Filed 10/18/17 P. v. Franco CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Brendon W. Marshall, and Joy Utomi, Deputies Attorney General, for Plaintiff and Respondent.

On April 25, 2016, a jury convicted defendant and appellant Dany Rene Franco of inflicting corporal injury on a cohabitant resulting in a traumatic condition (Pen. Code, §§ 243, subd. (f)(10), 273.5, subd. (a); count 1), dissuading a witness (Pen. Code, § 136.1, subd. (b); count 2), false imprisonment (Pen. Code, § 236; count 3), and violating a protective order (Pen. Code, § 166, subd. (c)(1); counts 5 and 6). It further found true the allegations that defendant inflicted great bodily injury during the commission of count 1 (Pen. Code, §§ 12022.7, subd. (e), 1192.7, subd. (c)(8)), and that he used force as to count 2 (Pen. Code, § 136.1, subd. (c)(1)). The trial court sentenced defendant to state prison for a total term of 12 years eight months. He appeals, contending the court erred in allowing testimony of prior uncharged acts of domestic violence (Evid. Code, § 1109) and refusing to stay the sentence on count 3 pursuant to Penal Code section 654. Finding no error, we affirm.

I. FACTUAL BACKGROUND

The victim met the defendant in October 2014. Two months later, the two began “an intense relationship.” Defendant moved into her home, and they spent all of their time together. In February 2015, a violent incident occurred when defendant straddled the victim, placed both hands around her neck, and repeatedly smashed her head into the ground. The back of her head was injured, and her hair was bloody and matted. The area of the injury was too painful to touch, and she could not shower or wash the wound. She also suffered a gash on her face. Defendant helped the victim clean her injuries and put butterfly bandages on her face. She did not call the police because she was embarrassed and he begged her not to do so, claiming that he would go to jail.

On March 3, 2015, a second violent incident happened. The victim decided to tell defendant to move out of her home because she was exhausted from fighting all the time. She woke up around 5:30 a.m. and began searching for her cell phone. Defendant woke up and yelled, “What the fuck are you doing?” The victim replied that she was looking for her headphones. Deciding that she was “done being talked to that way,” she grabbed defendant’s backpack and began placing his clothes inside. Defendant jumped out of bed, grabbed the backpack out of her hand, and threw it across the room. She told him that she was “done and he had to go,” but he refused. The two argued, and defendant punched her in the face. The victim ran to the bathroom and saw that her face was bleeding. She said, “‘I’m calling the cops, that’s it.’” She grabbed her cell phone, and defendant wrestled for it, taking it from her. She the grabbed the house telephone, but defendant forcefully took it out of her hands, “ripped the battery out the back and threw it.”

The victim ran downstairs, opened the front door, and screamed “help” twice. Defendant dragged her back inside and slammed the door shut. She then ran to the back sliding glass door, opened it, and screamed for help. Again, defendant slammed the door shut. She ran to the garage door to get to her car, but defendant “ripped” off the door handle before she could open it. Knowing that she could not get out of her house, the victim told defendant, “‘It’s okay, I’m not going to go to the cops, I just want to go to the hospital and get my face fixed.’” While keeping the victim pinned down, defendant apologized and said he would put butterfly bandages on her face. He told her that she could get treatment at a clinic where she was receiving scar revision treatments for the facial scar he inflicted the previous month. Because she wanted to be treated at the hospital, he allowed her to drive there; however, he went with her. The victim received treatment at Riverside Community Hospital for a three- to four-centimeter laceration with an underlying contusion on her left cheek. The physician’s assistant who treated her called the sheriff’s department. Deputy Sheriff Jason Hughes opined that the victim’s injuries and demeanor were consistent with her statements of being a victim of domestic violence. The deputy located defendant in the front seat of the victim’s car, in possession of the victim’s keys.

Following the March incident, defendant apologized and told the victim he would never do it again. She believed him, and they resumed their relationship. She began keeping a diary and described her life as an emotional roller coaster. On one occasion, the victim complained that having sex was painful and told defendant to stop, but he refused. He told her to “‘[b]e strong, be strong.’”

The parties stipulated that on April 29, 2015, defendant was personally served with a criminal protective order protecting the victim. The victim testified that defendant violated the order on several occasions by calling her from blocked numbers, writing her letters, and appearing at her house randomly.

