People v. Lee CA1/4 ( 2013 )

Filed 12/4/13 P. v. Lee CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A136103
v.
JULIUS LEE, (City & County of San Francisco
Super. Ct. No. 10024501)
Defendant and Appellant.
Defendant Julius Lee appeals a judgment entered upon a jury verdict finding him
guilty of attempted voluntary manslaughter (Pen. Code,1 §§ 192, subd. (a) & 664); two
counts of felony domestic violence (§ 273.5, subd. (a)); two counts of assault with a
deadly weapon (§ 245, subd.(a)(1)); one count of criminal threats (§ 422); one count of
aggravated attempted mayhem (§§ 205 & 664), and finding true various enhancement
allegations. Defendant was sentenced to serve eight years in prison. He contends on
appeal that there was insufficient evidence that he committed attempted aggravated
1
All undesignated statutory references are to the Penal Code.
1
mayhem and that evidence of his prior domestic violence was erroneously admitted. We
affirm.
I. FACTS
A. Background
Lou Thomas began dating defendant in 2008. Thomas was 5’6” tall and
weighed around 190 or 215 pounds. Defendant was 5’9” tall and weighed
approximately 160 pounds. Thomas was a security guard and considered herself to be
physically and emotionally strong.
Thomas and defendant dated on and off for about four years. Early in the
relationship, Thomas became pregnant by defendant, and gave birth to their daughter in
March of 2009. According to Thomas, she and defendant had constant arguments,
some of which turned physical. They broke up around the time Thomas was five
months pregnant. Thomas did not see defendant again until she was close to giving
birth.
As of July and August of 2010, Thomas and defendant were still in an “on again,
off again” relationship. They were not dating exclusively. At this time, Thomas did not
live with defendant, but she had the keys to his house, and she and their daughter had
some belongings there.
B. Charged Offenses
On August 15, 2010, Thomas and her friend Sweetie Mortensen planned to go to
Club Atmosphere in North Beach to see a rapper. Prior to going to the club, they went to
defendant’s house where Thomas and defendant argued. Defendant threw some of
Thomas’s things out of his house. In return, Thomas threw out some of defendant’s
things that had been in the trunk of her car.
Thomas and Mortensen left and picked up Brittany Hooper; they arrived at Club
Atmosphere around 11:00 p.m. Defendant worked as a bouncer at Club Atmosphere.
Defendant’s cousin, Jamone Simon, was also at the club that night.
Thomas and her friends stayed at the club until after closing time. While at the
club that night, Thomas drank “a lot” of alcohol, but she had a high tolerance for alcohol
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and she did not think she was drunk. Thomas had consumed “an entire fifth of alcohol”;
she drank cognac and “clear” alcohol, as well as additional alcoholic beverages. She told
the police she only had a few beers at the club, but at trial insisted she had told the police
about the full extent of her drinking. She also had taken some Ecstasy pills several hours
before going to the club. Thomas explained that Ecstasy “enhanced” her “ability to drink
more.” As for the alcohol, Thomas thought it affected her temper and “[p]robably”
affected her memory “a little.”
While at the club, Thomas approached defendant and tried to apologize for
throwing his things out, but he did not accept her apology. Around 2:30 in the morning,
as Thomas was preparing to leave the club, Simon asked for a ride. Defendant, Simon,
and Mortensen walked toward a bus stop to smoke, while Thomas and Hooper walked
toward Thomas’s car. Thomas then walked over to the group at the bus stop and asked
what they were doing. Defendant said that he did not want a ride, and Thomas said it did
not make sense for him to go home separately because she was driving Simon to
defendant’s house. Defendant became upset, slapped Thomas’s face with the back of his
hand, and walked away. In the course of the slap, defendant’s watch struck Thomas’s
face, cutting her eye; Thomas’s face began to swell.
Simon walked after defendant, and Thomas left with Hooper and Mortensen.
While driving, Thomas received a call from Simon who asked Thomas to come back and
pick him up. Thomas dropped off Hooper and then returned to North Beach to look for
Simon but she could not find him.
