Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. RIF113354, Patrick F. Magers, Judge.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Oswaldo Conde (Ozzy/victim) was found murdered inside his home in the early morning hours of October 6, 2003. After an investigation, police charged defendant with Ozzy’s murder, based upon circumstantial evidence.
The victim is repeatedly referred to as “Ozzy” throughout the record. We too will refer to him as “Ozzy” for clarity. We mean no disrespect in doing so.
After a mistrial resulted from a hung jury, a second jury was impaneled for a second trial. That jury found defendant guilty of one count of second degree murder. (Pen. Code § 187, subd. (a).) The trial court sentenced defendant to 15 years to life and granted defendant bail on appeal in the amount of $100,000.
In her appeal, defendant advances several arguments: There was insufficient evidence to support the verdict, the trial court did not apply the right standard in ruling on her motion for new trial, Evidence Code section 1109 is unconstitutional, the trial court erroneously admitted defendant’s prior acts of domestic violence, CALJIC No. 2.50.02 is legally defective and the exculpatory results of defendant’s polygraph examination were improperly barred. We reject all of defendant’s claims and affirm the judgment.
All further statutory references will be to the Evidence Code unless indicated.
FACTUAL AND PROCEDURAL HISTORY
We wish to express our gratitude to defense counsel for pointing out, during oral argument, factual discrepancies in the tentative opinion. We believe the tentative opinion process provides an opportunity for meaningful exchange during oral argument and counsel’s use of the tentative to correct factual misstatements has benefitted the court greatly in our attempt to provide a fair and accurate rendition of the appellate record.
On October 5, 2003, starting at between 10:00 and 11:00 a.m., defendant, her live-in boyfriend Ozzy, and Jeffrey Dills (Dills) spent the day riding motorcycles and visiting restaurants and bars. Defendant estimated that she drank 12 beers and 10 shots of hard liquor over the course of the day. While at a bar called Maverick’s defendant and Ozzy began to argue over her being too flirtatious. Defendant was crying and got “very upset,” and Dills persuaded a friend of his to take her home. When Ozzy arrived home, he and defendant continued their argument in the driveway in front of the house. Defendant told Ozzy that he was a loser and did not pay his fair share and she told him that she wanted him out of her house. Defendant became violent and began hitting Ozzy with things and throwing things at him. At a certain point, Dills became concerned that Ozzy might hit defendant back so he intervened. Defendant decided that she wanted to leave and went with Dills to his house, approximately two and one-half to three miles away. Defendant estimated that it took 10 to 15 minutes to get there.
Jeff Dills had testified at the preliminary hearing, but died in a traffic accident prior to trial. The transcript of his preliminary testimony was read at trial.
At Dills’s house defendant and Dills had a drink and got into his spa. Defendant wore her panties and either her bra or something that Dills gave her to wear. She continued to complain about Ozzy not paying his fair share and she and Dills began kissing. The two then went into Dills’s bedroom where he performed oral sex on her. Defendant “stopped everything” and told Dills that she had to go home because she had forgotten that her ex-husband was supposed to drop off the children, even though she knew that the children were not at her home. While getting dressed Defendant said that she was so mad at Ozzy she could “kick his ass.”
Dills estimated that he dropped defendant off at her house at 1:20 a.m. As he approached her home he turned off his motorcycle and coasted in so as not to wake Ozzy or the neighbors. Defendant could not find her cell phone and Dills turned his headlight up into the bushes where she had earlier thrown her things at Ozzy to see if she could find it. He saw her enter the house—she was silhouetted by a light that was on in the back of the house. Dills then started his motorcycle and drove away, returning to his house, where he noticed that it was 1:36 a.m. as he was setting his alarm. At 1:20 to 1:30 a.m., defendant’s neighbor heard a loud motorcycle going down the road.
At 2:09 a.m. defendant called 911 to report that she just got home, that something had happened to Ozzy, that he had blood all over his face and that something had happened to her house. She hung up and called back indicating that despite being an emergency room nurse, she could not render any medical aid. Officers arrived at the house at 2:14 a.m. and found defendant in the middle of the street. She told officers that her boyfriend was bleeding, but was upset, frantic and otherwise non-responsive to questioning. She did not appear to be injured or to have any blood on her person or clothing.
When the police entered the house they found Ozzy sitting on the couch with what appeared to be some kind of head trauma. They then proceeded to search the house to ensure there was no one else inside. At approximately 2:20 a.m. paramedics were allowed into the home and it was determined that Ozzy was deceased. The paramedics concluded from what they found at the scene that death had not occurred within minutes of their arrival. It was later determined that Ozzy had died from blunt force trauma that caused a hinge fracture to the back of his skull. The implement used was a long, slender object like a large stick, bat or golf club, and there were from three to eight impacts to Ozzy’s head. The injury could have been inflicted by any healthy adult and would have resulted in loss of consciousness and death within 10 to 15 minutes. Ozzy’s body did not demonstrate any defensive wounds and he was attacked where he was found.
When officers conducted their search of the house, they found that the sliding glass door from the kitchen to the back yard was open, but they found no signs of forced entry there or into the garage. The spa in the back yard was uncovered, running and warm. There was a broken glass and some coins scattered on the kitchen floor, and a telephone was on the floor as well. A set of keys that allowed officers to search defendant’s vehicle were found hanging on a rack in the kitchen, where defendant told police to look for them. There was a hair clip, a purse or pocketbook and a cell phone on the kitchen counter. There was also an empty champagne bottle and a plastic cup in the trash. There was a pair of sandals, a helmet and a hat on the floor near the couch where Ozzy was found. A jacket and another hat were also found on a throw rug on the floor. No blood was found on any of these items. Officers attempted to find the murder weapon, but despite there having been numerous items that could have been used, there were none that appeared to have been used to commit the crime. There were two baseball bats near the door but they appeared to have been there at the time of the crime because of blood spatter patterns on them. Blood evidence was found on the couch where Ozzy was found, on all four walls around Ozzy’s body and on a table near him. However, no blood was found in the kitchen or in the hall leading to the bedrooms.
Police also searched outside the home, around the neighborhood and in nearby storm drains but found nothing of evidentiary value.
Defendant was taken to the police station where an officer sat with her for several hours while the investigation at the house continued. This officer also did not notice any blood on defendant’s person or clothing. Defendant told that officer that if Ozzy’s ex-girlfriend had anything to do with what happened she would retaliate against her. Defendant mentioned that she had checked her home for her children, who she said were supposed to have been there (even though she knew they were not), but was not worried because she knew that they were with their father. Defendant also told that officer that her house had been ransacked, though investigating officers did not find that to be so.
Defendant was interviewed by police on the morning of October 6, 2003, and again on October 9, 2003. She told police that Ozzy’s ex-girlfriend, Shiana Lovejoy (Lovejoy), would have done something like this because she had vandalized their property and made threats against herself and Ozzy in the recent past. Defendant stated that when she got home from Dills’s house she walked in and saw Ozzy lying on the couch. She knew something was wrong so she turned on the light and saw he was injured. Defendant had carried two party hats inside with her and had kicked off her shoes as she entered. Ozzy was gurgling, which she believed indicated he was breathing at the time. She then called 911. She ran around the house screaming, hung up on 911, ran outside, then called 911 again. She took her jacket off and tossed it in the floor when the 911 operator asked her to help Ozzy. She then ran outside where she was found by police. Defendant also told police that her shotgun, car keys and stereo were missing.
