Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05SF1295, James A. Stotler, Judge.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Roland Myrie challenges his conviction for attempted murder. He contends the court wrongly admitted evidence of his previous domestic violence, which he committed more than 10 years before the charged offense. He further contends the court wrongly concluded the prior domestic violence was a serious felony.
We disagree, and affirm. The court did not abuse its discretion by finding that admitting evidence of the prior domestic violence was “in the interest of justice.” (Evid. Code, § 1109.) And it correctly found the prior act constituted a serious felony because defendant personally inflicted great bodily injury on the victim.
All further statutory references are to the Evidence Code unless otherwise stated.
FACTS
Defendant shared an apartment with his girlfriend of over a year. The girlfriend’s sister also lived in the apartment. One night in November 2005, defendant and his girlfriend argued over whether defendant had made sexual advances toward her sister. The girlfriend later saw defendant in bed, wearing the sweat suit he slept in. The girlfriend went to bed, but woke up at 3 a.m. to find defendant sitting on their bed, fully dressed. The girlfriend fell back asleep. When she later awoke, defendant stabbed her in the abdomen with a large kitchen knife. The knife penetrated to her spinal column, severing her large intestine and a major vein.
The sister heard defendant’s girlfriend scream, and entered the bedroom. Blood was all over the room. The girlfriend was lying on her back on the floor — a knife was next to her. Defendant was standing over the girlfriend. He told the sister he did not do anything to the girlfriend. The girlfriend said it was an accident.
The sister called 911. The girlfriend told the responding officer, “He did this. Please don’t leave me.” On the way to the ambulance, she told another officer that defendant had stabbed her. At the hospital, she nodded “yes” when a detective asked whether defendant had stabbed her in her sleep. She nodded “no” when asked whether she had stabbed herself. She also told a hospital psychiatrist that defendant had stabbed her. A couple of weeks later, she told a social worker that defendant had stabbed her.
Defendant was arrested and charged with one count of attempted murder. (Pen. Code, §§ 187, subd. (a), 664, subd. (a).) The information alleged defendant personally inflicted great bodily harm on his girlfriend. (Pen. Code, § 12022.7, subd. (e).) It further alleged he had suffered a prior serious felony conviction in New York. (Pen. Code, §§ 667, subds. (a), (d), (e)(1), 1170.12, subds. (b), (c)(1).)
At trial, defendant contended the girlfriend had stabbed herself. The girlfriend testified under a grant of immunity, admitting that she had told investigators several times in 2006 — and had testified at the preliminary hearing — that she had stabbed herself. She explained she was depressed after the stabbing and worried about being alone, and that defendant had apologized and offered to support her.
Over the defense’s objection, the prosecution called a New York police detective. He testified he had investigated the 1990 shooting death of defendant’s then-girlfriend, Charlene Jenkins. Defendant had told the detective that he pulled a gun out of his pocket during an argument with the victim, and the gun discharged after the victim pushed him.
The jury found defendant guilty of attempted murder. It further found defendant had personally inflicted great bodily harm on his girlfriend. The court found defendant had suffered a prior serious felony conviction: he had pleaded guilty to one count of second degree manslaughter under New York law and admitted the bullet from his gun killed Jenkins. The court sentenced him to 14 years to life in state prison for attempted murder (the seven-year minimum parole term, doubled for the prior strike), plus a consecutive four-year term for the personal infliction of great bodily harm enhancement and a consecutive five-year term for the prior serious felony enhancement.
DISCUSSION
The Court Permissibly Admitted Evidence of Defendant’s Prior Domestic Violence
Defendant contends the admission of evidence concerning his prior act of domestic violence was barred by section 1109. That statute sets forth the domestic violence exception to the general prohibition against admitting character evidence — such as prior bad acts — to prove a defendant’s conduct. (§ 1101, subd. (a).) Section 1109, subdivision (a), provides, “Except as provided in subdivision (e) or (f), 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.” Defendant concedes the predicates of section 1109. He does not dispute he was “accused of an offense involving domestic violence” in this case or that the killing of Jenkins constituted the “commission of other domestic violence . . . .” (§ 1109, subd. (a)(1); Pen. Code, § 13700, subd. (b) [defining “domestic violence”].)
