Opinion
E070983
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY WATKINS II, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1703165) OPINION APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Reversed in part; affirmed in part with directions. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Gary Watkins II punched Jane Doe in the face while she was holding her four-year-old son, T.F. (Son). Doe went to the hospital two weeks later and presented with nasal bone fractures, and bruising on her face as a result of defendant punching her. When the police went to defendant's house to talk to him about Doe's injuries, he fled. A sweep of the house revealed a shotgun under defendant's bed. Defendant was convicted of battery causing serious bodily injury, willful infliction of corporal injury on a domestic partner, unlawful possession of a firearm and misdemeanor child endangerment.
Defendant claims in his opening brief on appeal that (1) the trial court admitted irrelevant and inflammatory expert testimony regarding Battered Women's Syndrome (BWS); (2) the trial court prejudicially erred by admitting a prior incident involving possession of a gun; (3) the trial court's modification of CALCRIM No. 852 impermissibly instructed the jury that it could use the prior gun possession as propensity evidence; (4) cumulative error warrants reversal of his convictions; (5) insufficient evidence was presented to convict him of a misdemeanor violation of Penal Code section 273a, subdivision (b); (6) the three-year sentence imposed for his prison prior pursuant to section 667.5, subdivision (a), must be stricken as the prior was not a violent felony; and (7) remand is necessary for the trial court to exercise its discretion to strike the prior serious felony conviction found true pursuant to section 667, subdivision (a), after the passage of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (SB 1393). In supplemental briefing, defendant contends that his two prison priors imposed pursuant to section 667.5, subdivision (b), must be stricken pursuant to newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted of battery causing serious bodily injury (§ 243, subd. (d); count 1); willful infliction of corporal injury on a domestic partner resulting in a traumatic condition (§ 273.5, subd. (a); count 2); unlawful possession of a firearm (§ 29800, subd. (b)); and misdemeanor child endangerment (§ 273a, subd. (b); count 4). In addition, the jury found true for count 2 that he personally caused great bodily injury (§ 12022.7, subd. (e)).
In a bifurcated proceeding, after waiving his right to a jury trial, defendant admitted some of the prior convictions and the trial court found the other prior convictions true as follows: a prior serious felony conviction within the meaning of section 667, subdivision (a)(1); one prior serious or violent felony within the meaning of sections 667, subdivisions (b), through (i), and 1170.12, subdivisions (a), through (d); one prior prison term within the meaning of section 667.5, subdivision (a); and two prior prison terms within the meaning of section 667.5, subdivision (b). On June 28, 2018, the trial court sentenced defendant to 22 years in state prison.
B. FACTUAL HISTORY
1. CURRENT INCIDENT
Doe started seeing defendant in 2016. Doe fell in love with defendant. He was nice to her in the beginning of the relationship but he changed. In January 2017, Doe and Son planned to spend four or five days at defendant's house in Moreno Valley. Doe brought Son with her so that he could spend time with defendant's four-year-old daughter who sometimes stayed with defendant.
Defendant, Doe, Son and defendant's daughter all slept in the same room. At some point, defendant got upset because his daughter's electronic tablet got broken. Defendant accused Son of breaking it. Defendant threw the tablet. He yelled at his daughter and made her go to bed early. Doe told him to stop yelling or his daughter would hate him when she got older.
Defendant got angrier. He told Doe to leave. Defendant threw her car keys at her. The keys hit her in the arm, leaving a bruise. She held onto Son. Defendant blocked the bedroom door and she told him she would not leave until he moved far away from the door; she was afraid for Son.
As Doe approached the door, defendant hit her in the face and everything went dark. She thought defendant hit her in the left eye but both eyes ended up being black. Doe was able to sit down in a nearby chair and she yelled for defendant's roommate. Son said, "Mommy, you're bleeding." Defendant hit her a second time on her forehead then threw a washcloth at her to wipe up the blood. She looked in the mirror and she was bleeding from her nose and her mouth. Son had her blood on his shirt. She had a lot of pain in her nose. Her tooth was chipped and she had a cut on her nose that was bleeding.
Doe did not call the police because she was afraid of child protective services. Defendant told her she could not leave with her face hurt. Defendant told her that he hit her because of her attitude and because she did not know how to be quiet. She stayed at defendant's house for two weeks because her car was not working, she had nowhere else to go and she was waiting for her face to heal.
During the two weeks, Doe was able to go the store and the park with Son. She never called the police. She did not want to leave and have her family see what had happened to her. Defendant eventually drove her home. Only one eye was still bruised.
V.S. was Doe's aunt. When Doe arrived home, V.S., Doe's mother, and grandmother all noticed her injuries. Doe was crying; she had a black eye; and bad bruising on her nose and face. Son told V.S. that defendant had hit Doe. V.S. contacted defendant. Defendant told her that he beat up Doe because she refused to leave his home.
