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People v. Garcia

California Court of Appeals, Second District, Fifth Division

November 6, 2017

THE PEOPLE, Plaintiff and Respondent,
DANNY MICHAEL GARCIA, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. KA109983, Bruce F. Marrs, Judge. Affirmed.

          Emily Lowther Brough, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.

          KRIEGLER, Acting P.J.

         People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz) held that former CALJIC No. 2.50.01-which permits a juror to draw an inference of a defendant's disposition to commit a sex offense based on proof of a charged crime by a preponderance of the evidence-unconstitutionally lowers the prosecution's burden of proof and results in structural error requiring reversal. We disagree with the reasoning in Cruz. We hold that the former CALJIC No. 2.50.02, a similarly worded pattern instruction on the use of charged acts of domestic violence to prove a disposition to commit domestic violence, does not lower the prosecution's burden of proof. Moreover, in this case the jurors were told seven times that the burden of proof was on the prosecution to prove guilt beyond a reasonable doubt, and no reasonable juror would have concluded that a conviction could be based on a preponderance of the evidence.


         Defendant and appellant Danny Michael Garcia was charged with committing eight offenses against Amanda P., his girlfriend and the mother of his child. The jury found defendant guilty of four of the eight charges: count 2-first degree burglary with another person present (Pen. Code, § 459)[1]; count 3-infliction of injury on a spouse, cohabitant, girlfriend, or child's parent after a prior conviction (§ 273.5, subd. (f)(1)); count 4-dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); and count 7-misdemeanor violation of a domestic violence restraining order (§ 273.6, subd. (a)). Defendant was found not guilty in count 8 of robbery (§ 211), and the jury was unable to reach a verdict in count 1, charging kidnapping (§ 207, subd. (a)), in count 5, charging making a criminal threat (§ 422, subd. (a)), and in count 6, charging false imprisonment (§ 236).[2] The trial court sentenced defendant to nine years four months in state prison.

         Over defendant's objection, the prosecution introduced evidence of his prior uncharged acts of domestic violence against Amanda. The trial court instructed the jury under former CALJIC No. 2.50.02 that it was permitted to draw a discretionary inference as to all counts that defendant had a disposition to commit domestic violence if the jury first found defendant had committed a charged or uncharged offense involving domestic violence by a preponderance of the evidence.

         Defendant's appeal primarily challenges the constitutionality and correctness of instructing that charged offenses may be considered as evidence of propensity under former CALJIC No. 2.50.02, and the propriety of admitting the uncharged offenses. He contends: (1) the court committed prejudicial error by instructing the jury to consider charges that are not crimes of domestic violence in determining whether defendant should be convicted of cohabitant injury; (2) the court lowered the prosecution's burden of proof by incorrectly instructing that propensity evidence of current domestic violence charges may be used if the charges are found true by a preponderance of the evidence; (3) the court abused its discretion by admitting evidence of past domestic violence incidents and phone sex recordings; and (4) the cumulative effect of these errors requires reversal of all convictions. In a separate argument, defendant contends the court's failure to properly instruct the jury on witness intimidation was prejudicial error.

         We hold that the jury was properly permitted to consider the charges of burglary and dissuading a witness when deciding whether to draw a discretionary inference that he had a disposition to commit domestic violence, because both of the charges qualify as domestic violence offenses as defined under Evidence Code section 1109. Former CALJIC No. 2.50.02 correctly stated the applicable standard for a juror's consideration of charged offenses for this purpose as a preponderance of the evidence. The instruction also clearly differentiated between the preponderance of the evidence standard of proof for drawing a discretionary inference of propensity and the beyond a reasonable doubt standard that must be met before a defendant may be convicted. The trial court did not err in admitting evidence of past domestic violence incidents and phone sex recordings. Having found no merit to these contentions, we necessarily conclude that defendant was not prejudiced by the cumulative effect of the alleged errors. Finally, the trial court did not err in instructing the jury that it must unanimously agree on the events that formed the basis of the witness intimidation charge.


         The Relationship Between Defendant and Amanda P. and Acts Occurring Before the Charged Offenses

         Amanda P. and defendant began dating in June 2012, maintaining a relationship through June 20, 2015, the date of the charged offenses. They have a son born in November 2014.

