(Alameda County Super. Ct. No. C155055). Hon. Larry J. Goodman.
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
Defendant William Charles Johnson appeals from his conviction of attempted murder of his girlfriend and related charges and enhancements that resulted in a sentence of 60 years to life. The issues on appeal concern the trial court's admission of evidence of two prior incidents involving domestic violence under Evidence Code sections 1101 and 1109*fn1, as well as a jury instruction relating to that evidence. We find no error in the evidentiary rulings and find the instructional error harmless.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, whose nickname was "Mookie," and the victim, Nicole Henderson, had grown up in the same neighborhood in Oakland and had been friends since Henderson's teenage years in the late 1980's. By 2004, they had become romantically involved, and defendant had moved in with Henderson and her two sons about two years before the events in question. The relationship was deteriorating by late 2006 because Henderson could no longer tolerate defendant's drug abuse and his threats against her. She told him that if he could not get off drugs she would leave him. He said if she left, "somebody was going to die." Somebody almost did.
While Henderson was driving defendant to work on December 28, 2006, defendant threatened to shoot her, saying, "I should blow your mother fuckin' head off." He stretched out his left arm and pointed it at her, and she thought he might have a gun. That night Henderson left the house with her son and went to her mother's house to stay, fearing what defendant might do. She knew he had injured a former girlfriend named Amanda, and she had seen him with guns before. The next dayHenderson went to court and applied for a restraining order, but one was not issued immediately because of the holidays.
Defendant called Henderson's cell phone several times over the next few days, but she did not answer. She did, however, record the calls, which were played for the jury. Defendant left a message for Henderson on January 1, saying that if she did not apologize to him, he would come to her workplace, would "check [her] ass there," and would "put one in [her]."
After receiving that threat, Henderson returned home, changed the locks on the door, and then spent the night at her cousin's house in Richmond. While she was at her house, Henderson noticed that some of defendant's possessions had been moved out, but some were packed up and still sitting in the living room.
Defendant called Henderson early the next morning and told her he wanted to get the rest of his things out of her house, and that he needed some papers he had left there so he could get into a drug treatment program. She told him she would bring the papers to the childcare center where she worked, and he could pick them up there when she arrived at work at 9:00 a.m.
Defendant did not show up until a little after 5:00 p.m., having called to say he was on his way. Henderson went outside and saw him arrive alone in an unfamiliar car.
Defendant parked his car at an odd angle in the daycare parking lot, blocking Henderson's car from exiting. Henderson immediately retrieved the documents from her car and gave them to defendant. People were coming and going through the parking lot as parents picked up their children from the childcare center.
Defendant then asked for the return of some of his fishing gear from Henderson's car and began carrying his possessions from the trunk of her car to the trunk of his car. When he spent time rooting around in Henderson's trunk, trying to find a fishing knife that she told him was not there, Henderson got the feeling defendant was "stalling." Throughout this time, he kept repeating, with increasing anger, "So this is how you want it, huh?" Henderson assured him she was serious about breaking up with him.
Defendant "kept looking around" during this time, inferably waiting for the parking lot to empty. He was wide-eyed and appeared agitated. By the time he finished rummaging through Henderson's trunk, he and Henderson were the only ones left in the parking lot. Finally, defendant returned to the trunk of his car (about ten feet behind where Henderson was standing). Henderson thought he was preparing to leave, and she turned her back to defendant to close the trunk of her own car.
Just then she heard a loud noise that deafened her temporarily. She then heard two or three more shots in rapid succession.*fn2 She felt the back of her neck get warm, but did not realize she had been shot until she hit the ground, forehead first. She never saw a gun in defendant's hand, but she knew he owned two guns. Henderson and every other percipient witness testified there was no one else in the car defendant was driving, no one else in the parking lot, and no one else in close proximity at the time of the shooting. Henderson testified she had no other enemies.
After Henderson collapsed, defendant returned to his car, closed the trunk, and drove off. Another witness said he "sped off," "burning rubber." While Henderson lay in the parking lot, she told both a co-worker and the responding police officer that her boyfriend "Mookie" had shot her, and she named him at trial as the shooter.
Two shots hit Henderson, one in her arm, and one in her back. The shot to her arm left a ten-inch scar and required surgery in which nerves from her leg were removed and transferred into her arm. Though she had previously been left-handed, that arm was badly mangled after the shooting, forcing her to switch hands to write. She had been in physical therapy ever since, but had not recovered full sensitivity or use of her left arm at the time of trial.
