People v. Haff CA3 ( 2016 )

Filed 2/29/16 P. v. Haff CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C076319
Plaintiff and Respondent, (Super. Ct. No. 13F5044)
v.
DERRICK MATTHEW HAFF,
Defendant and Appellant.
As argued by the prosecution, and supported by the evidence, the brutal beating in
this case began a cycle of violence and forgiveness often encountered in domestic
violence cases, including a victim who recants, reunites with her abuser, and refuses to
cooperate with the prosecution. Despite the victim’s minimization at trial of the damage
to her jaw, head, teeth, tongue, and upper torso, a jury convicted defendant of corporal
injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and mayhem (Pen. Code, § 203) and
found he personally inflicted great bodily injury within the meaning of Penal Code
section 12022.7, subdivision (e). On appeal, defendant Derrick Matthew Haff urges us to
reverse the jury verdict for insufficiency of the evidence, instructional and evidentiary
error, and ineffective assistance of counsel. We conclude his arguments are without
merit and affirm the judgment.
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FACTS
Because the victim felt abused by the system but loved her abuser and openly
admitted her desire to help him, the prosecution relied foremost on the testimony of those
who saw and heard her in the aftermath of the beating she sustained on March 15, 2013.
Her neighbor first observed her stumbling toward her with a rag on her head. She
testified she had never seen anyone beaten that badly in her lifetime: the victim’s eye
was bulging out, she was covered in blood, she could not speak, her teeth were all
“screwed up,” and it looked like her jaw was broken. The victim told her, “[H]e beat me
up,” which the neighbor understood to be a reference to the victim’s boyfriend,
defendant. The prosecution played a recording of the 911 call the neighbor made
wherein she explained that the victim’s boyfriend beat up the victim, they had to get him
arrested, and the victim’s mouth was too swollen to talk. The neighbor did not mention
an injury to the victim’s tongue.
When the victim’s mother arrived within a few minutes, she saw her daughter
“[b]ruised, bloody. She was a mess. Totally -- totally beat up.” Her face was swollen
and she had bruises on her arms and legs. The victim told her mother that defendant had
beaten her up, kicked her, and kicked her in the head. The mother also explained that her
daughter suffers from a seizure disorder. She drove her daughter to the hospital.
A deputy sheriff contacted the victim in the emergency room. He observed a lot
of swelling on the left side of her face, bruising all over her face, and bruises on her arms.
The victim told him she had pain in her legs and ribs. He did not notice any injuries to
her tongue, and he could understand what she was saying. He did not inspect the victim’s
house because she told him “she cleaned up the scene prior to going to the neighbor’s
house.” About two weeks later, he showed the victim a picture of defendant and she
confirmed that he had assaulted her. Defendant was arrested on May 30, 2013.
A victim advocate from a program that serves victims of domestic violence
testified the victim had been referred to her program on March 20, 2013. She placed the
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victim in a motel and provided support services to her. During her initial meeting, she
noticed red bruising on the right side of the victim’s face and around her neck. The
following day, the victim had “raccoon eyes” that were black and blue under her eyes
with more visible bruising on the right side of her face. She slurred her words and did
not directly answer questions. By the 22d, her facial bruising was more black and blue,
she had redness on her neck, the back of her neck and behind her ear was black and blue,
she had trouble focusing, she had redness in the whites of her eyes, and she complained
of pain in her jaw and the back of her neck. She had additional bruising on her upper left
shoulder, the back of her left arm and around the whole arm, and she had a bad tooth.
Eventually the victim advocate took the victim to the emergency room again.
The victim did not appear to testify as ordered. She was arrested and had spent the
night in jail before she ultimately testified. She was angry with the district attorney and
abrasive throughout her testimony. She told the trial judge, “I don’t have any answers.
They really want to talk. So, I might not answer.” Shortly after she began to testify, she
announced, “I’m done with this. I just want to go home, you guys.” She admonished the
prosecutor to “[g]et to the point.” On many occasions she refused to answer the question,
but she insisted, “I’m an honest fricking person for the most part unless I’m being a
dick.” She purportedly remembered little of what had happened on March 15, 2013.
When asked to read her prior statement to refresh her recollection, she claimed she was
dyslexic. The court concluded, “[S]he was intentionally evading the Prosecutor’s
questions on direct and feigning lack of knowledge.”
Despite her obstreperous demeanor, the victim did admit to certain salient facts.