Defendant was arrested on November 10, 2003.
DISCUSSION
A. There Was Sufficient Evidence to Support Defendant’s Murder Conviction.
Defendant claims that there was insufficient evidence proving that she committed the murder. Specifically, she attempts to analogize this case with People v. Blakeslee (1969) 2 Cal.App.3d 831 (Blakeslee), in which the facts were found insufficient to support a murder conviction, and to distinguish it from People v. Snow (2003) 30 Cal.4th 43 (Snow), wherein the Supreme Court found circumstantial evidence sufficient to uphold a murder conviction. In addition, defendant argues that if evidence of motive and opportunity alone are sufficient then the evidence in this case would support the guilt of Lovejoy or defendant’s ex-husband, Joe Bugarski (Bugarski), who had threatened Ozzy in the past, as readily as her own. She also claims that Dills’s testimony was not substantial so as to support her conviction, and asserts that there was no evidence from which the jury could have reasonably inferred that she cleaned herself up and disposed of any evidence of her guilt in the time available to her.
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ [Citations.] We apply an identical standard under the California Constitution. [Citation.] ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175.) We need only determine whether a reasonable trier of fact, considering the circumstantial evidence cumulatively, could have found defendant guilty of second degree murder beyond a reasonable doubt. “‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’ [Citation.]” (Snow, supra, 30 Cal.4th at p. 66.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Defendant contends that the facts in this case are similar to the facts in Blakeslee, supra, 2 Cal.App.3d 831, in which a conviction was not supported by the facts. In that case the victim, who was found shot to death, lived with her teenage son and daughter (the defendant). (Id. at p. 833.) The evidence showed that the victim was killed at 7:30. Both the defendant and her brother placed the defendant in the apartment until 7:20 or 7:25, and back in the apartment when she discovered the body at 7:40. The defendant was seen twice outside the apartment around 7:35 and 7:40. (Id. at p. 837.) Thus, her opportunity to commit the crime was established. (Id. at pp. 837-838.) On the issue of motive, while there was some evidence that the defendant had quarreled and disagreed with her mother in the past, there was no evidence that the defendant was angry at her mother the night of the murder. (Id. at p. 838.) The defendant had lied to police about her activities on the night of the murder and about her knowledge that her brother had a rifle in his room. At trial she admitted that rather than taking an 11-mile drive at 7:25 on the night of the murder, she had gone only a block and returned after a short time and that she knew her brother kept a rifle in his room. She explained her failure to tell police the truth as a desire to protect her brother. (Ibid.) The court determined that this was the “totality of the proof of the murder introduced against [the] defendant” and found it insufficient to uphold the murder conviction. (Id. at pp. 838-840.)
This case can be easily distinguished. The court in Blakeslee found significant that “[n]o evidence was produced of any current quarrel between [the victim] and [the defendant], or of any physical violence ever having taken place between the two.” (Blakeslee, supra, 2 Cal.App.3d at p. 839.) Further, the evidence of prior quarrels between the two was nothing extraordinary that would not occur under normal circumstances. (Ibid.) To the contrary, in the instant case the evidence showed that there was a physically violent quarrel between defendant and Ozzy on the evening of the murder. The argument began at the bar over defendant being too flirtatious. Defendant got “very upset.” She did not want to ride home with Ozzy so she rode home with Dills’s friend Bill. When Ozzy got home he and defendant continued to argue in the driveway. Defendant was “still very angry with him” because he made her look stupid in front of people, causing her embarrassment. She yelled at him. During the argument, defendant hit Ozzy with her purse, her helmet and a novelty hat that she was carrying. “[T]hat went on for a while,” then “[s]he finally threw all the stuff at him.” Defendant told Ozzy that he was a loser, was not paying his share and complained that he did not have a job. She told Ozzy that they were through, that she wanted him out of her house and she asked him to leave. In the meantime Ozzy just deflected the blows. At one point however, defendant struck Ozzy with her hand and Dills became concerned that Ozzy might hit her back so he stepped in between them. Defendant then decided that she wanted to leave and went with Dills to his house.
In her interview with police on the morning of the murder, defendant accused Ozzy of lying to her about another bar patron’s comments that she was being too flirtatious in order get her to spend more time with him instead of everyone else.
While at Dills’s house defendant continued to complain about Ozzy not doing enough. She stated that she was tired of him not paying for his share and that she had to pay for everything. Further, at the time she decided to leave Dills’s to return home defendant stated she was still angry enough with Ozzy that she could “kick his ass.” She also admitted that she was very embarrassed about her sexual conduct with Dills (enough so that she lied to the police about it) and that she blamed Ozzy for it.
There was also evidence that defendant had been physically violent with Ozzy in the past. In addition, defendant’s ex-husband testified that on one occasion when he was arguing with defendant, she tackled him from his bicycle, hit him in the head with a cordless phone and went to the kitchen and retrieved a butter knife that she used to threaten him. On another occasion defendant threw a plate of food at her ex-husband and threatened him with a baseball bat.
This evidence shows that defendant was very angry with Ozzy at the time of the murder, angry enough to have been physically violent with him, as she had a tendency to be. While domestic violence of this kind is not entirely uncommon, it is far from what could be considered typical, acceptable behavior and further distinguishes the circumstances of this case from those found in Blakeslee.
While defendant suggests that the Blakeslee court demonstrated particular concern with the absence of evidence of a murder weapon, evidence of the caliber of the bullets or the weapon used in the murder, and evidence linking the defendant to a weapon, we are convinced that the absence of this evidence was not pivotal to the court’s decision. Rather, the key to the court’s holding was the insubstantiality of the case against the defendant as reflected by its conclusion that “on the formal record of the case we have a conviction for murder based on defendant’s presence at the scene of the crime five to ten minutes before and five to ten minutes after the crime, and on the fact that she told a false story to the police about her movements that night. This evidence does not reasonably inspire confidence in defendant’s guilt, and we think it insufficient to constitute proof beyond a reasonable doubt.” (Blakeslee, supra, 2 Cal.App.3d at p. 840.)
As further proof of the insubstantiality of the evidence to support the conviction in Blakeslee, the Court of Appeal noted that the evidence against the defendant was susceptible to such manipulation that it could just as easily have been used to convict her brother, through equally plausible inferences. (Blakeslee, supra, 2 Cal.App.3d at p. 840.) Defendant picks up on this line of reasoning when she argues that the evidence here could just as easily have been used to convict Lovejoy or Bugarski. The problem with defendant’s premise is that both of those potential suspects had an alibi.
On the night of the murder Lovejoy was on a date with a man who testified that she took him to his home in Whittier sometime around 1:15 a.m. The jury could reasonably have concluded that Lovejoy could not have driven the approximately 30 miles from Whittier to Corona in time to have committed the murder before defendant arrived home.
