The People v. Wish CA2/2 ( 2013 )

Filed 9/5/13 P. v. Wish CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B242456
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA069613)
v.
JONATHAN WISH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
David B. Gelfound, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Jonathan Wish (Wish) was convicted of corporal injury to a spouse (Pen. Code,
§ 273.5, subd. (a)1 (count 1) and assault by means likely to produce great bodily injury
(§ 245, subd. (a)(1)) (count 3).2 On appeal, Wish contends that the trial court deprived
him of his constitutional right to present a defense when it precluded his ex-wife, Valerie
Wish (Valerie), from testifying that the three children she had with Wish were in
Argentina at the time of trial. In Wish’s view, the trial court’s ruling prevented him from
proving that Valerie was using the case to deny Wish access to the children, and that she
had a motive to lie about the alleged crimes. He further contends that the trial court
abused its discretion under Evidence Code section 352 when it allowed the prosecution to
present two prior acts of domestic violence under Evidence Code section 1109.3 We find
no error and affirm.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The information did not contain a count 2.
3
Wish also contends that Evidence Code section 1109 violates his constitutional
rights to due process, equal protection and a fair trial. But citing People v. Price (2004)
120 Cal.App.4th 224, 239–241 [Evidence Code section 1109 does not deprive a
defendant of the right to due process, equal protection and a fair trial, and it is not
unconstitutional on its face], People v. Hoover (2000) 77 Cal.App.4th 1020, 1029
(Hoover) [Evidence Code section 1109 was not unconstitutional as applied], People v.
Johnson (2000) 77 Cal.App.4th 410, 416–420 (Johnson), and People v. Falsetta (1999)
21 Cal.4th 903, 917–918 (Falsetta) [Evidence Code section 1108, pertaining to evidence
of another sexual offense, does not transgress constitutional principles because Evidence
Code section 352 provides an adequate safeguard to evidence that would create undue
prejudice], Wish concedes that California courts have rejected the same constitutional
challenges that he asserts now. Nonetheless, he asserts these challenges to preserve them
for federal review. Suffice it to say, we follow the lead of Court of Appeal cases such as
Hoover and Johnson. And even though Falsetta’s holding pertained to Evidence Code
section 1108, we perceive no material distinction between Evidence Code sections 1108
and 1109 for constitutional analysis. Thus, we deem the analysis in Falsetta as
controlling. There is no reason for us to analyze the issue further. In our analysis of
section 1109, we focus on state law issues.
2
FACTS
The Prosecution Case
Valerie is from Argentina. She came to California on a student visa in 1997 when
she was 18 years old. Her visa expired in 2000 but she remained in California. In 2001,
Valerie began living with Wish, who was 16 years her senior. They got married in July
7, 2003. Part of the reason that they got married was that Valerie was about three months
pregnant.
On July 25, 2003, Valerie had contractions and bleeding, so she made a doctor’s
appointment. At the time, Tyger Wish (Tyger), Wish’s son from a prior marriage, was
visiting. Wish told Valerie that he would not go to the appointment with her because he
wanted to stay with Tyger. Valerie testified that when she returned home from the
appointment, she was upset that Wish did not go with her. He said that he wanted her to
get an abortion. She said no, and he threatened to leave her. When he began packing his
belongings, Valerie decided that she would go to her parents’ house. Wish stopped her
by pushing her to the floor, sitting on her stomach, grabbing some telephone cables and
tying her wrists and ankles. Then he punched her in the stomach. He left her tied up on
the floor and went outside to talk on his cell phone. Her parents came over to the house.
She told them not to touch her and asked them to call the police. They did not want to
call the police because they were in the country illegally. Her father was upset. He
untied her and took her to his house. That evening, her parents said that she should go to
the police, so she went to the police station and filed a report. Wish was arrested but not
prosecuted.
About a month later, Wish and Valerie reconciled. She applied for permanent
residency, and Wish sponsored her.
3
They had three children together: twin boys born on April 2005, and a girl, who
was born on November 2008.4 Every time Valerie said she wanted to leave the marriage
or they had problems, Wish threatened to take the children away and have her deported.
