People v. ManiPeople v. Mani
A jury found defendant guilty of first degree residential burglary and willfully disobeying a court order. The jury found true the allegation that a person, other than an accomplice, was present during the burglary. At a bifurcated proceeding, the jury found that defendant had a previous strike conviction. The trial court sentenced defendant to an aggregate term of 13 years.
On appeal, defendant asserts that: (1) the trial court abused its discretion in admitting evidence of prior acts of domestic violence under
We conclude the trial court did not abuse its discretion in allowing the prior acts evidence and the modified CALCRIM No. 852A was not erroneous. We reject defendant‘s contention that residential burglary based on an intent to steal theory is not an
However, we have discovered a sentencing error as to the application of
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with first degree residential burglary (
Trial Evidence Presented by the Prosecution
Defendant‘s brother lived in a house with their mother. Defendant‘s brother testified that he had a restraining order in place against defendant. Both defendant‘s brother and mother had restraining orders against defendant in the past. Defendant‘s brother testified that defendant “always violated the restraining orders” and their mother testified that defendant violated restraining orders on a number of occasions.
The Prior Acts
On April 29, 2016, Officer Luis Canela was dispatched to defendant‘s mother‘s house for a family disturbance. Upon his arrival, Canela saw several people outside, including defendant. Defendant told Canela that he knew there was a restraining order in place against him. He told Canela he had been invited over to get his bed, “and that his family had software to control his mind.”
On March 14, 2017, defendant‘s brother was at home when defendant came over. Defendant came in, yelling and screaming. Defendant‘s sister told defendant to leave, and then she called to defendant‘s brother. Defendant‘s brother came downstairs and saw defendant sitting in their mother‘s vehicle. He asked defendant to leave, but defendant just yelled, screamed, and cursed. Defendant‘s brother told defendant he was not allowed to be at the house and that there was a restraining order in place, and he warned defendant that they would call the authorities. Defendant backed up the vehicle and “came right towards” his brother. Defendant‘s brother was on the sidewalk, and defendant backed out, turned around, and “plow[ed] right towards” him, accelerating “[p]retty quickly,” driving onto the sidewalk. Defendant‘s brother stepped away, and defendant missed
On July 11, 2017, defendant came to the house, knocked or banged on the door, and started yelling. Defendant‘s mother was home alone. She called 911. There was a restraining order in effect at the time.
Defendant‘s mother testified that, on January 10, 2018, defendant came to the house, banged on the door, yelled, and cursed. She told defendant she was going to call 911 and she did. Defendant left before the police arrived. Defendant‘s brother testified he came home and discovered a stereo receiver and speaker were missing from the garage. A pair of his custom running shoes was also missing and a pair of shoes that belonged to defendant were left behind.3 The door leading into the garage was damaged. It had been kicked open, the doorjambs were “ripped open,” and the locking mechanisms “were off the door.” As with the other incidents, there was a restraining order in place at the time.
On January 23, 2018, defendant again violated a restraining order. When his mother came home from work, she saw defendant sitting on the back of her landscaper‘s truck, which was parked on the street between her house and the neighbor‘s house. She went into the garage and noticed that the door frame and lock were broken. When she asked defendant why he broke into the house, he left without saying anything. She
On February 21, 2018, defendant‘s brother heard defendant banging and yelling at the door of the house at approximately 4:00 a.m. Defendant was there for approximately 10 or 15 minutes before he left. Later in the day, defendant‘s brother went to work. When he came home in the afternoon, he saw that the garage door had been opened. He had previously pushed a dresser against the door to keep it closed because the lock and door had not been fixed from the last incident. The dresser had been moved and stereo equipment was missing. There was a restraining order in effect at this time as well.
The Charged Offenses
On March 29, 2018, defendant‘s mother and brother were at home. During the night, the brother, who had been asleep in his second-floor bedroom, heard a loud bang at the door that led from the garage into the house. It sounded like the door being kicked in. Defendant‘s brother opened his second-floor bedroom door and saw defendant running up the stairs holding a kitchen knife. Defendant was holding the knife in his hand with his arm at a right angle and the blade pointed away from his body. He was on the turn on the first landing of the stairs, approximately six to seven feet away. Defendant was yelling. Defendant‘s brother was scared and nervous at the sight of defendant.
