Filed 9/22/15 P. v. Howard CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066738

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS271078)

RONNIE WILLIAM HOWARD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Dwayne

K. Moring, Judge. Affirmed.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D.

Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant Ronnie Howard guilty of one count of corporal injury to a

fellow parent (Pen. Code, § 273.5)1 and, in a bifurcated proceeding, the court found true

Howard had sustained a prior strike conviction within the meaning of sections 667,

subdivisions (b) through (i), and 1170.12. The court sentenced Howard to eight years in

prison. Howard timely appealed.

                                             I

                              FACTUAL BACKGROUND

       A. Prosecution Evidence

       The Charged Offense

       On the morning of March 17, 2014, the victim of Howard's attack, Ms. Meeks,

banged on her neighbor's door and asked if she could use his phone to call police because

Howard had tried to strangle her. The neighbor agreed and Meeks, who appeared upset,

initially misdialed on her first attempt but then correctly reached the 911 operator on her

second attempt. During the 911 call, Meeks told the operator "my baby's father [referring

to Howard]--he--he choked me to until I passed out and I'm pregnant." She also told the

operator Howard "abused me," and "slam[med her] and stuff," and stated "I had to hop

out the window." She also told the operator she had locked the door behind Howard

when he went outside and wanted police to come before he escaped. When asked if

Howard carried a weapon, Meeks responded, "I think so. I don't know," and said she did

not know if he had a gun but had not seen one.


1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
       Chula Vista Police Officer Dominguez was dispatched to Meeks's apartment

building and, on arrival, saw Howard's unoccupied car was still parked there.

Dominguez contacted Meeks, who was distressed and appeared to have been in an

altercation. He asked Meeks what happened, and she told him her boyfriend (Howard)

punched her in the face and choked her in her apartment, and she escaped through a

window. A few minutes after Dominguez arrived, he was joined by his partner, Agent

Sherard. A few minutes later, as they were heading towards Meeks's apartment, they

observed Howard on foot and detained and arrested him.

       In Meeks's apartment, she initially reiterated to the officers that Howard had

attacked her for no reason, but then admitted she had confronted Howard about messages

on his phone from another woman. An argument had ensued and Howard then attacked

her, including punching her in the face and choking her.

       The officers observed Meeks had some bruising or redness to her forehead, above

her right eye, and a bruise under her right eye, consistent with being punched in the face.

They did not observe any other injuries.

       Prior Domestic Violence

       Over defense objection, Erika Baines (Howard's former girlfriend and mother of

two of his children) was permitted to testify Howard had attacked her on several

occasions. In a 2009 incident, he slapped her in the face as they drove home and, when

they arrived home, he stated, "I'm going to beat your ass" and he proceeded to slap,

punch and choke her into unconsciousness. In a 2010 incident, when Baines was


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pregnant, they argued on the phone about her staying at her parents. Howard returned

home about five minutes later and proceeded to hit her. He also grabbed a knife and cut

her twice, and said, "If I have to talk to you about this again, I'm going to kill you." In

2011, when Baines was pregnant with their second child, Howard slapped her face and

told her to leave. However, as she was preparing to leave, he attacked her again, hitting

and kicking her, and throwing her halfway downstairs. He also hit her numerous times

with his belt. She called 911 but ultimately declined to prosecute Howard.

       The jury also heard a tape-recorded phone call in which Meeks confronted

Howard about threatening her mother and breaking her mother's window. Howard tacitly

admitted one of his associates was responsible for the broken window, and Howard also

stated, "I'm gonna kill your motherfucking ass, bitch" and, "We locked and loaded over

here, bitch."

       B. Defense Evidence

       A defense investigator testified he interviewed Meeks and she recanted her claims

that Howard attacked her. She told the defense investigator she called police because she

was angry at Howard, using her neighbor's phone because Howard had her cell phone,

and she lied to police about Howard hitting her because she wanted to get Howard in

trouble and did not tell police the truth.




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                                        ANALYSIS

       A. The Confrontation Clause Claim

       Howard argues admission into evidence of the statements Meeks made to police at

the scene violated his Sixth Amendment right to confront and cross-examine witnesses

against him under Crawford v. Washington (2004) 541 U.S. 36.