V.S. took Doe to Hemet Valley Hospital on February 7, 2017. Doe advised medical personnel that she had pain in her face, arm and abdomen. Doe explained that she had been hit in the face and abdomen, and had keys thrown at her arm. A scan was conducted and revealed that her nose was broken in several places, and there was bruising of the internal tissues on her check and left side of her face. Her septum was deviated to the right. She had bruising around her left eye. The bruising was indicative of a recent injury. She had blood in her sinuses. There was no fracture in her arm. She had internal bruising in her abdomen. The police were contacted since Doe reported being hit in the face.
Anca Kovacs, a physician's assistant at the hospital, noted that Doe's broken nose could have been obtained in a car accident, but other injuries that would normally occur in a car accident were not present. Doe's injuries appeared to be recent. Doe's eye injuries were consistent with being hit in the face. Doe told one of the medical staff that defendant told her she could not let anyone see her face but she could not recall stating she had been held hostage.
Riverside County Sheriff's Deputy Donald Atkinson responded to Hemet Valley Hospital due to the report of Doe's injuries. When he was summoned to the hospital, it had been reported that Doe may have been involved in a hostage situation. Doe told him how she sustained her injuries similar to her testimony in court. Doe gave him photographs she had taken of her face on her cellular telephone just after the incident; her injuries were much more severe in Doe's photographs. The photographs were taken on January 29, 2017. Doe told Deputy Atkinson there were multiple reasons why she did not leave after defendant hit her.
After this incident, Doe received aid for housing that was approved for only her and Son. She let defendant live with them. She was not aware it was a felony to allow defendant to live with them.
Prior to being hit by defendant, Doe had been in a car accident. She could not recall exactly when the accident occurred. It damaged the front of her car. She denied that she injured her face during the accident; her face did not hit the steering wheel. She did not report the incident because she had no insurance. V.S. saw Doe right after her car accident and did not notice any injuries to her face.
2. INCIDENT AT ROSS STORE AFTER CURRENT INCIDENT
Doe resumed her relationship with defendant a few months after the incident. In October 2017, Doe and defendant went to a Ross store and were shopping when defendant got angry with the store clerk. When they exited the store, Doe turned to walk away because she felt she should not get in the car with him. He asked her what she was doing and she told him she was not getting in his car until he calmed down. Defendant pushed her to the ground, took her purse and cell phone and left. The security guard at Ross called the police as he observed defendant "pummel[]" Doe and throw her to the ground. Defendant returned and threw her purse and her phone at her. He told her, "I'm not playing with you." The phone hit her in the ear and cracked. She hid in the store. Defendant came into the store and she hid behind the security guard. Defendant fled.
The police arrived and she told them she was scared of defendant. The police found defendant at her apartment and took him into custody. She obtained a restraining order to protect Son; she still loved defendant. She did not want to testify against defendant because she still had feelings for him.
3. GUN POSSESSION
Calvin Le lived with defendant in Moreno Valley. The house had two bedrooms and two bathrooms. At trial, Le indicated that his friend Matthew also lived with them and stayed in the master bedroom. Le slept on the couch and defendant had one of the bedrooms. Le usually played the television loud in the living room and could not hear what was occurring in the bedrooms.
Le was home when the police, including Deputy Atkinson, arrived to speak with defendant in the early morning hours of February 8, 2017. Le went to defendant's room and woke him up to tell him the police were at the residence. Defendant ran out the back of the house. He was observed by an officer jumping over the backyard fence. Le let the police in and they went into defendant's room.
Deputy Atkinson indicated that Le initially opened the door but shut the door and they talked through the closed door for at least 15 minutes. While they talked, defendant ran out the back. Le let Deputy Atkinson in the house. He conducted a safety sweep and no one else was in the house. Le told him that both bedrooms belonged to defendant. On one of the beds, a cellular telephone was found that belonged to defendant. Underneath the same bed was a shotgun. The shotgun was not registered. No fingerprints were found on the shotgun. Doe confirmed the room where the shotgun was found belonged to defendant. The parties stipulated that defendant was prohibited from owning or possessing a firearm.
4. PRIOR INCIDENT INVOLVING DOE AND DEFENDANT
Defendant first hurt Doe when she and him were taking Son to the dentist in the fall of 2016. They got into an argument in the car. He accused her of having an attitude. Doe asked him if she should get out of the car and he pulled over on the freeway and told her she should get out. She got out and reached into the backseat to get Son out of the car. Son was standing outside the car and she turned around. Defendant was behind her and threw her to the ground. She hurt her ankle and her hand. Doe got up, grabbed Son and then quickly walked away leaving her purse and car seat behind in defendant's car. Defendant pulled up next to her and threw her items on the ground. He drove away. Doe had a cellular phone but did not call the police. The police eventually arrived after a passerby called them. She refused to tell them what had happened to her and they took her and Son to his appointment. She did not want defendant to be arrested because she was afraid child protective services would get involved.
