Opinion
A098539.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID ARTHUR VICHI, Defendant and Appellant.
Defendant was convicted following a court trial of felony child concealment (Pen. Code, § 278.5, subd. (a)), and sentenced to a term of three years in state prison. On appeal, he argues that the trial court failed to conduct a proper competency hearing, erred by finding him competent to stand trial, and erroneously admitted evidence of his prior acts of domestic violence. He also argues that the evidence does not support the conviction, and he established a necessity defense pursuant to Penal Code section 278.7. We find that the competency proceeding and finding of competence were not defective, the evidence of defendants prior acts was properly admitted pursuant to Evidence Code section 1101, subdivision (b), substantial evidence was presented to support the conviction, and defendant failed to prove a statutory defense of necessity. We therefore affirm the judgment.
STATEMENT OF FACTS
Defendant and Foxine Sutton are the parents of Cheyenne Vichi, who was born in March 1997. Defendants stormy romantic relationship with Foxine lasted for two years, until it was terminated by her in May of 1998.
For the sake of clarity and convenience, we will refer to Foxine Sutton, her daughter Cheyenne Vichi, her mother Marilyn Sutton, defendants father David Crawford, and defendants stepmother Paula Crawford, by their first names.
Foxine described prior acts of physical abuse and violence by defendant, committed "many times" in the presence of Cheyenne. On one occasion when Foxine lived with her mother, defendant "took" Cheyenne and "would not give her back." Foxine was forced to "bribe" defendant by agreeing to permit him to "come around" the house, although Foxines mother Marilyn otherwise "wouldnt let him come because he was violent." Another time, defendant took Cheyenne and money from Foxine. During an argument in July of 1997, defendant threw a rock and "broke out the back windshield" of Foxines car while Cheyenne "was in the back seat." "Around the same time," as Foxine drove her car with Cheyenne in the back seat, defendant "grabbed the wheel, slammed the car into park," and stepped on the brake, then stole the car keys. Defendant also pushed Foxine while he was holding Cheyenne.
Marilyn testified that around May of 1997, she came home from work one afternoon to find Foxine crying. Foxine told Marilyn defendant took Cheyenne, who was then two months old, and "wouldnt give her back." Foxine and Marilyn went to a house to retrieve Cheyenne. Marilyn was forced to remain at the front door while Foxine went inside to talk with defendant. Marilyn heard Foxine "crying" and pleading with defendant "to give Cheyenne back." Defendant told Foxine to "just stay with me." Foxine became "more and more hysterical," until they finally convinced defendant to accompany them back to Marilyns house with Cheyenne. Although defendant returned Cheyenne to them and left the house later that day, Marilyn subsequently obtained a temporary restraining order that prohibited defendant from having any contact with her.
The order was effective for three years.
Defendant suffered prior convictions and county jail terms for his repeated acts of domestic violence: a violation of Penal Code section 273.5, subdivision (a), for pushing Foxines head into the car window in June of 1997; a guilty plea to a violation of Penal Code section 273a, for endangering Cheyenne when he threw a rock through the "back windshield" of Foxines car in July of 1997; and, a violation of Penal Code section 243, subdivision (e), in February of 1998, for again striking Foxine. Upon his release from incarceration in February of 1999, defendant lived briefly with his sister in Sonoma County. Foxine occasionally "let Cheyenne see him," sometimes overnight, before defendant moved to Washington in July of 1999 to "get a better start." Defendant never provided any financial support, clothing or toys for Cheyenne, other than "puzzles for Christmas one year."
While defendant lived in Washington for perhaps a year and a-half, he called Foxine "a couple times" and spoke to Cheyenne. Then, around Thanksgiving or Christmas of 2000, defendant called Foxine at 2:00 a.m. to ask her to send Cheyenne by bus or plane to Washington to visit him. Foxine denied the request. Defendant then decided to travel to Sonoma County to visit Cheyenne.
On January 1, 2001, defendant contacted Foxine again by telephone at her mothers house and said "he wanted to see his daughter." Foxine agreed during the telephone conversation to grant defendant a visit to last "a couple hours." She "had to go to work at 5:30" that afternoon, and planned to pick up Cheyenne at defendants sisters house when she "got off work" at 10:00 p.m.