Valerie’s application for permanent residency was granted in 2009.
Sometime in 2010, Valerie began a romantic relationship with Kingsley Sorge
(Sorge). She told Wish about it. He got “[r]eally mad.”
On December 25, 2010, Wish and Valerie were separated but were living together
in a house. They had discussed divorce. On Christmas day, Valerie went to a friend’s
house to retrieve presents for the children. When Valerie returned home, Wish would not
let her enter. She could hear the children inside the house, crying. Wish came outside
and pushed Valerie, causing her to fall. He asked her to leave. She got into her car and
drove away.
Valerie moved in with a friend. For about a month, Wish allowed Valerie to have
half-hour, monitored visits with the children. On January 24, 2011, Wish finally allowed
her to keep the children for an entire day. Without Wish’s consent, Valerie drove the
children to New Jersey. But before she left, she told one of Wish’s friends the address of
the place she would be staying and asked him to inform Wish of her plan.
In early 2011, Wish filed for divorce. He also filed court documents stating that
he wanted custody of the children. Valerie was ordered to bring the children back to
California. She complied even though she did not want to. Starting in March 2011, the
family court held multiple hearings on custody. Valerie told the family court that Wish
calls the children “little shits” and “stupid,” and that he was verbally abusive toward her
and the children. Her attorney told the family court about the July 25, 2003, incident.
Nonetheless, Wish was allowed to visit the children multiple times. On July 7, 2011, the
family court ruled that Valerie would stay in California for the summer with the children.
4
The record of the trial is silent regarding whether Valerie had a child from her
2003 pregnancy. At a pretrial hearing, the prosecutor stated that Valerie’s pregnancy
ended with a miscarriage.
4
In addition, the family court granted Wish visitation with the children on three weekends
out of every month. On those weekends, she was supposed to drop the children off at
5:00 p.m. on Friday at Frazier Park. The family court ordered a child custody evaluation
to determine whether Valerie should be allowed to take the children back to New Jersey.5
She was confident that she would prevail on that issue because the children feared Wish
and did not want to be around him.
Valerie worked as a colonic hydrotherapist. She owned her own colonic
hydrotherapy machine. She did treatments in the back of a gym, but she wanted to “set
up a better place for it, a better job.”
On Friday, July 15, 2011, Valerie was supposed to take the children to Wish for a
weekend visit. At 4:00 p.m., the children were playing outside the home of a neighbor,
Elizabeth Giarrizzo (Giarrizzo). Valerie’s twin boys were six years old and in the same
class as Giarrizzo’s twin boys. The four of them were making plans for a sleepover at
Giarrizzo’s home. As a result, Valerie’s twins asked if they could visit Wish on a
different weekend. At about 5:00 p.m., Wish called. He was still at his house, which was
an hour away, and needed “to get stuff ready.” He told Valerie that he would call her
when he was near an agreed drop-off location, which was a neighborhood park near
Valerie rather than Frazier Park.6 Twenty minutes later, she called and asked if he
wanted to pick up the children the next day because they had a play date that evening
with their friends. Wish said that he was already on his way, and that he would meet her
at the park near her home. A while later, he called and said he was running late because
his car had overheated.
At about 6:00 p.m., Valerie left her home to meet with a doctor about a job
working in a doctor’s office. The office was 20 minutes away. When she was cross-
5
The evaluation may have been ordered earlier. Valerie testified that it had been
pending for “months” before July 7, 2011.
6
At trial, Valerie stated: “The court order says Frazier Park, but lots of times
[Wish] was in Valencia[,] so we [would] meet by a park around the block from my
house.”
5
examined and asked about her “job interview,” she said, “Well, it wasn’t . . . a job. I had
a [colonic hydrotherapy] machine that I wanted . . . to put in [the office of an alternative
medicine doctor][.]” Later, she stated, “Yes. It’s a job, but I have a machine that I had in
Valencia and I was possibly looking to bring it to this doctor’s office . . . to do treatments.