Thomas and Mortensen then drove back to defendant’s house. On the way to
defendant’s house, Thomas talked to him on the phone and told him she was coming over
to patch up her swollen face before she went home. Defendant told her he was not at
home. Thomas proceeded to call defendant numerous times, and each time he told her he
was not at home. Thomas was still talking to defendant on the phone as she arrived at his
house. She noted the porch light was on, but no lights were on in the house.
Nonetheless, Thomas believed he was home, and she started becoming “really upset.”
Defendant hung up on her several times, and she kept calling him back. Still on the
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phone with him, Thomas walked up to defendant’s front door and banged on it very
loudly. When defendant did not respond, Thomas began to kick the solid wood door.
She damaged the door, but stopped short of breaking it open because she did not want to
pay to have the door replaced.
Thomas returned to her car, sat in the driver’s seat with the windows down, and
smoked a cigarette. Mortensen was in the passenger seat. Less than five minutes later,
defendant came out of his house and Thomas saw him approach with a knife in his
hand. When Thomas first saw the knife, defendant had it in his left hand, raised and
pointed downward slightly at less than a 90 degree angle. As he walked over to the car,
he switched the knife to his right hand, and said “Bitch, I’m gonna go kill you.” He
told Mortensen to get Thomas out of there before he killed her. While Thomas was
seated in the car, defendant stabbed her twice in her left arm. Defendant said
something to Mortensen and then tried to stab Thomas again. As defendant leaned into
the car, Thomas turned away and defendant stabbed her in her right arm. Thomas then
grabbed defendant’s wrist and pulled him into the car by his hair, as she tried to pin
him against the steering wheel. When defendant tried to cut Thomas’s face, she
released his hair and tried to grab the knife. The two continued to struggle and Thomas
held his wrist as defendant held the knife towards her face. Defendant managed to cut
Thomas on her nose and cheek. Mortensen in the meantime had called the police.
Thomas had defendant against the steering wheel when she saw the police drive past;
she began blowing the horn by pressing defendant against it while Mortensen
screamed. The police returned and defendant ran back to his house.
Thomas testified she was not sure if defendant was trying to kill her when he first
stabbed her; she said, “I knew he meant to hurt me.” Had Thomas not moved when
defendant stabbed her arm the first two times, the knife would have cut her face and neck.
Thomas believed that if she had not fought back when defendant pointed the knife at her
face defendant probably would have cut her throat and face.
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C. Police and Paramedics Respond
1. Police Investigation
San Francisco Police Officer Kneuker responded to a dispatch call to defendant’s
residence; Officer Kneuker and his field training officer happened to be patrolling about a
block away. When the officers arrived, Thomas and Mortensen ran up towards them
screaming and yelling hysterically; they seemed to be in a state of shock. The two
officers approached the house with firearms drawn and as they drew near, defendant
opened the door. After some initial hesitation, he complied with their orders to leave the
house and was arrested. Defendant did not have any visible injuries. Officer Kneuker
did not smell any alcohol on defendant’s breath.
An eight-inch knife was recovered from underneath Thomas’s car. Thomas
identified the knife as the one defendant had used to stab her.
Officer Kneuker found Thomas difficult to speak with, as she was crying,
hysterical, and appeared to be “trying to rethink what just happened.” She seemed to
be in shock, and was having trouble recalling things that had occurred minutes
before. Officer Kneuker smelled alcohol on Thomas’s breath, but noted that she was
coherent. By the end of the interview, Thomas was able to give a detailed narrative
of the events.
Officer Kneuker testified that Mortensen was agitated, scared, and jumpy
when he arrived at the scene. Mortensen said that she and Thomas had been at a
club with defendant earlier that night. Defendant and Thomas got into a verbal
argument; defendant punched Thomas in the face and left. Thomas and Mortensen
drove to defendant’s house, where he came out with a knife and started stabbing
Thomas. He also grabbed Thomas’s neck and told her, “I’m about to kill you.”
Mortensen called 911.
In a recorded interview, Mortensen spoke to Officer Martinez about the
incident. In the interview, which was played for the jury, Mortensen relayed that the
verbal argument concerned Thomas wanting defendant to ride in the car with her
and defendant refusing to do so. Thomas swore at defendant and then he hit her
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with his fist. On the drive to defendant’s house, Thomas spoke with him by
telephone several times, frequently yelling.