At 9:30 that night, Foxine called defendants sisters house, but defendant was not there. Defendant subsequently paged Foxine from a friends house in Forestville. When Foxine spoke with defendant later that night about returning Cheyenne, he said "he wasnt giving her back, that she was going to stay the night." Foxine protested that she did not want Cheyenne gone overnight. That night and again the next day, defendant refused to disclose to Foxine either his location or when he would return Cheyenne. Foxine repeatedly conveyed to defendant that "all [she] wanted was to know where he was," but he declined to tell her. Defendant neither gave Foxine any information nor let her speak with Cheyenne.
Defendant told Foxine he was in Forestville, but did not tell her where.
Defendant called Foxine on January 3, 2001, to state that he would contact her again when she "can be nice to him and talk to him." When Foxine advised defendant that she was very upset, he was apparently "pleased with that." Foxine testified that defendant "likes to make me upset." Marilyn also witnessed one of the telephone calls on January 2d or 3d during which Foxine was crying hysterically and yelling at defendant "to bring Cheyenne home." Defendant did not call Foxine again after January 3d.
For the next few days, Foxine called defendants mother and sister, and "drove around town looking for him" or his truck, without success. On the night of January 7, 2001, the mother of defendants two sons called Foxine from Clearlake to report that defendant had taken Cheyenne to Washington. The next morning, Foxine filed a missing child report with the Sonoma County Sheriff s Department. Foxine did not report the incident earlier for fear that she would be arrested on a misdemeanor warrant for her failure to complete a "DUI class," and because she hoped defendant "would return the child" within a few days.
Defendants father David Crawford and his wife Paula testified that defendant and Cheyenne appeared unexpectedly at their house in White City, Oregon, the night of January 10, 2001. Defendant explained that he "lost his place" to live in Washington, and "came to stay" with them. Cheyenne was "a mess;" she was "tired and hungry," and had very little clothing with her. Defendant told David and Paula that Cheyennes mother "had amphetamine charges on her," and "wasnt taking good enough care" of Cheyenne. He stated that he wanted to give Cheyenne "a better life." Defendant did not mention "if he had permission" to have Cheyenne with him.
David and Paula were "concerned" that defendant may have taken Cheyenne "against her mothers will." To ensure that her "family wasnt going to get in trouble in any way," Paula contacted the Sonoma County Family Support Division, the district attorneys office, and Child Protective Services, along with an agency in Medford. Paula gave defendants name and social security number, and Cheyennes name, to the Family Support Division in Sonoma County. She also conveyed to defendant the advice she received from the "Medford agency" and Sonoma County Child Protective Services that if "there was never a custody issue" between the parents, he had "every right to have the daughter." Defendant did not call any of these agencies himself. Paula also wanted to call Foxine to "understand the situation," but defendant declined to provide Foxines telephone number, and did not personally attempt to contact her.
The next day, defendant was detained for a traffic violation, then arrested on a warrant for absconding with Cheyenne. The day after Foxine learned of defendants arrest in Oregon, she flew to Medford to pick up Cheyenne from David and Paula. Cheyenne was ill and "throwing up." She also lost a "couple pounds" since she had been taken by defendant.
Defendant testified in his defense that he was "very ashamed" of his conviction of a violation of Penal Code section 273a, and admitted the mistake of his prior drug use and commission of "domestic violence offenses." He claimed that he had "rehabilitated" himself "as far as domestic violence issues."
Around Christmas of 2000, as a "last minute choice" defendant decided to go to Sonoma County from Washington to visit Cheyenne and the rest of his family there. A day after he arrived in Sonoma County, defendant contacted Foxine to arrange a visit with Cheyenne. Foxine initially denied his request for a visit, but relented after he repeatedly "begged her" to "spend time" with Cheyenne "for Christmas and give her presents." Consistent with "previous circumstances," defendant had "no understanding and no agreement" with Foxine about the duration or nature of his visit with Cheyenne when he arrived at Marilyns house to pick up the child on January 1, 2001. Defendant contemplated that he would "spend a week with her."
