Opinion
A132090
11-08-2012
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C164636)
Defendant Brian Keith Brown appeals from his convictions of corporal injury to a spouse and arson that, along with two associated sentencing enhancements, resulted in a prison sentence of 11 years eight months. He claims the trial court erred in admitting evidence of prior incidents of domestic violence. He also argues that the evidence was insufficient to support the arson conviction, and contends the court erred in refusing his request for a jury instruction on a lesser included offense. Finally, he complains of sentencing errors. We agree his sentencing credits must be modified to give him an extra day of credit. In all other respects, we affirm.
PROCEDURAL HISTORY
On October 4, 2010, an information was filed charging defendant with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) (Count One), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (Count Two), vandalism (Pen. Code, § 594, subd. (a)) (Count Three), and arson of an inhabited structure (Pen. Code, § 451, subd. (b)) (Count Four). The information also alleged enhancements for use of a deadly weapon (Pen. Code, former § 12022, subd. (b)(1)), and personal infliction of great bodily injury under circumstances involving domestic violence (Pen. Code, former § 12022.7, subd. (e)). Counts Two and Three were dismissed before trial.
On January 10, 2011, the People filed a memorandum of points and authorities seeking admission of evidence of alleged past acts of domestic violence pursuant to Evidence Code sections 1101, subdivision (b), and 1109. That same day, defendant filed his brief in opposition. The trial court found the prior acts to be relevant and admissible.
All further statutory references are to the Evidence Code except as otherwise indicated.
On January 20, 2011, both parties presented their opening statements to the jury.
On January 31, 2011, closing arguments were presented and the jury received their final jury instructions.
On February 1, 2011, the jury found defendant guilty on both counts and found the enhancement allegations to be true.
On May 13, 2011, the trial court sentenced defendant to a total term of 11 years eight months calculated as follows: four years for Count One, one year for the deadly weapon use enhancement, five years for the great bodily injury enhancement, and one year eight months for Count Four, all to run consecutively. Various fines and conditions were also imposed. Defendant was awarded a total of 328 days in sentencing credits. This appeal followed.
The abstract of judgment reflects an award of 327 days in sentencing credits.
EVIDENCE PRESENTED AT TRIAL
I. Evidence Pertaining to Count One
A. Phung Lo
The victim, Phung Lo, testified that she first met defendant in 1998. They married in 2002 and have two children together. In July 2010, they were living in the upstairs unit of a duplex apartment building in the City of Oakland. The apartment had two and a half bedrooms and one bathroom. The only entry to the apartment was through the front door. The downstairs apartment was occupied by Yin Duong and her two children, along with Bianka Brooks. Lo had known Duong and Brooks prior to their moving into the same building. Duong was a very good friend of Lo's. Lo owned a four-door green 1998 Acura Integra. Defendant had a dark blackish-grey four-door Mercedes 400 SEL.
In 2006, Lo and defendant separated and he began a relationship with Muey Saechao. Lo found out that Saechao was pregnant with defendant's child. In spite of this circumstance, Lo and defendant reconciled and were back together before Saechao's child was born. Prior to July 2010, they broke up two or three more times. Their relationship in July 2010 was "kind of rocky." Defendant did not always spend the night at home and when she asked him where he had stayed, he would say he was at a friend's house. By this time, defendant had acquired tattoos on both sides of his neck, his chest, and both of his arms. He would drink alcohol almost every weekend, but not during the week.
On July 3, 2010, Lo came home from work at around 5:30 p.m. Her children were staying with her mother because she had to work the early shift the next morning. Lo was expecting defendant's mother, Priscilla Drawsand, to come by for a visit at some point that evening.
Defendant came home to the apartment at midnight. Lo was sleeping. He smelled like he had been drinking. He came into the bedroom and asked her where she had been the previous evening. She told him that she had been with some friends visiting a friend's newborn baby. He angrily told her she was lying, which she denied. He grabbed a full water bottle on the night stand and threw it at her, hitting her left arm. The bottle rolled onto the floor and he picked it up and threw it at her again, hitting her in the same arm. At that point, he picked up a five-disk CD changer that was on the floor and threw it at her. The item was bigger than a bread box. She blocked it with her right arm and told him to stop. He then took a decorative fan that was hanging over the bed, folded it up like a stick, and began hitting her with it. He hit her more than 10 times. He continued to accuse her of lying and said she was cheating on him.