She admitted that she and defendant had broken up on March 15, 2013, she went to the
hospital that same day, and she had bruises on her body from the assault on that day. She
admitted she told an investigator that she had blood in her eyes, her tongue looked
different because she had ‘bit a chunk off of it during the assault,” her mouth had been
bleeding a lot, and there was a puddle of blood because she was unconscious for a few
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hours. She told the investigator her forearms were black from bruising as a result of
trying to deflect kicks to her face with her forearms. She admitted she was in love with
defendant and she did not want him to get in trouble.
During cross-examination, the victim described her seizure condition. When she
convulses she shakes, loses consciousness, and falls. She often awakes violently and
does not remember the convulsion. She insists she has memory loss associated with her
condition. She testified she had “no real recollection” about the assault and she relies “on
what other people had told me had happened.” Nevertheless, she testified she remembers
biting her tongue during her convulsions and needing stitches on one occasion. She
testified she has scars from injuries caused by falling. She reported that during one
convulsion sometime before February 2013 she fell on her face and broke a tooth.
The prosecution offered the testimony of an expert on behavior typical of victims
of domestic violence. Often they recant or minimize their original accusations or refuse
to testify due to fear of reprisal, to preserve a family relationship, for economic stability,
or to preserve a relationship with an abuser they still love. This same expert met with the
victim five months after the beating. The interview was recorded and excerpts played for
the jury. Because the victim told him she had injured her tongue and the disfigurement
was still visible, he went to her home to take a photograph. The victim also said she had
broken a tooth and she thought the broken tooth had severed her tongue from her body.
In explaining one of the photographs to the jury, the expert stated, “And the purpose of
taking this photograph was she had pointed to the left side of her tongue as being where
that portion had come off of, had been bitten off of. And that it was noticeably different
from the more severed front section on the right where you can see it’s more straight and
somewhat of an indentation there on the left.”
A prior victim of defendant’s cruelty testified for the prosecution pursuant to
section 1109 of the Evidence Code. She had lived with him for eight or nine years,
during which time there were many incidents of reported and unreported abuse. She
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testified she never reported the following injuries: a broken jaw, fractured ribs, a
collapsed lung, broken tailbone, broken fingers, and a miscarriage. She described
specific incidents of abuse that occurred on September 30, 2001, December 21, 2001, and
January 20, 2005. In at least two of the incidents, defendant hit her in the face and chest
area. The parties stipulated that defendant was convicted of corporal injury on a
cohabitant for the December 21, 2001, incident.
Defendant appeals.
DISCUSSION
I. Sufficiency of the Evidence
Defendant challenges his conviction for simple mayhem. Penal Code section 203
defines simple mayhem as follows: “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.”
While defendant conceded during closing argument he had inflicted corporal
punishment on the victim, he insisted throughout the trial, and reiterates on appeal, that
there is no substantial evidence he cut or disabled the victim’s tongue. There is no doubt
the evidence of mayhem is weak. As defendant aptly points out, none of the witnesses
who saw her immediately after the beating testified she complained about her tongue.
There are no medical records her tongue was cut or disabled. Indeed, the first mention of
the injury to her tongue was not until five months after the beating. During a telephone
interview with an investigator from the district attorney’s office, the victim stated that at
some point during the assault she “had bit a chunk outta [sic] my tongue,” and after the
assault “[t]here was a chunk of my tongue on the floor.” As a result, she told the
investigator, “[M]y tongue looks kinda [sic] weird.” He drove to her apartment to take
photographs of her tongue, and those photographs were shown to the jury.
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Defendant reminds us of the routine principles guiding appellate review of the
sufficiency of the evidence. We are not to look at snippets of the record but must review
the evidence of mayhem in light of the entire record. (People v. Johnson (1980)
26 Cal. 3d 557, 577.) Some evidence is not enough to sustain a judgment. (Ibid.) Rather,
we must be able to point to evidence of solid value; that is, credible evidence that
reasonably inspires confidence. (People v. Rountree (2013) 56 Cal. 4th 823, 852-853.) In
defendant’s view, the victim’s isolated and uncorroborated comment to an investigator
five months after the beating does not constitute substantial evidence, particularly when
the victim admitted lying to the investigator and no witness actually saw an injury to her
tongue at the time of the beating. Moreover, at trial the victim testified that the assault
did not cause her to bite off her tongue. In essence, defendant recycles on appeal the
same argument the jury rejected at trial.
