People v. Dealba

Filed 12/7/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B250771

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA397144)

v.

SERGIO DEALBA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gail Ruderman Feuer, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and

Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is

certified for partial publication. The portions of this opinion to be deleted from

publication are those portions enclosed within double brackets, [[ ]].

Defendant and appellant Sergio Dealba raises contentions of sufficiency of the

evidence and admissibility of prior domestic violence evidence following his conviction

of assault with a deadly weapon and spousal battery, with a prior serious felony

conviction finding.

While acknowledging the well-recognized rule that an “indirect touching” is

sufficient to constitute a battery, Dealba contends there was no indirect touching here

because the only thing that happened was that his car collided with another car being

driven by the victim, i.e., his car did not directly touch the victim. However, for the

reasons discussed below, we conclude Dealba did commit a battery because the evidence

demonstrated that the force of the collision he intentionally caused almost made the

victim lose control of her car and, as a result, she had to wrestle with the steering wheel

in order to keep her car on the road and avoid hitting other vehicles parked along the

curb. Although there is a dearth of California case law addressing criminal battery

consisting of this type of indirect touching--one vehicle striking another without direct

contact with the victim – our decision is consistent with case law from other jurisdictions

which have considered the issue.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rules of appellate review (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206), the evidence established the following.

D.D. and defendant Dealba had been married for seven or eight years before

separating in late February 2012.1 At that time they had two children, six-year-old S.S.

and four-year-old T.T.

1

All further date references are to the year 2012 unless otherwise specified.

2

Disagreements arose between D.D. and Dealba regarding custody of the children.

At the end of March or during the first week of April, D.D. pulled the children out of the

school they had been attending in response to Dealba’s behavior: “He would take them

out of school during the day in the middle of the day . . . and he would keep them from

me. He wouldn’t let me see them. He would threaten me that I would never see them

again.” Around this time, D.D. had been trying to work out a custody arrangement with

Dealba, and she was awaiting an upcoming custody hearing.

1. The charged April 2012 incident.

On the morning of April 30, D.D. drove the children to a new school on

52nd Street where she hoped to enroll them. As D.D. was preparing to parallel park her

Volkswagen Beetle on 52nd, which is a narrow two-way street, Dealba pulled up

alongside her in a gray Mazda that belonged to one of his friends. When Dealba got out

of the car and walked toward her, D.D. drove away because she was “afraid” and

“terrified.” Dealba got back into his car, came alongside D.D. by driving in the wrong

traffic lane, and began “smashing into [her] car.” D.D. testified Dealba collided with the

driver’s side of her Volkswagen three or four times:

“Q. Well, tell us what you mean by ‘smashing.’

“A. He was hitting my car with his car, and I was just trying to keep it straight

because my kids were crying and screaming, and I was getting nervous. And there

[were] kids walking on the sidewalk, and I just didn’t want to hit anybody.”

“Q. Now, when . . . he was smashing his car into you, it was so hard, I think you

said, you almost lost control; right?

“A. Yes.

“Q. And at least the third or fourth hit, it kept knocking your car over to the side;

right?

“A. Yes.

“Q. So far to the side that it seemed like you were about to hit the parked cars that

were on the right side of the road?

“A. Yes.”

3

D.D. testified she could see Dealba turning his steering wheel and trying to smash

the front of his car into her car.

After the last time Dealba crashed into the Volkswagen, he collided head-on with

a pickup truck coming the other way in the left-hand traffic lane. Because she was afraid

of taking her eyes off the road, D.D. watched the collision in her rearview mirror:

“I never turned. I was afraid that if I even turned for a second, I would lose control, so I

saw it through my mirrors.”

