flight and decide what weight to accord it, but requires the jury to make its determination of defendant’s guilt or innocence on other evidence. Moreover, as discussed in part I of this opinion, there was other evidence to prove defendant’s guilt, namely the testimony of the responding officers and the 911 call. Based on this record, we conclude any error in instructing the jury with CALCRIM No. 372 was harmless under any standard.
III
Denial of Romero Motion
Defendant contends the trial court abused its discretion in denying his Romero motion to strike his prior strike because the current offense was “not that serious” and the nature of his prior criminal history was generally nonviolent.
To avoid forfeiture of his claims of error, defendant had the burden to support his arguments with analysis and citation to evidence in the appellate record. (People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) As a reviewing court, we may disregard evidentiary contentions not supported by proper page cites to the record. (Aguimatang v. Cal. State Lottery (1991) 234 Cal.App.3d 769, 796.)
Here, defendant failed to include, as part of the appellate record, the transcript of the sentencing hearing and the trial court’s ruling on his Romero motion. Despite that, both parties argue the issue without a single citation to the record, apparently urging us to speculate as to what occurred during the hearing and how the trial court arrived at its decision to deny the motion. We decline to do so. Defendant’s claim is forfeited.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
HULL, Acting P. J.



/s/
MURRAY, J.