PEOPLE v. TUFUNGA

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Halaliku Kaloni TUFUNGA, Defendant and Appellant.

No. A076665.

Decided: June 29, 1998

ANDRIAN & GALLENSON, Stephen M. Gallenson, Santa Rosa, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher W. Grove, Deputy Attorney General, for Plaintiff and Respondent.

An amended information charged Halaliku Kaloni Tufunga (defendant) with four felonies based on an episode of violence against his former wife, Shelly Tufunga (Shelly):  assault with a deadly weapon or force likely to produce great bodily injury (count 1;  Pen.Code, § 245, subd. (a)(1), all unspecified section references are to that code);  residential robbery (count 2;  § 211-212.5, subd. (a));  spousal abuse (the mother of his child) (count 3;  § 273.5);  and terrorist threats (count 4;  § 422).   A jury found him guilty as charged on all counts but count 1, on which it convicted of the lesser offense of battery (§ 242), found true a personal-use allegation (§ 12022, subd. (b)) for scissors use in count 4, and found the same allegation not true for count 3.

The court imposed a four-year midterm for the count 2 robbery plus a subordinate term of one year for the count 3 spousal abuse, for a five year total, striking the enhancement and running the other counts-and unrelated terms-concurrent.   Defendant appeals claiming instructional and evidentiary error.1

Background

Shelly testified that she and defendant married in 1986 and separated the following year.   Nevertheless, defendant occasionally stayed at her Antioch residence, against her will.   Around 5 p.m. on January 16, 1996, she heard a knock on the door and through the peep hole saw Loni, a daughter of defendant's from a prior marriage.   Shelly opened the door-Loni and she being on good terms-but too late to notice defendant and his first wife Pelenaise (Pele) also standing there.   All three visitors pushed their way inside and started yelling at her.   Defendant slapped and hit Shelly, and Loni and Pele accused her of saying that Helen, another of Pele's daughters, was raped and was a prostitute.   Defendant pushed Shelly down, kicked her and then ordered the other women out, saying he would “take care of” her.   After they left, defendant straddled Shelly on the couch, grabbed a pair of 9- or 10-inch sewing scissors and, making overhead stabbing motions toward her face, forehead and neck, said he was going to mess up her face, shove the scissors up her “big fat ass” and “make it so that nobody would be able to look at” her.   Afraid for her life, Shelly begged him to stop.   She dodged stabs at her eyes but suffered scratches to her forehead, neck and arms before defendant finally stopped, put the scissors down and got off of her.   He kept yelling and broke a lamp.

As defendant swept up the broken glass, a car drove up.   There was another knock at the door, and in came Shelly's mother, Josephine.   Initially unaware of the fracas, she handed Shelly $200 in cash to use for medicine and vitamins Shelly typically purchased for her.   Shelly put the money down on the coffee table, excused herself and retired to the bathroom.   When she reemerged, Josephine noticed her face was bruised, said “my God, what happened?” and confronted defendant.   Reminding him that she had said she was not going to stand for any more of this, she picked up the phone and said she was calling the police.   Defendant grabbed her, knocked the phone out of her hand and, when Shelly intervened, grabbed Shelly by the neck and shook and choked her, yelling at them both.

Defendant went out the front door.   Josephine yelled out, “Shelly, he took the money,” and tried to stop him.   Shelly ran outside, wrote down the license number of defendant's car, and called “911.”   Defendant returned to the apartment several times before finally being arrested, but Shelly was too afraid to call the police while he was there.

Jurors saw photos of Shelly's injuries taken that same day, and officers testified that she was crying, bruised and scratched.   She reported that defendant had held the scissors against the bridge of her nose and taken the money off the couch.

Shelly testified that in April 1995 she got a restraining order against defendant and moved with her daughter to a battered women's shelter for a month.   Defendant had been coming over, kicking her door in, hitting and pushing her, and “wrecking” the place.   The triggering event was an afternoon in March when defendant followed her and her mother to a movie theater and threatened in public that she had “no right to be out” and “didn't deserve to live.”   He also followed her home that night and struck her.