That night, when Foxine discovered that defendant was not at his sisters house as planned, she became "just hysterical and angry" with him. Foxine declared that she "just wanted the kid" retuned to her "right now." Defendant thought Foxine was unreasonable, and thought she would not let him continue to "spend the vacation" with Cheyenne that he thought they deserved. Thereafter, he called Foxine every day from Santa Rosa until January 5th, and let her speak with Cheyenne. But he resolved not to directly return the child or disclose his location to Foxine. Defendant claimed that he did not intend to "withhold" Cheyenne from Foxine, but rather "just wanted to spend time" with his daughter.
Defendant also noticed indications that Cheyenne may have been neglected by Foxine: she had athletes feet, had not taken a shower recently, slept poorly, and was excessively tired and cranky. He was concerned that Foxine was "using drugs," engaging in a "party life, and not "being responsible" with Cheyenne.
During a telephone conversation on January 5th, Foxine yelled at defendant, exclaimed, "I hate you," and hung up. Defendant perceived that Foxine "didnt seem to care about the child." He decided to take Cheyenne to his home in Washington and eventually attempt to gain custody of her. Defendant testified that he believed he "had equal right to custody," and had not "committed a crime." He "wanted to spend time with the kid," and "felt it was [his] right to exercise that relationship."
In Washington, defendant discovered that his residence did not "allow a child in the home," so he stayed in a hotel with Cheyenne for two days. He asked Child Protective Services in Washington about financial aid, but "they werent able to help." He then decided to travel to Oregon with Cheyenne to seek financial help from his father. He did not contact Foxine or anyone in California while he was in Washington.
Defendant testified that in Oregon he wanted to "contact the custody courts" to seek "custody hearings," but did not have the opportunity to do so before his arrest the day after he arrived there. Defendant "encouraged" Paula to make the telephone calls to child custody agencies. Defendant did not tell Paula "how to get in touch with Foxine." Based upon his experience they "werent going to get anywhere" by speaking with Foxine and he "wanted to use a legal route."
DISCUSSION
I. The Competency Proceedings.
We first confront defendants claim that the trial court failed to "conduct a meaningful competency hearing" before proceeding to trial. Appellant complains that the court "never mentioned" or properly considered the reports of the three experts, two of whom found him "not competent to stand trial," and made a finding of competence without an adequate hearing. He argues that "the courts failure to consider the evidence of his incompetence poisoned the entire proceedings below, and thus his conviction must be reversed."
The record shows that on April 10, 2001, the court expressed doubt about defendants competence, suspended criminal proceedings pursuant to Penal Code section 1368, and ordered a psychiatric examination of him by Dr. Thomas Cushing. In his report issued April 29, 2001, Dr. Cushing concluded that defendant was competent to stand trial. Criminal proceedings were reinstated on May 7, 2001, upon the trial courts finding in accordance with Dr. Cushings opinion that defendant was competent.
At a Marsden hearing on June 11, 2001, however, the court again questioned defendants capability of cooperating with counsel and suspended criminal proceedings. Two more competency evaluations were conducted: Dr. Laura Doty found that defendant "meets the criteria for a diagnosis of a Delusional Disorder of the Persecutory Type, and that he likely has a Paranoid Personality Disorder," which precludes him from considering "matters from a view outside of his own beliefs." Dr. Doty concluded that defendants mental disorder prevents "him from being able to cooperate with counsel on his own defense," or "comport himself appropriately during a trial." Dr. Harriet Lehman offered the opinion that defendant "meets the criteria for an Antisocial Personality Disorder," but "did not give evidence of a severe mental disorder." According to Dr. Lehmans report, defendant has a "distrust of his attorney due to misunderstanding," but with a "new attorney" or "different approach" is capable of cooperating with counsel. After Dr. Lehman was informed that three attorneys had already attempted to explain the case to defendant without success, she stated in an addendum to her report that "within this context" he "is not capable at this time of rationally cooperating with his attorney to present a defense."
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
At a competency hearing on July 30, 2001, in response to the courts inquiry, defense counsel agreed to submit the matter of competency on the reports and letters from the doctors. After hearing argument from defendant, the court found him "competent to stand trial." Defendant expressed agreement that he was competent. The case then proceeded to trial without further competency disputes.
