Filed 7/14/15 P. v. Neal CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059220
v. (Super.Ct.No. SWF1103043)
MARK KEVIN NEAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with
directions.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
and Peter Quon and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Mark Kevin Neal followed his girlfriend around from bar to bar, even
though she told him to leave her alone. He cursed out a man he saw hugging her. Later
that night, he went to her house. She was not there, but her roommate and her
roommate’s boyfriend were. Defendant kicked in the door, broke a laptop computer, and
beat up the roommate’s boyfriend.
A jury found defendant guilty of first degree burglary. (Pen. Code, §§ 459, 460,
subd. (a).) It also found him guilty of simple battery (Pen. Code, § 242), as a lesser
included offense of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)).
He was sentenced to a total of two years in prison, along with the usual fines and fees.
Defendant now contends:
1. There was insufficient evidence that, when defendant entered the house, he
intended to commit a felony.
2. The trial court erred by admitting evidence of an uncharged act of domestic
violence because none of the charged crimes involved domestic violence.
3. Defense counsel rendered ineffective assistance by failing to object to
prosecutorial error in closing argument.
We will hold that the prosecutor did misstate the law in closing argument and that
defense counsel rendered prejudicially ineffective assistance by failing to object.
Accordingly, we must reverse the burglary conviction. However, we will also hold that
2 there was sufficient evidence that defendant intended to commit a felony; hence, a retrial
of the burglary charge is not barred by double jeopardy. Finally, we will hold that the
charged burglary was a crime of domestic violence, so that prior acts of domestic violence
were admissible under Evidence Code section 1109. We will affirm the simple battery
conviction.
I
FACTUAL BACKGROUND
A. The Prosecution Case.
Michelle Lee and Stephanie Lee were roommates; they shared a house in Murrieta.
(Because the two women had the same last name, we will use their first names for the
sake of clarity.) Defendant was Michelle’s boyfriend. Stephanie’s boyfriend was Marine
Staff Sergeant Andrew Berryman.
On November 17, 2011, defendant “scolded” one of Michelle’s daughters in a way
that she considered “unacceptable.” The next day, Michelle’s daughter told her that she
was afraid of defendant. At that point, Michelle decided to break up with defendant.
However, she wanted to do it “slowly because of his anger.”
On November 18, Michelle told defendant she was going out with friends. She
said she did not want to be with him that night.
Michelle and her friends — including Stephanie and Berryman — went to a bar
called the Bank. Defendant kept texting her, asking her where she was, what she was
doing, and whom she was with. She told him, “Leave me alone for the night.”
3 Defendant then showed up at the Bank. Michelle told him she did not want him
there. Berryman and defendant “bought each other a couple of drinks” and had a friendly
conversation. Defendant had a total of six or seven drinks while at the Bank.
When Michelle and her friends went across the street to a bar called the Public
House, defendant followed them. Michelle’s friend Marco Souther was already there; she
hugged him.1 Defendant “wasn’t happy” about the hug; he initiated an exchange of “foul
language” with Souther. Michelle got in between them and told defendant to leave.
Defendant, however, “just kept staying.”
Stephanie and Berryman were the first to leave; they went back to the house. After
that, defendant left. However, between 11:22 p.m. and 12:51 a.m., he phoned or texted
Michelle over 20 times. Finally, around 1:00 a.m., Michelle and Souther left; they went
to Souther’s house.
Defendant left Michelle one voicemail saying: “You’re in the house right now. I
don’t know what you’re doing, but I’m here. I’m at your house. It’s late and it’s dark and
cold, so, um, I’m here. Not sure what the fuck you’re doing right now. Call me. Call me
back. Bye.”
He also left her another voicemail saying: “Michelle — I am in front of your
fucking house right now. I don’t know what the fuck you’re doing. I am here. I don’t
know — what the hell? Please call me. What the fuck, man?”
1 Souther and Michelle had dated “a little bit” in the past, but defendant did not know that.
4 Defendant kicked down Michelle’s front door and went inside. In her bedroom, he
broke her laptop computer in half, ripping the screen away from the keyboard, and left it
on the floor.