Defendant left the bedroom and went to the kitchen. He returned with a knife that was 12 to 15 inches long. He climbed on the bed and got on top of her, continuing to say that she was lying. The knife was in his hand and the blade was pointing up toward the ceiling. He told her to shut up and then he stabbed her in her left leg, on the side of her calf. She screamed and told him there was blood. He threw her off the bed. She went to the bathroom and tried to stop the bleeding. Defendant came into the bathroom and attempted to punch her in the head, but she blocked him with her arm. He asked her if she was going to tell anyone and she said she would not. He told her to clean up the blood, so she changed the sheets on the bed and tried to clean up blood that was on the rug on the hallway. She put pressure on her leg with a towel, but was not able to stop her leg from bleeding. He went back into the bedroom and passed out on the bed.
Lo went in the room and grabbed her cell phone and her car key. She went outside and sent a text message to Duong telling her what had happened. She returned to the apartment and finished cleaning up the blood. She then waited outside for defendant's mother and family members to arrive. When she saw them drive up she gave them the house key and told them she would be right back. She then got into her car and went to Duong's job. Together, they went to Kaiser Hospital. When she arrived at the hospital, she was scared to tell anyone what had happened to her because she was worried that her children could be taken away. When a nurse asked how she was injured, she stated that she fell down the stairs trying to throw away a stereo, and a piece of the stereo had cut her leg.
While she was in the hospital, defendant, Drawsand and defendant's younger brother came to see her. Defendant entered the room and yelled at her, saying: "This is what happens when you don't tell me when you go out." Lo received seven stitches in her leg and a soft cast for her right hand. At the time of trial, her leg was still bothering her because the knife had cut a nerve, causing her leg to swell. The leg would also tingle and feel numb, especially in cold weather. She wore a special boot to help her walk better.
There had been prior violent incidents involving Lo and defendant. The first was in September 2008. At the time, they were separated. Lo took the children to a gathering of defendant's family members. When they arrived, defendant asked her for gas money, and she told him that she did not have any. She left and took the children to her mother's house because she had to go to work the next day. Later that night, he kept calling her phone. When she finally picked up, she asked him what he wanted and he said not to ask him that. He told her to come and pick him up and she refused. At that point, she heard the door open and he came into the apartment. He pulled her off the bed, and choked, hit and kicked her. She sustained a black eye and had bruises on her back as well as sore ribs. She did not go to the doctor or call the police because she was scared.
A second incident occurred in April 2010. Duong and Brooks were in Lo's apartment getting their hair done when defendant came home. He went out and brought back two 12-packs of beer and went to the bedroom to drink and watch television. Later, Lo went into the room and asked him if he wanted something to eat. He did not respond. After her friends left, she went into the room and started cleaning up the beer cans. He asked where his food was and she told him he had not asked her for any food. He said she was lying and threw a can of beer at her. When she asked him to stop, he kicked her in the eye. Her eye was swollen for three days. After he left the apartment that night, Duong and Brooks came upstairs to try and help her get the swelling down in her eye. Again, she did not see a doctor or call the police due to her fear.
After the stabbing incident, Lo stayed with Duong and Brooks in their downstairs apartment because she had difficulty walking up stairs. On July 5, 2010, defendant sent her a text message stating that he was going to file for divorce on the following Monday. She did not respond. Later, he came to Duong's apartment and she agreed to the divorce, saying she was "tired of this," noting that he had stabbed her. He left the apartment. At that time, her in-laws were still staying in the upstairs apartment.
That same day, Drawsand took Lo and the children to defendant's aunt's house so that she could stay there. The following day, Drawsand took Lo to Kaiser Hospital to get some antibiotics. When they left the hospital, Drawsand drove to defendant's grandmother's house to pick up a laptop computer. After they drove away from the house, Drawsand noticed defendant was following them. He pulled next to them in his Mercedes. Drawsand told Lo to call the grandmother and ask her to come out of her house so that she could distract defendant and they could drive off. When they arrived at the house, defendant pulled up, exited his car and walked over to his mother's car. He tried to open the door nearest to Lo, but it was locked. Defendant appeared to be angry and told her to open the door. When she asked him to stop, he punched the side of the door. At that point, Drawsand drove off. As they drove, he resumed following them, trying to get in front of their car to block them. Eventually Drawsand was able to elude him. After that, Drawsand drove to the police station and she and Lo made a report. Lo told the officers that defendant had been following them, that he punched the car door, and that he was angry. She did not tell them he had stabbed her a few days earlier.