So I went to talk to him[.]” After talking to the doctor, she realized that he could not
offer her a sufficient location for the machine. Wish called at about 6:30 p.m. and said he
was in town. She told him that she was going to drive back home, pick up the children
and call when she was close to the park. She went home, and then went to Giarrizzo’s
home to tell the children it was time to meet Wish. They did not want to go. She spoke
to Wish on the phone. During that call, he said he was going to eat at the mall and drive
to the park afterwards, then he called her a “bitch” and accused her of trying to keep the
children away from him. After that, she tried to convince the children to get into the car.
Eventually, however, the children prevailed upon her to meet Wish by herself. They
wanted her to ask if they could sleep over at Giarrizzo’s and start their visit with Wish in
the morning.
Giarrizzo testified that Valerie, her children and Sorge came over to Giarrizzo’s
home at 5:00 or 6:00 p.m., but possibly earlier. Giarrizzo’s twin boys started playing
with Valerie’s twin boys. According to Giarrizzo, “We were all there for quite a while.”
She did not see Valerie leave prior to 7:15 p.m., and did not recall Valerie mentioning a
job interview. At 7:00 or 7:30 p.m., Valerie said she had to meet with Wish to discuss
“some court documents and that she was going to go by herself.” She did not want to
bring the children because Wish had a tendency to get argumentative and verbally
abusive, and she did not want them to see Wish get upset. Before Valerie left, she asked
Giarrizzo to watch the children and help Sorge. At no time did Valerie and Giarrizzo
discuss a plan for the children once Valerie returned. When Valerie left, there were no
injuries on her face. Sorge remained with Giarrizzo and the children. He never left.
According to Valerie, she drove toward the drop-off location at about 7:30 or
8:00 p.m. and saw Wish at a nearby cross street. They pulled over and got out of their
cars to talk. He asked if the children were with Valerie. She said that they were at a
6
neighbor’s house, and they were very excited about staying over the weekend to play
with their friends. Wish got upset and told Valerie to go and get the children. She said
that they really wanted to sleep over at the neighbor’s house and asked if Wish would
trade weekends. In the alternative, she said he could pick them up the next morning, or
the next morning she would drive the children to him. He refused to change or modify
his visit.
Valerie gave Wish some divorce papers and told him that they were for his income
and expense declarations.7 He accused her of wanting a divorce so that she could marry
someone else. He called her names and began yelling and swearing. At that point, she
asked whether he would let the children go to their sleepover party, or if she should go
get them. Instead of answering, he kept yelling and swearing. Then he threw the divorce
papers into his car.
As for what happened next, Valerie first testified, “Unexpectedly he turn[ed]
around and punch[ed] me in the face.” When asked where, she pointed to a red scar
above her left eyebrow. After that, she testified: “I notice[d] I was bleeding on my head
and he looked at me and he told me you are not [going to] report me. If you do[,] I will
get out and I will kill you and the children.” Wish told her to go back to the neighbor’s
house, get the children and meet him at the park. She told him she would do that and left.
On cross-examination, Valerie testified that she is 5 feet, 7 inches tall and weighs
110 pounds. Wish is 5 feet, 11 inches tall and, at the time of the incident, weighed 220
pounds. While he was yelling and swearing about the divorce papers, they were standing
in the middle of the street facing each other. She was afraid of him. According to
Valerie, he threw the papers in his car, turned around and punched her in the face. But
then Valerie testified: “I didn’t even look when he turned around. I was distracted, and
7
Valerie testified: “And I was holding some papers of the [family court] that I
needed to give so [Wish] asked about what was up. So I tried to explain to him because I
didn’t have a lawyer at that time and I needed him to complete some forms so they can
grant divorce. [Wish] needed to do [a] declaration of his expenses.” Later she testified
that she had needed Wish to “fill out some declarations of his income and stuff like
that[.]”
