Filed 10/18/17 P. v. Garcia CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Raymond Joseph Garcia guilty of corporal injury on a cohabitant, J. N., on January 1, 2015 (count one) and battery with serious bodily injury on J. N. on the same date (count two). In connection with count one, the jury found that defendant personally inflicted great bodily injury. The jury could not reach a verdict on other counts of corporal injury and battery on the same victim on December 27, 2014. The court declared a mistrial on those counts and dismissed them on the prosecutor’s motion.

Sentenced to state prison for an aggregate term of eight years, defendant appeals. He contends: (1) defense counsel rendered ineffective assistance in failing to move to exclude defendant’s statements at the time of his arrest; (2) the trial court erred in allowing acts of prior domestic violence to include the fact that physical abuse began after each victim became pregnant with defendant’s child; (3) the prosecutor committed prejudicial misconduct during closing argument; and (4) cumulative prejudice from the errors require reversal. We affirm.

FACTS

In 2014, J. N. and defendant started dating. At the time of trial, they had had one child and J. N. was pregnant with their second child. J. N. was an uncooperative prosecution witness and blamed herself for the charges against defendant.

On December 31, 2014, defendant, J. N., and her friend, C. R., met at a casino where they stayed until about 2:00 a.m. on January 1, 2015. When they returned to defendant and J. N.’s apartment, defendant wanted a threesome with J. N. and C. R. J. N. was six months pregnant at the time.

S. N. lived in an apartment directly below defendant who she knew only casually. In the early morning hours of January 1, 2015, S. N. heard “blood-curdling” screams from a woman, doors slamming and furniture thrown around in defendant’s apartment. The noise lasted for two to four hours. About 4:00 a.m., S. N. heard the screen on the master bedroom window in defendant’s apartment being pushed out and saw the screen fall from above to the ground. Some clothing was thrown out of the window.

Early New Year’s Day, A. J. and her boyfriend were going to breakfast when they saw a woman, J. N., running past them, asking them to call the police. She was bruised, had a black eye, and seemed frantic. J. N. kept running. A. J. called 911 and her boyfriend drove and caught up with J. N. who agreed to wait for the police in their car. J. N. was confused and said she did not want to talk about anything.

When Sacramento Sheriff’s Deputy Tracey Jacobs arrived, she noticed obvious injuries to J. N.’s face. J. N. seemed confused and disoriented. She initially refused to identify her assailant. Later, she said it was her boyfriend but still refused to name him, fearing retaliation. She did say she had jumped out of a second-story window. She was transported to the hospital.

Defendant was arrested and put in Deputy Jacobs’s patrol car. When the deputy started to read defendant his rights pursuant to Miranda,[1] defendant became very aggressive and disrespectful, interrupting the deputy and saying that he knew his rights.

After speaking with defendant and taking him to jail, the deputy contacted J. N. at the hospital. J. N. explained she initially agreed to have a threesome but C. R. went into the bathroom when C. R. became uncomfortable. J. N. followed C. R. into the bathroom and tried to talk her into doing the threesome to make defendant happy. Defendant opened the bathroom door, grabbed J. N. by the arm, and punched her in the head and face. He also hit her in the head with a mirror. He dragged her in the bedroom where he kicked and punched her until she lost consciousness. When J. N. regained consciousness, defendant told her to get out. Afraid of defendant, J. N. jumped out of the second-story window. She stopped a passerby who was driving by. J. N. told the deputy it was the fifth time defendant had beaten her with the most recent beating on December 27, 2014. She was afraid he would retaliate against her for contacting the police. The deputy obtained an emergency protective order for J. N.

