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The People v. Frank Hicks

May 5, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANK HICKS, DEFENDANT AND APPELLANT.



Super. Ct. No. 08F09704

The opinion of the court was delivered by: Butz, J.

P. v. Hicks

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Frank Hicks of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In bifurcated proceedings, the court found a strike prior (assault with a firearm) and a prior prison term allegation to be true.

Sentenced to state prison for an aggregate term of seven years, defendant appeals. His sole contention is that the trial court abused its discretion in allowing the prosecutor to cross-examine defendant about the underlying facts of his 2004 conviction for assault with a firearm, resulting in a violation of his right to due process and a fair trial. We shall affirm the judgment.

FACTUAL BACKGROUND

On November 28, 2008, in Mix Park, the 25-year-old defendant punched his 18-year-old girlfriend K.P. in the stomach several times. She was eight months pregnant. While she was on the ground, defendant, wearing boots, kicked her several times. A teenage passer-by witnessed defendant deliver three punches to K.P.'s stomach and reported it to her father who called 911. Officers located the pair who matched the teenager's description. Defendant and K.P. were yelling at one another. K.P. was upset, crying, and screaming that she had lost her baby. K.P. reported that defendant had accused her of cheating on him and he hit her in the stomach. Officers arrested defendant and had K.P. transported to the hospital where she was given medication to stop the contractions caused by the blows to her stomach. She felt intense pain in her stomach and elsewhere, having been punched and kicked all over.

Defendant testified. He claimed that K.P. suffered injuries due to a fight she started with another woman at the park and that he had nothing to do with it. He claimed K.P. was mad at him at the park and started swinging at him. He suggested that the teenager knew K.P. and that he had overheard K.P. ask her why she had claimed he was responsible.

The prosecutor presented evidence that this was not the first time that defendant had controlled and physically abused K.P. On June 28, 2008, defendant drove his car towards her to hit her, an incident witnessed by someone in the neighborhood. On July 4, 2008, defendant had slapped her at a motel, an incident witnessed by the motel manager. On July 15, 2008, defendant beat K.P. K.P. reported the incident to the police. Later, K.P. recanted, fearing reprisals from defendant but she had no explanation for her injuries.

Defendant denied slapping K.P. at the motel. He claimed that she clawed him first in his face with her fingernails and that he responded and scratched her cheek with his fingernails. Defendant denied driving his car at K.P. He denied beating her on July 15.

The prosecutor also presented evidence that defendant had physically abused C.B. and T.D., other girlfriends. C.B. testified that on March 31, 2005, defendant accused her of being unfaithful and hit her numerous times. She escaped and the police were called. She was not completely forthcoming as to what happened and defendant was not arrested then. On April 2, 2005, defendant thought she was looking at another man and punched her in the face. C.B. suffered bruising as a result of defendant's beatings and he was arrested.

Defendant asserted that C.B. had exaggerated the incident when he struck her and he claimed that she struck him first in the nose. He retaliated and hit her twice with an open hand. He denied having ever hit her before.

T.D. reported to the police that one evening, defendant refused to leave her apartment and pushed her against a wall. Defendant claimed he was trying to make up with her and kiss her after their argument.

Defendant was convicted in 2004 of assault with a firearm. Defendant had pistol-whipped a 15-year-old girl. In limine, the trial court ruled that the prior would be admissible for impeachment but sanitized.

During cross-examination of defendant, the prosecutor requested permission from the court to ask defendant about the underlying facts of the 2004 prior conviction. The prosecutor asserted such evidence was admissible under Evidence Code section 1103, subdivision (b) (hereafter section 1103(b)),*fn1 because defendant had presented evidence that C.B. was violent. Defense counsel objected, arguing that section 1103(b) was inapplicable because C.B. was not the victim of the crime for which defendant was being prosecuted. The trial court ...


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