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The People v. Tony Ximenez


January 23, 2012


(Super. Ct. No. 08F06980)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Ximenez



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant, Tony Ximenez, appeals his convictions for sexual penetration with a foreign object, corporal injury against a former cohabitant and four counts of violating a restraining order, claiming the trial court abused its discretion in admitting remote acts of domestic violence under Evidence Code section 1109.*fn1 Finding no prejudicial error, we affirm.


Defendant and his girlfriend Tina lived together for a few months until June 2008 when they had a physical argument. During the argument, to stop her from going to the store, defendant tried to pull Tina backwards using her arm and hair. He pulled her onto the floor, dragged her into the house and threw her on the ground. Tina sought medical treatment after the fight and advised the emergency room staff she had been assaulted by her boyfriend. At the hospital, she was cradling her arm and had a large, dark bruise and a four inch scratch on her arm and two and one-half inch scratch below her eye. Tina gave a statement to police and obtained a restraining order against defendant. In July and August of 2008, defendant called Tina between five and 10 times to apologize and Tina reported these calls to the police.

On August 14, 2008, Tina took some cold medication and went to bed. She woke up and realized there was "a hand up her shorts" and fingers "inside" her vagina. She saw defendant was in bed with her and screamed "no" and "stop." Defendant did not stop. Tina kept screaming and tried to push defendant off her. After two to three minutes, defendant got up and left. He told her if she called the police, he would hurt her. Tina's aunt, Rosemary, heard the screaming and came over. She saw the front door had been broken in and called the police.

When officers arrived, Tina was wrapped in a blanket, shaking and crying. She seemed to be in shock and very scared. She would not make eye contact and gave monosyllabic answers to questions.

Tina was taken to the medical center for examination. The examination revealed "fresh" injuries, including bruises and abrasions on her labia, an abrasion on her cervix and other bruising and diffuse tenderness consistent with forcible digital penetration. The injuries were not consistent with normal daily female functions. Tina had bruises on her thigh, neck and arm, which she told the examining physician's assistant were from wrestling a few days earlier and were not caused by defendant. When Tina was interviewed by police officers at the hospital, she remained visibly shaken, and was crying and hesitant with her responses. She eventually relayed the details of the assault and identified defendant to the police as her assailant.

A few days later, Tina contacted police and recanted the allegations. She wanted to drop the charges against defendant and informed a detective she had lied and fabricated the sexual assault claim. At trial, she explained she had attempted to recant the accusation because she was scared of defendant and afraid he would hurt her.

Subsequent to the August assault, defendant sent Tina numerous text messages on her cell phone. She believed some of the messages conveyed threats. She reported the messages to the police and gave them her phone.

Mary Palmer, a close friend of defendant's, testified that Tina told her the accusations against defendant were a lie and that she had been seeking revenge against defendant for something he did to her brother. She testified Tina said she and defendant had had consensual sex. Palmer heard Tina say she wanted to meet up with defendant. Palmer testified she also saw Tina text defendant and heard her speak with him on the phone. Palmer heard Tina imply defendant had cheated on her. Palmer initially lied to defense investigators about her knowledge of the case because she did not want to get involved. Defendant's sister gave police a cell phone which contained text messages from Tina to appellant sent in late August 2008.

Tina denied responding to any of defendant's text messages, accusing defendant of cheating on her or being accused of cheating on him. She also denied telling Palmer she had made up the accusations against defendant.

Detective Debra Mello confirmed there was no way to determine who sent the text messages received by Tina, as there were no phone numbers associated with the text messages. The messages were, however, associated with the letter "T", which in Tina's phone contacts, was associated with defendant's phone.

Megan Clark and defendant lived together from June 2008 to January 2009. One night, after defendant stayed out all night, Megan got drunk and in a fit of anger broke glasses and CDs in the bedroom. The next morning when she woke up, defendant was punching her in the arm with a closed fist. He hit her three or four times, causing bruises. A few days later Megan visited with her stepfather, and upon seeing the bruises, he called the police.

At the time, Megan reported to the police that defendant had been on top of her shaking her awake, yelling at her about breaking his things and then punched her in the arm. The investigating officer saw three moderate size, older bruises on Megan's arm.