Defendant‘s mother, who was on her bed in her bedroom awake, also heard a loud bang. She came out of her bedroom and asked what was happening. Defendant‘s brother told her to go back inside, that defendant had a knife, and that she should call 911. Although she did not see defendant from her vantage point, she went back in her bedroom and called 911. Defendant‘s brother went back inside his room and closed and locked the door.
After seven or eight minutes of looking for his pepper spray, defendant‘s brother found it and slowly opened his bedroom door. Defendant was no longer there.
Police were dispatched at 11:10 p.m. and arrived at the victims’ home approximately 5 to 10 minutes later. A neighbor who lived a couple of houses away from defendant‘s mother and brother testified that his daughter alerted him to the presence of police officers outside. He turned on the light in his backyard and saw a chair cushion move. Thereafter, he told police officers on the scene that someone was hiding in his backyard. An officer responded and looked out the sliding glass door. He observed the cushion move and saw someone‘s hand emerge from underneath the cushion. Another officer released his K-9 partner. The dog found defendant and officers took him into custody. After defendant was detained, one of the officers found a kitchen knife in a bucket near where defendant had been hiding. The knife had a wooden handle and a four-and-a-half-inch blade that was bent in half.
Defendant‘s brother and mother observed damage to the door connecting the house to the garage. The hinges were “ripped open,” the doorjambs were “ripped out,” and there was damage to the door itself. Nothing was missing from the house.
Verdicts and Sentencing
The jury found defendant guilty of burglary in the first degree (
At a bifurcated trial, the jury found true the allegation that defendant had previously been convicted of assault with a deadly weapon in violation of
DISCUSSION
I. Prior Acts Evidence
A. Additional Background
In an in limine motion, the prosecution sought to admit evidence of the prior uncharged acts under
Defendant sought to exclude that same evidence in an in limine motion. He asserted that, with the exception of one incident, none of the prior uncharged conduct constituted domestic violence because the conduct did not constitute “abuse” as defined in
At the in limine hearing, the prosecutor asserted that the prior acts were admissible under
Defense counsel argued, regarding the January 23, 2018, incident, that there had not been sufficient evidence of identity to support a holding order, and there still was not sufficient evidence of identity for the evidence to be presented at trial. Counsel further asserted there was insufficient proof of identity in connection with the theft of defendant‘s brother‘s running shoes. Counsel asserted that presenting evidence on these matters would be distracting, consume undue time, and be prejudicial. Counsel also asserted that the prior acts were insufficiently similar to the charged offenses.
In additional oral argument the following day, the prosecutor asserted that the prior acts contextualized what was going on with the family and with defendant being a family member subject to a restraining order. The prosecutor asserted that there would be sufficient evidence to prove the prior acts, regardless of whether defendant was charged for them, and that they were sufficiently similar. Addressing similarity, the prosecutor again asserted that “it starts with the fact that it‘s the same location for all these incidences, which is . . . the family home . . . ,” and the same victims. Additionally, defendant entered using the same side garage door. And a restraining order was violated in all of the prior incidents; in all but one of incidents the same restraining order was violated as defendant violated during the charged offenses. Further, defendant left the scene before the police arrived.
Defense counsel asserted that prior thefts should not be admissible under
Addressing
As for
Ultimately, the trial court granted the prosecution‘s in limine motion to admit evidence of defendant‘s prior acts pursuant to
“Analysis of the requirements of [the Evidence Code] . . . must begin with the plain language of the statute, giving the words their ordinary and common meaning. [Citation.] ‘If the language [of the statute] is unambiguous, the plain meaning controls,’ and no further analysis is warranted. [Citations.] When the language allows for more than one reasonable construction, we consider ‘such aids as the legislative history of the [statute] and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy.’ ” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 657.)