We have carefully reviewed the evidence of mayhem in the context of the entire
record to determine whether it is sufficient to support the jury’s determination. The
question, of course, is not whether we would have reached a different assessment, but
whether the evidence is sufficiently credible, reasonable, and of solid value to satisfy the
substantial evidence test. Defendant did an excellent job at trial exposing the weaknesses
in the victim’s account to the investigator, including her motives for lying to him, her
ongoing seizure condition, and the lack of permanent disfigurement. But on appeal he
minimizes the evidence that supports the jury verdict and meets the threshold for
affirming the judgment.
As mentioned, the victim told the investigator that during the assault she bit a
portion of her tongue off and she saw a chunk of it on the floor. A single witness’s
testimony alone constitutes substantial evidence. (People v. Young (2005) 34 Cal. 4th
1149, 1181.) In addition, the investigator followed up by taking a photograph of the
victim’s tongue, which apparently revealed an ongoing disfigurement. Even defendant’s
lawyer counseled the jury that not all tongues are symmetrical. It was the jury’s
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prerogative, not ours, to evaluate the victim’s credibility and to determine if the
photograph supported her description of the abnormality still present on her tongue.
Defendant ignores how closely the victim fits the profile of a repeat victim of
domestic violence. In the context of the whole record, the jury could consider the
expert’s explanation that victims often recant, minimize the violence they previously
reported, and seek to protect their perpetrators. It is true, as defendant argued to the jury,
that the victim suffered from a seizure condition and she may have bitten her tongue
during one of those episodes. But the jury was free to reject that inference and believe, as
the prosecutor contended, that as a classic victim of abuse she was feigning forgetfulness
or boldly lying. In short, the jury may have found that her description of biting off a
chunk of her tongue during the assault was more credible than her later testimony
denying that it happened. The jurors were well informed about the dearth of
corroborating evidence to support the belated report of the damage to her tongue, and yet
they found beyond a reasonable doubt that defendant had cut or disfigured her tongue.
We reject his argument that there was no substantial evidence to support it.
We also reject defendant’s contention that although he may have been punching
and kicking her in the head, he is not guilty of mayhem if the victim bit off a piece of her
own tongue. As support, he cites to a case in which the defendant personally bit the lip of
his victim. (People v. Caldwell (1984) 153 Cal. App. 3d 947, 950.) Because the facts in
one mayhem case involve the direct maiming of the victim does not mean that causing a
victim to maim herself by the direct use of force against her does not constitute mayhem.
Indeed, as stated in People v. Nunes (1920) 47 Cal. App. 346, “If a person unlawfully
strikes another, not with the specific intent to commit the crime of mayhem, and the blow
so delivered results in the loss or disfigurement of a member of the body of the assaulted
party or in putting out his eye, the crime is nevertheless mayhem.” (Id. at p. 349.) Thus,
defendant’s assault on the victim, which resulted in the cutting or disfigurement of her
tongue, can constitute mayhem. There is ample evidence defendant assaulted the victim,
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and therefore there is substantial evidence that the assault caused her to bite off a chunk
of her tongue. He was properly convicted of the crime of simple mayhem.
II. Instructional Error
A. Great Bodily Injury
Given its historical underpinnings in the 19th century, the law on mayhem is
somewhat anachronistic and no longer exists as a crime in many of our sister states.
(People v. Santana (2013) 56 Cal. 4th 999, 1003-1004 (Santana).) Nevertheless,
California retains its mayhem statutes, including Penal Code section 203 as quoted above.
Despite the absence of “great bodily injury” within the text of the simple mayhem statute,
defendant contends the trial court committed reversible error by failing to instruct sua
sponte that great bodily injury is an element of mayhem. The evolution of the crime may
suggest ambiguity, but defendant cites no case that requires a court to instruct on great
bodily injury. To the contrary, the language of the statute and recent cases suggest just
the opposite.
Some of the conduct proscribed by the statute is quite general, whereas other
conduct is described with specific particularity. A person who “deprives a human being
of a member of his body, or disables, disfigures, or renders it useless” commits mayhem.
But the Legislature goes on to identify very specific injuries, and so a person who “cuts
or disables the tongue, or puts out an eye, or slits the nose, ear, or lip” is also guilty of
mayhem. The Supreme Court is attuned to the distinction. In Santana, supra, 56 Cal. 4th
999, the court explained: “[S]ection 203 includes among the injurious acts constituting
mayhem, cutting or disabling the tongue and slitting the nose, ear or lip. Nothing
suggests that these injuries must involve protracted loss or impairment of function,
require extensive suturing, or amount to serious disfigurement. While these examples are
merely illustrative and do not constitute serious bodily injuries as a matter of law
[citation], they underscore how imprecise and ill fitting the definition is for the statutory
offense of mayhem.” (Santana, at p. 1010.)