Dr. Hayley Coker treated J. N. at the hospital about 9:00 a.m. on January 1, 2015. J. N. said her boyfriend had hit her in the face, kicked her in the back, choked her until she passed out, and locked her in the bedroom. She climbed out of the second-story window and yelled for strangers to call the police. J. N. told Dr. Coker that defendant had also beaten her on Saturday, December 27, 2014, hitting her in the face. As a result, she suffered a split lip and could not hear out of her left ear. Dr. Coker observed a small perforation in J. N.’s left eardrum and significant swelling and bruising to her right ear, significant bruising to her jaw and neck, and swelling and decreased range of motion to her finger on her right hand. Dr. Coker diagnosed J. N. as having suffered a mild concussion.

At the hospital, a licensed clinical social worker, Julie Weckstein, spoke with J. N. who was initially reluctant to talk. J. N. eventually told Weckstein that defendant had just beaten her and had done so on Saturday, December 27, 2014, as well. J. N. said that defendant had met a woman at a strip club and pressured J. N. to have a threesome. J. N. reluctantly agreed. When it came time to perform, she changed her mind and went into her bedroom. Angry, defendant beat her, hitting her head and mouth. When he hit her one time, she fell and lost consciousness. She had a black eye. Defendant also strangled her. When J. N. regained consciousness, she climbed out of the second-story window and asked a stranger to call the police.

Lisa Corral, a victim advocate, spoke with J. N. J. N. was afraid defendant would be released from custody and requested a no-contact order. J. N. said she was the sixth woman to have defendant’s child and all previous women had obtained restraining orders against him. J. N. described the injuries defendant had inflicted upon her on January 1, 2015. J. N. explained defendant was obsessive about having a threesome. Defendant became angry, threw her against a wall, and punched her in the face six times. She lost consciousness. When she awoke, defendant called her a “whore” and ordered her to leave. She climbed out the second story window to escape. J. N. also recounted prior incidents of abuse.

In March 2015, Corral spoke with J. N. who said she no longer wanted defendant prosecuted, explaining she and defendant were back together. J. N. never said the incident did not occur. Instead, she said her mother had pressured her to report the abuse.

At trial, J. N. claimed she became jealous of C. R., ran into her bedroom, threw objects, hit herself in the face and forehead, and jumped out the window, hurting her finger and getting scratched by tree branches on the way down to the ground. While she ran, she hit and scratched herself. When the police told her that defendant wanted nothing to do with her or their child, J. N. said she “flipped out” and decided to falsely accuse defendant of beating her.

The prosecution presented evidence of prior acts of domestic violence. M. G. married defendant in 2007 and they had two children. Their relationship ended in 2009, but at the time of trial they were still married. After M. G. was subpoenaed by the prosecution, defendant called M. G. and explained to her that she did not have to testify because they were still married. M. G. felt pressured by defendant and was uncomfortable in testifying against him. In March 2008, M. G. was pregnant. When she went to a bar to pick up defendant, they argued and the argument escalated into physical abuse. Defendant pushed M. G. against a wall and choked her for five minutes until two bouncers pulled defendant off of her.

In 2011, K. S. dated defendant and they had a child. Their relationship ended in January 2013. Initially, defendant was verbally abusive toward her. When she became pregnant, defendant physically abused her “too many” times to count. Defendant would punch, kick, and shove her. The first time, they argued about defendant staying out late. Defendant punched and choked her until she almost blacked out. In August 2012, when defendant returned home late and drunk, K. S. said one of them had to sleep on the sofa. Defendant responded by kicking K. S. across her legs using “MMA kicks.” She was so sore she could not get up and walk away. On November 1, 2012, when their child was two months old and K. S. was moving out, defendant became upset. K. S. was frightened for their child and placed her in a car seat. Defendant picked up and handed the baby to K. S. to hold while he punched K. S. in the head three times, causing K. S.’s head to bump into the child who started to cry. When K. S. grabbed her phone, defendant threatened to beat her up unless she drove him to his mother’s house. The next day, defendant and his brother arrived to help K. S. move out. When defendant saw a text on K. S.’s phone from a former boyfriend, defendant started punching and kicking K. S. and threw her down into a crib. In August 2013, when defendant showed up at her door at 4:00 a.m., she applied for a restraining order.

