Opinion
C076525
12-18-2017
THE PEOPLE, Plaintiff and Respondent, v. TYRONE ARTHUR DOUGLAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 12F01245 & 13F00422)
A jury found defendant Tyrone Arthur Douglas guilty of grand theft from a person (Pen. Code, § 487, subd. (c); count one), as a lesser included offense of robbery; making a criminal threat (§ 422; count two); false imprisonment (§ 236; count three); and misdemeanor domestic battery (§ 243, subd. (e)(1); count five). In a bifurcated proceeding, the trial court found true an allegation Douglas had a prior serious felony conviction for domestic violence with a great bodily injury enhancement (§§ 667, subd. (a), 1170.12, subds. (b)-(i)) and was in violation of his probation in case No. 12F01245.
Further undesignated statutory references are to the Penal Code.
The trial court sentenced Douglas to an aggregate term of 15 years in state prison, consisting of six years (the upper term doubled) for making a criminal threat, a consecutive 16 months (one-third the middle term doubled) for grand theft from a person, an additional five years for the prior serious felony conviction, and a consecutive 32 months in the violation of probation case. The trial court stayed execution of Douglas's sentence for false imprisonment and domestic battery pursuant to section 654.
On appeal, Douglas claims there is insufficient evidence to support his conviction for grand theft from a person. He also contends the trial court made various evidentiary, instructional, and sentencing errors. We shall modify the judgment on count one (grand theft from a person) by reducing Douglas's conviction on that count to petty theft, a misdemeanor, and affirm the judgment as modified. (§ 1181, subd. (6).)
Douglas represents in his reply brief that while this case was pending on appeal, the trial court reduced his conviction for grand theft from a person to petty theft, a misdemeanor, and resentenced him "to a misdemeanor term" pursuant to his petition under section 1170.18. In People v. Scarbrough (2015) 240 Cal.App.4th 916, we held that a trial court lacks jurisdiction to recall a defendant's sentence and to resentence the defendant pursuant to section 1170.18 while the case is pending on appeal. (Scarbrough, at pp. 920, 929.) Accordingly, the trial court's order ostensibly recalling Douglas's sentence and resentencing him is void.
FACTUAL AND PROCEDURAL BACKGROUND
Douglas and the victim dated for a couple of months at the end of 2012.
On the evening of November 4, 2012, Douglas and the victim got into an argument at the victim's apartment. Douglas wanted to go to Walmart, and the victim refused to take him. The argument escalated, and Douglas struck the victim, knocking her to the floor. When she tried to get up, Douglas told her to stay down and proceeded to dump the contents of her purse onto the floor, taking her phone and wallet. He also held a comb or brush to her neck and told her she would be an "easy kill."
The victim eventually got up, and the two resumed arguing. Douglas followed the victim as she moved about her apartment. He was very angry and aggressive and refused to let her leave. Every time she walked near the door, he "was right there in [her] face . . . telling [her], do not leave."
Douglas followed the victim into her daughter's bedroom where he punched her in the mouth, knocking her onto her daughter's bed. As the victim lay on the bed screaming, Douglas called his friend Frank Vasquez and told him that he needed Vasquez to pick him up because he was about to kill the victim. Douglas also told the victim he was going to hang her in her daughter's closet so her kids would see her when they got home. When the victim attempted to get up, Douglas repeatedly punched and kicked her, causing her to fall to the floor and "black[] out kind of." She was disoriented and had trouble getting up.
Thereafter, the victim told Douglas she would drive him wherever he wanted to go. Douglas helped the victim to her feet, and the two walked outside. When they got to the bottom of the apartment steps, the victim saw Vasquez's car. She pretended she was going to get into Vasquez's car, then ran, got into her car, and drove to her mother's house.
The victim called the police later that evening. Sheriff's Deputy Darrell Amos responded to the call shortly after midnight. The victim was upset about what had transpired but otherwise calm. Deputy Amos observed an abrasion on the victim's lip, and the victim complained of pain on the left side of her head and neck. The victim said she had been punched in the mouth, hit in the head, and kicked. There were no obvious signs of any kind of head trauma at that time, and the victim provided coherent answers to Deputy Amos's questions.
The next morning, the victim's head "wouldn't stop hurting," so she went to the hospital. She told the emergency room staff she had been assaulted the night before. The emergency room doctor who treated her observed bruising on her face and scalp. She did not appear to have any neurological deficits. A CT scan of the victim's head looked normal, but the doctor diagnosed her with a concussion or head injury because she had been hit on the head and had a headache. The doctor explained, "People can have pretty severe symptoms - pretty prolonged symptoms, [and] they have a normal CT scan."