         On December 27, 2013, Amanda told defendant she believed she was pregnant. Defendant denied being the father. Defendant blocked the door as Amanda tried to leave. Defendant hit Amanda in the lip, causing her to fall to the floor and briefly lose consciousness. When Amanda awoke her “lip was split in half.” Amanda called her mother to pick her up. The police were called after her mother arrived.

         Officer Maxwell Moya responded to the domestic violence call. He described Amanda as scared, frustrated, and having a split lip, which Amanda told the officer was caused by defendant. She explained that an argument started when she told defendant she was pregnant and defendant punched her in the mouth. Defendant, who admitted being under the influence of methamphetamine, told Officer Moya that Amanda showed up with a split lip and she attacked him by hitting him multiple times with a closed fist and open hand. Defendant said he did not punch Amanda. Officer Moya observed no injuries to defendant.

         As a result of the December 27 incident, defendant was convicted on December 31, 2013, of inflicting corporal injury in violation of section 273.5. A domestic violence restraining order-People's Exhibit No. 1-was issued on the date of conviction, prohibiting defendant from coming within 100 yards of Amanda.

         Amanda was in the hospital in labor with her son on November 17, 2014. She told a nurse that defendant was the father, and provided defendant's name to her. Defendant arrived at the hospital drunk. He gave a false name, which caused security to investigate. Defendant was arrested once it was determined he was the subject of the restraining order. The Department of Children and Family Services (the Department) became involved as a result of the incident at the hospital.[3] Four days earlier, defendant hit Amanda, and a report was taken by the police. The police had responded to incidents involving Amanda and defendant more than seven times.

         Despite the restraining order, Amanda and defendant remained in contact. Amanda loved defendant during this time period, but by the time of trial she felt she had to “put my foot down. My kids deserve the best and so do I.”

         The Charged Offenses

         Amanda's Testimony

         Defendant and Amanda were together at her apartment on June 19, 2015, despite the existing restraining order.[4] Defendant left sometime during the night to get drugs, returning the next morning.[5] Amanda allowed defendant into the apartment. Defendant was under the influence of drugs and looked like he had not slept. Amanda told him to go home. Defendant refused. She told defendant she would call the police if he did not leave. Defendant grabbed her phone from her hand. He hit Amanda on the right side of her jaw, knocking her to the floor. Defendant punched Amanda's face and body with closed fists as she tried to push him off. He choked her, making it difficult to breathe. Defendant threatened to kill her. He hit her more than ten times. Amanda tried to get her phone to call the police, but defendant grabbed and threw the phone.

         After this round of violence, defendant and Amanda went to a nearby swap meet. She did not want to go with defendant, but he had her phone and would not give it back. Defendant grabbed her by the arm as they were walking down the stairs before letting go as they went to his car. Amanda did not ask for help at the swap meet because she was afraid defendant would hit her again. They were at the swap meet for approximately 30 to 45 minutes.

         They returned to Amanda's apartment where a second physical altercation ensued. Amanda told defendant to leave. She tried to get away, but defendant pulled her hair and threw her to the floor. He slapped and hit her more than five times. Amanda told him he had to leave or she would call the police.[6]

         Defendant left the apartment, but he returned and knocked on the door. Amanda went to the window and told defendant he could not come in. Defendant said he was not going to leave. Amanda called defendant's parents, put the phone on speaker, and told them defendant had already hit her twice. His parents told defendant he had to leave and come home.

         Defendant entered the apartment through the front window after tearing off the window screen. A third physical altercation ensued. Once inside the apartment defendant grabbed Amanda's phone as she tried to fend him off. He yelled and hit her more than once on the face, the last time on the chin. Amanda told defendant it was over and he had to leave. He refused, stating it was over when he said it was over. Amanda walked toward the door and turned to look at defendant. He hit her again, knocking her to the floor and causing her to see “black for a couple of seconds.” Defendant was gone when she got up.

         The 911 Call

         Amanda's mother and father arrived at her apartment. Amanda's mother called 911. A recording of the 911 call was played for the jury. Amanda took the phone from her mother shortly after the 911 call began. While crying, Amanda told the 911 operator it was an emergency and she needed a police officer. She identified defendant by name. She said it was domestic violence, explaining that defendant broke her window and beat her up. Amanda said there was supposed to be a restraining order in place, told the operator defendant's date of birth and description, and described the car he was driving. Amanda said he “socked me in the head, I got knots all over. I got a bloody nose, I got a busted lip.” She said she could go to the hospital on her own. She provided her name and was told an officer was being sent.

