People v. Saddozai CA1/5 ( 2021 )

Filed 3/16/21 P. v. Saddozai CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A154894
v. (San Mateo County
SHIKEB SADDOZAI, Super. Ct. No. 16-NF-001414A)
Defendant and Appellant.
Shikeb Saddozai appeals after a jury convicted him of the
attempted, premeditated murder of Jane Doe, first-degree burglary,
and other related crimes and enhancements, resulting in an aggregate
sentence of thirty-three years to life. He challenges the sufficiency of
the evidence supporting his attempted murder conviction and
premeditation enhancement and identifies numerous purported
evidentiary errors. He also challenges his sentence, arguing the trial
court should have stayed his consecutive sentence for burglary, and he
requests remand so the trial court can exercise its discretion to strike a
prior felony sentence. We remand for resentencing but otherwise
affirm.
1
BACKGROUND
A.
Saddozai and Doe began their relationship in 2010. Shortly
thereafter, Saddozai began verbally and physically abusing Doe. He
frequently accused Doe of being attracted to other men and regularly
demeaned her by calling her a “piece of shit” and a “whore.” On one
occasion, Saddozai forcibly cut off all of Doe’s hair after seeing a picture
of her with other men. He often kicked Doe, hit her in the face, and
punched her in the mouth, in one instance knocking out her fake front
teeth. Saddozai kicked Doe while she was pregnant, causing her to fall
down some stairs. One time after being punched, Doe sought
emergency medical care; at Saddozai’s direction, Doe told the nurse the
injury was the result of a car accident. Doe eventually gave birth to
their child, who died of a heart problem a few months later.
Doe did not report these incidents to police because she was
scared Saddozai would get upset and “beat [her] up.” After arguments,
Saddozai hid Doe’s wallet to prevent her from leaving him. But he
would later apologize, buy her flowers, and tell Doe that she was the
most beautiful person in the world and that he would not repeat his
actions.
In 2015, while facing criminal charges in an unrelated case,
Saddozai fled to the Philippines. He was apprehended and later
sentenced to prison.
While Saddozai was in prison, Doe moved out of their shared
residence and did not tell him her new address. She rented a storage
unit for Saddozai’s belongings, but the contents were eventually
auctioned off when she was unable to pay the storage rent. She sent
2
Saddozai a letter ending their relationship. Saddozai did not accept
this decision. He left voice messages for Doe, sometimes pleading for
her to remain in the relationship and sometimes expressing anger and
threats (e.g., “Listen you are going to regret this shit.. you are going to
regret this.. you fucker.”)
Saddozai was released from prison in February 2016 and checked
into a hotel room. He called Doe to pick him up, but she refused. On
February 6, after Saddozai repeatedly called and texted her requesting
assistance for food and clothing, Doe agreed to meet Saddozai, and they
had a conversation in her parked car. Saddozai became angry that Doe
ended their relationship, struck her face, and began choking her. He
grabbed her hair and neck when she tried to escape. This struggle
continued for a few minutes until the police arrived after a bystander
called 911. Doe told the officers she was simply having a loud, verbal
argument with Saddozai. The officers told Saddozai to leave the
parking lot.
A few days later, Saddozai left Doe numerous voice messages,
blaming Doe for ruining his life and begging to see her again. Saddozai
found Doe’s address though an internet search. He used a spoofing
application—a product that allows users to both manipulate the caller
identification on the receiving phone and disguise the caller’s voice—to
call Doe. Pretending to be a police officer, Saddozai asked Doe for her
address to discuss a serious event in-person, and Doe unwittingly gave
it to him. After becoming suspicious of the call, she telephoned the
police department, which confirmed that no one from the department
had called her. Doe was afraid Saddozai learned her address, and she
slept in her car that night.
3
The attack that led to this case happened the next morning,
February 8, 2016. Saddozai went to Doe’s apartment. He most likely
entered through the balcony door while she was away. He looked
through her belongings, found some men’s clothing, and threw them
under the bed. He picked up a bible and wrote inside the cover, “You
read the Bible, [Doe], but why are you cheating on me?”
Around noon, Doe returned home, unlocked her apartment door,
and immediately saw Saddozai sitting by her bed. He was angry, and
said, “you’re cheating” to Doe. She screamed and ran out of the
apartment. Saddozai pursued Doe with a knife in his hand, yelling
“you cheat” and “I’m gonna get you.”
Doe ran to the apartment parking lot where she banged on the
window of a car, screamed for help, and begged the driver to unlock the
doors. She then ran to the apartment building’s leasing office while
Saddozai continued to chase her. She entered the office and tried to
hold the door closed. Saddozai yelled through the door that Doe was
cheating and he would get her. He tried to force the door open
repeatedly, but he was unsuccessful and ran away.
Another apartment resident came to investigate the commotion
and found Saddozai by the apartment complex’s pool. Saddozai was
holding a knife, and repeatedly warned the resident that he “had a
knife” and “I want to kill the bitch.” He then ran out of the apartment
building gate while the other resident trailed Saddozai at a distance.