Josephine testified, corroborating most of Shelly's account.   She added that when defendant grabbed the phone, he unplugged it and threatened to kill her.   When he also choked Shelly, Josephine hit him on the head with the phone, without effect.   Shelly had the $200 in her hand when she returned from the bathroom and dropped it on the table as defendant started choking her.   Defendant hit Shelly a couple times, grabbed the money off the table and left, pushing Josephine when she tried to stop him.   Josephine called “911,” upset that defendant had taken the money she needed for medicine and a special diet.   She confirmed the March 1995 incident at the theater, saying defendant was waiting outside for them and pushed, shoved, threatened and cursed Shelly.

Defendant testified, giving a different account after acknowledging prior felony convictions for grand theft and forgery.   He claimed to have been living in the apartment with Shelly regularly “unless she get upset, kick me out.”   Defendant worked days, and his three daughters had stayed regularly at the apartment since around Christmastime.   In early January, Josephine called his daughter Helen (age 12) a whore, and Shelly and he had a loud argument about it.   He moved with his children to a cousin's place in Oakland for a few days but made up with Shelly and was sleeping there again (apparently without the children) between January 13 and the incident on the 16th.

The incident, as defendant related it, began not at 5 p.m. but shortly after 3 p.m., when he returned home from work.   He had been bringing take-out food to the apartment, knew Shelly had a bill due on the 19th and had promised to bring money.   He got $200 in cash from his employer that day (employer/relative Hermasi “Masi” Latu confirmed this in testimony), brought it to Shelly, put it down on a coffee table and said it was “to help you pay the bill.”   They watched TV after this, without incident.   Loni and Pele came to the door around 5 p.m. Defendant did not know they were coming but heard them yelling and arguing with Shelly at the front door.   He wondered what was going on, and Shelly soon ordered the women away.

After they left, he and Shelly discussed the problem and argued about it themselves and about how, in defendant's view, her mother was causing trouble between them and with his children by Pele. The argument grew loud, and defendant crashed a vase to the floor but did not strike her.   He calmed down, but Shelly did not.

Josephine soon arrived, entered and sat between them in the living room.   She had not brought money.   When she asked Shelly why she was upset, Shelly told her defendant brought up his ex-wife and had tried to hit her.   Defendant tried to explain, but Josephine flew into a rage and she said she was going to call “911.”   Defendant, knowing there was a warrant out for him, tried to talk her out of it and told her to stay out of it.   Shelly then reached down, picked up the $200 and put it in her bra, at which point defendant sensed that the two were out to take the money, as this had happened before, and that Shelly would give it to her mother.   Defendant demanded the money and, when Shelly refused, wrestled with her and got it.   He walked out the door, and Josephine hit him with the phone as he left.   Shelly followed him out and got his license plate number, and defendant wanted to be gone before the police arrived.   He testified that he did not threaten, strike or push Shelly that day and had never broken into her apartment or stayed against her will.

Three days later, he called Shelly.   She apologized, asked him to come over and said the police had told her the licensenumber she gave to them was a wrong number.   He came over that day with $160, which he gave her to pay the bills, and he stayed there until his arrest.

Pele and Loni testified for the defense, corroborating the mother's accusations about Helen and that they went there alone, finding defendant already there.   Shelly appeared upset and looked as though she had been crying, but neither visitor saw defendant assault her.   Both said the front door was open when they arrived, with only the screen door shut.   Twelve-year-old Helen also testified, confirming that she had been living at the apartment with defendant and saying that, while defendant and Shelly had begun to have arguments, defendant never hit her.   She had never heard Shelly say she (Helen) was doing anything wrong.

