PEOPLE v. ACOSTA

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Martin Muniz ACOSTA, Defendant and Appellant.

No. H017642.

Decided: May 03, 1999

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.

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 Café.   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, 55 Cal.App.4th at pp. 178-179, 63 Cal.Rptr.2d 753.)   However, the burden rests on the defendant to positively and unmistakably establish such a constitutional infirmity.   (Ibid.)

The court concluded that the defendant had failed to establish that the exclusion of evidence to show criminal disposition was a traditional and fundamental principle of our system of justice.

Initially, the court observed that evidence of prior sexual offenses was indisputably relevant in a prosecution for another sexual offense.  “Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.  ‘It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded.   It is objectionable not because it has no appreciable probative value but because it has too much.’  [Citation.]”  (People v. Fitch, supra, 55 Cal.App.4th at p. 179, 63 Cal.Rptr.2d 753, citing 1A Wigmore on Evidence (Tillers rev.1983) § 58.2, p. 1212.)

The court then pointed out that the United States Supreme Court has not decided whether a state law would violate the Due Process Clause if it permitted the use of prior crimes evidence to show the defendant's propensity to commit the charged crime.  (People v. Fitch, supra, 55 Cal.App.4th at p. 179, 63 Cal.Rptr.2d 753;  see Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5, 112 S.Ct. 475, 116 L.Ed.2d 385.) Lower federal courts, however, have rejected a blanket assertion that the admission of uncharged misconduct evidence violates the Due Process Clause.   Furthermore, the high court has opined that the common law “was far more ambivalent” concerning the admissibility of other crimes evidence and “implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.”  (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6, 103 S.Ct. 843, 74 L.Ed.2d 646;  People v. Fitch, supra, 55 Cal.App.4th at p. 181, 63 Cal.Rptr.2d 753.)   This ambivalence, the Fitch court noted, is greatest in sex offense cases, where courts have liberally interpreted evidence rules to permit the admission of uncharged sexual misconduct under the rubric of motive, identity, and common plan, or more directly admitted it under an exception known as the lustful disposition rule.  (People v. Fitch, supra, 55 Cal.App.4th at pp. 179-182, 63 Cal.Rptr.2d 753.)

Last, the Fitch court acknowledged language in Chief Justice Warren's concurring and dissenting opinion in Spencer v. Texas (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 and in McKinney v. Rees (9th Cir.1993) 993 F.2d 1378 to the effect that the admission of dispositional evidence violates a defendant's right to due process.4  However, in light of its analysis, the court was not persuaded by these authorities that the exclusion of dispositional evidence is fundamental to our concept of fairness and system of justice.  (People v. Fitch, supra, 55 Cal.App.4th at pp. 180-181, 63 Cal.Rptr.2d 753.)

The Fitch court also rejected the defendant's claim that the admission of propensity evidence diluted the standard of proof in a criminal case.   The court acknowledged that in certain cases, the admission of other crimes evidence arguably could lighten the prosecution's burden to prove guilt beyond a reasonable doubt.   However, the court pointed out that in a criminal trial, the jury is instructed that it must decide whether the accused committed the charged offense and that he or she could not be convicted unless the prosecutor proved all elements of the offense beyond a reasonable doubt.   The court further noted that section 1108 makes evidence of other sexual misconduct subject to exclusion under section 352.   The court opined that this safeguard adequately protects a defendant's due process rights in cases where such evidence may be more prejudicial than probative and thus where its admission might render the trial fundamentally unfair.  (People v. Fitch, supra, 55 Cal.App.4th at p. 183, 63 Cal.Rptr.2d 753.)

Although we are not bound by Fitch (see generally 9 Witkin, Cal. Procedure (4th ed., 1997) Appeal, §§ 772-773, p. 800-802 [decisions of other appellate district courts not binding] ), we consider its analysis and conclusions sound, persuasive, and equally applicable to defendant's challenge to section 1109.