Saddozai fled up a steep hill, where he disappeared in a densely wooded
area out of the resident’s view. Officers eventually apprehended him.
4
B.
A jury found Saddozai guilty of attempted willful, deliberate, and
premeditated murder (Pen. Code, §§ 664, 187, subd. (a)); 1 stalking (§
646.9, subd. (a)); misdemeanor exhibiting a deadly weapon (§ 417, subd.
(a)(1)); first degree burglary (§ 460, subd. (a)); misdemeanor possession
of burglar’s tools (§ 466 (count five)); and misdemeanor battery of a
person the defendant formerly dated (§ 243, subd. (e)(1)). The jury
found true enhancements for use of a deadly weapon (a knife) (§ 12022,
subd. (b)(1)) and a prior serious felony (§ 667, subd. (a)(1)).
The trial court sentenced Saddozai to a term of 21 years to life on
his attempted murder conviction and various enhancements, as well as
an additional five-year term enhancement for a prior strike offense
under section 667, subdivision (a). The trial court also imposed a
consecutive sentence of 12 years for his burglary conviction but stayed
punishment of Saddozai’s stalking conviction.
DISCUSSION
A.
Saddozai argues his conviction for attempted murder is not
supported by substantial evidence. After reviewing the record for
substantial evidence in the light most favorable to the judgment (People
v. Rodriguez (1999) 20 Cal.4th 1, 11), we reject this claim.
1.
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a); People v. Smith (2005) 37 Cal.4th 733,
739 (Smith) [“intent” and “malice” are essentially the same concepts,
1 Undesignated statutory references are to the Penal Code.
5
express malice requires showing assailant desired or knew to a
substantial certainty that death would occur].) “Attempted murder
requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.” (People v.
Lee (2003) 31 Cal.4th 613, 623.) “Because direct evidence of a
defendant’s intent rarely exists, intent may be inferred from the
circumstances of the crime and the defendant’s acts.” (People v.
Sanchez (2016) 63 Cal.4th 411, 457.) )
Here, Saddozai made his intentions clear through both his
actions and words. As he chased Doe with a knife across the apartment
complex, he yelled, “I’m going to get you.” He tried to force his way into
the office where Doe had sought refuge, despite Doe’s pleas to leave her
alone. Then, still in a rage, he brandished his knife to another
apartment resident and angrily said he was “gonna kill that bitch.”
(People v. Morales (1992) 5 Cal.App.4th 917, 925-926 [defendant’s
statement of an intention to kill is sufficient to prove intent].)
Saddozai’s veiled threats to Doe also support an intent to kill.
(Cf. People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1188 (Hajek).)
Saddozai previously told Doe that she was evil, that if she was gone, no
one would miss her, that “god will see that you burn in hell,” and that
“If I can’t have you, no one will.” These threats take on added meaning
given the ample evidence that Saddozai was angry when Doe ended
their relationship. (See Smith, supra, 37 Cal.4th at p. 742 [“where
motive is shown, such evidence will usually be probative of proof of
intent to kill”].) Viewing the evidence in a light most favorable to the
People, a jury could reasonably conclude Saddozai’s intended to kill
Doe.
6
Saddozai’s claim that he brought Doe flowers, evidencing his
intent to reconcile with her rather than kill her, does not compel a
different result. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347
[facts that tend to support a contrary inference does not require
reversing a conviction under a review for substantial evidence].)
2.
Saddozai next contends he did not commit an overt act because
he never stabbed Doe with the knife or got close enough to kill her.
“ ‘Preparation alone is not enough, there must be some
appreciable fragment of the crime committed[] [and] it must be in such
progress that it will be consummated unless interrupted by
circumstances independent of the will of the attempter.’ ” (Morales,
supra, 5 Cal.App.4th at p. 925.) But there is no requirement “that the
overt act be the last possible step prior to the commission of the crime,”
and the cases Saddozai cites—attempted murder convictions in which
defendants stabbed the victims who later survived their attacks—do
not alter that principle. (Id. at p. 926; see, e.g., People v. Avila (2009) 46
Cal.4th 680, 701-702 [repeated stab wounds alone constituted
substantial evidence of intent to kill]; People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1552 [same].) Instead, when a defendant’s intent is
clearly shown, “slight acts [performed] in furtherance of a crime will
constitute an attempt.” (Morales, supra, 5 Cal.App.4th at p. 926.)
Here, we have more than the requisite slight acts. Saddozai
chased Doe with a knife and declared his intention to kill her. (See id.
at pp. 926–927.) He continued to pursue Doe even though she ran
away. Saddozai only abandoned his efforts after Doe locked herself in
the leasing office, he was unable to force his way in, and another
7
apartment resident (who Saddozai admitted terrified him) intervened.
Contrary to Saddozai’s assertions, his actions were not equivocal or
analogous to the defendant’s in People v. Miller (1935) 2 Cal.2d 527.