Called in rebuttal, Shelly said defendant never brought her money and, in fact, knew her pay days and regularly beat her and took her money.   She feared him because he threatened that if she tried to leave, he would kill her and take her daughter Raeleen (then living with a sister in Texas) to Tonga where the family would never see her again.   She also disputed Masi's testimony that he had called defendant earlier at the house;  she knew Masi's voice and it was not Masi who called that afternoon.

Appeal

I. Claim of right

 The defense requested instruction as follows on a claim-of-right defense to the count 2 robbery:  “The defendant's honest belief, even if mistakenly held, that [he][she] had a right or claim to the property taken negates the felonious intent necessary to convict [him][her] of robbery [or] theft.  [¶] The defendant need not show the claim of right was reasonable.   An unreasonable belief that [he][she] had a legal right to take the property will suffice so long as the claim was made in good faith.  [¶] If the evidence raises a reasonable doubt as to whether defendant acted under a bona fide belief in a right or claim to the property you must find that defendant did not form the necessary felonious intent.”

The court refused the instruction, commenting, “․ I find no support in the law for the notion that when you give or pay or deliver property to a person, you may thereafter by force retake it without any demand for its return․”  Defendant claims error, urging that “force” used in the taking is immaterial to the existence of a bona fide belief and that the court mistakenly found no demand.   The People respond that defendant furnished no substantial evidence of a bona fide belief and that one cannot claim such a right “merely because he believes, contrary to the law, that he has a legal right to tell his ex-wife how she spends her money․”  To this, defendant replies that the People, too, are distracted by “force” and that the evidence shows he gave Shelly the money conditionally -to pay a bill-and lawfully retook it when he realized she would give it to her mother instead.

 Generally, of course, a party is not entitled to an instruction on a theory for which there is no supporting evidence.  (People v. Memro (1995) 11 Cal.4th 786, 868, 47 Cal.Rptr.2d 219, 905 P.2d 1305.)   In our context, “[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that [the defendant] acted with a subjective belief he or she had a lawful claim on the property.”   (People v. Romo (1990) 220 Cal.App.3d 514, 519, 269 Cal.Rptr. 440, emphasis omitted.)

We conclude that substantial evidence supported the instruction under the then-prevailing law.   Defendant testified that he came over with $200 on the 16th because he knew Shelly needed money to pay a bill by the 19th.   When he entered the apartment, the first thing he did was lay the money on the coffee table and say to her, “[T]his is $200 to help you to pay the bill.”   The prosecutor clarified on cross-examination:  “Q. You actually gave it to her?   [¶] A. I gave it to her.  [¶] Q. It was a gift from you to her?  [¶] A. I said yes, it is a gift.”

Defendant's words “this is ․ to help you pay the bill,” although followed by his concession of intent to make a “gift,” did support an inference of conditional gift.   A lawyer might have said “provided that ․,” “so long as ․” or “on condition that ․,” but jurors could have found a conditional gift in defendant's lay phrasing.   The People's retort that one cannot claim, “contrary to the law, that he has a legal right to tell his ex-wife how she spends her money,” only begs the question whether the gift was conditional.   A juror could find further support for a conditional gift in defendant's testimony that he returned to the apartment three days later, when the mother was not there, and gave Shelly $160 to use, once again, “to help pay her bills.”

There is also substantial evidence from which jurors could infer that defendant came to honestly believe Shelly would not use the money for the bill before he took it back.   He gave this account of what transpired between his putting the money down on the coffee table and taking it back:  Pele and Loni came to the door;  they argued with Shelly;  Shelly and defendant then argued after he ordered Pele and Loni out;  Shelly's mother came later and, thinking he had hit Shelly, said she was calling the police;  Shelly took the money and put it in her bra, at which point defendant demanded it back, forcibly took it from her and left before police could arrive.