To bolster his claim that the exclusion of propensity evidence is fundamental to our system, defendant here cites People v. Alcala (1984) 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126, in addition to McKinney and Chief Justice Warren's concurring and dissenting opinion in Spencer.   In Alcala, the court said that “[t]he rule excluding evidence of criminal propensity is nearly three centuries old in the common law” and is codified in Evidence Code section 1101, subdivision (a).  (36 Cal.3d at pp. 630-631, 205 Cal.Rptr. 775, 685 P.2d 1126.)

This brief comment does not add significant weight to the claim rejected in Fitch.   Moreover, neither McKinney, Spencer, nor Alcala addressed the constitutionality of statutes such as section 1108 and 1109.   At most, these authorities indicate that evidence of prior crimes has always been treated with extreme caution.   We do not argue with this proposition.   Nor is it inconsistent with the analysis in Fitch.   In our view, however, both section 1109 and section 1108 preserves this traditional caution by expressly incorporating the provisions of section 352.   Moreover, as Fitch notes, appropriate instructions can further ensure that the admission does not dilute the prosecutor's burden of proof.

Finally, we observe that federal appellate courts have upheld the constitutionality of Federal Rule of Evidence 413, (28 U.S.C.) which, like section 1108, permits the admission of prior sexual assaults in for any relevant purpose where the defendant is charged with a sexual assault.  (See U.S. v. Mound (8th Cir.1998) 149 F.3d 799, 801;  U.S. v. Enjady (10th Cir.1998) 134 F.3d 1427, 1432.)

 In sum, we hold that the constitutional guarantee of due process does not preclude the formulation of evidentiary rules such as that embodied in section 1109.

B. Equal Protection

 Defendant next contends that section 1109 violates his right to equal protection.   He notes that it treats those accused of domestic violence differently from those accused of other crimes.   He asserts that in expanding the “realm of admissible evidence” that may be used to secure a conviction, section 1109 infringes on his constitutional rights to a fair trial, due process of law, and the requirement that guilt be proven beyond a reasonable doubt as well as his fundamental interest in personal liberty.   Thus, he argues that section 1109 is subject to strict scrutiny and may be upheld only if the disparate treatment of those accused of domestic violence is justified by a compelling state interest.   He claims there is no such compelling state interest.

The Fitch court addressed and rejected an identical claim.  (People v. Fitch, supra, 55 Cal.App.4th at p. 184, 63 Cal.Rptr.2d 753.)   Having concluded that section 1108 did not impinge on the right to due process, the court further explained, “An equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis.  [Citation.]  [¶] Evidence Code section 1108 withstands this relaxed scrutiny.   The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses.   This reasoning provides a rational basis for the law.   Defendant's arguments as to the recidivism rate of sex offenders are unavailing.   In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply.   The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others.  [Citation.]”  (Id. at pp. 184-185, 63 Cal.Rptr.2d 753.)   This analysis applies with equal force to section 1109 and the crimes of domestic violence at which it is aimed.

 Again, we find this reasoning persuasive and adopt it.   Moreover, we reject defendant's claim that strict scrutiny is the applicable standard.   As discussed above, section 1109 does not, on its face, infringe on a defendant's right to due process and a fair trial.   Nor is the connection between the evidentiary purpose of the statute and defendant's liberty interests sufficiently direct enough to trigger the strict scrutiny standard of review.

Defendant's reliance on People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375 is misplaced.  Olivas involved a statute under which juveniles could be incarcerated for a longer period of time than adults who were convicted of the same offense.   Clearly, such a statute implicated a juvenile's interest in liberty.   However, Olivas does not reasonably suggest that a statute concerning the admissibility of evidence, such as section 1109, implicates liberty interests or is subject to strict scrutiny.

C. Section 1109 Instructional Issues

1. Preponderance Standard

 Defendant contends the trial court erred in instructing the jury that prior acts of domestic violence need only be proved by a preponderance of the evidence.  (See CALJIC Nos. 2.50.1 and 2.50.2.) 5  He claims that given the nature of the evidence and the purpose for which it was admitted, the applicable burden of proof is “beyond a reasonable doubt.” 6  We disagree.

