People v. Garcia

• Citation: 224 Cal.Rptr.3d 773,16 Cal.App.5th 979
• Decision Date: 06 November 2017
• Docket Number: B270574
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny Michael GARCIA, Defendant and Appellant.

16 Cal.App.5th 979

224 Cal.Rptr.3d 773

The PEOPLE, Plaintiff and Respondent,

v.Danny Michael GARCIA, Defendant and Appellant.

B270574

Court of Appeal, Second District, Division 5, California.

Filed November 6, 2017

Emily Lowther Brough, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.

KRIEGLER, Acting P.J. People v. Cruz (2016) 2 Cal.App.5th 1178, 206 Cal.Rptr.3d 835 ( Cruz ) held that former CALJIC No. 2.50.01 —which permits a juror to draw an inference of a defendant's disposition to commit a sex offense based on proof of a charged crime by a preponderance of the evidence—unconstitutionally lowers the prosecution's burden of proof and results in structural error requiring reversal. We disagree with the reasoning in Cruz . We hold that the former CALJIC No. 2.50.02, a similarly worded pattern instruction on the use of charged acts of domestic violence to prove a disposition to commit domestic violence, does not lower the prosecution's burden of proof. Moreover, in this case the jurors were told seven times that the burden of proof was on the prosecution to prove guilt beyond a reasonable doubt, and no reasonable juror would have concluded that a conviction could be based on a preponderance of the evidence.

PROCEDURAL HISTORY AND DEFENDANT'S CONTENTIONS

Defendant and appellant Danny Michael Garcia was charged with committing eight offenses against Amanda P., his girlfriend and the mother of his child. The jury found defendant guilty of four of the eight charges: count 2—first degree burglary with another person present ( Pen. Code, § 459 )¹ ; count 3—infliction of injury on a spouse, cohabitant, girlfriend, or child's parent after a prior conviction (§ 273.5, subd. (f)(1)); count 4—dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); and count 7—misdemeanor violation of a domestic violence restraining order (§ 273.6, subd. (a)). Defendant was found not guilty in count 8 of robbery (§ 211), and the jury was unable to reach a verdict in count 1, charging kidnapping (§ 207, subd. (a)), in count 5, charging making a criminal threat (§ 422, subd. (a)), and in count 6, charging false imprisonment (§ 236).² The trial court sentenced defendant to nine years four months in state prison.

Over defendant's objection, the prosecution introduced evidence of his prior uncharged acts of domestic violence against Amanda. The trial court instructed the jury under former CALJIC No. 2.50.02 that it was permitted to draw a discretionary inference as to all counts that defendant had a disposition to commit domestic violence if the jury first found defendant had committed a charged or uncharged offense involving domestic violence by a preponderance of the evidence.

Defendant's appeal primarily challenges the constitutionality and correctness of instructing that charged offenses may be considered as evidence of propensity under former CALJIC No. 2.50.02, and the propriety of admitting the uncharged offenses . He contends: (1) the court committed prejudicial error by instructing the jury to consider charges that are not crimes of domestic violence in determining whether defendant should be convicted of cohabitant injury; (2) the court lowered the prosecution's burden of proof by incorrectly instructing that propensity evidence of current domestic violence charges may be used if the charges are found true by a preponderance of the evidence; (3) the court abused its discretion by admitting evidence of past domestic violence incidents and phone sex recordings; and (4) the cumulative effect of these errors requires reversal of all convictions. In a separate argument, defendant contends the court's failure to properly instruct the jury on witness intimidation was prejudicial error.

We hold that the jury was properly permitted to consider the charges of burglary and dissuading a witness when deciding whether to draw a discretionary inference that he had a disposition to commit domestic violence, because both of the charges qualify as domestic violence offenses as defined under Evidence Code section 1109. Former CALJIC No. 2.50.02 correctly stated the applicable standard for a juror's consideration of charged offenses for this purpose as a preponderance of the evidence. The instruction also clearly differentiated between the preponderance of the evidence standard of proof for drawing a discretionary inference of propensity and the beyond a reasonable doubt standard that must be met before a defendant may be convicted. The trial court did not err in admitting evidence of past domestic violence incidents and phone sex recordings. Having found no merit to these contentions, we necessarily conclude that defendant was not prejudiced by the cumulative effect of the alleged errors. Finally, the trial court did not err in instructing the jury that it must unanimously agree on the events that formed the basis of the witness intimidation charge.

