THE PEOPLE, Plaintiff and Respondent, v. JOHN PATRICK FRUITS, Defendant and Appellant.
[No. C076324]
Third Dist.
May 4, 2016.
247 Cal. App. 4th 188
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MURRAY, J.-In this case, we discuss the admissibility of evidence under
On appeal, in connection with count three, charging him with making criminal threats (
In the published portion of this opinion, we conclude that the trial court did not abuse its discretion in admitting the evidence of prior threats and other misconduct. Defendant asserted that the trial court misunderstood how he planned to deal with the evidence of prior threats in trial and based its
In the unpublished portion of this opinion, we conclude that defendant has forfeited a number of his contentions with regard to restitution and parole revocation fines. However, we agree with defendant that the trial court erred in imposing a restitution fine and parole revocation fine related to a stayed
We modify the judgment to (1) decrease the restitution fine and parole revocation fine by $280; (2) impose a sentence of four years plus a one-year enhancement on count two and stay execution of that sentence pursuant to
FACTUAL AND PROCEDURAL BACKGROUND2
The Charges
On January 7, 2014, the Shasta County District Attorney filed a consolidated information, charging defendant with elder or dependent adult abuse (
The People‘s Case-in-chief
Defendant‘s brother David Fruits3 testified that, on October 4, 2013, he got into an argument with defendant. David‘s son, Davis, was present, as was Jennifer Karlowsky, whom David was dating. David had been in the freestanding cabin or studio or “granny unit” on his parents’ property where he was living when he saw defendant approaching. David told Karlowsky to stay in the studio with Davis and to lock the door while he went outside. David spoke with defendant and they began to argue. The incident did not become physical, however. After the brothers argued for two to three minutes, David
David exited the house and told Bonnie about the argument. Bonnie testified that David told her he had been talking with defendant, who was upset, and David locked the house fearing that defendant wanted to come in. Bonnie grew worried because David‘s back was injured, and she feared that if he fought with defendant, he would not be able to defend himself. She went to talk to defendant.
As David watched, defendant and Bonnie grew upset with each other and argued loudly. Bonnie told defendant that it was time to leave, but defendant refused. Bonnie testified that defendant picked up some pruning shears that were on a nearby wheelbarrow and “moved them towards [her].” The shears came within inches of Bonnie‘s head and shoulders. David testified that he did not see defendant holding pruning shears, although he had gone to the bathroom during a portion of the argument between Bonnie and defendant. Defendant left on his bike. Bonnie testified that after defendant left, it occurred to her that perhaps defendant had been attempting to harm her. However, Bonnie also testified that she had not seen exactly what defendant had done with the pruning shears because she only saw a flash of metal in her peripheral vision. When asked whether it was true that, when he did this, defendant was threatening to kill her, Bonnie responded that she could not remember what he said. Bonnie did testify that defendant‘s voice was loud and he was “being on the threatening side.”
After the incident, Bonnie called the police. In the 911 call, which was played for the jury, Bonnie reported, “[M]y son, he threatened my life.” She stated that defendant “picked up some . . . big loppers and he swung it at [her] and stopped about three inches from [her] neck.” She further described the tool that defendant swung at her as “long handled pruning shears.” She reported, “He is out of his mind right now,” and added, “I am afraid.”
Corporal Mike Woods responded to the house and spoke with Bonnie. Bonnie reported to Woods that she had an altercation with defendant. According to Woods, Bonnie described the incident as follows: “during an argument . . . between David and [defendant], . . . they became physical with each other and that [defendant] had chased David about the property and that she had tried to stop the incident and that at that point he . . . became angry with her. Somehow he was associated with a bicycle on the property. He threw the bicycle down, and he charged at her and . . . picked up a pair of pruning shears that were laying on a table nearby. . . .” Defendant then swung the pruning shears at Bonnie‘s neck. The shears came within a couple
Woods testified he and other officers “made a pretty extensive area check” for defendant. However, they were unable to locate him.