We review a challenge to a trial court‘s decision to admit evidence pursuant to
C. Section 1109
1. Defendant‘s Contentions
Defendant asserts the trial court abused its discretion in admitting the prior acts under
2. Definitions of Domestic Violence and Abuse Applicable to Section 1109
Regarding the definition of domestic violence,
The Penal Code definition is in
3. Analysis
Defendant asserts that the trial court erred by using a definition of abuse found in the Family Code to apply to other acts of domestic violence in
We reject defendant‘s construction of
Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial court erred in instructing the jury on the use of prior violent acts evidence to prove that offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited exception to the general ban (under
Approximately five years later, the Second Appellate District, Division Six, decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney
In Ogle, the defendant asserted that his prior conviction for stalking should not have been admitted to prove his propensity to commit the charged criminal threats because stalking was not domestic violence within the meaning of
Defendant asserts that Ogle was wrongly decided based on his arguments concerning the plain language of
Defendant asserts, among other things, that Ogle was wrongly decided because according to defendant, a case on which that court relied, People v. Dallas (2008) 165 Cal.App.4th 940 (Dallas) “did not find that the definition of ‘abuse’ should be expanded in this manner.” In Ogle, the court relied on Dallas in stating that
Defendant is correct that the court in Dallas did not expressly hold that definitions of abuse found in
Moreover, apart from Dallas, the Ogle court also relied on the plain meaning of the language of
We do disagree with the court in Ogle on one thing. It criticized the Zavala court for “overlook[ing]”
The defendant in Ogle also made the argument defendant makes here, that “the Family Code reference in
As was the case in Ogle (Ogle, supra, 185 Cal.App.4th at p. 1143), the Family Code definitions of domestic violence and abuse apply here because defendant‘s prior conduct at issue occurred within five years of trial. (
The Attorney General relies on People v. James (2010) 191 Cal.App.4th 478 (James), a case that supports only a determination that burglary based on entry with the intent to commit an aggravated assault or threat to cause injury is a crime ” ‘involving domestic violence’ ” within the meaning section 1109. There the defendant broke into his former girlfriend‘s home and made threatening statements towards her, placing her in reasonable apprehension of imminent serious bodily injury. (James, at p. 483.) Noting the
Here, defendant entered into the house his mother and brother shared in the middle of the night while they were in their beds. He was then seen running up the stairs holding a kitchen knife. Sufficient evidence supported the conclusion that defendant‘s alleged
Defendant argues that the prior acts were not admissible pursuant to section 1109, under any definition of abuse, to prove defendant entered into the house with the intent to commit theft. Thus, according to defendant, the trial court erred in admitting his prior acts as domestic violence propensity evidence to prove burglary on a theft theory. We disagree. On this point, it is important to note that section 1109 merely requires that the criminal action in which the defendant is accused be one ”involving domestic violence.” (
1. Additional Background and Defendant‘s Contentions
The trial court ruled that the prior act evidence would be admissible under section 1101, subdivision (b) for “the targeted purposes” in the instructions. The instructions listed the following purposes for which the jury could consider the evidence: intent to commit theft, assault with a deadly weapon or assault with force likely to cause great bodily injury, and that defendant knew he had an active restraining order when he allegedly acted in this case. (See fn. 4, ante.)
Defendant asserts that the trial court abused its discretion in admitting the prior acts under section 1101, subdivision (b). He asserts that this evidence was not relevant to prove he entered the home with the intent to steal property or commit an aggravated assault, or to prove he had knowledge of the restraining order in effect at the relevant time. This is so, according to defendant, because the prior incidents were insufficiently similar to be probative, and further that the prior acts of alleged theft were not established by a preponderance of the evidence. He also asserts that this evidence was inadmissible on section 352 grounds. Again, we disagree.
2. Analysis
Section 1101, subdivision (a) generally prohibits evidence of character to prove conduct. Apart from the exception under section 1109, subdivision (b) of section 1101 provides that “evidence of a prior uncharged act may also be admissible to prove a disputed material fact—other than a criminal disposition—such as motive, intent, knowledge, or the absence of mistake or accident.” (Wang, supra, 46 Cal.App.5th at p. 1075.)
