Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA083570, Tia G. Fisher, Judge. Affirmed.
Richard C. Neuhoff and Barbara A. Zuras, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Ryan T. Booker appeals from the judgment entered following his convictions by jury on count 1 – assault with a firearm with personal use of a firearm (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a)) and count 2 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), with admissions he suffered three prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 16 years. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
a. The Present Offenses.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that for a year prior to June 17, 2008, Andrea Miller and appellant had a romantic and sexual relationship. At some point he moved into her residence and the two began living together. However, on June 17, 2008, Miller told appellant to move out, and he began moving his belongings from the residence’s garage to a truck.
Christopher Conlogue, a locksmith, was doing work at the residence. Conlogue testified he was walking into the kitchen to do work on an open sliding glass door. A kitchen window was open. Conlogue saw appellant exiting the garage and heard him arguing with Miller. Miller told appellant to just leave. Conlogue heard appellant cock a gun, “pull back the slide, the bolt action, ” then saw appellant holding a nine-millimeter gun in his right hand. Conlogue had been in the army for two years and had served in Iraq for four-and-a-half months. He was an expert marksman concerning nine-millimeter weapons. In Conlogue’s experience, the sound made by a gun being cocked was distinctive and unmistakable.
Conlogue testified at the preliminary hearing that the sliding glass door was closed. He testified at trial to the effect that he had misspoken at the preliminary hearing, and the door was in fact open. He explained at trial that if the sliding glass door had been closed, he would not have been able to open it because he had removed a lock from it.
Conlogue saw Miller turn around. Appellant pushed her to the ground about six feet from the sliding glass door. He pointed the gun directly in Miller’s face and within a foot of it. Appellant then lifted Miller, threw her into a planter area, and pointed the gun at her face again. Miller repeatedly said no and asked appellant to stop, and she was terrified.
At trial, Miller denied appellant had pointed a gun at her. According to Miller, she and appellant argued in the garage, then she exited. Miller turned around suddenly because she had heard a telephone ringing. Appellant then charged at her because they had been arguing and she would not let him take the rest of his things until they resolved an issue. Miller grabbed appellant, he grabbed her, and the two struggled. Miller told appellant to stop, and pushed him away. She walked into the house, her brother stepped between appellant and Miller, and appellant continued packing and eventually walked away.
Miller denied telling Orlando Miller (Orlando), her father, that appellant had pointed a gun at her but that it was okay because it was not loaded. She told a detective that most of the problems in Miller’s relationship pertained to bills and appellant’s dating of other women. At one point, Miller asked for leniency for appellant.
A detective testified as follows. Miller told the detective that Miller and appellant had a dating, sexual relationship. On June 17, 2008, appellant pulled a gun from his waistband and pointed it at Miller’s face. Miller did not want police involved in this case because it was her personal business.
A domestic violence expert testified that domestic violence victims often recanted prior statements about incidents and/or minimized what had happened.
b. Uncharged Misconduct.
Miller denied at trial that appellant had ever threatened her. Ollie Carlock testified that, on the night of January 12, 2008, Carlock was driving in Long Beach when an SUV swerved in front of him. Miller exited the SUV and began walking in oncoming traffic, asking help from motorists. Miller was afraid and seemed desperate. Carlock let Miller enter her car and Carlock drove away. Appellant followed and drove alongside for awhile. Miller used Carlock’s phone to call Miller’s mother.
Sharon White, Miller’s mother, testified that about 10:45 p.m. on January 12, 2008, Miller called White, told her that appellant had threatened to drown Miller, and asked White to come get her.
Miller denied that appellant had ever placed her in a chokehold. Gary Natisch testified that on June 5, 2008, he was driving a vehicle on a street in San Dimas and had stopped for a red light. When the light turned green, an SUV being driven by Miller and containing appellant suddenly swerved and almost hit Natisch’s car. Appellant was yelling profanities at Miller. Appellant, using his left arm, put her in a chokehold. Natisch indicated appellant was “looking to choke her out.” Appellant then began punching Miller with his right hand.