In People v. Medina (1995) 11 Cal.4th 694, 764, 47 Cal.Rptr.2d 165, 906 P.2d 2, the court determined that the preponderance standard articulates the appropriate burden of proof for evidence of other misconduct admitted under Evidence Code section 1101, subdivision (b), to prove a material fact.   (Accord:  People v. Carpenter, supra, 15 Cal.4th at p. 382, 63 Cal.Rptr.2d 1, 935 P.2d 708.)   As the court explained, the preponderance rule is based on the fact that the defendant's other crimes are deemed mere “evidentiary facts” that need not be proven beyond a reasonable doubt as long as the jury is convinced beyond a reasonable doubt of the “ultimate fact” relied upon to determine guilt, such as knowledge or intent.  (People v. Medina, supra, 11 Cal.4th at 763, 47 Cal.Rptr.2d 165, 906 P.2d 2.)

Thus, defendant's prior acts of domestic violence are mere evidentiary facts upon which the jury could rely in determining the intermediary fact of predisposition which, in turn, may be considered in determining ultimate facts or elements of the offense.  (See People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal.Rptr. 289, 611 P.2d 883, fns. 13 and 14 [explaining distinction between ultimate and intermediary facts for which “other crimes” evidence may be admitted].)

Defendant argues that Medina and People v. Carpenter, supra, 15 Cal.4th at p. 382, 63 Cal.Rptr.2d 1, 935 P.2d 708, which reaffirmed Medina, are distinguishable.   He notes that in Medina, the court did not consider the appropriate standard when, as here, misconduct is admitted to prove criminal disposition.   Defendant further notes that in Carpenter, the jury was warned not to consider the evidence to show character or propensity.   These distinctions do not suggest that Medina and Carpenter are inapplicable where, as here, evidence is admitted under section 1109 instead of section 1101, subdivision (b).

2. Permissive Inferences

 Defendant contends that the court erred in giving CALJIC 2.50.01, which tells the jury, in pertinent part, that “[i]f you find that the defendant committed a prior act of domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of domestic violence.   If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.   You must not consider this evidence for any other purpose.”  (See CALJIC No. 2.50.01.)

Defendant argues that when combined with the “preponderance” instructions, this instruction allows a jury to find him guilty based on a preponderance of the evidence.   Thus, defendant claims the instruction lessened the prosecution's burden to prove guilt beyond a reasonable doubt and thereby violated his right to due process and a fair trial.7

The Comment to CALJIC No. 2.50.01 (6th ed.1996) explains, “In 1A Wigmore on Evidence, section 55.1 (Tillers rev.1983), it is stated that ‘whenever resort is had to a person's past conduct or acts as the basis of inference to a subsequent act, it must be done intermediately through another inference.   It may be argued, “A once committed a robbery;  (1) therefore he probably has a thieving disposition;  (2) therefore he probably committed this robbery;” ’ ․ [T]his instruction incorporates this concept.”

The instruction achieves this goal.   However, the final inference-whether defendant committed the charged offense-constitutes the ultimate issue of fact, which must be proved beyond a reasonable doubt.   CALJIC No. 2.50.01 does not itself require, or even suggest, that the jury must be convinced of this ultimate fact beyond a reasonable doubt.   On the contrary, when combined with the “preponderance” instructions, CALJIC 2.50.01 explicitly permits the jury to find guilt based on an inference of predisposition drawn solely from a finding by preponderance of evidence that defendant previously committed act(s) of domestic violence.   Thus, viewed in isolation, the instruction paves the way to a finding of guilt that is simple and direct but inconsistent with the state's constitutional burden to prove every element of a charged offense beyond a reasonable doubt.  (See U.S. Const., 5th and 14th Amend.;   Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278, 113 S.Ct. 2078, 124 L.Ed.2d 182;  In re Winship, supra, 397 U.S. at p. 364, 397 U.S. 358;  People v. Flood (1998) 18 Cal.4th 470, 481, 76 Cal.Rptr.2d 180, 957 P.2d 869.) 8