Our high court has stated: “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ’ “probably harbor[ed] the same intent in each
We conclude the prior acts were sufficiently similar for admissibility under section 1101, subdivision (b). (See generally People v. Fruits (2016) 247 Cal.App.4th 188, 202-203 (Fruits) [evidence of threats the defendant made against his mother, and other acts of violence against her were similar to the charged offense involving his mother as the victim and thus highly probative]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 (Hoover) [§ 1109 evidence relevant to domestic violence was admissible in view of the fact that the evidence involved the defendant‘s history of similar conduct against the same victim and the evidence was not unduly inflammatory].) Defendant emphasizes differences between the prior acts and the charged offenses such as the time of day and the fact that he previously went into the garage rather than the residence itself. He also asserts that, during the prior acts, he did not carry a weapon. We conclude that these differences were insignificant compared to the fact that he victimized the same people, at the same place, employed a similar means of entry causing similar damage, repeatedly violated a restraining order and, with the exception of one incident, left the scene before the police arrived. In the context of this case, these similarities were substantial enough to have sufficient probative value.
Regarding the burglary, as stated ante, the prosecution proceeded on the theories that, when defendant entered the house, his intent was to commit aggravated assault or theft. The circumstantial evidence pointed to defendant as the person who stole items of property from the home on at least two prior occasions. Additionally, in another prior act, defendant went to the house and attempted to assault his brother with a motor
The evidence of defendant‘s violation of prior restraining orders by going to the residence where his mother and brother lived was also relevant to defendant‘s knowledge concerning the existence of the restraining order. Defendant asserts that knowledge was not a material issue in the case because he was previously served with the restraining order violated here in open court, and thus his knowledge of that restraining order is presumed. However, “By pleading not guilty . . . defendant placed all elements of the crime in dispute.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 239-240 (Hendrix).) And the prosecution had latitude in the manner in which it chose to prove its case. In other words, “the prosecutor is not required ‘to present its case in the manner preferred by
E. Section 352 Analysis
1. Defendant‘s Contentions
Defendant asserts that the prior acts evidence should have been excluded under section 352. As for the section 1109 theory, he asserts that the prior incidents were not similar to the circumstances of the charged offense, and the evidence addressed to the prior acts was not sufficiently corroborated. He asserts as to both section 1109 and 1101, subdivision (b), the probative value of the prior acts was low or nonexistent. Defendant further asserts that the potential for prejudice was high. He also asserts that the March 14, 2017, incident, during which he drove a car at his brother, was far more inflammatory than the charged offenses. Additionally, defendant asserts that the jury would be tempted to punish him for the prior acts because he had previously escaped punishment for those
2. Section 352 and Standard of Review
“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.” (
3. Analysis
In applying the balancing analysis under section 352, a court must determine the probative value of the evidence and place that on the probative value side of the section 352 scales. Here, as we have noted, the prior acts were highly probative under two Evidence Code theories, section 1109 and section 1101, subdivision (b). The evidence was probative of: (1) defendant‘s propensity to threaten or assault his brother, (2) defendant‘s propensity to harass and/or disturb the peace of his brother and mother by a variety of conduct, including stealing from the family‘s home; (3) defendant‘s intent to threaten or injure his brother, (4) defendant‘s intent to steal property when he entered the home during the charged incident; (5) defendant‘s knowledge of the restraining order, and (6) defendant‘s willfulness and lack of mistake or accident in violating the restraining
And contrary to defendant‘s contention, problems of proof did not detract from the tendency to prove these material facts and thus did not diminish the probative value of the evidence. (Cf. Winkler, supra, 56 Cal.App.5th at pp. 1153-1154 [evidence concerning death of prior wife was inadmissible under § 1101, subd. (b) because there was insufficient evidence to establish defendant committed an act that resulted in her death].) As noted, the circumstantial evidence here pointed to defendant as the person who stole items of property from the home on at least two occasions.
We further conclude the introduction of this evidence did not consume an undue amount of time. The testimony concerning the prior acts was supplied almost exclusively by defendant‘s mother and brother, who also testified as to the charged offenses. That testimony concerning the prior acts did not consume an undue period of time relative to the trial as a whole.