She denied she previously testified that she pushed defendant out of the way.
Doe and defendant did not break up because of the incident. She still loved him and he apologized.
5. PRIOR INCIDENTS INVOLVING DEFENDANT AND EX-GIRLFRIENDS
D.M. had dated defendant and lived with him in Moreno Valley in 2003. In December 2003, she and defendant got into an argument one night and he slapped her. She was bruised from the incident. She did not report the incident to the police but advised him he should move out. He had nowhere to go so she agreed to let him stay but they were no longer romantically involved. He apologized to her.
Several months later, they got into another argument. Defendant got angry and punched her in the eye. She grabbed his crotch area and he backed off. He then rushed toward her, got on top of her and choked her. She was able to get him off of her and she asked him for a glass of water. While he left to the kitchen, she grabbed her car keys and ran out of the house. D.M. chased down a police officer who came back to the apartment with her. Defendant was gone and had taken his belongings. D.M. had a black eye and scratches on her neck from the incident. She filed a police report.
P.W. had been married to defendant for three years and they had two children together. P.W. had remarried. She did not want to testify; she was under subpoena. During their marriage, on March 25, 2006, she, defendant and their children lived with a friend in San Bernardino. She and defendant got into an argument and she threw a cup of water in his face. He pushed her down, backwards onto a table. Defendant also punched her in the face. Her friend called the police and officers came to the apartment. She had bruising on her back and a split lip as a result. Despite her injuries, she stayed in a relationship with defendant.
Several years later, on August 26, 2012, defendant and P.W. were involved in another incident in Moreno Valley. P.W. had left defendant and was living with her mother. Defendant arrived at the residence and demanded to see his children, who were in P.W.'s custody. He got upset when she refused; she asked him to leave and he threatened her. She was concerned about her children and told him she was going to call the police. P.W.'s sister came out of the house and observed the incident. P.W. thought she saw a gun inside defendant's car and her sister confirmed there was a gun in defendant's car. They went inside and called the police. The police arrived but defendant could not be located.
6. DOMESTIC VIOLENCE EXPERT TESTIMONY
Riverside Police Detective Christian Vaughan was assigned to a division at the police department that specialized in domestic violence and physical elder abuse. He had previously testified as an expert on domestic violence.
Detective Vaughan indicated that most domestic violence occurred behind closed doors. There were myths and misconceptions about domestic violence that helped abusers. He indicated there generally was a cycle of violence in relationships, which involved domestic violence. This cycle of violence included the tension building stage; the abusive stage, which could involve both physical and verbal abuse; and finally, there was the honeymoon stage during which the abuser reconnects with the victim to keep them from reporting the incident or to convince the victim to stay with him or her.
Typically an abuser becomes violent in order to exercise power and control over the victim. An abuser will try to intimidate the victim by destroying personal items and by being verbally abusive. An abuser oftentimes tries to isolate the victim from his or her family and friends in order to exercise power and control. An abuser would use any financial dependency on the victim's part to control the victim. Whether a victim leaves a violent relationship depends upon their financial situation, support of family, and the victim's self-worth.
Some abusers were immediately violent in a relationship and others take years to develop violent tendencies. A victim of domestic violence was oftentimes ashamed and did not want to report the incidents. It took an average of seven incidents before a victim would report the abuse.
Detective Vaughan acknowledged that he was unaware of the relationship between defendant and Doe. It was possible none of the factors he discussed applied to them.
7. DEFENSE
V.S. indicated she had a normal family relationship with Doe. She supported Doe. Doe's mother and grandmother also supported her. Doe could have lived with them.
Timmi Fowler was working at Hemet Valley Hospital on February 7, 2017. She was a registered nurse employed in the emergency department. She called the police about the injuries to Doe. Doe told Fowler that Doe had been beat up by her boyfriend two weeks prior and had been held hostage with very little food and drink.
DISCUSSION
A. EXPERT TESTIMONY ON BWS
Defendant contends the trial court erroneously allowed Detective Vaughan to testify that sufferers of domestic violence did not report their abuse for fear that their abuser would not be prosecuted or would be released on bail. This was prejudicial as it highlighted the prior acts of domestic violence committed by defendant and gave the jury the impression he had not been punished for those acts.