Rather, defendant contends admitting the evidence was not “in the interest of justice.” Section 1109, subdivision (e) provides, “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Here, the prior act occurred in 1990, some 15 years before the charged offense. Thus, the evidence falls outside the statutory limit of remoteness, and may be admitted only if doing so is “in the interest of justice.” (Ibid.) Defendant notes the statute does not define what constitutes the “interest of justice,” and no published opinion has construed the term in the context of section 1109. Yet “[o]bviously the Legislature on occasion entertains the notion that judges can divine what ‘justice’ is.” (In re Marriage of Cordero (2002) 95 Cal.App.4th 653, 663, fn. 12.)
Admitting the evidence of defendant’s prior domestic violence sufficiently furthered the interest of justice. The evidence was targeted to the key defense and crucial issue of identity: did defendant stab his girlfriend or did she stab herself? The evidence pointed toward defendant by suggesting arguments with girlfriends lead him to armed violence. While the prior act fell five years outside section 1109’s 10-year window, it was still substantially less than the 30-year period within which evidence of prior sexual offenses is often admitted pursuant to section 1108. (People v. Branch (2001) 91 Cal.App.4th 274, 284-285 (Branch) [evidence admitted despite “30-year gap” between prior act and charged offense]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [admitting evidence of 20 to 30 year old acts].) And the court, in its “effort to minimize any prejudice from that incident,” exercised its discretion to bar evidence that defendant had shot Jenkins in the head or that she died from the gunshot. On this record, we cannot say the trial court abused its discretion by concluding the admission of the evidence was in the interest of justice. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt) [admission of evidence of prior bad act reviewed for abuse of discretion]; see also People v. Carmony (2004) 33 Cal.4th 367, 377-378 [reviewing decision made “in furtherance of justice” for abuse of discretion].)
Section 1108 is another exception to section 1101, allowing the admission of evidence of prior sexual offenses. The remoteness of the prior offense is one factor for determining whether to admit evidence pursuant to this statute, though the statute does not contain a bright line like section 1109. (People v. Harris (1998) 60 Cal.App.4th 727, 739.)
Defendant further contends the evidence of his prior domestic violence was unduly prejudicial pursuant to section 352. He notes the prior act involved a different victim, a different scenario (he struggled with his first victim, but stabbed the second victim in her sleep), and occurred 15 years before the charged offense. We see no error. Admissible evidence of prior domestic violence often involves different victims, without thereby becoming unduly prejudicial. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 [evidence of prior domestic violence involving different victim admissible]; People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [same].) The prior act is substantially similar to the charged offense, despite the different details: both cases show defendant resorts to armed violence after arguing with a girlfriend. (Cf. Rucker, at pp. 1119-1120 [prior act probative because it showed the defendant “reacted to the ending of the relationship by confronting the victim with a gun,” as she did in the charged offense, even though the defendant used gun differently each time].) The similarity between the prior act and charged incident outweighs the remoteness between the incidents. (Branch, supra, 91 Cal.App.4th at p. 285.)
Section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Moreover, the prior act was much less inflammatory than the charged offense, at least from the jury’s perspective. All the jury heard about the prior act was that the defendant’s gun fired after Jenkins pushed him during an argument. It did not hear she was shot in the head and died. This pales in comparison to the charged offense, in which the defendant stabbed a sleeping woman with gruesome results. The court did not abuse its discretion by concluding the probative value of the evidence of the prior act outweighed any risk of undue prejudice.
Finally, any error in admitting the evidence was harmless. (Cal. Const., art. 6, § 13; People v. Alcala (1992) 4 Cal.4th 742, 790-791 [admission of unduly prejudicial evidence reviewed for error under standard set forth in People v. Watson (1956) 46 Cal.2d 818].) The evidence of defendant’s guilt was overwhelming. The only real defense was the suggestion that defendant’s girlfriend had stabbed herself. The jury credited the girlfriend’s testimony that defendant had stabbed her — corroborated by her many statements made at and near the time of the attack — over her later recantations made in the throes of depression and loneliness. And the evidence of defendant’s prior act of domestic violence was a minor part of the trial. The direct examination of the New York detective consumed only eight pages of the transcript of the five-day trial. No reasonable probability exists that defendant would have received a more favorable verdict had the evidence been excluded. (Watson, at p. 836.)