Mortensen said that when defendant came out of his house, he had a knife in
his hand and he told Thomas to leave, but she refused to do so. Defendant grabbed
Thomas’s neck, choking her, and said, “bitch, I’m gonna kill you.” Defendant
stabbed Thomas in the neck. Mortensen tried to pull defendant off Thomas.
Mortensen had been drinking a lot.
2. Thomas’s Injuries
Paramedics arrived and treated Thomas’s injuries. Thomas was loud,
agitated, and yelling; she seemed unconcerned about her injuries but very upset
about the incident. Her vital signs were stable, and the paramedic did not feel she
was seriously injured or that she required immediate medical attention beyond
cleaning the wounds. The treatment consisted of cleaning the wounds, disinfecting
them, and applying bandages. Thomas did not follow up with any medical care; she
treated her wounds at home using Neosporin. It took about three weeks for the
wounds to completely heal and the scabs to come off, but Thomas experienced pain
in her arm for two to three months afterwards.
The three cuts on her face were superficial. One was in the corner of her left
eye, along the side of her face near the temple. The second one was in the crease
between her lips and cheek. The third cut was in the crease of her nose. None of the
cuts left any kind of permanent scars. She had two lacerations on her left hand, two
puncture wounds on her left arm, and a laceration and abrasion on her right arm.
The puncture wounds were not actively bleeding, and the paramedic estimated they
were between a quarter to a half inch in length. The punctures did not appear to be
very deep, but the paramedics recommended Thomas go to the hospital to determine
if stitches were required.
D. Mortensen’s Trial Testimony
Mortensen testified that at the time of the incident she and Thomas were very
close, but they were no longer friends. On the night of the incident Mortensen drank “a
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lot,” and was intoxicated. She denied taking any drugs. Mortensen’s memory of the
events of that night and early morning was quite poor. She did not recall the fight
between defendant and Thomas at the bus stop, but she did recall Thomas’s face being
swollen. She also recalled Thomas wanted to go to defendant’s house and refused to go
to Mortensen’s house. She recalled giving Hooper a ride, trying to find Simon back in
North Beach, and ultimately driving to defendant’s house.
Although she did not specifically remember the incident, she acknowledged
signing a statement in which she stated defendant hit Thomas outside the club. She also
acknowledged signing a statement in which she wrote that defendant tried to stab Thomas
with a knife.
E. Prior Acts of Domestic Violence
The prosecution introduced testimony of Anna Novikov, defendant’s former
girlfriend, detailing various prior incidents of domestic violence, one of which led to a
felony conviction. Thomas also testified as to numerous prior incidents.
1. Prior Incidents with Anna Novikov
Anna Novikov had previously been in a romantic relationship with defendant for
about two years. The relationship ended in 2007. Novikov stated the relationship “was
good for the most part . . . but . . . then he became violent.” Sometime in 2007, Novikov
and defendant had an argument in his apartment in San Francisco. They left the
apartment and continued to argue as they walked down Market Street. Defendant then
turned around and choked her, using two hands, for about ten seconds, and then he let
go. Novikov told him he was crazy and walked off. Defendant followed her and caught
up with her about two blocks later. He began apologizing and they started talking.
Then, as they were talking, Novikov saw a blur from the corner of her eye, and
defendant hit her right ear.
The force of the blow ruptured her ear drum and she heard an intense ringing in
her ear. She stumbled back and defendant grabbed her and pushed her against a
building. Defendant grabbed her face and was telling her it was her fault, and that he
could not believe she had made him do this. Defendant took Novikov by the arm and
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they began walking. She told him to let her go and leave her alone. Defendant looked
at her and said “do you want me to kill you right now?” Defendant walked her home
and Novikov told him she was done with the relationship.
She did not report the incident to the police, but she did seek medical attention,
and had to have surgery to repair her ear drum. The skin from the back of her ear was
removed and grafted over her the ruptured drum. She suffered permanent loss of
33 percent of her hearing in that ear. After the incident, Novikov stopped answering
defendant’s calls.