Douglas was staying with Angel Robinson while he was dating the victim. The victim had been to Robinson's home about four times. According to Robinson, the victim "loved to fight and argue . . . , and put her hand on people, but it wasn't - no aggression [by] him towards her." Robinson observed about three arguments between the victim and Douglas and never saw Douglas get physical with the victim. The victim, on the other hand, put her hands around Douglas's neck, broke things, threw his computer against the wall, blamed Douglas when her phone was stolen, and cussed and ranted around the house. The victim "act[ed] psycho like she had mental issues." Robinson acknowledged pleading no contest to misdemeanor grand theft in October 2012, and "hav[ing] another case, receiving stolen property," in July 2012.
Frank Vasquez and Douglas were close friends. Vasquez also knew the victim because he and Douglas had helped her move into her apartment. Vasquez had never seen Douglas and the victim get into an altercation. On November 4, 2012, at approximately 7:30 p.m., Douglas called Vasquez and asked Vasquez to pick him up from the victim's apartment because he "was having an altercation with" the victim. Vasquez could hear the victim screaming in the background, "[D]on't leave me," and Douglas responded, "[G]et out of my way. I want to leave. My friend is coming to get me." When Vasquez arrived to pick up Douglas, Douglas was running down the stairs, and the victim was "coming down after him." Douglas told the victim to leave him alone and not to follow him. The victim got into a blue car, and Douglas got into Vasquez's car. Vasquez did not observe any injuries to the victim. Douglas may have shown Vasquez "a nice little puncture" on his arm where he said he had been stabbed by the victim. Vasquez was not sure whether Douglas showed him the puncture wound on that occasion or a previous one. Vasquez acknowledged being convicted of burglary in 2002, a more recent conviction for drug possession, and violating his parole.
In January 2012, prior to the incident in question, Douglas was living with K.K., the mother of his two children. Douglas and K.K. got into an argument over some "girls" defendant brought into their home. K.K. wanted the girls to leave, and when she confronted them, Douglas "beat [her] up." He punched her until she fell to the floor and then began kicking her. K.K. was left with a shoe print on her face and swollen and bruised eyes.
A week later, after K.K. allowed Douglas to return to home, they got into another argument. K.K. attempted to leave when she felt Douglas was getting violent, and the next thing she recalled was waking up on the floor "heavily injured." She had been unconscious, and Douglas's sister, who was present when she was woke up, called for an ambulance. K.K. was taken to the hospital. She had a broken nose and multiple lacerations on her face. K.K. reported the incident to police.
K.K. denied telling a defense investigator that she did not know what happened, and that she had had been drunk, fell down, and woke up bruised.
DISCUSSION
I
There Is Insufficient Evidence to Support Douglas's Grand Theft From a Person
Conviction
Douglas contends there is insufficient evidence to support his conviction for grand theft from a person because there is no evidence he took the victim's cell phone or wallet from her person. The People agree, and so do we.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715, italics omitted.)
Douglas was convicted of grand theft from a person as a lesser included offense of robbery. Grand theft from a person occurs "[w]hen the property is taken from the person of another." (§ 487, subd. (c).) To satisfy the "from the person" requirement, the property taken must " 'at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession—such as clothing, apparel, or ornaments, or things contained therein, or attached thereto, or property held or carried in the hands, or by other means, upon the person.' " (In re Jesus O. (2007) 40 Cal.4th 859, 863.)
The evidence in this case does not support a conviction for grand theft from a person. At trial, the victim testified Douglas dumped the contents of her purse onto the floor and took her wallet and cell phone. There is no evidence the purse was attached to the victim's person when the items were taken, or that Douglas caused the purse to become detached from the victim. Accordingly, Douglas's conviction for grand theft from a person cannot stand.
The parties request that we modify the judgment by reducing the offense to petty theft (§ 488) because the evidence is undisputed that Douglas took the victim's wallet and cell phone from her immediate presence and against her will. (§§ 1181, subd. (6), 1260.) We agree this is the appropriate remedy and shall exercise our authority pursuant to section 1181, subdivision (6) to modify the judgment as requested and remand for resentencing.
This modification of the judgment moots Douglas's claim that he is entitled to have his grand theft conviction reduced to petty theft and to be resentenced pursuant to section 1170.18.
II
Douglas Waived and Forfeited His Claim That Evidence Code Section 1109 Is
Unconstitutional on Its Face, and in Any Event, the Claim Lacks Merit
Douglas next contends that "[t]he admission of the prior act evidence pursuant to Evidence Code section 1109 violated federal and state due process by permitting another act of domestic violence to be used as propensity evidence." The People respond that Douglas forfeited and waived this claim, and in any event, it lacks merit. We agree.