Shortly thereafter, Lo moved to another county with her children. She did not tell defendant's relatives where she had gone because she did not want them to tell him. She did not take her Acura with her when she moved because someone had informed her that the tires were slashed. Later, she asked Duong to put new tires on the car and drive it to where she was staying. Lo also learned that the stairway to her apartment had been burned on July 7, 2010. Later, she was told that a police officer had tried to send her a message through an intermediary. She contacted the officer in late July.
B. Dr. Jennifer Timm
Dr. Jennifer Timm treated Lo when she arrived at the emergency room on July 3, 2010. When she asked Lo what had happened, Lo said that she had been cleaning all night. She was carrying a television, or something similar, and tripped over a cord. The fall caused her to hurt her wrist and cut her leg. Lo was very tearful and crying. Timm thought the story sounded a little strange and tried to press her for more information, but Lo would not say anything more about what had happened. Timm ordered X-rays of the leg and used seven stitches to close the wound. She also ordered a splint for Lo's wrist.
C. Pricilla Drawsand
Drawsand testified as a hostile witness for the prosecution. She admitted she was present during defendant's preliminary hearing. She testified that she traveled from Lo's apartment to her mother's house on July 6, 2010, but said she did not remember the reason for going there. She denied having had any concerns about the well-being of Lo or the two children.
The parties stipulated that Drawsand sustained a felony conviction for welfare fraud (Welf. & Inst. Code, § 10980) on February 13, 1997. The conviction was reduced to a misdemeanor and dismissed on April 29, 2002.
Drawsand admitted she spoke with two Oakland police officers. She also admitted signing a statement for one of the officers. When she was shown a three-page police report in open court, she claimed the signatures on it were not hers. She said she had signed the last page of a police report that was only one page and a half long. She believed the three-page report was forged. She denied ever telling the officer that she believed her son had behaved violently towards Lo. She also denied stating that he was a danger to Lo or to the children. She did admit to standing between her adult daughter and her son at some point when her son approached her daughter asking where his children were. She denied calling the police on that occasion, but admitted the police did come to the house. She said she did not see her son speak to the officers after they arrived.
Drawsand testified she drove Lo to Kaiser Hospital. She denied telling an officer later that defendant had followed them after they left the hospital and had attempted to drive her car off the road. She said she went to the police station because she knew he had a blood clot in his lungs and she wanted him to go to the hospital, but he was refusing to go. She asked the officer for help in getting her son to go to the hospital because she was concerned for his health and safety.
D. Yin Duong
Yin Duong testified that she had known Lo for nine years and they were very close friends. They lived in the same apartment building beginning in May 2010.
On July 3, 2010, Duong received a text message from Lo stating that she had been stabbed. Duong called her back multiple times to see what was wrong, but Lo did not pick up the phone to talk. When Lo did finally answer the phone, she seemed scared and paranoid. She told Duong that defendant had stabbed her leg. Duong thought Lo should go to the hospital, and Lo drove to Duong's workplace so that she would not have to go to the hospital by herself. When Lo arrived, she was still scared and was crying. She was holding a towel to her left calf because it was bleeding. Duong also noticed bruises on her arms and around her ankles. Her right wrist was swollen and discolored. Duong drove Lo to the hospital.
While they were in the hospital, defendant called Duong and asked where Lo was. Duong did not tell him because she was scared. She asked him why he did that to Lo and if he knew what he was doing. He said he did know. At some point, defendant's mother called Duong and Duong told her where Lo was. Later, defendant and his mother arrived at the hospital and came into the room where Duong and Lo were. Defendant appeared to be drunk and angry. He angrily confronted Lo and kept calling her names. Duong pushed him away from Lo and asked him to leave. He did leave about 20 minutes later after Duong told his mother that she was going to go get the nurse. After they left the hospital, Lo stayed in Duong's apartment because she could not climb the stairs.