Defendant’s ex-wife described the abuse she endured at the hands of defendant. She testified that she met defendant in 2007 when she was 16 years old and he was 22. The two began dating, and they had a good relationship until 2008, when she became pregnant.[1] One day, the ex-wife answered defendant’s cell phone, and he started screaming at her to never touch his phone. He called her a “fucking bitch” and told her she was “pathetic.” When she started to cry, he went upstairs.

The ex-wife testified that defendant hit her for the first time during an argument. When she saw his hand move, she quickly turned her head and he hit her ear. She ran outside and contacted a family friend. Later, he promised her that he would never do it again. He did not keep his promise. After the ex-wife gave birth to their first child in October 2008, she was walking with defendant when he kicked her behind the knee. She started running, and he told her to “‘fucking stop right now.’” When she stopped, he slapped her “back and forth” across her face until she fell into some bushes. She never reported this incident to the police because he threatened to kill himself if she did.

Another incident happened while the ex-wife was in the hospital following a cesarean section. She was talking to a male friend on her cell phone when defendant brought their son to visit. Upon discovering who she was talking to, he grabbed the phone and punched her in the face, breaking her lip.

In 2009, the abuse continued when she was pregnant with their second child. The ex-wife recalled being at a barbeque at defendant’s parents’ house. She was grilling the meat and asked someone to take over because the smoke was getting in her eyes and she wanted to take a shower. Defendant followed her and asked her why she stopped barbequing. She explained that she wasn’t feeling well. They started arguing, and he pulled her off the bed, grabbed her throat, and slammed her against the wall, breaking a picture frame. Defendant picked up a piece of glass, held it to her throat, and threatened to kill her. At that point, defendant’s father and sister began banging on the bedroom door, trying to get in. The ex-wife grabbed a piece of glass and cut defendant’s finger so she could escape.

The ex-wife testified that defendant had hit her several times. She recalled an incident in 2010 when she was driving her car with defendant and her youngest son. The two were arguing, and defendant told their son that the ex-wife was a “fucking whore” who was only good for “sleeping with men.” She slapped defendant’s face, and he responded by punching her in the eye, causing her to pull over and stop because she temporarily lost sight in that eye. Defendant always apologized. He would tell her, “‘I’m so sorry, babe. I love you and I love our family. I promise I won’t do this again. If you ever leave me, I’ll kill myself. You and my family, that’s all that means the most to me in this world.’”

The ex-wife testified that defendant would forcibly have sex with her. In May 2009, during an argument, defendant grabbed her, bent her over, ripped off her pants and underwear, and had sex with her without her consent. She recalled defendant raped her “[a]bout three to four times,” telling her to “‘[j]ust take it.’”

Christian Vaughan, a detective with the Riverside Police Department, testified as a domestic violence expert. He described the cycles of domestic violence, theories of power and control, and stated that domestic violence victims rarely report the offenses to law enforcement because they want to preserve the relationship.

Defendant’s sister testified on defendant’s behalf. She opined that defendant was a peaceful person, and that she had never seen defendant become verbally abusive or physically violent with the victim. She admitted texting the victim during the pendency of the case and begging her not to testify because “they can’t charge him with anything” if she did not testify.

II. DISCUSSION

A. The Trial Court Properly Admitted the Ex-wife’s Testimony Under Evidence Code Section 1109.

Defendant contends the trial court erred by allowing the ex-wife to testify about prior uncharged acts of domestic violence pursuant to Evidence Code[2] section 1109. He argues that the ex-wife’s testimony should have been excluded pursuant to section 352. We disagree.

1. The proceedings below.

Prior to trial, the prosecution filed a trial brief and motions in limine to admit evidence of defendant’s previous uncharged acts of domestic violence towards his ex-wife pursuant to section 1109.