(Id. at pp. 529, 532 [no certainty in whether defendant would carry out
a threat to kill where after loading a rifle, defendant walked directly
toward a third-party rather than chasing the intended victim and
relinquished the rifle].) A jury could reasonably conclude that Saddozai
would have completed the murder had Doe not escaped. (See Smith,
supra, 37 Cal.4th at pp. 740-741 [abandoning efforts to kill “ ‘ “out of
necessity or fear does not compel the conclusion that he lacked the
animus to kill in the first instance” ’ ”].)
While Saddozai points to conflicting evidence that he did not have
a knife during the chase, several apartment residents saw him carrying
a knife. It is the jury’s job to resolve conflicts in evidence. (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) There was sufficient evidence for
the jury to find Saddozai took concrete steps toward killing Doe.
B.
Sadozzai also argues his premeditation enhancement is
unsupported by the evidence because he merely wanted to reconcile
with Doe and did not deliberately plan to kill her. (§ 188.) We are
unpersuaded.
Premeditation requires finding the defendant decided in advance
to kill, after careful thought and weighing of considerations. (People v.
Jurado (2006) 38 Cal.4th 72, 118.) “A reviewing court normally
considers three kinds of evidence to determine whether a finding of
premeditation and deliberation is adequately supported—preexisting
8
motive, planning activity, and manner of killing.” (Ibid.) Ample
evidence supports these factors here.
The record shows Saddozai had a preexisting motive. Saddozai
was angry and jealous towards Doe for ending their relationship. He
had a history of violence with Doe, and, after his release from prison,
Saddozai repeatedly told Doe that if he could not have her, no one
could. He left Doe numerous voice and text messages, sometimes
claiming he could not live without her and sometimes calling her an
evil person who will “burn in hell” and threatening her that “When I
get out of here . . when I leave this place you are going to regret it.” He
further blamed her for abandoning his belongings in storage and
leaving him homeless. The jury could reasonably infer that Saddozai
was motivated to kill Doe rather than reconcile with her, based on his
failure to accept that their relationship had ended, his obsession with
Doe, his past abuse of her, and his continued anger toward her.
The record also demonstrates planning. After breaking into
Doe’s apartment, looking through her belongings, and seeing men’s
clothing in her closet, Saddozai admittedly grew angry, threw the
clothes on the floor and kicked them under her bed. Saddozai testified
to his belief Doe was cheating on him, and he wrote “You cheat” in
Doe’s bible. Saddozai removed a stainless-steel knife from a kitchen
drawer and placed it on the counter, while also repositioning and
prominently displaying a cleaver left in the drawer. When he heard
Doe open the door, Saddozai hid behind her bed. (C.f. People v. Boyette
(2002) 29 Cal.4th 381, 435 [“ ‘[P]roof of lying-in-wait . . . acts as the
functional equivalent of proof of premeditation, deliberation and intent
to kill’ ”].) There is sufficient evidence that the attempted attack on
9
Doe was premeditated. (See Jurado, supra, 38 Cal.4th at p. 119
[reviewing evidence of concerning the manner of killing is unnecessary
where evidence of motive and planning activity is sufficient].)
Saddozai again argues that he wanted to reconcile with Doe, as
shown by the fact that he brought her flowers. Saddozai simply ignores
the record and our standard of review. The flowers fit a pattern of
manipulation in which Saddozai would threaten and abuse Doe, then
bring her flowers, tell her she was beautiful, and promise to behave.
Viewing the record in a light favorable to the prosecution, as we must,
the flowers at most show that he broke into her apartment intending to
manipulate, harass, or stalk her, then grew angry and formed his to
kill her after he found the men’s clothes. Whether he formed the plan to
kill before or after entering the apartment, the record supports
premeditation.
C.
Saddozai claims his counsel was ineffective by failing to object to
Doe’s exclamations Saddozai was going to kill her as irrelevant and by
failing to object to the prosecutor’s argument that these exclamations
proved Saddozai intended to kill Doe. We disagree.
1.
At trial, Doe’s apartment building manager, Maybelline Luz, and
a driver parked in the apartment parking lot, Domingo Castrillo, both
testified that Doe screamed “he’s gonna kill me” while she was being
chased by Saddozai. Saddozai’s trial counsel objected to these
statements as hearsay. The trial court overruled this objection and
properly admitted the statements under the spontaneous statement
exception. (Evid. Code, § 1240 [“(a) Purports to narrate, describe, or
10
explain an act, condition, or event perceived by the declarant; and (b)
Was made spontaneously while the declarant was under the stress of
excitement caused by such perception”].)
2.
We reject Saddozai’s argument that Doe’s statement was
irrelevant. Saddozai’s own testimony made it relevant. He testified
that Doe ran away from him, not because she thought he would kill
her, but because she “got hysterical” about his previous infidelities and
her daughter who died. (Rufo v. Simpson (2001) 86 Cal.App.4th 573,
595 [allowing evidence of state of mind where there is a legitimate
disputed issue]; People v. Garceau (1993) 6 Cal.4th 140, 176-177 [trial
court retain broad discretion when determining relevance of evidence].)