However, defendant called frequently, and eventually Novikov started answering
his calls because she was afraid he would just show up at her house or work. Novikov
struggled as her feelings for defendant came back at the same time she was frightened
and upset by his previous behavior. When they did talk, defendant asked to get back
together with her.
On June 12, 2007, after some period of time during which Novikov and defendant
had not spoken, she received a call from him. Defendant told her he was downstairs
outside her house, and asked her to come down as he had a gift for her. At first Novikov
refused, but eventually she came downstairs and defendant was outside her gate with
pictures and glass swan with a flower in it. Novikov stepped outside, took the gifts,
thanked him and started walking away. Defendant grabbed her arms, preventing her
from walking away. Novikov asked him what he was doing and why he was there; “he
got mad and it was, like, a switch and his eyes, just like he flipped a switch and it just
flipped.”
Defendant pushed her against her garage door and then threw her hard on the
ground and pushed her face into the pavement. Novikov saw defendant raise his fist, and
she figured he would break her jaw with the punch; eventually she started thinking he
would kill her. She was screaming, and before defendant could deliver the blow, her
seventy-five year old grandfather pushed defendant off her. At that point, she ran inside
and called the police. She also reported the previous incident with her eardrum to the
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police. Prior to the incident outside her house, she had not disclosed defendant’s
behavior to anyone but some friends, nor had she made any reports.
On cross-examination, Novikov revealed there had been another choking incident
in Marin County during a time when she and defendant been broken up. Defendant
found out that she had met someone else and got very upset and choked her. She did not
go to the police, nor did she tell her parents or see a doctor.
2. Prior Incidents with Thomas
a. 2008 Incident
Sometime in 2008 Thomas and defendant were at his apartment and they began
arguing “about something stupid” and defendant began throwing out Thomas’s
possessions. Although she was four months’ pregnant at the time, Thomas had not
disclosed the pregnancy to defendant. She grabbed defendant, and tried to prevent him
from throwing out her belongings. Defendant dragged Thomas out of the house by her
hair. He also slapped her “a couple times.” Defendant locked her out of his house, threw
her possessions outside the house, and then left. Thomas did not seek medical treatment,
nor did she report the incident to the police.
b. 2009 Choking Incident
Four or five months later, in early 2009, when Thomas was eight or nine
months pregnant, she and defendant argued again. Thomas had loaned defendant
some money and, upon learning he was able to pay her back, she and a friend went to
his house to pick up the repayment. Defendant was not there when Thomas arrived,
so she and her friend waited for about a half hour. When he showed up, “he acted
like he didn’t want to give [Thomas her] money,” so they began arguing and
defendant began choking her. During the choking, Thomas’s face turned purple; she
sustained two black eyes afterwards. It took her “about 20 minutes” to get her
“breathing back to normal.” Thomas was on the floor and defendant then ran toward
her and tried to kick her in the stomach, but Thomas’s friend intervened before he
could strike her.
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Thomas did not immediately seek medical attention, but did later go to Planned
Parenthood, where she was receiving pre-natal care, because her lip remained purple
for a while after the incident.
c. 2009 Incident in New Orleans
Approximately a month after their daughter was born, Thomas and defendant
resumed their relationship. In July of 2009, Thomas, defendant, and their daughter were
in New Orleans visiting defendant’s family. While there, the two argued about
defendant’s level of participation in caring for their daughter during the trip. While
Thomas was holding their daughter, defendant slapped her several times hard enough to
give her a black eye. In the course of striking Thomas, defendant ended up hitting their
daughter, as well. She cried and suffered some welts on her face. Thomas did not report
the incident to the police, nor did she seek medical attention.
d. Mother’s Day 2010 Incident
On Mother’s Day 2010, Thomas, defendant, and their daughter were at his house
in San Francisco. Thomas and defendant were arguing; Thomas was upset that defendant
had called the mother of his other child using Thomas’s phone without telling her.
Thomas was sitting, holding their daughter. The argument escalated, and defendant stood
up and slapped Thomas in the face “five times.” Thomas did nothing in response, and
nothing further occurred, except that their daughter cried. Thomas’s face was a little
puffy and red from the incident, but she suffered no injuries. She neither reported the
incident to the police nor sought medical attention.