Detective Hunkapiller testified as an expert in domestic violence related crimes. He described the cycle of domestic violence which includes family members and friends having to persuade the victims of domestic violence to report offenses. Another component of the cycle is victims frequently minimize the perpetrator's conduct or recant their allegations of assault. He noted that in situations where a victim recants the allegations of abuse, it is generally their first statement which is the most honest. Additional facts can corroborate the victim's statements, such as the scene, physical evidence, and the victim's demeanor and emotions. In particular, physical injuries lend credibility to the victim's initial report. He also acknowledged he had worked on one or two cases in which the recantation was true.

Defendant's ex-wife, Dawn testified about defendant's prior acts of domestic violence. Although they were no longer in contact, she and defendant were married for 13 years and had five children together. In 1997, defendant hit her in the arms, legs and face and gave her a black eye. At trial, she could not independently recall the details of the event, but was able to identify photos of herself with the black eye. In May 1997, defendant hit Dawn on her legs, face and head. As a result of these incidents, Dawn sought a restraining order in May 1997. In January 2000, Dawn applied for another restraining order against defendant, declaring he had threatened to take the children, kill her, cut her up, and bury her in the backyard. Two months later, after Dawn and defendant had broken up, she awoke to find defendant in the house. She told him to leave and he refused to do so. When she tried to leave, he prevented her from doing so by pushing and grabbing her. She identified photos showing the injuries she sustained as a result of that altercation.


For his offenses against Tina, defendant was charged with sexual penetration with a foreign object by force (Pen. Code, § 289, subd. (a)(1)), corporal injury to a former cohabitant (§ Pen. Code, 273.5, subd. (a)), and four counts of violating a protective order. (§ Pen. Code, 273.6, subd. (a).) As to Megan, defendant was charged with one count of corporal injury to a cohabitant. (§ Pen. Code, 273.5, subd. (a).)

Prior to trial, the People filed a motion to introduce evidence of defendant's prior domestic violence against his ex-wife, Dawn, and the June 2008 incident against Tina under Evidence Code section 1109. Defendant filed a motion to exclude the prior acts evidence. The court found the evidence admissible and denied the defense motion.

Following trial, the jury found defendant guilty on all counts. Defendant was sentenced to an aggregate term of nine years in state prison.


Defendant contends the trial court abused its discretion in admitting evidence of defendant's prior acts of domestic violence against Dawn. Specifically, he argues the acts more than 10 years before the charged offenses were presumptively more prejudicial than probative and as such could only have been admitted "in the interest of justice" which is a higher standard than the standard in section 352; the court erred in failing to weigh the undue prejudicial impact of the prior acts of domestic violence as related to the sexual assault charge because the victim's credibility was the primary issue at trial; and, the trial court abused its discretion in admitting the evidence as relevant to the expert's testimony on battered women's syndrome.

Factual Background

The proffers describing Dawn's testimony were somewhat different from Dawn's trial testimony. We set forth the proffers here, as distinct from the trial testimony, because in reviewing the trial court's ruling, we must consider the facts that were before the trial court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425.) Thus, we evaluate whether the trial court abused its discretion in determining the evidence was admissible, based on the evidentiary proffers made.

As to the March 1997 incident, the proffer indicated after an argument, defendant choked Dawn and hit her "with a closed fist, pulled her to the ground by her hair, and kicked her two to three times." She suffered a black eye and marks around her neck. He threatened to hurt her worse if she called the police. In May 1997, she filed for a restraining order, declaring that a few days earlier defendant had hit her on the arms, legs, head, face and back and pushed her to the floor. She suffered bruises to her left arm and right shoulder as a result of the assault. In December 1999, defendant threatened to take their children, cut Dawn up and bury her in the backyard. Dawn sought a second restraining order. In March 2000, after they had separated, Dawn awoke at 1:30 in the morning to find defendant at the foot of her bed, asking to see his children. She told him to leave the house and tried to leave herself. He grabbed her and pushed her back, physically preventing her from leaving. He stayed in the home until about 6:00 a.m.

At the hearing on these motions, the court asked defense counsel, "[h]ow does the admission of the prior conduct against Dawn [] prejudice your client in a way that's not contemplated by [section] 1109?" Counsel acknowledged that was "a difficult question to answer" and ultimately admitted there was probably nothing about the facts of the prior conduct which was unduly prejudicial under section 1109. Counsel argued that under the balancing required under section 352, the evidence was cumulative and too remote from the charged offenses, the most recent act being almost a decade old. Counsel noted that section 1109 has limitations in terms of how far back the conduct can go. The court agreed as to section 1109's limitations, but also noted "it depends on what happened in the interim." The court continued, here there is a "sense of continuing conduct in terms of the defendant's relationship with these people that resulted in violence. And there's no clear demarcation or break." The People argued that the prior acts were very similar to the current charged offenses, demonstrated a continuing pattern of conduct, and were not particularly inflammatory as compared with the current offenses.