Saddozai’s counsel cannot be faulted for failing to make a relevance
objection. (People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not
render ineffective assistance by failing to make motions or objections
that counsel reasonably determines would be futile”].)
Nor does Saddozai demonstrate prejudice resulting from the lack
of a limiting instruction. Evidence of Doe’s fear of Saddozai was
already presented to the jury through Luz’s and Castrillo’s non-hearsay
observations of Doe’s behavior: she was crying, screaming, and
distressed while running away from Saddozai. And although Saddozai
suggests the prosecutor relied on her statements to establish Saddozai’s
intent, the prosecutor emphasized Saddozai’s own words, “I’m going to
kill her,” as “the most powerful evidence you can possibly have of what
the defendant’s intention was.” Even assuming the jury could have
viewed Doe’s statements as evidence of Saddozai’s intent rather than
her fear, Saddozai’s statements were far more damaging to his case.
11
(See Morales, supra, 5 Cal.App.4th at pp. 925-926.) The prosecutor’s
focus on Doe’s actions—fleeing and hiding from Saddozai—and minimal
reference to her statements further undermine Saddozai’s claim the
statements were critical to proving Saddozai’s intent. We see no
reasonable probability a limiting instruction or objection to the
prosecutor’s argument would have resulted in a better outcome for
Saddozai.
D.
Saddozai next argues that the trial court should not have
admitted statements made to a 911 dispatcher by Markita Vasquez, a
secretary in the leasing office who did not testify at trial. He claims the
statements were inadmissible hearsay and that their admission
violated his constitutional right to confront a witness under Crawford
v. Washington (2004) 541 U.S. 36. We disagree.
1.
At trial, Luz testified that Doe entered the leasing office where
she and Vasquez worked, screaming at the top of her lungs and
pleading for assistance. Luz told her secretary, Vasquez, to call 911.
On the recording with the 911 dispatcher, Vasquez relayed Doe’s
statements that she was being chased by her ex-boyfriend, who had a
knife in his hand. Vasquez also explained, “[Doe] said she came home
and he was inside of her apartment.”
The trial court admitted the 911 audio recording, finding both
Doe and Vasquez’s statements were spontaneous exceptions to the
hearsay rule. (Evid. Code, § 1240.)
12
2.
We will uphold the trial court’s factual determinations if
supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th
226, 236.) We review the decision to admit the evidence for an abuse of
discretion. (Ibid.)
Substantial evidence supports the court’s finding that Vasquez
was under stress. (Evid. Code, § 1240 [spontaneous statement requires
an event that causes nervous excitement that renders the statement
spontaneous].) A startling event had just occurred: Doe ran into her
office screaming for help, and Saddozai then attempted to force his way
into the office. As a result, Vasquez herself was screaming, frantic,
“very emotional, very afraid,” and hid behind Luz’s chair. In the heat of
the moment, she had no reason to describe the situation falsely. (See
People v. Farmer (1989) 47 Cal.3d 888, 903-904 [911 call properly
admitted where injured declarant had little opportunity or incentive to
fabricate answers to questions] (Farmer).)
Second, substantial evidence supports the court’s finding that the
statement purported to “narrate, describe, or explain an act” perceived
by Vasquez. (Evid. Code, § 1240.) Saddozai points out, correctly, that
Vasquez did not witness what happened between Doe and Saddozai.
Saddozai mistakenly relies on Ungefug v. D’Ambrosia (1967) 250
Cal.App.2d 61. In Ungefug, there was no foundation for a spontaneous
statement because the declarant—a voice in a crowd—was unidentified,
and it was mere speculation whether he or she even witnessed the
event. (Id. at p. 68.) Here, Vasquez was identified, and she directly
observed Doe running into her office, falling to the ground, crying
hysterically, and begging for help because Saddozai was chasing Doe
13
with a knife. Vasquez explained that situation to the 911 operator.
(See Farmer, supra, 47 Cal.3d at pp. 904-905.) The court did not abuse
its discretion by admitting the evidence.
3.
We reject Saddozai’s argument that Vasquez’s statements to the
911 operator violated his Sixth Amendment right to confront Vasquez
at trial. We review the issue de novo. (People v. Nelson (2010) 190
Cal.App.4th 1453, 1466.)
Under the Sixth Amendment to the federal Constitution, a
defendant has the right to confront the witnesses against him. (People
v. Nelson, supra, 190 Cal.App.4th at p. 1463.) The admission of a
“testimonial” hearsay statement by a declarant who does not appear for
cross-examination at trial violates the confrontation clause unless the
witness is unavailable to testify at trial and the defendant had a prior
opportunity to cross-examine the witness. (Ibid.) But the
confrontation clause does not bar admission of hearsay statements that
are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823–
826 (Davis).)
“Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.” (Davis v. Washington, supra, 547 U.S. at p. 822.)
14
Vasquez’s statements to the 911 operator were nontestimonial.
