People v. Carignan, D050301 (Cal. App. 12/7/2007)
| Decision Date | 07 December 2007 |
| Docket Number | D050301 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RICARDO ALBERTO CARIGNAN, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of San Diego County, No. SCS201985, Laura J. Birkmeyer, Judge. Affirmed in part and reversed in part.
A jury convicted Ricardo Alberto Carignan of inflicting corporal injury upon a cohabitant (Pen. Code,1 § 273.5, subd. (a), count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2); making a criminal threat (§ 422, count 3); attempting to dissuade a witness from reporting a crime (§ 136.1 subd. (b)(1), count 4); and three counts of violating a court protective order involving domestic violence (§166, subd. (c)(1), counts 6, 7 & 9). The trial court sentenced Carignan to prison for 14 years four months.
Carignan appeals, asserting that his convictions must be reversed because the trial court abused its discretion in admitting references to his parole status and previous assault of a former girlfriend into evidence. In addition, he contends that the trial court violated section 654 by sentencing him both for assault and infliction of corporal injury based on the same conduct. We conclude that the trial court did not abuse its discretion by admitting Carignan's parole status and previous assault into evidence. We agree, however, that Carignan's sentence violates section 654, and consequently remand for resentencing.
On April 22, 2006, at around 11:00 p.m., Carignan became angry with his girlfriend, Karla Cardenas, after attending a party to which Cardenas's relatives had invited a man for her to meet. Carignan called Cardenas a "bitch," a "slut" and a "whore." While he was calling her these names, Cardenas poured a bottle of water on Carignan and told him, "Get the fuck out." Carignan, who was lying in bed, rose and approached Cardenas, pushing her with his hands and upper body as she backed from the bedroom to the living room. When Cardenas reached the kitchen, she fell backwards. Carignan got on top of Cardenas, pinned her down, hit her and held an extension cord across the front of her neck.
Carignan released Cardenas and went back into the bedroom to put his shoes on. Cardenas, who had also returned to the bedroom, called Carignan a "monster" and told him to get out. Carignan then got on top of Cardenas and choked her with his hands. Cardenas tried to push Carignan off but he put her in a headlock. Cardenas bit Carignan and tried to run away, but she fell on the floor. Carignan repeatedly kicked and punched Cardenas.
Carignan then walked into the kitchen saying, "Watch, you're going to see right now." Cardenas followed Carignan into the kitchen and saw him open a drawer that contained knives. Cardenas grabbed the phone to call for help, but Carignan pulled the telephone out of the wall and said to Cardenas, "You called the cops, you rat bitch."2 Cardenas ran to the sliding glass door to scream for help, but Carignan pushed her back and closed the door. Cardenas, who suffers from asthma, went to the bathroom to vomit.
The next day, Cardenas took Carignan's apartment key and told him to move out. Later in the week, Carignan called Cardenas and asked her if she was feeling better. Cardenas said that she was and that "every day will get better and better." Carignan responded, He then stated, Cardenas hung up, but Carignan immediately called back, stating that Cardenas was "going to tell Steve," Carignan's parole officer, and she was "a rat."
Carignan asserts that the trial court erred by admitting evidence that he was on parole and that he had told Cardenas he assaulted a former girlfriend who "informed on him." We set forth the relevant procedural history prior to addressing this claim.
Prior to trial, the prosecution sought a ruling that evidence of Carignan's alleged gang affiliation, his prior convictions for robbery and assault, and his parole status were admissible.
The court held a hearing to determine the admissibility of the evidence. At the hearing, Cardenas testified that after being threatened, she feared for her own safety and that of her children because she believed that Carignan was capable of carrying out his threats. She testified that she knew Carignan was in a gang, had beaten up a previous girlfriend after she "ratted him out," had a prior robbery conviction and was on parole.
The court denied the prosecution's motion regarding the prior convictions and gang evidence, but granted the motion as to Carignan's parole status because it was relevant to the attempt to dissuade a witness charge. The court also ruled Cardenas could testify that she believed Carignan had harmed others in the past and had previously beat up an ex-girlfriend for "ratt[ing] him out." The court found that such evidence was highly probative regarding Cardenas's state of mind (i.e., sustained fear) on the criminal threat charge and that its probative value outweighed any prejudicial effect.
Carignan contends that the trial court's ruling constituted an abuse of discretion under Evidence Code section 352 because the prejudicial effect of his parole status and prior violent conduct substantially outweighed any probative value. We disagree.
Evidence Code section 352 permits the trial court "in its discretion" to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." As this discretionary power is expressly granted to the trial judge by statute, the "exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordon (1986) 42 Cal.3d 308, 316.) "`The prejudice that [Evidence Code] section 352 "`is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.'"'" (People v. Branch (2001) 91 Cal.App.4th 274, 286 (Branch).) Undue prejudice comes from evidence "`"`which uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " ' " (People v. Crittenden (1994) 9 Cal.4th 83, 134 (Crittenden).)
Applying the above standard, we conclude that the trial court did not abuse its discretion by admitting Carignan's prior assault and parole status into evidence. While the evidence was undoubtedly prejudicial, it had significant probative value, and Carignan has failed to carry his heavy burden of demonstrating that the trial court abused its discretion in admitting it.
The trial court ruled that the evidence of Carignan's prior assault was relevant to the criminal threat charge. To establish that a defendant made a criminal threat under section 422, the prosecution must prove that the defendant intended that the victim would take a statement as a threat and that the threat placed the victim in a state of "sustained fear."3 (§ 422; People v. Garrett (1994) 30 Cal.App.4th 962, 966.) Additionally, the prosecution must "show that the nature of the threat, both on `its face and under the circumstances in which it is made,' was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable." (Garrett, at pp. 966-967.) A defendant's prior criminal and violent conduct are relevant to establish these elements. (Ibid.; see also People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [].) Consequently, it has been recognized in this context that "[s]eldom will evidence of a defendant's prior criminal conduct be ruled inadmissible" as unduly prejudicial "when it is the primary basis for establishing a crucial element of the charged offense." (Garrett, at p. 967.)
In the instant case, the trial court reasonably concluded that Carignan's prior assault was relevant to establish that Carignan committed a criminal threat when he told Cardenas, (Crittenden, supra, 9 Cal.4th at p. 134 [].) Indeed, Cardenas's testimony that Carignan told her he assaulted a former girlfriend for "ratt[ing] him out" strongly supported the prosecution's contention that Carignan intended his statement to "be taken as a threat" and that the statement caused Cardenas "reasonably to be in sustained fear" because of a belief that Carignan would carry out the threat if he thought she was going to the authorities. (Garrett, supra, 30 Cal.App.4th at pp. 966, 967 []; cf. People v. McCray (1997) 58 Cal.App.4th 159, 172 [].)4
Carignan's contention that reversal is warranted because the prosecution could have relied on other evidence (e.g., Carignan's beating of Cardenas) to establish...
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