Stephanie was asleep in her own bedroom. Berryman was outside on the back
patio, sitting down and smoking. He first realized defendant was there when defendant
came out through the patio door. Berryman said, in a friendly manner, “Mark, what are
you doing here?”
Defendant punched Berryman in the face, knocking him out of the chair and onto
the ground. He continued to hit Berryman in the head and shoulders. Berryman managed
to kick defendant away long enough to get to his feet. He said, “Mark, what the hell is
going on right now?”
According to Berryman, defendant “snapped[] to[].”2 Defendant accused
Berryman of knowing where Michelle was. Berryman said, “This is insane right now.
Do you think maybe this is why she wouldn’t be with you?” Defendant then punched
Berryman in the face again. Berryman fell to the ground, on his back, and defendant
started choking him. Berryman tapped defendant’s arm, as a signal of surrender, but
defendant just laughed and said, “You think I’m going to stop?” The choking lasted 15 to
2 Berryman’s complete sentence, according to the reporter’s transcript, was: “[I]t was almost like he snapped, too.” Defendant reads this as “snapped to,” meaning “snapped to attention” or “snapped out of it.” Given Berryman’s further testimony that defendant then stopped punching him and started talking to him, we agree with this interpretation. Certainly the jury could reasonably understand it this way.
5 20 seconds; Berryman could not breathe. Finally, he managed to throw defendant off of
him.
Again, according to Berryman, defendant “snapped[] to[]. Like he stopped, and he
took a step back, and said, ‘What the hell am I doing?’” Berryman talked to him and tried
to calm him down. Finally, defendant said, “I have a cab waiting right now. I’m going to
go.” He left in the waiting cab.
Berryman woke Stephanie, and she called 911. Berryman was taken to a hospital.
His medical records were introduced into evidence. Although they have not been
transmitted to us (see Cal. Rules of Court, rules 8.122(a)(3), 8.224(a)), apparently they
said that he had a head injury with a concussion, but the head injury did not appear
serious. His face remained swollen for about a month. His left eye “was filled up with
blood” and stayed that way for several months.
The prosecution also introduced evidence that defendant had committed uncharged
domestic violence. (See part IV, post.)
B. The Defense Case.
Defendant testified on his own behalf.
According to defendant, on November 18, 2011, Michelle told him, “I would like
to go spend a couple of hours with my girlfriend at [t]he Bank . . . I’ll call you when I’m
done, and we can meet up afterwards.”
6 Accordingly, around 9:30 p.m., defendant went to the Bank and joined Michelle’s
group. She was “distant”; defendant started to feel “[t]here was a dynamic going on that
[he] wasn’t aware of.” However, she never said she did not want him there.
Defendant walked over to the Public House in company with Michelle, Stephanie,
and Berryman. As they were going in, defendant “bumped shoulders” with Souther, and
they told each other, “Hey, watch out.”
Michelle “gravitat[ed]” toward Souther. Defendant did not know who Souther
was. Michelle’s “body language” indicated that she wanted defendant to leave her alone.
He “tr[ied] to steer clear and observe.” He had “[m]aybe two” more drinks at the Public
House.
Defendant was “enjoying the music” when he glanced over and realized that
Michelle and her friends were gone. He tried to phone her and text her. When that failed,
he took a cab to her house. He “figured” everybody had gone back to her house, to
“continue our party . . . .”3
When he got there, the house was dark. He knocked on the door. He also tried to
phone Michelle. He then called a cab.
3 On cross-examination, however, defendant admitted that Michelle “made it very clear that night that she did not want to see [him] anymore[.]”
7 Defendant admitted kicking in the door, but only because he was “frustrated and
confused” and because he was cold. At that moment, he did not intend to do anything in
particular inside the house. He thought no one was home.4
Defendant also admitted punching Berryman, because he was frustrated and
because he believed that Berryman was lying “[a]bout where Michelle was and who she
was with.”
Finally, defendant admitted breaking the laptop, but only by accident: “I thought
maybe [Michelle] was asleep . . . . And when I pulled [the sheets] back, the laptop, which
I didn’t even see, was on the bed, and it just kind of fell over on to the floor.”