Dealba’s Mazda had crashed into a vehicle being driven by Aida Arteaga, who

testified she was driving on 52nd Street when she saw two cars coming toward her side

by side. The two cars “were right next to each other.” One of them was driving in the

proper lane; the other was driving in Arteaga’s lane against the flow of traffic. Arteaga

did not see the two cars coming at her touch each other. Arteaga testified she “hit the

brakes” and came to a stop, but the car in her lane hit the front of her vehicle.2

Dealba remained at the accident scene, but D.D. kept driving. She called 9-1-1

and drove to a police station. D.D. testified the collision with Dealba had knocked askew

her Volkswagen’s sideview mirror, which was now attached to her car only by some

wires. The collision also left tire marks and scratches on the side of her car. D.D. agreed

with counsel’s characterization of the Mazda as riding “higher from the ground than [her]

Volkswagen.”3

2

Although Arteaga testified her vehicle was “totally destroyed” in the collision and

had to be towed away, other evidence indicates it was towed because Arteaga had been

taken to a hospital for observation and there was no one else to drive it.

3

At the first trial in this matter, which resulted in a hung jury, D.D. described the

Mazda as “[m]ore like a SUV.”

4

S.S. and T.T., the couple’s children, who were sitting in the back seat of the

Volkswagen during the incident, both testified they saw Dealba collide with D.D.’s car.

S.S. testified the scratches on D.D.’s car had been caused when “[m]y dad tried to crash

us over” with another car. S.S. testified he saw Dealba trying to crash into them, but that

he didn’t feel anything or receive any injuries as a result of the collision. T.T. also

testified she saw Dealba crash into them, but she too did not feel anything.

Los Angeles Police Officer Juan Ordaz testified he responded to the accident

scene, finding two damaged vehicles: Arteaga’s Chevy S-10 pickup truck and Dealba’s

gray Mazda. When Ordaz subsequently examined D.D.’s Volkswagen at the police

station, he saw black marks and scratches running the entire length of the driver’s side of

the car. The black marks were circular and looked like rubber marks, as if a tire had been

rubbing against the side of the Volkswagen.

2. The prior domestic violence evidence.

a. The March 2012 incident involving D.D.

D.D. testified that on March 2, she was in the car with Dealba and their children.

She was sitting in the front passenger seat and Dealba was driving. At this time, D.D.

and Dealba were in the middle of working out their separation. D.D. testified she “was

trying to make some kind of agreement [regarding visitation], but he was reluctant.”

D.D. testified they argued about Dealba “trying to keep the kids. He was threatening that

I would never see the kids again if I didn’t get back with him. He was grabbing me, and

he was pulling my hair, and he was holding me down. And he threw me out of the car

while it was moving.” While guiding the steering wheel with his knee, Dealba had held

her down with his right hand and unbuckled her seat belt with his left hand. Then he

opened the door and threw her out of the car while it was still moving at 15 to 20 miles

per hour.

5

D.D. fell to the ground, rolled over a couple of times and then jumped up. She

was running toward the Inglewood Police Station when she flagged down a passing

patrol car. She reported the incident to officers who later photographed the marks on her

arms and wrists made by Dealba holding her down. D.D. was afraid Dealba would kill

her and hurt the children. Police officer Frederick Osorio testified he observed D.D.’s

injuries: “there were markings, redness on her wrists.”

S.S. and T.T. both testified they saw Dealba push D.D. out of the car.

b. The February 2002 prior incident involving Martha A.

In 2002, Dealba was married to Martha A. At the instant trial, Martha testified as

follows: She and Dealba divorced sometime in 2002 or in 2003. On February 10, 2002,

they were living together in an apartment when an argument erupted during which they

hit each other and Dealba whipped Martha one time with a leather belt. Martha could not

recall having sustained any injuries, but acknowledged she might have shown police

officers some bruising on her arms and legs caused by the belt. Martha’s sister and her

sister’s children were present in the apartment when this incident occurred.

Dealba, Martha and Martha’s sister then got into the car because Martha’s sister

needed a ride home. Dealba, who was driving, stopped at a friend’s house, leaving the

others in the car after locking the doors and activating the car alarm. After a while,

Martha opened the car door, setting off the alarm. Dealba returned to the vehicle and

they argued. When Martha said she was going to leave him, Dealba got upset. Martha’s

sister intervened and also argued with Dealba. Martha did not recall having told the

police that Dealba retrieved a gun and threatened her with it, but she did remember that

he told her to get back in the car or he would kill both her and her sister.4 Martha

testified she was not now afraid of Dealba and she denied having told the prosecutor

otherwise.