" 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731 [123 L.Ed.2d 508, 517] (Olano).) This principle is known as the contemporaneous objection rule and is codified at Evidence Code section 353, subdivision (a), which provides that "a judgment will not be reversed on grounds that evidence has been erroneously admitted unless 'there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .' [Citation.] Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence." (People v. Mattson (1990) 50 Cal.3d 826, 853-854, italics omitted.)
At trial, Douglas never challenged the constitutionality of Evidence Code section 1109. In fact, he agreed with the prosecutor that evidence of his prior act of domestic violence was relevant and admissible as to the domestic battery charge. Accordingly, he not only forfeited his claim, he waived it. (Olano, supra, 507 U.S. at p. 733 ["Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' "].) In any event, even if the issue had been preserved on appeal, it lacks merit.
Evidence Code section 1109, subdivision (a)(1), permits the admission of evidence of prior acts of domestic violence to show a defendant's propensity to commit acts of domestic violence. The subdivision is almost identical with Evidence Code section 1108, subdivision (a), which permits similar propensity evidence in sex offense cases. Both sections depart from the normal limitation on the use of uncharged acts, which are not admissible to show propensity, but must be admitted only to the extent they are relevant to prove some other matter at issue in the case. (Evid. Code, § 1101, subds. (a) & (b).)
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court upheld the constitutionality of Evidence Code section 1108, permitting admission of a defendant's other sex crimes in a prosecution for a sexual offense. (Falsetta, at p. 907.) Rejecting the defendant's argument that Evidence Code section 1108 violates due process principles by allowing admission of propensity evidence, the court concluded that "in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence." (Falsetta, at p. 915.)
Since Falsetta, Courts of Appeal, including this one, have consistently applied Falsetta's rationale in rejecting due process challenges to Evidence Code section 1109. (See People v. Johnson (2010) 185 Cal.App.4th 520, 528-530; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Price (2004) 120 Cal.App.4th 224, 239-241; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings); People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) "We agree with the reasoning and the results in these cases, and adopt their analyses as our own. In short, the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (Jennings, at p. 1310.)
III
Douglas Forfeited and Waived His Claim That Evidence Code Section 1109 Is
Unconstitutional as Applied, and in Any Event, the Claim Lacks Merit
Assuming we conclude, as we have, that Evidence Code section 1109 is constitutional on its face, Douglas claims "its application in the present case offended his right to a fair trial under the Fourteenth Amendment in that the court abused its discretion in admitting the prior act evidence in accordance with Evidence Code section 352" by "fail[ing] to consider the factors articulated in [People v.] Harris [(1998) 60 Cal.App.4th 727, 737-739]" in ruling that the evidence was admissible. The People respond that Douglas forfeited and waived this claim, and in any event, it lacks merit. We agree.
Prior to trial, the People moved in limine to introduce Douglas's recent conviction for infliction of corporal injury on K.K. (§ 273.5) with personal infliction of great bodily injury (§ 12022.7, subd. (e)) "as admissible and relevant evidence under Evidence Code [section] 1109." More particularly, the People sought "to admit into evidence that the defendant violently attacked his prior girlfriend over a minor argument, stomping her head causing a broken nose and major swelling/bruising." Douglas did not submit a written opposition to the People's motion. At the hearing, Douglas, through his counsel, acknowledged that such evidence was relevant and admissible as to the domestic battery count, but argued it should nevertheless be excluded because its admission would be "unduly prejud[icial]" as to the remaining counts, which he asserted did not involve domestic violence. The trial court raised the possibility of issuing a limiting instruction, but ruled that it would "be allowing in the prior incident as propensity evidence at least so much as it's -- this is a current domestic violence case, that's a prior domestic violence case, and it's very recent in time."
Where, as here, a defendant is charged with a domestic violence offense, Evidence Code section 1109 allows evidence of the defendant's commission of other uncharged acts of domestic violence to show his propensity to commit domestic violence, unless the evidence is inadmissible pursuant to Evidence Code section 352. (Evid. Code, § 1109, subd. (a)(1).) In exercising its discretion to admit or exclude evidence, the court must balance the probative value of the evidence against the following factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of the 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. Harris, supra, 60 Cal.App.4th at pp. 737-740 (Harris).)
" 'The [trial] court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.] [¶] Thus, as the Supreme Court has repeatedly . . . reaffirmed, 'when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.' [Citation.]" (Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)
Douglas contends the trial court "failed to conduct any evaluation of the evidence, much less a careful review in accordance with Evidence Code section 352. Not only did the court fail to consider the factors articulated in Harris, it is apparent that the court completely failed to understand and fulfill its responsibilities under [Evidence Code] section 352 . . . ."