We also conclude that the evidence concerning the prior acts did not give rise to a danger of undue prejudice against the defendant. ” ’ ” ‘[T]he prejudice which exclusion of evidence under . . . 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 . . . 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.” ’ ” ’ ” (Fruits, supra, 247 Cal.App.4th p. 205, quoting Holford, supra, 203 Cal.App.4th at p. 167.) Here, the prior acts are materially similar, and in almost every case, clearly less inflammatory, than the charged offenses. Defendant asserts the assault with a vehicle
Defendant argues the evidence “reasonably likely misled or confused the jury because the same prior incidents were admitted pursuant to Evidence Code section 1109 for use as propensity evidence and pursuant to Evidence Code section 1101 to prove intent for the burglary and knowledge of the criminal protective/restraining order, which could not be used to prove criminal propensity.” According to defendant, this was “inherently confusing.” Defendant does not explain why telling the jury it can consider evidence for different purposes is confusing in a generic sense or why in the specific context of this case it is “inherently confusing.” We conclude it was not. The court properly instructed the jury on these matters and the record shows no confusion in this regard. (See fn. 4, ante.) We assume jurors are intelligent, particularly when it comes to understanding jury instructions. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 475 [” ’ ” ‘we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given’ ” ’ “].)
Defendant also complains the evidence was insufficiently corroborated to be admissible under section 1109. His argument seems to be focused only on the incidents of theft. Under section 1109, a trial court must consider the existence of corroboration in the section 352 analysis for application of the Family Code section 6211 definition of “domestic violence.” (
Defendant asserts that there was a danger of prejudice under section 352 because he was not punished for the prior acts and thus the jury would be tempted to punish him because he had previously escaped punishment for those acts. It is well settled that this is a legitimate factor for the prejudice side of the section 352 scales in the context of the admissibility of uncharged acts. (Winkler, supra, 56 Cal.App.5th at p. 1156, citing People v. Soper (2009) 45 Cal.4th 759, 772-773; People v. Tran (2011) 51 Cal.4th 1040, 1047; Ewoldt, supra, 7 Cal.4th at p. 405.) But we conclude the potential for this to
We conclude that, contrary to defendant‘s contention, the trial court did not abuse its discretion in admitting the prior acts evidence under section 1109 or 1101, subdivision (b) over defendant‘s section 352 objections.
F. Due Process Contention
Citing our high court‘s decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), defendant asserts the admission of the prior acts evidence under section 1109 violated his due process rights because the trial court allowed propensity evidence in violation of section 352. (See generally Falsetta, at pp. 917-918 [§ 352 provides a due process check on the admissibility of uncharged sexual misconduct under section 1108 and therefore section 1108 does not violate the due process clause].) But, as we have concluded, the trial court did not err in ruling that any prejudice of the prior acts evidence here did not substantially outweigh the probative value.
Defendant also argues he had a due process right to have a jury decide his guilt “based on what he did in the instant case, not on who they think he is as a result of the prior bad act evidence they heard.” For this argument, he relies on two cases published before the enactment of section 1109.
In People v. Garceau (1993) 6 Cal.4th 140, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117, the defendant was charged with the murder of his girlfriend and her son. (Garceau, at p. 156.) Evidence of defendant‘s uncharged drug activity and the murder of a third person was introduced under section 1101, subdivision (b). (Garceau, at p. 185.) The jury was instructed that, if it believed this prior act evidence, it ” ‘may be considered by [the jury] for any purpose, including but not limited to any of the following: [¶] [Defendant‘s] character or any trait of his character . . . .’ ” (Id. at p. 186.) The Attorney General acknowledged, and our high court agreed, that this instruction was erroneous. (Id. at pp. 186-187.) Garceau
In the other case on which defendant relies, United States v. Myers (5th Cir. 1977) 550 F.2d 1036, a federal bank robbery prosecution, the circuit court determined the district court erred in admitting evidence that the defendant committed an uncharged bank robbery under
Much has transpired in the law concerning the admissibility of uncharged acts since the cases cited by defendant were published. Indeed, the first version of section 1109, allowing prior acts of domestic violence to be admitted to prove propensity to
Similarly,
We conclude defendant‘s due process rights were not violated.
II. CALCRIM No. 852A
A. Additional Background
The prosecution requested a pinpoint instruction related to evidence of uncharged domestic violence, specifically with regard to the definition of “abuse.” Over defendant‘s objection, the trial court instructed the jury with a modified version of CALCRIM No. 852A which read in pertinent part: “[T]he People presented evidence that the defendant committed domestic violence that wasn‘t charged in this case. [¶] [D]omestic violence means abuse committed against a brother or a mother of the defendant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else; attacking, striking, threatening, battering, or having been restrained from doing so by a valid court order, coming within a specific distance, or disturbing the peace of a family member.” (Italics added; see fn. 4, ante.)
