Filed 6/9/17 P. v. Williams CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
DEMOND WILLIAMS,
Defendant and Appellant.


A147696

(Contra Costa County
Super. Ct. No. 51418433)


A jury found defendant Demond Williams guilty of the felony offense of inflicting corporal injury on a cohabitant or child’s parent (Pen. Code, § 237.5 ), and the misdemeanor offense of false imprisonment (§§ 236, 237, subd. (a)). The court sentenced defendant to a three-year probationary term on condition that he serve 270 days in jail with credit for time served of 215 days. On appeal, defendant challenges the judgment on one ground, that the trial court abused its discretion in allowing the jury to consider evidence of prior acts of domestic violence between defendant and the victim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 17, 2015, defendant was charged in an amended information with the following felony charges: inflicting corporal injury on a cohabitant or child’s parent (§ 273.5, subd. (a)), false imprisonment by the use of violence (§§ 236, 237, subd. (a)), and making criminal threats (§ 422). The charges arose from a July 30, 2014, incident that took place between defendant and K.O., the mother of his children. A jury trial began on December 17, 2015, at which the following evidence was presented:
A. Prosecution’s Case
In July 2014, defendant and K.O. had been together for almost six years and were the parents of two young children. They were living together at K.O.’s home. The boyfriend of K.O.’s niece, 19-year-old Lester Evangelista, had also been staying at K.O.’s home for a few months at the time of the incident.
On July 30, 2014, Evangelista and K.O. went out to get food and when they returned home at 2:00 p.m., defendant was lying on the living room couch and the children were outside. About 30 minutes later, defendant and K.O. got into an argument concerning the supervision and feeding of the children. Defendant and K.O swore at each other while K.O. was at the kitchen table eating and defendant was on the couch about 10 feet away. K.O. called defendant a “bitch.” Defendant stood up, went up to K.O, asked her what she said, and she again called him a “bitch.” Defendant immediately head-butted K.O. in her face around her forehead, nose, and lip. K.O. got up and ran into the hallway, with defendant chasing her. The parties struggled with each other, first in K.O.’s bedroom and then the children’s bedroom, with Evangelista periodically attempting to separate the parties. According to K.O. and Evangelista, defendant was attempting to hold K.O. while K.O. was attempting to free herself from defendant’s grasp. During the struggle, defendant tripped and hit the side of his face on the doorframe, resulting in injuries to his face and chin. K.O. testified that during the struggle in her bedroom, defendant pushed Evangelista out of the room and closed and locked the door. While in the bedroom, defendant punched, stomped, and choked K.O., and held her hair tightly, while he continued to punch her. After about 10 or 15 minutes, Evangelista managed to force his way into K.O.’s bedroom where defendant had K.O. pinned to the ground. Evangelista again tried to get defendant to release K.O. Evangelista testified the door to K.O.’s bedroom was never closed but he lost sight of the couple for a moment, and then followed them into K.O.’s bedroom and tried to get defendant to release K.O. Evangelista saw defendant trying to choke K.O. and pulling her hair, and K.O. shoving defendant off her and punching defendant near the chest area while trying to get away from him. At one point when defendant and K.O. were on the floor, Evangelista saw defendant hit K.O. with a closed fist. Eventually, defendant released K.O.; she got up and ran out of the house. K.O. described her injuries as a “busted lip,” “face full of blood,” and “marks around [her] neck and [her] shoulder.” The jury was shown police photographs of K.O.’s injuries taken shortly after the incident while she was at the hospital.
Richmond Police Officer Yesenia Rogers testified that on July 30, 2014, she responded to a domestic violence call from K.O.’s home. She took defendant into custody and drove him to the Richmond jail for booking. While the officer and defendant were seated in the police car, the officer heard defendant say, “ ‘She put me over the edge. I wanted to kill her.’ ” The officer documented defendant’s statement in her notebook, and then typed the statement into her police report. Once the statement was recorded in her police report, the officer destroyed her notes and she did not keep any copies of her notes.