Defendant’s Prior Act Constituted a Serious Felony Because He Personally Inflicted Great Bodily Injury
Defendant contends the court erred by finding his prior act of domestic violence and subsequent conviction for second degree manslaughter under New York law constituted a prior “serious felony” conviction pursuant to Penal Code section 667, subdivision (a), or a “prior felony” conviction pursuant to Penal Code section 1170.12, subdivision (c)(1). Both statutes apply to out-of-state convictions for offenses that include the elements of any offense set forth as a “serious felony” in Penal Code section 1192.7. (Pen. Code, §§ 667, subd. (d)(2); 1170.12, subd. (b)(2).) Defendant contends his second degree manslaughter conviction does not correspond to any offense set forth in Penal Code section 1192.7.
Penal Code section 1192.7, subdivision (c), provides, “[a]s used in this section, ‘serious felony’ means any of the following: [¶] (1) Murder or voluntary manslaughter . . . . (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder.”
The parties agree California has no offense for “second degree manslaughter.” They further appear to agree that the minimum elements of second degree manslaughter under New York law do not include the elements of voluntary manslaughter, which is an offense set forth in Penal Code section 1192.7, subdivision (c)(1). Voluntary manslaughter in California requires either an intent to kill or an act in conscious disregard of human life (but without malice). (Pen. Code, § 188; People v. Johnson (2002) 98 Cal.App.4th 566, 572-573.) Second degree manslaughter in New York has no such requirement; it requires only that the defendant “recklessly” caused a person’s death. (N.Y. Pen. Law § 125.15, subd. (1).)
Thus, defendant’s prior act of domestic violence is “more akin” (defendant’s term) to involuntary manslaughter under California law. Involuntary manslaughter requires the killing of another person “in the commission of a lawful act, which might produce death . . . without due caution and circumspection.” (Pen. Code § 192, subd. (b).) This mental state corresponds to the recklessness required for second degree manslaughter in New York. (See People v. Rios (2000) 23 Cal.4th 450, 458 [defining “‘without due caution and circumspection’” as “‘aggravated, reckless, and gross’ negligence constituting indifference to life”].) Involuntary manslaughter is a felony. (Pen. Code, §§ 17, subd. (a), 193, subd. (b).) But it is not a serious felony set forth in Penal Code section 1192.7.
The statute does include as a serious felony, however, “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice.” (Pen. Code, § 1192.7, subd. (c)(8).) Thus, “involuntary manslaughter may come within the purview of section 667 if the defendant ‘personally inflict[ed] great bodily injury’ in the commission of the crime.” (People v. Brown (1988) 201 Cal.App.3d 1296, 1300.) No question arises as to whether defendant’s manslaughter victim, Jenkins, suffered great bodily injury — she was shot in the head and died.
Rather, defendant contends he did not “personally inflict” the injury. “The term ‘personally,’ which modifies ‘inflicts’ in [Penal Code] section 1192.7(c)(8), does not mean exclusive here. This language refers to an act performed ‘in person,’ and involving ‘the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc).’ [Citation.] Such conduct is ‘[c]arried on or subsisting between individual persons directly.’ [Citations.] Framed this way, the requisite force must be one-to-one, but does not foreclose participation by others.” (People v. Modiri (2006) 39 Cal.4th 481, 493 (Modiri).) “[T]he Legislature intended the designation ‘personally’ to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim.” (People v. Cole (1982) 31 Cal.3d 568, 579 (Cole) [construing Pen. Code, § 12022.7’s enhancement for personal infliction of great bodily injury].)
Substantial evidence shows defendant directly performed the person-to-person act — firing the gun — that killed Jenkins. The court admitted into evidence the transcript of the hearing at which defendant pleaded guilty to second degree manslaughter for killing Jenkins. He admitted he had a loaded gun in his hand while arguing with Jenkins, the gun fired after she pushed him, and the bullet from the gun killed her. This reasonably implies the gun was still in defendant’s hand when it fired — nothing suggests defendant had dropped the gun or the victim had wrestled it away. This satisfies the personal infliction requirement. (Modiri, supra, 39 Cal.4th at p. 493 [injurious act must be “performed ‘in person’”]; Cole, supra, 31 Cal.3d at p. 579 [defendant must “directly perform” the injurious act].)
Defendant’s counterarguments fail. It is no defense to note the victim pushed the defendant before the gun fired. “[T]he requisite force must be one-to-one, but does not foreclose participation by others.” (Modiri, supra, 39 Cal.4th at p. 493.) Nor is it a defense to observe the New York court accepted defendant’s denial of any intention to hurt the victim. “[S]ubdivision (c)(8) of [Penal Code] section 1192.7 does not require a specific intent to cause injury.” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1698.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.