She made the statements during an ongoing emergency. Indeed, she
asked the 911 dispatcher to send police to their building because Doe
ran into the office and someone was chasing her. The questions the
dispatcher asked Vasquez—the name of the person pursuing Doe, Doe’s
relationship to the person, what kind of object Saddozai had in his
hand, where was Saddozai located at the time of the call—were
necessary for the police “ ‘ “to assess the situation, the threat to their
own safety . . . possible danger to the potential victim,” ’ ” the public,
and to determine whether “ ‘they would be encountering a violent
felon.’ ” (Michigan v. Bryant (2011) 562 U.S. 344, 376.)
Saddozai claims the emergency had ended because Vasquez’s call
to 911 occurred after Saddozai had already left the leasing office and
Doe had reached a place of safety. No reasonable person would assume
the emergency had ended. Saddozai was somewhere outside, armed
with a knife. There was no reason to believe he would not again try to
force his way into the office, attack Doe if she left the office, or harm
somebody else. (See Michigan v. Bryant, supra, 562 U.S. at p. 377.)
E.
We reject Saddozai’s additional challenge to the admission of
Doe’s statements to a police officer as spontaneous statements.
Following the attack on February 8, an officer recorded an
interview with Doe. The recording contained Doe’s statements
describing both the attack as well as her emotions and fears about
Saddozai, Saddozai’s text messages, his phone number, and emails.
The prosecutor made a pre-trial motion to admit the recording as a
spontaneous statement, and the trial court ruled that only those
15
statements describing the February 8 events were admissible. The
prosecutor planned to redact the recording accordingly before playing it
at trial, but there is nothing in the record confirming that this
happened. At trial, the recording was played in full over Saddozai’s
objection.
To the extent statements exceeding the trial court’s ruling were
erroneously admitted, the error was not prejudicial under any
standard. (Chapman v. California (1967) 386 U.S.18, 24 [harmless
beyond a reasonable doubt under federal standard]; People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson) [reasonable probability of a more
favorable outcome under state standard].) As before, the recorded
statements duplicated testimony and evidence presented at trial. (See
People v. Burney (2009) 47 Cal.4th 203, 232.) Doe’s statement that she
was scared when she saw Saddozai and screamed at the top of her
lungs echoed her own testimony, as well as Luz’s and Castrillo’s. Doe’s
discussion of Saddozai’s daily text and voice messages simply described
the frequency and number of the messages that were independently
admitted into evidence. Her statement that Saddozai knew she lived
alone and her feelings of vulnerability similarly confirmed her prior
testimony that she lived alone and was worried Saddozai would find
her. Saddozai attempts to demonstrate prejudice from this alleged
error by rehashing his previous arguments. We have already rejected
them, and they are no more persuasive here.
F.
Saddozai contends the trial court erred by allowing the People to
impeach him with an unsanitized description of his prior felony
conviction for statutory rape (§ 289, subd. (h)) after deeming it a crime
16
of moral turpitude. (Evid. Code, § 788; People v. Castro (1985) 38
Cal.3d 301, 314-315 [prior felony conviction involving crimes of moral
turpitude appropriately used for impeachment purposes if admissible
under Evid. Code, § 352].) Resolving whether statutory rape is a crime
of moral turpitude is unnecessary. Even assuming the trial court
erred, it is not reasonably probable Saddozai would have obtained a
more favorable result in the absence of the error. (Castro, supra, 38
Cal.3d at p. 319; Watson, supra, 46 Cal.2d at p. 836.)
The trial court instructed the jury to consider Saddozai’s prior
conviction for the limited purpose of evaluating his credibility, an
instruction we presume the jury followed. (People v. Sanchez (2001) 26
Cal.4th 834, 852.) The prosecutor relied primarily on Saddozai’s prior
text and voice messages and letters to attack his credibility and, in
arguments to the jury, emphasized Saddozai’s inconsistent statements
and claims that officers were fabricating evidence against him. The
prosecutor questioned Saddozai only once about this prior conviction
and without conveying any underlying facts.
Saddozai has not demonstrated prejudice. He says the
prosecutor improperly used the offense to demonstrate he cheated on
her. But he admitted—repeatedly—that he cheated on her in his own
direct testimony. Given he volunteered the information, as well as the
minimal attention placed on the prior conviction, the outcome would
not have been more favorable had the court excluded it.
We do not examine Saddozai’s claim the trial court failed to
sanitize the conviction because he forfeited the issue. The trial court
did not rule on Saddozai’s motion for that relief, Saddozai did nothing
to secure a ruling, and that failure precludes him from now raising the
17
issue on appeal. (People v. Brewer (2000) 81 Cal.App.4th 442, 461
[failure to secure ruling on a motion waives the issue on appeal].)
Saddozai’s theory that this failure constituted ineffective assistance of
counsel, belatedly raised in his reply brief, also fails because, for the
reasons set forth above, he cannot demonstrate any prejudice. (See
People v. Kipp (1998) 18 Cal.4th 349, 366.)
G.
Saddozai claims the trial court erroneously admitted evidence of
his uncharged acts of domestic violence against Doe. We disagree.
1.