1. ADDITIONAL FACTUAL BACKGROUND
When Detective Vaughan testified, the prosecutor asked him if he had heard the statement "a real victim wouldn't stay in an abusive relationship." Detective Vaughn noted that this was very common. He explained this was perpetrated by real life facts where a woman stays with a man even after the abuse because of a desire to have a relationship or thinking the abuse would not occur again. Detective Vaughan testified, "But that is typically not the case. Most domestic violence incidents go unreported because abusers will very often promise that it's not going to happen again; that they will change; that they'll overcome whatever issues are creating the situation, whether it's an anger problem, whether they're just controlling, sometimes it's alcohol, sometimes drugs. It's a very complex issue. And then when you factor in the nature of the criminal justice system and—or the fact that everybody gets bail, even when they are arrested." Defendant's counsel objected on relevance grounds. The trial court overruled the objection and advised counsel she could address the issue on cross-examination.
Detective Vaughan then testified, "The myth actually inadvertently gets perpetuated, because when someone gets arrested or if it is just a report and cases aren't filed, oftentimes that empowers an abuser and—." Defendant's counsel again objected and asked for a sidebar. The objection was overruled and the request for a sidebar conference was denied. Detective Vaughan additionally testified, "And that allows an abuser to point to the fact that there's nobody that's going to help them."
At the conclusion of evidence, the jury was instructed, "You have heard testimony from Christian Vaughan regarding the effect of intimate partner battery. Christian Vaughan's testimony about intimate partner battery is not evidence that the defendant committed any crimes charged against him. You may consider this evidence only in deciding whether or not [Doe]'s conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony."
2. ADMISSION OF DETECTIVE VAUGHAN'S TESTIMONY
Defendant does not appear to contend that Detective Vaughan could not testify at all about BWS. Rather, he contends that despite such testimony being generally admissible, based on the relevancy requirement of Evidence Code section 1107, there was no foundation for the testimony about victims failing to report incidents due to fear or wanting to stay with their abuser, or that victims do not report because their abuser may be let out on bail. Such testimony was irrelevant based on the facts in this case and should have been excluded.
"The trial court has broad discretion in determining the relevance of evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) Evidence Code section 1107 authorizes an expert to testify regarding " 'the nature and effect of physical, emotional, and mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence.'" (People v. Brown (2004) 33 Cal.4th 892, 904-905.) "The relevance of this evidence is based on the possibility that the jurors will doubt that a witness who claims to have been abused has indeed acted in the manner to which he or she testified, and therefore the jurors might unjustifiably develop a negative view of the witness's credibility. [Citation.] Even if the defendant never expressly contests the witness's credibility along these lines, there is nothing preventing the jury from ultimately finding in its deliberations that the witness was not credible, based on misconceptions that could have been dispelled by BWS evidence. Thus, there is no need for the defendant first to bring up the potential inconsistency between a witness's actions and his or her testimony before the prosecution is entitled to attempt to dispel any misperceptions the jurors may hold by introducing BWS evidence, provided, of course, that there is an adequate foundation for a finding that the witness has been affected by BWS." (People v. Riggs (2008) 44 Cal.4th 248, 293 (Riggs).)
Here, defendant's case was based on attacking Doe's credibility. The evidence established that Doe did not contact the police when she was thrown to the ground on the freeway by defendant when they were taking Son to the dentist. A passerby called the police but Doe refused to tell the police officer what had occurred. Further, she stayed with defendant after the incident. Despite her testimony that she did not report the incident because she did not want child protective services to be involved, the jury could certainly consider that she also was afraid of what defendant may do to her if she reported the incident.
Moreover, Doe did not contact the police when the current incident occurred. The police were only contacted when she went to the hospital two weeks after the abuse and the nurses, who were mandatory reporters, contacted the police based on her statements that defendant hit her. While Doe did testify again that she did not contact the police because she was fearful that child protective services would become involved, the jury could certainly consider there were other reasons that she did not contact the police.
Moreover, after the current incident, Doe went back with defendant, and he again hit her in public. The jury was not advised if defendant was ever arrested on the current incident. As such, it was reasonable for the jury to presume that either defendant had never been arrested on the first incident, or defendant had been released on bail awaiting trial on the current incident when he hit her at the Ross store. The evidence that abusers are released on bail was relevant to the fact that defendant could have been on bail when he hit Doe at the Ross store. It was also relevant if he had never been arrested that Doe did not report defendant's whereabouts to the police despite the fact he was responsible for the current incident. The People were entitled to present evidence bolstering Doe's credibility. This included Detective Vaughan's testimony as to why abuse can go unreported or why a victim stays with his or her abuser.
As for defendant's other victims, D.M. did not report the first incident involving her and defendant when he slapped her in the face. She continued to let him live with her despite the abuse. P.W. testified that when defendant pushed her into the table and punched her a friend called the police. She also testified she stayed with defendant. Detective Vaughan's testimony was relevant to explain why P.W. and D.M. stayed with defendant despite the abuse.