About two and a half or three weeks prior to the stabbing, Duong saw Lo with a black eye. Lo was crying and scared. Duong told her to boil an egg and place it on her eye to try and get the swelling down.
On July 7, 2010, Brooks called Duong at work and told her about the fire. Duong testified that apart from one of Brooks's friends, she did not see any other African-American men routinely stop by the apartment building. Brooks's friend was a little over five feet four inches tall and "kind of chunky." He drove a gray Buick. After the fire, a police officer called her phone and left a voice message asking her to relay a message to Lo.
E. Muey Saechao
As noted above, Saechao is the mother of one of defendant's children. Her and defendant's relationship began in July 2005. She was aware that he was married to someone else during the relationship. At the time of trial, she considered herself and defendant to be a couple.
In July 2006, Saechao hired an attorney to apply for a restraining order against defendant. In August of 2005, there was an incident in which she slapped his face, and he pushed her and pulled on her hair. She did not recall if he also had kicked her. The declaration that she signed for the restraining order states that he did kick her. The declaration also states that during March and April of 2006 he would twist her arm or wrist at an angle if she said something he did not like. When she testified during the instant proceedings, she did not recall that this had happened. However, in April 2006 he did say that he was going to "bust her head." She took this as "kind of" a threat. At trial she did not remember defendant also having said that he was going to "put her to sleep," though she testified to that effect at an earlier hearing in this proceeding.
On May 1, 2007, Saechao ran into defendant at a restaurant and he began yelling at her because their daughter was not with her. He put his finger in her face and told her that she had better sleep with one eye open. When she tried to push his hand away he poked her in the eye. She called the police. She also called the police on November 13, 2009, when he slapped her and "probably" shoved her into the kitchen counter.
On cross-examination, Saechao acknowledged defendant had legal custody of her daughter at the time she filed for her restraining order. She stated the reason she sought the order was to regain custody. Additionally, she was under the influence of alcohol when some of the incidents detailed above occurred.
F. Officer Patrick O'Donnell
On July 6, 2010, officer Patrick O'Donnell was asked to assist in preparing a police report. He met with Drawsand for about 45 minutes, taking down her statement. The written statement was three pages long. Before asking her to sign it, he read the statement back to her to confirm its accuracy and then asked her to sign all three pages. She never mentioned defendant having had a blood clot in his lungs. She did not say that the reason she was at the police station was because her son wouldn't go to the hospital for this medical condition. She did say that she believed her son was a danger to Lo and their children.
G. Duoc Nguyen
Dr. Duoc Nguyen is a physician who works at Kaiser Hospital. He saw Lo on July 22, 2010, at a follow-up appointment. He removed the stitches in her leg and treated the laceration, which appeared to be infected. Her chart indicated that she had also been diagnosed with a fracture of one of the bones in her right hand. When he asked her if it was a fall that caused her injuries, she said that was not what had happened. She told Nguyen that she had been assaulted by her husband. She told him he had come home drunk and tried to hit her with a folded fan, and had stabbed her with a knife from the kitchen. Her hand was injured when she tried to block the impact from the fan.
H. Officer Roberto Ruiz
Officer Roberto Ruiz is a police officer with the Oakland Police Department. On August 1, 2010, he was dispatched to a residence and spoke with defendant. Defendant said that he wanted to file a missing person's report for his wife and two children. He said he had been away for a month with a minor league basketball team and had not been able to reach his wife because her cell phone was disconnected. Defendant gave Ruiz two addresses to check, including the apartment where he and Lo had lived. Ruiz looked up defendant and learned there was a restraining order against him. Ruiz went back to where defendant was and placed him under arrest.
I. Officer Theodore Jew
Officer Theodore Jew and another police officer interviewed defendant on August 2, 2010, at a county jail facility. Defendant was under arrest at that time. Before the interview, Jew advised him of his Miranda rights. The taped interview was played at trial.
Miranda v. Arizona (1966) 384 U.S. 436.
A transcript of the interview was not included in the record on appeal.
Before the interview, Jew had spoken with Lo. He contacted Lo through Brooks and Duong. On cross-examination, Jew stated he never obtained the knife Lo said she was stabbed with.
