APPEAL from a judgment of the Superior Court of Los Angeles County. Paul A. Baciagalupo, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. TA032874).
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
Carlos Fernando Flores appeals from the judgment following his convictions in 2007 for crimes he committed in 1994. He contends his history of domestic violence was used against him at trial in violation of the constitutional prohibition against the ex post facto application of laws. We disagree. Appellant also contends, and respondent concedes, that the court erred in fashioning appellant‟s sentence. We agree and order modification of the erroneous provisions. As modified, the judgment is affirmed.
In the early 1990‟s, appellant Carlos Fernando Flores and Guadalupe Aguilar, whose families came from the same small Mexican town in Sinaloa, were romantically involved. They lived together as a couple for some period and had a child in October 1993. Following the birth of their child, their relationship ended and they took up separate residences.
In the summer of 1994, Aguilar began dating Oscar Molina. Although appellant and Aguilar no longer lived together, appellant claims they had remained a couple and had found an apartment in which they planned to resume sharing a home. One evening in November 1994, Aguilar was sitting with Molina in a car parked on a street near Aguilar‟s home when appellant drove up, parked in front of them, and got out of his car. Approaching Aguilar‟s side of the car, appellant yelled, "[Is] this the dog you are going out with?" Appellant ordered Aguilar out of the car, but she remained seated inside. To force her compliance, appellant drew a gun from his pocket and said, "Don‟t mess with Sinaloa," or "Don‟t fuck with Sinaloa." Molina saw appellant put his hand holding the gun through the car‟s open passenger window. The gun fired and a bullet pierced Molina‟s chin and lodged in his arm.
Dazed from his wound and having difficulty focusing, Molina heard appellant and Aguilar continue to argue. Molina then heard a second gunshot, and Aguilar‟s voice fell silent, fatally extinguished by a single gunshot. A moment later, Molina felt appellant standing next to Molina‟s side of the car. Feeling the gun against his head, Molina heard appellant say, "Die, you dog. Die." Molina heard the gun‟s firing mechanism click, but it did not fire; later that evening, police found several spent shells and live bullets on the ground and in the car. A police detective testified at trial that the live bullets were ejected when the gun malfunctioned as appellant attempted to fire it.
After the shootings, appellant fled to Mexico. Twelve years later, in 2006, he voluntarily returned to the United States, claiming he did so to apologize to Aguilar‟s family for her death. He was arrested and charged with Aguilar‟s murder and the attempted murder of Molina. He pleaded not guilty to both counts.
In May 2007, appellant stood trial. The jury convicted him of the willful, deliberate, and premeditated attempted murder of Molina. The jury could not reach a unanimous verdict on the degree of Aguilar‟s murder, however, with 10 jurors finding the murder was in the first degree and two finding it was second degree. The court declared a mistrial on the murder count and ordered it to be retried.
Appellant‟s retrial took place in October 2007. Appellant had not testified at his first trial. In his retrial, he took the stand and testified the shootings were accidental, caused by his and Aguilar‟s struggling for the gun when he pointed it at her to frighten her into complying with his demand that she get out of Molina‟s car. Rejecting appellant‟s story, the jury convicted appellant of first degree murder. The court sentenced appellant to state prison for 40 years to life with the possibility of parole. This appeal followed.
A. No Ex Post Facto Violation in Admitting Evidence of Prior Domestic Violence
1. Factual Context of Appellant's Argument
In December 1992 and August 1993 -- before appellant‟s murder of Aguilar --he suffered at least two misdemeanor convictions for spousal battery against Marlene J., a previous girlfriend with whom he had a child.*fn1 Prior misconduct historically has been inadmissible under California law to prove a defendant had a propensity to commit a charged offense. (See generally Evid. Code, § 1101, subd. (a).)*fn2 Two years after Aguilar‟s murder, however, the Legislature created an exception for domestic violence. Enacted in 1996, section 1109 states:
"[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant‟s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. ...