"The law in this area is settled. . . . Trial of an incompetent criminal defendant violates his or her right to due process." (People v. Weaver (2001) 26 Cal.4th 876, 953.) "Due process requires that any doubt regarding the defendants competency be properly evaluated by experts prior to proceeding with trial." (People v. Castro (2000) 78 Cal.App.4th 1402, 1419, citing People v. Harris (1993) 14 Cal.App.4th 984, 995.) Under the governing statutes in criminal proceedings," A person cannot be tried or adjudged to punishment while mentally incompetent. ([Pen. Code] § 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [Citation.] When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] "Evidence is substantial if it raises a reasonable doubt about the defendants competence to stand trial." [Citation.] [Citation.]" (Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 486; see also People v. Welch (1999) 20 Cal.4th 701, 737, 976 P.2d 754; Pederson v. Superior Court (2003) 105 Cal.App.4th 931, 936.) "At that point all criminal proceedings must be suspended until a hearing has been conducted to determine whether the defendant is presently mentally competent. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 526, 896 P.2d 119.)
We find no flaw in the competency hearing in the present case. The failure of the court to take additional evidence or conduct a further hearing on the issue of defendants competency was not error. The record indicates that the court was familiar with the three reports and the addendum filed by the experts. Argument from defendant was received, and defense counsel agreed to submit the issue of competency solely upon the reports. The court then expressed no doubt of defendants competence to stand trial. "The fact that neither party chose to present evidence on the issue does not point to the absence of a hearing. This very situation is clearly contemplated in section 1369, subdivision (b)(2), Penal Code." (People v. Maxwell (1981) 115 Cal. App. 3d 807, 812, 171 Cal. Rptr. 579.) Our high court has declared that "a full-blown adversarial hearing on the question" of competence is not required, and defense counsel may "waive a full jury trial with live witnesses." (People v. Weaver, supra, 26 Cal.4th 876, 903.) "[A] defense attorney may validly submit a competency determination on the available psychiatric reports." (Id. at p. 905.) As the court explained in People v. McPeters (1992) 2 Cal.4th 1148, 1169, 832 P.2d 146: "Section 1368 entitles defendant to a hearing on the issue of competence and he received one. Although defendants counsel, for understandable reasons, elected to waive certain available incidents of the hearing procedure, i.e., the right to jury trial and the rights to present oral testimony and to confront and cross-examine witnesses, defendant presented evidence and received an independent judicial determination of his competence to stand trial based on the stipulated record."
II. The Finding of Competency.
We turn to defendants challenge to the finding of his competence to stand trial. As a reviewing court we will not disturb the finding of competency if there is "any substantial and credible evidence in the record to support the finding." (People v. Castro, supra, 78 Cal.App.4th 1402, 1418.) "`The trial judges ruling regarding whether a competency hearing is required should be given great deference. "An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." [Citations.]" (People v. Weaver, supra, 26 Cal.4th 876, 953.)
The trial courts finding of competence is supported by the opinion of at least one of the appointed experts. The court was not required to accept the contrary expert opinion testimony, particularly where Dr. Lehmans conclusion that defendant lacked the capability of "rationally cooperating with his attorney to present a defense" was somewhat equivocal and limited to the context of repeated disputes with his appointed attorneys. (See People v. Coogler (1969) 71 Cal.2d 153, 166, 77 Cal. Rptr. 790, 454 P.2d 686; People v. Perez (1992) 4 Cal.App.4th 893, 900.) The trial court also had the opportunity to extensively observe and communicate with the defendant in the proceedings, which contributed to the determination of his competency. We find in the record ample evidence that although defendant may have been obstreperous and exceedingly obstinate, he was nevertheless capable of cooperating with counsel, even if he chose not to do so. "`The test, in a section 1368 proceeding, is competency to cooperate, not cooperation. [Citation.]" (People v. Hightower (1996) 41 Cal.App.4th 1108, 1112.) The evidence supports the trial courts finding that defendant was competent to stand trial. (Ibid.)
