Filed 10/13/15 P. v. Hunwardsen CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068675
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM028776)
                   v.

JASON GRANT HUNWARDSEN,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Mark
Bacciarini, Judge.
         Peter Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
         Jason Grant Hunwardsen was convicted of domestic violence and criminal threat
charges after stabbing Julie Bascue, his longtime girlfriend and the mother of his three
children. In essence, Hunwardsen raises five issues on appeal.
       First, he argues that the trial court’s denial of his motion for mistrial based on
Bascue’s references to his prior incarceration and parolee status was an abuse of
discretion. Second, Hunwardsen argues the trial court erred in admitting Bascue’s
medical records from the hospital where she sought treatment after the stabbing because
they were irrelevant to any contested issue. Third, Hunwardsen contends the trial court
erred in admitting evidence of prior acts of domestic violence pursuant to Evidence Code
section 1109 by failing properly to weigh the probative value and prejudicial effect under
Evidence Code section 352. Fourth, Hunwardsen raises claims of ineffective assistance
of counsel based on counsel’s failure to move to redact certain parts of Bascue’s taped
police interview regarding the stabbing incident and on counsel’s failure to move to
exclude a prior incident of domestic violence for which he was not held to answer after
the preliminary hearing. Fifth and finally, Hunwardsen argues that his constitutional
rights were violated when the trial court adopted the parties’ stipulation to forgo reporting
of the court’s oral instructions to the jury.
       We disagree and affirm the judgment.
                         FACTS AND PROCEDURAL HISTORY
       Hunwardsen was charged by information in the Merced County Superior Court
with willfully inflicting corporal injury upon the mother of his children (Pen. Code,1
§ 273.5, subd. (a); count 1) and making criminal threats (§ 422; count 2). The
information alleged in connection with count 1 that Hunwardsen had a prior conviction
for the same offense within seven years, pursuant to section 273.5, subdivision (e)(1).
The information further alleged, in connection with both counts, that Hunwardsen
personally inflicted great bodily injury within the meaning of section 12022.7,
subdivision (e), and personally used a deadly weapon within the meaning of
section 12022, subdivision (b)(1). Finally, the information alleged that Hunwardsen had

       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


                                                2.
a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony
conviction (§ 667, subd. (a)(1)), and served four prior prison terms within the meaning of
section 667.5, subdivision (b).
       The incidents underlying the charges in this matter occurred on August 4, 2013, at
the apartment in Livingston that Hunwardsen and Bascue shared with their five-year-old
daughter, one-year-old son, and two-month-old son. During the three-day jury trial, the
prosecution called five witnesses: Bascue; Kimberly Casillas, a neighbor of Bascue’s
parents and acquaintance of Bascue; Livingston Police Detective Patrick Radke, who
investigated the incidents underlying the instant charges; Los Banos Police Officer Surina
Gonzales, who investigated a June 25, 2012, domestic violence incident involving
Hunwardsen and Bascue; and Los Banos Police Officer Jairo Acosta, who investigated a
December 17, 2012, domestic violence incident involving Hunwardsen and Bascue. The
defense did not call any witnesses.
Testimony of Julie Bascue
       Bascue was the prosecution’s first witness. She testified that she was stabbed on
the left side of her neck in the early morning of August 4, 2013.2 The stabbing severed a
nerve that resulted in a permanent loss of sensation in her left ear and on the side of her
head. Bascue described the circumstances of the stabbing. She testified that she had
been sleeping in the back bedroom of her apartment with her two-month-old baby. She
woke up around 7:45 a.m. and went into the living room where she found Hunwardsen
and a woman called Jamie on the couch, touching each other. Bascue testified that she
flew into a rage and lunged at Jamie. A fight ensued between the two of them during
which Jamie grabbed a knife from the kitchen and stabbed Bascue in the neck.




       2Bascue  told the police when they came to the scene that she was stabbed with a
six-inch surgical steel knife from her kitchen.


                                             3.
         Bascue testified that she was furious at Hunwardsen for cheating on her with
Jamie and decided to take revenge by accusing him of stabbing her. That evening she
went to a neighbor’s apartment and called the police. Bascue testified that she lied to the
responding officers, telling them that Hunwardsen had stabbed and threatened her. The
police called an ambulance to take her to Memorial Medical Center in Modesto in light of
the numbness she was experiencing in and around her left ear. After Bascue denied that
she told the emergency department doctor that her boyfriend had stabbed her, the
prosecutor introduced a medical record documenting her hospital visit. The medical
record states that Bascue told the treating doctor that her “significant other” had stabbed
her that morning.
         Bascue testified that Hunwardsen was not a violent person; on the contrary he was
a good father and partner. Their family problems were a consequence of her own short
temper and emotional instability.
Testimony of Kimberly Casillas
         Kimberly Casillas was a neighbor of Bascue’s parents in Los Banos and had
known Bascue for about a year. Casillas testified that Bascue had confided in her about
several beatings she had endured over the course of the past year. Casillas recounted
specific incidents that Bascue had described.
         Bascue had told Casillas about an incident that occurred when she and
Hunwardsen drove to a canal bank to have sex in their car. After they had sex,
Hunwardsen “wigged out” and “started hitting her and hitting her.” “[H]e took the
handle of the [car’s] gear shift off” and “started whacking her and whacking” her to the
point that her T-shirt was “soaked in blood” and “she thought she was going to die.”
Bascue was pregnant at the time and tried to get away but she tumbled down the canal
bank and had no place to go. Casillas saw Bascue after this assault and noticed that she
was “[a]ll swollen in the back of her ears” and had “cuts on both sides on the back of her
ears.”