F. Defense Case
The defense called three witnesses, primarily to testify as to defendant’s
character for peacefulness.
Jamone Simon, defendant’s cousin, was at the club on the night in question.
Simon said he, Thomas, and Mortensen all took Ecstasy at the club, not hours before as
Thomas had claimed. Simon thought that both the women were very intoxicated, much
more so than he was. Simon, however, did not see the charged incidents.
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Both Simon and defendant had moved to San Francisco from New Orleans
after surviving Hurricane Katrina. He testified that defendant has a reputation for
being peaceful, a “very laid-back person.”
Defendant’s childhood friend, Ronald Billy, had moved to San Francisco and
invited defendant to live with him there. Billy testified as to defendant’s character
for peacefulness. He had not seen defendant act violently. He was aware that
defendant had been accused of being violent against others, including Novikov,
which led to a conviction, but it did not change his opinion of him. When asked
whether his opinion of defendant would be different if he knew that defendant
ruptured Novikov’s eardrum and assaulted Thomas when she was eight months
pregnant, Billy admitted such things could change his opinion “a little.”
Shentell Guillot dated defendant for five years and had a child with him. She
said Thomas would often call her, “like I was her sister or something.” On the night
of the incident, Thomas called Guillot and told her, “I’m gonna fuck the nigga Julius
[defendant] up. I’m on ten [E]cstasy pills right now.” Guillot offered her opinion of
defendant’s good character and peacefulness. She noted that there was never any
violence on his part during her relationship with him. However, Guillot would be
rough with defendant and she sometimes hit him. Defendant never retaliated against
her. On cross-examination she acknowledged that hearing about defendant’s
conviction for the incident involving Novikov and his attacking Thomas when she
was eight months pregnant probably would make a difference in her opinion.
II. DISCUSSION
A. Substantial Evidence Supports the Attempted Aggravated Mayhem Conviction
Defendant contends his convictions for attempted aggravated mayhem must be
reversed because there was insufficient evidence to prove he acted with the requisite
specific intent to maim Thomas. This claim is meritless.
1. Standard of Review and Applicable Law
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
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it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid
value-such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, 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.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
“ ‘An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the
trial court can be set aside for the insufficiency of the evidence, it must clearly appear
that on no hypothesis whatever is there sufficient substantial evidence to support the
verdict of the [finder of fact].’ [Citation .]” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573.) “Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his
conviction was based on insufficient evidence of one or more of the elements of the
crime of which he was convicted, we must begin with the presumption that the evidence
of those elements was sufficient, and the defendant bears the burden of convincing us
otherwise. To meet that burden, it is not enough for the defendant to simply contend,
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‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to
support the judgment[ ] of conviction.’ [Citation.] Rather, he must affirmatively
demonstrate that the evidence is insufficient.” (Ibid.) With this standard in mind, we
review whether there was sufficient evidence to support defendant’s conviction for
attempted aggravated mayhem.
Simple mayhem is defined by section 203, which provides: “Every person who
unlawfully and maliciously deprives a human being of a member of his body, or disables,
disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits
the nose, ear, or lip, is guilty of mayhem.”
Aggravated mayhem is defined by section 205, which provides: “A person is
guilty of aggravated mayhem when he or she unlawfully, under circumstances
manifesting extreme indifference to the physical or psychological well-being of another
person, intentionally causes permanent disability or disfigurement of another human
being or deprives a human being of a limb, organ, or member of his or her body. For
purposes of this section, it is not necessary to prove an intent to kill. Aggravated
mayhem is a felony punishable by imprisonment in the state prison for life with the
possibility of parole.” Unlike simple mayhem, aggravated mayhem is a specific intent
crime. (People v. Park (2003) 112 Cal.App.4th 61, 64 (Park) [aggravated mayhem
“requires the specific intent to cause the maiming injury”]; People v. Ferrell (1990) 218
Cal.App.3d 828, 832-833 (Ferrell) [unlike § 203, § 205 includes an intent requirement].)