 In addressing the propriety of an instruction, we do not, however, view it in isolation.   The absence of an essential element in one instruction may be supplied by another or cured by the charge as a whole.   (People v. Castillo (1997) 16 Cal.4th 1009, 1016, 68 Cal.Rptr.2d 648, 945 P.2d 1197.)   Rather, here, we must consider CALJIC No. 2.50.01 in light of the entire record, including all the instructions and argument by counsel, and then determine whether there is a “reasonable likelihood” the jury understood it could convict defendant under a standard less than beyond a reasonable doubt.  (Estelle v. McGuire, supra, 502 U.S. at p. 72, 112 S.Ct. 475;  People v. Cain (1995) 10 Cal.4th 1, 36, 40 Cal.Rptr.2d 481, 892 P.2d 1224;  People v. Kelly (1992) 1 Cal.4th 495, 526, 3 Cal.Rptr.2d 677, 822 P.2d 385.)

In addition to CALJIC No. 2.50.01, the court gave CALJIC No. 2.90, which informed the jury that defendant is presumed innocent and entitled to acquittal unless the People prove him guilty beyond a reasonable doubt.   The court also defined reasonable doubt.   The court then proceeded to enumerate the elements of each of the charged offenses that the People had to prove.   With respect to the alleged prior convictions, the court instructed the jury that they too must be proved beyond a reasonable doubt.

The court also instructed the jury “not [to] single out any particular sentence or any individual point or instruction and ignore the other.   Consider all the instructions as a whole each in light of all the others.”  (CALJIC No. 1.01.)

In closing argument, the prosecutor did not argue or suggest that defendant could be found guilty based solely on the evidence of his prior acts.   Nor did he argue or suggest that defendant could be found guilty based on a preponderance of the evidence.   Rather, the prosecutor reiterated that defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt.  “If I don't prove my burden, you find him not guilty.   If you weigh it and if you find I haven't met the burden, the facts aren't there, you find the defendant not guilty.   That's your job.”   The prosecutor then reread the definition of “reasonable doubt.”

Defense counsel emphasized that the prosecutor had the burden to prove guilt beyond a reasonable doubt, noted the conflicting evidence, and repeatedly argued that he had failed to meet his burden.   In closing, counsel asserted, “[The prosecutor] read to you the instruction about abiding conviction, okay.   Abiding conviction to a moral certainty to the truth of the charge.   That's what reasonable doubt is.  [¶] That's the state of affairs, you have to think about that at the time so probably maybe most likely that's not it.   Okay. [¶] Beyond a reasonable doubt is a knowing and abiding conviction where you're sure he did it.   That has to go to all three counts, to all elements of the three counts.   I'll submit to you on the one and two they haven't done it, and count three, the State hasn't met the element knowledge in the count three beyond a reasonable doubt.”

In rebuttal, the prosecutor argued, “Look at the case and decide whether or not there's a reasonable doubt.   When you look the reasonable doubt you find there is an abiding conviction of the truth of the charge, the lasting belief.   The reasonable doubt issue is you have to be sure, 100 percent sure and know you do not have doubt as to the other elements.  [¶] Ladies and gentlemen, I'll submit to you there is no doubt as to [any of the counts].”

 We presume a jury can understand and follow the court's instruction to consider the instructions as a whole and not single out any particular one.  (See People v. Pinholster (1992) 1 Cal.4th 865, 919, 4 Cal.Rptr.2d 765, 824 P.2d 571.)   We note that the presumption of innocence/reasonable doubt instructions are broad, and their applicability unqualified.   CALJIC No. 2.50.01, which permits but does not require the jury to draw certain inferences, does not suggest that it is an exception to the general instructions concerning reasonable doubt.   On the contrary, when the instructions are harmonized, we perceive little likelihood a jury might think it could find defendant guilty by a preponderance of the evidence or some standard less than beyond a reasonable doubt.  (Cf. People v. Carpenter, supra, 15 Cal.4th at p. 383, 63 Cal.Rptr.2d 1, 935 P.2d 708;  People v. Crittenden (1994) 9 Cal.4th 83, 144, 36 Cal.Rptr.2d 474, 885 P.2d 887.)   Moreover, when the whole charge is viewed together with counsels' closing arguments, we find no reasonable likelihood of such a misunderstanding.   (Estelle v. McGuire, supra, 502 U.S. at p. 72, 112 S.Ct. 475.)

