Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Ct.No. RIF110738. Dennis A. McConaghy, Judge. Affirmed.
Gerald Peters, 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, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Anthony John Wallace guilty of assault under Penal Code section 240 (count 1) and of willful infliction of corporal injury on a cohabitant under section 273.5, subdivision (a) (count 2). That same day, defendant admitted his prior strike conviction. The trial court sentenced defendant to four years in state prison.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court erred in allowing the jury to consider certain evidence and in failing to give a unanimity instruction. For the reasons set forth below, we will affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
Defendant and the victim had been dating for 13 years; they had a six-year-old daughter together.
On March 9, 2002, around 3:20 a.m., the victim’s other daughter, C.H., called 911 to report that defendant was hitting the victim in their bedroom. Around 3:30 a.m., Deputy Kevin Lamb responded to the call. Deputy Lamb knocked on the door. The victim answered, upset and crying. Deputy Lamb entered to search for defendant. Defendant was not in the house; the sliding door in the bedroom leading out to the backyard was open. The deputy saw a hammer on the bed. The victim told Deputy Lamb that she and defendant had been arguing, and defendant had punched her several times in the head and hit her on the left knee, left elbow, and chest area with the hammer. She stated that defendant had pinned her to the bed, and she was struggling to fight him off and escape when the deputy arrived.
On April 26, 2002, C.H. again called 911 reporting that defendant had hit her mother; her mother had locked herself in the bathroom, hiding. During the 911 call, C.H. told the operator that a month and a half prior, defendant had hit the victim with a hammer and crept out the sliding doors in the bedroom. When Deputy Jennifer Ontiveros arrived at the residence, the victim was in the bathroom applying an ice pack to the right side of her cheek; the cheek showed visible swelling. The victim was crying and upset. She also appeared to be in discomfort and tried to keep her jaw still while she spoke. The victim told the deputy that she and defendant got into an argument, during which she smacked her lips at him. He punched her with his left fist and knocked her onto the floor. The victim told Deputy Ontiveros that the abuse was an ongoing problem, and she wanted prosecution.
Deputy Daniel Decker took C.H.’s statement at the residence. C.H. stated that she heard an argument between defendant and the victim, during which the victim made a smacking sound with her lips. Defendant became angry, and C.H. saw him hit the victim on her face. After being hit, the victim dropped to her knees, and C.H. ran up to her. C.H. told Deputy Decker that this kind of abuse happened once a week or whenever defendant got angry.
During the preliminary hearings a year after the two incidents, both the victim and C.H. recanted their previous statements to the police officers. At the preliminary hearing on July 21, 2003, the victim testified that she only said that defendant hit her on March 9 because she wanted him out of the house. She also testified that the hammer was in her bedroom because she was hanging something up. The victim did not recall telling the officers that defendant punched her numerous times in the head, that he threw her and she tried to fight him off, or that she had pain in her head.
The victim also testified at the July 2003 preliminary hearing that on April 26, she and defendant were arguing just before police officers arrived at the house. She stated that she lied to the officers about defendant hitting her because she was angry and wanted him out of the housel. The victim denied that, when the officers arrived, they found her sitting in the bathroom with an ice pack on her face.
At the August 6, 2003, preliminary hearing, C.H. testified that on March 9, around 3:30 a.m., she was awakened by her mother and defendant arguing. She stated that she did not see defendant hit her mother. She stated that she called 911 because the argument woke her up in the middle of the night, and she assumed that defendant was hitting her mother.
C.H. also testified that on April 26 she did not recall whether she was home around 7:30 p.m., but she must have been because she called 911 from her home. She stated again that she did not see defendant hit her mother; she merely assumed that he had hit the victim because she heard them arguing. C.H. testified that she did not recall what she told the officers on April 26.
Neither the victim nor C.H. appeared for trial; the prosecution was unable to locate either of them. The trial court ruled that the two witnesses were unavailable and permitted their preliminary hearing testimony to be read into evidence. The court also allowed transcripts of C.H.’s 911 calls on March 9 and April 26 into evidence as spontaneous statements.
II
ANALYSIS
A. The Trial Court Properly Allowed the Jury to Consider the April 26 Evidence When Considering the March 9 Incident
Defendant contends that the trial court erred in instructing the jury that it could consider the April 26 evidence in considering the March 9 incident. We disagree.
1. Background
During jury deliberations, the jury submitted a note stating, “Can we use evidence from both ‘dates’ to determine both counts? 3-9-02 & 4-26-02 or do we separate the counts for each individual incident? ‘Count 1 on 3-9-02’ ‘Count 2 on 4-26-02[.]’” (Capitalization altered.)