Here, Detective Vaughan briefly mentioned that some women would not report the abuse because their abuser would be released on bail. This was in addition to testimony that some victims did not report because their abuser would retaliate, or would promise not to engage in any further violent acts. Detective Vaughan never indicated that this was the situation in this case, and clearly was only generally discussing occurrences when a person suffered from BWS. As discussed, the jury was aware that defendant had hit Doe in January 2017, but also was with her in October 2017 at the Ross store and hit her again. Defendant was able to abuse Doe despite the current incident being reported to the police. The court did not abuse its discretion by admitting Detective Vaughan's testimony.
3. PREJUDICE
Defendant contends the admission of the evidence was prejudicial because it highlighted a question of whether defendant had suffered any consequences due to his past violent actions against intimate partners. Based on the evidence presented regarding the prior acts committed by defendant, the jury could have reasonably concluded he had never been prosecuted for those acts. Defendant insists the jury was led by Detective Vaughan's testimony and "lack of evidence of any conviction to imagine that [defendant] had never suffered any legal consequences in connection with his past behavior."
The erroneous admission of BWS testimony is reviewed under the state law error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gomez (1999) 72 Cal.App.4th 405, 419, disapproved of on other grounds in People v. Brown, supra, 33 Cal.4th 892.) We conclude it is not reasonably probable that the jury would have reached a more favorable result for defendant had the testimony of Detective Vaughn been excluded.
Initially, the jury was instructed as to the uncharged acts of domestic violence that they were "only one factor to consider with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of inflicting injury upon someone with whom he had a relationship resulting in a traumatic condition . . . The People must still prove each charge and allegation beyond a reasonable doubt." They also were advised that they could only consider Detective Vaughan's testimony in assessing Doe's credibility, and not to show defendant's guilt. We presume the jurors followed the given instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Further, there is nothing in the record to support that the jury convicted defendant of injuring Doe in order to punish him for the prior acts of violence. The evidence against defendant as to counts 1 and 2 was overwhelming even without Detective Vaughan's testimony, or even consideration of the prior incidents. Doe presented at the hospital with a broken nose and bruising on her face. The bruising was indicative of a recent injury and consistent with her being punched in the face. Despite Doe having been in a car accident, Kovacs testified that Doe would have suffered other injuries if the face injury was caused by the accident, and V.S. saw Doe after the accident and she had no injuries to her face. Defendant admitted to V.S. that he had punched Doe in the face. Moreover, defendant was seen several months later punching Doe in the face. It was clear that defendant had a proclivity to hit Doe. The evidence established, even without Detective Vaughan's testimony, that defendant had hit Doe in the face causing her injuries. Any conceivable error was harmless.
B. PRIOR GUN POSSESSION
Defendant contends the trial court erred by admitting evidence through the testimony of P.W. that he had gun in his car when he threatened her in 2012. He essentially contends the evidence was more prejudicial than probative.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant filed a pretrial motion seeking to have the testimony of P.W. excluded from trial. As an offer of proof, defendant stated that P.W. was defendant's ex-wife and had been the victim of two prior domestic violence incidents with defendant. Defendant objected on Evidence Code section 352 grounds. As for the second incident occurring in August 2012, defendant removed a rifle from his trunk in front of a home belonging to P.W.'s sister after he and P.W. got into an argument; P.W. did not see defendant take out the rifle and he never used it against her. He argued the evidence should be excluded.
The People offered as to the prior incident involving defendant and P.W., that on August 26, 2012, defendant arrived at P.W.'s house and demanded to see his children. P.W. told defendant she was going to call the police and he needed to leave. Defendant told her, " 'You are going to feel it if I don't get my kids.' " He then retrieved a rifle from his trunk and put it in his backseat. The People relied upon Evidence Code sections 1101, subdivision (b), and 1109 to argue for the admission of the prior incident. Further, the People argued the incident should not be excluded pursuant to Evidence Code section 352.
The trial court found that the incident with P.W., for which he was convicted of misdemeanor making criminal threats, involved domestic violence and was necessarily admissible under Evidence Code section 1109 as to counts 1 and 2. The trial court rejected that it was more prejudicial than probative under Evidence Code section 352. The trial court also found the prior conviction admissible pursuant to Evidence Code section 1101, subdivision (b), to show knowledge, lack of mistake or accident as to the possession of firearm charge in count 3. It would show defendant was previously in possession of a firearm, and was not overly prejudicial.
2. RELEVANCE
"[Evidence Code] section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of the statute, however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge. . .).' . . . [T]o be admissible, such evidence ' " 'must not contravene other policies limiting admission, such as those contained in . . . section 352.' " ' " (People v. Cole (2004) 33 Cal.4th 1158, 1194.)