2. Defense and Rebuttal Evidence.
In defense, Miller’s sister, Brittany Miller (Brittany) testified that on June 17, 2008, appellant, who was Brittany’s cousin, was arguing with Miller in the closed garage. Miller later opened the garage door so appellant could continue moving things. Miller turned to go into the house when appellant’s phone rang. Miller then began arguing about who had called.
Appellant went towards Miller and she grabbed his arms to stop him. They pushed each other, Miller pushed appellant away, someone intervened, and Miller entered the house. Appellant had only his phone in his hands. Brittany loved Miller and wanted to help Miller and appellant. Brittany denied telling her father that Brittany had been in the truck when appellant and Miller were arguing. Brittany claimed she had never spoken with her father about the argument. However, Brittany also testified she told her father that appellant and Miller were just arguing. In rebuttal, Orlando, Brittany’s father, testified that on June 17, 2008, Brittany told Orlando that she had been loading the truck and had not seen anything.
CONTENTIONS
Appellant claims (1) there was insufficient evidence that the gun was loaded, (2) the trial court erroneously failed to instruct on assault as a lesser included offense of count 1, because there was evidence appellant did not use a gun, (3) the trial court erroneously failed to instruct on assault as a lesser included offense of count 1, because there was evidence that any gun appellant used was not loaded, (4) the trial court erroneously admitted uncharged domestic violence evidence, (5) appellant was denied effective assistance of counsel, and (6) cumulative prejudicial error occurred.
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Conviction on Count 1.
Appellant claims there is insufficient evidence supporting his conviction on count 1, because there was insufficient evidence the gun was loaded. We disagree. “ ‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’... ‘[T]o constitute an assault the wrongdoer must have a present ability to injure. Hence, threatening to shoot a person with an unloaded gun would not be an assault[.]’ [Citation.]” (People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325.)
Whether a gun is loaded is a question of fact for the jury, and the prosecution can establish the matter by circumstantial evidence. (People v. Orr (1974) 43 Cal.App.3d 666, 672.) A defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that the defendant used a loaded weapon. (People v. Rodriguez (1999) 20 Cal.4th 1, 13.) Moreover, “[o]ur power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.]” (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)
Conlogue testified appellant and Miller had been arguing, Conlogue subsequently heard appellant cock a gun, pulling its slide back, then saw appellant holding a nine-millimeter gun. Miller turned around. Appellant pushed her to the ground and pointed a gun in her face. Appellant then threw her into a planter area and pointed the gun at her again. In these circumstances, the pointings of the gun at Miller implied a threat to shoot her.
Appellant left the scene (apparently without the truck) in circumstances which the jury reasonably could have concluded provided evidence of flight and therefore consciousness of guilt. There was substantial evidence that in January 2008, appellant had threatened to kill Miller by drowning her and that, on June 5, 2008, he had placed her in a life-threatening chokehold. Based on the totality of the evidence, we conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that the gun was loaded (cf. People v. Rodriguez, supra, 20 Cal.4th at pp. 7, 13-14; People v. Schwartz, supra, 2 Cal.App.4th at pp. 1325-1326) and, therefore, that appellant committed assault with a firearm.
2. The Trial Court Did Not Prejudicially Err by Failing to Instruct On Assault.
Appellant presents related claims that the trial court erred by failing to instruct on assault as a lesser included offense of assault with a firearm because there was evidence he did not use or have a firearm and, in the alternative, there was evidence that any firearm he used was unloaded. We conclude otherwise.
Even if the trial court erred by failing to instruct on assault because appellant did not use or have a firearm, it does not follow that we must reverse the judgment. The jury necessarily rejected any evidence that appellant did not use or have a firearm when the jury found true the personal firearm use allegation as to count 1, and when the jury convicted appellant of possession of a firearm by a felon (count 2). Any trial court error in failing to instruct on assault as a lesser included offense in the face of any evidence that appellant did not use or have a firearm was not prejudicial. (Cf. People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956) 46 Cal.2d 818, 836.)
