IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 23, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BYRON DWAYNE JACKSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01035)
The opinion of the court was delivered by: Hoch , J.
P. v. Jackson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Byron Dwayne Jackson of inflicting corporal injury on a cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)), and found true the allegations that he had previously been convicted of corporal injury on a cohabitant (id. § 273.5, subds. (a) & (e)(1)) and a serious felony (id. §§ 211 [robbery], 1192.7, subd. (c)(19)). The trial court sentenced defendant to eight years in state prison.
Defendant presents two arguments on appeal. First, he makes a three-prong challenge on the admission of prior domestic violence evidence under Evidence Code section 1109*fn1 , by attacking the evidence as violative of due process, equal protection, and the prohibition on unduly inflammatory evidence in section 352. Second, defendant argues that he should not have been allowed to represent himself at trial because the United States Supreme Court wrongly decided Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
With regard to the due process challenge to section 1109, we reject defendant's argument. As defendant acknowledges, this court has previously rejected an identical due process challenge to section 1109. Because defendant did not object to the prior domestic violence evidence on equal protection and section 352 grounds, these two arguments are forfeited. Finally, defendant's challenge to the United State Supreme Court's decision in Faretta is rejected because we are bound to follow this decision. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prior to trial, defendant unsuccessfully moved for substitution of his appointed attorney. A week later, the court granted defendant's motion to represent himself. Defendant executed an acknowledgment of "Faretta warnings" and was given county jail inmate pro per status and privileges.
Three months later, a jury trial commenced. The evidence at trial showed the following:
On January 5, 2010, Haunahni, the victim, was engaged to be married to defendant. They lived together in an apartment along with Haunahni's son. When Haunahni came home from work that evening, defendant asked her about the medication that she had taken away from him earlier that day. She thought defendant "was getting too dependent upon it" and refused to hand it over. Defendant dumped her purse and looked for his medication.
Defendant sat down to watch television. Haunahni began tidying up the apartment, making dinner, and packing for an impending move. Defendant complained that she was making too much noise for him to hear the television. Irritated by the complaint, Haunahni threw a shoe and make-up bag at defendant. She did not intend to hurt him. Instead, "[i]t was just like shut-the-hell-up type of throw."
Defendant got up and went over to Haunahni They started to argue. Defendant grabbed her hair and began to strangle her. He let go of her neck when her son came out of his bedroom. Defendant told her to sit down, but she stood on a loveseat instead. Defendant hit Haunahni in the mouth. He grabbed her hair and repeatedly hit her head against the wall. Defendant then grabbed a couch pillow and began to smother her. When Haunahni said she wanted to go check on her son, defendant hit her in the mouth four times. Defendant told her, "bitch you make me sick and you talk too much." Haunahni broke free and ran toward her son's bedroom. Defendant caught her and began strangling her. She felt "things were starting to go black." Defendant let go when Haunahni's son came out of his room again.
While defendant followed Haunahni's son back to the bedroom, she fled from the apartment. Defendant followed her and told her to go back inside. She pushed defendant away. Defendant grabbed her arm, and she pulled away. Defendant and Haunahni yelled at each other on the sidewalk outside their apartment.
The apartment manager came outside to find Haunahni crying and screaming at defendant, who was holding onto Haunahni's arm. The manager stepped between defendant and Haunahni in an attempt to calm things down. Haunahni broke loose from defendant's grasp and ran behind the manager to get away. Defendant calmed down and walked away.
Haunahni went into the manager's apartment. The manager noticed that she was bleeding from her mouth and possibly from her ear as well. The manager called the police to report that one of the tenants was "beating up his girlfriend in the parking lot and now she's in my home bleeding." When the police officers arrived, they observed that Haunahni had a cut on her lower lip, an abrasion on her left middle finger, and scratches on her left inner biceps.
Admission of Evidence of Prior Domestic Violence
Section 1109 provides that "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 admissible so long as it does not violate section 352. Section 352, in turn, provides that a trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
At trial, defendant objected to the introduction of the prior domestic violence evidence on the ground that it was irrelevant to the current case.*fn2
Defendant contends that the admission of his prior conviction for domestic violence under section 1109 violated due process, equal protection, and section 352. We reject the contentions.