Bugarski’s girlfriend testified that at the time of the murder he was in bed at the home of her parents. The futon bunk bed was up against a wall and she went to sleep on the bottom bunk on the side farthest from the wall because Bugarski was on the other side. She recalled going to bed at 10:02. Her sleep was not disturbed until 5:00 a.m. when Bugarski’s phone, clipped to a bar that holds the top of the bed, began vibrating. When she awoke, Bugarski was still next to her. The jury could reasonably have concluded that Bugarski could not have gotten up and gotten back into bed without disturbing his girlfriend and therefore could not have committed the crime. The Blakeslee court’s reasoning simply does not apply in this case.
Defendant argues that all that is shown in this case is that she had motive and opportunity to commit the murder and it therefore differs from Snow, supra, 30 Cal.4th 43, in which the Supreme Court found the circumstantial evidence sufficient to uphold a murder conviction based upon proof of the defendant’s guilt beyond simple motive and opportunity. In Snow, the victim was shot to death in his pharmacy by an assailant wearing a motorcycle helmet with a dark visor over his face. (Id. at p. 57.) There was evidence that the defendant had a motive: at the time of the murder he was on trial for having robbed the victim, who identified him as the robber. (Ibid.) There was evidence that the defendant had opportunity: the murder occurred during a lunch recess of the robbery trial and was only a short distance from the courthouse. (Id. at pp. 57-58.)
Although opportunity to commit the murder related to the time defendant arrived back at her home from Dills’s house was a major point of contention in the trial, defendant has apparently conceded on appeal that the evidence demonstrated that she arrived home at 1:20 to 1:30 and not around 2:00 as she claimed. Her only contention on appeal in this regard is that she did not have enough time to cover her tracks.
In addition to evidence of opportunity and motive, there was evidence that the defendant had owned a motorcycle and a helmet, that his fingerprint was found on a dark visor recovered from the street by police on the day of the murder and the phone number of the pharmacy was found on a notebook in the defendant’s car. (Snow, supra, 30 Cal.4th at pp. 57, 60-61, 64.) The visor was further linked to the defendant through evidence that he had painted his helmet blue; paint near the visor snaps was similar to that used by the defendant. (Id. at p. 67.) A casing from the same caliber weapon used to commit the murder was found in the defendant’s car and he had the same caliber rounds in his apartment. (Id. at pp. 59-60.) The defendant had exhibited no emotion upon learning of the witness’s death and wanted to go to the bathroom before agreeing to have his hands tested for gunshot residue. (Id. at p. 58.) Nothing had been stolen from the pharmacy. (Id. at p. 59.) The court found that “[a] reasonable jury could find beyond a reasonable doubt that the circumstantial evidence proved defendant’s guilt.” (Id. at p. 68.) In doing so the court distinguished Blakeslee, supra, on the grounds that in that case the evidence was “at least as consistent with the brother’s guilt as with the defendant’s” whereas in Snow the “defendant had a virtually unique combination of motive and opportunity to kill [the victim] and was connected by other circumstantial evidence (the notebook and fingerprint, and ownership of a blue helmet and smoky bubble shield) to the crime.” (Snow, supra, at p. 68.)
As in Snow, the evidence in the instant case showed more than simple motive and opportunity. Defendant’s neighbor, Phillip Virga did not hear Otto, defendant’s dog, bark the night of the murder. Otto would bark when someone went on defendant’s property. No one else reported hearing Otto bark that night. Later, Otto barked and howled at the police investigator. In addition, the officers found no signs of forced entry into the house. There were no defensive wounds found on Ozzy’s body, who was attacked where he sat on the couch. All of this evidence suggests that whoever murdered Ozzy was known to him and to Otto. The jury could reasonably infer that the only person who fit this description and had both motive and opportunity was defendant.
John Conde testified that Ozzy played golf and that he had seen a golf club at defendant’s house once, next to baseball bats near the door. Defendant told police that Ozzy had a bag of golf clubs in the garage. However, the police did not find any golf clubs during their investigation. John Conde also testified that he had seen three baseball bats by the door. When the police investigated after the murder they found only two bats by the door. Thus, as in Snow, although the murder weapon was not found, the jury could reasonably have found that defendant had items available to her similar to those that were likely used to commit the crime, that were missing after the murder.
In addition there was evidence that demonstrated consciousness of guilt in that defendant had attempted to make it appear as if she could not have committed the crime and she made an effort to direct suspicion away from herself.
Despite having told Dills she was still so mad at Ozzy she could “kick his ass,” defendant told police during her first interview that when she got home she was really happy to be home and happy that Ozzy was there. Then during her next interview, prior to being confronted with the fact that the police knew she had lied about her sexual activity with Dills, she insisted that she had asked Dills to take her home because she wanted to be with Ozzy and wanted to sleep with him and maybe have sex. Defendant also admitted that during her interviews she was not truthful with police about the level of violence she had displayed towards Ozzy during their argument on the evening of the murder. The jury could have reasonably inferred from these untruths that defendant was trying to hide the fact that she had been very angry with Ozzy the night of the murder, evidencing a consciousness of guilt.
Defendant also reported that her house had been ransacked and in her 911 call stated that something was wrong with—had happened to—her house. However, the house was not ransacked, though there was a broken shot glass on the kitchen floor. Two guitars in plain view were not taken, nor were the television sets or any of defendant’s jewelry. In her first interview with police on the morning of the murder, defendant told them she ran through the house looking for the children because they were supposed to be there, even though she knew that the children were not there. Defendant reported that odd items were missing from the house. A cheap stereo was missing but the speakers were ripped out and left behind. Defendant’s shotgun, kept on a shelf in the closet in her bedroom, was gone but nothing else appeared disturbed. A change bowl kept in a kitchen cabinet, that only immediate family knew about, was also gone and there was some change scattered on the kitchen floor. From this evidence the jury could reasonably have inferred that defendant was attempting to make it look like robbery had been the motive for the crime, also evidencing a consciousness of guilt.
One of the first officers to respond to defendant’s 911 call testified that there was blood on the ground behind the couch where Ozzy was found such that he had to be careful not to step on it as he entered the home. Defendant testified that she went in and out of the house at least twice and ran frantically throughout the house. Defendant also testified and told police that she put her hands on Ozzy, yet there was no blood tracked around and there was no blood found on defendant. Nor was there any blood found on any of the items that she had casually dropped about prior to becoming aware that there was blood everywhere.
Despite the phone cradle being in the kitchen and the phone that she used to call 911 being found on the floor in the kitchen, defendant testified that she did not recall being in the kitchen. She also testified that she was barefoot and that she did not realize there was broken glass on the kitchen floor. However, there is no evidence that she cut her feet in her frantic haste to call 911.
Defendant testified that she kicked her shoes off as soon as she walked in the door (while it was still open) but the shoes were facing towards the door, not away from it. She initially told police that she knew right away there was something wrong with Ozzy then later testified that even though she took off her shoes right next to where he was, she did not notice that there was anything wrong with him until she went to turn the light on.