         The Responding Officer and Corroborating Photos

         Officer Alan Pucciarelli responded to the 911 call. He spoke with Amanda, who was crying and very distressed. Officer Pucciarelli documented Amanda's injuries with a series of photographs, which he and Amanda identified at trial. The photographs, which we have reviewed, depict numerous bright red abrasions covering the center of Amanda's forehead, nose, and left cheek. The abrasions reach into her hairline. There is a raised knot in the center of her forehead. Amanda's right ear is shown swollen and covered in red abrasions. Scratches and abrasions, inflicted when defendant choked Amanda, are clearly visible on her neck. Other photos showed large red areas on Amanda's right shoulder, back, and arm. Officer Pucciarelli and Amanda identified a photo of the damaged window screen defendant had ripped from the window frame and another of the window from which he entered. Officer Pucciarelli saw defendant after he was detained. He observed no injuries to defendant.

         Defendant's Jail Phone Calls

         Defendant made three recorded phone calls to Amanda from jail following his arrest. He made the calls using the jail account of another inmate, rather than using his own name and account. Recordings of the calls were played for the jury.

         The first recorded call was made on July 2, 2015. Defendant told Amanda he was not taking a deal. She responded that they were making her go to court. Defendant assured her that “they're just scaring you. Babe, please, babe.... Don't show up.” Amanda explained that she had a subpoena and if she did not appear in court, she faced time and would permanently lose custody of her children. Defendant told her that the case had nothing to do with the children and they would not take them away. Defendant said, “Please babe. Don't show up babe, don't show up, please, ” and that “[i]t wasn't me babe. I'm sorry.” Amanda and defendant each said they loved the other, but Amanda repeatedly expressed concern over losing custody of her children, and defendant repeated that they were just scaring her. Defendant told her, “I can't do all this time in here babe, ” “[i]t's like nothing happened if you don't show up, ” and “[i]t was the drugs babe.” Defendant offered to marry Amanda and said they would release him if she did not show up. Defendant told her they were trying to give him eight years “[f]or some bullshit.” “[I]f you[] don't show up my attorney says they will dismiss all the cases.” “I wanta change babe.”

         The second recorded call was made on July 4, 2015. Amanda told defendant she was drunk. She said they would take away her kids if she did not come to court. Defendant assured her that they could not take the children, despite her protests that lawyers told her a warrant would be issued for her arrest if she did not show up. Defendant responded that lawyers are professional liars and they were lying to her.[7]

         The third call from jail was made on July 14, 2015. Amanda began by telling defendant she was drunk at home, lying in bed. He told her, “[D]on't show up babe.” He said if she did not show up they would let him go home. He begged her not to come to court, promising, “I'll change for reals [sic] this time.” Defendant asked her to ignore the subpoena, explaining, “you're my only hope. And I think you don't want to press charges, alright?” Defendant told her they are going to give him “a long time, ” and “I can't do this.” Defendant continued, “You better not show up, if you really loved me, eh. That's what, that's how [I will] know if you really loved me or not, eh. And if not, then don't even bother writing me Amanda. Just let me go, alright?” She replied that she loved him. Defendant continued to press Amanda not to show up to court. He said he cared about the kids but needed to be out to do his classes. His attorney said they would drop the charges and then they would not do anything to her. Defendant said he was going to help her get her children back and they would have more kids. He was going to go to classes and get a job.

         Amanda admitted sending defendant love letters after his arrest and telling him in phone conversations that she loved him. By the time of trial she changed her mind because defendant had shown no remorse or caring for her children. “All he cared about was himself, what he was doing. I seen him for who he is.” She began to realize defendant was not completely honest with her. She was scared of defendant because he “would beat me like I was a guy.”