4

Dealba went to prison for the February 2002 incident, although the jury was not

informed of that fact.

6

District Attorney Investigator Jennifer Dubois testified she was present when

Martha spoke to the prosecutor just before testifying. Martha told the prosecutor that on

February 10, 2002, Dealba whipped her repeatedly and threatened her with a gun. She

indicated where her arms had been bruised by the belt. Martha also told the prosecutor

that she was afraid of Dealba.

3. Defense evidence.

The defense did not present any evidence.

4. Trial outcome.

Dealba was convicted of assault with a deadly weapon and spousal battery, with a

prior serious felony conviction finding (Pen. Code §§ 245, subd. (a)(1), 243, subd. (e)(1),

667, subds. (b)-(i)).5 He was sentenced to state prison for a term of eight years,

consisting of the upper term of four years for the assault conviction which was then

doubled under the Three Strikes law. The trial court stayed sentencing on the spousal

battery conviction under section 654, which proscribes multiple punishment for a single

act.

CONTENTIONS

Dealba contends: (1) there was insufficient evidence to support his conviction of

spousal battery, and (2) the trial court erred by admitting evidence that he committed

domestic violence against a former spouse.

DISCUSSION

1. There was sufficient evidence to sustain the spousal battery conviction.

Dealba contends there was insufficient evidence to sustain his conviction of

spousal battery (§ 243, subd. (e)(1)) because there was no evidence of the “touching”

element of battery. We disagree.

5

All further statutory references are to the Penal Code unless otherwise specified.

7

a. Legal principles.

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to

review the whole record in the light most favorable to the judgment to determine whether

it discloses substantial evidence – that is, evidence that is reasonable, credible, and of

solid value – such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under

principles of federal due process, review for sufficiency of evidence entails not the

determination whether the reviewing court itself believes the evidence at trial establishes

guilt beyond a reasonable doubt, but, instead, 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.] The standard of

review is the same in cases in which the prosecution relies mainly on circumstantial

evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds

that circumstantial evidence is susceptible of two interpretations, one of which suggests

guilt and the other innocence [citations], it is the jury, not the appellate court[,] which

must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the

circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing

court that the circumstances might also reasonably be reconciled with a contrary finding

does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.

Rodriguez (1999) 20 Cal.4th 1, 11.)

“ ‘An appellate court must accept logical inferences that the [finder of fact] might

have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the

trial court can be set aside for the insufficiency of the evidence, it must clearly appear

that on no hypothesis whatever is there sufficient substantial evidence to support the

verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th

1567, 1573.) As our Supreme Court said in People v. Rodriguez, supra, 20 Cal.4th 1,

while reversing an insufficient evidence finding because the reviewing court had rejected

contrary, but equally logical, inferences the jury might have drawn: “The [Court of

Appeal] majority’s reasoning . . . amounted to nothing more than a different weighing of

8

the evidence, one the jury might well have considered and rejected. The Attorney

General’s inferences from the evidence were no more inherently speculative than the

majority’s; consequently, the majority erred in substituting its own assessment of the

evidence for that of the jury.” (Id. at p. 12, italics added.)

Section 242 defines a “battery” as “any willful and unlawful use of force or

violence upon the person of another.” (§ 242.) “ ‘Any harmful or offensive touching

constitutes an unlawful use of force or violence’ under this statute. [Citation.] ‘It has

long been established that “the least touching” may constitute battery. In other words,

force against the person is enough; it need not be violent or severe, it need not cause

bodily harm or even pain, and it need not leave a mark.’ [Citations.]” (People v.

Shockley (2013) 58 Cal.4th 400, 404-405) Therefore, “[o]nly a slight unprivileged

touching is needed to satisfy the force requirement of a criminal battery.” (People v.

Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2, disapproved on other grounds in People

v. Santana (2013) 56 Cal.4th 999, 1011, fn. 6.)