" '[T]o establish knowledge when that element is akin to absence of mistake, the uncharged events must be sufficiently similar to the circumstances of the charged offense to support the inference that what defendant learned from the prior experience provided the relevant knowledge in the current offense.' " (People v. Felix (2019) 41 Cal.App.5th 177, 186.)
Evidence Code section 1109 provides in part, "In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
"Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (Riggs, supra, 44 Cal.4th at pp. 289-290.)
"Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. [Citation.] The matter lies within the discretion of the trial court. [Citations.] The ruling here was well within the court's discretion." (People v. Carpenter (1997) 15 Cal.4th 312, 380.) "On appeal, we review the trial court's rulings concerning the admissibility of the evidence for abuse of discretion." (Riggs, supra, 44 Cal.4th at p. 290; People v. Gray (2005) 37 Cal.4th 168, 202.)
Defendant insists the evidence was not admissible pursuant to Evidence Code section 1101. Certainly, the fact that defendant had previously been in possession of a firearm was relevant as to whether he possessed the gun under the bed in his apartment.
Defendant claims the circumstances surrounding defendant's possession of the gun in 2012 was different from the instant offense, which required its exclusion. Defendant was the only person in the car in which the gun was seen in 2012, while the apartment involved in the instant case was occupied by three people. Further, Le stalled the police for 15 minutes prior to letting them in. We do not see these as differences requiring that the trial court sanitize the prior incident with P.W. to exclude reference to the gun.
Moreover, the entirety of the circumstances of the prior incident involving P.W. was admissible under Evidence Code section 1109. Defendant insists the detail that there was a gun in the car was not admissible pursuant to Evidence Code section 1109 because it was more prejudicial than probative under Evidence Code section 352. However, the gun possession during the prior incident was no more inflammatory than the gun possession in this case. Moreover, defendant was not entitled to show himself in a better light by excluding the fact that during the prior incident with P.W. he had a gun.
3. PREJUDICE
Even if we were to consider that the admission of defendant's prior possession of a gun was erroneous, "We review evidentiary errors for prejudice by determining whether it was reasonably probable that a jury would have returned a more favorable verdict for defendant had the court not admitted the evidence." (People v. Felix, supra, 41 Cal.App.5th at p. 187.)
The jury was admonished with CALCRIM Nos. 375 and 852 that they could not find defendant guilty of the current incident based solely on his commission of the prior crimes and that all of the current crimes still had to be proven by the People beyond a reasonable doubt, whether they were considered under Evidence Code section 1101, subdivision (b), or as propensity evidence under Evidence Code section 1109. We presume the jurors followed the instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)
Moreover, strong evidence supported that defendant possessed the gun under his bed even without the testimony from P.W. Defendant had been in the room as evidenced by Doe describing the same room as the one in which she had been hit. Further, defendant left his cellular telephone on top of the bed where the gun was located. Finally, as soon as the police arrived, defendant fled without his phone. Defendant stipulated he was prohibited from owing or possession a firearm. As such, the jury could reasonably infer that he was in possession of the gun and was aware he would be in trouble if found in possession of it. Any conceivable error in admitting the evidence of his prior gun possession was harmless.
C. CALCRIM NO. 852
Defendant insists the trial court erred by giving a modified version of CALCRIM No. 852. He claims that the instruction allowed the jurors to consider the admission of P.W.'s testimony regarding defendant's gun possession as Evidence Code section 1109 propensity evidence rather than under Evidence Code section 1101, subdivision (b), for count 3. As acknowledged by defendant, his counsel did not object to CALCRIM No. 852. We will briefly review the claim on its merits.
The written instruction of CALCRIM No. 852 provided as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: [¶] Defendant pushed [Doe] into a dirt mound on [the] side of freeway on the way to the dentist in San Bernardino County. [¶] Defendant pushed [Doe] into a concrete pillar outside of the Ross store in Hemet. He threw her purse and phone at her and then followed her into the store. Security guard Richard Garcia intervened and called the police. [¶] Defendant got upset when [P.W.] attempted to call the police. He punched her in the face and threw her into a table causing injury. [¶] Defendant showed up uninvited to see his kids in San Bernardino. Defendant was seen to have brought a gun in his car. When [P.W.] asked him to leave, stating she was going to call the police, Defendant threatened her. [¶] Defendant punched [D.M.] in the face in December of 2003. They talked with their pastor the following day. [¶] Defendant punched [D.M.] in the face. They struggled. Defendant mounted her and strangled her. [D.M.] had trouble breathing and thought she was going to pass out. [¶] Domestic violence means abuse committed against an adult who is a person who dated or is dating the defendant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Inflicting Injury On Relationship Resulting in a Traumatic Condition as charged in count 1. The People must still prove each charge and allegation beyond a reasonable doubt."
We have italicized the portions of the instruction that defendant contends were improper.