As to appellant’s claim that the trial court erred by failing to instruct on assault as a lesser included offense because there was evidence that any firearm he used was unloaded, appellant concedes cases have held that the use of an unloaded weapon cannot result in a conviction for simple assault (where, as here, the firearm was not used as a bludgeon). (See People v. Schwartz, supra, 2 Cal.App.4th at p. 1325.) Accordingly, the trial court did not err by failing to instruct on assault as a lesser included offense.
Moreover, the People presented substantial evidence that the firearm appellant used was loaded. Appellant presented evidence, not that a firearm he had was unloaded, but that he had no firearm. There was no substantial evidence that appellant had or used a firearm which was unloaded. The trial court did not err by failing to give an assault instruction because there was no substantial evidence to support such an instruction. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Finally, appellant suggests there were additional acts not involving his use of a weapon (e.g., appellant’s pushing Miller down and later tossing her) that could have served as a basis for an assault instruction. There is no need to reach the issue. The jury heard all the evidence concerning any additional acts, found true the personal firearm use allegation as to count 1, and convicted appellant on count 2. We believe if the court had instructed the jury as suggested by appellant, the jury would have convicted appellant of assault with a firearm anyway, i.e., there is no reasonable probability that the jury would have reached a result more favorable to appellant. (Cf. People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Watson, supra, 46 Cal.2d at p. 836.)
3. The Trial Court Properly Admitted Uncharged Misconduct Evidence.
a. Pertinent Facts.
On September 30, 2008, appellant filed a motion in limine challenging the admissibility of evidence of the above mentioned June 5, 2008 incident on the ground such evidence was excludable under Evidence Code sections 1109 and 352. On October 21, 2008, the People filed a motion in limine seeking admission of evidence of the January 12 and June 5, 2008 incidents under Evidence Code section 1109.
On October 21, 2008, the court, considering before trial the above uncharged misconduct evidence, indicated the probative value of the evidence would increase in proportion to the extent Miller recanted, the court needed to weigh the matter under Evidence Code section 352, and the court would reserve ruling on the issues until after it heard Miller testify.
After the court heard a portion of Miller’s testimony, appellant argued the uncharged misconduct was irrelevant and excludable under Evidence Code section 352. The People argued the evidence was admissible on the issue of Miller’s credibility because her recanting testimony, and her testimony minimizing the present offenses, was a fabrication.
The court indicated as follows. Miller essentially had testified that an argument led to a very brief mutual grabbing, but that no weapon was involved. By enacting Evidence Code section 1109, the Legislature had spoken on the admissibility of domestic violence evidence, but the court had to consider whether the evidence was excludable under Evidence Code section 352. The evidence was highly probative because Miller had essentially claimed that nothing more than shoving had occurred. The evidence was also highly probative as to her credibility. Both incidents involved “ominous threatening, violent conduct” in the context of a domestic romantic relationship. The uncharged misconduct corroborated the People’s case, involved appellant and Miller, and was not remote in time.
The court also indicated as follows. Miller was an extremely articulate and very strong witness. The jury, after considering the uncharged misconduct and Miller’s recanting and minimizing, might choose to believe Miller. It was critical for the jury to see the dynamic of the relationship between appellant and Miller starting in January 2008 and leading to the present offenses, the uncharged misconduct was extremely probative on this issue, and the probative value of the uncharged misconduct outweighed any prejudicial impact. The court ruled the uncharged misconduct evidence was admissible.
b. Analysis.
Appellant claims the trial court erred by admitting the uncharged misconduct evidence. We disagree. There is no dispute that, in the present case, appellant was “accused of an offense involving domestic violence” within the meaning of Evidence Code section 1109, subdivision (a), and that the uncharged misconduct evidence was “evidence of the defendant’s commission of other domestic violence” within the meaning of that subdivision. Simply put, our Legislature has determined that such propensity evidence is admissible notwithstanding Evidence Code section 1101, subdivision (a), to prove conduct on a specified occasion, here, appellant’s commission of assault with a firearm. Moreover, the evidence was relevant and admissible to impeach Miller to the extent she testified appellant had never threatened her, and to the extent she testified appellant had never put her in a chokehold (Evid. Code, § 780, subd. (h)).