                                             4.
       Casillas also described another incident that took place when she was driving to a
Circle K store in Los Banos in her truck. She recognized Bascue running in a white T-
shirt holding her stomach, so she pulled up and rolled down her window to talk to her.
Bascue was “pale, shaking and scared.” She said, “Kim, he’s going to kill me. He’s
going to kill me.… He’s going to take me out this time.” Bascue was also afraid for her
daughter, F., so Casillas drove Bascue to F.’s Head Start program to pick up the child.
Bascue was “looking all around scared, holding her stomach” as she ran in to get F. and
ran back to the truck. Casillas called a Merced County domestic violence hotline and
made arrangements for Bascue and her children to go to a women’s shelter. On the way
to the shelter, Bascue wanted to stop at her parents’ house to pick up some documents.
Casillas drove Bascue to her parents’ house and waited for her in her truck but Bascue
never came back and Casillas did not pursue the matter.
       Casillas next described an incident that occurred at the birth of Bascue’s youngest
son. Casillas testified that both Bascue and Bascue’s eldest daughter, D., told her that
when Bascue gave birth to her youngest son, Hunwardsen “kept telling her that the baby
wasn’t his” and slapped her in the face in the hospital room. Casillas also recounted a
conversation she had with Bascue in October 2012. Casillas was at Bascue’s house to
buy a dryer from her. She noticed that both Bascue’s eyes were “almost shut” and were
“red like tomatoes, the color of tomatoes.” Bascue said, “My man did this to me.”
Rolling her eyes, Bascue added that he was in jail and wanted her to testify in court that
she had been beaten up by “some girl” who had been with him. Finally, Casillas
described an incident when she asked Bascue and Hunwardsen, as well as another man,
David, to help her move some furniture. All of them had to squeeze into the cab of
Casillas’s truck to go pick up the furniture. Casillas said she noticed that Hunwardsen
appeared to be jealous that Bascue was sitting near David and gave her a “look” that
clearly frightened her.



                                             5.
Evidence of acts of domestic violence
      a.     August 4, 2013, domestic violence incident
      Officer Brian Wiley and Detective Patrick Radke of the Livingston Police
Department investigated the August 4, 2013, stabbing incident underlying the instant
case. The officers were part of the team that responded to the 911 call made that day.
Officer Wiley interviewed Bascue at the scene. Detective Radke conducted a follow-up
interview with Bascue eight days later. The complete tapes and transcripts of both
interviews were admitted into evidence.
      In her police interviews, Bascue described the incident in detail. She told the
police that Hunwardsen asked her to have sex at about 8:00 a.m. that morning. He got
behind her, but, instead of having sex, inexplicably put her in a severe choke hold. She
recounted that, “He said that he was going to knock me out and you know, with the choke
hold and um, tie me up and then talk to me after I woke up.” Bascue “fought him with
everything [she] had,” and managed to get out of the choke hold. He then punched her in
the head several times with both fists. When she screamed he said, “Shut up bitch or I’m
going to fucking stab you.” Bascue said she did not believe him but all of a sudden he
stabbed her and she felt a rush of warm blood. He threatened to stab her in the head next
if she did not stop screaming. Bascue thought he was going to kill her.
      Later that day, they went to pick up their children from Bascue’s parents’ house in
Los Banos. When they got home, Hunwardsen “cracked” Bascue on the forehead and
told her that her head was about to feel the same way as her neck felt where he had
stabbed her. He also threatened to “knock [her] fucking teeth out.” At that point, Bascue
opened the apartment door and ran downstairs and started yelling for help. Her
downstairs neighbors took her in and called the police. The police arrested Hunwardsen
and called an ambulance to take Bascue to the hospital.