A. Due Process
We begin by considering the People's contention that defendant failed to preserve the constitutional challenges to the admission of the prior domestic violence evidence. In so arguing, the People acknowledge that defendant did object to the introduction of the prior domestic violence evidence and may thus make a "very narrow due process argument on appeal" that the evidentiary ruling had the legal consequence of violating his due process rights. (See People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).) Thus, we proceed to consider defendant's due process argument.
In People v. Johnson (2000) 77 Cal.App.4th 410, this court upheld the "constitutional validity of . . . section 1109 against a due process challenge." (Id. at p. 420) We explained that "section 1109 is limited to prior acts of domestic violence in prosecutions for domestic violence, thus avoiding far-ranging attacks, and the statute requires pretrial notice to the defendant. Also, . . . section 1109, by expressly allowing the trial court to exclude evidence under . . . section 352, allows the trial court to preclude inefficient mini-trials of prior acts. [S]section 352 provides a safeguard against undue prejudice. The trial court's discretion to exclude the prior acts evidence under . . . section 352 saves . . . section 1109 from defendant's due process challenge. [S]section 1109 does not lessen the prosecution's burden of proof, because a properly instructed jury will be told the defendant is presumed innocent and the prosecution must prove him guilty beyond a reasonable doubt in order for the jury to convict." (Ibid.) Defendant cites no authority decided since our decision in Johnson that calls its validity into question. Accordingly, we adhere to our conclusion in Johnson that section 1109 does not violate a criminal defendant's right to due process.
B. Equal Protection
Defendant did not object to the prior domestic violence evidence on equal protection grounds in the trial court; he objected to one exhibit based on relevance grounds. In Partida, the California Supreme Court allowed a due process challenge to be made on appeal even though no evidentiary objection had been made on that ground because the defendant's argument on appeal was that the trial court's ruling rendered the trial so unfair as to violate due process. (Partida, supra, 37 Cal.4th at p. 435.) By contrast, defendant in this case makes no attempt to explain how an equal protection argument may be premised on his relevance objection at trial. Instead, he assumes that the People's concession regarding the cognizability of the due process claim also extends to cover the equal protection claim. The assumption is unfounded. The lack of any connection between defendant's appellate equal protection argument and his relevance objection at trial forfeits the issue for review. (Id. at pp. 435-436.)
C. Section 352
Defendant next contends the trial court erred in failing to exclude the propensity evidence under section 352. He reasons that the bare admission of the fact of his prior conviction for domestic violence invited the jury to imagine it constituted "a far ranging attack on [his] character." We deem the argument forfeited.
Defendant's sole objection to the introduction of the prior domestic violence evidence was that it was irrelevant to the current charge. Defendant did not object that the evidence was more inflammatory than probative, and thus did not preserve a claim that the evidentiary ruling violated section 352. (People v. Champion (1995) 9 Cal.4th 879, 913 [holding that objection to relevance of proffered evidence does not preserve claim under section 352], overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Accordingly, we decline to address the argument that the trial court violated section 352 by admitting the propensity evidence.
D. Instructional Error
Defendant's heading for his argument regarding the admission of evidence under section 1109 includes the assertion that the trial court "erroneously instructed the jury that it could infer [defendant] had a propensity to commit acts of domestic violence." However, the assertion remains undeveloped in his opening brief, which presents reasoned argument only on due process, equal protection, and section 352 grounds. No discussion or authority supports his contention that the jury was misinstructed. Consequently, we deem the contention forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Acknowledging that "the trial court had no choice but to allow [defendant] to represent himself" after he waived his right to counsel, defendant contends the United States Supreme Court wrongly decided that criminal defendants have the right to represent themselves in Faretta, supra, 422 U.S. 806. Defendant does not challenge the validity of his waiver, arguing only that Faretta reached the wrong conclusion. Defendant states he is raising the issue to preserve his right to file a petition for writ of certiorari in the United States Supreme Court seeking to overturn the Faretta decision.
The California Supreme Court addressed an identical challenge to the holding in Faretta as follows: "In order to preserve the claim for potential federal court review, defendant . . . contends Faretta, supra, 422 U.S. 806, was wrongly decided and should be overruled. Because, as defendant recognizes, this court cannot overrule a decision of the United States Supreme Court, we do not address his attack on Faretta." (People v. Taylor (2009) 47 Cal.4th 850, 865, fn. 7.) We follow our high court and decline to address defendant's challenge to Faretta.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. ROBIE , J.