During the proceedings below, Douglas did not argue that evidence of his prior act of domestic violence was inadmissible based on any of the Harris factors, nor did he raise any objection to the trial court's ruling. To the contrary, he agreed with the People that evidence of his prior act of domestic violence was relevant and admissible under Evidence Code section 1109 "in a new trial for a new spousal abuse, that relates to Count Five [(domestic battery)] . . . ." He objected to the evidence on the ground that its admission would be "unduly prejudic[ial]" as to the robbery, false imprisonment, and criminal threat charges, which he argued did not constitute domestic violence. (That issue was preserved for review and is addressed post, at p. 17.) Thus, Douglas not only forfeited his claim that the trial court failed to consider the Harris factors or otherwise fulfill its obligations under Evidence Code section 352, he waived it. (Evid. Code, § 353; Olano, supra, 507 U.S. at p. 733.) Indeed, had Douglas argued evidence of his prior act of domestic violence was inadmissible based on an analysis of the Harris factors or objected to the trial court's ruling on the ground it failed to consider such factors, the trial court could have explicitly addressed those issues. By failing to do so, Douglas failed to preserve the issue for appeal.
In any event, the prior act evidence was properly admitted under Evidence Code section 1109. Before we examine the relevant factors, we pause to note that "[i]n assessing the trial court's evidentiary ruling, we must consider the facts known to the court at the time the ruling was made. [Citations.] Consequently, we look to the prosecution's offer[] of proof in determining error," and not the evidence adduced at trial. (People v. Hendrix (2013) 214 Cal.App.4th 216, 243.)
Both parties make the common mistake of relying on the evidence adduced at trial in addressing the trial court's pretrial ruling.
The People's offer of proof for the prior act of domestic violence, as set forth in the People's "Trial Brief and Motions in Limine," was that "[o]n January 17th, 2012, the defendant had been living with his then girlfriend [K.K.], with whom he shares two children. During this time the defendant and [K.K.] had been arguing over the defendant bringing women to their shared residence. On the 16th, the defendant struck [K.K.] numerous times in the face but because their children were home she did not report it and they went to bed. On the 17th, the defendant brought multiple women over to the house and the two began to argue again. The defendant punched [K.K.] approximately 6 times in the face, causing her to fall to the ground. Once on the ground the defendant kicked her in the face approximately 4 times. [K.K.'s] right eye was swollen nearly shut, her left eye was severely swollen, she had a laceration to the right of her nose that was oozing blood, both lips were split open and she was found to have suffered a broken nose. The defendant entered a plea for a consequence of 5 years' probation and one year in the county jail."
The People's offer of proof for the current charges was that "[o]n November 5th, 2012, Sacramento Sheriff's Deputies were called out to the residence of the victim . . . . [The victim] stated that she and the defendant, Tyrone Douglas, had been in a dating relationship for approximately a month since his release from the County Jail. In the days preceding the 5th the two had argued about things that they had said to one another that they considered being disrespectful. [The victim] had asked the defendant to leave her house multiple times, but he would not leave. [¶] During the argument the defendant became violent, striking [the victim] and causing her to fall [to] the ground in her bedroom. He then sat on her chest, held the remote control to her throat and told her that she would be an easy kill. . . . The defendant stood up and dumped the contents of [the victim's] purse out onto the floor, taking her wallet and phone. The defendant began to act as if nothing had happened and asked [the victim] to take him to Walmart. [The victim] asked the defendant to leave but he ignored her requests, instead following her around the house, getting in her face demanding that she take him to the store. [¶] The defendant then began to insist on [the victim] taking him to the bank so that he could get money from her account, that he felt she owed him. When [the victim] continued to refuse the defendant told her that she had choices and if she didn't take him he would knock her out and put her in the trunk. After nearly 10 minutes of arguing back and forth [the victim] told the defendant that either he needed to leave or she would leave. Any time [the victim] attempted to leave the residence the defendant would block her way and not allow her to leave. During this entire episode the defendant would calm down then again become angry, striking [the victim] multiple times all over her body. The defendant also pushed [the victim] down near the doorway of her daughter's bedroom and as she stood to get up he punched her in the face near the mouth with a closed fist. After he had punched her the defendant made a call to a friend and [the victim] heard him say that he saw blood from her lip and that he was going to have to kill her. The defendant then struck [the victim] in the head, causing her to fall to the floor again. After this blow to the head [the victim] had trouble getting up and the defendant actually helped her up."
Douglas concedes that evidence of his prior act of domestic violence was probative of his propensity for committing domestic violence but asserts that "[h]ad the court carefully measured the probative value of the evidence [against its prejudicial effect] . . . , it is unlikely that it would have been admitted at all."