II. Evidence Pertaining to Count Four
A. Arthur Eckart
Arthur Eckart lived across the street from Lo and defendant's apartment. From the time he moved to his residence in June 2010, he noticed the people who appeared to live in defendant's building. He recalled an Asian girl, a Black girl, and a Hispanic male. About two or three weeks before the fire, Eckart noticed a Black male driving a dark Mercedes who would park in the same spot near the building. He would sit in the car sometimes, and sometimes he would get out of the car and walk around the left side of the house. The man was slim, of medium height, and Eckart would sometimes notice a tattoo on his neck.
On July 7, 2010, Eckart was outside of his residence smoking a cigarette when he saw defendant standing on the top step where the door is that leads to Lo's apartment. The black Mercedes was parked on the street in its usual spot. While Eckart had stated at a prior hearing that he was not positive the person he saw actually was defendant, at trial he said the person looked just like defendant: "You know, it could have been a twin, you know, almost a twin but it looks like the same person." He did not see defendant drive up in the Mercedes.
Eckart saw defendant walk from the steps toward the Mercedes. At that point, he noticed smoke coming out of Lo's building at the right side of the house by the door. Eckart went across the street towards the residence and noticed the smoke was worse, so he called 9-1-1. The front door behind the metal security door appeared to be open as he could see flames through the metal door. The fire was very noisy, and Eckart thought someone might be inside. He was focused on the fire and did not see if defendant drove off in the Mercedes. A few hours later, Eckart spoke with a police officer.
B. Stephen Miguel
Stephen Miguel is a fire captain with the City of Oakland. On July 7, 2010, he arrived at the scene of a fire at defendant and Lo's apartment. As the fire crew pulled up, he could see there was fire in the window at the top of the staircase. The crew accessed the building through the front doors and noticed that the stairs in the upper part of the staircase leading to the second floor were on fire. There was a strong odor of flammable fuel that smelled like gasoline.
C. Weldon Clemons
Inspector Weldon Clemons is a fire investigator for the Oakland Fire Department. He testified as an expert witness on the subjects of determination and cause of a fire, and whether a fire was intentionally set.
On July 7, 2010, Clemons was called to the fire at the apartment building. The fire was extinguished when he arrived. He noticed there were two cars in front of the building that had flat tires. There was fire damage to the interior stairwell that leads to the upper apartment unit. He determined the fire started in the upper stairwell. The fire crew on the scene told Clemons they had smelled an ignitable liquid. Clemons thought he smelled gasoline. In his opinion, some type of flammable liquid was poured on the stairway, which seeped under sheetrock causing the fire to burn behind the adjacent wall. Anywhere from 20 seconds to a minute would have elapsed from the time this fire was set to the time that smoke appeared in the front of the building, assuming an accelerant was used.
The evening of the fire, Clemons spoke to Drawsand on the telephone. She indicated that she was defendant's mother and said he had rammed her car with his car while she was inside her car the day before. She told Clemons she had reported this to the Oakland police on July 6, 2010. She also stated that defendant was upset because he thought she was taking his wife's side in a domestic dispute and so had attacked her with his car.
DISCUSSION
I. Prior Acts of Domestic Violence
At trial, defendant objected to the introduction of the uncharged prior acts of domestic violence committed against Lo and Saechao, arguing that the admission of such evidence violated his right to due process under the Fourteenth Amendment. He also claimed the acts did not qualify for admission under section 1109 because the evidence was more prejudicial than probative under section 352. He renews these arguments on appeal.
Section 1109, subdivision (a)(1), provides: "[I]n 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." If evidence is admitted under section 1109, a jury may infer from the evidence that the defendant had a disposition or propensity to commit other offenses involving domestic violence and may infer that he was likely to commit and did commit the current domestic violence offense. (People v. Ogle (2010) 185 Cal.App.4th 1138, 1143.) Noting that appellate courts, including Division Two of this District in People v. Johnson (2010) 185 Cal.App.4th 520, 529 (Johnson),have rejected facial challenges to section 1109, defendant nevertheless contends we "should determine that section 1109 does violate due process." This we decline to do.
Under section 1101, subdivision (a), evidence of a person's character, including "evidence of specific instances of his or her conduct," is inadmissible "when offered to prove his or her conduct on a specified occasion."