                                            6.
       b.     June 25, 2012, domestic violence incident
       Officer Surina Gonzales of the Los Banos Police Department testified that she
took a report of domestic violence from Bascue on June 25, 2012. Officer Gonzales
testified that she recorded Bascue’s statement and took various photographs. The
photographs, as well as the tape and transcript of Bascue’s interview, were introduced
into evidence. In the interview, Bascue told Officer Gonzales that she had had an
argument with Hunwardsen at their house in Los Banos because he had thrown the only
copies of professional photographs of her three older children into the swimming pool.
When she questioned him, he grabbed her hair and started hitting her in the face with his
fists. He then “grabbed a picture off the wall,” threatened to destroy it too, and beat her
with the plastic frame. Bascue was scared and wanted to leave the house because she did
not feel safe but he pressured her to stay because her “face look[ed] awful.” She had two
black eyes and swollen cheeks. When Hunwardsen got in the shower the next morning,
Bascue gathered up her daughter and “just bolted out the back door.” In investigating
this incident, Officer Gonzales also spoke to Hunwardsen. Hunwardsen told her that
Bascue “had caused the injuries to herself.”
       Bascue was asked about this incident during her testimony in the instant trial. She
presented a very different story about what happened that day. She testified she had set
off from her house early in the morning to do laundry at her parents’ house about six
blocks away. She turned back upon realizing she had left baby formula behind at the
house. She returned to the house about 8 to 12 minutes after having left and “caught
Jason and some girl having sex” on the couch. She got into a fight with the woman, who
beat her up. After Hunwardsen left the house with the other girl, Bascue went to the
police department to report the incident.
       c.     December 17, 2012, domestic violence incident
       Officer Jairo Acosta of the Los Banos Police Department testified that on
December 17, 2012, he took a report of domestic violence from Bascue at a hospital in

                                               7.
Los Banos. The hospital had called the police when Bascue sought assistance from a
security guard there. Bascue had a “knot on her forehead” that was the “size of a golf
ball.” Bascue told Officer Acosta that Hunwardsen had punched her as they were
walking on a street across from the hospital. Hunwardsen was prosecuted and convicted
of a felony violation of section 273.5, subdivision (a), for this incident.
       In her testimony at the instant trial, Bascue denied that she gave a statement to
Officer Acosta regarding this incident.
Verdict and sentencing
       In the instant case, the jury convicted Hunwardsen of both counts and also found
the enhancements for infliction of great bodily injury and use of a deadly weapon to be
true. Hunwardsen admitted the prior conviction and prior prison allegations in
subsequent bifurcated proceedings. He was sentenced to 26 years 4 months’
imprisonment.3
                                       DISCUSSION
I.     Hunwardsen’s motion for mistrial
       Hunwardsen contends that the trial court abused its discretion in not declaring a
mistrial after Bascue referenced Hunwardsen’s prior incarceration and parolee status in
her trial testimony. The People respond that Hunwardsen was not prejudiced because the
court ordered the references stricken, and the jury was appropriately admonished.
       Bascue briefly mentioned Hunwardsen’s prior incarceration when she was
explaining the circumstances of the June 25, 2012, incident. The prosecutor asked
whether the argument was triggered because Hunwardsen had destroyed photographs of
her three older children. Bascue responded as follows: “I had boxes of letters from him
from when he was incarcerated and I had saved them, [years’] worth, and the pictures

       3Hunwardsen   was simultaneously sentenced to a four-year consecutive term in a
separate matter involving escape by use of force or violence and a concurrent three-year
term in a probation violation matter, for a total of 30 years 4 months for all three cases.


                                              8.
were mixed in with some of those boxes and he thought he was just destroying the
letters.”
       Bascue also indicated that Hunwardsen was on parole. When the prosecutor asked
her whether she had confided in Casillas about various incidents of domestic violence,
Bascue demurred, stating that she had told Casillas that she had falsely accused
Hunwardsen of abuse. Specifically, Bascue stated, “I told her that what better revenge
than to send a parolee back to prison on domestic violence charges, you know.”
       Defense counsel moved for a mistrial based on Bascue’s references to
Hunwardsen’s prior incarceration and parolee status. The trial court considered the
defense motion for mistrial but concluded that any prejudice from Bascue’s brief
comments could be cured with an appropriate admonishment to the jury. Counsel had
previously stipulated that Hunwardsen had suffered a prior domestic violence conviction
under section 273.5, and the trial court had ruled that the prior conviction was admissible
pursuant to Evidence Code section 1109.4 Counsel were in agreement that the curative
admonishment should be given to the jury at the same time as the advisement regarding
Hunwardsen’s prior conviction.5 Accordingly, immediately before the close of the
People’s case, the court admonished the jury, per stipulation of counsel, as follows:

              “The parties stipulate and agree that [Hunwardsen] was convicted of
       a felony violation of Penal Code section 273.5(a) on May 21st, 2013. Said
       conviction arising out of a December 17th, 2012, Los Banos investigation.
       You may not consider for any purpose [Hunwardsen’s ] incarceration for

       4Hunwardsen    was convicted under section 273.5 based on the December 17, 2012,
domestic violence incident with Bascue. At the time of the instant trial, he was on felony
probation in that case.
       5During   a discussion between the parties and the trial judge outside the presence
of the jury, the prosecutor indicated that, at the end of the prosecution’s case, he would
move to enter the parties’ stipulation that Hunwardsen had a prior conviction under
section 273.5. Defense counsel stated that it “would be great” if, directly after entering
the stipulation about Hunwardsen’s prior conviction, the court were to admonish the jury
to the effect that any testimony regarding his prior incarceration be stricken.


