People v. Acosta

Decision Date03 May 1999
Docket NumberNo. H017642,H017642
Citation84 Cal.Rptr.2d 370,71 Cal.App.4th 1206
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 71 Cal.App.4th 1206 71 Cal.App.4th 1206, 99 Cal. Daily Op. Serv. 3249, 1999 Daily Journal D.A.R. 4177 The PEOPLE, Plaintiff and Respondent, v. Martin Muniz ACOSTA, Defendant and Appellant.

Lori A. Quick, Esq. by Appointment of the Sixth District Appellate Program, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, David H. Rose, Deputy Atty. General, Ronald E. Niver, Deputy Atty. General, for Plaintiff and Respondent.

WUNDERLICH, J.

I. Statement of the Case

Defendant Martin Acosta appeals from a judgment entered after a jury found him guilty of threatening to commit a crime resulting in death or great bodily injury (Count 1), possession of a firearm by a felon (Count 2), possession of ammunition by a felon (Count 3), and resisting arrest (Count 4). The jury also found that defendant suffered two prior felonies that qualified as "strikes" under the "three strikes" law. (Pen.Code, § 667, subds. (b)--(i).)

On appeal, defendant claims the admission of prior acts of domestic violence under Evidence Code section 1109 compels reversal because that section violates his constitutional rights to due process and equal protection. He claims the court erroneously instructed the jury that prior acts could be proved and the jury could find him guilty by a preponderance of the evidence. He also claims the court erred in failing to limit the jury's consideration of his prior act to the current charge of domestic violence.

In addition, defendant claims the prosecutor was guilty of misconduct during closing argument in misstating the "reasonable doubt" standard. Last, he claims the court erroneously imposed consecutive sentences and that his total sentence constitutes cruel and unusual punishment.

We find no merit to these claims and affirm the judgment.

II. Facts

On January 20, 1997, Wilma Contreras called 911 to report that defendant, her boyfriend, had threatened to kill her. Officer William Murphy of the San Jose Police Department responded to the call. As he approached Contreras' residence, she ran from a street corner, yelling, frantically waving her arms, and crying hysterically. She told Murphy that defendant was going to kill her. She explained that they had argued after she saw him dancing with another woman. She said defendant later came home with a bag containing bullets and a gun. She saw him unzip the bag, observed a small handgun, and heard him load it. She said she was and remained frightened for her life. To Murphy it appeared Contreras had been drinking.

Murphy drove Contreras around the neighborhood looking for defendant at places where Contreras thought he might be found. When they returned to her home, they met Officer John Moutzouris of the San Jose Police Department.

Moutzouris had also responded to the 911 call. When he arrived, he saw defendant in the driveway. He waved his flashlight and shouted "San Jose police department. Stop," but defendant ran off. Moutzouris searched the surrounding neighborhood but was unable to find him and returned to the residence.

After Murphy returned, he and Moutzouris brought Contreras back inside her home, where her children and a friend Pamela Ortiz were waiting. At that time, Contreras showed the officers defendant's canvas bag and told them defendant had loaded a gun with ammunition from the bag. Inside the bag, Moutzouris found numerous 9-millimeter bullets. On the dresser next to the bag, he found different caliber rifle bullets, different caliber magazine clips for small handguns, and magazine clips for automatic handguns.

Although generally uncooperative, Ortiz confirmed that defendant had returned home that night with a gun in the canvas bag and she had seen him load it. Police never found a handgun.

While the officers were still there, defendant returned and was arrested. A blood sample taken later at the police station tested positive for methamphetamine and amphetamine.

At trial, Contreras testified that defendant loves her a lot. When they have disagreements, they talked because defendant is not the yelling type. However, she admitted calling 911 three times in the past because defendant had assaulted her. One time, in 1992, he kicked her in the head, causing her to need stitches. In 1995, she reported that defendant had grabbed her by the throat after she said she had slept with his brother. She testified, however, that he actually grabbed her shoulder and that she called 911 because she did not like being touched. Finally, in September 23, 1996, defendant saw Contreras talking to another man and slapped her and pulled her by the hair. She said she could not remember calling 911, but, in fact, she did because Police, including Moutzouris arrived, while she was still on the phone. At that time, Contreras said defendant had assaulted her. Police took photographs of her swollen face. In all, Contreras explained that the 1992 incident was an accident and that after the 1995 and 1996 incidents, defendant said he was sorry. Although she did not like how he treated her she still loved him, accepted his apologies, and forgave him.