The specific intent to cause the maiming injury is an element of the crime. (People v. Lee
(1990) 220 Cal.App.3d 320, 324-325.) Because the evidence of a defendant’s state of
mind is almost inevitably circumstantial, a jury “may infer a defendant’s specific intent
from the circumstances attending the act, the manner in which it is done, and the means
used, among other factors. [Citation.]” (Ferrell, supra, 218 Cal.App.3d at p. 834.) The
requisite intent may not be inferred simply from the fact that the injury inflicted
constitutes mayhem; there must be other facts and circumstances supporting an inference
of intent to maim. (Park, supra, 112 Cal.App.4th at p. 64; Ferrell, supra, 218
Cal.App.3d at p. 835.) Evidence that shows no more than an “ ‘ “indiscriminate
13
attack” ’ ” is insufficient to prove the specific intent necessary to support a conviction for
aggravated mayhem. (Lee, supra, 220 Cal.App.4th at p. 325.) However, “ ‘[e]vidence of
a “controlled and directed” attack or an attack of “focused or limited scope” may provide
substantial evidence of’ a specific intent to maim.” (People v. Szadziewicz (2008) 161
Cal.App.4th 823, 831.)
2. Sufficient Evidence of Specific Intent
Defendant contends the evidence shows only that he committed an indiscriminate
attack in the heat of passion, not that he acted with the specific intent to maim Thomas.
We disagree. The jury could reasonably infer from the circumstances and nature of the
attack that defendant’s actions reflected not merely indiscriminate violence, but an intent
to maim. Defendant approached Thomas with a knife that had an 8-inch blade. After
stabbing Thomas twice in her left arm, Thomas pulled him into the car and tried to pin
him against the steering wheel while holding his wrist. Defendant still had the knife in
his hand as Thomas held his wrist. As they struggled, defendant pointed the knife to
Thomas’s face. Although Thomas was strong enough to fight back, defendant managed
to nick her a couple of times with the knife on her nose and cheek. Additionally, Thomas
sustained a cut by her left eye. These circumstances could lead the jury to conclude that
defendant intended to maim Thomas.
Defendant points to cases in which the courts concluded that the focused nature of
an attack was sufficient to support a finding of specific intent, and argues that the facts
here show instead a “spontaneous and wild attack” that does not support such a finding.
For instance, in Ferrell, supra, 218 Cal.App.3d at pages 835-836, the court noted that a
single shot to the neck was a directed and controlled attack which, if not fatal, was likely
to disable the victim permanently, and concluded the jury could properly infer that the
defendant intended to kill the victim, or, if unsuccessful, to disable her permanently. In
Park, supra, 112 Cal.App.4th at pages 69-70, the court concluded that evidence that the
defendant threatened the victim, retrieved a knife sharpener, and confronted him outside a
restaurant and asked hostile questions before attacking him with the knife sharpener
indicated that the attack was “the product of deliberation and planning, not an explosion
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of indiscriminate violence,” suggesting that the defendant intended to maim.
Furthermore, the defendant directed his attack at the victim’s head, bringing the weapon
down from behind his head, thereby giving his blows more force, and stopped once he
had maimed the victim’s face. Similarly, in People v. Quintero (2006) 135 Cal.App.4th
1152, 1163, the defendant initially attacked the victim’s head, using deliberate uppercut
motions to slash his face and holding him by the hair, and stopped his attack once he had
severely maimed the victim’s face. The injuries to the victim’s arms and hands occurred
as the victim tried to protect his face. (Ibid.) The court concluded that from these facts,
the jury could conclude that the attack was guided by the specific intent of inflicting
serious injury on the victim’s face and head. (Ibid.) In People v. Szadziewicz, supra, 161
Cal.App.4th at page 829, the defendant focused the attack on the victim’s face, slicing it
from his temple toward the nose, then back toward the ear. The defendant then sliced
above the victim’s eyebrow down through his nostril, splitting his nose wide open.
(Ibid.)
Defendant argues that evidence showing “a directed, focused attack” on Thomas’s
face is “sorely missing” in the instant case. We disagree. In attacking Thomas, not only
did defendant cut Thomas on her nose and cheek, but he also cut her near her left eye.