B. Defense Case
Defendant testified regarding the circumstances of the July 30, 2014, incident. He claimed the physical altercation was initially started by K.O. According to defendant, when he asked K.O. if she was going to feed the children, K.O. said, “shut the fuck up.” Defendant walked over to where K.O. was seated in a “really high” chair and asked her not to talk to him like that. K.O. again said, “shut the fuck up,” and as she said it, she head butted defendant’s head. Defendant was stunned. K.O. then got out of her chair and she and defendant started to tussle. They got to the doorway of K.O.’s bedroom, did not enter that room, and then they ended up in the children’s room where they fell to the floor. At no time were defendant and K.O. behind a closed door. Defendant felt K.O. was attacking him. He denied that during the tussling, he had run into a door and injured his lip and chin area. K.O. did not stop attacking defendant until Evangelista separated them and K.O agreed to release defendant. Defendant denied head-butting, punching, kicking, strangling, or stomping on K.O. Defendant also denied threatening to kill K.O. or hitting her with a closed fist. He also denied saying anything about killing K.O. to Officer Rogers.
Defendant’s brother Darryl Ray Barnes testified he met with K.O. on August 11, 2014, 12 days after the incident. At that time, Barnes saw no obvious signs of scratches or bruising on K.O.’s face or hands, and she did not complain about any injuries. Barnes asked K.O. why she had not walked away from the conflict on July 30, and she said she did not want to walk away. On cross-examination, Barnes was shown the police photographs of K.O taken shortly after the incident. Barnes admitted that the photographs appeared to be of K.O., and that when he met K.O. in August, there was “no blood” and “no swelling on her lip” as shown in the photographs.
Richmond Police Officer Terry Thomas testified he had responded to a call concerning the July 30, 2014, incident at K.O.’s home. He interviewed Evangelista, who said he was in a separate room when the fight broke out between defendant and K.O. Evangelista further said defendant had forced K.O. down, kicked and punched her multiple times, and threatened to kill her, However, Evangelista did not state that defendant head-butted K.O. or that defendant choked or strangled K.O. Officer Thomas also saw defendant sitting on an outside staircase. Defendant might have had a laceration on his chin and possibly he was bleeding from his mouth, as depicted in a photograph showed to the officer during the trial. Officer Thomas saw no swelling, lacerations, bleeding, or other things of that nature, on defendant’s hands or any type of swelling or injuries on defendant’s feet.
Tara Godoy, a certified forensic nurse, qualified as an expert in forensic nursing, testified that an examination of K.O.’s medical records indicated K.O. had suffered injuries to her face and body. Godoy opined the injuries to the right side of K.O.’s body were consistent with a fall. The records also indicated a contusion on K.O.’s nose, which “could be” consistent with having head butted somebody. The medical records described K.O. as suffering no acute distress and she had no outward signs of strangulation. But, on cross-examination, Godoy testified the photographs of K.O.’s injuries could possibly be consistent with strangulation.
C. Prosecution’s Rebuttal
Recalled as a prosecution witness, Officer Thomas testified that when he arrived at K.O.’s home on July 30, 2014, it was “extremely difficult to obtain a statement from” her because her “mouth was swollen heavily,” and “[s]he was bleeding from her mouth,” and “crying uncontrollably.” Officer Thomas also interviewed defendant at the jail. After the officer read defendant his Miranda rights, defendant agreed to talk with the officer. Defendant stated he was inside the house when K.O. and Evangelista arrived at the house. K.O. said it smelled like defendant had consumed alcohol inside the house. Defendant approached K.O. and she head-butted him and then a fight ensued. Defendant had some difficulty recalling what happened, but he said he struck K.O. multiple times in the face with a closed fist. Officer Thomas did not record his meeting with defendant as the interview took place at the jail. There was audio and video recording equipment available and accessible in another part of the police department building, but the officer did not use it. Officer Thomas initially recorded defendant’s statements on a field information card. However, the officer was not required to provide the card as long as the defendant’s statements were “articulated in a [police] report”.