When the trial court read the instruction to the jury, it did not read the written instruction verbatim. Most importantly, the trial court modified the written instruction to provide, "If you decide that the defendant admitted the uncharged domestic violence, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence. And based on that decision, also conclude that the defendant was likely to commit domestic violence as charged here." (Italics added.) It further modified the instruction, advising the jury, "It is not sufficient by itself to prove that the defendant is guilty of inflicting injury upon someone with whom he had a relationship resulting in a traumatic condition as charged in Count 2." (Italics added.)
We have already addressed that the prior gun possession was properly admitted pursuant to both Evidence Code sections 1101, subdivision (b), and 1109.
"CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely. CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in [the] case." (People v. Reyes (2008) 160 Cal.App.4th 246, 252.)
In order to prevail on a claim that the jury instructions were misleading, a convicted defendant bears the burden of persuading a reviewing court that there is a reasonable likelihood that his or her jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.)
The jury was properly instructed that it could consider the prior acts of domestic violence in deciding whether defendant had the disposition to commit the crimes involving domestic violence in counts 1 and 2. This evidence was not relevant to determination of his guilt in count 3, the gun possession charge. However, based on the wording of the instructions, it is inconceivable the jury interpreted CALCRIM No. 8.52 to apply to the gun possession charge. The written instruction referred to count 1, and the oral instruction referred to count 2. Further, the instruction included language that based on the prior domestic violence incidents, the jury could consider that defendant committed acts of domestic violence.
Defendant argues that the jury could not distinguish between domestic violence and gun possession. However it is clear the gun possession charge did not involve domestic violence. The jury was instructed that to find defendant guilty of gun possession, it need only find that he owned and possessed a firearm and that he was a person prohibited from possessing a firearm. The record does not support that the jury interpreted the jury instructions to allow it to rely on the incident with P.W. as showing his propensity to a possess a firearm; CALCRIM No. 852 clearly only applied to those counts involving domestic violence.
Moreover, any conceivable error was harmless. As stated ante, the evidence of defendant's possession of the shotgun found under his bed was strong and the admission of the prior possession of a firearm was not prejudicial.
D. CUMULATIVE ERROR
Defendant contends that considered together, the evidentiary and instructional errors denied him a fair trial. Under the cumulative error doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (See People v. Sanchez (1995) 12 Cal.4th 1, 60, overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 380, 421.) Here, we have found that no trial errors occurred, and as such the cumulative error doctrine does not apply. Moreover, we found any conceivable errors to be harmless, and as a result, collectively they were not prejudicial. (See People v Lua (2017) 10 Cal.App.5th 1004, 1019.) Defendant has failed to show cumulative errors warranting reversal.
E. INSUFFICIENT EVIDENCE OF CHILD ENDANGERMENT
Defendant contends insufficient evidence was presented to support his conviction of a violation of section 273a, subdivision (b). He insists there was no evidence presented that he had care or custody of Son.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 273a, subdivision (b), provides, "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
In People v. Cochran (1998) 62 Cal.App.4th 826, the defendant dated the victim's mother, and both she and the victim, who was less than one years old, moved in with the defendant. Mother described the defendant as the victim's surrogate father who gave the victim baths and put her down for naps. (Id. at p 829.) The victim died as a result of the defendant throwing and squeezing her. On appeal, the defendant claimed that his felony conviction under section 273ab, subdivision (a), for assault resulting in death of a child must be reversed because he did not have care and custody of the victim. (Id. at p. 832.)
The Cochran court disagreed finding that, "the child lived in the house at the invitation of [the] defendant. [The d]efendant assumed a parent-like role. He was, as mother described, a surrogate father for the child. Clearly . . . [the] defendant had a duty as a caretaker to this child." (People v. Cochran, supra, 62 Cal.App.4th at p. 833.)
In People v. Perez (2008) 164 Cal.App.4th 1462, 1469 (Perez), the defendant insisted, as defendant here, that the evidence did not support that he had care and custody of the minor for which he was convicted of endangering. The defendant was found in possession of a large amount of heroin, which was located throughout his house. The defendant lived in the house with his sister and his niece. His niece's daughter, S.F., stayed at the house a couple of nights each month. S.F. knew the defendant, called him "Daddy Joe" and ate meals with him in the home. The defendant did not babysit S.F. and was not required to take care of S.F. (Id. at p. 1466.)