Such injuries suggest not an indiscriminate attack, but a focused one, and that defendant
intended to disfigure Thomas. Nevertheless, we recognize that defendant also attacked
Thomas’s arms and threatened to kill her. However, a broader attack need not negate an
inference that the defendant acted with the intent to disfigure the victim. (See People v.
Szadziewicz, supra, 161 Cal.App.4th at p. 832.) Here, although Thomas’s face may not
have been the sole focus of defendant’s violence, the jury could reasonably conclude that
his actions, in conjunction with the surrounding circumstances, showed that he acted with
the intent to maim or disfigure Thomas.
B. Prior Acts of Domestic Violence Properly Admitted
Defendant contends that the trial court erred in admitting evidence of his prior
domestic violence incidents under Evidence Code section 1109 because the evidence
15
lacked probative value, was highly prejudicial and cumulative, and violated his rights to a
fair trial.
1. Background
The prosecution sought to admit numerous alleged prior acts of domestic violence,
pursuant to Evidence Code section 1109. Over defense objection, the court admitted the
requested evidence. Specifically, the court admitted the following incidents: 1) the 2006
incident where defendant strangled Novikov at a bus stop in Marin County; 2 2) the 2007
incident where defendant strangled Novikov in Downtown San Francisco and then struck
her on the side of her head and ruptured her ear drum; 3) the June 2007 incident where
defendant assaulted Novikov in front of her home in San Francisco by pushing her
against the garage door and throwing her to the pavement, at which point her grandfather
intervened; 4) the 2008 incident where defendant assaulted Thomas, who was four
months pregnant, by pulling her out of his house by her hair; 5) the February 2009
incident where defendant strangled Thomas while she was 8 months pregnant and
attempted to kick her in the stomach; 6) the July 2009 New Orleans incident where
defendant slapped Thomas several times, while their 4-month old daughter was on her
lap; and 7) the May 2010 incident occurring on Mother’s Day, where defendant slapped
Thomas on the face multiple times, while their daughter was on her lap.
In making its ruling, the court explained that the 2007 (Novikov) incidents were
“not remote in time, [and] the amount of time involved in introducing and refuting the
evidence will be de minimis.” “In addition, while the conduct is inflammatory, it is no
more inflammatory [than the charged acts.] There was no weapon used in either of these
incidents except for [defendant’s] bare hands, and again, these incidents followed
arguments between Ms. Novikov and [defendant].” Finally, as to all the incidents, the
court also conducted an Evidence Code section 352 analysis, making the “specific
2
The court excluded the 2006 choking incident with Novikov due to late
discovery. However, trial counsel inquired about it on cross-examination, and thus
the matter was revealed to the jury. Defendant does not challenge the admission of
the 2006 choking incident into evidence.
16
finding” that even “including the pregnancy . . . the probative value of the evidence is not
substantially outweighed by the possibility that the admission of any of this evidence will
either necessitate any undue consumption of time or create a substantial danger of undue
prejudice, confusion of issues, or mislead the jury . . .”
2. Standard of Review and Applicable Law
“A trial court’s ruling admitting evidence of other crimes is reviewable for abuse
of discretion.” (People v. Hayes (1990) 52 Cal.3d 577, 617; People v. Gray (2005) 37
Ca1.4th 168, 202-203; People v. Carter (2005) 36 Ca1.4th 1114, 1147-1148.) “Under
Evidence Code section 1109, evidence of a prior act of domestic violence is admissible to
prove the defendant had a propensity to commit domestic violence when the defendant is
charged with an offense involving domestic violence. The trial court has discretion to
exclude the evidence if its probative value is outweighed by a danger of undue prejudice
or confusing the jury, or would result in an undue consumption of time. (Evid. Code,
§§ 1109, subd. (a)(1), 352.)” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.)
“ ‘Domestic violence,’ ” under Evidence Code section 1109, “is broadly defined 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.’ ( . . . § 13700, subd. (b); Evid. Code, § 1109,
subd. (d).) ‘Abuse’ is defined 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.’ (. . . § 13700, subd. (a); see Evid.
Code, § 1109, subd. (d).)” (People v. Rucker, supra, 126 Cal.App.4th at pp. 1114.)