While evidence of prior criminal acts is ordinarily inadmissible to
show a defendant’s criminal disposition, there are specific exceptions in
cases involving domestic violence. (Evid. Code, §§ 1101, subd. (a), 1109,
subds. (a), (b), (d)(3); § 13700, subds. (a), (b) [“domestic violence”
includes abuse—intentional or reckless causing of bodily injury or
placing person in reasonable apprehension of serious bodily injury—
committed against a former girlfriend].) “[I]n a criminal action in
which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic
violence is not made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.” (Evid. Code, §§ 1109, subd.
(a)(1), 352.) The trial court must determine whether the probative
value of the evidence 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.’ ” (People v. Kerley (2018) 23 Cal.App.5th 513,
18
531–532.) We review this determination for an abuse of discretion.
(Ibid.)
2.
Before trial, the prosecutor moved to admit testimony about
Saddozai’s prior acts of domestic violence dating back to 2000 against
Doe and a previous girlfriend. (See Evid. Code, §§ 352, 1101, subd. (b),
1109.) The trial court excluded the uncharged acts against Saddozai’s
previous girlfriend because they were greater than ten years old and
inadmissible under section 352. But relying on Evidence Code section
1109 and People v. Zack (1986) 184 Cal.App.3d 409, it allowed evidence
of prior violence between Saddozai and Doe. (Id. at p. 415 [evidence of
prior assaults is admissible “when offered on disputed issues, e.g.,
identity, intent, motive, etcetera. . . based solely upon the consideration
of identical perpetrator and victim without resort to a ‘distinctive
modus operandi’ analysis of other factors”].)
3.
Challenging this ruling, Saddozai contends the prior acts—
repeated slapping, punching, kicking Doe, knocking out her teeth—bore
little similarity to his charged offenses. But admissibility under
Evidence Code section 1109 does not require a high degree of similarity
between the prior acts and charged offenses. (Cf. People v. Frazier
(2001) 89 Cal.App.4th 30, 40-41 [interpreting Evid. Code, § 1108
similar statutory language authorizing propensity language in sexual
offense cases].) Here, the violent acts showed Saddozai’s continuous
pattern of abuse, indicating his motive and intent to hurt Doe and
demonstrating his propensity to violently attack her. They were
further useful for the jury to evaluate the conflicting testimony (and
19
related witness credibility) about why she ran from Saddozai, as well as
Saddozai’s testimony that he simply wanted to reconcile with Doe.
(C.f. Zack, supra, 184 Cal.App.3d at p. 415 [defendant “not entitled to
have the jury determine his guilt or innocence on a false presentation
that his and the victim’s relationship and their parting were peaceful
and friendly”].)
Contrary to Saddozai’s assertions, his prior conduct was not too
remote in time to lack any probative value. (People v. Daniels (2009)
176 Cal.App.4th 304, 316.) For example, Saddozai challenges the
admission of a 2013 incident in which he cut off all of Doe’s hair.
However, this occurred three years before the charged offenses, and
therefore fell within the 10-year statutory limit for admitting this
evidence. (See Evid. Code, § 1109, subd. (e).) To the extent that
Saddozai further claims there was a significant gap between his prior
attacks in 2015 and the current offense, it may be partially explained
by the fact that he was in prison or the Philippines in the interim.
(See People v. Daniels, supra, 176 Cal.App.4th at pp. 316-317 [15-year
gap between prior act and charge offense not too remote where
defendant incarcerated for significant portion of that time].)
The damage to Saddozai’s case from these prior acts, particularly
kicking her down the stairs while she was pregnant, does not make this
evidence unduly prejudicial or inflammatory. (See People v. Daniels,
supra, 176 Cal.App.4th at p. 317 [evidence is unduly prejudicial if it
tends to evoke emotional bias against the defendant with little effect on
the issues].) This prior attack was highly probative of whether
Saddozai intended to assault or kill her and his capacity to do so. (C.f.
Zack, supra, 184 Cal.App.3d at p. 415 [inferring intent to kill based on
20
past domestic violence against the same victim].) The trial court did
not abuse its discretion admitting this evidence and did not violate
Saddozai’s due process rights. (People v. Brown (2003) 31 Cal.4th 518,
545 [the “routine application of state evidentiary law does not implicate
defendant’s constitutional rights”].)
H.
We also reject Saddozai’s challenges to the admission of expert
testimony on intimate partner battering.
1.
Before trial, the prosecutor proposed Sergeant Linda Gibbons as
an expert witness to testify about intimate partner battering to help
the jury understand the effects of physical abuse in domestic violence
and victim behavior. The trial court agreed, granted the prosecutor’s
request, and later overruled Saddozai’s objection to Gibbons’
qualifications as an expert. Saddozai contends the trial court abused
its discretion by allowing Gibbons to testify as an expert witness
because she had no relevant qualifications, such as a degree in
psychology. (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063
(Wallace) [rulings on proposed expert qualifications reviewed for an
abuse of discretion].) This argument lacks merit.