7
last thing I remember is that, and then I felt some sharp cold thing in my face after that. I
wasn’t looking.” She was asked if she saw a closed fist when he turned around. She
testified: “I don’t remember if it was a fist or what it was. I remember feeling something
cold sharp in my face.” After a few more questions, she said, “All I remember is
standing there and I remember after that he turn[ed], did something and something hit me
on my face. I don’t know if it was his fist or something he was holding[.]” Defense
counsel asked if she saw him hit her in the face, and she replied: “I saw his fist. I did
[see] his fist in my face. It was really fast.” Next, the defense counsel asked if she was
“bleeding heavily.” She said yes. Then the defense counsel asked: “Were you bleeding
all over your clothes?” Valerie said, “Yes. It was pouring down my clothes.” The blood
was “pouring out of [her] face” while she was standing in the street. She also stated: “I
don’t remember seeing blood in the floor. I remember the blood [pouring] down my face
and then very shortly after that I got into my car. I remember having blood all over the
door on my car.” She “wasn’t bleeding in the street.” After she was hit, she put her hand
on her face and “was bleeding down” her face.
When Valerie left Wish, she went to the Santa Clarita Sheriff’s station and said
she had been hit. The drive from the park was approximately three or four miles. Deputy
Sheriff William Formica made contact with Valerie at the station at about 8:30 p.m. She
told him that she had been hit by her husband 30 minutes ago. He noticed that she had a
large laceration with blood protruding from it. Her nose was slightly swollen, and her
eyebrows were a little puffy and red. When asked if he saw blood on her clothes, he
testified, “I do not recall.” If there had been blood, he would have made a note of it.
There was no note regarding bloody clothes in his report.
Valerie had a one inch laceration above her left eye. She was taken to the hospital
by paramedics and received 13 stitches. She was treated by Dr. Darrin Privett at 8:45 or
9:00 p.m. She complained of pain, and she said that her nose had been bleeding, but it
had stopped. Dr. Privett did a CT scan of her orbital bone and did not detect a facial
fracture. The laceration “was fairly deep[.]” The injury was “potentially” consistent with
being hit by a fist. When asked if an assailant could hit somebody in the face with a fist
8
and have no injury to his hand. Dr. Privett said, “Potentially, yeah. It just depends.” He
explained that the skin is thin where Valerie suffered the injury, “so it doesn’t take much
to hit that skin and it can pop open. So it doesn’t need a whole lot of trauma or force. It
just needs direct contact.” He acknowledged that she could have been hit by a foreign
object.
Defense counsel asked Dr. Privett whether an injury like Valerie’s is one that
“bleeds profusely[.]” Dr. Privett said that it “just depends.”
While Valerie was being stitched up, which was 20 to 30 minutes after she arrived
at the hospital, she told Deputy Formica that when she got to the park, she gave Wish
some paperwork. He got upset and asked where the children were. She did not specify.
Instead, she asked him to review the paperwork and send it back to court. She said she
turned around and walked back toward the vehicle. Wish stopped her. They had a real
quick discussion about something. Then, according to her version of the incident, Wish
punched her in the face with a closed right fist and knocked her backwards. At some
point, Wish called her a “bitch” and a “slut.” Valerie told Deputy Formica that after she
was hit, she began bleeding profusely from her nose, and also from the laceration. She
told Deputy Formica about the dissolution proceeding and gave him the case number. In
addition, she told him the file number for the July 25, 2003, domestic violence claim.
She said that Wish was waiting at the park for her to drop off the children.
Sheriff’s deputies found Wish at the scene of the crime. He was waiting for
Valerie to bring the children. A deputy told Wish that Valerie had accused him of hitting
her. Wish denied hitting her and claimed that Sorge, Valerie’s boyfriend, had hit her in
an attempt to set Wish up. Wish was arrested. The deputies did not find any marks on
Wish’s hands, nor did they find blood on him or in his car. They looked for blood on the
ground, but they did not find any.
Deputy Formica observed Wish in the booking cage. He did not have any injuries
to his hands. There were no rings booked into property. If Wish had been wearing any
rings, it would have been noted. Detective Juan Carrillo of the Los Angeles County
9
Sheriff’s Department spoke to Valerie the Monday after the incident. She said she
wanted Wish prosecuted.