The trial court held a hearing on the motions and defense counsel argued that the ex-wife’s testimony should be excluded pursuant to section 352. The trial court disagreed and found the evidence admissible. However, there were certain matters that the trial court was willing to reconsider in a section 402 hearing: “Let me just articulate that matters of physical violence, intimidation, control, things of that sort in the context of that relationship I think are admissible. [¶] Things such as smoking marijuana, forcing somebody to take drugs, abusing the family dog, things of that sort, I think that’s tenuous, and I don’t see necessarily the probative value in that at all.” The court later added: “I want a [section] 402 hearing, okay. I want [the ex-wife] here and I want you to establish a foundation how all this interconnects. [¶] The Defense may not want one, but the Court wants to make sure that this is admissible evidence pursuant to [section] 352. So I want to know exactly why the People believe the smoking of marijuana, abusing the dog ties in with a pattern of domestic abuse, okay. [¶] . . . [¶] So I am going to just write on my copy of the trial brief coming from the People, ‘352/402.’ Meaning that [section] 352 is reserved, and I need a [section] 402 to hear that which should be excluded. But I’m giving everybody heads up, [section] 1109 applies to [the ex-wife]; it’s not remote; it is probative; it’s legislatively authorized. And we’ll proceed in that regard, to what extent certain items will be knocked out, I think that’s subject to a [section] 402 hearing and also [section] 352 examination by the Court, okay. Fair enough? Everybody understand that?” Both counsel agreed. Defense counsel reiterated defendant’s objection to the admission of any items and the court replied: “You made that very clear. Understood. It’s not this [section] 352 as to bits and pieces of it; it’s an objection as to all of it. Understood. So noted. [¶] And so we’re clear on that, that objection has been overruled, and your request to exclude is denied.” Defense counsel never requested a section 402 hearing. Instead, counsel chose to attempt to discredit the ex-wife through cross-examination.

2. Analysis.

Preliminarily, we agree with defendant that the issue was preserved for appeal. Defense counsel objected to admission of the prior acts evidence at the pretrial hearing. The trial court overruled the objection but invited defense counsel to renew the objection to evidence of marijuana smoking and abuse of the dog in a section 402 hearing. Defendant did not do so; however, he is not challenging the admission of evidence of marijuana smoking and abuse of the dog. He is challenging the matters of physical violence, intimidation, and control, in the context of his relationship with the ex-wife. Those matters were ruled admissible over defendant’s objection at the pretrial hearing, and defendant may challenge the court’s ruling on appeal.

Regardless, defendant’s contention fails. “Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a specified occasion. [Citations.]” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159; see § 1101, subd. (a).) However, section 1109, which concerns domestic violence, is a specific exception to the general rule.[3] (People v. Villatoro, supra, at p. 1159; see People v. James (2010) 191 Cal.App.4th 478, 482.)

Subject to exceptions not applicable here, Evidence Code section 1109 allows the admission of evidence of uncharged domestic violence “in a criminal action in which the defendant is accused of an offense involving domestic violence . . . .” (Evid. Code, § 1109, subd. (a).) As used in Evidence Code section 1109, “‘[d]omestic violence’ has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to [Evidence Code] Section 352 . . . ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).) Penal Code section 13700, as relevant here, provides: “(b) ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship . . . .” (Pen. Code, § 13700, subd. (b).)

“When an objection to evidence is raised under . . . section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers “substantially outweigh” probative value, the objection must be overruled. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609.) “The governing test . . . evaluates the risk of ‘undue’ prejudice, that is, ‘“evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,”’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’ [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A trial court enjoys broad discretion in assessing probative value versus prejudicial effect, and its exercise of that discretion will not be disturbed on appeal except on a showing the court exceeded the bounds of reason, all of the circumstances being considered. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Giminez (1975) 14 Cal.3d 68, 72.) The trial court’s discretion to exclude the propensity evidence under section 352 saves section 1109 from a due process challenge. (People v. Brown (2011) 192 Cal.App.4th 1222, 1233, fn. 14; People v. Johnson, supra, 77 Cal.App.4th at pp. 418-420; cf. People v. Falsetta (1999) 21 Cal.4th 903, 917.)

Here, we find no abuse of discretion in the admission of the propensity evidence. Defendant’s prior uncharged acts of violence against his ex-wife included behavior similar to that alleged in this case, tending to show defendant’s propensity to become physically violent with women with whom he is romantically involved. Both the ex-wife and the victim testified that defendant punched, choked, verbally abused, and raped them. Contrary to defendant’s assertion, the ex-wife’s testimony was not stronger or more inflammatory than the victim’s testimony about defendant’s charged acts. Although the ex-wife was a minor when she began a relationship with defendant, her relationship lasted longer and resulted in a marriage between the two. Given the length of her relationship with defendant, the ex-wife testified to more instances of domestic violence than those testified to by the victim. The uncharged conduct involving the ex-wife was not remote: it began in 2008 and continued until 2010, less than five years prior to the time when defendant began abusing the victim. Moreover, the admission of the ex-wife’s testimony was not likely to confuse the jury, did not take up a considerable amount of time, and did not result in a mini-trial on defendant’s uncharged acts. The ex-wife’s direct examination testimony only consumed approximately 23 pages of the record, compared to the victim’s 109 pages of direct examination. Evidence of the uncharged acts was not so prejudicial as to pose an intolerable risk to the fairness of defendant’s trial because both women endured violent physical beatings and sexual assaults.

