Filed 5/8/18 P. v. Rocharuiz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO DANIEL ROCHARUIZ,

Defendant and Appellant.


E068092

(Super.Ct.No. SWF1601142)

OPINION


APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Pedro Daniel Rocharuiz appeals his conviction of one count of misdemeanor domestic battery (Pen. Code, § 243, subd. (e)(1)) for abusing his cohabitant. We reject his contention the trial court abused its discretion by admitting evidence of two prior acts of domestic violence against the same victim. (Evid. Code, § 1109, subd. (a)(1).)
I
FACTUAL BACKGROUND
A. The Offense
Rocharuiz and his partner had lived together on and off for about four years and had one child together at the time of these events. They were in the process of separating. On June 24, 2016, she went out drinking with some friends and returned home around 2:30 or 3:00 oꞌclock the next morning. Rocharuiz was angry she had gone out, but she went back to the bedroom to go to sleep.
She awoke to find Rocharuiz sitting on top of her and beating her. During the fight, Rocharuiz inflicted a serious head wound, though his partner couldn’t remember how he did it. She recalled only that she was sleeping and “all of a sudden [he] was on top of me,” pulling her hair, and “beating my fucking face in.” She ran outside and called 911. She had a large bruise and a bleeding gash on the left side of her face.
She told the officer who responded Rocharuiz had hit her about five or six times in the past. She said earlier the same day he had stepped on her wrist with his foot and strangled her. However, she told the police she did not want Rocharuiz prosecuted.
That’s one version of events. Rocharuiz’s partner told another version at trial. There, she said she had returned home very drunk, found the door locked, and pounded on the door. When Rocharuiz let her in, she commenced yelling at him and pushed him against the wall. He retreated to the bedroom, but she pushed her way in and jumped on top of him on the bed. She said she scratched him multiple times and he responded by hitting her in the face. She then went outside and called 911.
B. The Uncharged Prior Acts
The People presented evidence Rocharuiz had committed two prior, uncharged assaults against his partner to prove his propensity for acts of domestic violence. Those incidents follow.
Three days after the assault, Rocharuiz’s partner sought a restraining order against him. She claimed Rocharuiz had assaulted her in December 2014. She said they had an argument and he pushed her against a wall, grabbed her by the hair, banged her head against the wall, punched her in the face, and kicked her. She tried to call 911 with her cell phone, but he broke it. She sought medical treatment for her injuries. At trial, she admitted she made those claims, but said the “incident was fictitious” and said “I was instructed by my attorney that if I wanted custody to file a restraining order.”
In September 2014, she went to the hospital for treatment of a swollen jaw and various other injuries to her foot, leg, lower back, arm, wrist, and hand. She told a nurse Rocharuiz had hit her and the nurse called the police. She then told the police Rocharuiz had gotten angry when she pressed him to resolve an earlier argument. She reported he said he would “smash her face in” and “fucking kill her.” He punched her in the jaw. He then punched her face multiple times and submerged her head in a bucket of water. She said she could not breathe and felt like she was going to pass out.
At trial, she denied Rocharuiz had injured her. She testified she had gotten into a fight with some women at a bar in Pasadena due to a misunderstanding. She said she had blamed Rocharuiz because she was mad at him, wanted sympathy from the nurse, and was afraid of getting into trouble over the altercation at the bar.
Neither prior incident resulted in criminal charges against Rocharuiz.
C. Admission of Evidence of the Prior Acts
The People filed a pretrial motion to introduce evidence of Rocharuiz’s prior acts of violence as propensity evidence under Evidence Code section 1109, subdivision (a)(1). Rocharuiz objected the prejudice of admitting the evidence would substantially outweigh its probative value.
The trial court conducted an Evidence Code section 352 analysis on the record and allowed the evidence. “While I think that the defense argument is a valid concern that the allegations of prior conduct suggest conduct that’s substantially more serious than the current conduct, which might lead a juror who is unable to follow the limiting instructions to consider that, well, perhaps he should be convicted for something even if he is not good for the current conduct. That’s – I think that is a valid concern. But I think further that given the public policy expressed by 1109 . . . that the seriousness of the prior conduct is only one factor to be considered in evaluating whether the probative value of the conduct does outweigh the prejudicial nature of the same evidence, and I think in this particular case that assuming the evidence is brought out as – in what I’ll treat as an offer of proof by the prosecution, that a jury that’s properly following the Court’s instructions, limiting the purpose and use of 1109 evidence, would not convict solely because of the existence of prior conduct, but only factoring that into whether or not there is a propensity for commission of such conduct and determining whether or not it did occur on the current instance.” The court concluded the evidence was “strongly probative of that propensity under 1109, and that outweighs the inherently prejudicial nature of that conduct.”