       Crawford

       Crawford held that admission of so-called "testimonial" hearsay violates a

defendant's Sixth Amendment rights unless the witness is unavailable and the defendant

has had the opportunity to cross-examine the declarant. (Crawford v. Washington, supra,

541 U.S. at pp. 68-69.) The Supreme Court in Davis v. Washington (2006) 547 U.S. 813

refined when out-of-court statements to police are "testimonial" within the Crawford rule,

rather than "nontestimonial" and outside the exclusionary rule, by explaining that,

"Statements are nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution." (Davis, at p. 822, fn. omitted.)

       Our Supreme Court, which has recognized that not all interrogations by law

enforcement officers produce "testimonial" hearsay subject to the confrontation clause

(People v. Blacksher (2011) 52 Cal.4th 769, 811), has explained that a court must


                                              5
examine "six factors to consider in determining whether statements made in the course of

police questioning were for the ' "primary purpose of creating an out-of-court substitute

for trial testimony" that implicates the confrontation clause.' [Quoting Blacksher, at

p. 813.] These are (1) an objective evaluation of the circumstances of the encounter and

the statements and actions of the individuals involved in the encounter; (2) whether the

statements were made during an ongoing emergency or under circumstances that

reasonably appeared to present an emergency, or were obtained for purposes other than

for use by the prosecution at trial; (3) whether any actual or perceived emergency

presented an ongoing threat to first responders or the public; (4) the declarant's medical

condition; (5) whether the focus of the interrogation had shifted from addressing an

ongoing emergency to obtaining evidence for trial; and (6) the informality of the

statement and the circumstances under which it was obtained." (People v. Chism (2014)

58 Cal.4th 1266, 1289.)

       Howard's Crawford Claim Is Forfeited

       The prosecution filed a pretrial motion in support of the admission of Meeks's

statements to police at the scene. Howard's written motions in limine did not object to

the admission of Meeks's statements to police at the scene under Crawford, and at the

hearing on the pretrial motions Howard's counsel (addressing the admission of Meeks's

statements to police) stated only that "I think the rule of completeness would apply" and

"if the People can lay the evidentiary foundations that it comes in . . . ." The court

therefore ruled the statements would be admitted "subject to the appropriate foundation


                                              6
being made." At trial, Howard did not object to the police officers' testimony concerning

Meeks's statements made at the scene.

       Under these circumstances, we are satisfied Howard's claim on appeal—that

admission of Meeks's statements to police at the scene violated his right to confront

witnesses under Crawford—is forfeited. "[N]umerous decisions by this court have

established the general rule that trial counsel's failure to object to claimed evidentiary

error on the same ground asserted on appeal results in a forfeiture of the issue on appeal."

(People v. Dykes (2009) 46 Cal.4th 731, 756.) The rule of forfeiture applies with equal

force to claims that admission of evidence violated the confrontation clause. (See People

v. Redd (2010) 48 Cal.4th 691, 730 ["Defendant also contends that the admission of out-

of-court identifications violates a defendant's right under the Sixth Amendment to

confront witnesses, even when the declarant testifies. He did not raise an objection below

based upon the confrontation clause, and therefore has forfeited this claim."].) The

forfeiture rule applies with particular force here, because the admissibility of Meeks's

statements under Crawford turned on a host of peculiarly factual issues necessary to

deciding whether her statements were "testimonial" or were instead "nontestimonial"

under the factual inquiries outlined in People v. Chism, supra, 58 Cal.4th at page 1289.

The absence of a timely and specific objection under Crawford lulled the prosecution into

not introducing evidence on whether the evidence was nontestimonial because the

officers believed there was (or appeared to be) an ongoing emergency, or whether any

actual or perceived emergency presented an ongoing threat to them or to the public.


                                              7
Furthermore, there was no detailed evidence on Meeks's medical condition or on whether

the focus of the interrogation had shifted from addressing an ongoing emergency to

obtaining evidence for trial, which could have supported inadmissibility of the statements

had a timely and specific objection been raised.2 Under these circumstances, we

conclude the absence of a timely and specific Crawford objection forfeits the issue.

       B. The Prior Acts Claim

       Howard argues the court abused its discretion when it permitted the prosecution to

admit evidence of his prior assaults on Baines, and his threatening telephone call to

Meeks.