Defendant explained his thinking as follows on direct:  “I knew I had a warrant for arrest and she --- that's the way she trying to do, let the police come over and arrest me.   By that time, I knew what is going on.   My mother-in-law never come over to the house late, after it's dark time, you know, like I say, and I knew then she show up.   I knew she come over because the money.   I be living with that life a long time for 9 years.   Every time I give the money to my wife, and she always give it to her mother because to help her for anything she want.   But the way her mother going through to Shelly's mind she come over and make her get upset about me or tell all kind of story.   Over-she come over and tell her she don't feel good and blah, blah, blah and-” He continued, about the threat to call the police:  “By that point Shelly took the money from the coffee table and she reach down and put it inside of her bra.   Excuse me.   And I understand what is going on.   I stand up.   I told my mother-in-law, don't interfere and I-give me my money so I get out of here.   So I knew mother was staying over here.   She'd know it's my money.   I'm telling you give me my money and me and her was wrestling so I tried to reach down to her bra to pick up the money.”   He explained further on cross-examination, “I take the money from Shelly because I don't want to go through the thing we've been through a couple of times.   I don't want her to give the money to her mother.”

Defendant's testimony suggests a history of him giving Shelly money and of her then giving it to her mother.   Defendant felt that because the mother came over that night at an unusually late hour, Shelly was going to give her the money.   He suspected they had a plan to cause a problem and run him off.   He had told Shelly he was bringing the $200 over and saw what was “going on” once the mother threatened to call police and Shelly stashed the money in her bra.   While defendant did not elaborate much, a juror who believed this testimony could have felt he had a genuine belief that he had given Shelly the money conditionally, to pay a bill, and that Shelly was going to give it to her mother instead.   The court was required to put credibility aside in assessing the showing.  (People v. Middleton (1997) 52 Cal.App.4th 19, 33, 60 Cal.Rptr.2d 366.)

Defendant does overstate the proposition that force has nothing to do with having a bona fide belief.   Our Supreme Court has observed that a use of force “ordinarily” allows an inference of an intent to steal, as opposed to a claim of right.  (People v. Butler (1967) 65 Cal.2d 569, 573, 55 Cal.Rptr. 511, 421 P.2d 703.)   Nevertheless, the high court in that case did find reversible error in a prosecutor's jury argument that a claim of right could not exist where a defendant had taken money at gunpoint.  (Id. at pp. 572-574, 55 Cal.Rptr. 511, 421 P.2d 703.)   Likewise here, while defendant forcibly took the money from Shelly, this would not itself preclude a finding of an honestly held belief in a right to take it.   Likewise, a lack of demand might ordinarily militate against finding an honest belief, but defendant's testimony, if credited, does support his having made a demand-either to Shelly or Shelly's mother or both-before he took the money by force.

 Accordingly, the requested instruction on a claim-of-right defense was supported under the law.   However, a very recent decision by the Supreme Court persuades us that the defense was unavailable for policy reasons.

The court in People v. Barnett (1998) 17 Cal.4th 1044, 74 Cal.Rptr.2d 121, 954 P.2d 384 (Barnett ), confronted claims of error, ineffective assistance and prosecutor misconduct stemming from failure to instruct on claim-of-right defense as to one of two robbery victims in a capital case with a robbery-murder special circumstance.   The court began with a broadly critical reexamination of the defense:  “Defendant's contentions are based principally upon this court's decision in People v. Butler (1967) 65 Cal.2d 569, 573 [55 Cal.Rptr. 511, 421 P.2d 703] (Butler ).   In that case, the defendant was accused of felony murder based on the underlying crime of robbery.   At trial, the defendant testified he had been employed by the victim, who had not paid him for some work.   The defendant, armed with a gun, went to the victim's home one evening to collect payment.   Although the victim had at one point agreed to pay the defendant, he subsequently changed his mind and approached the defendant with a pistol.   During the ensuing scuffle, the defendant shot and killed the victim, and also shot another person present in the victim's home.   After quickly searching the home for money and finding none, the defendant grabbed a wallet and ran from the house.   In recounting the events, the defendant claimed he did not intend to commit robbery when he went to the house, but intended only to recover the money he was owed.  [Citation.]  Over the defendant's objection, the prosecutor was permitted to argue to the jury that a robbery had been committed even if the defendant honestly believed the victim owed him money.  [Citation.]  The jury convicted the defendant of first degree felony murder and fixed the penalty at death.