In her interviews with police defendant said she could not find her purse, keys or cell phone, but none of those items (which Dills testified defendant had thrown at Ozzy) were found by police when they searched the area in front of the house. Defendant testified she never found the keys to her car. She denied that the keys with the shamrock on them that were found hanging in the kitchen were hers despite her having shamrock tattoos and a shamrock on her motorcycle helmet. Ozzy’s brother testified that Ozzy’s keys had a small 8-ball on them the size of a silver dollar, not a shamrock. One of the investigating officers testified that when defendant granted permission to search the house and her vehicle on the morning of October 6, she told officers the keys to the vehicle could be found hanging on a wooden key holder in the kitchen and he used those keys to enter the vehicle. The keys that he used to get into defendant’s vehicle had a small shamrock pendant attached to the key chain. When she testified at trial she indicated that she had found her cell phone in the bushes prior to going into the house when Dills dropped her off, but she admitted that she had told police she couldn’t find her cell phone. She could not explain why, having just located it, she did not use her cell phone to call 911 when she found Ozzy or why she had lied to the police about not having her phone. In addition, while she testified that she had her purse with her when she got home, and that she dropped everything else she was carrying as she entered the house, she did not drop her purse (she could not identify it in any of the photos taken by police) and did not know what happened to it. Defendant testified that the purse was found in the house.
Defendant, an emergency room licensed vocational nurse, did not attempt to do anything to help Ozzy, whom she believed to have still been alive when she called 911.
This evidence goes beyond that necessary to show motive and opportunity. From it the jury could have reasonably inferred that defendant had been deliberately untruthful in her statements about what happened on the night of the murder, had attempted to cover up the fact that she had the motive and opportunity to have committed the crime and had attempted to cover her tracks. Despite defendant’s arguments to the contrary, this evidence renders this case more like Snow and less like Blakeslee. There is ample circumstantial evidence here to support a jury’s finding of defendant’s guilt beyond a reasonable doubt.
Next, defendant argues that Dills’s testimony is not substantial evidence because it was given at a preliminary hearing and was therefore not subject to a reasonable cross-examination, based upon all of the evidence available in the case. The Supreme Court has approved the use of preliminary hearing testimony under section 1291 when the witness has died prior to trial. (People v. Carter (2005) 36 Cal.4th 1114, 1171-1174 (Carter).) The defendant in Carter challenged the use of the preliminary hearing transcript on the grounds that it violated section 1291 and because it denied him his right to confrontation under the California and United States Constitutions. (Carter, at pp. 1171-1172.) Although defendant here does not assert that her right to confrontation has been abridged, her assertion that the evidence should be considered less than trustworthy is based upon the same argument made by the defendant in Carter, to wit, that the cross-examination at the preliminary hearing was not adequate under the circumstances, rendering the evidence unreliable. For the reasons stated by the Supreme Court in Carter, supra, at pages 1171-1174, we conclude that Dills’s testimony was reliable enough to allow its admission under section 1291. Any decision of what weight to give Dills’s testimony in light of the balance of the evidence was properly left to the sound discretion of the jury.
Finally, defendant argues that she could not have committed the crime and covered up the evidence of her guilt in the time available to her. She argues, “[t]he ‘opportunity’ Dills’ testimony provided was a maximum of approximately 39 minutes. . . . In this interval, in order for the jury to have reasonably inferred appellant committed the murder based on the evidence, the jury had to find that appellant completed the following: arrived home drunk, argued with [Ozzy] so heatedly to cause her to find a suitable weapon, proceeded to kill [Ozzy], washed her body and washed and completely dried her long hair while leaving no blood in any shower or bathtub, changed her clothes and even put on a studded belt that matched the sandals that she had been wearing earlier that evening, drove somewhere far enough away from her house so that no investigation located where she disposed of the following: the murder weapon, the clothes she wore, the items missing from her house, and any other incriminating evidence. They jury also had to reasonably infer she then drove the distance back to her house, staged the kitchen with broken glass and a few coins strewn about the kitchen floor, placed her shoes, her jacket, her helmet, and the party hats in different locations to make it appear as if she had simply walked into the house, dropped them and turned on the kitchen light and found [Ozzy]. After all of this cool, calm, collected behavior, she then called 911 in hysterics.”
We disagree with defendant’s characterizations on a number of grounds and conclude that a reasonable jury could have decided defendant had ample time to perform the acts necessary to support her conviction. First, Dills testified that he was in bed setting his alarm at 1:36 a.m. After dropping defendant off at her house Dills drove to his home two and one-half to three miles away, which he estimated took 10 minutes, put his motorcycle in the foyer, got undressed and went to bed, which he estimated took him two to three minutes. He estimated that he dropped defendant off between 1:20 and 1:30. Based upon the balance of his testimony the jury could reasonably have believed the time was closer to 1:20 when he left defendant’s house. Defendant did not call 911 until 2:09. That left defendant with a window of 49 minutes, not 39 as she contends.
In addition, although Dills testified that defendant appeared drunk when he dropped her off, she was sober enough to search through the bushes to find her cell phone. She also stated that she started to sober up at Dills’s house enough to realize that she didn’t want to be having sex with him. Further, she described herself as a drunk and a recovering alcoholic. From that and the other evidence about how much alcohol she consumed, the jury could have reasonably inferred that she could function well enough to have done what was necessary, even while intoxicated. Further, defendant herself repeatedly admitted “I’m a fucking asshole when I drink,” when asked about her violent behavior with domestic partners in the past. And defendant believed that while she was gone Ozzy drank a bottle of champagne they were saving for her birthday. The jury could reasonably have inferred that as soon as defendant got home, still angry enough at Ozzy to “kick his ass,” and found the empty champagne bottle she turned into the violent “asshole” that she admitted she could be. Defendant would not have had to go far to get a weapon since there were baseball bats and golf clubs in the house and garage. This all could have taken place in a very short period of time. It would not be unreasonable for the jury to conclude that Ozzy was dead by 1:30.
As for the time it would have taken defendant to clean up, there is no evidence that defendant’s hair was completely dry when police arrived at 2:14, some 54 minutes after Dills dropped her off. In addition, it was not necessary for defendant to use the shower or bathtub to clean off any blood because the Jacuzzi in the back yard was running and warm. Defendant told police that she always leaves the Jacuzzi running. Officers found the sliding glass door from the kitchen to the back yard open. Defendant had been in the Jacuzzi at Dills’s house earlier in the evening, so if she smelled of chlorine she had an excuse. In addition, the only testimony regarding what defendant had been wearing the day of the murder was her own. She could have changed into anything in her closet in a very short period of time.
There is evidence from which a jury could have inferred that defendant did not have to drive very far at all to dispose of any incriminating evidence and the allegedly stolen items. Within a couple of blocks from defendant’s house there is a strip mall, a school and a YMCA where the police did not conduct any searches. Any of these places would have had trash dumpsters into which the incriminating items could have been placed. In addition there is evidence that the items taken from the house were gathered in a hurry. The speakers to the missing stereo were left behind and had the wires ripped out; the jury could reasonably have concluded that the change bowl had been so hurriedly taken that some of the coins spilled out onto the kitchen floor and that the glass was also knocked from the counter in that haste. It would not have taken defendant long at all to gather the three missing items (along with her clothing and the murder weapon), drive a couple of blocks from her home, place everything into a dumpster and return home. Nor would it have taken long for defendant to place, in her home, the helmet, shoes, hats and jacket, assuming that she did so after the murder. There was no testimony that any of these items were found in areas where they would have necessarily had blood on them had they been there at the time the crime was committed.