II
INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT
TO THE PROSECUTOR’S MISSTATEMENT OF THE LAW
Defendant contends that defense counsel rendered ineffective assistance by failing
to object to prosecutorial misconduct in closing argument.
A. Additional Factual and Procedural Background.
In her rebuttal closing argument, the prosecutor stated:
“I want to talk just briefly about the voluntary intoxication. . . . It’s not a defense
at all to . . . battery causing serious bodily injury. The fact that he was intoxicated at the
4 Defendant told police, however, that he knew Stephanie and Berryman were home because he saw them through the window.
8 time is not a defense. What you can consider his intoxication level for is whether it
prevented him from forming the intent to enter the house to commit an assault.
“And here’s why voluntary intoxication doesn’t apply. Let’s take a scenario where
a defendant is at a bar drinking, gets intoxicated. Leaves the bar. Mistakenly believes
he’s getting into his vehicle. It looks like his vehicle. It’s open. So gets into the car, and
let’s say in this hypothetical he drives away; right? He could be not guilty of stealing a
car, because in his drunken mind he thought the car was his. That is a whole lot different
than that same man getting drunk in a bar coming outside and saying, ‘Man, I’m wasted,
and I don’t really feel like waiting for a cab. So I’m going to steal this car and take it
home. And I’m not in my right mind, but I have liquid courage, and I’m fueled by
alcohol to do this.’ . . .
“The defendant didn’t go into Michelle Lee’s house mistakenly believing that it
was his, or under some mistaken belief because he was intoxicated. We know that he was
— at least had his wits about him to talk to the police officer in a coherent manner. You
can understand what he’s saying on the voicemails. All the alcohol did for him that night
was give him maybe the courage or the lack of sense to do what he did. But it didn’t
prevent him from forming the intent to commit an assault. It probably actually fueled it is
what happened.”
Defense counsel did not object.
9 B. Analysis.
“‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent
that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno
(2014) 60 Cal.4th 659, 666-667.)
“‘“‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments
before the jury, as all of defendant’s claims are, ‘“the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.”’ [Citation.] To preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the improper argument. [Citation.]”
[Citation.] A failure to timely object and request an admonition will be excused if doing
either would have been futile, or if an admonition would not have cured the harm.’
[Citation.]” (People v. Adams (2014) 60 Cal.4th 541, 568-569.)
“[I]t is misconduct for a prosecutor, during argument, to misstate the law [citation]
. . . .” (People v. Whalen (2013) 56 Cal.4th 1, 77.) Defendant claims the prosecutor
10 erroneously equated two distinct defenses:5 (1) voluntary intoxication that prevents the
formation of a specific intent and (2) mistake of fact. Thus, she told the jury that
voluntary intoxication could not be a defense unless it resulted in a mistake of fact.
Preliminarily, defense counsel forfeited the claimed misconduct by failing to
object. Defendant does not claim that any exception to the rule of forfeiture applies.
Defendant does argue that we have discretion to reach the issue, despite the forfeiture.
However, we see nothing unusual about this case so as to call for the exercise of that
discretion. Thus, the only question properly presented is whether defense counsel
rendered ineffective assistance by failing to object.
“When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
5 In this discussion, we use “defense” loosely to mean any theory that negates guilt, whether it disproves an element of the prosecution’s case or it proves an affirmative defense.
11 appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, the prosecutor did indeed misstate the law. Basically, she asserted that
voluntary intoxication was not a defense unless it caused defendant to be under a mistake
of fact. However, mistake of fact is a defense without regard to whether it is the result of
voluntary intoxication. (Pen. Code, § 26, subd. Three.) Contrariwise, voluntary
intoxication that prevents the formation of a specific intent is a defense without regard to
whether it results in a mistake of fact. (Pen. Code, § 29.4, subd. (b).) In some instances,
these defenses may overlap, as in the prosecutor’s example of an intoxicated person who
mistakenly drives the wrong car. Nevertheless, they are independent.