Defendant returned to the house the next day. Because police had told Bonnie to call if defendant returned, she contacted the police. Woods returned to the house. Bonnie met Woods in the driveway and informed him that defendant had returned to the property and was creating a disturbance. She specifically stated that defendant was angry that she had called the police and had threatened to kill her for doing so. Woods located defendant in one of the sheds or outbuildings on the property and arrested him. After being read his Miranda4 rights, defendant agreed to speak with police. He told police that he had argued with Bonnie the previous day, but denied threatening to kill her or swinging pruning shears at her.
John, defendant‘s father, testified that he had visited defendant in jail on two or three occasions after his arrest. John acknowledged that defendant asked him to pass messages to Bonnie about what happened during their confrontation. John testified that he spoke with Bonnie “a little bit” about how she would testify in court, but he did not talk to her about the messages defendant wanted him to convey. When asked if he ever told Bonnie that she should say that nothing happened, John responded, “Maybe once but I doubt it.” He testified that he never told Bonnie to say she could not recall what happened. Recordings of jailhouse calls between defendant and John, which took place on four separate days in October 2013 were played for the jury.
Bonnie testified that John had told her she should say that nothing had happened. Her daughter Brenda had also been telling her to change her story to help defendant. Bonnie acknowledged telling the prosecutor‘s investigator, approximately one month prior to trial, that she was feeling pressured by her family to change her story.
Bonnie also acknowledged writing a letter to the prosecutor‘s office in which she stated that defendant had a drug problem, expressed fear that an incident like the one at issue could happen again, and requested a stay-away order. However, she also testified that defendant “gets mad, but he doesn‘t do
Bonnie testified that defendant never hurt her in the past, but in 2013, he pushed her out of an apartment and she hurt her heel trying to resist. She called the police to report the incident, but after the police arrived, she told them she did not want to press charges. Bonnie testified that she did not remember whether defendant had ever threatened her before. When the prosecutor asked Bonnie whether defendant had previously threatened to slit her throat, she testified that she did not remember such an incident occurring. She also denied that defendant ever told her that he would “fix” her, which she understood to mean he would hurt her. Bonnie flatly denied telling district attorney investigator Diana Hawkins that defendant made those threats. She did testify that defendant “would be belligerent” when he visited the house. When asked again whether defendant had threatened to slit her throat, she responded, “No, not . . . quite like that.” She then admitted defendant had threatened to harm her in the past. Also in the past, defendant pulled her down a set of stairs as she attempted to resist by holding on to the stairs. When asked whether she wanted to talk about the other things defendant had done to her, Bonnie responded, “Well, I don‘t care to talk about them.”
According to Corporal Woods, Bonnie told him that there had been several incidents between her and defendant in the past. Bonnie told Woods that defendant had threatened and battered her.
Hawkins participated in a phone conversation with Bonnie by speaker-phone on October 21, 2013. Bonnie stated that John and her daughter Brenda were attempting to persuade her to change her testimony. They wanted her to testify that certain things did not happen, or that they did not happen in the manner she previously reported. Bonnie feared her family would be upset with her if she did not change her story. According to Hawkins, Bonnie stated that, if she did not change her testimony, John would separate from her. Bonnie also stated that she did not want her family in court when she testified at a preliminary hearing because they would be upset with her.
During the telephone conversation with Hawkins, Bonnie also discussed prior instances when defendant had been violent towards her. He had previously threatened her with a knife, pushed her, threatened to slit her throat, and stated that he would “fix her.” Bonnie explained that she interpreted defendant‘s threat to “fix her” as threatening some sort of harm.
In performing a follow-up investigation, Hawkins went to Bonnie‘s house and spoke with her. Bonnie stated that she wanted to keep in place a restraining order she had obtained, because she was not sure whether
The parties stipulated that, in a prior 911 call on April 8, 2013, Bonnie stated among other things: ” ‘And I‘m tired of him []. [. . . pushing me around,’ ” ” ‘He‘s gonna come back and try to kill me or something for calling,’ ” and that she was not in any immediate danger ” ‘unless they come back.’ ” When asked if she needed medical attention, she said she did not, but then added, ” ‘I‘ll probably have bruises on my back and arms.’ ” At the time this stipulation was read to the jury, the court instructed the jury that these statements were introduced for purposes of impeachment as prior inconsistent statements made by Bonnie, and they were not to be considered for any other purpose, but the court also explained it would read further instructions “on how they pertain to these issues.”5
Defendant‘s Case
Defendant testified on his own behalf. He testified that on October 4, 2013, he was at his parents’ house doing laundry. Defendant saw David, said hello, and David returned to his cabin. Defendant also spoke with Jennifer Karlowsky. David grew angry that defendant was talking to Karlowsky and he became gruff with defendant. David then claimed that defendant owed him money, and that defendant had “ripped him off.” Defendant approached David to talk about the matter. David retreated to the main house. Defendant went to visit with a friend and then returned to the laundry room to change out his laundry. Karlowsky approached him and told him that it would be good if he left.