First, we do not agree that the trial court failed to weigh the probative value of the prior act evidence against its prejudicial effect. In ruling the evidence was admissible at least as to the domestic battery charge, the court noted that "this is a current domestic violence case, that's a prior domestic violence case, and it's very recent in time." While the trial court did not explicitly discuss the other factors, Douglas did not raise them. In any event, the trial court was not required to " 'expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . [Evidence Code] section 352.' [Citation.]" (Jennings, supra, 81 Cal.App.4th at p. 1315.) Having reviewed the record, including the People's written motion, the transcript of the hearing on the motion, and the trial court's ruling, we find the trial court satisfied its obligations under Evidence Code section 352.
Second, having considered each of the Harris factors, we reject Douglas's assertion that the prejudicial effect of the prior act evidence substantially outweighs its probative value. The two assaults were similar. In both cases, Douglas became violent during the course of an argument and punched or struck the women in face, causing them to fall to the ground. In the prior incident, Douglas kicked K.K. in the head. In the present case, he struck the victim in the head, causing her to fall to the floor. In addition, in the present case, unlike the prior incident, Douglas refused to allow the victim to leave and repeatedly threatened to kill and harm her. Thus, if anything, the charged act of domestic violence, as detailed in the People's offer of proof, was more egregious than the prior incident.
Douglas suggests the prior incident was more inflammatory because K.K. was beaten into unconsciousness and hospitalized. Those facts, however, were not part of the People's offer of proof, and thus, were not before the trial court when it made its ruling. --------
In addition, there was no danger evidence of the prior act of domestic violence would confuse the jury. The incidents involved different victims and were committed 10 months apart. Moreover, evidence Douglas was convicted and sentenced for the uncharged offense would have mitigated the kind of prejudice usually associated with the introduction of such evidence by "ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (Falsetta, supra, 21 Cal.4th 903, 917; accord Harris, supra, 60 Cal.App.4th at p. 738; Jennings, supra, 81 Cal.App.4th at pp. 1315-1316.)
Finally, Douglas concedes the prior incident was not remote in time, and the introduction of evidence regarding the incident would not involve an undue amount of time.
For all the foregoing reasons, the trial court did not abuse its discretion in ruling that evidence of Douglas's prior act of domestic violence was admissible at trial.
IV
Douglas's Trial Counsel Was Not Ineffective For Failing to Object to the People's
Alleged Failure To Comply With Evidence Code Section 1109's Notice Requirement
Douglas next claims his trial counsel rendered constitutionally deficient assistance by not objecting to the People's failure to comply with Evidence Code section 1109's notice requirement. Douglas asserts that had his counsel "brought the statutory mandate and the prosecution's failure to comply with that mandate to the court's attention[,] . . . the evidence related to the prior assault upon [K.K.] would have never been admitted at trial." Assuming for argument's sake that the People did, in fact, fail to comply with the notice requirement, Douglas's claim fails because it is not reasonably probable evidence of his prior assault would have been excluded had his counsel objected.
To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, a defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
There is no need to address the issue of whether counsel's performance was deficient when we can dispose of an ineffective assistance of counsel claim on the ground of lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.) Here, we need not determine whether counsel's performance was deficient for failing to object to the People's purported failure to comply with the applicable notice requirement because it is not reasonably probable that an objection would have resulted in a verdict more favorable to Douglas.
Section 1109 of the Evidence Code provides that in an action involving domestic violence "the people shall disclose the [propensity] evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code." (Evid. Code, § 1109, subd. (b).) Section 1054.7 requires the People's disclosure of propensity evidence "shall be made at least 30 days prior to the trial."
If the People do not comply with their disclosure obligations, section 1054.5 authorizes the court to "make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) Critically, the exclusion of testimony should be ordered "only if all other sanctions have been exhausted." (§ 1054.5, subd. (c).) We read this limit on a trial court's ability to exclude propensity evidence as an indication of the Legislature's strong judgment that evidence of prior domestic abuse should ordinarily be admissible.
Although we are unable to find any published decisions dealing directly with the People's failure to comply with the 30-day discovery obligation under Evidence Code section 1109, the issue of what is the appropriate remedy for a belated disclosure by the People has been addressed in other circumstances. For example, in In re Jessie L. (1982) 131 Cal.App.3d 202, two juveniles were convicted of second degree murder. (Id. at p. 207.) On appeal, one of the defendants argued that the testimony supporting probable cause for his arrest should have been suppressed because the prosecution failed to disclose in a timely manner a corrected supplemental police report about an accomplice's statement; the supplemental report was not provided to the defense until "the day before the first day of pretrial hearings." (Id. at p. 210.) The Court of Appeal affirmed, holding that "the normal remedy" for a failure of discovery "is not dismissal or the suppression of evidence, but a continuance to enable the defense to meet the new evidence." (Ibid.) Based on the legal authority discussed above, it is not reasonably probable evidence of his prior assault would have been excluded even if his counsel had objected and the objection was sustained. Accordingly, Douglas's ineffective assistance of counsel claim fails.