3. Limiting Instruction

Defendant notes that section 1109 permits the use of prior acts only in cases involving domestic violence.   Thus, he claims the court erred in failing to give an instruction that limited the use of propensity evidence to Count 1, which charged him with threatening to commit domestic violence.   He argues the evidence was not admissible or relevant to prove Counts 2-4, possession of ammunition and a firearm and resisting a police officer.

 In the absence of a request, the court had no sua sponte duty to give such a limiting instruction.  (See § 355;  People v. Collie (1981) 30 Cal.3d 43, 63-64, 177 Cal.Rptr. 458, 634 P.2d 534.)   Defendant concedes that counsel did not request one.

In the alternative, defendant claims counsel rendered ineffective assistance in failing to request an instruction.   We disagree.

To prevail on a claim of ineffective assistance of counsel, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.   [Citation.]  Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.   [Citation.]  To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation․’  [Citation.]   Finally, prejudice must be affirmatively proved;  the record must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’   [Citations.]”  (People v. Bolin (1998) 18 Cal.4th 297, 333, 75 Cal.Rptr.2d 412, 956 P.2d 374;  Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.)

 As noted, the court instructed the jurors that if they found defendant committed a prior act of domestic violence, “you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of domestic violence.”   By its own terms, the instruction was not applicable to the charged offenses that did not involve domestic violence.   Moreover, the prosecutor discussed the prior acts of domestic violence only in connection with his argument on Count 1. Last, we note that the court gave the following standard CALJIC No. 17.31 instruction:  “Whether some instructions apply will depend on what you find to be the facts.  [¶] Disregard any instruction which applies to the facts determined by you not to exist.   Do not conclude because the instruction has been given there's an opinion as to the facts.”

Under the circumstances, defense counsel could have concluded that the jury would not be confused about the counts to which an inference of propensity might apply.   Thus, counsel could have reasonably found a limiting instruction unnecessary.   Alternatively, these same circumstances convince us there was little risk the jury might have been confused.   Therefore, we do not find a reasonable probability the jury would have returned a more favorable verdict on Counts 2-4 had a limiting instruction been given.

Thus, as our discussion reveals, defendant cannot establish either that counsel's omission fell below a standard of reasonable competence or that the omission was prejudicial.  (Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. 2052.)

IV. Prosecutorial Misconduct

Defendant contends the prosecutor was guilty of misconduct during closing argument when he gave the following explanation of the “reasonable doubt” standard.  “You come to a light, you've got a green light, you have a reasonable doubt.   It's a four-way stop.   Four stop lights.   You have a reasonable doubt that people coming in the other direction have a red light.   You don't know or you wouldn't go through this.  [¶] You work with reasonable doubt every single day of your life.   You have reasonable doubt when you get on the plane that the plane would crash.   You know most people seem to have a hard time with that one, but most people get on the plane.”

The People claim defendant waived this claim by failing to object to the comment at trial.   We agree.

 Generally, the failure to object waives a claim of prosecutorial misconduct on appeal because the trial court should be given the opportunity to cure any harm by giving an appropriate instruction.  (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.)   However, when the potential prejudice from the misconduct is so great it could not have been cured, an objection obviously would have served no purpose, and, therefore, the failure to do so does not waive a claim on appeal.  (People v. Hill (1998) 17 Cal.4th 800, 820, 72 Cal.Rptr.2d 656, 952 P.2d 673;  People v. Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468.)

