People v. FloresPeople v. Flores
BACKGROUND
Flores was in a relationship with Doe. In July 2018, Doe and her five-year-old daughter were passengers in a car driven by Flores. Flores and Doe began to argue. He threatened Doe and began driving erratically. Flores stopped the car, Doe exited and tried to run away. The child also got out of the car. Flores pursued Doe on foot and said, ” ‘You fucking bitch. Get back in the car.’ ” Flores hit Doe in the face twice, placed her in a chokehold, and pulled her hair. Flores also ordered Doe‘s daughter to get back in the car — the child eventually complied. Flores tried to pull Doe into the car. Eventually all three entered the car, and Flores drove away. A nearby resident witnessed these events and called 911.
Police officers pursued the car, and it stopped suddenly. Doe and her daughter got out, yelling and screaming, and they ran toward a nearby
The Madera County District Attorney filed an information charging Flores with, as relevant here, felony infliction of corporal injury on a cohabitant, Doe (
During a jury trial, Flores‘s parole officer testified regarding three uncharged incidents of Flores‘s violence towards a former girlfriend, V.Z. In sum: in January 2017, Flores hit V.Z.‘s head against the car window. In another incident, V.Z. was sleeping at home and suddenly found Flores, who did not live with her, climbing into her bed. V.Z. asked him to leave, but Flores climbed on top of her, choked her, and stated, ” ‘Bitch, I am going to choke the fuck out of you.’ ” A physical altercation ensued, and Flores grabbed and pulled V.Z. by the hair. In November 2017, Flores unexpectedly appeared at V.Z.‘s apartment. After Flores threatened to break her windows, V.Z. let him into the apartment. He then pushed her, attempted to choke her, and threatened to kill her if she called the police.
The jury found Flores guilty of false imprisonment with regard to Doe, infliction of corporal injury on a cohabitant, assault by means likely to
DISCUSSION
I.
Flores contends the trial court abused its discretion and violated his due process rights by admitting evidence of prior acts of domestic violence committed against V.Z. We disagree.
Generally, evidence of prior criminal acts is inadmissible to show a defendant‘s criminal disposition to commit the charged offense. (
Before trial, the People moved to admit testimony from a parole officer about Flores‘s prior acts of domestic violence. The trial court concluded the January and November 2017 incidents and the incident in which V.Z. found Flores in her bed were admissible since they were relevant to this matter and the probative value of the evidence outweighed the danger of undue prejudice
The trial court‘s admission of the prior acts evidence was not an abuse of discretion. The evidence was substantially similar to and no more inflammatory than his charged offense — when enraged with his dating partners, Flores threatened, struck, and choked them. (People v. Johnson (2010) 185 Cal.App.4th 520, 531 [” ’ “principal factor affecting the probative value of an uncharged act is its similarity to the charged offense” ’ “].) The prior acts occurred in 2017 — one year before Flores‘s charged offense — and thus were not unduly remote. (People v. Falsetta (1999) 21 Cal.4th 903, 917 [close proximity in time of prior act to charged offense increases probative value].) The witness‘s testimony was brief, spanning only nine pages of the reporter‘s transcript. (People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [testimony taking 97 pages of reporter‘s transcript not unnecessarily time consuming].) Moreover, by prohibiting the parties from identifying the witness as Flores‘s parole officer, the court rendered the evidence less prejudicial. (See Falsetta, at p. 917 [courts must consider whether there are less prejudicial alternatives to outright admission].) Finally, the court instructed the jury with CALCRIM No. 852 — the instruction regarding evidence of uncharged acts of domestic violence — explaining that evidence of prior acts is insufficient to prove Flores was guilty of his charged offenses. The court thus mitigated the probability the jury would confuse the prior acts and the charged offense. (Falsetta, at p. 917; People v. Holt (1997) 15 Cal.4th 619, 662 [“[j]urors are presumed to understand and follow the court‘s instructions“].) The probative value of this prior acts evidence, concerning
We also reject Flores‘s argument that the prior acts evidence was unnecessarily cumulative and unfairly characterized him as a ” ‘generic’ ” batterer. This assertion ignores the reality that the probative value of prior domestic violence evidence “is principally in its cumulative nature.” (People v. Cabrera, supra, 152 Cal.App.4th at p. 706; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027–1028 [” ‘propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm’ “].)