V
The Trial Court Properly Instructed the Jury That It Could Consider Evidence of
Douglas's Prior Act of Domestic Violence in Connection with the Domestic Battery,
False Imprisonment, and Criminal Threat Charges
Douglas next contends that the trial court "erred in instructing the jury that the evidence of the prior assault against [K.K.] could be considered for all currently charged counts other than the alleged robbery." He asserts that the trial court erred in allowing the jury "to use the prior violent assault evidence to conclude that [he] was likely to commit criminal threats and false imprisonment" because "the prior violence against [K.K.] bore little or no similarity in character to the threats allegedly made to [the victim], must less to the act of preventing her from leaving the apartment." We discern no error.
As detailed above, prior to trial, the People moved in limine to introduce evidence of Douglas's prior act of domestic violence. Douglas acknowledged such evidence was relevant and admissible as to the domestic battery count, but argued it should nevertheless be excluded because its admission would be "unduly prejud[icial]" as to the remaining counts, which he asserted did not involve domestic violence. The People responded that "the remaining counts, although more serious than Count 5 [(domestic battery)] all follow from Count 5," and thus, evidence of Douglas's prior act of domestic violence should be "admitted for purposes of all the charges, not just Count Five [(domestic battery)]." The trial court raised the possibility of issuing a limiting instruction, but ruled that it would "be allowing in the prior incident as propensity evidence at least so much as it's -- this is a current domestic violence case, that's a prior domestic violence case, and it's very recent in time." After the trial court announced its ruling, Douglas's trial counsel asked whether the court was inclined to give a limiting instruction. The court responded that it "would be open to further briefing [and] argument on . . . how the jury is instructed, as to how to consider that particular evidence."
Following K.K.'s testimony, Douglas submitted a written motion requesting "the [trial] court give a limiting instruction indicating which counts the [Evidence Code section] 1109 evidence applies to. Defendant states that Counts 1 [(robbery)] and 4 [(identity theft)], should be excluded." While the written motion does not mention the criminal threat (count two) or false imprisonment (count three) counts, the record makes clear that Douglas argued the prior act evidence should be limited to domestic the battery count. In ruling on the motion, the trial court indicated that it "didn't go as far as [defense counsel] would want in terms of only instructing it as to Count Five [(domestic battery)]; however, I did remove reference . . . to Count One, the robbery or lesser included offense of grand theft person, believing . . . however that [section] 422 criminal threats, and [section] 236 false imprisonment had sufficient nexus to being domestic violence related so as to properly fall within the scope of the [Evidence Code section] 1109 instruction to the jury."
Accordingly, the trial court instructed the jury in the language of former CALCRIM No. 852 in pertinent part as follows: "If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision, also conclude that the defendant was likely to commit criminal threats, false imprisonment, and battery on a person with whom one has or had a dating relationship that's charged in Counts Two, Three and Five. [¶] . . . [¶] Do not consider this evidence for any other purpose." (Italics added.)
As previously discussed, Evidence Code section 1109 allows the introduction of evidence of a defendant's commission of prior acts of domestic violence in a criminal action charging a defendant with an offense involving domestic violence subject to Evidence Code section 352. (Evid. Code, § 1109, subd. (a)(1).) As used in Evidence Code section 1109, " 'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code." (Evid. Code, § 1109, subd. (d)(3).) Section 13700 defines " 'domestic violence' " as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship," (id., subd. (b)) and " 'abuse' " as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Id., subd. (a), italics added.)
Here, the evidence adduced at trial supported a finding that Douglas and the victim were in a dating relationship when he "intentionally or recklessly" placed the victim "in reasonable apprehension of imminent serious bodily injury" by preventing her from leaving her apartment in the midst of a violent assault and threatening her with death or serious injury. Accordingly, the trial court did not err in instructing the jury that it could consider evidence of Douglas's prior act of domestic violence in connection with the criminal threat and false imprisonment charges.
VI
The Trial Court Did Not Err in Instructing the Jury That Douglas Was Convicted of
Committing Domestic Violence on K.K. with a Great Bodily Injury Enhancement in
Connection with the Prior Incident of Domestic Violence
Douglas next contends the trial court erred in instructing the jury that he had been convicted of committing domestic violence on K.K. with a great bodily injury enhancement. We are not persuaded.
