NOT TO BE PUBLISHED
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Tuolumne County, Super. Ct. No. CRF24486. Eleanor Provost, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury convicted appellant Russell Lee Hedge of false imprisonment (Pen. Code, § 236) and misdemeanor battery on a person with whom he had a dating relationship (Pen. Code, § 243, subd. (e)(1)). The court placed appellant on five years’ probation, with various terms and conditions, including that he serve eight months in county jail.
On appeal, appellant contends the court erred in admitting evidence he committed an act of domestic violence that was not charged in the instant case. We will affirm.
FACTS
Instant Offenses
Jonathan Foley testified to the following: On April 28, 2007 (April 28), during the day, he was driving, in the process of “turning into Twain Harte,” when he saw, on the side of the road, “a man straddled over [a] woman.” The man appeared to be striking the woman with his hand. Foley turned around, parked and saw the man shoving sticks and leaves into the woman’s face. Foley got out of his car and called out to the woman, asking if she was all right. The woman “ask[ed] for help,” at which point, the man got up, approached Foley and told him “it was none of [Foley’s] business and to just get out of [there].” Foley then “stopped the vehicle that was coming up the road to have them call 911 ….” At that point the woman got up and approached Foley, and the man got in a black Subaru and drove away. The woman was “very shook up”; she repeatedly cried out for help. It was “pretty apparent” to Foley she was under the influence of alcohol. “[L]aw enforcement” arrived on the scene “within ten minutes ….”
Tuolumne County Deputy Sheriff Paul Speers testified that on April 28 he arrived on the scene to investigate a report of an assault, and made contact with Foley and Debra Kabeary. Kabeary was bleeding, her blouse was torn, “she had dirt all over her,” she was crying and shaking, and she was intoxicated. She told the officer “she hit a tree.” When the officer questioned her further, Kabeary “said fine, I was beaten up.”
Except as otherwise indicated, the remainder of our factual statement is taken from Deputy Speers’s testimony.
Deputy Sheriff Kelly Dickson testified he arrived on the scene with Deputy Speers; he asked Kabeary where she lived; and Kabeary responded “that she was staying up the dirt driveway across the road …, but she obviously wouldn’t be staying there anymore ….” When Kabeary learned the deputies were going to go to the house at the end of the driveway, “she became very frightened” and said “she did not want to go to the house.” Shortly thereafter, the two deputies drove to the house and made contact with appellant. Appellant fit the description that Foley had provided of the man he had seen hitting Kabeary, and there was a black Subaru parked nearby. Appellant smelled strongly of an alcoholic beverage, and he had blood on his right hand and his face. Appellant was placed under arrest.
Kabeary testified to the following. She had known appellant for approximately three years, she and appellant had dated and at the time of trial they were still “in a relationship” together. On April 28, after learning that she “probably had breast cancer,” she drove to appellant’s house and pulled into the driveway. She stopped a short distance up the driveway “[t]o take a breather and [she] drank a few beers.” She was upset because of the bad news she received, she had taken some medication “which was not supposed to be taken with liquor” and she was “not … able to walk because of a severe bilateral leg pain ….” She got out of the car and “tripped face down … with [her] mouth open ….” At that point, appellant “came over to try and turn [her] over and help [her] up and get some crud out of [her] mouth ….” Shortly thereafter, she “stumbled or ran … and ended up across the street.” She “wasn’t of [her] normal reasoning capacity.” She was crying, when “[a] man came up to [her] and [she] prayed with him.”
Prior Act of Domestic Violence
Sonora Police Officer Jerry McCaig testified that on December 25, 1998, while employed as Tuolumne County deputy sheriff, he made contact with Catherine Harvey, at which time Harvey told him the following. Appellant came to her house that day. He was drunk and he “continued to drink alcohol throughout the evening.” At approximately 11:20 p.m., Harvey was asleep in her bedroom when appellant came into the room and awakened her. Harvey told appellant she did not want to talk to him because he was drunk. Appellant then picked up a small dog and threw it at Harvey. The dog “landed on her face.” Appellant then “grabbed [Harvey] by the hair with both of his hands,” pulled her off the bed and onto the floor “and then sat on her stomach and started punching her about the face and head ….” Harvey bit appellant on the thumb, he got off of her and she “ran downstairs and called 911.” Appellant left the house shortly thereafter. McCaig “saw a clump of human hair matching the color of [Harvey’s] hair … next to the bed,” but he “didn’t see any signs of any injury” to her face.