As defendant prepared to leave, Bonnie drove up to the house. Defendant and Bonnie talked for a minute, and Bonnie yelled at defendant. She asked him what he was doing and said he was not wanted there. She continued to berate defendant until he left on his bicycle. Defendant testified that he did not pick up pruning shears, and he never swung pruning shears at Bonnie. In
Jennifer Marie Karlowsky testified that as of October 4, 2013, she was homeless and was moving her possessions to the Fruitses’ residence. Karlowsky saw defendant doing laundry and later saw him doing yard work for his parents. She briefly spoke with defendant, and it appeared to anger David that she did so.
At one point, David began to “lay[] into [defendant]” and treat him very rudely. David was “trying to make conversation though not in a loving way.” Defendant continued to try to do what he was doing.
Later, defendant began to leave the property. David was following defendant, holding trimming shears. David then went into the house. Bonnie arrived as defendant was leaving with his bicycle. Bonnie began to speak rudely to defendant, saying that he was not welcome and that nobody liked him. Defendant continued to try to leave the property. David emerged from the house, holding the pruning shears. Karlowsky walked to the cabin and when she turned around, she saw David talking to Bonnie and defendant was gone.
Karlowsky never saw defendant swing pruning shears at Bonnie. She also never heard defendant threaten Bonnie.
Defendant testified that on October 5, 2013, he again went to his parents’ house, this time to visit John. Bonnie again began to yell at defendant, telling him that he was not welcome and to get out. Defendant stated that he was there to visit John, and he walked down a hallway to the bedroom. Bonnie called 911. Defendant stayed and talked to John for five to ten minutes. Defendant went to visit a friend. Within 10 or 15 minutes, police arrived where defendant was visiting his friend and arrested him.
The People‘s Rebuttal Case
In rebuttal, the prosecutor called Anthony Rose, an employee of WinCo Foods grocery store. Rose testified that on August 27, 2011, defendant could be seen on the store‘s video camera system. Rose identified defendant in the video recording and in several still photographs from the system. In the photographs, defendant could be seen lifting items from a shelf and placing them in a cart.
The prosecutor also recalled Bonnie. She testified that she went to the prosecutor‘s office a couple of days after she testified in the trial and met with
The prosecutor also recalled Hawkins. She testified that she was present when the prosecutor met with Bonnie following her initial testimony. According to Hawkins, during that meeting, Bonnie stated that she had difficulty sleeping at times when she had argued with defendant because she worried that defendant would come in and harm her. Hawkins also testified that, during that meeting, when Bonnie learned that her visit to the prosecutor‘s office would be discussed in court, she seemed frightened and desperate for that information not to surface. She indicated that she was fearful of being labeled a rat.
Defendant‘s Surrebuttal Case
Defendant testified that he never went into Bonnie‘s house or into her bedroom to harm or threaten her. Defendant also testified that Bonnie had always had problems sleeping. Defendant testified that he had experienced greater problems with his shoulder since August 27, 2011, the date he was recorded on video shopping in the WinCo Foods store. He had been in a car accident and “injured [his] shoulder even worse than what it was.” He also had calcium deposits. He could not swing his arm upward over his head or downward with any force.
Verdict and Sentencing
On January 15, 2014, the jury found defendant guilty of elder abuse (
I. Evidence of Prior Threats and Violent Acts
A. Additional Background and Defendant‘s Contentions
Prior to trial, the prosecutor filed in limine motions, seeking, inter alia, the admission of prior acts of elder abuse committed by defendant against Bonnie. The prosecutor asserted that any prior acts of elder abuse were admissible to show propensity pursuant to
The prosecutor‘s offer of proof was based on several “log” reports related to calls for service between 2007 and 2013, in which Bonnie reported that defendant made threats or committed acts of violence. In 2007, she reported that defendant threatened to burn down the house and harm her. In 2011, she reported that defendant was “yelling at her and in her face.” In 2013, she reported that defendant battered her, although she declined to press charges. Later in 2013, she reported that defendant was threatening to kill the family and to set their cars on fire. The prosecutor also anticipated the possibility that Bonnie would testify to additional threats or acts, which had not been reported and which she had not yet disclosed.