For example, in People v. Hughes (2002) 27 Cal.4th 287, the defendant was
charged with murder, burglary, robbery, and forcible sodomy. (Id. at p. 315.) There was
evidence that, at the time of the alleged crimes, he was under the influence of cocaine and
alcohol. (Id. at pp. 315, 321.) There was expert testimony that “the combination of drugs
and alcohol ingested by defendant likely caused ‘significant impairment’ of defendant’s
mental abilities at the time of the charged crimes.” (Id. at p. 323.) An instruction on the
sodomy charge stated, “‘ . . . no act committed by a person while in a state of voluntary
12 intoxication is less criminal by reason of his having been in such a condition.’” (Id. at
p. 340, italics omitted.) However, the trial court also instructed that, with respect to the
murder, burglary, and robbery charges, “[i]f the evidence shows that the Defendant was
intoxicated at the time of the alleged crime, you should consider that fact in determining
whether the Defendant had [any necessary] specific intent and/or mental state.” (Id. at
p. 340, italics omitted.)
The Supreme Court characterized voluntary intoxication as “the centerpiece of
[the] defense.” (People v. Hughes, supra, 27 Cal.4th at p. 341.) It concluded, however,
that even assuming the “no act” instruction was “potentially misleading,” in light of the
evidence, instructions, and argument, taken as a whole, it was not reasonably likely that
the jury misunderstood it as meaning that the evidence of voluntary intoxication was
irrelevant to the murder, burglary, and sodomy charges. (Ibid.) In sum, then, the court
endorsed voluntary intoxication that prevents the formation of specific intent as a defense,
even though there was no evidence of any particular mistake of fact.
We cannot imagine a rational tactical reason for defense counsel’s failure to
object. Defense counsel had requested a voluntary intoxication instruction. In his closing
argument, he had called the jury’s attention to the instruction and argued: “You can
consider voluntary intoxication. Was he able to form the specific intent to commit an
assault by means of force likely to cause great bodily injury? If you don’t have that
feeling, if you don’t believe that beyond a reasonable doubt as the instruction says, you
must find him not guilty.” Because the prosecutor made her remarks in her rebuttal
13 argument, defense counsel could not counter them by responding to them in his own
closing. The only reasonable thing to do was to object and to request an admonition.
Finally, it is reasonably probable that, if defense counsel had objected and
requested an admonition, the verdict would have been more favorable to defendant. As
already noted, defense counsel was relying on voluntary intoxication as a defense. There
was ample evidence that defendant was heavily intoxicated. In addition, there was
evidence that, due to his intoxication, he was not really planning or thinking things
through. He called a cab before kicking down the door; this seems inconsistent with a
plan to assault someone inside. He could not be sure Michelle was even home. His
assault on Berryman seems to have been rash and unconsidered, as shown by the way he
“snapped[] to[]” from time to time. At one point, defendant even said, “‘What the hell
am I doing?’” Finally, defendant testified himself that he kicked down the door only
because he was cold, frustrated, and confused, and he had no particular idea of what he
was going to do inside.
Conversely, the evidence that defendant already intended to commit an assault
when he entered was weak, at best. As we will discuss in part III, ante, the jury was
allowed to infer, from the fact that he ultimately did commit an assault, that he entered
with the intent to commit an assault. However, it was not required to draw this inference;
moreover, other evidence contradicted it. Arguably, kicking in the door and breaking the
laptop were some evidence of an intent to commit violent acts, but they were perfectly
14 consistent with a “Hulk smash” state of mind in which he did not prevision any particular
violent act.
The prosecutor’s misstatement of law — that voluntary intoxication was not a
defense because it did not cause defendant to be under a mistake of fact — tended to
prevent the jury from giving this evidence due consideration.
We acknowledge that “‘[w]hen argument runs counter to instructions given a jury,
we will ordinarily conclude that the jury followed the latter and disregarded the former,
for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.” [Citation.]’ [Citation.]” (People v. Centeno, supra, 60 Cal.4th at p. 676.)
The jury was instructed, “If you believe that the attorneys’ comments on the law conflict
with my instructions, you must follow my instructions.” (CALCRIM No. 200.) It was
also instructed that it could “consider evidence . . . of the defendant’s voluntary
intoxication . . . in deciding whether the defendant acted with the specific intent to
commit an assault by means of force likely to cause great bodily injury.” (CALCRIM
No. 3426.)