                                            9.
       this conviction. Any testimony regarding [his] having been placed on
       probation or parole or having been incarcerated is stricken from the
       record.”
       “There is little doubt exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the outcome of the
trial.” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) However, a trial court
should grant a motion for mistrial “only when ‘“a party’s chances of receiving a fair trial
have been irreparably damaged”’” (People v. Ayala (2000) 23 Cal.4th 225, 282), that is,
if it is “apprised of prejudice that it judges incurable by admonition or instruction.”
(People v. Haskett (1982) 30 Cal.3d 841, 854.) Although most cases involve
prosecutorial or juror misconduct as the basis for a motion for mistrial, a witness’s
volunteered statement can also provide the basis for a finding of incurable prejudice.
(Harris, supra, at p. 1580.) “Whether a particular incident is incurably prejudicial is by
its nature a speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions.” (Haskett, supra, at p. 854; see also People v. Allen (1978) 77
Cal.App.3d 924, 935 [“It is only in the exceptional case that ‘the improper subject matter
is of such character that its effect … cannot be removed by the court’s admonitions.’”].)
Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of
discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.)
       Applying these standards, we conclude the trial court did not abuse its discretion
in denying the mistrial motion. (See People v. Avila (2006) 38 Cal.4th 491, 572 [mistrial
properly denied when jury admonished to disregard prosecution witness’s testimony that
he advised others to “‘keep cool’” because defendant “‘barely got out of prison,’” was
crazy, and would kill them]; People v. Stinson (1963) 214 Cal.App.2d 476, 482-483
[denial of mistrial where police officer indicated that defendant was on parole was not
reversible error because jury was admonished to disregard statement, and trial record
pointed emphatically to defendant’s guilt].) Upon advising the jury of the parties’
stipulation that Hunwardsen had previously been convicted of a felony violation of


                                             10.
section 273.5, subdivision (a), the court specified that the jury could not consider
Hunwardsen’s incarceration for this conviction for any purpose. With respect to
Bascue’s testimony, the court ordered that any testimony regarding Hunwardsen having
been incarcerated or placed on probation or parole was stricken from the record. As we
presume the jury followed the court’s instructions (People v. Boyette (2002) 29 Cal.4th
381, 436), any prejudice from Bascue’s references was cured by the court’s admonition.
       Hunwardsen’s contention that the trial court’s admonishments were insufficient in
part because they were belated is unpersuasive since, as discussed above, the court
deferred to defense counsel’s sound tactical choice regarding the timing of the
admonishment. Moreover, given the strength of the prosecution’s case, Hunwardsen’s
reliance on People v. Allen, supra, 77 Cal.App.3d 924, is misplaced.
       In Allen, a witness improperly referenced the defendant’s parolee status; the trial
court’s denial of the ensuing motion for mistrial was held to be reversible error on appeal
because the well-balanced state of the evidence made the case an exceptionally close one.
(People v. Allen, supra, 77 Cal.App.3d at p. 935.) The same cannot be said of the instant
case in light of Bascue’s statements to the police and to medical staff at the hospital
where she was treated for her stab wounds; the testimony of Kimberly Casillas; and the
documented history of violence in Hunwardsen and Bascue’s relationship.
       Even if admission of Bascue’s references to prior prison status and parole were
erroneous, the error is harmless. The jury knew Hunwardsen had been previously
convicted of a domestic-violence-related offense (properly admitted under Evid. Code,
§ 1109) and had considered other allegations of domestic violence. It is not reasonably
probable that Hunwardsen would have obtained a better result if the jury had not heard
Bascue’s remarks. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II.    Bascue’s hospital record
       Hunwardsen argues that the trial court erred in admitting a medical record from
Bascue’s hospital visit on the day she was stabbed. The medical record documents

                                             11.
Bascue’s discussion with Kathryn L. Hall Boyer, M.D., who treated Bascue at the
hospital’s emergency department. The record states in relevant part as follows:

       “Julie Bascue is a 35 year old female who was BIBA as a Tier 1 Trauma
       with c/o left-sided facial swelling, numbness, tingling, and the sensation of
       irritation s/p being stabbed in the neck just below the left ear at 0800 today.
       Pt reports that she was stabbed this morning at approximately 0800 by her
       significant other with a 6 inch surgical instrument. She also reports that the
       perpetrator choked her, and said, ‘If she screamed he would stab her.’ He
       then grabbed the knife and tried to kill her. After being stabbed she states
       she took a shower, cleaned her wound, and cleaned up the house of all the
       blood. EMS was called at the time of the event, but refused transport at
       that time. EMS reports that the perpetrator was arrested. No other
       complaints.”
       The admissibility of the record was addressed at the hearing on the parties’
motions in limine. The defense objected to the record on hearsay grounds. The court
overruled the hearsay objection, reasoning that the record was admissible as a business
record because it was accompanied by the requisite declaration from the custodian of
records. The court further ruled that the record would be admissible to impeach Bascue if
her trial testimony was inconsistent with the medical record. Finally, the court found that
the record was admissible as a “statement of [Bascue’s] then existing physical or mental
condition, which is relevant to the issue of corporal injury.” At trial, Bascue testified that
a woman called Jamie had stabbed her and denied that she had told her treating doctor
that her boyfriend had stabbed her. The prosecutor then introduced the medical record as
a business record and impeached her with the portion set forth above.
       Hunwardsen now argues that the trial court erred in admitting the medical record
because it was not relevant to any disputed issue at trial and was highly prejudicial.
Specifically, he contends that the description of Bascue’s injuries contained in the
medical record was inadmissible because the fact and extent of Bascue’s injuries were
not disputed issues in the case. He further contends that the record was highly prejudicial