Valerie obtained a restraining order against Wish. On August 10, 2011, her
divorce from Wish was final. On August 27, 2011, the family court informed Valerie
that she could move to New Jersey, and that the children could start school there.
At the time of trial, Valerie’s parents were in Argentina.
Valerie was asked if she wanted Wish to have custody of the children or visitation.
She said no to both.
The Defense Case
Valerie testified that on July 15, 2011, she told Giarrizzo that she was nervous
about meeting Wish alone because she had court papers for him and the children were
staying home. In September 2011, Valerie took the children with Sorge and her back to
New Jersey.
Tyger was called to the stand.8 At the time of the July 25, 2003, incident, Wish
was on crutches due to knee surgery. Wish said something about Tyger’s mother taking
him home and Valerie got upset. She started yelling and cursing at both Wish and Tyger.
While Wish was walking down the hallway, Valerie tackled Wish “down off his
crutches.” She sat on him, punched him in the face and kicked him three times. Wish
called Valerie’s father, who came to the house and took her away. Tyger talked to the
police later that day, but the police report regarding the incident did not contain a
statement from Tyger.
Conviction; sentence
The jury found appellant guilty on counts 1 and 3. The trial court selected the
mid-term of three years in state prison on both counts. It stayed the sentence on count 3
pursuant to section 654.
This timely appeal followed.
8
Tyger was born in October 1993.
10
DISCUSSION
I. The Right to Present a Defense.
Wish argues that the trial court deprived him of his constitutional right to present a
defense when it relied on Evidence Code sections 350 and 352 to exclude evidence that
the children were in Argentina at the time of trial. In Wish’s view, that evidence was
relevant to prove that Valerie was using the July 15, 2011, incident to keep and control
the children; to prove that Valerie had prevented Wish from contacting the children; to
prove that Valerie had a motive for lying; and to prove that Valerie was not credible. In
other words, the evidence was necessary to prove that Valerie fabricated Wish’s crimes.
This argument lacks merit. As we shall discuss, the location of the children at the time of
trial did not have significant probative value. Beyond that, there was strong evidence in
the record supporting Wish’s defense. Upon review, we conclude that the trial court did
no violence to Wish’s rights.
A. The law.
Only relevant evidence is admissible. (Evid. Code, § 350.) A trial court may, in
its discretion, “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.”
(Evid. Code, § 352.)
The rules of evidence “must yield to a defendant’s due process right to . . . present
all relevant evidence of significant probative value to his or her defense. [Citation.]”
(People v. Cunningham (2001) 25 Cal.4th 926, 998–999; Crane v. Kentucky (1986) 476
U.S. 683, 690 [the federal Constitution guarantees a criminal defendant a meaningful
opportunity to present a complete defense].) “Although completely excluding evidence
of [a] . . . defense [is] theoretically [impermissible], excluding . . . evidence on a minor or
subsidiary point does not impair an accused’s due process right to present a defense.
[Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) “For a defendant’s
constitutional rights to override the application of ordinary rules of evidence, ‘“the
proffered evidence must have more than ‘slight-relevancy’ to the issues presented.
11
[Citation.] . . . [Citation.] The proffered evidence must be of some competent,
substantial and significant value. [Citations.]” [Citation.]’” (People v. Anderson (2012)
208 Cal.App.4th 851, 880.)
A trial court violates a defendant’s right to confront a witness if “‘“he was
prohibited from engaging in otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the
facts from which jurors . . . could appropriately draw inferences relating to the reliability
of the witness.’” [Citation.] However, not every restriction on a defendant’s desired
method of cross-examination is a constitutional violation. Within the confines of the
confrontation clause, the trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.
[Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show
that the prohibited cross-examination would have produced “a significantly different
impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its
discretion in this regard does not violate the Sixth Amendment. [Citation.]’ [Citations.]”
(People v. Linton (2013) 56 Cal.4th 1146, 1188; People v. Ducu (1991) 226 Cal.App.3d
1412, 1414–1415 [the confrontation clause “‘“guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish”’”].)