         Issues Relating to Former CALJIC No. 2.50.02[8]

         The trial court instructed the jury regarding the use of evidence of charged and uncharged crimes as follows:

         “In determining whether defendant has been proved guilty of [] any crime of domestic violence of which he [] is charged, you should consider all relevant evidence, including whether defendant committed any other domestic violence crimes, whether charged or uncharged, about which evidence has been received. The crimes charged in Counts 1-8, may be considered by you in that regard. [¶]... [¶]

         “If you find by a preponderance of the evidence that the defendant committed any such offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit another other [sic]offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he [] was likely to commit and did commit the crime or crimes of which he [] is accused.

         “However, even though you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he [] committed the offenses you are determining. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime that you are determining.

         “Unless you are otherwise instructed, you [] must not consider this evidence for any other purpose.” (Italics added.)

         Propensity Evidence

         Evidence of a person's character or predisposition to act in a certain way is generally inadmissible to prove that the person acted in conformance with that character trait on a given occasion. (Evid. Code, § 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) “‘Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.”... [Citations.]' [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 915.) Evidence Code section 1109 permits proof of a defendant's character in the form of evidence of a defendant's commission “of other domestic violence.” (Evid. Code, § 1109, subd. (a)(1).) Evidence Code section 1108 has a similar provision regarding “evidence of the defendant's commission of another sexual offense or offenses.” (Evid. Code, § 1108, subd. (a)(1).) “[Evidence Code] sections 1108 and 1109 can properly be read together as complementary portions of the same statutory scheme. A bill analysis prepared for those who voted to enact [Evidence Code] section 1109, states that ‘[t]his section is modeled on the recently enacted Evidence Code [section] 1108, which accomplishes the same for evidence of other sexual offenses, in sexual offense prosecutions.' (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, at p. 3.)” (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown I).)

         “‘[T]he legislative history of [Evidence Code section 1109] recognizes the special nature of domestic violence crime, as follows: “The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.” (Assem. Com. [] on Public Safety[, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) [June 25, 1996, at] pp. 3-4.)'” (People v. Brown (2011) 192 Cal.App.4th at 1222, 1235-1236 (Brown II).) “[B]y enacting [Evidence Code] sections 1108 and 1109, the obvious intention of the Legislature was to provide a mechanism for allowing evidence of past sexual offenses or acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type; recidivist conduct the Legislature has determined is probative because of its repetitive nature. Furthermore, it is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.” (Brown I, supra, 77 Cal.App.4th at pp. 1333-1334, fn. omitted.)

         Our courts have consistently interpreted Evidence Code sections 1108 and 1109 to allow consideration of evidence of uncharged offenses. (Villatoro, supra, 54 Cal.4th at p. 1160.) In 2012, our Supreme Court held that Evidence Code sections 1108 and 1109 permit consideration of charged offenses to prove a defendant's disposition as well. (Id. at pp. 1161-1167.) In the context of uncharged offenses, the jury must find that an offense was committed by a preponderance of the evidence before it may be considered for propensity. (People v. Carpenter (1997) 15 Cal.4th 312, 382, superseded by statute on another point as noted in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, which in turn was superseded by statute on another point as noted in Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1119, fn. 5.) The Supreme Court has not yet addressed the question of which standard the jury must apply before considering a charged offense as propensity evidence.

         Standard of Review for Jury Instructions

         “We review a claim of instructional error de novo. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) ‘“‘[T]he correctness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction.'”' (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)” (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378 (Fiore).) “‘If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' (People v. Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4.)” (People v. Young (2005) 34 Cal.4th 1149, 1202.) “In particular, ‘“‘[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' [Citation.]”' (People v. Bolin (1998) 18 Cal.4th 297, 328.) ‘Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' (People v. Sanchez (2001) 26 Cal.4th 834, 852.)” (Fiore, supra, at p. 1378.)

         Offenses Involving Domestic Violence

         The jury was instructed that former CALJIC No. 2.50.02 applied to all eight counts charged against defendant. Defendant argues that two of the charged offenses-burglary and dissuading a witness-should not have been included in the instruction, because those offenses “plainly do not fall within the definition of ‘domestic violence' or ‘abuse' as set forth in Penal Code § 13700 and Family Code § 6211.”

         Evidence Code section 1109 provides, in relevant part, 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 not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1), italics added.)

         Evidence Code section 1109 further states: “‘Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).) Both statutes define “domestic violence” as “abuse” committed against certain classes of people, ...

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