                                             12.
because it indicated that Bascue had told her doctor that Hunwardsen had stabbed her.6
Alternatively, Hunwardsen argues that, to the extent his counsel failed to raise a
relevancy objection to the medical record at trial, she was ineffective. The People
respond that, since Hunwardsen’s counsel objected to the medical record only on hearsay
grounds, his instant challenge is forfeited. The People further argue that Hunwardsen’s
claim nonetheless fails on the merits because the trial court properly admitted the medical
record.
       We agree that, since Hunwardsen objected only on hearsay grounds below, he has
forfeited the claim that the record was inadmissible because it was not relevant to any
disputed issue. (People v. Seijas (2005) 36 Cal.4th 291, 302 [“‘[A] defendant’s failure to
make a timely and specific objection’ on the ground asserted on appeal makes that
ground not cognizable. [Citations.]”]; People v. Boyette, supra, 29 Cal.4th at p. 424
[“‘Specificity is required both to enable the court to make an informed ruling on the
motion or objection and to enable the party proffering the evidence to cure the defect in
the evidence.’”].) More importantly, Hunwardsen’s challenge also fails on the merits
because the trial court properly admitted the medical record.
       A trial court’s exercise of discretion in admitting or excluding evidence is
reviewable for abuse (People v. Alvarez (1996) 14 Cal.4th 155, 201) and will not be
disturbed except on a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.
(People v. Jones (1998) 17 Cal.4th 279, 304.) As discussed below, Hunwardsen fails to
meet this standard.
       As a preliminary matter, both the description of Bascue’s injuries and her
statements about Hunwardsen’s actions contained in the medical record constitute

       6Inhis reply brief, Hunwardsen clarifies that his argument is not that the record
was prejudicial under Evidence Code section 352 but, rather, that the admission of the
record constituted prejudicial error in that it “was likely to have affected the verdict.”


                                             13.
relevant evidence, as noted by the trial court. (See Evid. Code, § 210.) Although
Hunwardsen contends that the fact and extent of Bascue’s injuries were not in dispute, a
defendant’s “not guilty” plea places all elements of the crime in dispute. (People v.
Lindberg (2008) 45 Cal.4th 1, 23.) Consequently, the prosecution was obligated to prove
beyond a reasonable doubt that Bascue suffered a physical injury that resulted in a
traumatic condition. (§ 273.5, subd. (a); see also CALCRIM No. 840.) Moreover, with
respect to the “great bodily injury” enhancement alleged in the information, the
prosecution was required to establish that Bascue suffered significant or substantial
physical injury. (§ 12022.7, subds. (e) and (f); see also CALCRIM No. 3163.) The
description of Bascue’s injuries in the medical record was relevant in light of the
prosecution’s burden of proof regarding the elements of the charged offenses and the
enhancement allegations. Bascue’s statements in the medical record to the effect that
Hunwardsen had stabbed and choked her and tried to kill her were relevant with regard to
Bascue’s credibility (in light of her denial at trial that she made these statements) and to
the ultimate issue of Hunwardsen’s guilt or innocence. (See Evid. Code, §§ 210 [relevant
evidence includes evidence relevant to credibility of witness], 780 [fact finder may
consider matters relevant to truthfulness of witness’s testimony].)
       We further find that the trial court properly admitted the medical record as a
subpoenaed business record pursuant to Evidence Code section 1271,7 the business-
records exception to the hearsay rule, and Evidence Code sections 1560 through 1564,
which govern the transmittal and admissibility of subpoenaed business records.8 The

       7Evidence     Code section 1271 removes hearsay restrictions if “(a) [t]he writing was
made in the regular course of a business; [¶] (b) [t]he writing was made at or near the
time of the act, condition, or event; [¶] (c) [t]he custodian or other qualified witness
testifies to its identity and the mode of its preparation; and [¶] (d) [t]he sources of
information and method and time of preparation were such as to indicate its
trustworthiness.”
       8Evidence Code section 1561 provides in part: “(a) the records [produced
pursuant to subpoena] shall be accompanied by the affidavit of the custodian or other