When a trial court violates a defendant’s constitutional right to present a defense
or cross-examine a witness, we must reverse his conviction unless the error was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Rutterschmidt (2012) 55 Cal.4th 650, 652.)
B. The relevant proceedings.
During the People’s case-in-chief, defense counsel cross-examined Valerie and
asked if her children were presently in Argentina. The prosecutor objected based on
relevance.
The trial court called the attorneys to sidebar. The prosecutor argued that the
location of the children, at the time of trial, was irrelevant. Even though the custody
12
dispute was relevant, the prosecutor argued that evidence regarding that dispute needed to
be “closer in time to the July 15, 2011 incident.” Defense counsel argued that the “whole
case is that [Valerie] is using this incident to keep and control those children. And
. . . [because of this] incident she has the children and has kept them from him. And that
since this incident she has not allowed him to speak to them, has not allowed them to visit
with him much, has not allowed them to even talk to [him]. He has not had any contact
at all, and I think that is something that is relevant, and I think that is something that
relates directly to the motive for lying[.]”
In response to the argument of counsel, the trial court stated, “My ruling is as
follows: during the pretrial rulings we talked about the custody issue and both counsel
indicated that they wouldn’t be going into great detail with the custody issues. I’ve
allowed both prosecution and the defense to go extensively into the custody issues. At
this point I think we’re getting far afield. Where the current location of the children is, is
not relevant in the [trial court’s] view at this point in time. So that objection would be
sustained.”9
C. No violation of a constitutional right.
The location of the children at the time of trial was minor or subsidiary and, at
best, only slightly relevant to the issues.
Wish suggests that if Valerie sent the children to Argentina, then it would have
revealed that she lied when she testified that the children were in New Jersey. The
problem is, Valerie never said where the children were staying while she was in
California testifying. Thus, even if Valerie had been allowed to answer defense counsel’s
question, and if she had given him the answer that he hoped to elicit, her credibility
would not have been damaged.
If the children were in Argentina at the time of trial, a finder of fact could infer
that Valerie was doing everything in her power to keep them away from Wish. But that
9
Both parties presume that the trial court relied on Evidence Code section 352 in
addition to finding the evidence irrelevant.
13
inference would be speculative without more information. For example, if the children
were in Argentina, was it permanent or only during the trial? Did Valerie keep the
location a secret from Wish? Was Wish permitted to have telephone contact? Was he
being deprived of court ordered visitation? Did Valerie have authority to send the
children to another country? In any event, if Valerie was trying to prevent Wish from
having contact with the children at the time of trial, that is remote evidence of what she
was trying to accomplish when she reported the July 15, 2011, incident. And even if that
was her goal on the night in question, that does not by itself undermine her version of
events. The more important question is why she harbored that goal. As a mother, she
may simply have wanted to keep the children away from Wish because he threatened to
kill them. On the other hand, it is not beyond the pale of human nature for a mother to
prevent a father from seeing his children out of anger, spite or the desire to start a new
life. It could be rationally inferred that a mother who was actively preventing a father
from seeing his children might be willing to falsely report that she was attacked by the
father in order to gain complete legal control of the children. This is the very inference
Wish relies on to suggest that Valerie had a motive to lie, and that she fabricated the
July 15, 2011, incident. The problem is that using the location of the children as proof
that Wish did not commit the charged crimes involves a long chain of shaky inferences
built on mere possibilities rather than probabilities. That chain does not have significant
probative value. As a result, we easily conclude that Wish was not deprived of the right
to present a defense.
Not only was the excluded evidence marginal, Wish’s defense was amply
supported by other evidence.