Defendant argues that no admonition could have negated the prosecutor's erroneous explanation from the jurors' minds;  nor could the jurors reasonably be expected to follow an admonition to disregard what the prosecutor said.   Thus, defendant claims he did not waive the issue.

The prosecutor's comments were essentially the same as those disapproved by the court in People v. Nguyen (1995) 40 Cal.App.4th 28, 36, 46 Cal.Rptr.2d 840.   In that case, the court opined that the prosecutor misstated the “reasonable doubt” standard in suggesting that people employed it to make everyday decisions in their lives.   The court found such argument to be improper because it trivialized the standard.9

 The People do not argue that the prosecutor's comments were proper.   Rather, they claim that any harm could have been cured by a timely admonition.   We agree.   There was nothing exceptionally compelling or inflammatory about the prosecutor's comment, and, in our view, a reasonable juror could have followed a timely admonition to disregard the prosecutor's suggestion.  (See People v. Nguyen, supra, 40 Cal.App.4th at p. 36, 46 Cal.Rptr.2d 840;  cf.  People v. Bell (1989) 49 Cal.3d 502, 262 Cal.Rptr. 1, 778 P.2d 129 [admonition could have cured misstatements of fact and law];  People v. Haskett (1990) 52 Cal.3d 210, 276 Cal.Rptr. 80, 801 P.2d 323 [misstatement of law immediately corrected].)

Defendant claims that if he waived the claim on appeal, then trial counsel failed to provide effective assistance.   Again we disagree.

 We need not determine whether counsel's performance was deficient because defendant cannot establish that he was harmed by counsel's omission.   (See People v. Holt (1997) 15 Cal.4th 619, 703, 63 Cal.Rptr.2d 782, 937 P.2d 213 [where no prejudice shown, appropriate to reject claim without analyzing propriety of counsel's conduct].)   Both counsel and the court read the correct instruction, which defines “reasonable doubt.”   Moreover, the court instructed the jury that it must follow the court's instructions and not comments by counsel if there is a conflict between the two.   We presume the jury followed the court's instructions.  (People v. Danielson (1992) 3 Cal.4th 691, 722, 13 Cal.Rptr.2d 1, 838 P.2d 729;  People v. Nguyen, supra, 40 Cal.App.4th at p. 37, 46 Cal.Rptr.2d 840.)   Under the circumstances, the prosecutor's brief comment does not undermine our confidence in the verdict, and we do not find a reasonable probability the jury would have returned a verdict more favorable to the defendant had counsel objected and the court given an appropriate admonition.

V. Consecutive Sentences

Defendant contends that the trial court erred in imposing consecutive sentences on Count 2 (possession of a firearm) and Count 3 (possession of ammunition).   He notes that when the trial court struck his two prior convictions alleged as “strikes” in connection with Counts 2 and 3, the “three strikes” law, including the provision requiring consecutive sentences, no longer controlled sentencing on these counts.10  Thus, defendant argues, “the trial court erred in its belief that consecutive sentences were mandated.”

Implicit in defendant's argument is the belief that the court imposed consecutive sentences pursuant to the “three strikes” sentencing scheme.   However, apart from this scheme, Penal Code section 669 provides that when the court sentences a defendant on two or more crimes, it “shall direct whether the terms of imprisonment or any of them to which [the defendant] is sentenced shall run concurrently or consecutively.”   Thus, even though the mandatory consecutive sentence provision of the “three strikes” law was inapplicable to Counts 2 and 3, the trial court nevertheless had discretion to impose consecutive sentences on these counts.

 In the absence of evidence to the contrary, we presume that the trial court was aware of and followed the applicable law at sentencing.  (People v. Mosley (1997) 53 Cal.App.4th 489, 496, 62 Cal.Rptr.2d 268 and cases cited there.)   Here, we presume the court imposed consecutive sentences under Penal Code section 669, for the record does not suggest it mistakenly thought the “three strikes” provision was applicable.