The trial court responded by asking the jury to be more specific. Thereafter, the jury responded, “Can we use the April 26, 2002 evidence for Count #1.” The jury did not specify what portion of the April 26 evidence it was referring to -- whether it was C.H.’s 911 statements, the officers’ testimony, or both. Neither the court nor counsel could determine what specific evidence the jury was referring to in its note.
The trial court indicated that its first inclination was to tell the jurors that they could not consider evidence from the April 26 incident. The prosecutor responded that C.H. made relevant statements regarding the March 9 incident during her April 26 call to 911. The prosecutor asserted that C.H.’s statements from April 26 constituted prior inconsistent statements, given C.H.’s testimony at the preliminary hearing that she did not recall defendant hitting the victim on March 9.
Defense counsel responded that he believed the court’s initial response was correct because, although there was some collateral collaboration, he believed the evidence from each date should only be used for that specific date.
The trial court then stated that C.H.’s April 26 statement concerning the March 9 incident was relevant as a prior corroborative or inconsistent statement. The prosecutor suggested the court fashion a response to instruct the jury that it could use only the comments on the 911 tape from April 26 that referenced the March 9 incident.
Defense counsel stated that, although he objected to the jury considering any of the April 26 evidence for the March 9 count, if the count were to allow C.H.’s April 26 comments, then it should allow the April 26 evidence without qualification. Defense counsel stated that the court should simply answer “yes” to the jury question. Defense counsel’s reasoning was that he did not want the court to tailor its response to limit the jury’s consideration to the April 26 statements regarding the March 9 incident because that might focus the jury’s attention on those statements. The trial court then put an “x” through its original “No” response on the jury note, and wrote “Yes” next to it.
Nothing in the record indicates that the parties discussed Evidence Code section 1109 or instructing the jury on propensity evidence with CALJIC No. 2.50.02.
2. Standard of review
A trial court enjoys broad discretion in determining the admissibility of evidence. On appeal, we must uphold the court’s ruling unless there is a clear showing of an abuse of that discretion. (See People v. Harris (2005) 37 Cal.4th 310, 337.)
3. Analysis
In this case, the trial court admitted evidence from the April 26, 2002, incident to determine whether defendant was guilty of a criminal offense on March 9, 2002. Defendant argues that the court erred because (1) the April 26 evidence was not relevant to the March 9 charge; (2) the April 26 evidence was not admissible as propensity evidence for the March 9 incident; (3) the trial court failed to instruct the jury with CALJIC No. 2.50.02 regarding the use of propensity evidence; and (4) the prosecution failed to timely disclose the April 26 evidence to defendant.
a. The evidence was relevant
“The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)’ [Citation.] ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ [Citation.]” (People v. Harris, supra, 37 Cal.4th at p. 337.)
Here, C.H.’s 911 call on April 26 referenced the incident on March 9. As discussed above, C.H. told the 911 operator that defendant hit the victim with a hammer in a previous incident. This evidence, therefore, is relevant to the issue of whether defendant committed the assault on March 9.
b. The evidence was admitted under Evidence Code section 1235, not under Evidence Code section 1109 (propensity evidence)
Evidence Code section 1235 states: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his [or her] testimony at the hearing and is offered in compliance with Section 770.” Pursuant to Evidence Code section 770, “extrinsic evidence of a statement made by a witness that is inconsistent with any part of his [or her] testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him [or her] an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
Thus, “[t]he credibility of a witness may be challenged with evidence of prior statements by the witness that are inconsistent with the witness’s testimony at the trial.” (People v. Price (1991) 1 Cal.4th 324, 474.) To be admissible, the prior statement must be contradictory to some portion of the declarant’s testimony at trial. (People v. Williams (1976) 16 Cal.3d 663, 668-669; People v. Plasencia (1985) 168 Cal.App.3d 546, 551.) “Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ [sic] prior statement [citation] . . . .” (People v. Green (1971) 3 Cal.3d 981, 988.)
Moreover, pursuant to Evidence Code section 780, in determining the credibility of a witness, the trier of fact may consider any matter having any tendency in reason to prove or disprove the truthfulness of the witness’s testimony, including, among other things, a statement made by that witness that is inconsistent with any part of the witness’s testimony and his or her admission of untruthfulness. (Evid. Code, § 780, subds. (h) & (k).)
In this case, C.H.’s statements on April 26 were inconsistent with her preliminary hearing testimony and were consistent with and corroborative of her March 9 statements. C.H. was given an opportunity to explain or deny the statement to the 911 dispatch operator. She testified that she did not recall what she told the officers on April 26. Therefore, the statement was admissible as a prior inconsistent statement under Evidence Code section 1235.
Nevertheless, defendant argues that the April 26 evidence was not admissible under Evidence Code section 1109. Evidence Code section 1109 provides in relevant part that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1109, subd. (a)(1).)
