Filed 9/6/17 P. v. Grijalva CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On January 26, 2016, a jury found defendant Chofa Moses Grijalva guilty of willfully inflicting corporal injury resulting in a traumatic condition upon his wife, and leaving the scene of an accident that resulted in permanent, serious injury. With respect to the former charge, the jury found true that defendant personally inflicted great bodily injury upon his wife under circumstances involving domestic violence. The jury acquitted defendant of assault with a deadly weapon.

The trial court sentenced defendant to a total term of seven years in prison.

On appeal, defendant contends: (1) his conviction for leaving the scene of an accident that resulted in permanent, serious injury was not supported by substantial evidence, (2) the trial court erred in not conducting an evidentiary hearing outside the presence of the jurors regarding the admission of evidence of two prior uncharged instances of domestic violence that his wife’s sister testified about, and (3) the introduction of evidence involving one prior conviction and five subsequent allegations of domestic violence by defendant violated his right to a fair trial. We disagree and affirm the judgment.

I. BACKGROUND

1. The Charged Incident

On the evening of October 18, 2013, defendant’s wife was out drinking. Defendant and his wife were recently separated,[1] and, as she drank, she became angry about “everything that [they] had been separated for” including “jealousy issues” and defendant having been with other women. She testified that when she drinks, she is “very not caring and just out of control.”

She drove, uninvited, to the house she believed defendant had been staying at with his mother: “I figured it was the end of the night. He might have been coming back to that house. Um, emotions flaring.” When she arrived, she saw defendant outside with some friends, including Michael C. Defendant’s wife became angrier when she saw Michael C. She does not like Michael C. because she thinks he is a bad influence on defendant. Defendant’s other friends “scattered,” and his wife started yelling from inside her sport utility vehicle. Defendant laughed, which made his wife even angrier and caused her to get out of the sport utility vehicle. As his wife approached, defendant began walking toward the driver’s door of his truck, and Michael C. was getting into the passenger seat. Defendant’s wife punched defendant, and the two of them started arguing: “He was saying that I was drunk and that I needed to leave, and I was denying being drunk. And it just got to name-calling and went from there.” Defendant’s wife said defendant “tried to stop [her] and like kept shoving [her]. His shoves [we]re like pretty hard, so it was like sending [her] little body flying, and then [she] would come charge back at him.” She testified that the last thing she remembered before waking up in a hospital was holding onto defendant’s clothes and trying to get him out of his truck.

At almost 3:00 a.m. on October 19, 2013, Sacramento Police Officer Jonathan Gresham was dispatched to the house in regard to a hit-and-run incident.[2] The officer found defendant’s wife in the street. He described her condition as poor: “She was bleeding from her face and her leg was severely injured.” Her leg “looked like an accordion. It looked like it was squished together and it was severely broken.” She did not appear to be too drunk or in too much pain to give a statement.[3] She spoke clearly and explained that defendant had punched her in the face with a closed fist and knocked her to the ground. Then, defendant got into his truck and ran over her on purpose. The officer spoke to defendant’s mother and attempted to locate him, but was unsuccessful in doing so.

At around 5:00 a.m., defendant’s wife told a social worker in the emergency room that her husband had punched her in the face and attempted to run her over with his truck. The social worker observed bruises to defendant’s wife face and “the open fracture in her leg.”

Approximately two hours later, a forensic investigator from the Sacramento Police Department took pictures of defendant’s wife in the hospital. The investigator noticed defendant’s wife “had blood on her face. She had an injury to her nose and her lips; looked like swelling.” Defendant’s wife also had bruising below her left elbow, and scratches along her arm. Her right leg was bruised and the left leg had a splint on it.

Diana T. visited her sister in the hospital on October 19, 2013. Defendant’s wife looked “[p]retty battered.” She had a black eye, dried blood on her, and her face was so swollen that Diana T. barely recognized her. Diana T. acknowledged seeing her sister’s face swollen before due to her lupus diagnosis, but Diana T. had never seen her sister look “like that” before. Defendant’s wife told Diana T. that defendant hit her with the door of his truck and then ran her over. Diana T. characterized her sister’s relationship with defendant as dysfunctional and rocky.

On October 21, 2013, a detective from the Sacramento Police Department went to the hospital to talk to defendant’s wife. Defendant’s wife told the detective that defendant had punched her with a closed fist, causing her to bleed and not see very well. She also said defendant grabbed her by the hair and pulled her closer to the truck. He let go of her hair when he got into his truck, and then reversed and went forward with the truck, hitting her with the open door. Then, he accelerated and hit her with the front of his truck. After hitting her with the truck, the defendant “took off.”