After evidence of Douglas's prior act of domestic violence had been admitted, the People moved to admit evidence Douglas pleaded no contest to inflicting corporal injury on a cohabitant with a great bodily injury enhancement in connection with the prior incident. Douglas responded that evidence he pleaded no contest to infliction corporal injury on a cohabitant was sufficient, and that the enhancement was not "necessary . . . to prove propensity," particularly where there was no great bodily injury enhancement alleged in the present case and there "was no major trauma" to the victim. He argued that any probative value the enhancement might have was outweighed by its prejudicial impact. The People responded that a question arose as to the cause of K.K.'s broken nose during defense counsel's cross-examination of K.K., and thus, it was important for the jury to be advised that Douglas had acknowledged inflicting K.K.'s injuries, including the great bodily injury. Otherwise, he asserted, the jury would be able to infer that while Douglas assaulted K.K., he was not the cause of her very serious injuries, which would be untrue. The trial court ruled that the jury could be informed of the prior conviction, including the great bodily injury enhancement, and left it up to counsel to draft a stipulation to that effect.
Prior to instructing the jury, the trial court advised the jury: "[T]he parties agree and the Court takes judicial notice that the defendant, Tyrone Douglas, pled no contest to committing domestic violence upon [K.K.] on March 27, 2103, and also, admitting that he caused great bodily injury; namely, a broken nose during that assault."
Later, the trial court instructed the jury in the language of former CALCRIM No. 852 in pertinent part as follows: "Evidence of uncharged domestic violence. [¶] The People presented evidence that the defendant committed domestic violence that was not charged in this case; namely, a March 27, 2013 conviction for battery upon [K.K.] and infliction of great bodily injury; to wit, a broken nose. [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision, also conclude that the defendant was likely to commit criminal threats, false imprisonment, and battery on a person with whom one has or had a dating relationship that's charged in Counts Two, Three and Five." (Italics added.)
Douglas asserts that "[b]y instructing the jury that [he] stood convicted of the prior offense, the court effectively removed the jury from its role as a fact-finder," thereby denying him his right to a jury trial and due process as guaranteed by the Sixth and Fourteenth Amendments.
Douglas fails to cite and we are not aware of any case that holds that evidence that a defendant's uncharged misconduct resulted in a criminal conviction violated the defendant's right to a jury trial or due process of by taking away the jury's role as fact finder. To the contrary, such evidence is frequently admitted in cases where evidence of uncharged misconduct is admitted to establish propensity to commit sexual assaults or domestic violence (Evid. Code, §§ 1108 & 1109), or motive, intent, a common design, or lack of consent by the victim (Evid. Code, § 1101, subd. (b)). (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1287.) Indeed, our Supreme Court has repeatedly held that the prejudicial effect of evidence of uncharged misconduct is lessened by the circumstance that a defendant's uncharged act resulted in a criminal conviction. This circumstance decreases the danger that the jury might have been inclined to punish the defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses, and decreases the likelihood of "confusing the issues" (Evid. Code, § 352), because the jury did not have to determine whether the uncharged offenses had occurred. (Lewis, at p. 1287; Falsetta, supra, 21 Cal.4th at p. 917; People v. Balcom (1994) 7 Cal.4th 414, 427; People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
In light of this well-established practice and in the absence of any case law that holds that evidence that a defendant's uncharged misconduct resulted in a criminal conviction violated the defendant's right to a jury trial or due process of by taking away the jury's role as fact finder, we find the introduction of Douglas's prior conviction in this case was proper.
VII
The Jury Was Properly Informed on the Application of the Unanimity Instruction
Douglas contends the trial court erred in giving the jury a unanimity instruction without any guidance as to how it should be applied. More particularly, he asserts that the trial court erred by not connecting the unanimity instruction to the criminal threat offense, and as a result, "the jurors were certainly led to believe that they should apply the unanimity instruction to the charged battery that had just been described and not to any other offense." Not so.
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) This unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. (Ibid.) When a defendant is charged with a single count of making a criminal threat, and the evidence shows more than one criminal threat was made, the prosecution must either make an election of the threat for which a conviction is sought, or the trial court must give a jury unanimity instruction. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.)
Here, the prosecutor did not elect to rely on one criminal threat. Rather, he relied on two: (1) Douglas's statement that the victim would be an "easy kill," and (2) Douglas's statement that if the victim refused to go to the bank, he would put her in the trunk of her car.