We observe the holding of the appellate court in Johnson is not unique. The appellate courts have consistently rejected due process challenges to section 1109. (E.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 (Jennings); People v. Brown (2000) 77 Cal.App.4th 1324, 1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) These opinions rely on People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta),in which the Supreme Court concluded that a similar statute, section 1108, does not violate due process because the trial court's discretion to exclude evidence under section 352 provides a procedural safeguard against prejudice.
Defendant attempts to limit Falsetta to the "unique history of propensity evidence in cases involving sexual offenses" by noting our Supreme Court in People v. Loy (2011) 52 Cal.4th 46 cited only to the Ninth Circuit's determination in United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1027 [similar Fed. Rules Evid., rule 414, was constitutional] when it affirmed Falsetta. (Loy, supra, at pp. 60-61.) Defendant notes the LeMay court distinguished the case of McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (LeMay, supra, at pp. 1026-1027), which affirmed the grant of a habeas corpus writ following a murder conviction based in part on evidence that the defendant had owned knives similar to the one used to kill the victim, from which the jury could conclude that he was "the type of person who would own a knife." (McKinney, supra, at p. 1382.)
McKinney is inapposite. The instant case does not concern whether defendant owned a particular weapon at any time in the past. Instead, it concerns an act of domestic violence, a subject that our Legislature and appellate courts have already determined may legitimately be excepted from the reach of section 1101, subdivision (a), within the restrictions imposed by section 352. For the reasons explained in the many cases cited above upholding section 1109, we reject defendant's due process challenge to the statute.
II. Admission Of Prior Acts Did Not Violate Section 352
Defendant claims the trial court's admission of the prior acts of domestic violence violated section 352. We review for abuse of discretion a court's ruling on relevance and admission or exclusion of evidence under section 352. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) "We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (Jennings, supra, 81 Cal.App.4th 1301, 1314.) Review of a court's exercise of discretion under section 352 is based on the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) The trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, at p. 836.)
Under section 352, the trial court has discretion to exclude 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." In applying section 352, " ' "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).) Rather, prejudice under section 352 refers to evidence " 'which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (Karis, supra, at p. 638.) In other words, in cases involving the proffer of evidence of prior acts of domestic violence under section 1109, the question is whether there is a likelihood the evidence will inflame the jury members so that they will base their verdict not on the evidence presented as to the charged offenses, but rather on an emotional response to the defendant's commission of other acts or crimes.
Defendant first claims the trial court, with only one exception, simply found the prior uncharged acts to be admissible on their face and did not weigh prejudice against probative value as required by section 352. Our review of the record reveals otherwise. We note the court specifically found one of the incidents involving Saechao to be potentially inflammatory (as it involved an act of alleged nonconsensual sex), strongly implying that the court considered the prejudicial impact of the other uncharged acts to be less of a concern. Further, the court specifically considered whether the sheer number of prior acts could be deemed prejudicial: "The only other concern that I would have is whether there's [sic] too many of them and whether there should be a 352 situation here. But on their face, all of them appear to be relevant and admissible with respect to [defendant] under [section] 1109."
We conclude the evidence of these prior incidents was not unduly prejudicial. When determining prejudice, relevant factors 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.) Here, none of the acts were more inflammatory than the stabbing incident that he was charged with, there was no danger of juror confusion, the acts were fairly recent (none were less than five years old), and defendant had not been charged with any offenses with respect to these acts.
Defendant claims Saechao's testimony cast doubt on whether the incidents of domestic violence connected to her actually occurred, because she admitted making false statements in an attempt to obtain custody of her daughter. He also contends the incidents had little probative value because there were few similarities to the charged offense and "the sheer number of incidents undoubtedly had a prejudicial impact on the jury." In our view, the similarities in the offenses are notable. Two of the offenses pertained to violence against the same victim, involving similar techniques (hitting her about the head, shoving her, and throwing objects at her), and occurring within two years prior to the charged offense. The incidents involving Saechao were also probative as to defendant's tendency to use physical force when expressing anger towards women with whom he is romantically involved. The jury was in the best position to assess whether the incidents occurred. All told, the prior incidents were much less serious than the charged offense. In sum, we cannot say that the uncharged incidents of prior domestic violence were such as to unduly inflame the jury in such a manner as to suggest that they based their decision on these incidents rather than the evidence of the charged offense. The jury was properly allowed to consider such evidence in reaching its verdict.