Witnesses may testify as experts if they have “special knowledge,
skill, experience, training, or education sufficient to qualify” them, as
demonstrated through “any otherwise admissible evidence” including
their own testimony. (Evid. Code, § 720, subds. (a), (b).) Gibbons
testified to her extensive training and experience in domestic violence
cases—her position as a detective sergeant, her work on approximately
one thousand domestic violence cases, her supervision of a bureau
21
investigating sexual assault and domestic violence cases, and her
qualification as an expert in intimate partner battering in ten prior
court cases. (See People v. Williams (1997) 16 Cal.4th 153, 195
[previous testimony as an expert is a factor supporting qualification as
an expert witness].) The trial court acted well within its broad
discretion by finding her “more than qualified” to testify as an expert
witness. (Compare with Miller v. Los Angeles County Flood Control
Dist. (1973) 8 Cal.3d 689, 701 [witness not qualified as an expert where
he lacked any familiarity and close involvement with practices at
issue.)
Gibbons’ lack of a degree in psychology is not fatal to her expert
qualifications. (See Wallace, supra, 44 Cal.4th at pp. 1062-1063.) As
Saddozai acknowledges, a person may qualify as an expert through
experience. Complaints about the degree of an expert’s knowledge is an
issue of weight, rather than admissibility. (People v. Bolin (1998) 18
Cal.4th 297, 322.) Gibbons disclosed that she did not have any formal
degree, and the jury was entitled to accord her testimony the
appropriate weight.
2.
Saddozai next claims intimate partner battering testimony was
irrelevant, and its admission violated his rights to due process. We find
no abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45
[standard of review for admitting expert testimony]; People v. Heard
(2003) 31 Cal.4th 946, 973.)
Expert testimony on “intimate partner battering and its effects,
including the nature and effect of physical, emotion, or mental abuse on
the beliefs, perceptions, or behavior of victims of domestic violence” is
22
admissible if there is sufficient evidence that intimate partner
battering applies to the person involved, and the testimony is probative
of a contested issue. (Evid. Code, § 1107, subd. (a); People v. Gadlin
(2000) 78 Cal.App.4th 587, 592.) It is not, as Saddozai suggests, only
admissible to address circumstances where a victim has recanted prior
statements about abuse at trial and reunited with the batterer.
(People v. Morgan (1997) 58 Cal.App.4th 1210, 1214.) Rather, the
testimony is generally relevant and admissible “to explain that it is
common for people who have been physically and mentally abused to
act in ways that may be difficult for a layperson to understand.”
(People v. Riggs (2008) 44 Cal.4th 248, 293.) And courts admit this
evidence to address juror opinions about a victim’s credibility based on
commonly held misconceptions about victims—that severely abused
victims would not remain with their abusers. Doe remained in the
relationship despite the violence, covered up her injuries with make-up,
and did not report these incidents to her co-workers, friends, or medical
professionals when she sought treatment for some of her injuries. After
Saddozai choked and punched her in her car, she told police they were
only having a loud, verbal argument. However, her trial testimony on
this incident described physical violence.
A jury could have concluded that Doe was lying about her abusive
relationship with Saddozai, and the trial court appropriately found
Doe’s conduct counterintuitive for the jury to understand. (See Brown,
supra, 33 Cal.4th at p. 906 [“When the trial testimony of an alleged
victim of domestic violence is inconsistent with what the victim had
earlier told the police, the jurors may well assume that the victim is an
untruthful or unreliable witness”].) Saddozai’s counsel fostered these
23
misconceptions by questioning Doe about her failure to leave Saddozai
after severe incidents of physical abuse. In his closing argument,
Saddozai’s counsel claimed Doe stayed with Saddozai despite some
“very horrendous type[s] of abuse” because “perhaps it wasn’t as bad as
she wanted. . . to make us believe . . . This was somebody choosing to go
back and acting logically, which means pass[ing] doubt on the
description she’s given here in this court.” Gibbons’ testimony that
victims often experience a cycle of violence—praise and abuse by their
batterers—and frequently remain with abusers because they fear
additional violence informed the jury that Doe’s behavior was not
unusual. She further explained victims are also too embarrassed to tell
others about the abuse and go to great lengths to hide it. This
testimony accurately explained Doe’s behavior, and admitting this
testimony was not an abuse of discretion or violate his due process
rights. (See Brown, supra, 31 Cal.4th at p. 545.)
I.
Saddozai claims section 654 barred the court from imposing a
consecutive sentence for his burglary offense because it involved the
same course of conduct as his attempted murder offense, for which he
received an indeterminate sentence. We disagree.
Section 654 “precludes multiple punishment for a single act or
omission, or an indivisible course of conduct.” (People v. Deloza (1998)
18 Cal.4th 585, 591; § 654, subd. (a) [where an act is “punishable in
different ways by different provisions of law, . . . in no case shall the act
. . . be punished under more than one provision”].) If the offense
“involves more than a single act—i.e., a course of conduct,” we assess
whether that conduct reflects a single or multiple intents and
24
objectives. (People v. Corpening (2016) 2 Cal.5th 307, 311-312.) “ ‘If [a
defendant] entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be
punished for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts
of an otherwise indivisible course of conduct.’ ” (People v. Leonard
(2014) 228 Cal.App.4th 465, 499.) A trial court has broad latitude
when determining whether section 654 applies, and we review its
decision in the light most favorable to the respondent. (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.)