                                             14.
latter sections ordinarily allow for records to be admitted without testimony by the
custodian, so long as the proponent provides an affidavit from the custodian that satisfies
the elements of the business records exception, i.e., Evidence Code section 1271.
(Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044-1045.)
       Here, the medical record at issue was obtained pursuant to a subpoena duces
tecum and was accompanied by an affidavit from the authorized custodian of records for
Memorial Medical Center in compliance with Evidence Code section 1561. Hunwardsen
argues that the custodian’s affidavit did not satisfy the elements of Evidence Code
section 1271 because “[a]n examination of the Declaration of Custodian of Records
shows no proof that the writing was made at or near the time of the events, or that the
custodian attested to the identity and mode of preparation of the records.” Hunwardsen’s
argument fails because the custodian’s affidavit clearly attests that the records being
provided in response to the subpoena are medical records for Julie Bascue that were
prepared by Memorial Medical Center personnel in the ordinary course of business at or
near the time of the act, condition, or event. Accordingly, the trial court did not abuse its
discretion in finding that the medical record was admissible as a subpoenaed business
record pursuant to Evidence Code sections 1271, 1561, and 1562.

qualified witness, stating in substance each of the following: [¶] (1) The affiant is the
duly authorized custodian of the records or other qualified witness and has authority to
certify the records. [¶] (2) The copy is a true copy of all the records described in the
subpoena .… [¶] (3) The records were prepared by the personnel of the business in the
ordinary course of business at or near the time of the act, condition, or event. [¶] (4) The
identity of the records. [¶] (5) A description of the mode of preparation of the records.”

       Evidence Code section 1562 provides in part: “If the original records
would be admissible in evidence if the custodian or other qualified witness had
been present and testified to the matters stated in the affidavit, and if the
requirements of Section 1271 have been met, the copy of the records is admissible
in evidence. The affidavit is admissible as evidence of the matters stated therein
pursuant to Section 1561 and the matters so stated are presumed true.… The
presumption established by this section is a presumption affecting the burden of
producing evidence.”

                                             15.
       Furthermore, the trial court correctly found that Bascue’s complaints about the
tingling and irritation from her stab wound, as told to her treating doctor and reflected in
the medical record, were admissible pursuant to Evidence Code section 1250 as a
statement of her then-existing physical state.
       As to Bascue’s statements regarding Hunwardsen’s actions reported in the medical
record, these were admissible pursuant to Evidence Code section 1235 as prior
inconsistent statements. Evidence Code section 1235 provides that “[e]vidence of a
statement made by a witness is not made inadmissible by the hearsay rule if the statement
is inconsistent with his testimony at the hearing and is offered in compliance with
Section 770.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219 [“A statement by a
witness that is inconsistent with his or her trial testimony is admissible to establish the
truth of the matter asserted in the statement under the conditions set forth in Evidence
Code sections 1235 and 770.”].) Evidence Code section 770, in turn, permits the
admission of “extrinsic evidence of a statement made by a witness that is inconsistent
with any part of his testimony at the hearing” if the witness had the opportunity to explain
or deny the statement or if the witness had not been excused from giving further
testimony in the action. Here, the requirements of both Evidence Code sections 1235 and
770 were met. For this reason, Bascue’s incriminating statements reported in the medical
record were admissible to impeach Bascue’s trial testimony, as the trial court ruled.
       Since we have resolved Hunwardsen’s claim against him on the merits, we need
not consider his argument that counsel was ineffective for failing to object to the medical
record on relevancy grounds.
III.   Evidence of Hunwardsen’s prior acts of domestic violence
       Hunwardsen argues that the trial court abused its discretion in admitting evidence
of his prior acts of domestic violence. The People respond that the trial court properly
admitted the evidence under Evidence Code section 1109 and properly exercised its
discretion under Evidence Code section 352.

                                             16.
       A.     Background
       Prior to trial, defense counsel, aware that the prosecution intended to introduce
evidence under Evidence Code section 1109 of Hunwardsen’s prior acts of violence
against Bascue, moved to exclude the evidence pursuant to Evidence Code section 352 on
the basis that it was unduly prejudicial. The trial court responded as follows:

       “Here’s the thing about [Evidence Code sections] 1108 and 1109. The
       [L]egislature has clearly stated to the courts we have a preference for
       admission of this evidence because of these concerns, about the difficulty,
       quite frankly, of proving sexual assault and domestic violence cases. So I
       read the cases as saying there is a preference for admissibility.

              “In this case, it all sounds like this relationship turned quite turbulent
       within a relatively short period of time. That there is not going to be an
       undue consumption of time to have the officers testify here’s what she said.
       She’ll deny it, probably, on the stand. And then they will impeach her with
       the officer, she told me X, Y and Z. So I don’t find it to be an undue
       consumption of time.