“The force may be directly applied, as by punching, kicking, or tripping the

victim. [Citations.] Or it may be indirectly applied, e.g., by forcing a person to jump

from a window or vehicle. [Citations.]” (1 Witkin & Epstein, Cal. Criminal Law (4th ed.

2012) Crimes Against the Person, § 14, p. 805; see, e.g., People v. Flores (2009)

176 Cal.App.4th 924, 931 [battery by prisoner (§ 4501.5) was committed when defendant

spat in guard’s face because “the touching can be done indirectly by causing an object to

touch the other person, and . . . the slightest touching can constitute a battery”]; People v.

Duchon (1958) 165 Cal.App.2d 690, 692-693 [defendant committed battery when he

threw electric garden shears at victim, who was cut on the arm by blades of the shears

and hit on the head by the handle of the shears]; see also CALCRIM No. 960 [alternative

instructional language for battery elements reads: “The touching can be done indirectly

by causing an object [or someone else] to touch the other person.”].)

9

b. Discussion.

Dealba acknowledges the general rule that battery can be committed indirectly by

use of an object, but he contends “there was no evidence that [his] automobile caused a

touching upon [D.D.].” He argues that although D.D. “testified that [he] used his car to

hit her car three or four times, and that he left scratches and black marks on her car,”

D.D. “did not say that any object touched her as a result of appellant using his car to hit

her car. [¶] There were no dents in her car, and she did not testify that as a result of the

hitting, that her car touched her. She testified that she did not hit the cars that were

parked along the street, and that she kept her hands on the steering wheel and tried to

drive straight ahead. Not even the children felt the impact. Therefore, there can be no

circumstantial finding that appellant caused a touching of [D.D.].”

The Attorney General argues there was sufficient evidence of a touching because

D.D. testified that Dealba “rammed her car with enough force that she almost lost control

of her car. Each time appellant rammed D.D.’s car, it knocked her car closer to parked

cars on the side of the road. D.D. was afraid of losing control of her car and had to keep

her hands on the steering wheel. [¶] Given such evidence, a reasonable trier of fact

could have concluded not only that appellant’s repeated acts resulted in sufficient force to

move or jostle D.D. within her car, but also that appellant’s acts caused the steering

wheel, which D.D. grasped with her hands, to move, jostle, and exert force within her

hands – as the collisions shoved her car closer to the side of the road and caused her to

almost lose control of her car. It was reasonable to infer that D.D. braced herself in order

to maintain control of her car by keeping her hands on the steering wheel.”

Dealba responds to this argument by acknowledging “[i]t is true that D.D. testified

that the force of the impacts from appellant’s car caused her car to move closer and closer

to the cars parked along the side of the road. It is also true that D.D. testified she almost

lost control of her car as a result of appellant hitting her car with his car, and that she had

10

to hold onto the steering wheel tightly.[6] What is missing from the record, however, is

any ‘reasonable, credible, [or] solid . . .’ evidence ‘from which a rational [juror] could

find [the touching element] beyond a reasonable doubt.’ ”

We are not persuaded by Dealba’s argument. As he concedes, it is well-

established that battery can be committed indirectly, i.e., that the crime does not require a

direct touching of the victim’s person by the defendant’s person.7 At the same time, we

have found no California cases discussing the type of indirect touching that occurred

when Dealba’s vehicle struck D.D.’s vehicle without making direct contact with D.D.

herself. However, at least two other state Supreme Courts have held that a battery can be

committed in this kind of situation.

In State v. Townsend (Idaho 1993) 865 P.2d 972 (Townsend), the defendant

intentionally drove his pickup truck into his wife’s car while both vehicles were traveling

30 or 35 miles per hour, forcing his wife off the road. The Idaho Supreme Court held the

defendant had committed a battery – despite not having directly touched his wife with his

truck – reasoning: “[T]he willful use of force or the intentional striking of another person

which is made criminal by [Idaho’s battery] statute may be committed indirectly through

an intervening agency which the defendant set in motion. Likewise, it need not be

committed directly against the victim; it may be committed against anything intimately

connected with the person of the victim. [Citations.] Under this view, the use of a motor

vehicle to intentionally strike another occupied motor vehicle may constitute battery.