Defendant offers only a conclusory analysis in arguing that the alleged error in admitting the challenged evidence was prejudicial. Our review of the record of the trial, as summarized above, suggests otherwise. In any event, we need not reach this issue as we have concluded no error occurred.
III. The Evidence Was Sufficient to Sustain the Arson Conviction
Defendant claims Eckart's testimony was insufficient to sustain the judgment against him with respect to the arson count. We disagree.
In determining whether there is sufficient evidence to support a jury's findings, we review the entire record in the light most favorable to the prosecution to see if any rational trier of fact could have been so persuaded. (People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) It is the exclusive province of the trier of fact to determine the credibility of a witness and to resolve evidentiary inconsistencies, and we must defer to the factfinder's credibility resolutions. (People v. Young (2005) 34 Cal.4th 1149, 1181.) " 'It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1258, quoting People v. Ozene (1972) 27 Cal.App.3d 905, 910.)
Defendant claims Eckart's testimony was "simply not sufficiently 'reasonable, credible, and of solid value' " to convict him of arson. He emphasizes discrepancies between defendant's appearance and that of the man Eckart described as being near the building shortly before the fire broke out. Thus, his challenge is based on an alleged faulty identification.
A reviewing court may reverse a judgment if the evidence supporting it is "inherently improbable," but testimony that "merely discloses unusual circumstances" does not fall within that category. (People v. Huston (1943) 21 Cal.2d 690, 693 (Huston), overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352; People v. Ennis (2010) 190 Cal.App.4th 721, 728-729.) " 'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' [Citation.] Such cases are rare indeed." (DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 261.) Testimony may be rejected as inherently improbable or incredible only when it is " ' "unbelievable per se," ' physically impossible or ' "wholly unacceptable to reasonable minds." ' [Citations.]" (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) A finding that testimony is inherently improbable is "so rare as to be almost nonexistent." (Ennis, supra, at p. 728.)
" 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' [Citations.]" (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (Huston, supra, 21 Cal.2d 690, 693.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
In challenging Eckart's identification, defendant merely seeks to reargue the evidence on appeal. " '[I]t is not a proper appellate function to reassess the credibility of the witnesses.' [Citation.]" (People v. Thompson (2010) 49 Cal.4th 79, 125.) He invites us to usurp the jury's factfinding role, which we decline to do. IV. The Trial Court Properly Refused to Instruct on Lesser Included Offense of Arson
Defendant claims the trial court erred in refusing to grant his request to instruct on the lesser included offense of unlawfully causing a fire to a structure. Penal Code section 451 provides in part, "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aides, counsels, or procures the burning of, any structure, forest land or property." In contrast, Penal Code section 452 states in part, "A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property." In People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 (Schwartz),the appellate court held: "Unlawfully causing a fire is a lesser included offense of arson. A defendant may be charged with unlawfully causing a fire when he or she did not specifically intend to burn a structure, but was aware of and consciously disregarded a substantial and unjustifiable risk that his or her act would cause the structure to burn." (Ibid., citing In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1066, disapproved on another ground in People v Atkins (2001) 25 Cal.4th 76, 90, fn. 5; see also People v. Lopez (1993) 13 Cal.App.4th 1840, 1846 (Lopez); People v. Hooper (1986) 181 Cal.App.3d 1174, 1182-1183, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7.)
Schwartz, supra, 2 Cal.App.4th 1319, which is relied upon by appellant, is factually distinguishable. There, the evidence showed the defendant intentionally set fire to numerous car frames inside a repair business because he was angry that work had not been completed on his car chassis. A flame from a vehicle burned the ceiling of the structure, damaging the loft and roof. The defendant testified he did not set any cars on fire and had been misidentified by employees. (Id. at pp. 1322-1323.) The appellate court reversed his arson conviction due to a failure to instruct on the offense of unlawfully causing a fire. It determined instruction on this offense was required because reasonable inferences drawn from the evidence supported a conclusion that he only intended to set fire to the cars and the jury specifically queried whether malice had been established if there had been an intentional setting but the resultant fire burns another unintended object. The court explained: "We believe the jury was prompted to ask this question because of their apparent concern that the fire to the building had been unintentional, an unanticipated result of the fire to the cars. Accordingly[,] the court should have instructed the jury on the lesser included offense of unlawfully causing fire to a structure." (Id. at p. 1325.) This omission was deemed prejudicial. (Ibid.)