In fact there was testimony from the forensic technician who photographed the crime scene stating how it would have been possible for defendant’s helmet to have been in place where he found it at the time of the murder and not have blood spatter on it.
Defendant argues that the fact there was no trace of forensic evidence that linked her to the crime makes it unlikely that she could have accomplished all that she would have had to do to cover her tracks. On the contrary, the fact that there was no forensic evidence linking her to the crime could have been reasonably viewed by the jury as evidence (1) that her story regarding the events of the evening was not plausible and (2) that she had indeed tried to cover her tracks because she, and the things that she supposedly casually dropped about when she did not know there was blood all over the room, were cleaner than they should have been.
On the record before us we cannot conclude that on no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. A reasonable jury, considering all of the evidence in this case, could have reasonably concluded that defendant was guilty of second degree murder beyond a reasonable doubt.
B. The Trial Court Applied the Correct Standard in Reviewing Defendant’s Motion for New Trial.
Defendant filed a motion for new trial on the grounds that there was insufficient evidence to support the jury’s verdict. Defense counsel specifically asked the trial court to apply the independent review test. The prosecutor agreed that the independent review test was the correct standard.
The trial judge “reluctantly denied” defendant’s motion for new trial, stating:
“With respect to People v. Laguna[s (1994) 8 Cal.4th 1030], the California Supreme Court case, the Court acknowledges in deciding whether substantial evidence supports a verdict, the Court does not ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead the relevant question is whether after reviewing the evidence in the light most favorable to the prosecution any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt, and that is very easy for the [S]upreme [C]ourt to say, but it’s exceedingly difficult for the trial court when faced with the situation that I am faced with.
“To make a perfectly clear record in this matter, if this was a court trial, if the Court would have heard the evidence in this case, I would have found the defendant not guilty. I would have found that the evidence was insufficient to prove beyond a reasonable doubt. That is my trial court decision in this case. Obviously, it was not a court trial. It was a jury trial.
“The [S]upreme [C]ourt is very direct that the Court’s personal evaluation of the evidence as far as a trier of fact is irrelevant. The question becomes, in deciding whether substantial evidence supports a verdict, the Court must review the evidence with the presumption that the jury verdict is valid and to determine whether there’s any substantial evidence to support the verdict. It’s the exclusive province of the jury to find the facts. It is the duty of the trial court to see that this function is intelligently and justly performed. And in the exercise of its authority, the Court should consider the probable force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict.
“And that is also verbiage from California Supreme Court case People v. Robarge [(1953) 41 Cal.2d 628 (Robarge)], which is cited in People v. Dickens [(2005) 130 Cal.App.4th 1245].
“In this particular case, the trier of fact heard the evidence, heard the testimony of Miss Long. She chose to testify. They heard her testimony. They have also had the extensive videotapes that they also reviewed. They heard the testimony from a number of witnesses—and I might add that as far as Mr. Virga is concerned, and Mr. and Mrs. Sandoval, and also Miss Alexander, from a credibility standpoint, all the witnesses were credible in that they, in the Court’s conclusion, they were not here telling an untruth or telling a lie. They were credible in that they were impartial bystanders at a time in their lives when they were testifying to what they remember seeing and hearing. And at that time and at that juncture in their observations, what they were seeing and hearing was not necessarily a significant factor in their life. Obviously, it became very significant thereafter. [¶] . . . [¶]
“What is very disturbing for the Court, as far as the evidence in the case, . . . under [section] 1291, the Court allowed the introduction of the transcript of Mr. Dills to be introduced. Obviously, he met that—that evidence met the requirements of [section] 1291. He was unavailable, [be]cause he’s dead. And under [section] 1291, the preliminary hearing transcript, obviously thereafter, is admissible.
“The jury was instructed, as most jurors are instructed, that the testimony of a single witness, if believed, is sufficient for the proof of that fact. The jury is also cautioned that to accept the testimony of a single witness, they should carefully review all the evidence upon which that testimony rests. And I’m assuming the jury fulfilled that duty.
“But what’s troubling for the Court, we have the situation where Mr. Dills becomes . . . a very, very pivotal issue in this case, ‘cause, but for the testimony of Mr. Dills by way of transcript, this Court would 1118 this case. This case would have been dismissed by this trial court. [¶] . . . [¶]
“It’s a pivotal issue because the jury did not have an opportunity to evaluate the demeanor of Mr. Dills, did not have the opportunity to observe him while he was testifying. The cross-examination of Mr. Dills during the preliminary hearing was, as in most preliminary hearings, not extensive. [¶] . . . [¶]
“Based upon the testimony of Mr. Dills, and I’ve read that transcript probably 25 times, there are some unanswered questions, as far as his level of intoxication, some questions were asked of him about his drinking earlier in the day and he confirmed that he had been drinking. But his level of intoxication was not fully addressed in the examination.
“He indicates that the time of 1:36 is predicated on his observation of a clock. And in the human experience, obviously, sometimes that can be wrong. [¶] . . . [¶]
“So the bottom line, what I’m getting at as far as whether or not there is substantial evidence to support this verdict in the Court’s independent review, the jury obviously disbelieved Miss Long, which was their province to do. They disbelieved her. And in light of all the other evidence, they felt that corroborated the testimony of Mr. Dills.
“And as far as whether or not in this particular case [section] 1291 violated the defendant’s right to confrontation in terms of due process . . . [i]t’s up to the Appellate Court. Obviously, it is a substantial issue in this case. And it is, when I say it’s disturbing for this Court, it’s an understatement.”
Defendant contends the trial court abused its discretion because it applied the wrong legal standard in analyzing her motion for new trial. She maintains the legal error was amply demonstrated by the court’s repeated reference to the “substantial evidence” standard. Defendant claims when the trial court ruled the evidence was “sufficient to sustain the verdict,” the court applied the sufficiency of the evidence standard of review on appeal, rather than the required independent review standard to be used by a trial court in considering a new trial motion. She complains the trial court erred in denying her motion because it found there was sufficient evidence for the jury to have found her guilty, instead of employing an independent review which would have afforded her a new trial because the trial judge said he would have found her not guilty had it been a court trial.
Penal Code section 1181, subdivision 6, provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] When the verdict or finding is contrary to law or evidence.”
A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.) A trial court may grant a motion for new trial only if the defendant demonstrates reversible error. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.) A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of that discretion clearly appears. (People v. Lewis (2001) 26 Cal.4th 334, 364.)
The trial court’s remarks, taken as a whole, show that it employed the correct standard and did not abuse its discretion in denying defendant’s new trial motion.