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Adopting the Santana rationale, the Court of Appeal in People v. Robinson (2014)
232 Cal. App. 4th 69 also recognized that cutting or disabling the tongue, like slitting the
nose, ear, or lip, does not require a separate finding of serious bodily injury. “[T]he
California Supreme Court held that serious bodily injury is not an element of [Penal
Code] section 203 and that CALCRIM No. 801, which included a requirement that the
prosecution must prove that the defendant caused serious bodily injury, is erroneous.
[Citation.] The court specifically noted that section 203 can be violated by cutting the
tongue or slitting the nose, ear or lip, none of which are necessarily serious bodily
injuries.” (Robinson, at p. 74.)
The courts in these cases, therefore, recognize that the Legislature has defined a
subset of injuries—injuries to parts of the face—that are inherently egregious and are
tantamount to great bodily injury. In those cases, the jury need not make a separate
finding on great bodily injury. A cut or disabling injury to the tongue is on the list of
injuries delineated by the Legislature that qualify as great bodily injuries. As a result, the
court did not have a sua sponte obligation to instruct that great bodily injury is an element
of mayhem.
Moreover, any instructional error would have been harmless beyond a reasonable
doubt. The jurors certainly could have rejected the victim’s testimony that she bit her
tongue during the assault and saw a chunk of it on the floor, but they did not. Thus, the
record does not support an inference that the victim suffered a minor cut or an
insignificant disabling injury. In finding mayhem based on a severed piece of tongue, the
jury would have found the injury constituted great bodily injury beyond a reasonable
doubt.
B. Lesser Included Offenses
Defendant argues the mayhem conviction should also be reversed because the trial
court failed to instruct sua sponte on the lesser included offenses of assault and battery.
The Attorney General does not dispute the general proposition that a trial court is obliged
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to instruct on any lesser included offenses supported by the evidence (People v. Smith
(2013) 57 Cal. 4th 232, 239), nor does she dispute that assault and battery are lesser
included offenses of mayhem (People v. De Angelis (1979) 97 Cal. App. 3d 837, 841).
The question is whether there is substantial evidence from which reasonable jurors can
conclude that the lesser offense, but not the greater, was committed. (People v.
Breverman (1998) 19 Cal. 4th 142, 162.)
Defendant again emphasizes how weak the evidence is that he caused the victim to
bite off a portion of her tongue. He reminds us yet again that no one observed the
abnormality near the time of the beating and no medical evidence corroborates the
victim’s account, given five months later. In his view, a reasonable juror who had been
properly instructed on simple assault and battery might have discounted the victim’s
testimony and found defendant guilty of the lesser crimes. His argument suffers from a
fundamental flaw—he is utilizing different evidence to support the lesser crimes than the
evidence used to support the mayhem conviction.
The prosecution’s theory was that defendant caused the victim to bite off part of
her tongue while beating and kicking her in the face. Based on the victim’s account to
the investigator that was introduced as evidence at trial, either the jury believed her
account and defendant is guilty of mayhem or it rejected her belated story. But if the
victim did in fact sever her tongue, as the jury found, defendant’s conduct amounted to
mayhem, not assault and battery. The evidence of beating and kicking supported the
conviction for the corporal injury to a cohabitant, but it was the injury to the tongue that
rendered the crime mayhem. Given the pivotal evidence that a tongue was severed, there
was no substantial evidence warranting an instruction on assault and battery. In other
words, there was no substantial evidence that if the victim bit off a chunk of her tongue
defendant was guilty of the lesser included offenses of assault or battery, and the trial
court did not err by not instructing on the lesser included offenses.
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C. No Obligation to Prove Crime was Committed on the Charged Date
The information charged that defendant committed corporal injury on a cohabitant
causing great bodily injury and mayhem on March 15, 2013. At least two of the
witnesses, the victim and her neighbor, could not remember precisely when the beating
occurred. The defense did not rely on an alibi or lack of opportunity; in fact, the defense
conceded defendant inflicted corporal injury on the victim on March 15, 2013. The trial
court instructed the jury, in the language of CALCRIM No. 207, as follows: “It is
alleged that the crime occurred on or about March 15, 2013. The People are not required
to prove that the crime took place exactly on that day but only that it happened
reasonably close to that day.”