The prosecutor, however, paid lip service to the voluntary intoxication instruction
and purported to be merely explaining it. As already discussed, voluntary intoxication
that prevents the formation of specific intent and voluntary intoxication that causes a
mistake of fact can overlap. We would not expect a lay jury to detect, based on the
instruction alone, the flaw in the prosecutor’s argument. (See People v. Centeno, supra,
15 60 Cal.4th at pp. 676-677 [prosecutor’s misstatement of reasonable doubt standard was
prejudicial where “[i]t did not directly contradict the trial court’s instruction on proof
beyond a reasonable doubt, but instead purported to illustrate that standard.”].)
We therefore conclude that the ineffective assistance was prejudicial with regard to
the burglary conviction. The error, however, did not affect the simple battery conviction.
As the prosecutor correctly indicated, battery is a general intent offense (James v. State of
California (2014) 229 Cal.App.4th 130, 142), and voluntary intoxication is not a defense
to a general intent offense. (People v. Atkins (2001) 25 Cal.4th 76, 81-82.) Accordingly,
the simple battery conviction may stand.
III
THE SUFFICIENCY OF THE EVIDENCE
OF THE INTENT TO COMMIT A FELONY
Defendant contends that there was insufficient evidence that, when he entered the
house, he intended to commit a felony. As we have already held, in part II.B, ante, the
burglary conviction must be reversed in any event. Nevertheless, we address this issue
because, if defendant is correct, double jeopardy principles would bar his retrial for
burglary. (People v. Hill (1998) 17 Cal.4th 800, 848; see generally Burks v. United States
(1978) 437 U.S. 1, 16-17.)
Burglary is committed by entering a house or other specified structure “with intent
to commit grand or petit larceny or any felony . . . .” (Pen. Code, § 459, italics added.)
“A necessary element to this crime is that the intent to commit the theft or felony must
16 exist at the time of entry. [Citation.]” (In re Leanna W. (2004) 120 Cal.App.4th 735,
741.)
The prosecution’s theory was that the intended felony was assault by means of
force likely to cause great bodily injury, a felony. (Pen. Code, § 245, subd. (a)(4).)6
Thus, the jury was instructed that, to find defendant guilty of burglary, it had to find that
“he intended to commit an assault by means of force likely to cause great bodily injury.”
Simple assault would be only a misdemeanor. (Pen. Code, §§ 240, 241, subd. (a).)
“‘“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence — that is, evidence that is reasonable,
credible, and of solid value — from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’
[Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) “‘“‘[I]f the
circumstances reasonably justify the jury’s findings, the judgment may not be reversed
6 The trial court found insufficient evidence that defendant entered with the intent to commit felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)) by damaging Michelle’s laptop, and it barred the People from proceeding on this theory.
17 simply because the circumstances might also reasonably be reconciled with a contrary
finding.’ [Citation.]”’ [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 945.)
As a general rule, the actual commission of a crime inside a structure supports a
finding that the defendant intended to commit that crime when he or she entered the
structure. For example, “[e]vidence of theft of property following entry may create a
reasonable inference that the intent to steal existed at the moment of entry. [Citation.]”
(In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
There was sufficient evidence that defendant did actually commit assault by means
of force likely to cause great bodily injury. “Consistent with its meaning in analogous
statutory contexts, ‘great bodily injury’ refers to ‘significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.’ [Citations.]” (People v.
Wyatt (2012) 55 Cal.4th 694, 702; see also CALCRIM No. 875.) “Because the statute
speaks to the capability of inflicting significant injury, neither physical contact nor actual
injury is required to support a conviction. [Citation.] However, if injuries do result, the
nature of such injuries and their location are relevant facts for consideration in
determining whether an object was used in a manner capable of producing and likely to
produce great bodily injury. [Citations.]” (People v. Brown (2012) 210 Cal.App.4th 1,
7.)
Here, defendant struck repeated bare-knuckled blows to Berryman’s face and head.