“A majority of this court reversed, concluding:  ‘Although an intent to steal may ordinarily be inferred when one person takes the property of another, particularly if he takes it by force, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery.   It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent.  [Citations.]  A belief that the property taken belongs to the taker [citations], or that he had a right to retake goods sold [citation] is sufficient to preclude felonious intent.   Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it.  [Citation.]’  [Citation.]

“In his dissent in Butler, Justice Mosk took a dim view of the majority's apparent authorization of armed robbery as a self-help measure.   Pointing out that the statutory provision defining robbery (§ 211) raised no issue of ownership of property forcibly taken, but only its possession, Justice Mosk saw no statutory basis for the defense.  [Citation.]  Moreover, noting that the leading cases permitting forcible recapture of property were all decided before the turn of the century, Justice Mosk concluded that a six-shooter was no longer ‘an acceptable device for do-it-yourself debt collection’ and that the ‘might-makes-right’ doctrine of the previous century was of ‘dubious adaptability’ to modern times.  [Citation.]

“Since Butler, supra, 65 Cal.2d 569 [55 Cal.Rptr. 511, 421 P.2d 703], was decided, a number of other jurisdictions have rejected the claim-of-right defense for public policy reasons in cases where force, violence, or weapons are used for self-help debt collection.  [Citations.]  As several courts have observed, the proposition that a claim of right negates the felonious intent in robbery ‘ “not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence.   Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied.” ’  [Citations.]

“In this state, limitations have been imposed on the availability of the defense.   For example, the defense is not permitted where the claimed right to the property is rooted in a ‘notoriously illegal’ transaction.  [Citations.]  Moreover, the availability of the defense has been questioned if the claim at issue is unliquidated and therefore subject to dispute.  [Citations.]”  (Barnett, supra, 17 Cal.4th at pp. 1142-1144, 74 Cal.Rptr.2d 121, 954 P.2d 384.)

Having sounded the death knell, the court stopped short of holding a funeral.   It stressed instead that the People did not “seek reconsideration of Butler ” and had urged instead a lack of sufficient evidence of either good faith belief or a liquidated debt.  (Barnett, supra, 17 Cal.4th at p. 1144, 74 Cal.Rptr.2d 121, 954 P.2d 384.)   Seizing on the latter point, it agreed that the claim “was, by all accounts, uncertain and open to dispute.”  (Id. at p. 1146, 74 Cal.Rptr.2d 121, 954 P.2d 384.)   It closed:  “As mentioned above, we have not been asked to revisit Butler 's increasingly anachronistic authorization of the claim-of-right defense in the context of armed robbery.   However, given the obvious public policy reasons for strictly circumscribing the circumstances under which persons should be permitted to enforce their debt demands at gunpoint [citations], we conclude the defense is not available where the claimed debt is uncertain and subject to dispute.”   (Ibid.) Accordingly, no error was found.

In our case, sufficient evidence did support both a good faith belief, and the debt-$200 in cash-was certain and undisputed.   On the other hand, the People have directly argued that the defense should not apply to a retaking accomplished by force, and the use of force was cited by the trial court in ruling against the instruction.   Evidence does show a forcible retaking.   Shelly's account may not:  she indicated that the money lay on the coffee table until she heard her mother yell out that defendant had taken it.   However, as the Supreme Court did in Barnett, we assess this instructional claim under the defense account (Barnett, supra, 17 Cal.4th 1044, 1145, fn. 69, 74 Cal.Rptr.2d 121, 954 P.2d 384), upon which the good-faith-belief claim entirely depended.   Defendant's own testimony was unequivocal:  he wrestled with Shelly and took the money back forcibly.