Evidence Code section 1109, states, in relevant part, “(a)(1)... 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.”
Evidence Code section 1101, states, “(a) Except as provided in this section and in Section... 1109, evidence of a person’s character or a trait of his or her character... is inadmissible when offered to prove his or her conduct on a specified occasion.”
The threat and chokehold were less violent than appellant’s repeated acts of pointing a loaded firearm at Miller. The uncharged misconduct evidence came from independent sources. The court concluded Miller was such a strong witness that the jury might have disbelieved the uncharged misconduct evidence entirely. Appellant cites no case holding that the fact that uncharged misconduct did not lead to convictions renders uncharged misconduct evidence, which is otherwise admissible under Evidence Code sections 1109 and 352, inadmissible.
The trial court expressly weighed any prejudice against probative value, and we believe the record reflects the trial court understood and fulfilled its responsibilities under Evidence Code section 352. (See People v. Williams (1997) 16 Cal.4th 153, 213.) An appellate court applies the abuse of discretion standard of review to any ruling by a trial court concerning the application of Evidence Code section 352. (Cf. People v. Waidla (2000) 22 Cal.4th 690, 723-724.) The trial court did not abuse its discretion by refusing to exclude the uncharged misconduct evidence. Moreover, the application of ordinary rules of evidence, as here, did not impermissibly infringe on appellant’s right to due process. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Appellant also claims the trial court erred in violation of his right to due process by giving to the jury CALCRIM No. 852. He argues it permitted the jury to impermissibly infer, from the evidence of uncharged misconduct which did not involve a firearm, appellant’s commission of assault with a firearm and Miller’s lack of credibility. We disagree.
That instruction read: “The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically an incident on June 5, 2008 in San Dimas/Glendora and an incident on January 12, 2008 in Long Beach. [¶]... [¶] 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. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, 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 and did commit Assault with a Firearm, 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 Assault with a Firearm. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the credibility of witness Andrea Miller.” Appellant concedes this instruction, by its terms, authorized the jury to consider the uncharged misconduct to determine whether appellant used a firearm and for impeachment purposes.
Again, there is no dispute that appellant was “accused of an offense involving domestic violence” within the meaning of Evidence Code section 1109, subdivision (a), and that the uncharged misconduct evidence was “evidence of the defendant’s commission of other domestic violence” within the meaning of that subdivision. CALCRIM No. 852, based on Evidence Code section 1109, “... 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 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 the 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.” (People v. Reyes (2008) 160 Cal.App.4th 246, 252 (Reyes).)
To the extent the instruction told the jury that they could infer, from the evidence of uncharged misconduct not involving a firearm, appellant’s conduct on a specified occasion, i.e., his commission of assault with a firearm, the instruction did not violate appellant’s right to due process. (Cf. People v. Johnson (2008) 164 Cal.App.4th 731, 738-740; Reyes, supra, 160 Cal.App.4th at pp. 250-253.) To the extent the instruction told the jury to consider the uncharged misconduct evidence on the issue of Miller’s credibility, said evidence flatly contradicted Miller’s testimony that she had never been threatened and had never been placed in a chokehold, and the jury rationally was entitled to consider that contradiction as it related to the credibility of her testimony that appellant did not commit the present offenses.
We note the court’s instruction on the credibility of a witness’s testimony (CALCRIM No. 226) told the jury they could consider whether the witness had made prior inconsistent statements. Finally, in light of our resolution of appellant’s above contentions on their merits, we reject appellant’s remaining contentions that he was denied effective assistance of counsel by his trial counsel’s failure to preserve issues for appeal, and that cumulative prejudicial error occurred.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.