Berryman suffered a concussion. He was left with facial swelling that took a month to
subside. This was sufficient evidence of force likely to cause great bodily injury.
18 Separately and alternatively, choking alone can constitute force likely to cause great
bodily injury. (People v. Covino (1980) 100 Cal.App.3d 660, 664-665, 667-668.)
Defendant relies on the fact that the jury found him not guilty of battery causing
serious bodily injury, and guilty only of simple battery. This confuses two wholly distinct
issues — insufficiency of the evidence and inconsistency of the verdicts. “A jury in a
criminal case may return inconsistent verdicts. [Citations.]” (People v. Williams (2001)
25 Cal.4th 441, 449.) “[T]he fact that a guilty verdict on one count is inconsistent with an
acquittal verdict on another no longer compels reversal if there is substantial evidence to
support the conviction. [Citation.]” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657.)
“‘“[R]eview of the sufficiency of the evidence . . . should not be confused with the
problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt. [Citations.] This review
should be independent of the jury’s determination that evidence on another count was
insufficient . . . .”’ [Citation.]” (People v. Superior Court (Sparks) (2010) 48 Cal.4th 1,
13.)
Defendant also argues that, when he entered the house, he did not know that
Berryman was inside. He claims that, while he may have suspected Michelle was inside,
there was no evidence that he would have used the same degree of force against her. This
is fairly inferable, however, from the fact that Michelle was the person he was primarily
angry with. He had no motive for attacking Berryman, other than that he was angry with
19 Michelle and he was displacing that anger onto Berryman. Significantly, he also smashed
Michelle’s laptop, apparently only because it was an inanimate object belonging to her. It
was fairly inferable that, if he had found her in the house, he would have assaulted her
with the same or even greater force.
We therefore conclude that there was sufficient evidence that defendant entered
the house with the intent to commit assault with force likely to cause great bodily injury.
IV
THE ADMISSION OF EVIDENCE UNDER EVIDENCE CODE SECTION 1109
Defendant contends the trial court erred by admitting evidence of an uncharged act
of domestic violence, because none of the charged crimes involved domestic violence.
As already discussed (see part II.B, ante), we must reverse the burglary conviction in any
event. We discuss this contention because if defendant is correct, it would require
reversal of the simple battery conviction. We also discuss it for the guidance of the trial
court on remand.
A. Additional Factual Background.
The following evidence of an uncharged domestic violence incident was
introduced at trial.
At the time of trial, Cecilia Caipo was defendant’s girlfriend; they had been living
together for over a year.
On October 29, 2012, defendant and Caipo got into an argument. He tried to grab
her cell phone. He slapped her twice. He also grabbed her shirt, and “in [the] tussle,” it
20 got ripped. Caipo ran outside. The neighbors called the police. When the police arrived,
Caipo was crying.
Caipo testified that she slapped defendant before he slapped her. However, she did
not remember telling this to the police.
B. Additional Procedural Background.
The prosecution and defense counsel filed cross-motions in limine to admit and to
exclude, respectively, evidence of the uncharged domestic violence involving Caipo.
Defense counsel argued, among other things, that “[t]he case before this court is not a
domestic violence case.” The trial court ruled that the evidence was not admissible under
Evidence Code section 1101, subdivision (b). However, it admitted the evidence under
Evidence Code section 1109.
After Caipo’s direct examination, defense counsel moved for a mistrial. The trial
court denied the motion, ruling again that the evidence was admissible under Evidence
Code section 1109.
The jury was instructed: “If you decide that the defendant committed the
uncharged domestic violence, you may but are not required to conclude from that
evidence that the defendant was disposed or inclined to commit domestic violence and,
based on that decision, also conclude that the defendant was likely to commit and did
commit residential burglary, as charged here.”
21 C. Analysis.
Subject to exceptions not applicable here, Evidence Code section 1109 allows the
admission of evidence of uncharged domestic violence “in a criminal action in which the
defendant is accused of an offense involving domestic violence . . . .” (Evid. Code,
§ 1109, subd. (a).)