Does a forcible retaking of property survive as a valid defense to robbery after Barnett?   The opinion ultimately purports not to decide this, but only after a unanimous court called the idea of a claim of right negating the felonious intent in robbery lacking in sound reason and logic, utterly incompatible with and lacking any place in our society, and just one step short of accepting lawless reprisal as a means of redressing real or even imagined (i.e., mistaken but honestly believed) grievances.  (Barnett, supra, 17 Cal.4th at p. 1144, 74 Cal.Rptr.2d 121, 954 P.2d 384.)   The court cited with evident approval Justice Mosk's dissent in Butler and those decisions in other jurisdictions which have rejected the defense where force, violence or weapons are used.  (Id. at pp. 1143-1144, 74 Cal.Rptr.2d 121, 954 P.2d 384.)   The court also called Butler 's authorization of the defense in the context of armed robbery “increasingly anachronistic․”  (Id. at p. 1146, 74 Cal.Rptr.2d 121, 954 P.2d 384.)   The robbery here, of course, was not an armed one, but Barnett 's criticism extends broadly to all instances of force.   It contains not a word of support for the defense where force is used.

 We have no reason in this case to decide whether a retaking by fear of force or violence remains a valid defense to robbery after Barnett, but it is clear that a retaking by actual force does not.   We so hold.   The court below properly refused the claim-of-right instruction.

II. Lesser related offense

 Count 4 charged, and the jury found, terrorist threats (§ 422) plus use of a deadly weapon (§ 12022, subd. (b)).  Defendant requested but was refused instruction on brandishing a deadly weapon (§ 417, subd. (a)(1)) as a lesser related offense under People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ).   He claims error, reasoning that jurors could have felt Shelly was not placed in reasonably sustained fear, as required for a terrorist threat, yet had scissors used against her in an angry or threatening manner.   We find no error.

Geiger set out three conditions for receiving requested instruction on lesser related offenses.   First, there “must be the existence of some basis, other than the unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged.  [¶] Second, the offense must be one closely related to that charged and shown by the evidence․  [¶] Finally, the instructions must be justified by the defendant's reliance on a theory of defense that would be consistent with a conviction for the related offense.”  (Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

The trial court's comments upon the ruling reveal unease whether brandishing is closely related to terrorist threats, and the People note on appeal that the gravamen of a terrorist threat is the threat, not whether the threat is accompanied by weapon use.   A better way of framing the question may be whether enhancements are relevant for lesser-related-offense instruction, something not allowed for lesser-included-offense instruction (People v. Toro (1989) 47 Cal.3d 966, 972, 254 Cal.Rptr. 811, 766 P.2d 577).   We also note a federal high court decision recently holding there is no federal due process right to lesser-related-offense instruction, even in a capital case.   (Hopkins v. Reeves (1998) 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76.)   But in any event, there is another ground for sustaining the ruling.

Defendant's factual version for this count was that he never used the scissors, and that the scratch on Shelly's forehead was caused during the struggle for the money.   Our review of counsel's arguments to the jury also shows no suggestion of any middle ground involving use of scissors.   Counsel argued that any threats, as testified to by Shelly, were not to be taken seriously.   He never suggested the scissors were present, let alone used.   If he made this suggestion to the court in settling the instructions, it was not enough;  our division has held that to constitute defense reliance for this purpose (Geiger, supra, 35 Cal.3d 510, 531-532, 199 Cal.Rptr. 45, 674 P.2d 1303), the argument has to be made to the jury.  (People v. Hill (1992) 6 Cal.App.4th 33, 44-47, 8 Cal.Rptr.2d 123.)   The offense of brandishing scissors was thus inconsistent with the defense.  (Cf. People v. Sonleitner (1986) 183 Cal.App.3d 364, 370-371, 228 Cal.Rptr. 96 [instruction on transitory possession of cocaine inconsistent with outright denial of possession].)