Defendant argues that the instruction undermined his defense to the mayhem
charges and the allegation he inflicted great bodily injury upon the victim and denied him
due process. He acknowledges he inflicted a corporal injury on the victim on March 15,
but he disputes the nature and severity of the injury. He insists that the victim may have
bitten her tongue during one of her seizure episodes and not as a result of the corporal
injury he inflicted on March 15. By allowing the prosecutor to prove that the crime took
place reasonably close to March 15, he concludes the jury may have convicted him of a
mayhem he did not commit and found he inflicted great bodily injury when he did not.
We disagree.
Ordinarily, the prosecution need not plead or prove the exact time of commission
of an alleged crime. (People v. Barney (1983) 143 Cal. App. 3d 490, 497.) A limited
exception applies, however, when the defendant urges an alibi defense and the exact time
of the commission of the crime becomes critically essential to establishing an alibi. Here
the defense was not predicated on an alibi or lack of opportunity. As a consequence, the
“on or about” instruction did not “deflect the jury’s attention from a crucial temporal
element for which the defendant had an alibi.” (People v. Richardson (2008) 43 Cal. 4th
959, 1028.) We agree with the Attorney General that nothing in the challenged
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instruction impeded defendant from presenting evidence that the victim sustained her
injuries during a different assault or as a result of a fall during a seizure.
III. Propensity Evidence
Evidence Code section 1109 allows evidence of prior acts of domestic violence to
be admitted to show a defendant’s propensity to commit such acts. (Evid. Code, § 1109,
subd. (a)(1).) A trial court’s admission of evidence of prior acts of domestic violence
will not be disturbed on appeal absent an abuse of discretion. (People v. Poplar (1999)
70 Cal. App. 4th 1129, 1138.) Defendant contends the trial court abused its discretion by
indiscriminately allowing evidence of multiple acts of domestic violence against one of
his former partners that were dissimilar to the manner in which he pummeled the victim
in this case. He asserts that because admission of the prior episodes was far more
prejudicial than probative, the trial court’s abuse of discretion amounted to a denial of
due process. We can find no abuse of discretion and no denial of due process.
The admissibility of the propensity evidence challenged on appeal was thoroughly
litigated during in limine proceedings before trial. The trial court provided a reasoned
analysis of the probative value of the evidence and carefully weighed the probative value
against the inflammatory nature of the prior acts of domestic violence. The court
explained: “As to the incidents involving Laura Lucero in 2001, 2003 and 2005, the
thing that strikes me about that, and the reason I am going to allow the People to
introduce that evidence under [Evidence Code section] 1109, is that based on the
information that has been provided to me in the prosecutor’s trial brief, it appears that the
defendant[’]s habit in these situations of domestic violence is to strike a female victim
with whom he has a relationship in the face and chest area multiple times. They appear
to be driven to a certain extent by jealousy.
“In this relationship with the female the force used is extreme force and the focus
seems to be on the victim’s head, which is -- or Ms. Lucero’s head in this particular
situation -- which seems to be nearly identical to what the prosecutor has indicated is the
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state of the evidence or what they believe the evidence will show in this particular case.
So it shows to me that the defendant has a pattern of using physical violence against the
person that he’s having a relationship with -- dating or otherwise -- and that demonstrates
a course of conduct, a predisposition to commit these offenses to get what he wants out of
the situation or to punish the other party for whatever he feels he’s been wronged or
something of that nature.
“So the acts are very similar so the probative value is very high and it substantially
outweighs any risk of prejudice in evaluating under Evidence Code [section] 352. I think
it’s highly relevant to the jury to understand that this is the way that the defendant has
acted in the past and for the People to argue that what occurred with the victim in this
particular case is consistent with the past behavior of the defendant.
“So for those reasons primarily I’m going to allow the evidence in. Also, the time
frame of these incidences is not too remote, considering the fact that the defendant has
been in and out of custody either for committing new offenses or for parole violations, so
he hasn’t remained free from custody for a significant period of time, which also
mitigates the issue of it being too remote in time and prejudicing the defendant. So all
the requested incidents -- if I didn’t state them all -- involving Ms. Lucero, I would admit
her testimony under [Evidence Code section] 1109.”
As a result of the trial court’s ruling, Lucero testified to a number of incidents of
domestic violence that occurred during the eight or nine years she lived with defendant.
She testified defendant hit her on at least 10 occasions. She described several of the
incidents in graphic detail. The shortened version of defendant’s acts of domestic
violence in 2001 and 2005 follows.
On September 30, 2001, Lucero criticized defendant over a minor transgression.