The court found the evidence was relevant and admissible under section 1109. After considering the prejudicial impact, the court found it would be minimal. Separately, the court noted there might be an independent basis to admit the evidence if the prosecution put forward an expert on battered woman's syndrome or even potentially on some other issue which might come before the court.



Defendant complains the trial court abused its discretion in admitting the prior acts of domestic violence defendant committed against Dawn in 1997 and 1999, as those acts were over 10 years old and the court did not properly apply the standard of section 1109, subdivision (e) and did not expressly state it found the evidence admissible in the interest of justice.*fn2 We disagree.

Where a criminal defendant is accused of domestic violence, prior incidents of domestic violence are admissible to show a propensity to commit domestic violence offenses, if its probative value substantially outweighs its prejudicial effect. (§ 1109, subd. (a).) However, if the prior acts are over 10 years old, the evidence of prior acts is inadmissible "unless the court determines that the admission of this evidence is in the interest of justice." (§ 1109, subd. (e).) "Thus, while evidence of past domestic violence is presumptively admissible under subdivision (a)(1), subdivision (e) establishes the opposite presumption with respect to acts more than 10 years past." (People v. Johnson (2010) 185 Cal.App.4th 520, 537, fn. omitted.) The court retains "substantial discretion in setting an 'interest of justice' standard." (Id. at p. 539.) And, we review the determination under an abuse of discretion standard. (Ibid.)

The interest of justice standard in section 1109, subdivision (e) remains an analysis balancing the "state's interest in a fair prosecution and the individual's constitutional rights." (Johnson, supra, 185 Cal.App.4th at p. 539.) The higher scrutiny relates to the "conclusion drawn from the balancing test, not the process itself . . . ." (Ibid.) Thus, as under section 352, "the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses." (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Where, after balancing these factors, the trial court concludes that the evidence is more probative than prejudicial, the "interest of justice" standard is met. (Johnson, supra, 185 Cal.App.4th at pp. 539-540.)

Defendant's argument rests largely on his complaint that the trial court did not discuss "the interests of justice" or "indicate the scales tilted more heavily toward probative value than prejudice." He infers that not using this language expressly demonstrates the court failed to make the determination that "the admission of the prior acts was in the interest of justice, as required by" section 1109, subdivision (e). This inference flies in the face of the "basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties." (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Moreover, we have found no case, and defendant has cited none, which requires the court to expressly use the language "interests of justice" when considering the admissibility of evidence under section 1109, subdivision (e) or requires the court to indicate the scales tilt in any particular direction under section 352.

Rather, we believe that under section 1109, subdivision (e), as with section 352, "'a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code section 352.' (People v. Taylor (2001) 26 Cal.4th 1155, 1169 [].)" (People v. Lewis (2009) 46 Cal.4th 1255, 1285.) Reviewing courts will "'infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.' [Citation.] '[T]he necessary showing can be inferred from the record despite the absence of an express statement by the trial court.' [Citation.] But without an express statement by the trial court that it has weighed prejudice against probative value, the record must at least 'affirmatively demonstrate that the court did so.' [Citation.]" (People v. Hollie (2010) 180 Cal.App.4th 1262, 1275.)

Here, the record affirmatively shows the trial court balanced the probative value and the prejudicial effect of the evidence, and implicitly found the probative value outweighed any potential prejudice. The court expressly stated it had to conduct "352 analysis of the admissibility of this evidence within the context of this 1109." Defense counsel acknowledged there was nothing unduly prejudicial about the prior conduct, except the remoteness of the evidence.*fn3 The court considered the remoteness of the prior acts in the specific context of defendant's conduct since the prior acts and noted this was not a case where there was a single isolated incident in 1997 with no incidents of domestic violence in the interim.

The charged offenses and prior acts shared similarities. They involved recurring acts of violence against a spouse or cohabitant. As to both Dawn and Tina, defendant punched or pulled the victim's arm, and pulled each to the ground by her hair. He threatened each with worse and further violence if they reported the abuse to the police.

As noted by the People, the uncharged conduct was no more inflammatory than the charged conduct. The acts against Dawn involved physical abuse leaving bruises and scratches and threats. The charged conduct against Tina involved physical abuse leaving bruises and scratches, threats and forcible sexual assault.