The shot to her back was just inches to the right of her spine, and the doctors initially told her she might be paralyzed from the neck down. Fortunately she was not. The bullet fractured two of the wings of her vertebrae on the left side and one of her left ribs, bruised her left lung, and lodged near her left collarbone. It was surgically removed some three weeks later.
Two witnesses―Tara Simpson, who was picking up her son at the daycare center, and her friend, Bonnie Durr, who had driven her there ― confirmed that defendant was the man they saw in the parking lot with Henderson just before she was shot. They testified there was no one else in the immediate vicinity. No one, however, saw defendant with a gun.
The defense appeared to be one of mistaken identity. Defense counsel emphasized that neither Simpson nor Durr had confidently identified defendant in photographic lineups.*fn3 Members of defendant's legal team were called as witnesses, evidently to cast doubt on Simpson's and Durr's identification testimony.*fn4 Defense counsel claimed Simpson and Durr were "mistaken in their identification" and were unwittingly biased.*fn5
Defense counsel stressed that no one saw defendant with a gun, there was no heated argument in the parking lot, and defendant made no threats just prior to the shooting. He asked the jury to acquit defendant based on a theory that the trajectory of the bullet through Henderson's back excluded him as the shooter. Since the bullet entered Henderson's back on the right side of the spine, but did its internal damage and ultimately lodged on the left side, defense counsel argued that the shooter must have been to Henderson's right when the shots were fired. He could not have been standing where Henderson last saw defendant, which was behind Henderson and to her left. But counsel put forth no theory whatsoever about who the "real" shooter might have been.*fn6
A police witness testified that a bullet hole in the door jamb of the childcare center showed a trajectory consistent with having been fired from the vicinity of Henderson's trunk. The prosecutor also pointed out to the jury that defendant could have moved without Henderson's realizing it, since she had her back to him, or Henderson's own body may have changed position, perhaps by force of the first bullet, which could explain the trajectory of the bullet through her back. He emphasized the prior threats and the uncontradicted testimony by multiple witnesses that no one else was near Henderson at the time of the shooting.
On June 3, 2008, the jury returned guilty verdicts on all charged offenses: attempted first degree murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), firearm assault (Pen. Code, § 245, subd. (a)(2)), injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), criminal threats (Pen. Code, § 422), and mayhem (Pen. Code, § 203). It also returned true findings on various firearm and great bodily injury enhancements. After defendant waived jury trial on the prior conviction allegations, the court found true two prior serious felony convictions. (Pen. Code, § 667.) Four remaining prison term priors (Pen. Code, § 667.5) were stricken at the People's request. On December 5, 2008, defendant was sentenced to 60 years to life in prison. This timely appeal followed.
I. Section 1109 Is Constitutional on Its Face
The prosecutor moved in limine to present testimony relating to three prior incidents of domestic violence by defendant under sections 1101 and 1109. The court ruled that two of the incidents were admissible under section 1109 and found admission of the evidence was "in the interest of justice." Both incidents involved defendant's having shot a former girlfriend when she tried to break up with him or got into an argument with him. The third incident did not involve the use of a weapon and was ruled inadmissible. The details of the prior incidents will be described below.
Section 1109, subdivision (a)(1), provides as follows: "Except as provided in subdivision (e) or (f), 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." Defendant claims that section, on its face, violates the Due Process Clause because it allows introduction of propensity evidence in violation of the historical Anglo-American prohibition of such evidence.
Domestic violence is but one of the areas in which the rules of evidence have been relaxed in recent years. Section 1109, subdivisions (a)(2) and (a)(3) allow admission of prior incidents of elder abuse and child abuse when the defendant is currently charged with a like offense, and section 1108 provides a similar evidentiary exception for past commission of sexual offenses when the defendant is being tried for a sexual offense.
These statutes are remarkable not because they allow testimony about prior misconduct, but because they allow the jury to draw propensity inferences from the prior acts. (Compare § 1101 with §§ 1108, 1109.) Thus, defendant's jury was instructed that if it found by a preponderance of the evidence that defendant committed a prior offense involving domestic violence, it could "infer that the defendant had a disposition to commit other offenses involving domestic violence" and further infer "that he was likely to ...