The record called Valerie’s credibility into question. Below, we list a selection of
examples. While Valerie testified that Wish knocked her down and tied her up on
July 25, 2003, Tyger testified that Valerie tackled Wish off his crutches while he was
recovering from knee surgery and then starting kicking and punching him. As for what
transpired on July 15, 2011, at Giarrizzo’s home, Valerie and Giarrizzo provided
differing stories. According to Valerie, her twins and Giarrizzo’s twins were planning a
14
sleepover. At about 6:00 p.m., Valerie drove 20 minutes away to talk to a doctor about
placing her colonic hydrotherapy machine in his office. Then she drove back home and
went to Giarrizzo’s house to collect the children for the drop-off with Wish. But
Valerie’s children wanted to switch weekends. They convinced Valerie to ask Wish for
permission. Giarrizzo, on the other hand, testified that she did not see Valerie leave prior
to 7:15 p.m. There was no mention of a job interview. Valerie said she was going to
meet with Wish to discuss some court documents and did not want to bring the children
and risk them seeing Wish get upset. Giarrizzo and Valerie did not form a plan for the
children once Valerie came back from the park.
Next, we turn to Valerie’s story about Wish’s attack. The story kept changing and
was full of holes. She testified that when she first arrived at the park, Wish asked where
the children were and she told him. And she repeatedly asked Wish if he would agree to
switch weekends and let the children go to a sleep over. But Deputy Formica testified
that Valerie told him that when Wish asked where the children were, she said nothing in
response. As for the crimes, she testified that she saw Wish hit her with a fist, and also
that she did not see what hit her. Though she said Wish hit her with a fist, she said she
felt something cold and sharp. At trial, Valerie stated that Wish hit her after throwing
divorce papers in his car and suddenly turning around, but in the hospital she told Deputy
Formica that Wish hit her after she walked toward her car and he stopped her. Valerie
testified that after she was punched, blood poured out of her laceration, went down her
face and all over her clothes. The sheriff’s deputies found no blood at the crime scene,
nor did they find any blood on Wish. Moreover, Deputy Formica did not see any blood
on Valerie’s clothes. Last, we note that when Valerie testified, she did not mention
bleeding from her nose. However, she complained to Dr. Privett that she had been
bleeding from the nose. And, according to Deputy Formica, she told him that when she
was bleeding from the nose, it was profuse. Based on all the conflicting testimony, the
jury had grounds to disbelieve Valerie.
Beyond these examples of conflicting testimony and changing stories, there were
aspects of Valerie’s testimony that could have given a reasonable juror pause. For
15
example, on July 25, 2003, how did Valerie’s parents happen to show up inside her house
at just the right time to untie her? After Wish threatened to kill Valerie and her children,
why did Valerie go to the sheriff’s station without first picking up her children or calling
Giarrizzo to warn her of the threat? What caused Valerie to feel something cold and
sharp hit her in the face? Why was Valerie bleeding profusely from the nose if Wish hit
her above the left eyebrow?
Moving on to the next point, there was evidence that Valerie was using the
July 15, 2011, incident to keep and control the children, that she had prevented Wish
from contacting the children, and that she had motive to lie about the July 15, 2011,
incident. After Valerie obtained legal status in the United States, she began a relationship
with Sorge while still married to Wish. She even told Wish about the relationship. At
the first opportunity following the December 25, 2010, incident, Wish drove the children
to New Jersey without Wish’s permission. She brought them back only due to a court
order. After the July 15, 2011, incident, she told Deputy Carillo that she wanted Wish
prosecuted, and she obtained a restraining order. Then, with the permission of the family
court, she moved the children to New Jersey. At trial , she testified that she did not want
Wish to have custody of the children, and she did not want him to have visitation.
Simply stated, the evidence elicited at trial depicted a woman trying to forge a new life
and leave Wish behind.
The bottom line is that the jury heard significant probative evidence undermining
Valerie’s credibility and suggesting that she had fabricated the crimes. Thus, Wish was
permitted to present his defense.
II. Prior Acts of Domestic Violence.
The trial court allowed the People to present evidence of the domestic violence
incidents on July 25, 2003, and December 25, 2010. Wish assigns error on the theory
that the evidence was more prejudicial than probative and therefore should have been
excluded under Evidence Code section 352. Upon review, we conclude that the trial
court did not abuse its discretion.
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A. The law.