D. Verdicts
The jury found defendant guilty of the felony offense of inflicting corporal injury on a cohabitant or child’s parent and the misdemeanor offense of false imprisonment. The jury found defendant not guilty of making criminal threats and the felony offense of false imprisonment by the use of violence.
DISCUSSION
Defendant argues he is entitled to a new trial because the trial court abused its discretion in admitting evidence of prior domestic violence incidents between defendant and K.O. We disagree.
A. Relevant Facts
Before trial, the prosecutor sought the court’s permission, in limine, to introduce evidence of abuse by defendant against K.O., which incidents occurred on May 13, 2009, and September 6, 2013. The prosecution offered these incidents to prove that the current incident was part of a pattern of domestic violence and defendant had acted with the requisite intent to commit the charged offenses. (Evid. Code, § 1109; Pen. Code, § 13700.) After reading the police reports concerning the two incidents, the trial court ruled it would admit the evidence. Defense counsel objected to the court’s ruling but submitted the matter to the court without argument.
During the trial, and without defense objection, the prosecutor began his questioning of K.O. about previous domestic violence incidents by asking her about the nature of the domestic violence between the parties. In response, K.O. testified the July 30, 2014 charged incident was not the first time that defendant had physically hurt her, that it had previously happened when she was pregnant with her first child, and thereafter, it was “like on and off.” K.O. was not able to indicate the number of such incidents: “It honestly was so much I can’t even keep track.” She further testified that the police had been called six or seven months prior to the July 30, 2014 incident. During re-direct examination, and over defense objection that the question had been asked and answered, K.O. was again asked about the number of times defendant was physically abusive to her. K.O. testified, “Um, I can’t keep count, but it started when I was pregnant with my oldest, so back in 2008.” Thereafter, both K.O. and defendant were questioned about the two prior domestic violence incidents that were the subject of the prosecutor’s in limine motion.
K.O. recalled that on May 13, 2009, she and defendant had been arguing when defendant tried to hit her with a closed fist while she was seated on a couch and holding their infant child. Defendant missed K.O. and hit the child in the face. K.O. also recalled that on September 6, 2013, she and defendant were in the parking lot at her apartment. K.O. was inside her car. Defendant wanted the car key but K.O. refused because defendant did not have a driver’s license. At some point K.O. opened the car door and defendant pulled her hair, dragged her by her arm out of the car, and started hitting her.
Defendant recalled that on May 13, 2009, he was arguing with K.O., while she was holding their infant child in her arms and he was kneeling at the side of the bed. K.O. started swinging at defendant, and he went to block her, and “she said [he] hit the baby.” After the argument, K.O. left the bedroom and defendant and the child went to sleep in the bed. When the police arrived at the house, defendant did not know why they were there because he was still in the bed with the child. Defendant did not recall telling the police he might have accidentally hit the child, but he did not mean to do so. Defendant recalled only that he told the police K.O. said he hit the child. When asked if it was possible he could have actually hit the child, defendant said, “Accidentally, I could have, but I know I didn’t.” Defendant also testified that on September 6, 2013, he had pulled K.O. out of the car, but he denied he had pushed her head and shoulder into the ground. Defendant was arrested after that incident and he tried to be candid about what had happened when he spoke with the police. However, he did not recall telling the police that he had pushed K.O’s head and shoulder into the ground after removing her from the car.
During closing arguments, both the prosecutor and defense counsel made reference to the May 2009 incident during which defendant had attempted to hit K.O. and instead he purportedly hit their infant child. Specifically, the prosecutor asked the jury to consider that evidence in the following manner: “By the way, when I cross-examined the defendant and I say, so you missed her and you hit the kid, the answer is not, possibly but no. If you’re not a domestic abuser, the answer to that question is, no, that’s not what happened. The reason he didn’t say that is because cowboy can’t control his temper. Because he hauled off and tried to hit that woman. That’s the only reason you get an answer like that.” Defense counsel asked the jury to consider the same evidence in the following manner: “[I]n the incident with the baby, you’ll notice, what didn’t you see pictures of? The baby. You have an adult man. He tried to punch her and punched a four-month-old baby? What would happen to that four-month-old baby? That baby would be quite a bit injured. No indication the baby is injured. No indication, well, the baby is crying uncontrollably because the baby has been punched in the face by an adult man. And an indication that he didn’t even know why they came there, and that the baby is with him in the bed sleeping when the police arrive. So I’m a mother and my partner just punched my baby in the face. I’m just gonna leave the baby with him. I think the baby will be safe that way. And I’m gonna go outside and call the police. And they obviously had enough time to fall asleep. So, you know, enough time passes. They’re doing that. What does she have enough time to do? To punish him.”