Further, the jury was instructed pursuant to CALCRIM No. 852. “CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in [the present] case. . . . CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove defendant’s guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 [includes] a clarification which inures to the defendant’s benefit.” (People v. Reyes (2008) 160 Cal.App.4th 246, 252.) With respect to an analogous instruction concerning prior sexual offense evidence, our Supreme Court has held: “This instruction [(CALJIC No. 2.50.01)] will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a ‘bad person’ with a criminal disposition. [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at p. 920.)

Given the state of the evidence and jury instructions, we conclude that the trial court did not abuse its discretion in ruling that the ex-wife’s testimony was admissible under section 352.

B. The Trial Court Properly Refused to Stay the Sentence on Count 3 Pursuant to Penal Code Section 654.

Defendant contends that Penal Code section 654 bars separate punishments for dissuading a witness (count 2) and false imprisonment (count 3) because the evidence shows he committed the two offenses pursuant to a single intent and objective. We reject his contention.

1. Procedural background.

During the sentencing hearing, the trial court sentenced defendant to state prison for 12 years eight months, as follows: four years (count 1) plus five years on the great bodily injury enhancement; three years (count 2) eight months (count 3); and 180 days in county jail (counts 5 and 6) to be served concurrent to his prison sentence. Defense counsel argued that the sentences on counts 2 and 3 should be stayed pursuant to Penal Code section 654, because “the intent and objective by [defendant] in Counts 1, 2, and 3 was to exert power and control over [the victim] in an abusive relationship.” The court found Penal Code section 654 inapplicable.

2. Analysis.

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).) Penal Code section 654 “generally precludes multiple punishments for a single physical act that violates different provisions of law [citation] as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute. [Citations.]” (People v. Newman (2015) 238 Cal.App.4th 103, 111-112.) Of the exceptions to Penal Code section 654, we are concerned here with the exception for “a course of conduct if the defendant ‘“entertained multiple criminal objectives which were independent of and not merely incidental to each other.”’ [Citation.]” (Id. at p. 112.) The “multiple objectives” exception also applies where the defendant commits two crimes in pursuit of two independent, albeit simultaneous, objectives, and permits separate sentencing. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1394.)

Application of the multiple objective exception “‘“‘depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’”’” (People v. Newman, supra, 238 Cal.App.4th at p. 112.) Whether the defendant had one or more criminal objectives is a factual determination, which we review for substantial evidence. (People v. Leonard (2014) 228 Cal.App.4th 465, 499; People v. Louie (2012) 203 Cal.App.4th 388, 398.) Generally, “in the absence of some circumstance ‘foreclosing’ its sentencing discretion . . . a trial court may base its decision under [Penal Code] section 654 on any of the facts that are in evidence at trial, without regard to the verdicts.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.)

This is not a case where the evidence constrained the trial court from finding the defendant acted with a separate objective in preventing the victim from calling for help.[4] According to the domestic violence expert, abusers act out physically and/or verbally in order to retain power and control over their victims’ lives. Here, defendant may have intended to prevent the victim from reporting his conduct to law enforcement (when she grabbed the phones), or seeking help from neighbors (when she tried to run outside). However, it is also reasonable to conclude that he wanted to maintain control and power over her, to convey to her that she cannot leave the relationship or the violent situation at hand. The victim was not allowed to go to the hospital alone. Even when she went inside for treatment, defendant remained in the car with the keys. Thus, the evidence supports a finding of multiple objectives in an indivisible course of conduct. Moreover, the decision to impose a consecutive sentence on count 3 is justified as commensurate with defendant’s culpability. Defendant did more than just prevent the victim from reporting his crimes, he physically restrained her, preventing her from escaping his violence. His act of falsely imprisoning her elevated his culpability.

Under the circumstances in this case, we conclude the trial court acted within its discretion in refusing to stay the sentence on count 3 pursuant to Penal Code section 654.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MCKINSTER

J.

FIELDS

J.