Defendant alternatively claims that if the court had discretion to impose concurrent terms, then it erred in failing to exercise it.   Implicit in this claim is defendant's belief that the court misunderstood the scope of its discretion or was unaware that it had discretion to impose concurrent sentences.   In support, defendant cites the following comment by the court.   “The Court further finds that Count Three is not a 654 situation.   It's not a situation that falls under People versus Hendrix, because the ammunition involved went to various types of weapons and not just one particular handgun that was never recovered, but there were various calibers.   So that is a separate incident subject to separate punishment.”

In People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64, the court held that consecutive sentences are not mandatory under the “three strikes” law where the defendant is convicted of multiple offenses based on a single violent act against multiple victims.

 We note that the court made its comment about Count 3 before it struck the two prior convictions and thus rendered the “three strikes” law inapplicable to both Counts 2 and 3. Under the circumstances, the comment does not suggest that the court believed consecutive sentences were mandatory or even that the court misunderstood the scope of its discretion under the general sentencing scheme.   In our view, the record is essentially silent concerning the trial court's understanding of its discretion.   Under such circumstances, the presumption noted above applies, and a remand for resentencing is neither necessary nor appropriate.  (See, e.g., People v. Fuhrman (1997) 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189 [remand unnecessary where record silent regarding court's awareness of discretion to strike prior conviction].)

VI. Cruel and Unusual Punishment

Defendant contends that his sentence of 25 years-to-life for Count 1 constitutes cruel and unusual punishment.11  (See U.S. Const., 8th Amend.;   Cal. Const., art.   I, § 17.)   He notes that under other California recidivist statutes, lesser sentences are imposed for more serious crimes than his.   He next notes that the “three strikes” law punishes his offense more severely than does recidivist statutes in other jurisdictions.   Last, he argues that threatening to commit domestic violence is not that serious an offense and he is not that dangerous of a criminal offender.   Given all of these considerations, he claims his sentence is unreasonably disproportionate to his offense.

Neither defendant's intra-statute nor inter-jurisdiction analyses persuasively demonstrate that his sentence is unconstitutional.

We note that before committing his present offenses, defendant was twice convicted of assault with a deadly weapon.   He also had 13 misdemeanors, including one for domestic violence.   Despite his experience with the criminal justice system, he committed the current offenses, which involved a firearm and the potential for serious bodily injury.   Defendant manifests incorrigible criminal violence that the “three strikes” law was designed to punish and deter.   As the trial court aptly observed, “This all shows to the Court there's a complete disregard by the defendant for the law.   He continues to violate the law.   No matter how many times he's brought to court he keeps violating the law.   The Court finds he's a danger to society based on the felony acts as well as the [other offenses].”

 Simply put, given all relevant considerations, defendant has failed to establish that his sentence is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity.  (See People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch (1972) 8 Cal.3d 410, 423-424, 105 Cal.Rptr. 217, 503 P.2d 921;  cf.  Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 [life without possibility of parole for possession of drugs];  Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 [life sentence for thefts];  People v. Cline (1998) 60 Cal.App.4th 1327, 71 Cal.Rptr.2d 41 [25-to-life for grand theft and residential burglary with prior residential burglary convictions];  People v. Goodwin (1997) 59 Cal.App.4th 1084, 69 Cal.Rptr.2d 576 [25-to-life for commercial burglary and petty theft with a prior with priors for burglary and substance offenses];  People v. Howard (1997) 57 Cal.App.4th 323, 66 Cal.Rptr.2d 849 [25-to-life for unlawful driving/taking of auto with prior serious felony convictions];  People v. Askey, (1996) 49 Cal.App.4th 381, 56 Cal.Rptr.2d 782 [25-to-life for residential burglary with priors for burglary and attempted murder];  People v. Cooper, (1996) 43 Cal.App.4th 815, 51 Cal.Rptr.2d 106 [25-to-life for ex-felon in possession of a gun with priors for robbery];  People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256 [61-to-life for residential burglary with identical priors] disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8, 66 Cal.Rptr.2d 423, 941 P.2d 56.)

