People v. Jones CA4/1 ( 2024 )

Filed 10/11/24 P. v. Jones CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084672
Plaintiff and Respondent,
v. (Super. Ct. No. FVI23000814)
KARDELL JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Miriam I. Morton, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Lynne G. McGinnis, Deputy Attorneys General, for
Plaintiff and Respondent.
MEMORANDUM OPINION
A jury convicted Kardell Jones of battery on a person with whom he
had a dating relationship (Pen. Code, § 243, subd. (e)(1)) and another count.
Jones appeals the battery conviction, arguing the trial court prejudicially
erred when it permitted certified conviction records—as opposed to live
testimony—of Jones’ other acts of domestic violence as propensity evidence
under Evidence Code section 1109. Although Jones contends People v.
Robinson (2024) 99 Cal.App.5th 1345, 1356, was “wrongly decided,” we agree
with its reasoning and holding that “evidence” in section 1109 includes
certified conviction records. We affirm by memorandum opinion. (Cal. Stds.
Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851-855.)
I.
Section 1109 “carved out specific exceptions to the ban on propensity
evidence” for defendants charged with domestic violence. (People v.
Merchant (2019) 40 Cal.App.5th 1179, 1192.) For those defendants,
“evidence” of their other acts of domestic violence is admissible to establish a
propensity for domestic violence subject to balancing its probative value
under section 352. (Evid. Code, § 1109(a).) “The statute reflects the
Legislature’s determination that in domestic violence cases, similar prior
offenses are uniquely probative of a defendant’s guilt on a later occasion.”
(Merchant, at p. 1192.)
We review the admission of evidence under section 1109 for abuse of
discretion (People v. Johnson (2010) 185 Cal.App.4th 520, 531) and questions
of law de novo (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712).
II.
A.
Robinson examined the exact question before us—whether certified
conviction records can be used as evidence of other domestic violence under
section 1109—and answered it in the affirmative. (Robinson, 99 Cal.App.5th
at p. 1356.) It agreed with People v. Wesson (2006) 138 Cal.App.4th 959,
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which addressed the same issue of documentary evidence versus live
testimony under section 1108—which similarly allows propensity evidence of
other sexual offenses where the defendant is charged with a sexual offense.
(Robinson, at p. 1356.) Robinson noted that both sections use “the broader
word ‘evidence’ rather than the narrower word ‘testimony.’” (Ibid.)
“Evidence” includes “writings.” (Id. at pp. 1355-1356; § 140.) Certified
records of conviction are writings and thus are evidence. (Robinson, at
p. 1356.) And under section 452.5, an “official record of conviction certified”
is admissible to prove the commission of a criminal offense or other act in the
record. (§ 452.5(b)(1).) Thus, “a trial court does not abuse its discretion when
it permits the prosecution to introduce evidence of a prior domestic violence
conviction under section 1109 through a certified record of conviction, rather
than through live testimony by the alleged victim.” (Robinson, at p. 1356.)
B.
Jones offers four reasons why we “should not follow the holdings” in
Robinson and Wesson. None persuades us.
First, relying on the legislative history for section 452.5, Jones contends
“the Legislature did not intend to permit the admission of certified conviction
records to prove up a prior bad act in a domestic violence case.” We start
with the words of the statute itself, as they are often “the best indicator of the
lawmakers’ intent.” (People v. Goodloe (1995) 37 Cal.App.4th 485, 490.) “If
those words are clear and unambiguous, we may not modify them to
accomplish a purpose not apparent on the face of the statute or from its
legislative history.” (Id. at pp. 490-491.)
“Here, the language of Evidence Code section 452.5, subdivision (b) is
clear and unambiguous.” (People v. Duran (2002) 97 Cal.App.4th 1448,
1461.) By its terms, “a certified official record of conviction is admissible to
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prove not only the fact of a conviction, but also that the offense reflected in
the record occurred.” (Ibid.) Indeed, the legislative history Jones cites
explains that “[t]his bill . . . would authorize the admission in evidence of
these records to prove specified facts.” (Legis. Counsel’s Dig., Assem. Bill
No. 1387 (1995-1996 Reg. Sess.), Stats. 1996, ch. 642, § 3.) So using certified
conviction records as evidence of prior domestic violence falls squarely within
section 452.5’s express purpose.
Second, because section 1109(b) requires the prosecutor to “disclose the
evidence to the defendant, including statements of witnesses or a summary of
the substance of any testimony that is expected to be offered,” Jones claims it
“anticipates the admission of prior act evidence through live testimony from
witnesses, not through the use of documentary evidence.” Yet as the People
note, the list of items that must be disclosed under subdivision (b) is not
exhaustive because it is preceded by the word “included,” which “is ordinarily
a word of enlargement and not of limitation.” (People v. Western Air Lines,
Inc. (1954) 42 Cal.2d 621, 639.) Nor does section 1109 limit the type of
“evidence” that may be used.
Third, Jones concedes the term “evidence” includes “writings” (§ 140),
yet seems to suggest the certified conviction records here were still
inadmissible because he objected to them as unduly prejudicial under
section 352. The trial court, however, expressly considered section 352 when
it ruled that “[b]oth convictions can come in” but without “any discussion as
to who the victims of those cases are.” Notably, Jones appeals only the use of
certified conviction records over live testimony—not the court’s section 352
analysis. While we agree not all “evidence” is admissible, (Cal. Law Revision
Com. com., § 140), Jones does not convince us the certified conviction records
here were inadmissible on this basis.
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Fourth, Jones argues section 1109 cannot have “meant for prosecutors
to be able to prove up prior act evidence” through certified conviction records
because then “there would be no need to instruct jurors with CALCRIM
No. 852A.” CALCRIM No. 852A is the jury instruction used for section 1109
evidence. Jones declares CALCRIM No. 852A “irrelevant” because it requires
the People to prove the other domestic violence by a preponderance of the
evidence, but certified conviction records show that the defendant
“absolutely, and beyond a reasonable doubt, committed the prior act of
domestic violence.”
This argument, however, relies on an overly narrow reading of the
instruction. Section 1109 and CALCRIM No. 852A contemplate all types of
“evidence” being used to prove other domestic violence, some of which would
need to be proved by a preponderance of the evidence. And in all cases, the
instruction is still relevant to explain that, if the People meet that burden,
jurors “may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit domestic violence and, based on
that decision, also conclude that the defendant was likely to commit [and did
commit]” the charged domestic violence offense. (CALCRIM No. 852A.) That
conclusion, however, “is only one factor to consider” and “is not sufficient by
itself” to prove the defendant’s guilt; the People must still prove the charge
“beyond a reasonable doubt.” (Ibid.) CALCRIM No. 852A thus remains
relevant to explain how jurors may—but are not required to—use the
evidence and to emphasize the burden remains with the People to prove the
charged offense beyond a reasonable doubt.
In sum, we decline to part ways with Robinson and Wesson and instead
apply their holdings here. As a result, we conclude the trial court did not err
when it ruled the certified conviction records were admissible evidence under
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section 1109. And because we find no error, we need not reach Jones’
prejudice arguments.
III.
We affirm.
CASTILLO, J.
WE CONCUR:
KELETY, Acting P. J.
RUBIN, J.
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