[Citations.]” (Id. at p. 976.) Although the court’s conclusion appeared to rest solely on

6

Although we agree the only reasonable interpretation of the evidence is that D.D.

had to grasp the steering wheel “tightly,” she never used that word during her testimony.

7

“[T]he common-law concept of ‘force’ encompasses even its indirect application.

‘Force’ in this sense ‘describ[es] one of the elements of the common-law crime of

battery,’ [citation], and ‘[t]he force used’ in battery ‘need not be applied directly to the

body of the victim.’ [Citation.] ‘[A] battery may be committed by administering a

poison or by infecting with a disease, or even by resort to some intangible substance,’

such as a laser beam.” (United States v. Castleman (2014) 134 S.Ct. 1405, 1414-1415

[188 L.Ed.2d 426].)

11

the proposition that the victim had been “intimately connected” to her car, Townsend

relied on a different rationale in responding to the defendant’s assertion that he could not

have committed battery because there was no evidence the victim had suffered any

injury. To that claim Townsend replied: “[W]e have little difficulty in concluding that

intentionally striking a car with a pickup truck, when both vehicles are being operated at

35 miles per hour, would generate whatever physical disturbance may be implicitly

required by the statute.” (Id. at p. 977, italics added.)

In Clark v. State (Fla. 2001) 783 So.2d 967 (Clark), the Florida Supreme Court

applied a similar rationale where the defendant drove his truck into the victim’s

stationary truck at 25 to 30 miles per hour, spinning the victim around. Clark rejected the

defendant’s argument that the court should enforce “a per se rule that the intentional

striking of an automobile can never constitute the touching of the vehicle’s occupant for

battery purposes unless the occupant suffers some bodily injury.” (Id. at p. 968.) Instead,

Clark held that “the circumstances of the case will determine whether a vehicle is

sufficiently closely connected to a person so that the striking of the vehicle would

constitute a battery on the person. Thus, this is generally a question of fact for the jury.

[Citation.]” (Id. at p. 969, italics added.) Clark then went on to add: “There is sufficient

connection between a vehicle and a person where there is evidence of the touching

required for a battery, such as the impact of the vehicle contact ‘spun’ the occupant of the

vehicle.” (Ibid.) Applying this rule, Clark held that – because the victim “was ‘spun’

about when Clark’s vehicle impacted his truck” – the evidence “certainly qualifies as

intentionally touching another person for purposes of proving a simple battery.” (Ibid.)8

While agreeing with the majority’s conclusion that the defendant was guilty of

battery, the concurring justice in Clark urged a different rationale: “I concur in the

majority’s opinion, but I have difficulty with the legal issue being framed in terms of a

8

A somewhat related question was addressed in the recently-decided case of In re

B.L. (2015) 239 Cal.App.4th 1491, which involved a juvenile who knocked a walkie-

talkie out of a teacher's hand. The Court of Appeal held, as a matter of first impression in

California, that the juvenile had committed a battery.

12

‘sufficient connection’ between the occupant and his or her vehicle, [citation], when the

real issue is whether the victim was ‘touched’ through the force of impact by being

jostled or otherwise impacted through the transference of energy from the collision.”

(Clark v. State, supra, 783 So.2d at p. 969 [conc. opn.].)

We believe the concurring opinion in Clark was properly focused on the key issue

raised by the facts of both Clark and Townsend: Was there evidence that the indirect

impact generated by a particular vehicular collision had been sufficiently forceful to

establish the “touching” element of battery?

Applying this kind of “force/impact” analysis, we conclude there was sufficient

evidence to sustain Dealba’s battery conviction. The evidence amply demonstrated that it

was precisely D.D.’s struggle to keep her Volkswagen from veering into the parked cars

that constituted the unprivileged “touching” inflicted on her by Dealba. Dealba concedes

the evidence demonstrated that in order to counteract the force generated by the colliding

vehicles, D.D. had to grip the steering wheel tighter and struggle to keep the Volkswagen

from crashing into cars parked along the curb. Defense counsel essentially

acknowledged this fact during closing argument by telling the jury: “According to

[D.D.], he is slamming his car over and over into hers at least four times. Hit her so hard

her car is getting knocked to the side where she almost loses control twice.”