Nor was the presentation of the evidence likely to consume an undue amount of time. The evidence required only one witness, Dawn, the documents she filed in seeking the restraining orders and photographs taken of her injuries at the time.

Finally, the probative value of the domestic violence against Dawn was heightened by the fact that each past incident was entirely independent of the charged offenses. The incidents were photographically documented and recorded in her declaration for a restraining order. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; see also Branch, supra, 91 Cal.App.4th at p. 283, fn. 2.)

Relying on "the nature and facts of this particular case," the court found the evidence of the prior acts was relevant and "the prejudicial impact is minimal." This record affirmatively demonstrates the court properly weighed prejudice effect against probative value and found the evidence was more probative than prejudicial; that is, that the evidence of defendant's prior acts should be admitted in the interests of justice. Accordingly, we find no abuse of discretion.


Nor are we persuaded by defendant's claim that the court failed to weigh the "undue prejudicial impact of the prior act evidence as it related to the sexual assault charge since the credibility" of the victim was a primary issue at trial for similar reasons.*fn4 As noted above, defense counsel conceded the proffered evidence was not unduly prejudicial. Furthermore, the fact that one of the charged offenses was a sexual offense was specifically brought up in the course of argument by both the People and defense counsel, belying defendant's claim that the court did not consider the admission of the evidence as it related specifically to the sexual assault charge.

The balancing of factors in this analysis mirrors that above, with the similarity between the prior conduct and charged conduct being increased by the inclusion of the more recent violence against Dawn in 2000. As to Dawn, Tina and Megan, defendant showed up in the victim's bedroom after she had gone to bed and assaulted her. As to both Dawn and Tina, defendant's assault came after restraining orders had been issued against him. Defendant used violence to stop both Dawn and Tina from leaving the home, and pulled them to the ground using their hair. He threatened each with further violence if they reported his abuse to the police.

"It is important to keep in mind what the concept of 'undue prejudice' means in the context of [Evidence Code] section 352. '"Prejudice" as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. . . . "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" [Citation.]" (People v. Branch, supra, 91 Cal.App.4th at p. 286.)

Based on this record, we find the court understood its duty to make a determination that the admission of the evidence was in the interest of justice and impliedly did so. (People v. Malone (1988) 47 Cal.3d 1, 22.) Accordingly, we find no abuse of discretion.


Defendant also complains the trial court erred in admitting the evidence of defendant's prior acts against Dawn under section 1109, because "it mistakenly believed the prior act evidence was relevant to support the expert's testimony on the 'battered women's syndrome.'" Defendant argues the "purpose of admitting expert testimony . . . battered women's syndrome, is to educate the jury . . . about how a person who is the victim of domestic violence may respond to it by denying it happened, by excusing it, and by staying in the relationship rather than leaving. Such expert testimony is not permissible to show that a defendant acted characteristically as a batterer in a particular case." We take no issue with this statement standing alone. However, we do not agree with defendant's reading of the record, that the court admitted the evidence on the basis it was relevant to battered women's syndrome.

After ruling that the evidence was admissible under section 1109, the court observed "there may be a totally independent basis to introduce this evidence as it relates to either the battered woman syndrome or potentially even the argument that the defendant engaged in prior similar conduct that would be relevant potentially on some other issue that will be before this Court." The language of the statement itself makes clear the court was engaging in speculation of other grounds on which, if sought, the evidence might be admissible. The court did not say the evidence was admissible on other grounds, but that it might be. The court did not say there was an issue currently before it which might render the evidence admissible on some independent grounds, but that there were potentially other issues which might in the future provide an independent basis for admission. This speculative discussion by the trial court about other possible basis for admission of evidence on grounds not offered or currently before it is not a ruling that the evidence was admissible on those grounds.

Moreover, although defendant does not challenge the admission of the June 2008 uncharged acts of domestic violence against Tina on appeal, they were part of his motion to exclude under section 1109 and part of the argument and analysis in the trial court. The discussion regarding battered women's syndrome was specifically in response to the argument that the June 2008 incident against Tina should be admitted under section 1109. The People argued that the evidence was also probative "to explain why she might have recanted later on as she was fearful of the defendant because he had been violent in the past." Thus, to the extent there was reliance on the possibility of expert evidence on battered women's syndrome, it was for the purpose of explaining Tina's actions, not defendant's propensity for violence.

Accordingly, we find there was no error in the trial court's discussion of the prior acts evidence as it related to the battered woman's syndrome.


The judgment is affirmed.

We concur: ROBIE , J. MAURO , J.

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