VII. Disposition

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise specified, all further statutory references in Section III are to the Evidence Code.

2.   Section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”Section 1109, subdivision (d), provides, “As used in this section, ‘domestic violence’ has the meaning set forth in Section 13700 of the Penal Code.”Penal Code section 13700, subdivision (b), defines “domestic violence” as “abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.   For purposes of this subdivision ‘cohabitant’ means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.   Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use of ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.”Penal Code section 13700, subdivision (a), defines “abuse” as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

3.   We acknowledge that the issues raised and addressed in Fitch are currently before our Supreme Court.  (See People v. Baker (1998) rev. granted Nov. 24, 1998 (S073543);  People v. Hoover (1998) rev. granted Sep. 23, 1998 (S072374);  People v. Falsetta (1998) rev. granted Aug. 12, 1998 (S071521);  People v. Ritson (1998) rev. granted Aug. 12, 1998 (S071200).)

4.   In McKinney v. Rees, supra, 993 F.2d 1378, the murder victim's throat was slit by a knife and the prosecution introduced evidence linking defendant, the victim's son, with knives.   The Ninth Circuit opined that the evidence had no probative value except to show character or propensity.   It then said the prohibition against use of such character “evidence is based on such a ‘fundamental conception of justice’ and the ‘community's sense of fair play and decency’ as concerned the Supreme Court in Dowling [v. United States (1990) 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708].”  (Id. at p. 1384.)   In holding that the admission of this evidence deprived defendant of a fair trial, the court further stated, “It is part of our community's sense of fair play that people are convicted because of what they have done, not who they are.”  (Id. at p. 1386.)In Spencer, Warren wrote:  “While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.”   (Spencer v. Texas, supra, 385 U.S. at pp. 572-575, 87 S.Ct. 648, fn. omitted (conc. and dis. opn. of Warren, C.J.).)

5.   The court instructed the jury that the “other crime or crimes purportedly committed by a defendant must be proved by a preponderance of the evidence.   You must not consider such evidence for any purpose unless you are satisfied that the defendant committed such other crime or crimes.  [¶] The prosecution has the burden of proving these facts by a preponderance of the evidence.  [¶] Preponderance of the evidence means evidence that has more convincing force and the greater probability of truth than that opposed to it.   If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”  (See CALJIC Nos. 2.50.1 and 2.50.2.)

6.   Defendant acknowledges defense counsel did not object to the instruction but argues that the failure to do so did not waive the issue on appeal.   We agree.  (See Pen.Code, § 1259;  People v. Carpenter (1997) 15 Cal.4th 312, 381, 63 Cal.Rptr.2d 1, 935 P.2d 708.)   The People do not argue otherwise.

7.   We note that the identical claim was addressed in People v. Watts (1998) rev. granted 12-2-98 (S073741).

8.   The Use Note for CALJIC No. 2.50.01 (6th ed.1996) states that this instruction was “for the assistance of the Courts without the benefit of appellate guidance.”  (Italics added.)   Given our analysis of the instruction in isolation, we believe it could be improved by expressly referring to the People's burden to prove guilt beyond a reasonable doubt and admonishing the jury that if it finds that defendant committed the prior acts and then infers a criminal disposition and from that infers that he committed the charged offense, it must nevertheless be convinced that he committed the charged offense beyond a reasonable doubt.

9.   We are surprised the prosecutor here believes that people use the “reasonable doubt” standard in daily life and are even more surprised that the prosecutor considered his argument proper or appropriate since People v. Nguyen, supra, 40 Cal.App.4th 28, 46 Cal.Rptr.2d 840 was filed more than one year before closing argument in this case.

10.   Penal Code section 667, subdivision (c)(6), requires consecutive sentences where there is “a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, ․”

11.   Defendant received a total term on all four counts of 26 years and 4 months to life.

WUNDERLICH, J.

BAMATTRE-MANOUKIAN, Acting P.J., and MIHARA, J., concur.

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