Further, D.D.’s testimony established that when Dealba collided with her, she had

to wrestle with the steering wheel to prevent the Volkswagen from veering toward the

right: “He was hitting my car with his car, and I was just trying to keep it straight . . . .

And there [were] kids walking on the sidewalk, and I just didn’t want to hit anybody.” It

was this increased force on D.D.’s hands and arms, as she was compelled to tighten her

grip on the steering wheel, that constituted the “touching” element of the battery. This

increased force on D.D. was caused by Dealba’s intentional act of crashing into D.D.’s

car as they were driving along the street.

It does not matter that D.D. already was touching the steering wheel before

Dealba collided with her. If A gently places his hand on B’s shoulder with B’s

permission, there is no battery. However, if A then – without moving the position of his

13

hand – suddenly exerts sufficient force to push B over (assuming B did not consent to

being pushed), A has committed a battery although the position of his hand on B’s

shoulder never changed. This is similar to what happened here, except that the force

exerted by Dealba was indirect rather than direct: he drove his car into D.D.’s car, the

force of which “touched” her hands and arms through the steering wheel.

In sum, we conclude there was sufficient evidence to sustain Dealba’s spousal

battery conviction.

[[ Begin nonpublished portion ]]

[[ 2. Other crimes evidence was properly admitted.

Dealba contends his convictions must be reversed because the trial court erred by

admitting evidence that he had previously committed domestic violence against a former

spouse. We find no error.

a. Legal principles.

“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence

of a person’s character, including evidence of character in the form of specific instances

of uncharged misconduct, to prove the conduct of that person on a specified occasion.

Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit

admission of evidence of uncharged misconduct when such evidence is relevant to

establish some fact other than the person’s character or disposition.” (People v. Ewoldt

(1994) 7 Cal.4th 380, 393, fn. omitted.) Subdivision (b) allows evidence of a person’s

uncharged misconduct “when relevant to prove some fact (such as motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other

than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)

Hence, “[e]vidence of prior criminal acts is ordinarily inadmissible to show a

defendant’s disposition to commit such acts. (Evid. Code, § 1101.) However, the

Legislature has created exceptions to this rule in cases involving sexual offenses (Evid.

Code, § 1108) and domestic violence (Evid. Code, § 1109).” (People v. Reyes (2008)

160 Cal.App.4th 246, 251.) Evidence Code section 1109 provides that “in a criminal

action in which the defendant is accused of an offense involving domestic violence,

14

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.”9 (Evid. Code, § 1109, subd. (a)(1).) “Section 1109, in effect, ‘permits the

admission of defendant’s other acts of domestic violence for the purpose of showing a

propensity to commit such crimes. [Citation.]’ [Citations.] ‘[I]t is apparent that the

Legislature considered the difficulties of proof unique to the prosecution of these crimes

when compared with other crimes where propensity evidence may be probative but has

been historically prohibited.’ [Citation.]” (People v. Brown (2011) 192 Cal.App.4th

1222, 1232-1233.)

“ ‘The propensity inference is particularly appropriate in the area of domestic

violence because on-going violence and abuse is the norm in domestic violence cases.’ ”

(People v. Johnson (2000) 77 Cal.App.4th 410, 419.) “[T]he statute reflects the

legislative judgment that in domestic violence cases, as in sex crimes, similar prior

offenses are ‘uniquely probative’ of guilt in a later accusation. [Citation.] Indeed,

proponents of the bill that became section 1109 argued for admissibility of such evidence

because of the ‘typically repetitive nature’ of domestic violence. [Citations.] This

pattern suggests a psychological dynamic not necessarily involved in other types of

crimes. [Citation.]” (People v. Johnson (2010) 185 Cal.App.4th 520, 532, fns. omitted

(Johnson).)