In discussing the prosecutor‘s in limine motions, the court opined that the evidence the prosecutor sought to introduce appeared to be highly relevant. Defense counsel objected to the admission of the evidence as being more prejudicial than probative. Defense counsel pointed out that there were no convictions related to the evidence at issue, and several of the alleged incidents were not reported to law enforcement. Counsel argued that the only evidence supporting several of the alleged incidents consisted of unsubstantiated statements by the victim.
The court stated that the absence of convictions or reports supported the notion that the victim was reluctant to testify against her son. The court then stated: “In addition, I think that some of this stuff would be helpful because, [counsel for defendant], you‘re going to be claiming that . . . he‘s a bunch of hot air, and if there are earlier threats where nothing has happened, then you can establish that [defendant] may say things that are stupid but they‘re not
The trial court granted the prosecutor‘s in limine motion to admit the evidence of the prior threats.6 The court stated, “Anything that would affect her . . . mental state and place her in fear or sustained fear would be admissible. So, even if she heard through some son of hers, other than [defendant], that [defendant] was making threats to her, that would also potentially influence her.”
During his opening statement, defense counsel did not assert that defendant made hollow threats. Rather, he said the evidence would show that defendant did not make any threats to Bonnie at all. Defense counsel reprised this position in closing arguments.
On appeal, defendant contends that the trial court erred in admitting evidence of prior threats he made against Bonnie to prove his guilt of making criminal threats. (
We conclude that the trial court did not abuse its discretion in granting the People‘s in limine motion to admit evidence of prior threats against Bonnie.
B. Analysis
1. Evidence Code Sections 1101, 1109, and 352
With exceptions not applicable here,
2. Relevance and Probative Value
Defendant grudgingly acknowledges that the evidence at issue here might have been relevant and admissible under
In discussing the admissibility of evidence under the uncharged domestic violence evidence provision in
As originally enacted,
Here, defendant was charged with making criminal threats by threatening Bonnie‘s life while swinging pruning shears at her and missing her neck by mere inches. The evidence the prosecutor intended to elicit consisted of recent threats defendant made against Bonnie and other acts of violence. We conclude that this evidence was similar to the charged offense, and was thus highly probative as to whether defendant made criminal threats against Bonnie as charged here.
Moreover, as defendant would apparently have us ignore, the evidence was also highly probative of defendant‘s propensity to abuse elders and thus highly probative as to whether defendant committed all of the charged offenses, not just the criminal threats charge. Indeed, as we discuss in more detail post, the trial court instructed the jury that based on the prior acts of abuse, it could conclude from that evidence “that the defendant was likely to commit the crime of elder abuse, or crimes involving abuse of an elder.” The instruction appropriately did not limit the use of the evidence at issue to proving the criminal threats charge.
Additionally, the evidence of prior threats was probative as to specific elements of the crime of making criminal threats and thus admissible under
Furthermore, prior threats and acts of violence against a victim are admissible under
for his or her own safety or for his or her immediate family‘s safety,’ and (5) that the threatened person‘s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228 [109 Cal.Rptr.2d 315, 26 P.3d 1051].)
Thus, the prior elder abuse evidence here was relevant and probative of (1) defendant‘s propensity to abuse elders; (2) his intent to threaten Bonnie and place her in fear; (3) whether Bonnie was placed in sustained fear; (4) whether Bonnie‘s fear was reasonable; and (5) defendant‘s motive for abusing, assaulting, and threatening Bonnie.
3. Undue Prejudice
We next balance the probative value of the prior abuse evidence against the
We conclude that the evidence at issue here was not unduly prejudicial. ” ’ “[T]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant‘s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code 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.’ ” ’ ” (Holford, supra, 203 Cal.App.4th at p. 167, italics omitted.)