FACTS

The Relationship Between Defendant and Amanda P. and Acts Occurring Before the Charged Offenses

Amanda P. and defendant began dating in June 2012, maintaining a relationship through June 20, 2015, the date of the charged offenses. They have a son born in November 2014.

On December 27, 2013, Amanda told defendant she believed she was pregnant. Defendant denied being the father. Defendant blocked the door as Amanda tried to leave. Defendant hit Amanda in the lip, causing her to fall to the floor and briefly lose consciousness. When Amanda awoke her "lip was split in half." Amanda called her mother to pick her up. The police were called after her mother arrived.

Officer Maxwell Moya responded to the domestic violence call. He described Amanda as scared, frustrated, and having a split lip, which Amanda told the officer was caused by defendant. She explained that an argument started when she told defendant she was pregnant and defendant punched her in the mouth. Defendant, who admitted being under the influence of methamphetamine, told Officer Moya that Amanda showed up with a split lip and she attacked him by hitting him multiple times with a closed fist and open hand. Defendant said he did not punch Amanda. Officer Moya observed no injuries to defendant.

As a result of the December 27 incident, defendant was convicted on December 31, 2013, of inflicting corporal injury in violation of section 273.5. A domestic violence restraining order—People's Exhibit No. 1—was issued on the date of conviction, prohibiting defendant from coming within 100 yards of Amanda.

Amanda was in the hospital in labor with her son on November 17, 2014. She told a nurse that defendant was the father, and provided defendant's name to her. Defendant arrived at the hospital drunk. He gave a false name, which caused security to investigate. Defendant was arrested once it was determined he was the subject of the restraining order. The Department of Children and Family Services (the Department) became involved as a result of the incident at the hospital.³ Four days earlier, defendant hit Amanda, and a report was taken by the police. The police had responded to incidents involving Amanda and defendant more than seven times.

Despite the restraining order, Amanda and defendant remained in contact. Amanda loved defendant during this time period, but by the time of trial she felt she had to "put my foot down. My kids deserve the best and so do I."

The Charged Offenses

Amanda's Testimony

Defendant and Amanda were together at her apartment on June 19, 2015, despite the existing restraining order.⁴ Defendant left sometime during the night to get drugs, returning the next morning.⁵ Amanda allowed defendant into the apartment. Defendant was under the influence of drugs and looked like he had not slept. Amanda told him to go home. Defendant refused. She told defendant she would call the police if he did not leave. Defendant grabbed her phone from her hand. He hit Amanda on the right side of her jaw, knocking her to the floor. Defendant punched Amanda's face and body with closed fists as she tried to push him off. He choked her, making it difficult to breathe. Defendant threatened to kill her. He hit her more than ten times. Amanda tried to get her phone to call the police, but defendant grabbed and threw the phone.

After this round of violence, defendant and Amanda went to a nearby swap meet. She did not want to go with defendant, but he had her phone and would not give it back. Defendant grabbed her by the arm as they were walking down the stairs before letting go as they went to his car. Amanda did not ask for help at the swap meet because she was afraid defendant would hit her again. They were at the swap meet for approximately 30 to 45 minutes.

They returned to Amanda's apartment where a second physical altercation ensued. Amanda told defendant to leave. She tried to get away, but defendant pulled her hair and threw her to the floor. He slapped and hit her more than five times. Amanda told him he had to leave or she would call the police.⁶

Defendant left the apartment, but he returned and knocked on the door. Amanda went to the window and told defendant he could not come in. Defendant said he was not going to leave. Amanda called defendant's parents, put the phone on speaker, and told them defendant had already hit her twice. His parents told defendant he had to leave and come home.

Defendant entered the apartment through the front window after tearing off the window screen. A third physical altercation ensued. Once inside the apartment defendant grabbed Amanda's phone as she tried to fend him off. He yelled and hit her more than once on the face, the last time on the chin. Amanda told defendant it was over and he had to leave. He refused, stating it was over...