Contreras testified that on the evening of January 19, 1997, she and Ortiz were out drinking while defendant was fixing a car. Just after midnight, they went looking for defendant and found him at the Hard Work Cafe. He was dancing with a woman. Contreras got angry and "skidded" a chair at him. The bouncer then told Contreras to leave.

Contreras said that she and Ortiz went to the Bears Club for a beer and talked about how mad she was at defendant. Later, they drove home, and Contreras called 911 to report that defendant had threatened to kill her. Contrary to the tape of her call, Contreras testified that she told the 911 operator that defendant had merely mouthed a threat. While she was on the phone, defendant came home. She got angry because he lacked emotion and said nothing. At that point, she "wanted him gone" and thought to herself, "[T]his is the way that [I'm] going to get rid of him. You pay him back this way." She testified that when she drinks, she loses her morals and rules.

Contreras testified that although she pointed to defendant's canvas bag, police suggested that he had come in with it, taken a gun, and loaded it. She went along with the story but denied offering it in the first place. She said she told the officers she heard the sound of metal just to make defendant look bad. Contreras explained that the canvas bag and the bullets inside belonged to her children.

Contreras admitted she did not tell anyone that she had pushed a chair at defendant or later had gone to the Bear Club. She admitted telling police defendant had threatened her but at trial said this was a lie. She said he merely mouthed the threat. She admitted that at the preliminary hearing she said she was afraid defendant would kill her. However, she testified that this was a lie.

Contreras also admitted that when defendant left, she called 911, but she denied saying she was concerned about the safety of the children. However, a tape of her call refuted her testimony. She also denied telling the police that she had seen defendant loading a gun he had brought into the house in a bag.

Ortiz testified that she did not hear defendant threaten Contreras; nor did she hear Contreras say he had done so. Ortiz could not recall what Contreras had said during the 911 call. She further testified that she did not see defendant carrying a canvas bag that night; nor did she see one in the apartment.

Richard Ferry, a licensed counselor, testified as an expert on domestic violence and battered woman's syndrome. He said that abused women often recant accusations they have made against their partners. He explained that after a violent outburst, a perpetrator often shows remorse and sorrow, promises to reform, and expresses contrition by giving gifts. During this last stage, women often recant. They do so for numerous reasons, including threats of retaliation, fear of economic distress if the perpetrator leaves, belief that the perpetrator is a good parent, desire to remain attached to him, self-blame for the violence, and minimization of the abuse.

III. Challenges to Section 1109 Evidence 1

Section 1101 generally provides that evidence of a defendant's prior acts of misconduct is not admissible at trial to prove a criminal disposition or character trait, but it may be admitted when relevant to prove a material issue, such as identity, intent, motive, or opportunity.

Section 1109 provides, in relevant part, "(a) ... [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." 2 Thus, prior acts of domestic violence may be admitted under section 1109 to prove disposition to commit such acts.

A. Due Process

Defendant contends that in permitting evidence of prior acts of domestic violence to prove criminal disposition, section 1109 offends fundamental principles of justice and violates constitutional guarantees of due process.

Defendant implicitly acknowledges that in People v. Fitch (1997) 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753, the Third District rejected an identical due process challenge to section 1108, which is essentially the same as section 1109, except that it permits the admission of prior sexual offenses to show criminal disposition. 3

In Fitch, the court explained that a state rule of evidence violates the Due Process Clause if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. (People v. Fitch, supra...

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2 cases
  • People v. Van Winkle
    • United States
    • California Court of Appeals Court of Appeals
    • September 24, 1999
    ...(1998)* (Cal.App.) 75 Cal.Rptr.2d 862 [applying Fitch to Evid.Code, § 1109], review granted Sept. 23, 1998 (S072374); People v. Acosta* (Cal.App.) 84 Cal.Rptr.2d 370 [same], review granted Aug. 18, 1999, S079731; People v. Watts* (Cal.App.) 77 Cal.Rptr.2d 842 [finding CALJIC instructions co......
  • People v. Acosta
    • United States
    • California Supreme Court
    • August 19, 1999
    ...Respondent, v. Martin Muniz ACOSTA, Appellant. No. S079731. Supreme Court of California. August 19, 1999. Prior report: Cal.App., 84 Cal.Rptr.2d 370. Petition for review Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Falsetto,......

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