In further support of his prejudice argument, defendant asserts that the prior threats were far more inflammatory than the charged conduct. We disagree. The prosecutor ultimately sought to elicit evidence of recent threats made by defendant against Bonnie, including a threat to slit her throat, in addition to prior incidents when defendant battered Bonnie. We do not consider this evidence to be more inflammatory than the charged conduct, in which defendant was alleged to have swung pruning shears at Bonnie, missing her neck by inches, and threatened her life or threatened to “get” and “possibly kill her.” It certainly was not so much more inflammatory that it caused
Defendant contends that, because the uncharged acts did not result in criminal convictions, there was a risk that the jury may have been tempted to punish him for the uncharged acts. This risk was noted in People v. Ewoldt (1994) 7 Cal.4th 380, 405 [27 Cal.Rptr.2d 646, 867 P.2d 757]. There, our high court observed that when a defendant has not been convicted of crimes related to prior conduct, there is an increased danger that the jury might be inclined to punish the defendant for the uncharged offenses, regardless of whether it considered him guilty of the charged offenses. (Ibid.) The court also noted there is also an increased risk of confusing the issues, because the jury has to determine if the uncharged offenses had occurred. (Ibid.) Thus, normally, the absence of criminal convictions weighs only on the undue prejudice side of the
Additionally, the jury instructions on reasonable doubt, the necessity of proof of the elements of the offenses, the limited purpose for which the evidence of the prior abuse was admitted and the requirement that the prior abuse had to be proven by a preponderance of the evidence substantially reduced the risk of prejudice. The limiting instruction told the jury: “If you decide that the defendant committed the uncharged abuse of an elder, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit abuse of an elder person and based on that decision also conclude that the defendant was likely to commit the crime of elder abuse, or crimes involving abuse of an elder. [¶] If you conclude that the defendant committed the uncharged abuse of an elder, 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 of elder abuse or crimes involving abuse of an elder. The People must still prove each charge beyond a reasonable doubt.” (CALCRIM No. 853, as given to the jury in this case.) We must assume the jury followed these instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26 [82 Cal.Rptr.3d 323, 190 P.3d 664]; People v. Panah (2005) 35 Cal.4th 395, 492 [25 Cal.Rptr.3d 672, 107 P.3d 790].)
The primary thrust of defendant‘s prejudice argument is that, because the trial court misapprehended the nature of the defense theory regarding the prior threats and abuse evidence, it failed to appreciate the potential for undue prejudice that would result from the admission of the evidence, and thus abused its discretion in its
But trial counsel did not alert the trial court to the alleged fallacy in the court‘s reasoning. Counsel said nothing about how the defense planned to
Defendant also contends that the trial court‘s verbalization of how it anticipated defendant would address the prior abuse evidence “r[an] the risk of coercing a particular defense.” We disagree. First, the defense at trial argued to the jury that defendant had not made prior threats. Thus, it would seem defendant was not coerced into adopting a different defense from what defendant now claims his defense was at the outset. Second, we cannot consider defendant to have been coerced to adopt a particular defense articulated by the court, when defendant had every opportunity to correct the court as to the true nature of his defense.
In any event, we disagree with defendant that, merely because he allegedly planned to dispute the veracity of the prior abuse evidence, the trial court failed to appreciate the potential for undue prejudice related to the admission of this evidence. We are of the opinion the evidence here simply was not the type of evidence ” ‘which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” (Holford, supra, 203 Cal.App.4th at p. 167.) Instead, the “prejudice” implicated by this evidence was, in fact, that which “naturally flows
Because we conclude that the evidence at issue was highly probative, and that it was not unduly prejudicial, we further conclude that the trial court did not abuse its discretion in granting the People‘s in limine motion to admit the prior threats evidence.
4. Due Process*
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II. Sentencing Issues*
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DISPOSITION
The judgment is modified to (1) recalculate the restitution fines for each of defendant‘s cases separately by noting the restitution fine for each case; (2) reduce the total restitution fine in case No. 13F6477 by $280; (3) impose an upper term sentence of four years on count two, assault with a deadly weapon (
*See footnote, ante, page 188.
Robie, Acting P. J., and Mauro, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied August 10, 2016, S235073.