On appeal, the defendant argued there was insufficient evidence that he was the caretaker or had custody of S.F. because he was not a parent or full-time caregiver. (Perez, supra, 164 Cal.App.4th at p. 1469.) The court first noted that section 273a, subdivision (b), does not apply "only to caretakers who are on the level of 'parents, guardians and babysitters.'" (Ibid.) The court stated, "In most of the cases in which courts have examined the sufficiency of the evidence supporting a conviction under section 273a, or substantially similar statutory provisions, the defendant had a more clearly defined role in the custody or care of the victim than Perez had. [Citations] However, the fact that the appellate courts in [these cases] upheld the convictions of the defendants does not mean that the phrase 'having the care or custody of a [] child' (§ 273a) is intended to apply only to individuals whose relationship with the victim child is as substantial as the relationship between the defendants and victims in those cases. . . . Perez 'fails to provide any authority to conclude that care or custody may not be established on a less substantial relationship' than the relationships in [these cases] and the language of the statute does not suggest care or custody may not be premised on a less substantial relationship than that between a parent or guardian and a child." (Id. at pp. 1469-1470.)
The Perez court concluded that there was sufficient evidence that the defendant had care and custody of S.F. S.F. stated that she spent time with the defendant and that he was in the house with her most of the time. Further, despite no direct evidence that the defendant babysat or cared for S.F. while she was in the home, the jury could reasonably conclude at some point defendant cared for her while her mother worked or grandmother slept. (Perez, supra, 164 Cal.App.4th at p. 1471.) The court concluded, "There was sufficient evidence from which the jury could have concluded that Perez was one of several adults in the home who had the care or custody of S.F., even if the evidence does not suggest that Perez was S.F.'s primary caregiver." (Id. at p. 1472.)
Here, the evidence only established that Doe and Son had been at defendant's house for some unknown period of time before defendant hit Doe. The only other evidence presented was that that they all slept in the same room. There simply was no evidence presented to show how much time defendant spent with Son or whether he took care of him for any length of time. The fact that Doe had been staying at defendant's house and in the same room with him, simply was not enough evidence to support that defendant had care and custody of Son. Although a parental role is not required, something more than mere presence is required to support care and custody. Such evidence was lacking in this case. The fact that defendant and Son slept in the same room for an unknown period of time simply cannot support he had care and custody of Son. We agree with defendant that his conviction in count 3 is not supported by substantial evidence and should be reversed.
F. DEFENDANT'S THREE-YEAR SENTENCE IMPOSED FOR PRISON PRIOR FOUND TRUE PURSUANT TO SECTION 667.5, SUBDIVISION (A), SHOULD BE STRICKEN
Defendant contends that the prison prior enhancement found true pursuant to section 667.5, subdivision (a), should be struck because it stemmed from a conviction that was not a serious felony. The People concede the error.
Section 667.5, subdivision (a), provides in pertinent part, "Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c)."
The information charged defendant with having suffered a prior conviction of violating section 29800, subdivision (a)(1), and serving a prison term. According to the abstract of judgment from this prior conviction, the conviction was described as possession of a firearm by a convicted felon. Neither section 29800, subdivision (a)(1), nor being a felon in possession of a firearm are listed as a violent felony in section 667.5, subdivision (c). We will order that the three-year sentence for the section 667.5, subdivision (a), prior be stricken.
G. SB 1393
Defendant contends remand to the trial court is necessary for it to exercise its discretion to strike the five-year term imposed for the prior serious felony conviction imposed pursuant to section 667, subdivision (a).
Effective January 1, 2019, sections 667, subdivision (a), and 1385, subdivision (b), allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Defendant was sentenced on June 18, 2018. Under the prior version of section 667, subdivision (a), the court was required to impose a five-year consecutive term for prior serious felony convictions and had no discretion to strike any prior conviction of a serious felony for purposes of enhancement of a sentence. (Garcia, at p. 971.) We agree that the amendment applies to defendant as his case is not final. (Id. at pp. 972-973 [SB 1393 applies retroactively to all cases not yet final on the effective date].) The People concede remand is appropriate.
H. SB 136
On October 8, 2019, SB 136 was signed into law and became effective on January 1, 2020. SB 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). SB 136 applies retroactively to those defendants whose cases are not yet final. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342; see also People v. Garcia, supra, 28 Cal.App.5th at p. 973.) Defendant's case is not yet final, and as conceded by the People, the one-year sentences imposed pursuant to section 667.5, subdivision (b), for each of his two prior prison sentences should be stricken. We will order that the sentences on the prior prison terms imposed pursuant to section 667.5, subdivision (b), be stricken.
DISPOSITION
We reverse defendant's conviction in count 3. We vacate defendant's sentence and order limited remand for the trial court to only consider whether it chooses to strike the prior serious felony conviction imposed pursuant to section 667, subdivision (a)(1). We order that the one enhancement imposed pursuant to section 667.5, subdivision (a), be stricken. In addition, the two one-year sentences imposed pursuant to section 667.5, subdivision (b), should be stricken. The clerk of the superior court is ordered to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation reflecting the striking of the section 667.5, subdivision (a), and (b), priors, and the determination of the trial court on the section 667, subdivision (a), prior. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.