              “The objection is noted, but I have exercised my discretion under
       Evidence Code section 352. I do find it to be highly probative on the issue
       of whether this incident happened. I agree with the [L]egislature and the
       [G]overnor’s decision to give the prosecutors this tool because of the
       societal and social impact this crime has. So I do exercise my discretion. I
       do find the probative value not to be substantially outweighed by the risk of
       undue prejudice or the consumption of time, so it is admissible.”
       B.     Analysis
       Hunwardsen challenges the trial court’s decision to admit evidence of his prior
acts of domestic violence against Bascue on the basis the court incorrectly assumed that
Evidence Code section 1109 creates a presumption in favor of admitting such evidence.
He argues that, because the court misapprehended section 1109 as creating a presumption
in favor of admissibility, it could not fairly apply the balancing test of Evidence Code
section 352. He contends the admission of prior-act evidence under section 1109 was
therefore an abuse of discretion. The People respond that the trial court properly
exercised its discretion in admitting the prior-act evidence under sections 1109 and 352.


                                             17.
       Evidence Code section 1109 generally provides that where, as here, a defendant is
accused of a crime 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.” (Evid. Code, § 1109,
subd. (a)(1).) Although evidence of prior criminal acts is ordinarily inadmissible to show
a defendant’s disposition to commit such acts (Evid. Code, § 1101), section 1109 sets
forth a domestic violence exception to the general rule whereby evidence of a defendant’s
other acts of domestic violence is admissible to show a propensity to commit domestic
violence crimes. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.) The
admissibility of evidence of prior acts of domestic violence is committed to the sound
discretion of the trial court, and its decision will not be reversed on appeal absent a
showing of an abuse of discretion. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
       Even if the evidence is admissible under Evidence Code section 1109, the trial
court must still determine, pursuant to Evidence Code section 352, whether the probative
value of the evidence is substantially outweighed by the risk of undue prejudice,
confusion, or consumption of time. (People v. Hoover (2000) 77 Cal.App.4th 1020,
1024.) The court enjoys broad discretion in making this determination, and the court’s
exercise of discretion under section 352 “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. [Citations.]” (People v. Brown, supra, 192
Cal.App.4th at p. 1233; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
       Here, the trial court correctly noted that Evidence Code section 1109 embodies a
preference for the admissibility of propensity evidence related to domestic violence in
contrast to Evidence Code section 1101, which sets forth a general prohibition on the use
of propensity evidence. (See People v. Johnson (2000) 77 Cal.App.4th 410, 420 [“[T]he
California Legislature has determined the policy considerations favoring the exclusion of
evidence of uncharged domestic violence offenses are outweighed in criminal domestic

                                             18.
violence cases by the policy considerations favoring the admission of such evidence.”];
People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334, fn. omitted [“[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.”].) The trial court’s comments do not indicate that it
understood section 1109 as setting forth a presumption in favor of the admissibility of a
defendant’s prior acts of domestic violence. On the contrary, the trial court specifically
noted that it exercised its discretion under Evidence Code section 352 and determined
that the probative value of the proffered evidence was not substantially outweighed by
the risk of undue prejudice or the consumption of time. The record does not support
Hunwardsen’s contention that the trial court premised the exercise of its discretion on
faulty legal principles that tipped the scales in favor of admissibility, thereby precluding a
fair application of the section 352 balancing test. Accordingly, we will not disturb the
trial court’s ruling.
IV.    Ineffective-assistance-of-counsel claims
       A.      Failure to redact tape of Bascue’s follow-up interview with Officer Radke
       Hunwardsen contends that defense counsel was ineffective in failing to move to
redact the tape of Bascue’s follow-up interview with Officer Radke regarding the instant
offense. Defense counsel made no objection to the admission of the tape, which was
subsequently played in its entirety for the jury. Hunwardsen argues that defense counsel
should have objected to some of Bascue’s statements during the interview because they
were irrelevant or speculative. The People respond that counsel’s failure to object
reflected a tactical decision on her part and that, in any event, Hunwardsen cannot
demonstrate any prejudice on account of the failure to object.
       Hunwardsen cites three instances from Bascue’s follow-up interview that he
claims represent speculative or irrelevant material that counsel should have objected to.
First, Hunwardsen argues that Bascue’s opinion that she believed Hunwardsen was going

                                             19.
to go “all the way” and kill her, had she not managed to get out of his choke hold, was
highly speculative. He argues that this statement was also extremely prejudicial because
it suggested to the jury that Hunwardsen wanted to kill Bascue. Hunwardsen next
contends that Bascue was speculating when she stated that Hunwardsen insisted on going
to Los Banos with her the day he stabbed her because he “must have known” that she was
planning to call the police about the stabbing. Finally, Hunwardsen argues that Bascue’s
statement that her daughter F. had witnessed Hunwardsen assaulting her the previous
summer was speculative and not relevant to any contested issue in the trial. Hunwardsen
contends these statements were “geared to elicit sympathy for Julie, and antipathy toward
[Hunwardsen].” He argues that defense counsel was ineffective for failing to object to
the unredacted tape because the above-referenced statements were prejudicial and their
admission constitutes reversible error.
       To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance “fell below an objective standard of reasonableness,” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” (Strickland v. Washington (1984) 466
U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not
necessary to determine whether counsel’s challenged action was professionally
unreasonable in every case, however. If the reviewing court can resolve the ineffective-
assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of
whether there is a reasonable probability that the outcome would have been different
absent counsel’s challenged actions or omissions—it may do so. (Strickland v.
Washington, supra, at p. 697.)
       We reject Hunwardsen’s claim that his counsel was ineffective in failing to move
to redact the tape of Bascue’s follow-up police interview. Even assuming, arguendo, that
the statements Hunwardsen now complains of are speculative, he has not demonstrated
that counsel’s failure to move to exclude them was prejudicial. Hunwardsen contends