Defendant testified. He denied ever beating J. N. He claimed M. G. was the one who assaulted him and denied ever hitting K. S., claiming she attacked him.

On cross-examination, defendant denied that he had been combative and disrespectful toward the female deputy sheriff, denied calling her either a “bitch” or pig, denied bragging about being a gangster, and denied saying she was lucky he did not shoot her.

In rebuttal, the People played a DVD from Deputy Jacobs’s patrol car during which defendant called her names and threatened to shoot officers.

DISCUSSION

I

Admission Of Defendant’s Statements To Deputy Jacobs

Defendant contends defense counsel rendered ineffective assistance in failing to move to exclude the statements he made to Deputy Jacobs when she arrested him. We reject his claim.

In the People’s case-in-chief, the prosecutor asked Deputy Jacobs about defendant’s response after she recited his rights under Miranda. When the deputy started to explain, defense counsel interrupted, asking to approach the bench. An unreported conference was held. Thereafter, Deputy Jacobs testified, without objection, that as she read defendant his rights, defendant spoke over her, saying: “You don’t gotta read me my rights. I know my fucking rights, bitch. [¶] Shit. I’m a fucking gangster, bitch. [¶] I’m from Stockton. You’re lucky I’m in the back seat [sic] of this car. You’re lucky me and my boys aren’t strapped right now. We’d shot [sic] up, all you fucking pigs. I swear to God, I can’t wait.” Defendant also stated that he did not touch J. N. and claimed J. N. was angry because he slept with J. N.’s friend. Defendant also claimed J. N. sustained all her injuries in a car accident.[2]

On cross-examination of the deputy, defense counsel elicited that defendant consistently and repeatedly denied hitting J. N.

After defendant testified and denied having been combative and disrespectful toward Deputy Jacobs, the prosecution played a DVD of the interaction between defendant and Deputy Jacobs in the patrol car, which occurred after the deputy had taken defendant’s initial unrecorded statement.

During closing argument, the prosecutor argued defendant was a liar and had no respect toward women, citing defendant’s aggressive comments toward Deputy Jacobs.

If “a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kipp (1998) 18 Cal.4th 349, 366.)

To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. (Strickland v. Washington (1984) 466 U.S. 668,693-694 [80 L.Ed.2d 674, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694 [80 L.Ed.2d at p. 698]; Ledesma, at p. 218.) There is no need to discuss whether counsel’s performance was deficient when we can reject the claim on the ground of lack of prejudice. (People v. Kipp, supra, 18 Cal.4th at p. 366; In re Fields (1990) 51 Cal.3d 1063, 1079.)

Defendant has failed to demonstrate prejudice. Despite J. N.’s retraction of her claims that defendant physically abused her, the evidence that defendant beat J. N. on January 1, 2015, was overwhelming. J. N. immediately asked strangers to call the police, and J. N. reported the abuse to a deputy who arrived at the scene and to a doctor, a social worker, and a victim advocate at the hospital. At trial, J. N. testified that she inflicted the wounds upon herself as she ran down the street. J. N. encountered strangers on the street and asked them to call the police. A. J. described J. N. as frantic and as having a black eye and bruising. The jury easily rejected J. N.’s unbelievable story at trial. Defendant beats women, pregnant women -- he punches, chokes, and kicks them. He had previously choked his pregnant spouse. He previously beat another live-in girlfriend when she was pregnant and did so until she moved out. Although the jury did not reach a verdict on the counts charging defendant with physically abusing J. N. on December 27, 2014, any apparent inconsistency is not of concern since the jury did not decide one way or another. Defendant has not shown a reasonable probability of a more favorable outcome had defense counsel sought to exclude his statements.

II

Admission Of Prior Domestic Violence Incidents

Defendant does not dispute that the prior domestic violence evidence was admissible pursuant to Evidence Code section 1109 but contends the trial court erred in allowing such evidence to include the fact that his former spouse, M. G., and his former live-in girlfriend, K. S., were pregnant at the time he physically abused them. We reject this contention.