Harvey testified to the following. Appellant was a friend of hers and she and appellant “were … together as a couple” for two years, approximately 13 years previously. She denied that appellant ever sat on her stomach and punched her, and she did not have “any recollection of talking to a deputy about anything.”
DISCUSSION
Prior to trial, the prosecutor filed a written motion seeking the admission of evidence of the 1998 incident involving Harvey, under Evidence Code section 1109. At the hearing on the motion, appellant argued that evidence of the incident was inadmissible under section 352 and on state and federal constitutional grounds. The court ruled the evidence was admissible under section 1109 and was not inadmissible under section 352 or on due process grounds. On appeal, appellant renews his contention that admission of the uncharged-act evidence violated section 352 and appellant’s due process rights under the United States and California Constitutions. We disagree.
We sometimes refer to this incident as the uncharged act.
All further statutory references are to the Evidence Code.
Section 352
With exceptions, “evidence of a person’s character or a trait of his or her character ... in the form of ... specific instances of his or her conduct ... is inadmissible when offered to prove his or her conduct on a specified occasion.” (§ 1101, subd. (a).) One such exception is found in section 1109, subdivision (a)(1), which, in a criminal action in which the defendant is accused of an offense involving domestic violence, “permits the admission of [evidence of] defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes,” provided that such evidence is not made inadmissible pursuant to section 352. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) The admission of such evidence is also limited by section 1109, subdivision (e), which states that “[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Thus, “[u]nder [section 1109], evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence [provided such prior act evidence is not inadmissible pursuant to section 352].” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114; accord, People v. Brown (2000) 77 Cal.App.4th 1324, 1333 [“obvious intention of the Legislature [in enacting section 1109] was to provide a mechanism for allowing evidence of past ... acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type”].)
Section 1109, subdivision (a) provides (with exceptions not applicable here) that “in 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.”
There is no dispute that the instant offenses and the 1998 incident constitute acts of domestic violence within the meaning of section 1109. Nor is there any dispute that such evidence was relevant. (§ 210 [defining “relevant evidence”]; People v. Fitch (1997) 55 Cal.App.4th 172, 179 [noting the “‘indubitable relevancy of specific bad acts showing the character of the accused’”].) Accordingly, we now turn to the question of whether the uncharged-act evidence was inadmissible under section 352.
Section 352 provides, in relevant part, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Trial courts enjoy “broad discretion” in making this determination. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of this discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (Ibid.; accord, People v. Karis (1988) 46 Cal.3d 612, 637 [such discretion “will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value”]; People v. Tran (1996) 47 Cal.App.4th 759, 771 [“A trial court’s exercise of discretion under Evidence Code section 352 will not be reversed unless it ‘exceeds the bounds of reason, all of the circumstances being considered’”].)
We examine first the probative value of the evidence of the uncharged act. “Probative value goes to the weight of the evidence of other offenses. The evidence is probative if it is material, relevant, and necessary. ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’” (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20, overruled on another ground, in People v. Rowland (1992) 4 Cal.4th 238, 260.)
First, the evidence of the uncharged act had a high degree of relevancy. “[T]he rationale for [the general rule that propensity evidence is inadmissible] 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.’” (People v. Fitch, supra, 55 Cal.App.4th at p. 179.) “‘A defendant with a propensity to commit acts similar to the charged crime is more likely to have committed the charged crime than another.’” (People v. Soto (1998) 64 Cal.App.4th 966, 989, italics added.) And “if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 285.) The uncharged 1998 assault was remarkably similar to the instant offense. In each case, appellant, apparently while under the influence of alcohol, immobilized a female victim by sitting on her and struck her with his hands.