Enraged, he tore off the front of her shirt and proceeded to hit her in the face and chest
area. A couple of months later during an argument about defendant’s using Lucero’s car,
he threw her on the bed, hit her with a lamp, slapped her, and punched her in the face.
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The parties stipulated that defendant was convicted of felony corporal injury on a
cohabitant (Pen. Code, § 273.5) for the December 21 incident. In January of 2005
Lucero’s makeup triggered another violent response from defendant. Angry because he
believed she was wearing too much makeup, defendant blew out the pilot lights, turned
on all the gas appliances, and attempted to blow up the house.
Lucero also described injuries she never reported to the police. As a result of
many other acts of domestic violence, she testified, she suffered a broken jaw, fractured
ribs, a collapsed lung, a broken tailbone, broken fingers, and a spontaneous miscarriage.
On appeal, defendant dissects each incident to demonstrate how dissimilar the
violence against Lucero was from the violence he perpetrated against the victim in this
case, and how the trial court should have sanitized the evidence to render it less
inflammatory. For example, he finds nothing similar about picking up Lucero and
throwing her to the ground, causing a miscarriage and a broken tailbone, and beating the
victim here in the face and chest. And he suggests the court should not have allowed
testimony of the miscarriage, along with many of the other injuries including a broken
jaw, because those injuries were far more inflammatory than the injuries the victim here
suffered to her face, tongue, and upper body. His argument is utterly without merit.
The trial court carefully evaluated the probative value of the evidence and
concluded that in each instance defendant flew into a violent rage over minor irritations
with a domestic partner. Many times, he took advantage of the women’s vulnerability
and exerted terrible force to their faces, heads, and chests. We cannot say the court’s
assessment of the similarity of defendant’s acts of domestic violence constituted an abuse
of discretion. To the contrary, we agree with the court that defendant’s pattern of abuse,
which included exceedingly violent beatings of a woman, targeting primarily her head,
face, and chest, was evident in his abuse of Lucero and the violence he inflicted on the
victim in this case. Nor do we accept defendant’s premise that the prior acts must be
nearly identical to the present charges. Defendant’s abuse of these women had sufficient
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common denominators from which the jury could infer that a man who was easily
provoked by a domestic partner over minor annoyances, to the point of forcefully striking
her in the face and chest, was likely to resort to the same type of violent outburst
whenever a female cohabitant irritated him.
Defendant objects most vociferously to the admission of evidence that he tried to
blow up Lucero’s house, an act he insists bears no resemblance to hitting and kicking this
victim in the face. We find no abuse of discretion in allowing his prior partner to
describe yet another incident demonstrating the degree of rage defendant displays in his
ongoing violent rampages against his domestic partners. The prosecution was not limited
to propensity evidence that involved only injuries to a woman’s face.
We also reject the notion that the court erred by failing to sanitize the prior
conduct to render it less incendiary. Defendant minimizes his own violent behavior by
focusing exclusively on the injury the victim sustained to her tongue. But he ignores the
testimony of every witness who observed her in the hours and days following the beating.
Her neighbor expressed surprise she even survived such a brutal attack. Her neighbor,
mother, and domestic violence victim advocate described how disoriented she was, how
badly her face was swollen and bruised, and how much difficulty she had talking and
walking. We therefore disagree with defendant’s assertion that Lucero’s testimony was
far more inflammatory than the evidence of how defendant had beaten the victim and the
numerous injuries she suffered. Actually, defendant’s abuse of Lucero was no more
likely to incite the jury’s passions than the equally outrageous beating and kicking he
inflicted on the victim here.
In sum, the trial court carefully considered the probative value of the propensity
evidence as allowed by Evidence Code section 1109 and weighed the probative value
against the risk of prejudice as dictated by Evidence Code section 352. The court’s
decision to admit evidence of defendant’s prior acts of domestic violence against Lucero
was well within its discretion. We can find no abuse of discretion.
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IV. Ineffective Assistance of Counsel
Defendant recasts each of the issues discussed above as an ineffective assistance
of counsel claim. He bears the burden of proving counsel’s performance was
constitutionally deficient and that he suffered prejudice as a result of the incompetent
representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692
[80 L. Ed. 2d 674].) Because we have rejected each and every one of his claims,
defendant cannot show that defense counsel’s performance was constitutionally deficient.
He had no obligation to raise futile objections to jury instructions, and he could have had
tactical reasons for foregoing objections to those that would have made no difference.
Moreover, because all of the asserted errors on appeal are without merit, he suffered no
prejudice from the defense his lawyer provided.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
MAURO , J.
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