Here, the evidence supported the conclusion that the fire was started after accelerant was poured on an internal stairway. No question from the jury indicated confusion or concern that appellant may have intended only to set fire to some unknown object on the stairs and not the stairs themselves. The stairway was an integral part of the structure of the building, as opposed to a detached object such as the automobiles that were doused with gasoline in Schwartz. Simply put, it is impossible to envision how a defendant who sets fire to a staircase could not intend to cause the structure itself to burn. Moreover, it is not reasonably probable that, had the jury been instructed on unlawfully causing a fire, it would have found that defendant acted only recklessly and not with the intent to destroy the property. (People v. Breverman (1998) 19 Cal.4th 142, 148-149; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-1339; Lopez, supra, 13 Cal.App.4th 1840, 1847-1848.) We find no error.
V. Sentencing
Defendant claims the trial court abused its discretion by failing to recognize that it had discretion to strike either the five-year enhancement for great bodily or the one-year enhancement for personal use of a deadly weapon. " ' "[T]he term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' " [Citation.] "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." ' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1450.) At defendant's sentencing hearing, the trial court stated: "With respect to the enhancements, while the court has seemingly discretion to strike those enhancements, my understanding was, if you just read those two statutes, it says these will be additional and consecutive and so that's my understanding. The court is not inclined to strike any enhancement based on the evidence and the jury's finding."
In light of our Supreme Court's decision in People v. Ahmed (2011) 53 Cal.4th 156, 168, defendant has abandoned his argument in his opening brief that Penal Code section 654 requires the deadly weapon use enhancement be stayed.
Defendant has failed to affirmatively show the trial court was unaware of its discretion to strike the great bodily injury and weapon enhancements. It is well established that, in the absence of evidence to the contrary, the trial court is presumed to have followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) While the court's statement is somewhat ambiguous, we agree with the People that the last sentence stating the court was "not inclined" to strike either enhancement is sufficient evidence of it having exercised its discretion. The court's remark indicates that it saw no reason to strike either of the enhancements. Thus, there is no indication in the record that the result of a resentencing proceeding would be different, and we will not reverse for further proceedings when to do so would be "a useless and futile act and would be of no benefit to appellant." (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.)
Defendant also claims the trial court engaged in dual use of facts in imposing both upper terms and enhancements. Penal Code section 1170, subdivision (b), provides, in part: "The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law."
The trial court initially cited five aggravating factors in imposing the aggravated term of four years for the domestic violence count, including those set out in California Rules of Court, rule 4.421(a)(1), (a)(2), (a)(3), (a)(8), and (b)(1). The court subsequently agreed to drop as an aggravating factor the circumstances specified in rule 4.421(b)(1), that defendant engaged in violent conduct. Defendant claims the court improperly relied on rule 4.421(a)(1), that the crime involved great violence, and rule 4.421(a)(2), that defendant was armed with a weapon. He claims both these factors mirror the enhancements imposed for causing great bodily injury and use of a deadly weapon. We note that defendant does not cite to any cases supporting his assertion that the dual use, if it occurred, mandates remand.
We note there remained at least one unchallenged factor in support of the trial court's decision to impose the upper term on Count One, namely, rule 4.421(a)(3) (vulnerability of victim). We also observe that trial courts now have the discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances: "In other words, these [2007] amendments to the [determinate sentencing law] essentially eliminated the middle term as the statutory maximum absent aggravating factors." (People v. Jones (2009) 178 Cal.App.4th 853, 866.) In light of the evidence of his crimes, defendant cannot sustain any claim that the court abused its discretion in its sentencing choice.
Penal Code section 1170, subdivision (b), provides, in part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court."
Finally, the People concede that the trial court incorrectly calculated defendant's sentencing credits in that he is entitled to an additional day of credit. We will remand this matter to the court to rectify this error.
The correct amount of credits is 285 days plus 43 days of conduct credits, for a total of 328 days.
DISPOSITION
The judgment is affirmed. The superior court is ordered to amend the abstract of judgment to reflect the correct number of credit days and to forward a copy to the Department of Corrections and Rehabilitation.
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Dondero, J.
We concur: _______________
Marchiano, P. J.
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Margulies, J.