Defense counsel sought to exclude the fact that M. G. and K. S. were pregnant when defendant physically abused them under Evidence Code section 352. The trial court concluded that the evidence was highly probative, more probative than prejudicial, finding that the evidence was similar to the facts of the case, the incidents were not remote, and the injuries suffered by the previous victims would not overly prejudice the jury.

Evidence of other acts is generally inadmissible to prove propensity to commit the charged acts. (Evid. Code, § 1101.) Evidence Code section 1109 outlines an exception to this rule and provides 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.” (Evid. Code, § 1109, subd. (a)(1).) The statute establishes a presumptively admissible time frame of 10 years before the charged offense; an older act may also be admitted if the court finds admission of the evidence of the act is in the interest of justice. (Evid. Code, § 1109, subd. (e).)

“ ‘Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time.’ [Citation.] A trial court’s exercise of its discretion under section 352 ‘ “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)

“Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 724.) “[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)

The trial court acted well within its discretion in admitting M. G.’s and K. S.’s testimony about being pregnant during the other incidents of domestic violence. The enactment of Evidence Code section 1109 reflects the Legislature’s determination that a prior act of domestic violence is probative of current domestic violence “because of its repetitive nature” and due to problems of proof unique to the prosecution of the crime. (People v. Brown, supra, 77 Cal.App.4th at pp. 1333-1334.) These events occurred within the presumptively relevant 10-year time frame. The attack on M. G. was less inflammatory than that charged in the present case, although it did involve choking. The attacks on K. S. involved kicking, hitting, and shoving similar to that charged in the present case. The fact that both M. G. and K. S. were pregnant was no more inflammatory than the fact that J. N. was pregnant as well. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1315-1316.) There was little likelihood that the jury would confuse the incidents involving defendant’s former spouse and a former live-in girlfriend. We conclude there was no abuse of discretion.

III

Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during her closing argument, arguing that the prosecutor appealed to the jury’s passion in asking it to convict defendant because he was a predator who beat women while they are pregnant. Recognizing that defense counsel failed to object, defendant contends in the alternative that defense counsel rendered ineffective assistance in failing to object or that an objection would have been futile. Defense counsel’s performance was not deficient in choosing not to object -- there was not any prosecutorial misconduct.

The prosecutor argued that J. N. “could not have imagined that when she was six months pregnant the father of her child would beat her until she was unconscious and scare her to the point where she felt like her best option was to jump out of a two-story window. [¶] . . . [¶] But what makes this defendant’s behavior so particularly offensive is the fact that he repeatedly beat [J. N.] when she was pregnant. [¶] What makes this defendant’s conduct so offensive is the fact that this is not the first time that this man has put his hands on a pregnant woman. [¶] The defendant fancies himself to be an MMA fighter. The truth is is that he’s a wife beater. He’s a predator. He is the type of man [who] will not only put his hand on a woman, he is the type of man [who] will put his hands on a pregnant woman.” Defense counsel did not object.

“ ‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)

“ ‘[Closing] argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.) “ ‘[T]he use of derogatory epithets to describe a defendant is not necessarily misconduct.’ [Citation.] ‘A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.’ [Citation.] We have repeatedly rejected claims of prosecutorial misconduct involving the use of such epithets in guilt phase arguments.” (People v. Tully (2012) 54 Cal.4th 952, 1021, and citations therein.)

Defendant had previously beaten his pregnant spouse and another pregnant girlfriend. The prosecutor was permitted to comment on the evidence that defendant regularly beat women, and that the women he beat were pregnant, which shows that pregnancy does not deter him from attacking women. The evidence adduced at trial warranted the prosecutor’s argument. Defense counsel did not render ineffective assistance in choosing not to object and thereby potentially emphasizing the evidence that was in his client’s best interest to minimize.

IV

Cumulative Error

Defendant contends that the cumulative errors warrant reversal because they deprived him of his federal constitutional rights to due process and a fair trial. There was no error.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Duarte, J.