III. The Admission of Prior Acts Evidence.
Defendant also argues that evidence of his acts of domestic violence committed in 1997 and 1998 was erroneously admitted at trial over defense objection. He claims that the evidence of his prior "bad acts" was not admissible under either Evidence Code section 1101 or section 1109. Therefore, defendants argument concludes, the admission of the "highly prejudicial" evidence "requires reversal of the judgment."
We conclude that the evidence of appellants commission of prior acts of domestic violence was admissible pursuant to Evidence Code section 1101, subdivision (b) (hereafter section 1101). "Even before the enactment of section 1109, the case law held that an uncharged act of domestic violence committed by the same perpetrator against the same victim is admissible . . . ." (People v. Hoover (2000) 77 Cal.App.4th 1020, 1026.) Although subdivision (a) of section 1101 "establishes a general rule that character evidence is inadmissible to prove a defendants conduct on a specific occasion[,] . . . under subdivision (b) of section 1101, evidence that a defendant has committed a crime, civil wrong or some other act may be admissible to prove certain facts, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (People v. Branch (2001) 91 Cal.App.4th 274, 280; see also People v. Catlin (2001) 26 Cal.4th 81, 111.) Subdivision (b) of section 1101 "creates an exception to subdivision (a): evidence of conduct may be admitted to prove motive or intent, although it may not be admitted to show a disposition to do the type of conduct shown by the evidence." (People v. Memro (1995) 11 Cal.4th 786, 864, 905 P.2d 1305.)
Past acts of domestic violence by defendant committed against Foxine were quite probative evidence in the present case to prove the crucial, disputed element of his intent to maliciously conceal the child from her, as required to establish a violation of Penal Code section 278.5, subdivision (a). (People v. Casagranda (1941) 43 Cal. App. 2d 818, 822, 111 P.2d 672.)
"Intent may properly be inferred from evidence of other specific acts of a similar nature." (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) "`"If a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.] [Citation.]" (People v. Miller (2000) 81 Cal.App.4th 1427, 1448; see also People v. Quartermain (1997) 16 Cal.4th 600, 626-627, 941 P.2d 788; People v. Rowland (1992) 4 Cal.4th 238, 261, 841 P.2d 897; People v. Robbins (1988) 45 Cal.3d 867, 879, 248 Cal. Rptr. 172, 755 P.2d 355.)
As with other forms of circumstantial evidence, admissibility of character evidence such as a prior uncharged crime depends upon "`the materiality of the fact sought to be proved or disproved " and "`the tendency of the uncharged crime to prove or disprove the material fact . . . . " (People v. Robbins, supra, 45 Cal.3d 867, 879, quoting People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal. Rptr. 289, 611 P.2d 883.) To be admissible, evidence of an uncharged offense must tend logically, naturally and by reasonable inference to establish any fact material to the Peoples case, or to overcome any matter sought to be proved by the defense. (People v. Robbins, supra, at p. 879.) "In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding or an intermediate fact `from which such ultimate fact[] may be presumed or inferred. (See Law Revision Com. comment to Evid. Code, § 210.)" (People v. Thompson, supra, at p. 315, fns. deleted; see also Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 430.)
Here, defendants commission of past acts of violence upon Foxine and endangered Cheyenne support the inference that he harbored enmity toward the victim and intended to cause her harm again. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212; People v. McCray (1997) 58 Cal.App.4th 159, 172; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.) Evidence of prior acts of physical abuse committed by the defendant upon the victim "`is properly admitted . . . to show the motive and state of mind of the defendant. . . . " (People v. Linkenauger, supra, at p. 1610, quoting People v. Cartier (1960) 54 Cal.2d 300, 311, 5 Cal. Rptr. 573, 353 P.2d 53; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 586; People v. McCray, supra, at p. 172.)