After instructing the jury on robbery, the lesser included offense of grand theft from a person, criminal threat, and domestic battery (in that order), the trial court instructed the jury in the language of CALCRIM No. 3500 in pertinent part as follows: "The People may have presented evidence of more than one act to prove that the defendant committed the offense. You must not find the defendant guilty unless you all agree the People have proved that the defendant committed at least one of these acts charged in this case, and you all agree on which act he committed." As Douglas points out, the trial court failed to include the first sentence of CALCRIM No. 3500, which identifies the charged offense. We agree with Douglas that the trial court's failure to connect the unanimity instruction to a specific offense made the instruction itself ambiguous. That, however, is not the end of the inquiry.
To determine whether the jury was misled by this ambiguity, we ask how a reasonable juror would have understood the challenged instruction. (People v. Thompson (2016) 1 Cal.5th 1043, 1128.) In making our determination, we consider the entire record, including the instructions as a whole and the arguments of counsel. (People v. Cordova (2015) 62 Cal.4th 104, 147.) As we shall explain, any ambiguity as to which offense the unanimity instruction applied was clarified by the prosecutor's closing argument.
In his closing argument to the jury, given after the jury was instructed, the prosecutor referenced the unanimity instruction in connection with his argument on the criminal threat charge, stating, "And in this case there is an added element, and that is Mr. Douglas made a number of threats. . . . I'm going to give you two examples, and I'm going to tell you how the unanimity instruction works." After setting forth the two threats, the prosecutor told the jury, "So the unanimity instruction says that for you to find the defendant guilty, you all 12 have to agree on which one of those threat theories you are finding the defendant guilty of. If you walk in and you feel that he is guilty on both of them, he's guilty. If you walk in and all twelve of you start with first threat of, you would be an easy kill, and all twelve of you agree that these elements are met . . . , you are done. You don't need to get to the second. So you just have to agree on the same threat." The prosecutor did not refer to the unanimity instruction in connection with any other offense, and Douglas's trial counsel did not discuss the criminal threat charge or the unanimity instruction in his closing argument.
On this record, we conclude that any ambiguity in the unanimity instruction itself was cleared up by the prosecutor's argument, and thus, the jury was properly informed as to the application of the unanimity instruction. In other words, no reasonable juror would have understood the unanimity instruction to apply to any charge other than the criminal threat charge.
VIII
The Trial Court Did Not Err in Failing to Stay Douglas's Sentence for Grand Theft From
a Person (Count One) Pursuant to Section 654
Finally, Douglas contends the trial court erred in failing to stay his sentence for grand theft from a person (count one) because it, along with the battery, criminal threat, and false imprisonment, were all part of the same course of criminal conduct, and he harbored a single criminal objective for the entire incident. Although we reverse the judgment of conviction of grand theft from a person, we address this claim to provide guidance to the trial court at resentencing.
As relevant here, defendant was sentenced to six years in state prison for making a criminal threat (count two), plus a consecutive term of one year four months for grand theft from a person (count one). The trial court stayed execution of Douglas's sentences for false imprisonment (count three) and domestic battery (count five) pursuant to section 654.
Subdivision (a) of section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Even though section 654 refers to '[a]n act or omission,' in Neal v. State of California (1960) 55 Cal.2d 11, the California Supreme Court 'opined that "[f]ew if any crimes . . . are the result of a single physical act." [Citation.] Accordingly, the relevant question is typically whether a defendant's " 'course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' " [Citation.] To resolve this question, the Neal court announced the following test: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.]" (People v. Goode (2015) 243 Cal.App.4th 484, 492.) Since Neal, however, courts " 'have refined and limited application of the "one intent and objective" test, in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant's punishment will be commensurate with his culpability.' [Citation.] For example, in People v. Beamon (1973) 8 Cal.3d 625, disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th 896, the Supreme Court stated 'that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.' (Beamon, at p. 639, fn. 11.) 'Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted "one indivisible course of conduct" for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.' [Citation.]" (Ibid.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
While Douglas claims that all of the charged offenses, including the grand theft from a person, occurred during a continuous course of criminal conduct where he harbored a single objective, he fails to identify that objective other than to state that "there was no real objective to the conduct besides rage and anger."
As previously discussed, the domestic battery, criminal threat, and false imprisonment offenses all involve domestic violence under the circumstances of this case. (Ante, at pp. 18-19.) The same cannot be said of the grand theft from a person. While it occurred during the course of the domestic violence, the trial court reasonably could have concluded that the conduct that formed the basis of the grand theft from a person conviction on the one hand and the domestic violence on the other did not constitute an indivisible course of conduct. Thus, the trial court did not err in failing to stay defendant's sentence for grand theft from a person.
DISPOSITION
The judgment of conviction on count one (grand theft from a person) is modified to reflect a conviction of petty theft, a misdemeanor. The judgment is affirmed as modified. The matter is remanded to the trial court for resentencing. Following resentencing, the trial court shall forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Robie, J.