Substantial evidence supports the court’s finding Saddozai’s
conduct underlying his burglary offense and attempted murder are
divisible. (See People v. Jones, supra, 103 Cal.App.4th at p. 1143
[“findings will not be reversed on appeal if there is any substantial
evidence to support them”].) The court reasonably concluded Saddozai
completed his burglary offense when Saddozai entered Doe’s apartment
with the intent to stalk her. (§ 646.9, subd. (e) [identifying elements for
stalking]; People v. Munguia (2016) 7 Cal.App.5th 103, 111.) Saddozai
engaged in a sophisticated plan to find her apartment, and used a
spoofing application to impersonate a police officer to verify Doe’s
undisclosed address. He broke into Doe’s apartment through the
balcony door to torment her, demonstrated through his daily
threatening voice and text messages. At one point, Saddozai texted his
cousin to seek advice about how to confront Doe about potentially
cheating on him.
The evidence supports a finding that, once inside the apartment,
Saddozai changed his plan. The attempted murder occurred after
25
Saddozai spent several hours in Doe’s apartment, became enraged by
finding men’s clothing in her closet, and armed himself with a knife
from the kitchen. Separate punishments for Saddozai’s burglary and
attempted murder offenses was appropriate under these circumstances.
J.
We reject Saddozai’s claim the trial court abused its discretion by
refusing to strike his prior 2002 conviction under section 1385 and
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, for sentencing
purposes. (People v. Carmony (2004) 33 Cal.4th 367, 378 [abuse of
discretion standard applies to trial court’s refusal to strike the prior
felony conviction allegation].)
The Three Strikes initiative established sentencing requirements
“to be applied in every case where the defendant has at least one
qualifying strike”—a prior serious and/or violent felony—unless the
sentencing court concluded that, for articulable reasons, the defendant
fell outside of the Three Strikes scheme. (People v. Strong (2001) 87
Cal. App.4th 328, 337.) Section 1385 permits trial courts to strike a
prior felony conviction for sentencing purposes under the Three Strikes
law. (Romero, supra, 13 Cal.4th at p. 504; § 1385, subd. (a) [court may
“order an action to be dismissed. The reasons for the dismissal shall be
stated orally on the record”].) When exercising this discretion, the
court must consider “whether, in light of the nature and circumstances
of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit.”
(People v. Williams (1998) 17 Cal.4th 148, 161.)
26
The trial court properly considered these factors before refusing
to strike Saddozai’s prior conviction. (See People v. Carmony, supra, 33
Cal.4th at p. 378 [finding abuse of discretion if the trial court
considered impermissible factors when declining to dismiss a prior
felony or being unaware of its discretion].) It acknowledged Saddozai’s
2002 conviction occurred when he was younger but found Saddozai did
not have a “legally blameless life in the interim,” highlighting his
continuous pattern of committing offenses, false imprisonment in a
crime involving sexual assault in 2005, and sexual penetration of a
minor in 2015. Significantly, Saddozai committed the offenses at issue
while on parole, mere days after leaving prison. In terms of Saddozai’s
character, the trial court found Saddozai engaged in remorseless
conduct that flouted the rights of others and the criminal justice
system, including absconding to the Philippines during the prosecution
for his 2015 offense and repeatedly violating restraining orders. The
trial court’s ruling finding Saddozai well within the scope of the Three
Strikes law was not an abuse of discretion. (Ibid. [affirming refusal to
strike “ ‘[w]here the record demonstrates that the trial court balanced
the relevant facts and reached an impartial decision in conformity with
the spirit of the law’ ”].)
K.
The parties agree that Saddozai is entitled to remand for
resentencing so the trial court can consider striking the five-year
sentencing term for his prior felony enhancement under section 667,
subdivision (a). (See § 667, subd. (a); former § 1385, subd. (b); Stats.
2018, ch. 1013, § 2, effective January 1, 2019 [eliminating statutory
prohibition on striking or dismissing prior serious felony conviction for
27
sentencing purposes].) The change in law applies retroactively to
judgments of conviction, like Saddozai’s, that were not final by January
1, 2019. (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) We
agree remand is necessary here.
L.
Saddozai contends the cumulative effect of errors deprived him
of due process and a fair trial. (People v. Williams (2009) 170
Cal.App.4th 587, 646 [review of each alleged error to assess cumulative
effect and whether jury would have rendered more favorable verdict in
their absence].) Any identified or perceived errors were not prejudicial,
either individually or cumulatively, and do not warrant reversal of the
judgment.
DISPOSITION
The convictions are affirmed. We remand to allow the trial court
to determine whether to exercise its discretion to strike the prior
serious felony enhancement imposed under Penal Code section 667,
subdivision (a).
28
_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
SELIGMAN, J.*
A154894
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29