IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
April 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JON WARREN LARSON, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. RIF141446)
The opinion of the court was delivered by: McKINSTER J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Jon Warren Larson appeals after he was convicted of one count of inflicting corporal injury on a cohabitant. The conviction was a third strike for defendant, who was sentenced to 27 years to life. Defendant contends (1) the trial court erred in admitting evidence of a past uncharged incident, and (2) the admission of records of defendant's prior convictions violated his Sixth Amendment right of confrontation and cross-examination. We are unpersuaded, and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant met Deborah Jessen in February of 2007. Both homeless, they spent the next few months together, staying variously at friends' homes; at motels; or sometimes without shelter, camping near a local riverbed. Jessen received about $800 per month in Social Security disability income; Jessen and defendant shared her money, and they panhandled together.
By June 2007, defendant and Jessen had been together for about four months. In the first week of June, they were sharing a room at a motel in Riverside. Neither defendant nor Jessen had any valid identification, so they prevailed upon a friend, Robert Tinsley, to rent the room for them. They used Jessen's money to pay for the room, however.
During the night and early morning hours of June 6-7, 2007, defendant and Jessen quarreled over their last cigarette. Jessen testified that, the next thing she knew, defendant had knocked her down and she was on the floor. Defendant proceeded to punch Jessen with his fists, bit her on the leg and arm, and choked her. Jessen blacked out.
When Jessen regained consciousness, she saw defendant in another part of the room, breaking an ashtray. Jessen seized the opportunity to get away and fled, naked, from the room. She found another resident outside his motel room and asked for help. The man gave Jessen his shirt, and let her inside his room.
Watching through the peephole, Jessen saw defendant leave in a car with one of defendant's relatives. Jessen ran back to her own room, put on some clothes, gathered her belongings, and went to a nearby hospital. Jessen was treated for several injuries, including a swollen right eye, a puffy and swollen face, a cut lip, and bite marks on her arm and leg.
Although defendant did not testify in his own behalf at trial, the defense theory was that Jessen suffered from mental instability, and had inflicted the injuries on herself. Thus, on cross-examination, Jessen testified that she had been diagnosed with bipolar disorder, among other things. She acknowledged having attempted suicide many times in the past, and she had both cut and burned herself in some of these attempts. She had also attempted eating glass or swallowing razor blades. On one occasion, while hospitalized, Jessen had become violent, kicking walls and hurting herself. She had been placed in a five-point restraint on that occasion. Jessen testified, however, that in recent years she had become more stable because she was taking medication.
Riverside Police Officer Gary Hirdler, who responded to the hospital, observed the injuries as described by Jessen: swollen and puffy face, swollen right eye, cut lip, and bite marks on her arm and thigh. Officer Hirdler testified that Jessen's account to him at the hospital was consistent with her trial testimony about the incident.
The trial court, over defendant's objection, permitted the prosecution to present the testimony of Breezy Turnage, a past acquaintance of defendant, about an incident in which he also bit her. In 2002, defendant was living in Turnage's home; they had an intimate relationship. During an incident in April 2002, defendant attacked Turnage; he punched her in the face, and bit her on the chin and ear. The injury to Turnage's ear did not heal for several months, and the bite on her chin left a scar.
At trial, the defense rested without presenting any affirmative evidence. Defense counsel argued, however, either that Jessen inflicted the wounds on herself, or that the real perpetrator must have been Robert Tinsley, who had rented the motel room. While the jury was deliberating, defendant proceeded to admit four prior prison term allegations, and the court found true two prior serious felony (strike) allegations. The jury returned a guilty verdict.
After the verdict, defendant moved for a new trial. The court denied defendant's new trial motion, and sentenced him to a term of 25 years to life, as a third strike, plus one year for each of the prison term priors that were not also used as strike priors, for a total term of 27 years to life.
Defendant filed a timely notice of appeal.
I. The Court Properly Admitted Evidence of an Uncharged Offense
Defendant urges that the trial court erred in admitting Turnage's testimony, concerning a past uncharged incident of domestic violence. Defendant notes that, generally speaking, prior bad acts are inadmissible to prove a propensity to commit such bad acts, but are to be admitted only to prove some other fact in issue, such as motive, opportunity, lack of mistake, intent, identity, and so on. (See Evid. Code, § 1101, subd. (b).)*fn2 In 1995, the Legislature added section 1108, to permit a partial exception to the general rule for sexual offenses, and the following year added a similar exception for domestic violence. Section 1109 provides in part: "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." (§ 1109, subd. (a)(1).)
In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court considered a challenge to the constitutionality of section 1108, permitting propensity evidence in sexual offense cases. The court held that the propensity evidence was only admissible if it was also admissible under section 352. (Falsetta, at p. 917.) "Thus, there is an overriding safety valve built into [the] statute that continues to prohibit admission of such evidence whenever its prejudicial impact substantially outweighs its probative value. (§ 352.)" (People v. Johnson (2010) 185 Cal.App.4th 520, 529.) The same is true both of section 1108 and section 1109. Therefore, even though the California Supreme Court has not ruled directly on the constitutionality of section 1109, by parity of reasoning with Falsetta, the Courts of Appeal "have uniformly [held that] section 1109 does not offend due process. [Citations.]" (Johnson, at p. 529.)