Alternatively, other precedent from our division compels rejection of the claim for lack of prejudice.   The due process reason for the lesser related offense-safeguarding the reasonable-doubt standard by affording jurors something besides an all-or-nothing choice of guilt or innocence-was not implicated here.   Jurors had several counts all arising from the same incident, including an aggravated assault charge which they rejected in favor of simple battery.   These furnished ample alternatives should reasonable doubt have been a sticking point.  (Cf. People v. Lipscomb (1993) 17 Cal.App.4th 564, 571, 21 Cal.Rptr.2d 445 [any error in failing to instruct on firearm brandishing, as lesser related to aggravated assault, harmless due to jury consideration of charged false imprisonment by violence, first degree robbery, and related use enhancements].)

III. Prior act evidence

 Defendant claims the court abused its discretion in admitting evidence of the uncharged March 1995 incident which had prompted Shelly to take refuge in a women's shelter.   He argues that jurors may have improperly used it as common scheme or plan evidence on the count 3 spousal abuse charge (§ 273.5), without the degree of similarity required by People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 (Ewoldt ), and thus in violation of Evidence Code sections 1101 and 352.

The People, citing Justice Kline's recent opinion for this division in People v. McCray (1997) 58 Cal.App.4th 159, 67 Cal.Rptr.2d 872 (review den.   Jan. 14, 1998), urge that, “[a]lthough the trial court apparently determined the evidence was not admissible on the issue of intent,” this was error and the prior abuse against Shelly was properly admitted to show both an intent to cause fear in Shelly and her reasonable fear that defendant would carry out his threats.  (See id. at pp. 171-173, 67 Cal.Rptr.2d 872.)   Defendant counters that he does not dispute admissibility for that purpose but is concerned with improper use on the spousal abuse count, something which the court's limiting instructions did not prevent, and that there was “some confusion” over the basis for admitting the evidence.

We begin by accepting defendant's concession that the evidence was “properly admitted as proof of the element of the ․ section 422 charge that the victim was in reasonable and sustained fear for her safety․”  This conforms with our precedent (People v. McCray, supra, 58 Cal.App.4th 159, 171-173, 67 Cal.Rptr.2d 872), with the court's comments in ruling on the matter in limine, and with that part of the court's final instructions which allowed use of the evidence to show “the degree and reasonableness of a person's fear upon hearing threats of serious violence,” an unambiguous reference to count 4 (§ 422).

But as defendant observes, the limiting instructions went further.   The court gave the standard charge restricting use of limited evidence to “the limited purpose for which it was admitted” (CALJIC No. 2.09) 2 and then read a modified version of CALJIC No. 2.50 stating that evidence of uncharged crimes could not be used to show bad character or disposition, but only to show:  “First a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged.  [¶] Second the existence of the intent which is a necessary element of the crime charged.   Next a motive for the commission of the crime charged.   And finally, the degree and reasonableness of a person's fear upon hearing threats of serious violence.”

One problem with this instruction is its mention of common plan, intent and motive without any express or implicit reference to particular counts.   Defendant is right to say this could have invited jurors to apply the prior event to the spousal abuse charge.   Another problem is that evidence of common scheme or plan is admissible to prove a defendant's act, not his intent (Ewoldt, supra, 7 Cal.4th 380, 393-394 & fn. 2, 27 Cal.Rptr.2d 646, 867 P.2d 757), yet the instruction blurred this distinction and then went on to list “the intent which is a necessary element of the crime charged” as something evidently distinct.   Also odd is the mention of motive, which bears on identity (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610-1611, 38 Cal.Rptr.2d 868), something not disputed on any count.