In exercising its discretion to admit or exclude evidence of prior domestic violence
acts under Evidence Code section 352, the court must balance the probative value of the
evidence “against four 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. Branch (2001) 91 Cal.App.4th 274, 282; see also People
v. Harris (1998) 60 Cal.App.4th 727, 737-740.) “ ‘ “The ‘prejudice’ referred to in
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Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against defendant as an individual and which has very little effect on the
issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ”
(Rucker, supra, 126 Cal.App.4th at p. 1119.) We will not disturb a trial court’s exercise
of discretion under Evidence Code section 352 “ ‘ “except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” [Citations.]’ [Citation.]” (People v. Brown (2000)
77 Cal.App.4th 1324, 1337.)
3. No Abuse of Discretion in Admitting Prior Acts of Domestic Violence
Defendant does not dispute that evidence of a person’s prior domestic violence is
admissible in criminal actions involving domestic violence. However, he argues that the
trial court erred in the instant case because “the propensity evidence was not sufficiently
probative to be admissible.” According to defendant, his “defenses went only to the
degrees of the crimes, not to his general culpability.” Thus, defendant asserts that “[h]ad
this been a case with a recanting or missing victim, or had [he] testified and denied the
events occurred, some of the propensity evidence would likely have been admissible
. . . .” (Italics omitted.) However, defendant insists that the propensity evidence “simply
served to agitate and inflame the jury,” the cumulative effect of which was to portray him
as a “violent madman.” (Original capitalization omitted.)
Contrary to defendant’s contention, the probative value of the prior uncharged
conduct was great. In each of the previous incidents, defendant resorted to violence when
he got into an argument with his girlfriend. This evidence was particularly relevant in the
instant case. (See People v. Johnson (2010) 185 Cal.App.4th 520, 532, fn. 8 [battering
episode likely part of larger scheme that escalates in frequency and severity].)
Specifically, the incidents involving Novikov demonstrated an escalating pattern
of violence that was similar to the pattern of violence defendant committed against
Thomas. (See People v. Johnson, supra, 185 Cal.App.4th at p. 533 [common factors in
all three crimes suggested defendant had anger management problem regarding female
intimate partners].) Moreover, the prior incidents with Novikov were not remote in time
18
and they were no more inflammatory than the charged offenses. Also, there was no
potential for jury confusion and Novikov’s testimony did not consume an undue amount
of time.
Regarding the incidents involving Thomas, these prior acts of domestic violence
were highly relevant to the charged offenses. On four different occasions, when
defendant got into an argument with Thomas, defendant physically attacked Thomas,
each time targeting her head, neck, or face. The offenses were recent and were no more
inflammatory than the charged offenses, in which defendant wielded an 8-inch knife.
Additionally, there was no potential for juror confusion. Thomas’s testimony regarding
the prior incidents represented only a minor portion of her trial testimony.
Even though the evidence of defendant’s prior acts of domestic violence
undoubtedly was damaging to the defense, its detrimental effect did not substantially
outweigh the probative value of the evidence. “ ‘ “The prejudice that section 352 ‘ “is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.” ’ [Citations.]” ’ ” (People v. Scott (2011) 52
Cal.4th 452, 491.) “ ‘ “Evidence is not prejudicial, as that term is used in a section 352
context, merely because it undermines the opponent’s position or shores up that of the
proponent. The ability to do so is what makes evidence relevant.” ’ ” (People v. Scott,
supra, 52 Cal.4th at p. 490.) Here, the trial court did not abuse its discretion in allowing
evidence of defendant’s prior acts of domestic violence.
C. Assistance of Counsel
Defendant argues that he was denied effective assistance of counsel to the extent
his trial counsel failed to adequately preserve for appellate review his challenge to the
admission of his prior acts of domestic violence under Evidence Code section 1109.
Inasmuch as we have addressed this claim and concluded that it fails on the merits, we
need not address defendant’s claim of ineffective assistance of counsel based on trial
counsel’s alleged failure to specifically object to each challenged incident.
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III. DISPOSITION
The judgment is affirmed.
_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
HUMES, J.
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