A trial court’s decision to admit evidence under Evidence Code section 1109 is

reviewed for abuse of discretion. (People v. Brown, supra, 192 Cal.App.4th at p. 1233.)

Evidence of prior acts of domestic violence offered pursuant to Evidence Code

section 1109 is admissible unless there is a probable danger of undue prejudice resulting

from its admission which substantially outweighs its probative value. (Cf. People v.

Callahan (1999) 74 Cal.App.4th 356, 368; People v. Soto (1998) 64 Cal.App.4th 966,

9

Evidence Code 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.”

15

984.) A trial court enjoys broad discretion under Evidence Code section 352 in assessing

whether the probative value of prior domestic violence evidence is outweighed by

concerns of undue prejudice, confusion, or consumption of time. (People v. Rodrigues

(1994) 8 Cal.4th 1060, 1124.) “ ‘The prejudice which exclusion of evidence under

Evidence Code section 352 is designed to avoid is . . . “prejudging” a person or cause on

the basis of extraneous factors. [Citation.]’ ” (People v. Zapien (1993) 4 Cal.4th 929,

958; see People v. Karis (1988) 46 Cal.3d 612, 638 [prejudice “ ‘applies to evidence

which uniquely tends to evoke an emotional bias against the defendant as an

individual’ ”].)

In addition, subdivision (e) of Evidence Code section 1109 provides that evidence

of other acts of domestic violence that occurred “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.” (Evid. Code, § 1109, subd. (e).) Hence,

“while evidence of past domestic violence is presumptively admissible under

subdivision (a)(1), subdivision (e) establishes the opposite presumption with respect to

acts more than 10 years past.” (People v. Johnson, supra, 185 Cal.App.4th at p. 537,

fn. omitted.) “Subdivision (e) establishes a presumption that conduct more than ten years

prior to the current offense is inadmissible. But, contrary to defendant’s insinuations, it

sets a threshold of presumed inadmissibility, not the outer limit of admissibility. It

clearly anticipates that some remote prior incidents will be deemed admissible and vests

the courts with substantial discretion in setting an ‘interest of justice’ standard. We

therefore review that determination for abuse of discretion. [Citations.]” (Id. at p. 539.)

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b. Discussion.

Dealba does not contest admission of the evidence regarding his prior violence

against D.D. (i.e., the March 2012 incident), but he does claim the trial court abused its

discretion by admitting Martha’s testimony. He argues the February 2002 incident

Martha described was not only “more egregious than the charged offense and quite

inflammatory,” but also “so dissimilar to the charged offense[s] that it could not possibly

have been more probative than prejudicial.” Dealba purports to find the following

significant differences between the February 2002 incident and the charged offense:

“The two incidents involved different victims, different conduct and different

weapons. . . . In addition, while the whipping and threatening of Martha A. with a gun

seemed to have been done in the middle of an argument, there was no argument present

in this case. [D.D.] testified that as soon as [Dealba] got to the front of his car, she sped

off in her car and no words were exchanged.”

Initially, we note that our Supreme Court has pointed out – in a case involving

Evidence Code section 1108, the parallel provision allowing propensity evidence in

sexual assault cases – that “ ‘[t]he charged and uncharged crimes need not be sufficiently

similar that evidence of the latter would be admissible under Evidence Code section

1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the

charged and uncharged offenses are sex offenses as defined in section 1108.’ [Citation.]”

(People v. Loy (2011) 52 Cal.4th 46, 63.) Even if entirely dissimilar, “this circumstance,

although relevant to the trial court’s exercise of discretion, is not dispositive.” (Ibid.)

Moreover, the dissimilarities10 noted by Dealba (e.g., the difference in weapons:

an automobile versus a belt and a gun) are relatively unimportant compared to what the

Attorney General accurately characterizes as the “one inescapable and unifying pattern of

10

Although D.D. and Dealba may not have exchanged any words just before Dealba

assaulted her with his car, and thus they were not literally arguing at that very moment,

they were clearly in the midst of an ongoing dispute about their relationship, just as

Martha and Dealba apparently had been. D.D. testified Dealba had been threatening her

life almost daily since she left him in February 2012.

