(Super. Ct. No. VCF207805) APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Evidence Code section 1109 allows for the admission of evidence of a defendant's commission of prior acts of domestic violence as propensity evidence when the defendant is accused of "an offense involving domestic violence."*fn2 In the published portion of our opinion we find that "an offense involving domestic violence" may include the crime of burglary.
Defendant, Robert Earl James, was convicted of first degree burglary after he broke down the door of a woman he had formerly lived with (K.M.). The trial court admitted evidence of a prior instance of domestic violence against the victim and evidence of a prior act of domestic violence against one of defendant's former girlfriends (J.F.). Defendant claims the trial court erred in admitting the evidence of the prior act of domestic violence against J.F. He also claims the trial court erred when it modified the instruction regarding propensity evidence. We affirm.
K.M. knew defendant for approximately six years; they lived together during a portion of this time. On February 23, 2008, defendant and K.M. spent some time together at his house. K.M. had been drinking and using methamphetamine. She and defendant engaged in consensual sex. Defendant began acting funny and K.M. left.
K.M. was at home when her friend, Rasheed, called. K.M. left to pick him up and the two returned to her house. K.M. continued to drink and use methamphetamine. At approximately 1:00 a.m. on February 24, 2008, K.M. heard defendant beating on the door. It was loud and sounded like he was going to knock the door down.
K.M. went into the bedroom to call 911. The tape of K.M.'s call to 911 was played for the jury. K.M. identified the caller's voice as her voice and she identified the male voice as the voice of defendant.
In the call K.M. stated to the dispatcher that her "ex old man" was at her door trying to beat the door down. She identified the defendant as the person at the door. K.M. said defendant was beating on the door; then said he was coming through the door. A male could be heard stating more than once, "I'm gonna fuck your ass up." K.M. was screaming and sobbing and imploring the dispatcher to please hurry up. When asked where defendant was, K.M. replied that she did not know, then repeatedly said, "He's here." When asked if it was defendant, she said yes. When asked again where defendant was, K.M. replied that she did not know. She said he got into her house. After a short period of time, she said he was gone.
K.M. testified that she was in the bedroom with Rasheed, the bedroom had French doors that did not lock, defendant tried to enter and Rasheed held the door shut, defendant broke the glass in one of the doors, turned the handle and pushed the door open, and the bottom hinge was pulled out of the wall. K.M. further testified that the front door's trim was broken, the chain was pulled out of the wall, the latch was broken off, and it looked like the door had been kicked in.
The next morning when K.M. prepared to take Rasheed home, she discovered she had three flat tires on her car. The tires had a lot of holes in them and one tire had a metal implement sticking out from it. K.M. reported this to the police. Later that same afternoon, while K.M. was looking at her tires, a car drove by with defendant as a passenger. Defendant said to K.M., "I could have just as easily put those holes in your head." K.M. again called the police. (Defendant was acquitted of vandalism.)
K.M. testified to a prior incident of domestic violence that occurred in September of 2005. Defendant came to her home in the early afternoon, poked a hole in her screen door, and tried to unlock the door. K.M. tried to push the door shut, but defendant was able to push the door open. Once defendant got inside the house, he grabbed K.M. by her arm and threw her to the ground. It hurt when he threw her to the ground and her arm subsequently was hurt and had a scratch. The police officer, who responded to the call from K.M., said that she was crying and very upset, she had a slight redness to her arm and had what looked like a fingernail scratch, and the screen door to her house was removed from the frame.
J.F. testified that on March 21, 2002, when she was living with defendant, they had an argument because she would not let defendant use the car. Defendant backhanded her, causing swelling to her eye. She tried to use the telephone to call someone, but defendant pulled the cord out of the wall. She was treated at the hospital for her injuries.
Defendant was convicted of first degree burglary. He admitted he suffered a prior serious felony conviction that qualified as a strike and served a prior prison term. He was sentenced to prison for the mitigated term of two years, doubled to four years because of the strike. An additional five-year term for the prior serious felony conviction and a one-year term for having served a prior prison term were added to defendant's sentence, for a total term of 10 years in prison.
I. Admission of Prior Acts of Domestic Violence
A. Burglary as a Crime Involving Domestic Violence
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation] and domestic violence ...