In general, evidence of prior conduct is inadmissible to prove that a person has a
propensity to engage in that conduct. (Evid. Code, § 1101.) But “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
[Evidence Code] [s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence
Code] [s]ection 352.” (Evid. Code, § 1109, subd. (a)(1).) As previously indicated,
Evidence Code section 352 permits a trial court to exclude evidence if the probative value
is substantially outweighed by the danger it will create undue prejudice. The danger of
undue prejudice arises when “‘evidence . . . uniquely tends to evoke an emotional bias
against defendant as an individual and which has very little effect on the issues.’”
(People v. Bolin (1998) 18 Cal.4th 297, 320.)
We review rulings under Evidence Code section 352 for an abuse of discretion.
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
B. The relevant proceedings.
Prior to trial, the trial conducted hearings pursuant to Evidence Code section 402.
It was asked to rule on whether the People could present evidence of prior acts of
domestic violence occurring on July 25, 2003, March 13, 2006,10 and December 25,
2010. Valerie and Tyger testified. At the conclusion of the testimony and argument, the
trial court conducted an analysis under Evidence Code section 352. It found that “the
probative value is not substantially outweighed by the prejudicial effect and the [trial
court] is going to allow in the . . . July 25, 2003 incident, and the December 25, 2010
incident[.]” The trial court excluded the March 13, 2006, incident.
10
According to Valerie, on March 13, 2006, she was in a car with Wish. He tried to
take a cell phone away from her and they struggled. He eventually obtained the cell
phone and threw it out the car window.
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C. No abuse of discretion.
The two prior acts of domestic violence by Wish against Valerie, the same victim
in the charged offenses, were “highly relevant and probative[.]” (Hoover, supra, 77
Cal.App.4th at p. 1029.) The evidence showed Wish’s propensity to commit violent acts
against Valerie, and it undermined his claims that Valerie fabricated the July 15, 2011,
incident. Moreover, the two prior acts were not more inflammatory than the offenses for
which Wish was on trial. (People v. Johnson (2010) 185 Cal.App.4th 520, 534, fn. 11
[“Courts are primarily concerned where the past bad act was ‘more inflammatory’ than
the offense for which the defendant is on trial”].) The December 25, 2010, incident was
mild compared to the July 15, 2011, incident. It is true, as Wish suggests, that the
allegation that he punched Valerie in the stomach while she was pregnant on July 25,
2003, is horrific. But she did not have to go to the hospital, and there is no evidence that
she sustained any injuries from that incident. In contrast, when Wish struck Valerie in
the head on July 15, 2011, she suffered a laceration that caused her to bleed profusely.
She had to go to the hospital and receive 13 stitches. Thus, the July 15, 2011, was worse
than the incident that occurred in 2003.
Regarding the 2003 incident, Wish complains that it was too remote. But we
cannot fault the trial court for admitting it. The Court of Appeal has recognized that
“[r]emote prior conduct is, at least theoretically, less probative of propensity than more
recent conduct[,]” especially “if the defendant has led a substantially blameless life in the
interim[.]” (People v. Johnson, supra, 185 Cal.App.4th at p. 534.) But courts have
allowed prior domestic violence dating back 10 years before the current offense. (Ibid.)
There is no specific time limit. Here, the incident was only eight years old at the time of
the current offense, and there was evidence that Wish had engaged in domestic violence
on more recent occasions. Because Wish had not lived a blameless life in the interim,
and because eight years is well within the ballpark of what courts allow, we conclude that
the 2003 incident was not too remote.
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In sum, the trial court’s decision to allow the two prior acts of domestic violence
comports with case law.11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, Acting P. J.
ASHMANN-GERST
We concur:
___________________________, J.
CHAVEZ
___________________________, J.*
FERNS
11
Wish contends that the exclusion of the location of the children at the time of trial
and the admission of prior acts of domestic violence under Evidence Code section 1109
violated his constitutional rights, and that they both independently support reversal. In
the alternative, he argues that reversal is required by the cumulative impact of those
violations. Because we conclude that the trial court did not infringe on Wish’s federal
rights, cumulative impact is moot.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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