In addition, the uncharged-act evidence had a high degree of materiality, in that evidence tending to show appellant committed an act of domestic violence went to the central issue in the case, and it had a high degree of necessity because the victim in the instant case denied that appellant assaulted her. Thus, the uncharged-act evidence was highly relevant, material and necessary and therefore had great probative value.
Appellant does not dispute this point. Indeed, he acknowledges that because the uncharged 1998 assault was similar to the conduct the People sought to prove in the instant case, the uncharged-act evidence was highly probative, and he argues that this very factor “contributed to [the] prejudicial nature” of the evidence. This argument misses the mark. Although the challenged evidence was no doubt harmful to the defense case, this fact does not establish prejudice as contemplated by section 352. All evidence of prior domestic violence offenses admitted pursuant to section 1109 tends to prove the defendants propensity to commit similar offenses. (People v. Karis, supra, 46 Cal.3d at p. 638 [“‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case’”].) However, this is not the type of “prejudice” against which section 352 protects. “‘The prejudice which … [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’” (People v. Zapien (1993) 4 Cal.4th 929, 958.) “‘The “prejudice” referred to in [section 352] applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis, supra, 46 Cal.3d at p. 638.)
Appellant also argues that the uncharged-act evidence created a substantial danger of confusing the jury because it “diverted [the jury’s] focus” from consideration of the charged offenses to the question of whether appellant committed an act of domestic violence in 1998. This contention is without merit. By definition, evidence of uncharged acts is about something other than the charged offense, and as indicated above, such evidence is specifically made admissible by section 1109. There is nothing in the record to indicate that the uncharged-act evidence here, presented in the form of the testimony of only two of the eight witnesses who testified at trial, so overwhelmed jurors that they were unable to “focus” on the fact that the question before them was whether appellant committed the charged offenses.
Appellant does cite two factors which militate against admission of the uncharged-act evidence: there was no evidence appellant was convicted of the uncharged act, and it occurred more than nine years prior to the instant offenses. We acknowledge that where “uncharged acts [do] not result in criminal convictions,” a jury “might [be] inclined to punish [the] defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses,” thus “increase[ing] the likelihood of ‘confusing the issues’ ([§ 352])” (People v. Ewoldt (1994) 7 Cal.4th 380, 405), and the remoteness in time of the uncharged-act evidence favors its exclusion (People v. Harris (1998) 60 Cal.App.4th 727, 739). However, although both these factors are properly considered in a section 352 analysis, neither compels exclusion. (See, e.g., People v. Ing (1967) 65 Cal.2d 603, 612 [evidence of uncharged misconduct held admissible even though prior offense was committed 15 years before charged offenses committed].] Moreover, there was evidence that appellant’s attack on Kabeary left her face bleeding and her clothing torn, whereas Officer McCaig observed no signs of injury on Harvey’s face, and in each instance the victim denied that appellant assaulted her. Thus, the evidence of the uncharged act “was no stronger and no more inflammatory” than the evidence of the charged offenses, and “[t]his circumstance decreased the potential for prejudice” under section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
To summarize, our examination of the record reveals that the uncharged-act evidence was highly probative, and, although the uncharged act was remote in time and there was no evidence it resulted in a conviction, the evidence was not highly inflammatory. On this record the court’s conclusion that the evidence was not made inadmissible by section 352 was far from arbitrary and capricious. Accordingly, we will not disturb that conclusion on appeal.
Due Process
Appellant contends the admission of the uncharged-act evidence violated his constitutional right to due process of law. There is no merit to this contention. Where, as here, evidence of prior uncharged acts of domestic violence are admitted pursuant to section 1109 and the evidence is not made inadmissible pursuant to section 352, the admission of such evidence does not violate the defendant’s due process rights. (People v. Hoover, supra, 77 Cal.App.4th at pp. 1028-1029.)
DISPOSITION
The judgment is affirmed.
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