Moreover, the defendants prior domestic violence offenses, although not identical to the concealment of Cheyenne, are sufficiently similar in nature to the present crime for purposes of proof of intent and motive. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] `The recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "probably harbored the same intent in each instance." [Citations.] [Citation]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402, 867 P.2d 757; People v. Zepeda, supra, 87 Cal.App.4th 1183, 1210.) And where, as here, prior and charged acts involve the same perpetrator and the same victim, the evidence is considered admissible without the requirement of a distinctively similar modus operandi. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335; People v. McCray, supra, 58 Cal.App.4th 159, 172; People v. Linkenauger, supra, 32 Cal.App.4th 1603, 1612, People v. Zack (1986) 184 Cal. App. 3d 409, 415, 229 Cal. Rptr. 317.) "The courts have concluded that evidence of prior quarrels between the same parties is obviously relevant on the issue whether the accused committed the charged acts." (Rufo v. Simpson, supra, 86 Cal.App.4th 573, 585.)
The history of recurring domestic violence between defendant and Foxine both furnishes a strong inference that he intended to conceal their child for the purpose of yet again causing suffering to her, and refutes his defense that he acted in good faith to protect Cheyennes welfare or with other innocent mental state. While the past acts involved physical violence and the present offense resulted in infliction of emotional distress, the evidence of domestic abuse was nevertheless relevant to prove defendants intent to harm the victim. (People v. McCray, supra, 58 Cal.App.4th 159, 172.) Defendant "`was not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victims relationship . . . [was] peaceful and friendly. [Citation.]" (People v. Garcia, supra, 89 Cal.App.4th 1321, 1335.) Therefore, defendants prior acts of violence were admissible under section 1101, subdivision (b), to prove that he acted on this occasion with intent to maliciously conceal the child to inflict harm upon Foxine. (See People v. Hoover, supra, 77 Cal.App.4th 1020, 1026; People v. McCray, supra, at p. 172.)
"Once a court determines that a prior bad act is admissible under Evidence Code section 1101, subdivision (b), it must conduct a further inquiry. Evidence of uncharged offenses "is so prejudicial that its admission requires extremely careful analysis. . . ." . . . [P] . . . To be admissible such evidence "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. . . ." [Citations.] A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1210-1211.)
Appellant complains that the trial court failed to conduct the necessary Evidence Code section 352 inquiry. "However, a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Here, the record indicates that the court engaged in the requisite balancing process under Evidence Code section 352. Following extended argument during which defense counsel specifically urged exclusion of the evidence "under 352," the court admitted only "some testimony" on the prior acts, and avowed: "I am going to control that testimony." The court also expressly declared that "under 352 the Court will exercise its discretion as the questions are put and the answers are forthcoming. Thats the ruling at this point." True to its announced ruling, during the course of the trial the court subsequently excluded on section 352 grounds specific testimony proffered by the prosecution of prior disputes between defendant and Foxine. The record demonstrates to us that the trial court was aware of its responsibility to weigh the probative value of the evidence against its prejudicial effect, and conducted an Evidence Code section 352 inquiry before ruling on the admissibility of prior acts evidence. (People v. Taylor, supra, at p. 1169; People v. Branch, supra, 91 Cal.App.4th 274, 282.)
We further find that the trial court did not abuse its discretion in admitting the evidence of defendants prior acts. "The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citations.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, `if the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citation.]" (People v. Daniels (1991) 52 Cal.3d 815, 856, 277 Cal. Rptr. 122, 802 P.2d 906; see also People v. Hawkins (1995) 10 Cal.4th 920, 951, 897 P.2d 574; People v. Johnson (1991) 233 Cal. App. 3d 425, 443, 284 Cal. Rptr. 579.) "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) "The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
"`On appeal, a trial courts resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling "falls outside the bounds of reason." [Citation.]" (People v. Catlin, supra, 26 Cal.4th 81, 122.) "We will reverse only if the courts ruling was `arbitrary, whimsical, or capricious as a matter of law. [Citation.] [Citation.]" (People v. Branch, supra, 91 Cal.App.4th 274, 282.)