After the close of evidence, the trial court instructed the jury how to consider propensity evidence. “The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] . . . [¶] 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 you decide 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 upon that decision, also conclude the defendant was likely to commit and did commit Penal Code section – a violation of Penal Code section 273.5, subdivision (a) or the lesser included charge of Penal Code section 243(e)(1) as charged here. If you conclude the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove Defendant is guilty of Penal Code section 273.5, subdivision (a) or the lesser included charge of Penal Code section 243(e)(1). The People must still prove each charge beyond a reasonable doubt.”
D. The Verdict and Sentence
The People charged Rocharuiz with inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), but the jury convicted him of the lesser included charge—misdemeanor domestic battery (Pen. Code § 243, subd. (e)(1)).
The court granted appellant three years of informal probation, on the condition he serve 20 days of jail time on work release, as well as various other standard terms and conditions.
II
DISCUSSION
Rocharuiz concedes evidence of prior uncharged incidents of domestic violence is admissible to prove a defendant charged with acts of domestic violence has a propensity to commit acts of domestic violence. (Evid. Code, § 1109, subd. (a)(1).) He argues only that the trial court abused its discretion by allowing such evidence in this case because the potential for prejudice substantially outweighed the probative value of the evidence. (Evid. Code, § 352.)
“Under Evidence Code section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence. The trial court has discretion to exclude the evidence if its probative value is outweighed by a danger of undue prejudice or confusing the jury, or would result in an undue consumption of time. (Evid. Code, §§ 1109, subd. (a)(1), 352.)” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.)
“Domestic violence” is “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); Evid. Code, § 1109, subd. (d).) “Abuse” is “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a).)
“Under Evidence Code section 352, the court has discretion to exclude relevant 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.”’ [Citation.] “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.” (People v. Rucker, supra, 126 Cal.App.4th at p. 1119.)
“Prejudicial” is not synonymous with “damaging.” (People v. Bolin (1998) 18 Cal.4th 297, 320.) Prejudice refers to evidence that “poses an intolerable risk to the fairness of the proceedings or reliability of the outcome.” (People v. Booker (2011) 51 Cal.4th 141, 188.) In determining prejudice, the trial court considers “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, supra, 126 Cal.App.4th at p. 1119.) We will reverse the trial court’s exercise of discretion only if we judge it was arbitrary, capricious, or patently absurd and the ruling resulted in a miscarriage of justice. (People v. Winbush (2017) 2 Cal.5th 402, 469.)
We cannot reach that conclusion here. All three of the domestic violence incidents in this case bear substantial similarities. Each incident involved a physical altercation between the same two people during the same long-term relationship. In each case, Rocharuiz’s partner reported he had gotten angry with her and struck her in the head or face. There was no evidence any of the incidents involved a weapon. And in each case, Rocharuiz injured his partner badly enough she needed to get medical attention. (People v. Morton (2008) 159 Cal.App.4th 239, 246-247 [evidence of prior uncharged offense admissible because “there were substantial similarities between the charged and uncharged incidents, . . . [where defendant] is described as first striking his victim in the face with a closed fist, and then choking her”].)
Rocharuiz argues the prior incidents in his case were more serious than the charged offense and points out that the trial court agreed. Regardless, the trial court concluded the incidents were not so different that introducing the evidence would be unduly prejudicial. We agree with that conclusion. We also view the incidents as substantially similar. Though in one prior incident, Rocharuiz held his partner’s head under water, the attack in this case appears to have been brutal as well, as the victim reported she suffered a head laceration from the beating. We conclude the incidents were sufficiently similar to warrant admitting evidence of the uncharged offenses under Evidence Code section 1109, subdivision (a).
Nor can we conclude the earlier incidents were too remote in time. The first two incidents occurred in late 2014 (September and December) and the third incident in June 2016. They are near enough in the context of a single long-term relationship to support the trial court’s decision to treat them as strongly probative evidence of Rocharuiz’s propensity to commit acts of domestic violence. As the court wrote in People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028, when it enacted Evidence Code section 1109, the Legislature found “‘[t]he 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. Hoover, at pp. 1027-1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.) We conclude the trial court did not abuse its discretion by admitting evidence Rocharuiz had abused his partner on two prior occasions over a two-year period.
Even if the trial court had erred by admitting the evidence, we conclude it is not reasonably probable the jury would have reached a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.) Rocharuiz’s partner gave several recorded statements about the assault. She told a 911 dispatcher and a police officer that Rocharuiz had attacked her without provocation. The jury evidently believed those statements. And though she retracted her story at trial, her new story was a transparent attempt to protect Rocharuiz. We conclude there is no reasonable probability the jury would have reached a more favorable verdict even had the trial court excluded the evidence of his prior acts of domestic violence.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICAL REPORTS

SLOUGH
J.
We concur:


McKINSTER
Acting P. J.


MILLER
J.