Defendant maintains that analysis of the proffered evidence under section 352 is crucial, but that the trial court here failed to weigh the evidence properly, as required. Had the court undertaken the proper evaluation of probative value and prejudice, defendant argues, it would have excluded Turnage's evidence.
We reject the contention. When a court decides to admit evidence under sections 1109, subdivision (a)(1) and 352, we review that decision for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 280-282.) Defendant has shown no abuse of discretion.
At the motion in limine, defense counsel urged that the prior incident was too remote, having taken place in 2002, about seven years before trial (though only five years before the commission of the present offense). Defense counsel was concerned that the jury would simply be unable to treat the evidence in any but a prejudicial way: "Well, he did it in the past. He did it here . . . ." The prosecutor pointed out that the prior offense was less than 10 years old, and was thus presumptively admissible under section 1109. The prior offense was probative because of the distinctive act of biting as a part of the attack. The trial court expressly stated that, to exclude the evidence under section 352 analysis, it would be required to find that the prejudicial effect substantially outweighed the relevance. However, the trial court considered the prior incident highly relevant. In addition, the trial court did not consider the offense remote. It therefore ruled that the evidence would be admitted. The appropriate considerations were explicitly addressed in argument and in the trial court's remarks; there was no abuse of discretion.
Defendant's claim of error is further belied by the trial court's rulings on other matters. The prosecutor proffered evidence of other incidents between defendant and Jessen, such as his allegedly putting out a cigarette on her skin, and also pushing her head into a pile of sand so that she could not breathe. Because the victim, Jessen, had never previously reported these incidents, because they seemed minor in comparison with the charged offense, and because the circumstances differed considerably from the details of the present offense, the trial court excluded evidence of these other incidents of alleged domestic violence. As to each item of proffered evidence, the record substantiates that the court undertook an individualized consideration of the aspects and circumstances of relevance, probative value, prejudice, and remoteness.
Defendant has shown no error in the admission of Turnage's testimony.
II. Admitting the Certified Records of Defendant's Prior Convictions Did Not Violate the Confrontation Clause
Defendant next contends that the trial court committed reversible error, and violated his Sixth Amendment right to confrontation and cross-examination, by admitting documentary evidence to prove his prior convictions.
Defendant's contention is without merit.
In the first place, defendant failed to raise any objection below to the admission of the documentary evidence. Normally, the failure to object forecloses consideration of the issue on appeal. (See § 353; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.)
Defendant argues, however, that his failure to object should not foreclose consideration on the merits. The United States Supreme Court decided Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314], effecting a change in the law, only 13 days before the hearing on defendant's priors; defense counsel understandably could have been unaware of the recent decision and its implications at the time of defendant's hearing.
In Melendez-Diaz v. Massachusetts, supra, 557 U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314], the United States Supreme Court held that documentary evidence of, e.g., laboratory test results (there, certificates showing that substances seized and analyzed contained cocaine) were testimonial affidavits, and thus subject to the defendant's right to confrontation and cross-examination. (See Crawford v. Washington (2004) 541 U.S. 36, 51-52 [124 S.Ct. 1354, 158 L.Ed.2d 177].)
Defendant argues that the information in his prison priors packet (Pen. Code, § 969b) should be treated the same: documents are being admitted at a trial to prove an allegation against the defendant, and thus the preparer should be brought to court, and made subject to confrontation and cross-examination.
The matters in a prior-conviction packet under Penal Code section 969b are, however, non-testimonial in nature and thus not subject to Crawford and Melendez-Diaz. An out-of-court statement is "testimonial," and thus subject to the Sixth Amendment right of confrontation and cross-examination, "if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial," (People v. Geier (2007) 41 Cal.4th 555, 605) or "'"ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," [citation]; "extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," [citation]; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" [citation].' (Crawford, supra, 541 U.S. at pp. 51-52[, 124 S.Ct. 1354].)" (People v. Geier, supra, 41 Cal.4th at pp. 597-598.) Although the documentary records of a defendant's past convictions and Department of Corrections and Rehabilitation history may happen to be offered as evidence (to prove such prior convictions) at a later trial, the records so proffered were not made primarily for that purpose. The records are made for other purposes, in the ordinary course of other business of the courts and relevant departments. The records are needed and maintained for these other purposes; they are not offered as evidence in any later trial unless and until an accused commits a new, additional offense. Thus, the records are not made in contemplation of, or primarily for the purpose of, providing evidence in a future trial against the defendant. The records are not testimonial. "'[R]ecords or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which [defendant] has been imprisoned' (Pen. Code, § 969b) are prepared to document acts and events relating to convictions and imprisonments. Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford, and the court properly admitted them and considered them for the statutory purposes." (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; People v. Morris (2008) 166 Cal.app.4th 363, 370-374.)
The trial court properly admitted the evidence of prior acts under Evidence Code section 1109. The documentary evidence of defendant's prior convictions was non-testimonial; the determination of the truth of defendant's prior convictions based on those documents did not violate defendant's Sixth Amendment confrontation rights. The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
We concur: /s/ HOLLENHORST Acting P. J. /s/ KING J.