Defendant’s wife was hospitalized for about two and a half weeks. She underwent surgery and a permanent rod was placed in one of her legs.

At trial, defendant’s wife testified that he never hit her or punched her in the face. She did not believe defendant intentionally hit her with the truck. She did not recall speaking to the police officer at the scene of the accident, but said that “if it is in the report, yes, that’s what I said.” She recalled telling the social worker that defendant punched her in the face and tried to run her over with the truck, but said she said this because she was upset with defendant. Defendant’s wife also explained, “I told a lot of stories that weren’t truthful.”

Michael C. testified that he and defendant were getting ready to leave when defendant’s wife pulled up in her car and started yelling at them and “making a big scene.” She accused them of going to hang out with women. She grabbed defendant’s shirt as he tried to get into his truck and ripped it. Defendant was trying to get his wife out of the way so that he could shut the door. “They were getting real physical,” but Michael C. could not see everything. He never saw defendant punch his wife. Defendant’s wife was close to the truck when defendant pushed her away and drove off. Michael C. did not feel anything unusual as they drove away, but he looked back and saw defendant’s wife on the ground. He said to defendant, “ ‘I think you hit her,’ ” and defendant responded, “ ‘No, I didn’t.’ ”

Defendant testified that as he was walking toward his truck, he saw his wife drive up at a high rate of speed. She got out of her sport utility vehicle and started screaming at him and accusing him of cheating on her. The cab of defendant’s truck is high off the ground so he has to reach in and pull himself up by the steering wheel. He was doing this when his wife grabbed him and pulled him back to the ground. She was screaming at him, pulling at him, and hitting and scratching him. He denied punching her. “She’s being real disrespectful, real mad. Her anger was—she’s blacked out. She’s like there was no talking to her. She was just that angry, like there was no talking, no trying to explain myself.” Defendant pushed her and she fell down: “And when she fell down, that’s when I felt I had my opportunity to pull myself in the truck and take off.” Defendant testified that he did not think it was possible that he hit his wife with the truck. He explained, “My truck is so high, I can’t feel no speed bump in my truck.” Defendant did see his wife on the ground, and he heard Michael C. say that he thought defendant hit her, but defendant disagreed, saying, “I think I pushed her down.” Defendant said he “took off.”

2. Evidence of Prior Offenses

Defendant testified that in 1998, he was convicted of misdemeanor domestic violence relating to a different victim.

The prosecution also introduced evidence of five uncharged domestic violence offenses pursuant to Evidence Code section 1109:[4]

Defendant’s wife testified that, in April 2010, defendant slashed all of her tires with a knife. The parties stipulated that defendant’s wife called the police and reported that defendant “had walked toward her like he was going to stab her and said, ‘I will stab you, Bitch. I don’t give a fuck.’ ”

The parties also stipulated that, in May 2011, defendant’s wife reported to the police that defendant had scratched the paint on her car and broken two windows and a windshield after she refused to let him in the house.[5]

Diana T. testified that defendant’s wife told her about another assault by defendant that occurred sometime in 2010 or 2011: “She didn’t give me specifics, but she did tell me that they had had a dispute and that was possibly why she had miscarried her child.” Diana T. and her sister were not on speaking terms at the time, but Diana estimated that defendant’s wife had been six or seven months pregnant. On cross-examination, Diana T. testified that she was aware that her sister had lupus and had had “a couple” of miscarriages. Diana did not know if her sister actually had a miscarriage during this time period. Defendant’s wife testified that she had had a miscarriage during this time period, but she had been one month pregnant when it happened. Defendant’s wife said she told her sister that she thought defendant had caused the miscarriage, but that was untrue and defendant did not abuse her during that time period.

Diana T. also testified that her sister previously said that a year prior to the charged offenses defendant had struck her in the head with a bottle. Diana T. was told about, but never saw, a cut to her sister’s head as a result. Defendant’s wife testified that she “was the aggressor in that case, and he did not hit [her] over the head with the bottle.” In May of 2013, she did sustain some facial injuries, but it was from “an altercation with a few females.” She also explained generally that, “I lied to my sister about a lot of incidents that have happened.”

On July 21, 2015, defendant’s wife reported to the police that during an argument in which she was standing in front of his car, he had intentionally bumped into her with the car while she was holding their baby. She reported no injuries.[6]

II. DISCUSSION

A. Leaving the Scene of an Accident That Resulted in Permanent, Serious Injury

Vehicle Code section 20001 provides in relevant part:

“(a) The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of [Vehicle Code] Sections 20003 and 20004.