Finally, because we have concluded the trial court did not abuse its discretion in admitting the prior acts evidence, we need not address Flores‘s claim of prejudice. Nor do we address his claim that the violation of state evidentiary law consequently violated his due process rights. (People v. Brown (2003) 31 Cal.4th 518, 545 [“routine application of state evidentiary law does not implicate defendant‘s constitutional rights“].)
II.
Flores contends the trial court erroneously instructed the jury with CALCRIM No. 852. That instruction states in relevant part: “If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty.” Flores argues the instruction violates his state and federal constitutional rights. We disagree.
Flores concedes People v. Reliford (2003) 29 Cal.4th 1007 rejected constitutional challenges to an instruction containing similar language. (Id. at p. 1015 [concluding CALJIC No. 2.50.01, an instruction addressing
III.
Flores next argues the matter must be remanded for resentencing based on, among other things, recently enacted legislation. As explained below, remand is unwarranted.
At sentencing, the trial court stated Flores‘s criminal record displayed “a pattern of regular criminality” and a failure to comply with his terms of probation — he was under probation supervision when he committed the offenses in this case. The court noted Flores had numerous prior convictions as an adult and several sustained juvenile delinquency petitions. According to the court, Flores‘s crimes in this case “involved a high degree of cruelty, viciousness, and callousness, as the defendant physically assaulted the victim by pulling her hair and punching her on the mouth.” The court thus found the circumstances warranted an aggravated sentence. It then denied Flores‘s probation; imposed the upper term of eight years for infliction of corporal injury on Doe (
A.
Flores contends we must remand his five-year prior felony conviction sentencing enhancement for reconsideration due to Senate Bill No. 1393 (2017–2018 Reg. Sess.), which gave trial courts discretion to strike prior felony enhancements. (
Here, the trial court noted Flores acted with a “high degree of cruelty, viciousness, and callousness,” and he “has engaged in violent conduct, and
B.
Flores contends he must be resentenced for inflicting corporal injury on Doe, an offense for which he received an upper term sentence. (
While this appeal was pending, Senate Bill No. 567 (2021–2022 Reg. Sess.) amended section 1170, subdivision (b), making the middle term of imprisonment the presumptive sentence.4 (
Here, when imposing the upper term for Flores‘s corporal injury offense, the trial court cited Flores‘s numerous prior convictions as an adult, as well as sustained petitions in juvenile delinquency proceedings. (
“[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,” the error is harmless. (People v. Sandoval, supra, 41 Cal.4th at p. 839; see also People v. Osband (1996) 13 Cal.4th 622, 728
C.
Flores contends the trial court should have stricken the one-year sentencing enhancement for his prior prison term under section 667.5, subdivision (b). The Attorney General agrees, as do we. The trial court imposed a five-year sentencing enhancement for Flores‘s prior serious felony in addition to an enhancement for his prior prison term. Both arose out of Flores‘s prior conviction for residential burglary. But a court cannot rely on the same prior conviction to impose both a prior serious felony enhancement and a prior prison term enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1150 [if “multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement,” only the
Remand for resentencing is warranted when part of a sentence is stricken on review so the trial court can exercise its sentencing discretion in light of changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.) But remand is unnecessary here because, as previously discussed (ante, pp. 9–10), the trial court already imposed the maximum sentence possible for Flores on his remaining offenses. (Buycks, at p. 896, fn. 15.)
IV.
Finally, Flores requests that we strike the restitution fines and other fees, including the $750 felony presentence report fee and $108.19 booking fee, imposed by the trial court. (Former
DISPOSITION
The judgment of conviction is affirmed. The judgment is modified to strike the section 667.5, subdivision (b) enhancement imposed in this matter. We also strike the unpaid balance of the booking fee, as of July 1, 2021, imposed under former Government Code section 29550.2, and the presentence report fee under former section 1203.1b and vacate that portion of the judgment imposing those costs. The superior court is directed to amend the abstract of judgment reflecting these modifications and to reduce Flores‘s total prison sentence accordingly.
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Rodríguez, J.
WE CONCUR:
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Tucher, P. J.
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Fujisaki, J.
THE COURT:
The opinion in appeal No. A164257, filed on February 3, 2022, was not certified for publication in the Official Reports. For good cause appearing, pursuant to California Rules of Court, rules 8.1105(b), (c), and 8.1110, the opinion is certified for partial publication. Accordingly, respondent‘s request for partial publication is GRANTED.
The order effects no change in the judgment.
Dated: 02/24/2022
TUCHER, P.J., P. J.