As used in Evidence Code section 1109, “‘[d]omestic violence’ has the meaning
set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to
Section 352, . . . ‘domestic violence’ has the further meaning as set forth in Section 6211
of the Family Code, if the act occurred no more than five years before the charged
offense.”
Penal Code section 13700, as relevant here, provides:
“(a) ‘Abuse’ means 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.
“(b) ‘Domestic violence’ means abuse committed against an adult or a minor who
is a . . . person with whom the suspect . . . is having or has had a dating or engagement
relationship.”
As already discussed (see part III, ante), the prosecution’s theory was that
defendant committed burglary because he entered with the intent to commit the felony of
assault by means of force likely to cause great bodily injury. This tees up the question of
who was the intended victim of the intended assault. Ultimately, as we know, defendant
22 actually assaulted Berryman. The burglary charge, however, was based on the assault that
he intended to commit when he entered the house, not the assault that he actually
committed (except to the extent that the latter was some evidence of the former).
There was substantial evidence that defendant actually intended to assault
Michelle. He had been following her around all night, even though she had told him to
leave her alone. He was jealous and angry, as shown by his outburst after Michelle
hugged Souther. According to one of his voicemails, he believed Michelle was inside the
house. Also, he testified that he checked Michelle’s bed to see if she was in it. Finally,
he had no real motive to assault Berryman, other than out of frustration at not being able
to assault Michelle, as intended.
Thus, there was substantial evidence that the intended assault constituted domestic
violence within the meaning of Penal Code section 13700. In our view, when the
intended felony that underlies a burglary would constitute domestic violence, the burglary
is itself “an offense involving domestic violence” within the meaning of Evidence Code
section 1109. Under almost any definition of “involve,” when the specific intent element
of a charged crime is satisfied by proof of the intent to commit a further crime of
domestic violence, the charged crime involves domestic violence.7 Certainly this is true
7 The People urge us to rely on the definition of domestic violence in Family Code section 6211. That definition requires “abuse,” which includes “any behavior that has been or could be enjoined pursuant to Section 6320” (Fam. Code, § 6203), which in turn includes “making annoying telephone calls as described in Section 653m of the Penal Code” and “destroying personal property . . . .” (Fam. Code, § 6320, subd. (a).) [footnote continued on next page]
23 when the intended domestic violence crime is actually committed. (People v. James
(2010) 191 Cal.App.4th 478, 483-484.) We believe it is equally true when the intended
domestic violence crime is not committed.
Defendant argues that “[i]n order to constitute domestic violence, Michelle must
have suffered some ‘abuse’ as defined by Penal Code section 13700.” This overlooks the
peculiar nature of burglary — it criminalizes the actus reus of entering (even when it is
perfectly harmless), provided it is accompanied by a felonious mens rea (even when it is
not carried out). In this respect, burglary resembles inchoate crimes such as attempt,
conspiracy, and solicitation. An attempt to commit domestic violence “involves”
domestic violence. (See People v. Rucker (2005) 126 Cal.App.4th 1107, 1114-1121
[prior domestic violence admitted in prosecution for attempted murder].)
We therefore conclude that the trial court did not err by admitting evidence of the
uncharged domestic violence incident under Evidence Code section 1109.
[footnote continued from previous page] We need not decide whether this definition would apply here. It is significant, however, that under our analysis, we need only look at whether the defendant entered a structure with the intent to commit a felony that would constitute domestic violence. By contrast, under the People’s analysis, the intended felony is apparently irrelevant, as long as the defendant did, in fact, make annoying telephone calls or destroy personal property before, during, or after the entry. This demonstrates that we are using a more narrow and readily supportable definition of “involve” than are the People.
24 V
DISPOSITION
The judgment is reversed. The conviction for burglary is reversed; the conviction
for simple battery is affirmed. On remand, if the prosecution elects not to retry the
burglary charge, or if the prosecution fails to retry the burglary charge in a timely manner
(see Pen. Code, § 1382, subd. (a)(2)), the trial court shall promptly resentence defendant.
The clerk of this court is directed to send a copy of this opinion to the State Bar
immediately upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd.
(a)(2).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
KING J.