Defendant contends that the evidence was not admissible under Evidence Code section 1109 because the April 26 evidence “concerned a charged act . . . .” (Capitalization omitted.) In support of his contention, defendant relies on People v. Quintanilla (2005) 132 Cal.App.4th 572. Quintanilla, however, is inapplicable. In Quintanilla, the trial court instructed the jury that it could consider evidence of the defendant’s other charged domestic violence offenses as evidence of criminal propensity. (Id. at pp. 579-580.) In this case, the trial court allowed the April 26 evidence as a prior inconsistent statement under Evidence Code section 1235, not as evidence of criminal propensity. Therefore, defendant’s argument fails.
In a related argument, defendant contends that even if the evidence was admissible under Evidence Code section 1109, (1) it should have been excluded because the prosecution failed to timely disclose the April 26 evidence, as required under Evidence Code section 1109, subdivision (b); and (2) the trial court failed to instruct the jury on the use of propensity evidence. We need not address these arguments because, as discussed above, Evidence Code section 1109 did not apply to the admission of the April 29 evidence.
c. Any alleged error was harmless
Even assuming the trial court erred in allowing the jury to consider the April 26 evidence for the March 9 charge, any such error was harmless. The Watson standard of harmless error applies to a trial court’s evidentiary rulings. (People v. Alcala (1992) 4 Cal.4th 742, 797.) In this case, the evidence that defendant committed simple assault on the victim on March 9 was overwhelming.
People v. Watson (1956) 46 Cal.2d 818, 836.
On March 9, C.H. made a 911 telephone call, stating that defendant was striking the victim in the bedroom. Deputy Lamb arrived at the residence within 10 minutes of the call and found the victim crying and found a hammer on the bed. Defendant was nowhere to be found in the residence; the sliding door from the bedroom to the backyard was open. The victim told Deputy Lamb that defendant had punched her several times around the head and hit her on various areas of her body with a hammer. She also stated that he had pinned her down to prevent her from getting away.
To prove a violation of section 240, simple assault, the prosecution evidence needed to show: (1) defendant willfully committed an act that by its nature would probably and directly result in the application of physical force on another person; (2) defendant was aware of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of this act that physical force would be applied to another person; and (3) at the time the acts were committed, defendant had the present ability to apply physical force to the person of another. (See section 240; CALJIC No. 9.00.) The prosecution did not have to prove actual injury to the victim.
Based on the evidence, as summarized above, even without the April 26 evidence, it is not reasonably probable that the jury would have reached a more favorable result for defendant.
B. There Was No Sua Sponte Duty to Give the Jury a Unanimity Instruction
Defendant contends that the trial court had a sua sponte duty to give the jury a unanimity instruction regarding the March 9 charge (count 1). Defendant contends that, because the jury found him guilty of simple assault on count 1, the jury could have used the facts from his April 26 assault to find him guilty of the lesser crime for count 1.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The reason for requiring either an election or a unanimity instruction when the evidence shows more than one unlawful act is that there is a risk that the jurors will select different acts in finding guilt on the single charge, with none of the acts being chosen by the jurors unanimously. (People v. Salvato (1991) 234 Cal.App.3d 872, 878-880.)
Here, the case involved two separate charges relating to two separate incidents. The information charged defendant with assault with a deadly weapon on March 9 (count 1) and willful infliction of corporal injury on a cohabitant on April 26 (count 2). The evidence at trial presented the jury with two separate crimes. The evidence from the March 9 incident showed that defendant struck the victim with his fist and with a hammer. The evidence from the April 26 incident showed that defendant struck the victim once in the face with his fist. Hence, the jury was not presented with a situation wherein more than one act was committed as to each charge. Therefore, the trial court did not have a sua sponte duty to give a unanimity instruction.
Even if the trial court erred in failing to give a unanimity instruction on the March 9 charge, any such error was harmless under any standard of prejudice. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545; Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson, supra, 46 Cal.2d at pp. at p. 836.) “The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning different specific acts proved is not reasonably possible.” (People v. Napoles (2002) 104 Cal.App.4th 108, 119, fn. omitted.)
In this case, the information charged defendant with assault with a deadly weapon on March 9, 2002. Only during the presentation of the March 9 incident was evidence of defendant’s use of a weapon, the hammer, presented to the jury. During closing statements, the prosecution made clear that the assault with a deadly weapon charge rested on defendant’s striking the victim with a hammer on March 9. Therefore, reasonable jurors would have based their guilty verdicts for count 1 on defendant’s acts committed on March 9, and not April 26.
Therefore, even if the trial court erred in failing to give a unanimity instruction, any such error was harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J., MILLER J.