       Legal Framework

       Evidence a defendant committed an uncharged offense is ordinarily inadmissible

to establish a disposition to commit a charged offense. (Evid. Code, § 1101, subd. (a).)

However, Evidence Code section 1109 provides, in subdivision (a), that "in a criminal

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

evidence of the defendant's commission of other domestic violence is not made

inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section

352." This statute "reflects the legislative judgment that in domestic violence cases, as in




2      Additionally, the absence of a timely and specific objection also rendered moot
any inquiry into Meeks's "availability" to testify at trial, another relevant consideration in
the Crawford matrix. (Cf. People v. Byron (2009) 170 Cal.App.4th 657, 669-674
[availability of witness is factual determination relevant to admission of testimony under
Crawford].)
                                              8
sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation."

(People v. Johnson (2010) 185 Cal.App.4th 520, 532.)

       Thus, under Evidence Code section 1109, evidence of prior uncharged acts of

domestic violence not too remote in time are accorded the same treatment as all other

forms of relevant evidence not subject to any exclusionary principle, and the presumption

will be in favor of admission but subject to the caveat that the court may nevertheless

exclude the evidence under Evidence Code section 352. (Cf. People v. Loy (2011) 52

Cal.4th 46, 62-63 [addressing analogous Evid. Code, § 1108].) Thus, even where the

evidence is admissible by virtue of Evidence Code section 1109, a trial court may still

exclude the evidence pursuant to Evidence Code section 352 if it determines the

probative value of the evidence is substantially outweighed by the probability the

evidence will consume an undue amount of time or create a substantial danger of undue

prejudice, confusion of issues, or misleading the jury. (People v. Hoover (2000) 77

Cal.App.4th 1020, 1028-1029.) "The court enjoys broad discretion in making this

determination, and the court's exercise of discretion will not be disturbed on appeal

except upon a showing that it was exercised in an arbitrary, capricious or patently absurd

manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192

Cal.App.4th 1222, 1233.)

       Analysis

       Howard has not demonstrated the rulings admitting the evidence of prior acts was

arbitrary, capricious or patently absurd. The events involving Baines showed Howard


                                              9
attacked his live-in girlfriend, hitting her in the head and choking her into

unconsciousness, including attacks on Baines when she was pregnant with his child.

Because those attacks bore strong resemblances to the charged offense, they were not

unduly prejudicial but instead were " 'uniquely probative' of guilt in a later accusation."

(People v. Johnson, supra, 185 Cal.App.4th at p. 532.)

       Howard asserts it was an abuse of discretion to admit the evidence of his attacks

on Baines because those attacks were both dissimilar to, and more inflammatory than, his

alleged assault on Meeks. He asserts that because one attack on Baines involved his use

of a knife to cut her twice, and one involved throwing her down the stairs and using a belt

to inflict multiple blows, it was more prejudicial than probative. However, Meeks's

statement was that Howard punched her face several times, slammed her against a wall,

and choked her into unconsciousness. Although the attacks on Baines (unlike the attack

on Meeks) did involve use of a weapon on two occasions, we cannot conclude the degree

of violence employed on Baines was so significantly greater than that used against Meeks

that the danger of undue prejudice from the Baines evidence substantially outweighed the

probative value of the evidence on the issue of whether Howard attacked Meeks.

       Howard also asserts it was an abuse of discretion to admit the tape of the phone

call concerning the vandalism of Meeks's mother's home because it was a profanity laced

tirade by Howard having no relevance to any issue and only served to "create extreme

distaste for appellant as a person." However, the phone call was admissible to show

Howard visited retribution on those who crossed him, and included threats of violence


                                             10
against Meeks, which was probative on why Meeks was unwilling to testify against

Howard at trial (cf. People v. Golden (1961) 55 Cal.2d 358, 371), and on what may have

motivated her to retract her allegations against Howard when she spoke with the defense

investigator. (People v. Brooks (1979) 88 Cal.App.3d 180, 187, disapproved on other

grounds by People v. Mendoza (2011) 52 Cal.4th 1056, 1086.)

                                    DISPOSITION

      The judgment is affirmed.




                                                                        McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




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