In summary, the instruction might have been taken to mean the uncharged conduct bore on “intent” or “motive” in the count 3 spousal abuse.   On the other hand, it is hard to think what any juror would have made of “motive” on that count.   Jurors were told only in general terms that motive was not a crime element but that its presence or absence could be considered as a circumstance tending to show guilt or innocence (CALJIC No. 2.51).   It is hard to see how, without elaboration or argument, they might have divined “motive” from the March 1995 prior abuse.   Neither side suggested it in argument, and defendant does not explain now how this might have harmed him.

As for “intent,” the only intent identified for count 3 was that defendant had to “willfully” inflict bodily injury (CALJIC No. 9.35), meaning with “a purpose or willingness to commit the act” though not necessarily with “any intent ․ to injure another, or acquire any advantage” (CALJIC No. 1.20).   Defendant does not explain how jurors could have relied on the prior conduct to show this kind of intent.   He did not claim to have straddled and assaulted Shelly unknowingly or accidentally, and the instruction, however muddled in other respects, did clearly say the prior conduct could not be used to show bad character or disposition.   Also, neither counsel mentioned the prior conduct in relation to count 3, only in relation to the reasonable-fear element of count 4.

In short, the evidence was concededly admitted for a proper purpose on count 4, and it does not appear that, without error in the limiting instruction, a more favorable out-come on count 3 was reasonably probable (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243).

We also agree with the People that a prejudice analysis must take into account the applicability of new Evidence Code section 1109 at any retrial.   Enacted in 1996 but not yet in effect at the time of the August 1996 trial below (Stats.1996, ch. 261, § 2), the section provides that in any criminal action for “domestic violence”-defined by reference (§ 13700, subd. (b)) to include the spousal abuse charge here-“evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”  (Evid.Code, § 1109, subd. (a).)  This applies to domestic violence predating a charged offense by 10 years or less (id., subd. (e)) and so would include the prior conduct here, which was only 10 months old.   The same legislation amended subdivision (a) of Evidence Code section 1101 to remove such evidence from the ambit of the proscription against use of character evidence to prove conduct on a specified occasion.  (Stats.1996, ch. 261, § 1.)

The new section has not yet been construed in any final published opinion (see nonfinal opinion in People v. Hoover (1998) 64 Cal.App.4th 1422, 75 Cal.Rptr.2d 862, upholding it as valid against due process challenges) but is worded like Evidence Code section 1108, a 1995 provision likewise removing from the ambit of Evidence Code section 1101 evidence of prior sexual offenses in prosecutions for current sexual offenses.  Section 1108 has been upheld against claims of due process, equal protection and ex post facto violations.  (People v. Fitch (1997) 55 Cal.App.4th 172, 177-186, 63 Cal.Rptr.2d 753, review den.;   accord People v. Falsetta (1998) 64 Cal.App.4th 291, 299-300, 75 Cal.Rptr.2d 232.)

Thus any retrial in this case would expose defendant to the effects of Evidence Code section 1109 and perhaps not just with respect to the March 1995 theater incident, but also for other prior incidents of abuse which the court in this trial excluded.   Their use, moreover, would not be limited to showing intent, motive, etc.  (Evid.Code, § 1101, subd. (b).)  They could be used as character evidence to prove the charged offense.   It is obviously not reasonably probable that the result on retrial would be more favorable.

Disposition

The judgment is affirmed.

FOOTNOTES

1.   The abstract of judgment shows a total term of nine years, not five, and counsel for defendant states he “will request an amendment,” presumably in the superior court.   This is the correct course since error in an abstract of judgment is clerical, not judicial, and subject to correction at any time.  (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337;  People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627.)

2.   The court admonished jurors, after the mother's brief testimony about witnessing the theater incident, that this was admitted not to show propensity or proof of the charged events, but only to explain her conduct-“why she called the police.”   No issue of improper use is raised in this regard.

LAMBDEN, Associate Justice.

KLINE, P.J., and HAERLE, J., concur.

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