B. Defendant‘s Contentions
Defendant asserts that the trial court abused its discretion by incorporating the Family Code definition of abuse in its CALCRIM No. 852A instruction. He further asserts that the trial court erred in giving this instruction without modifying it “to explain that jurors could not consider the alleged prior domestic violence . . . to determine whether [defendant] likely committed a burglary by entering a room in his mother‘s house with the intent to commit theft,” because theft is not an offense involving domestic violence. (Capitalization omitted.) Consistent with our conclusion that offenses involving domestic violence in section 1109 include offenses involving behavior
C. Applicable General Principles of Law
“A trial court has a sua sponte duty to ‘instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury‘s understanding of the case . . . .’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846, quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.) ” ‘We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court “fully and fairly instructed on the applicable law.” ’ ” (People v. Turner (2019) 37 Cal.App.5th 882, 887.) “We consider the instructions as a whole as well as the entire record of trial, including the arguments of counsel. [Citation.] If reasonably possible, instructions are interpreted to support the judgment rather than defeat it.” (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.)
D. Analysis
We have concluded that section 1109 incorporates the Family Code definition of abuse. Thus, the trial court did not err in including the legally correct and applicable Family Code definition of abuse in its modified CALCRIM No. 852A instruction.
Defendant asserts that CALCRIM No. 852A, as given, was erroneous because it allowed the jury to infer from prior acts of domestic violence his propensity to commit burglary on a intent to steal theory, which according to defendant, is not an act of domestic violence. However, as we have pointed out, breaking into the victims’ home to steal property can result in a disturbance of the victims’ peace. Disturbing the peace was included in the court‘s modified CALCRIM No. 852A. And although harassment was not included in the instruction, under the circumstances presented here, stealing from the
E. Due Process Violation
Defendant further asserts that the propensity evidence, and the trial court‘s use of the definition of abuse from the Family Code in CALCRIM No. 852A, reduced the prosecution‘s burden of proving every element of burglary beyond a reasonable doubt. Again, we disagree.
As a general matter, our high court has previously approved CALJIC No. 2.50.01, a substantially similar instruction to CALCRIM No. 852A, in People v. Reliford (2003) 29 Cal.4th 1007, 1016. Insofar as applicable, we are, of course, bound to follow our high court‘s decision in Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Additionally, this court has previously rejected similar challenges to CALCRIM No. 852, the former instruction involving section 1109 uncharged act evidence. (See People v. Reyes (2008) 160 Cal.App.4th 246, 250-253; People v. Johnson (2008) 164 Cal.App.4th 731, 738-740.)
Defendant asserts that the trial court‘s error in instructing the jury that it could consider the prior acts of domestic violence to conclude that defendant entered the house with the intent to commit theft, which, according to defendant, is not an act of domestic violence, reduced the prosecution‘s burden of proof. However, the Legislature established what evidence is admissible to prove propensity to commit domestic violence and defined offenses involving domestic violence to include harassment and disturbing
III. Cumulative Error
Defendant asserts that the cumulative effect of the errors he alleges prejudiced him, mandating reversal. We reject this contention. The premise behind the cumulative error doctrine is that, while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176.) We have concluded there has been no error. Moreover, defendant “was entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant was not deprived of a fair trial.
IV. Sentence on Count Two – Penal Code section 654
In imposing sentence on count two, willfully disobeying a court order, the trial court stated: “As to the guilty finding on Count 2, the Court agrees with the probation
The pronouncement of sentence on count two was error. Because this constituted an unauthorized sentence, it may be corrected at any time. (See People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13 [“[I]t is well established that the appellate court can correct a legal error resulting in an unauthorized sentence (including a misapplication of [Penal Code] § 654) at any time“].) Accordingly, we reach this issue notwithstanding the fact that it was raised by neither defendant nor the Attorney General. Although the law here is well-settled, we publish this portion of our opinion because this is a reoccurring error in our district.
On this record, we cannot say what sentence the trial court “undoubtedly” would have imposed on count two before staying execution of that sentence pursuant to
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The matter is remanded to the trial court for that court to impose sentence on count two and then stay execution of that sentence pursuant to
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
Notes
As for