The evidence of prior acts of domestic violence by defendant was offered to prove the material fact of his motive and intent associated with the concealment of Cheyenne, an essential element of the charged offense. (People v. Linkenauger, supra, 32 Cal.App.4th 1603, 1613-1614; Rufo v. Simpson, supra, 86 Cal.App.4th 573, 586.) The element of malicious intent was also keenly disputed by the defense. Intent was the crucial issue in the proceeding. The history of recurring domestic violence associated with the relationship between defendant and Foxine also had compelling probative value on defendants state of mind when he absconded with their child. (See People v. Garcia, supra, 89 Cal.App.4th 1321, 1335-1336; People v. Hoover, supra, 77 Cal.App.4th 1020, 1026.) Further, defendants intent was not easily susceptible to proof by other evidence in the case. While Foxine testified that defendant seemed to be pleased with her distress after Cheyenne was taken from her, the prior acts evidence was necessary to bolster her testimony and prove his malicious intent. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 650-651.) "The evidence reflects an ongoing picture of the relationship so that the [trial judge] can more effectively weigh the two parties testimony." (People v. Garcia, supra, at p. 1336.)
As with all prior acts evidence, defendants commission of domestic violence offenses carried with it the potential for inflammatory impact. However, "`"The prejudice referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues." [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 178, 862 P.2d 664; see also People v. Killebrew, supra, 103 Cal.App.4th 644, 650.) "`In applying section 352, "prejudicial" is not synonymous with "damaging." [Citations.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) Here, the prior acts evidence had a highly probative nature that outweighed the inherent potential for prejudice. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214, 892 P.2d 1199.) The evidence was neither remote in time nor more inflammatory than the testimony concerning the charged offense. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1338; People v. McCray, supra, 58 Cal.App.4th 159, 173.) Finally, with the court as the trier of fact rather than a jury, the prior acts evidence was less likely to evoke the kind of emotional bias that Evidence Code section 352 is designed to prevent. (See People v. Banks (1976) 62 Cal. App. 3d 38, 46, 132 Cal. Rptr. 751.) We find no abuse of discretion in the trial courts decision to admit the evidence. (People v. McCray, supra, at p. 173; People v. Von Villas (1992) 10 Cal.App.4th 201, 264.)
IV. The Evidence to Support the Conviction.
We next consider defendants contention that the evidence fails to support the conviction for a violation of Penal Code section 278.5. Specifically, defendant argues that the evidence does not adequately prove he "intended to do a wrongful act," or that he "took his daughter with the intent to vex and annoy Foxine," as section 278.5 requires.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "In evaluating the sufficiency of evidence, `the relevant question on appeal is not whether we are convinced beyond a reasonable doubt [citation], but `whether "`any rational trier of fact" could have been so persuaded [citation]." (People v. Hernandez (2003) 30 Cal.4th 835, 861.)
Penal Code section 278.5, subdivision (a), specifies a criminal offense for, "Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation . . . ." The statute requires a specific intent to detain or conceal the minor child from the parent who is the lawful custodian. (See People v. Hill (2000) 23 Cal.4th 853, 858; People v. Grever (1989) 211 Cal. App. 3d Supp. 1, 5, 259 Cal. Rptr. 469; People v. Lortz (1982) 137 Cal. App. 3d 363, 371-372, 187 Cal. Rptr. 89) "`The word "maliciously" as used in the statute, imports a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law. [Citation.]" (People v. Casagranda, supra, 43 Cal. App. 2d 818, 822.)
Penal Code section 278.5, subdivision (a) reads in full: "Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($ 1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($ 10,000), or both that fine and imprisonment."
We find in the record abundant evidence of defendants intent to maliciously conceal Foxines child from her. Inte nt to detain or conceal a child "is a question of fact which may be proven by direct evidence. It may also be proven by circumstantial evidence." (People v. Grever, supra, 211 Cal. App. 3d Supp. 1, 5.) Proof of the element of intent is gathered from all of the conduct of the parties and the circumstances of a case both before and after the act. (People v. Moore (1945) 67 Cal. App. 2d 789, 791-792, 155 P.2d 403;People v. Casagranda, supra, 43 Cal. App. 2d 818, 822.) Defendants conduct associated with the taking and concealment of Cheyenne indicates his wrongful intent. First, he failed to return Cheyenne as arranged and refused to disclose his whereabouts with the child to Foxine. (People v. Bormann (1970) 6 Cal. App. 3d 292, 295, 85 Cal. Rptr. 638; People v. Moore, supra, at pp. 791-792.) He then surreptitiously left the state with Cheyenne, and thereafter again did not advise Foxine or local authorities where they had gone. (People v. Lortz, supra, 137 Cal. App. 3d 363, 371.) In addition, Foxine testified that despite her pleas to return the child defendant seemed "pleased" that she was upset by his abduction of Cheyenne and refusal to communicate with her. Finally, the evidence of past acts of domestic violence by defendant demonstrated that he may have been currently motivated by a similar intent to inflict harm upon Foxine. (People v. McCray, supra, 58 Cal.App.4th 159, 172; People v. Linkenauger, supra, 32 Cal.App.4th 1603, 1612, People v. Zack, supra, 184 Cal. App. 3d 409, 415.)