17

behavior – that appellant struggled with accepting marital separation and had a

demonstrated predisposition to resort to violence and threats when presented with such a

scenario.”

The defense at trial set up a classic “he said, she said” credibility contest.

Although Dealba did not testify, defense counsel told the jury during closing argument

that D.D. “was lying to you” about Dealba having deliberately crashed into her, asserting

that the Volkswagen would have been much more severely damaged had Dealba

intentionally crashed into her, and that Arteaga would have been able to see him doing it.

Defense counsel then proposed this counter-narrative: Dealba had been following D.D.

in his car only because he wanted to talk to her about the children, and colliding with her

Volkswagen had been entirely accidental. Counsel argued, “He followed her. He drove

up alongside her. . . . [¶] And he looks up to see Ms. Arteaga’s car in front of him, tries

to get out of the way, probably swiped [D.D.’s] car, and then head-ons with Ms. Arteaga.

That is a reasonable explanation for what happened that day.”

Given this defense, the prior incidents of domestic violence were extremely

probative because they demonstrated Dealba’s propensity for engaging in domestic

violence, thereby corroborating D.D.’s testimony that Dealba committed assault with a

deadly weapon. The March 2012 incident was probative because Dealba became violent

with D.D. while they were arguing about child custody issues. The February 2002

incident was probative because Dealba drew a gun on a different spouse – threatening to

kill Martha after she said she was going to leave him. As in Johnson, this evidence

suggested Dealba “has a problem with anger management, specifically with regard to

female intimate partners, and specifically when he feels rejected or challenged by such a

partner. . . . Whatever the psychological forces at work, the Legislature has concluded

that in these types of cases, evidence of past domestic violence is particularly probative

of the likelihood to repeat such behavior.” (Johnson, supra, 185 Cal.App.4th at p. 533.)

Again paraphrasing Johnson, what also weighed in favor of admitting the

February 2002 incident was the fact that this evidence “came from independent sources,

which reduced the danger of fabrication. [Citation.]” (Johnson, supra, 185 Cal.App.4th

18

at p. 533.)11 The evidence of the February 2002 incident was not confusing because it

was “separated by time and involved different victims and witnesses.” (Id. at p. 533.)

Nor did it consume an inordinate amount of time; Martha’s testimony took up only

16 pages in the reporter’s transcript, and Dubois’s testimony just three pages. The

February 2002 incident was not particularly inflammatory compared to the charged

crime: hitting Martha with a belt and threatening her with a gun was not egregiously

worse than assaulting D.D. with an automobile.

As for the ten-year remoteness rule set forth in Evidence Code section 1109,

subdivision (e), the trial court pointed out that, although the February 2002 incident

occurred more than ten years earlier, it did so only “by two and a half months.” The trial

court also pointed out that Dealba went to prison for the February 2002 incident and was

not released on parole until the end of December 2003. Therefore, Dealba had only been

at liberty for roughly eight years out of the ten-year window period. (Cf. People v. Loy,

supra, 52 Cal.4th at p. 62 [remoteness factor in sexual assault case mitigated because

defendant had been in prison for some of that time].) The trial court said, “[T]he reason

why I’m inclined to think it’s in the interests of justice is because it is very probative.”

We cannot say the trial court abused its discretion by concluding the

February 2002 incident was more probative than prejudicial and, therefore, admissible

despite having occurred slightly more than ten years prior to the charged offense. ]]

[[ End nonpublished portion ]]

11

Another factor relied on by Johnson was also present here: “In addition,

defendant was convicted of the prior offenses. Although the jury was not so informed,

the fact that the prior misconduct had resulted in conviction . . . reduced the likelihood

that defendant could have produced evidence to rebut the witnesses’ testimony.

Therefore, the unfairness of forcing a defendant to mount a defense against evidence of a

long-past incident was not a legitimate consideration in this case. [Citation.]” (Johnson,

supra, 185 Cal.App.4th at p. 533.)

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DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

EDMON, P. J.

We concur:

ALDRICH, J.

JONES, J.*

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

20