1. Applicable standard to be used by a trial court in reviewing a motion for new trial.
Case law establishes that the standard of review by a trial court acting under Penal Code section 1181, subdivision 6, is different from the standard used by an appellate court under the same section. The trial court’s duty is contrasted with that of an appellate court, which must resolve all conflicts in favor of the judgment. That is, “the trial court must give the defendant the benefit of its [own] independent conclusion as to the sufficiency of the credible evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 759-760.)
In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, whereas an appellate court may not modify or set aside the verdict if there is any substantial evidence to support it. (People v. Serrato (1973) 9 Cal.3d 753, 761, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583.) When independently weighing the evidence, the trial court acts as a “‘13th juror.’” (People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6.) The phrase “the Court sits as a thirteenth juror” is misleading because it does not properly describe the function of the trial judge in passing upon a motion for a new trial. (Robarge, supra, 41 Cal.2d at p. 634.)
“While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]” (Robarge, supra, 41 Cal.2d at p. 633, italics added.)
Thus, under the independent review test, the trial court has a three-fold task: (1) review the evidence independently, (2) consider the probative force and weight to be afforded to the evidence, and (3) decide whether it is satisfied that the evidence as a whole is sufficient to sustain the verdict. (People v. Lewis, supra, 26 Cal.4th at p. 364; Robarge, supra, 41 Cal.2d at p. 633.) The trial court is to be “guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.” (People v. Davis, supra, 10 Cal.4th at p. 524.)
We agree with defendant that one of the trial court’s remarks is an erroneous statement of law. Its comment that “the relevant question is whether after reviewing the evidence in the light most favorable to the prosecution any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt” is a recitation of the appellate standard of review, and is not the appropriate standard to be applied at the trial court level.
The issue we must address is whether in light of these remarks “it clearly appears that the trial court misconceived its duty [and therefore] failed to give defendant the benefit of a proper review of the evidence.” (Robarge, supra, 41 Cal.2d at pp. 633-634.) We conclude the answer is no. Apart from this one reference, the record of the hearing shows that the trial court independently weighed the evidence, including the credibility of the witnesses.
The trial court was intensely aware that it should not decide what result it would have reached had there been no jury, as Robarge mandated. (Robarge, supra, 41 Cal.2d at p. 633.) The trial court properly defined its supervisory role over the jury as one in which it reevaluates what the jury decided—that is, the court correctly stated it was required to decide whether there was sufficient evidence to support the jury’s verdict finding defendant guilty of second degree murder, and not decide whether in its own opinion it would have found defendant guilty. (Ibid.)
Here, the trial court conducted an independent analysis of the evidence. It viewed each witness and weighed his or her credibility. It found that the neighbors Virga, Alejandro and Juanita Sandoval and Linda Alexander were very credible in that they were impartial bystanders without a motive to lie about events that were not significant to them at the time but later became important by virtue of the fact that the time a murder was committed had to be established.
It gave very little weight to Dills’s preliminary hearing testimony. It found that Dills was not sufficiently questioned as to the timelines surrounding the time of the victim’s death because defense counsel’s sole legal burden was to rebut a finding of probable cause, and not raise reasonable doubt. It also found that Dills was not closely questioned regarding his level of intoxication on the night of the murder, so Dills’s estimation that he left defendant’s residence around 1:20 a.m. could have been wrong and thus not entitled to great weight. It also noted that the jury was deprived of the opportunity to watch Dills’s demeanor during his testimony.
The trial court determined that the jury could find that cumulative credible evidence from the neighbors corroborated Dills’s testimony that he dropped defendant home around 1:20 a.m.
Phillip Virga lived across the street and one house over from defendant. Virga’s home had a balcony leading into his bedroom and facing the street. On October 5, Virga was sleeping in his bed with the balcony door partially opened. He remembered hearing a loud noise, a motorcycle revving, coming from across the street at 10 minutes before 12:00. He testified he knew what time it was because he looked over to the clock radio on his nightstand next to his bed. He got up to investigate but could not see anything from his window. He could hear loud voices, including a high-pitched female voice. He waited until the noise died down and went back to bed. However, about 20 minutes later the voices and motorcycle revving started again. He got up, went out onto his balcony and yelled “‘It’s after midnight. Give us a break and let us get some sleep.’” Virga then went back to bed. At “somewhere around 1:30, [Virga] think[s] it was, or 1:20” he was awakened again by the loud roar of a motorcycle heading towards River Road. Again, he knew what time it was because the first thing he did when he woke up was look at the clock by his bed. He got up and went out on his balcony but did not see anything; he only heard motorcycles going down the street towards River Road. Then, somewhere close to 2:00 a.m. he heard a car alarm go off. He knew the time because he looked at his clock. As the car alarm did not turn off he got out of bed and went out onto his balcony, where he saw an SUV parked in front of the house of his next-door neighbor, Linda Alexander, with the horn honking and the lights flashing. The vehicle had been there when he looked out at 1:20 to 1:30. He decided to investigate further, put on his bathrobe and was descending the stairs when the alarm stopped. Virga briefly spoke to his son-in-law, who had also been awakened and continued out the front door. He saw the SUV, but did not see anyone and did not hear any vehicles driving away. Virga went back upstairs and was getting back into bed about seven to ten minutes later when there was a big commotion outside with lights coming on so he got up to look out. At that time he saw an ambulance and police cars parked outside.
Defendant’s neighbor, Alejandro Sandoval, testified that on the night of October 5, he was awakened by the sound of somebody trying to start a motorcycle coming from defendant’s garage and Ozzy cussing and angry. He leaned over and looked at his clock which read 12:30. The revving lasted around 10 to 15 minutes. He then heard the motorcycle start and leave in the time frame around 12:30 but admitted that he was not exact on the time. His bedroom window was closed. Sandoval went back to sleep right away and was again awakened, this time by a car alarm. He recalled telling the police that the alarm went off around 2:00 in the morning. At neither time did Sandoval get out of bed, but rather tried to ignore the noise and go back to sleep.
Sandoval’s wife, Juanita, heard Ozzy in the garage swearing and the sound of someone trying to turn on a motorcycle for about 10 to 15 minutes. After having her recollection refreshed by the police report she remembered that she heard these sounds at 1:30, and that she had looked at her clock. She never heard the motorcycle start. Later she heard a car alarm go off. Again, after having her recollection refreshed by the police report, she stated that the alarm went off at 2:00 in the morning and that she had looked at her clock.
Linda Alexander testified that she lived across the street from defendant’s home. Alexander recalled that on October 5, there was a great deal of commotion throughout the evening, motorcycles, traffic and a lot of noise. After her memory was refreshed by reference to the police report, she recalled that around midnight (which she knew because she was watching a show on television) she opened her front door and looked out. She saw two men and a woman standing in defendant’s driveway. Although she could hear arguing, she could not make out the words because a loud motorcycle had its engine running. She heard her neighbor, Phillip Virga, yell at his neighbors across the street. Alexander went to her bedroom and started to go to sleep. She also heard a car alarm go off. After her memory was refreshed by reference to the police report, she recalled that she told police the car alarm on a SUV, parked in front of her house, went off at 1:45 a.m. She did not look at a clock and admitted this time was an estimate. She also recalled telling police that shortly after the alarm went off, she heard either a car or a “Harley” moving down the street towards River Road. However, Alexander admitted being tired and trying to sleep and was not certain whether she heard the car alarm first or the sound of the vehicle leaving first. Then, she told the officer, within five or ten minutes she heard defendant screaming “‘no, no, no.’”