“(b)

“(1) Except as provided in paragraph (2), a person who violates subdivision (a) shall be punished by imprisonment in the state prison, or in a county jail for not more than one year . . . .

“(2) If the accident described in subdivision (a) results in death or permanent, serious injury, a person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year . . . .”

“Vehicle Code sections 20003 and 20004 essentially require drivers to render reasonable aid to the injured person and to furnish identification to that person and law enforcement authorities.” (People v. Wood (2000) 83 Cal.App.4th 862, 865.)

Defendant claims his conviction for leaving the scene of an accident that resulted in permanent, serious injury should be reversed because there was no substantial evidence to support the conclusion that his leaving the scene caused or exacerbated his wife’s injuries. This argument relies on a portion of People v. Braz (1998) 65 Cal.App.4th 425 (Braz) that has been subsequently overruled by legislative amendments. At the time of the Braz decision, Vehicle Code section 20001, subdivision (b)(2) increased the punishment for “ ‘[a]ny violation of subdivision (a) which results in death or permanent, serious injury.’ ” (Braz, supra, at p. 427.) The court of appeal in Braz held—despite legislative history indicating a contrary intent—that the plain language of the statute prevented the imposition of the penalties set forth in Vehicle Code section 20001, subdivision (b)(2) unless the defendant’s failure to stop and present identification and render aid caused permanent, serious injury to the accident victim. (Braz, supra, at pp. 432-433 & fn. 4.) The legislature then amended the statute. (Stats. 1999, ch. 854, § 1.) As set forth above, subdivision (b)(2) now provides for increased punishment “f [i]the accident described in subdivision (a) results in death or permanent, serious injury.” (Veh. Code, § 20001, subd. (b)(2), italics added.) Thus, defendant’s substantial evidence claim fails because exacerbation of his wife’s injuries by his flight is not required to impose punishment under Vehicle Code section 20001, subdivision (b)(2).

Defendant notes that he was not separately charged with a violation of Vehicle Code section 20001, subdivision (a), and that he was found not guilty of assault with a deadly weapon.[7] Neither fact is relevant because the information alleged and the jury was properly instructed on all the requirements for imposing punishment under Vehicle Code section 20001, subdivision (b)(2), including a violation of subdivision (a).[8] Accordingly, defendant’s arguments relating to his conviction for leaving the scene of an accident that resulted in permanent, serious injury are without merit.

B. Evidence of Prior Domestic Violence

We now turn to defendant’s claims relating to the evidence of prior instances of domestic violence. He challenges the procedure the trial court utilized to determine the admissibility of some of this evidence and asserts that the cumulative impact of the admission of this evidence violated his right to a fair trial. As we will explain, neither claim has merit.

1.Statutory Background

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (§ 1101.) However, the Legislature has created exceptions to this rule including for cases involving domestic violence. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) “t is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.” ([i]People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334.) “[T]he legislative history of the statute recognizes the special nature of domestic violence crime, as follows: ‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked.’ ” (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)

Section 1109 provides, in relevant part, that “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 is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a)(1).) Section 1109 also defines domestic violence and provides that “a hearing conducted pursuant to Section 352 . . . shall include consideration of any corroboration and remoteness in time.” (§ 1109, subd. (d)(3).)

2.Trial Court Proceedings

Prior to trial, the prosecutor filed a motion to admit evidence under section 1109 of prior acts of domestic violence committed by defendant. At the hearing on this motion, the prosecutor reviewed the evidence she was seeking to introduce, including the relevant time period and whether there was a corresponding police report or prosecution for each event. Defendant’s counsel argued that the incidents for which there was no arrest or prosecution were more prejudicial than probative: “I think it’s going to come out in [defendant’s wife’s] testimony that when she’s drinking too much and gets mad at him or whatever, things get blown out of proportion, as they have in the past. [¶] I think the reason no prosecution happened is because the statements just weren’t that credible, and to have a jury hear about four or five different incidents and that no prosecution happened, especially under some opinion evidence about a miscarriage, for example, there is no medical checkup, no history, no verification of anything that I’m aware of.” Defense counsel added later, “if anything, I think perhaps a [section] 402 hearing for [defendant’s wife], at the very least, to go through some of these incidents so they’re more prejudicial than probative.” The trial court responded: ”I’m going to admit [section] 1109 evidence in this. [¶] What I’m now giving some focus to is whether under [section] 352 I’m going to limit you to some subset of what you are requesting.” After the prosecutor made additional arguments and defense counsel explained that he stood by his earlier statements, the court ruled: “I’m going to admit the [section] 1109 evidence involving the alleged victim in this matter . . . . All of it is admissible. [¶] And I’m going to permit the People to present evidence as to the misdemeanor conviction . . . . [¶] I agree with you, [defense counsel], that it is relatively old, but of course the fact that there resulted subsequent behavior gives it more currency. If it were just that event in 1998 and nothing since, it might be a different ruling.”