Defendants contrary testimony that he believed he had a lawful right of custody and acted only to protect Cheyenne was apparently not accepted by the trial court, and does not negate the remaining substantial evidence of malicious intent. We must of course "view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support." (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193.) "`"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. [Citations.]" [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 361; see also People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) The evidence in the record amply supports the conviction.
V. The Necessity Defense.
Defendants final argument is that he established a necessity defense as set forth in Penal Code section 278.7, which provides in subdivision (a): "Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child." Defendant maintains that the evidence proved his "good faith belief that Cheyenne was in danger of immediate harm." He asks this court to "find that [he] was entitled to the benefits of the necessity defense provided in section 278.7, and thus that the [trial] court erred in finding him guilty of the charge of child concealment."
"The necessity defense is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile. [Citation.] . . . . . . [A] well-established central element involves the emergency nature of the situation, i.e., the imminence of the greater harm which the illegal act seeks to prevent. [Citation.] The commission of a crime cannot be countenanced where there exists the possibility of some alternate means to alleviate the threatened greater harm. [Citation.] (Fn. omitted.)" (People v. Beach (1987) 194 Cal. App. 3d 955, 971-972, 240 Cal. Rptr. 50.) "Further, it is not sufficient to show the individual merely believed he or she was avoiding a harm or evil to the child, it is necessary to show the belief was objectively reasonable; good intentions alone do not excuse a crime. (See 1 Witkin, Cal. Crimes (1963) Defenses, § 249, p. 233; 1985 supp., p. 245.) . . . The question that must be resolved [in the necessity defense] involves looking to all the choices available to the defendant and then determining whether the act . . . was the only viable and reasonable choice available. [Citation.]" (Id. at p. 972.)
Penal Code section 278.7, subdivision (c) imposes strict statutory requirements upon a defendant who seeks to take advantage of the necessity defense to a charge of violation of section 278.5, by providing: "The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following: [P] (1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed. [P] (2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act . . . or the Uniform Child Custody Jurisdiction Act . . . . [P] (3) Inform the district attorneys office of any change of address or telephone number of the person and the child."
Subdivision (d) specifies that "a reasonable time within which to make a report to the district attorneys office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. . . ."
Again, "We do not reassess the credibility of witnesses . . ., and we review the record in the light most favorable to the judgment . . ., drawing all inferences from the evidence which supports the [fact finders] verdict." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, citations omitted.) The trial court made a finding based upon substantial evidence that defendant acted with malicious intent to conceal the child rather than with a good faith and reasonable belief that Cheyenne would suffer immediate bodily injury or emotional harm if left with Foxine, and on appeal we cannot reweigh the evidence. (People v. Grever, supra, 211 Cal. App. 3d Supp. 1, 6-7.) Further, the record fails to prove that defendant complied with all of the stated conditions of the statutory defense found in subdivision (c) of Penal Code section 278.7. Most glaringly, he did not personally make a report to the office of the district attorney of the county where the child resided before the action. The only report of defendants action to Sonoma County authorities was made by Paula Crawford, not defendant. Penal Code section 278.7 has retained the prior common law condition of the necessity defense that "`required the individual committing the crime to report to the proper authorities immediately after attaining a position of safety from the peril. [Citations.]" (People v. Mehaisin (2002) 101 Cal.App.4th 958, 965, italics added.) And even Paulas report to Sonoma County authorities did not contain all of the information required by the statute: "the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed." (Pen. Code § 278.7, subd. (c)(1).) The trial court properly found that defendant was not entitled to the statutory necessity defense. (People v. Mehaisin, supra, at p. 965.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.