Clearly, the evidence was in conflict regarding the timing of events. The jurors were free to accept Virga’s and Juanita Sandoval’s version of events, which supported the prosecution’s case, or to accept Alejandro Sandoval and Alexander’s version of events, which were more supportive of the defense’s version of events. As the court also noted, the jury heard defendant testify and watched videotaped interviews of defendant, and was within its province to discount her testimony. Out of all of the neighbors’ testimony, it was Virga who corroborated Dills’s testimony that he dropped defendant off at her house around 1:20 a.m. to 1:30 a.m. Each time Virga was awoken by a noise, he looked at his clock and then physically got up to investigate. Also, the trial court properly pointed out that all the neighbors appeared credible as they were impartial bystanders at a time they were unaware that their observations would become significant factors in this case. As they were unbiased, the jury could reasonably infer that Virga corroborated Dills’s testimony that Dills dropped defendant off at her home between 1:20 and 1:30, giving her a window of opportunity to murder the victim.
Thus, the record is clear that the trial court gave defendant the benefit of a proper review of the evidence, and correctly decided there was sufficient credible evidence to support the jury’s verdict. (Robarge, supra, 41 Cal.2d at pp. 633-634.)
Although it would have been preferable for the court to have omitted any reference to the appellate standard of review for substantial evidence, “its use of less than artful language cannot be equated with having applied the wrong standard.” (People v. Price (1992) 4 Cal.App.4th 1272, 1276.) Notwithstanding its remarks, the court understood its obligation to independently weigh whether the prosecution evidence was credible enough to support the jury’s verdict. Since our review is limited to whether the trial court manifestly and unmistakably abused its discretion when it denied the motion (People v. Guerra, supra, 37 Cal.4th at p. 1160), we conclude there was no manifest and unmistakable abuse of discretion here. (See People v. Dickens, supra, 130 Cal.App.4th at p. 1252; § 1181.)
C. Section 1109 is Constitutional.
Defendant claims that section 1109, which allows into evidence prior acts of domestic violence committed by a defendant, is unconstitutional on its face because it allows a jury to infer that defendant had a disposition to batter her cohabitant. She acknowledges that the weight of authority is against her, as courts have routinely upheld that section 1109 is constitutional, based on policy considerations that favor the admission of evidence and that section 352 acts as a safety measure to reject evidence that is unduly prejudicial.
Defendant asserts the argument in order to preserve the issue for further review (citing Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5).
Applying the rationale that the California Supreme Court used in People v. Falsetta (1999) 21 Cal.4th 903to reject constitutional challenges to section 1108 (prior sexual offenses in a sexual offense prosecution), courts of appeal have similarly rejected constitutional challenges to section 1109. (See, e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Price, supra, 120 Cal.App.4th at p. 240; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1313; People v. Johnson (2000) 77 Cal.App.4th 410, 417; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029-1030.) Based upon this weight of authority, we do likewise and find that section 1109 is constitutional. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Defendant’s Prior Acts of Domestic Violence Committed Against Her Ex-Husband Were Properly Admitted.
Prior to trial, defense counsel made an in limine motion to exclude two prior incidents of domestic violence that occurred between her and Bugarski and the prior domestic violence against Ozzy.
Bugarski testified concerning the two incidents involving defendant:
The trial court denied defendant’s motion, finding that the assaultive conduct fell within the parameters of section 1109. It reiterated its ruling made in the first trial—that the evidence was probative. As there were no witnesses and no forensic evidence, it found that the value of the evidence increased—it reflected a pattern of behavior engaged in by defendant over a number of years.
The court also weighed the prejudicial effect of the evidence versus the probative value of the incidents. The court found that the nature of the prior assaults were not so inflammatory or egregious in that they are of a type commonly found between couples in their day-to-day living. It also found that the evidence was not prejudicial to defendant in that the incidents show defendant was a victim and not a perpetrator.
During her testimony, defendant said in the first incident she threw the phone at Bugarski to protect herself and she denied hitting him in the head with the phone. As to the second incident, defendant claimed she wielded the bat in self-defense because Bugarski’s chasing her prevented her from calling 911.
Defendant contends that the two prior domestic violence acts involving Bugarski were inadmissible in that they were not acts of “‘abuse’” because defendant was the victim, and not the aggressor, in those incidents. She also asserts that the evidence lacked reliability and evidentiary value. Applying an abuse of discretion standard of review, we conclude that the trial court did not abuse its discretion in admitting the prior domestic violence acts involving defendant’s ex-husband. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
First, evidence of defendant’s prior acts is admissible to prove defendant had a propensity to act violently toward her cohabitant. In enacting section 1109, the state Legislature acknowledged that the nature of domestic violence involves an escalating pattern of violence against an intimate partner. If evidence at trial were limited to the incident at issue, a perpetrator’s pattern of violence to dominate and control the victim would be masked and violence against victims would continue. (People v. Johnson, supra,77 Cal.App.4th at p. 419, citing Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.) Thus, defendant’s prior acts of violence against Bugarski are admissible. These prior acts fall within the definition of “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).)
As section 1109 allows prior acts of domestic violence to be admitted, we review whether the evidence was made inadmissible under section 352.
Under section 352, the trial court must balance the probative value of the evidence against its prejudicial impact. We do not reverse a trial court’s ruling under section 352 unless the court abused its discretion. (People v. Hart (1999) 20 Cal.4th 546, 606.) We will not disturb the ruling “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Evidence has probative value when it is relevant to the issues before the jury—that is, when it has any tendency in reason to prove or disprove a disputed fact in issue. (§ 210; People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Relevant factors in determining the prejudice resulting from admission of prior acts of domestic violence include whether the prior acts were more inflammatory than the charged act, whether the jury might confuse the prior acts with the charged act, such as by seeking to punish defendant for the prior acts, and whether the prior acts were too remote. (See People v. Poplar, supra, 70 Cal.App.4th at p. 1139; People v. Harris (1998) 60 Cal.App.4th 727, 737-741.)
The governing test is whether evidence was “unduly prejudicial,” that is, did the evidence tend “‘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.” (People v. Karis (1988) 46 Cal.3d 612, 638.)
In her testimony, defendant conceded that she threw a phone at Bugarski, but did so to protect herself. She also admitted wielding a bat to strike him, but again did so in self-defense. However, defendant never denied Bugarski’s assertions that she initiated the first incident by tackling and knocking him off his bike and initiated the second incident by throwing a plate of food at him. Throwing food at someone, knocking a person off a bike, wielding a bat, and holding a butter knife are not acts that are more inflammatory than the act of hitting the victim so hard that it caused his ear to be nearly severed from his head and the lower portion of his skull to suffer a hinge fracture.