3.Section 402

As outlined above, the trial court weighed the admissibility of the evidence of prior acts of domestic violence committed by defendant under section 352 as required by section 1109.[9] Rather than challenge this determination directly, defendant argues the trial court should have conducted a section 402 hearing outside the presence of the jurors regarding the evidence of the two instances that were introduced through Diana T.’s testimony: (1) an assault that allegedly caused his wife to miscarry and (2) an allegation that defendant had previously hit his wife in the head with a glass bottle.

“Evidence Code section 402 provides a procedure for the trial court to determine outside the presence of the jury whether there is sufficient evidence to sustain a finding of a preliminary fact, upon which the admission of other evidence depends.” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1156.) Specifically, the statute provides that “[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.” (§ 402, subd. (b), italics added.) As in the present case, “n situations not involving confessions or admissions going directly to the crime charged, it is within the trial judge’s discretion as to whether he will initially hear evidence outside the presence of the jury as to a preliminary fact that may bear upon the admissibility of proffered evidence.” ([i]People v. Slocum (1975) 52 Cal.App.3d 867, 888; accord People v. Williams (1997) 16 Cal.4th 153, 196.)

We find no abuse of discretion in the procedure followed by the trial court to determine the admissibility of defendant’s wife’s statements to her sister concerning these two occasions. The sister’s testimony falls within the confines of section 1109 in that the testimony described a prior uncharged act of domestic violence by defendant. The court received the prosecution’s offer of proof and the defendant’s opposition and evaluated them. As we read the record, the court made an informed ruling on the admissibility of the testimony, including consideration of the relevant time periods and the lack of additional corroborating evidence as required by section 1109, subdivision (d)(3). Defendant claims that an evidentiary hearing would have “exposed evidence regarding these incidents as unreliable, and therefore inadmissible,” but there appears to be no dispute that defendant’s wife made the statements to her sister. Whether defendant’s wife’s original statements to her sister were credible despite their lack of corroboration and her subsequent disavowals was a question that the court could properly ultimately leave to the jury. (See People v. Smith (2007) 40 Cal.4th 483, 515-516 [“Issues regarding a witness’s credibility are properly left to the jury, and are not a proper subject of [a section] 402 hearing”].) We therefore find no error in the denial of a section 402 hearing.

4. Constitutional Claims

Defendant argues that the cumulative nature of the evidence regarding prior domestic violence incidents deprived him of his constitutional right to a fair trial. We disagree.

Here, the probative value of the evidence of defendant’s prior domestic violence was “principally in its cumulative nature.” (People v. Cabrera (2007) 152 Cal.App.4th 695, 706.) Again, defendant does not directly challenge the trial court’s determination that the probative value of the evidence regarding the uncharged offenses was not substantially outweighed by the probability that its admission would necessitate an undue consumption of time or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury under section 352. In that context, “[r]elevant 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, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The prior acts evidence did not take an undue amount of time and, with the possible exception of the prior conviction, the incidents were not remote. The evidence was neither stronger nor more inflammatory than the charged offense. Defendant’s wife’s testimony undercut the evidence regarding the current and uncharged offenses. It was therefore unlikely that the jury disbelieved the evidence regarding the charged offenses but nevertheless convicted defendant on the strength of the testimony regarding the defendant’s uncharged offenses. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [explaining that where testimony describing defendant’s uncharged acts is “no stronger and no more inflammatory than the testimony concerning the charged offenses,” the potential for prejudice is decreased].) The charged offense was also as inflammatory as any of the evidence regarding the uncharged offenses. Defendant was charged with punching his wife in the face and intentionally running her over with a truck causing significant injuries. “Thus, it is unlikely that the jury would have been so prejudiced against appellant as a consequence of [the witness’s] ‘inflammatory’ testimony [regarding uncharged offenses] that he was denied a fair trial.” (People v. Branch (2001) 91 Cal.App.4th 274, 283-284.)

Furthermore, the trial court recognized and addressed the potential for the prior act evidence to affect the jury’s deliberations by instructing the jury under CALCRIM No. 852 regarding the use of this evidence. In particular, the jury was told that, “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 the offenses charged . . . . [¶] The People must still prove each charge and allegation of every charge beyond a reasonable doubt.” We presume the jurors understood and applied the instruction. (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9.)[10] Under these circumstances, we cannot conclude that admission of the prior incident evidence resulted in an unfair trial.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

BUTZ, J.