In its written closing instructions, the court advised the jury that it could consider the evidence of prior uncharged domestic violence incidents in the following pertinent manner: “The People have presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: a May 13, 2009 incident in which [K.O.] testified defendant tried to punch her but hit the baby instead and a September 6, 2013 incident in which [K.O.] testified defendant dragged her from her car. [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. . . . [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit Count One, infliction of corporal injury on cohabitant/child’s parent as well as the lesser included offense of battery on cohabitant/child’s parent, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of infliction of corporal injury on cohabitant/child’s parent as well as the lesser included offense of battery on cohabitant/child’s parent. The People must still prove each charge beyond a reasonable doubt.”
B. Analysis
On appeal defendant challenges the court’s admission of evidence of the May 2009 and September 2013 domestic violent incidents, and K.O.’s general testimony that defendant had abused her countless other times during the course of their relationship. He claims the evidence was highly inflammatory, lacked probative value, and should have been excluded as irrelevant. He further contends he was prejudiced by the erroneous admission of the evidence because the case was a close credibility contest between himself and K.O., and there was at least a reasonable probability the result would have been more favorable to him if evidence of the prior domestic violence had been excluded. As we now explain, we conclude defendant’s arguments are unavailing.
Even if it was error to allow the evidence of prior domestic violence, defendant is not entitled to any relief on appeal unless we conclude it is reasonably probable that a result more favorable to him would have been reached had the evidence been excluded. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Here, we are convinced there is no reasonable probability of a different result. Initially, we note defendant made no objection on the grounds now asserted on appeal to K.O.’s generalized testimony that defendant had physically abused her on occasions too numerous to count. Moreover, we see no merit to defendant’s conclusory argument that evidence of the September 2013 domestic violence incident, in which defendant dragged K.O. from her car, was highly inflammatory, lacking in probative value, and irrelevant. Concededly, the May 2009 incident, in which defendant attempted to hit K.O. and instead he purportedly hit their child, is more troubling in that it is inflammatory, and could have been redacted to eliminate reference to the child. Nonetheless, “[i]t does not appear reasonably probable” that the jury was influenced by any of the evidence of prior domestic violence to defendant’s prejudice, or that “the admission of such evidence affected the verdict.” (Id. at p. 837.) The jury was presented with strong evidence supporting the sustained charges including K.O.’s physical appearance after the July 30, 2014, assault, depicted in photographs, as well as the testimony of Evangelista and defendant’s admission to the police that he hit K.O. in the face multiple times with a closed fist. The jury’s findings that defendant was not guilty of making criminal threats and false imprisonment by the use of violence, further demonstrates it was not unduly swayed by any of the prior domestic violence evidence. Rather, we are satisfied the verdicts demonstrate the jury was focused on the evidence relative to the current offenses, and not on any evidence of prior domestic violence. “[F]rom an ‘examination of the entire cause, including the evidence,’ it is our ‘opinion’ that ‘the error complained of has’ not ‘resulted in a miscarriage of justice.’ ” (Id. at pp. 837-838.)
Defendant’s claim of ineffective assistance of trial counsel is not persuasive. Even assuming defendant’s trial counsel had no strategic reason for failing to object on the grounds now asserted on appeal to K.O.’s generalized testimony of domestic violence, and an objection should have been made, any error was harmless as there is no reasonable probability the result would have been more favorable to defendant in the absence of the challenged evidence. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Fosselman (1983) 33 Cal.3d 572, 584.)
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.