In counterbalance to the small amount of prejudice was the high probative value of the prior domestic violence acts. Bugarski testified defendant hit him in the head with a phone and held a bat out ready to swing at him. These acts are similar in manner to the way the coroner and forensic technician opined that Ozzy was killed—an object was swung in a horizontal manner three to eight times against the victim’s head.
Incorporated within the definition of domestic violence is “abuse” of a cohabitant. “Abuse” is defined as “‘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.’” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1118; Pen. Code, §§ 13700, subd. (a), 1109, subd. (d).) Defendant’s prior bad acts assisted the jury in determining whether defendant physically abused Ozzy by intentionally or recklessly causing him bodily injury.
Even if we were to assume that admitting the prior acts of violence against Bugarski were an abuse of the court’s discretion, we find any error would have been harmless. (§ 353.) The bulk of the prior domestic violence evidence was encapsulated in no more than nine pages of reporter’s transcript. The prosecutor made only two brief references to the prior acts in his closing argument.
It is not reasonably probable that excising nine pages of prior domestic violence evidence would have changed the result. (People v. Watson (1956) 46 Cal.2d 818, 836–837.) The remaining 1,000 pages of evidence revolved around the circumstantial evidence pointing to defendant, who was so angry at her boyfriend that she took a weapon and struck him so hard in the head that she caused his death. The jury was more focused on the timing of defendant’s arrival and how it related to the time of Ozzy’s death, as evidenced by their questions to the court. The jury asked for an audio and video player to review defendant’s interviews with police, a readback of defendant’s testimony and a readback of the testimonies of neighbors Alejandro Sandoval, Juanita Sandoval and Linda Alexander. The prior domestic violence evidence had a de minimis influence, if any at all, in defendant’s conviction.
E. The Trial Court Properly Gave CALJIC No. 2.50.02.
Defendant makes several arguments as to why the trial court erred in instructing the jury with CALJIC No. 2.50.02 (Evidence of Other Domestic Violence [§ 1109]): (1) it is legally defective because it allowed the jury to find defendant had the propensity to murder even if they found she was not the perpetrator of the prior acts of domestic violence, and (2) it was not supported by the evidence. We reject both claims and find that the trial court properly gave CALJIC No. 2.50.02.
First, CALJIC No. 2.50.02 is not legally defective. Defendant complains that CALJIC No. 2.50.02 did not tell the jury that if they found she was a victim of the prior domestic violence acting in self-defense, they could not consider the prior domestic violence as a propensity to commit murder.
We review claims for instructional error under an independent or de novo standard of review. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823.)
Yes, it does.
CALJIC No. 2.50.02 provides:
“Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence [on one or more occasions] other than that charged in the case.
“[‘Domestic violence’ means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship.] [¶] . . . [¶]
“‘Abuse’ means 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.
“If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit [another] [other] offense[s] involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused.
“However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.
“[[Y]ou must not consider this evidence for any other purpose.]”
If the jury did not believe that defendant was an aggressor who intentionally caused or attempted to cause bodily injury against Bugarski, but rather was a victim who had to resort to self-defense to protect herself, the jury would have to find that no domestic violence crime was committed. If no crime was committed, the jury could not infer defendant had a propensity to commit murder. Thus, the words of the instruction prevent the evil which defendant fears—they prevent jurors from inferring a propensity if there is no crime. Additionally, the instruction states that a jury may, but is not required to, infer defendant had a propensity to cause bodily injury to her cohabitant. (People v. Reliford (2003) 29 Cal.4th 1007 [addressing language in CALJIC No. 2.50.01 which is substantially similar to that in CALJIC No. 2.50.02]; People v. Pescador (2004) 119 Cal.App.4th 252, 261-262 [CALJIC No. 2.50.02]; People v Escobar (2000) 82 Cal.App.4th 1085, 1097, fn. 7 [CALJIC No. 2.50.02].) Finally, CALJIC No. 2.50.02 tells the jury that it cannot find defendant guilty of murder based on propensity alone, but must consider it as only one piece of evidence to be considered with all the other pieces of evidence before it can convict defendant. (People v. Reliford, at p. 1015; People v. Pescador, at p. 261.) We presume the jury followed the court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Second, there was sufficient evidence to support giving the instruction. “The proper standard for proving past conduct is by a preponderance of the evidence.” (People v. Hoover, supra,77 Cal.App.4th at p. 1030; § 115.) “‘Preponderance of the evidence’” means evidence of such weight that, when balanced against that opposed to it, has more convincing force and that creates a belief in the probability of its truth. (CALJIC No. 2.50.2; § 500.)
Evidence of defendant’s past conduct was sufficiently established by Bugarski’s testimony. He stated that defendant committed several assaultive acts: she had tackled him, hit his head with a phone, grabbed a butter knife during their argument and swung a bat at him. Consequently, we find there was sufficient evidence of uncharged acts of domestic violence to support the giving of CALJIC No. 2.50.02.
F. The Trial Court Properly Excluded Results of Defendant’s Polygraph Examination.
Defendant asserts that the trial court erred when it barred defense evidence showing that she voluntarily submitted to and passed a police-administered polygraph examination. She maintains the exclusion of this evidence deprived her of due process and her right to present a defense as it prevented her from showing that the polygraph result bolstered her credibility in denying responsibility for Ozzy’s murder.
Section 351.1 provides that results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding. Evidence that a defendant took a polygraph test violates California statutory law. (People v. Sapp (2003) 31 Cal.4th 240, 299.)
We conclude that the trial court properly excluded defendant’s polygraph result and that the exclusion did not violate defendant’s constitutional rights. (People v. Hinton (2006) 37 Cal.4th 839, 890, citing People v. Samuels (2005) 36 Cal.4th 96, 128; People v. Wilkinson (2004) 33 Cal.4th 821, 849-850.) “‘A per se rule excluding polygraph evidence is a “rational and proportional means of advancing the legitimate interest in barring unreliable evidence.”’” (People v. Hinton, at p. 890.) We also find that defendant failed to offer any evidence that polygraph examinations are reliable. (Ibid.,citing People v. Burgener (2003) 29 Cal.4th 833, 871; People v. Wilkinson, at p. 850.)
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., HOLLENHORST, J.
The first incident occurred on June 11, 2000. Defendant tackled Bugarski while he was on a bike and he responded by slapping her several times. Defendant walked into the house. Bugarski followed her and pushed her over the couch. Defendant grabbed a phone from its cradle and hit Bugarski in the head with the phone. When he continued to argue with her, defendant seized a butter knife; Bugarski tackled defendant to the ground and removed the butter knife from her grasp. He held the butter knife up against defendant’s throat and threatened, “Don’t ever do that again or I’ll kill you.”
The second incident occurred on December 25, 2002. Bugarski was angry that defendant spent Christmas day at her friend’s home and not with him. He ordered her to come home, but defendant refused to return home until the evening. When she was late in coming back to the residence, defendant and Bugarski began to fight. Defendant threw a plate full of food at him. The fight then moved outside to the front of the house. Defendant grabbed a bat and wielded it at Bugarski as if she were going to swing it.