                                             20.
that counsel should have moved to exclude Bascue’s statement that she believed
Hunwardsen would very well have killed her. This is evidence of her state of mind, and
there was other ample evidence before the jury indicating that Hunwardsen had tried to
kill Bascue or threatened to do so. Bascue’s medical record from Memorial Medical
Center, admitted into evidence in the course of Bascue’s testimony, indicated that Bascue
told the emergency department doctor who treated her stab wound that Hunwardsen
choked her, threatened to stab her, and then “tried to kill her.” Furthermore, at one point
in the police interview at issue here, Bascue describes a time when Hunwardsen viciously
attacked her while they were driving in their car; she was forced to jump out of the car
because he “just kept telling” her that he was going to kill her. The jury also heard
Kimberly Casillas describe an occasion when she had run into Bascue on the street, and
Bascue, clearly terrified, told Casillas, “Kim, he’s going to kill me. He’s going to kill
me.… He’s going to take me out this time.”
       Similarly, counsel’s failure to move to redact Bascue’s statement that Hunwardsen
went with her to Los Banos on the day he stabbed her because he knew she was going to
call the police was not prejudicial in light of the evidence that Bascue had, in fact, talked
to the police several times to report incidents of domestic abuse involving Hunwardsen;
the evidence that he had been prosecuted for other incidents of domestic violence and had
a prior domestic violence conviction; and the substantial and detailed evidence regarding
Hunwardsen’s numerous prior assaults on Bascue.
       Finally, counsel’s failure to move to exclude Bascue’s statement that her daughter
F. had witnessed Hunwardsen’s assault on Bascue the previous summer was also not
prejudicial. Hunwardsen contends this statement was prejudicial because it “paint[ed]
[Hunwardsen] as a brutal monster, who would beat his girlfriend in front of her young
daughter.” However, Bascue described far worse incidents of abuse in other parts of her
police interview. For example, Bascue recounted an incident when she was pregnant
with her youngest son, and Hunwardsen brutally attacked her with the gear-shift knob

                                             21.
from their car. Bascue also describes an incident when he slapped her “hella hard” in
front of her older daughter at a time when Bascue was in the hospital having just
delivered a baby with severe medical problems. Under these circumstances, redaction of
the police interview to exclude the statements at issue here would not have affected the
outcome of this case. The record does not support Hunwardsen’s ineffective assistance
of counsel claim.
       B.     Admission of June 25, 2012, domestic violence incident
       Hunwardsen next argues that his counsel was ineffective in failing to move to
exclude evidence of a prior domestic violence incident involving him and Bascue that
took place on June 25, 2012, in Los Banos.9 Officer Surina Gonzales investigated this
incident, and Hunwardsen was prosecuted. However, at the preliminary hearing, the
court found there was insufficient evidence to hold Hunwardsen to answer and dismissed
the case. Hunwardsen now contends that defense counsel should have moved to exclude
evidence of this incident under Evidence Code section 352 because Evidence Code
section 1109 conditions the admission of such prior-act evidence upon a careful weighing
of its probative value and prejudicial effects pursuant to section 352. Hunwardsen asserts
that counsel was ineffective in failing to argue, inter alia, that evidence of the June 25,
2012, incident would be unduly prejudicial given that the charges based on this incident
not only did not result in a criminal conviction but were dismissed at the preliminary-
hearing stage. The People respond that Hunwardsen has failed to establish deficient
performance as well as prejudice. Based on the standards discussed above, we reject
Hunwardsen’s claim of ineffective assistance of counsel.



       9We    have characterized this incident as the June 25, 2012, incident as that is how
it is referred to throughout the trial record; however, we note that Officer Gonzales
testified that she took a statement from Bascue regarding this incident at 8:30 a.m. on
June 25, 2012, and the events in question took place the previous night, i.e., either during
the early morning hours of June 25, 2012, or the night of June 24, 2012.


                                             22.
        During the hearing on the parties’ motions in limine, defense counsel objected,
pursuant to Evidence Code section 352, to all of the prior-act evidence that the
prosecution sought to introduce pursuant to Evidence Code section 1109. Defense
counsel stated that her specific objection was that this evidence was “unduly prejudicial.”
The court overruled her objection, noting that the probative value of the prior-act
evidence was not substantially outweighed by the risk of undue prejudice or consumption
of time.
        Although defense counsel did not specifically object to evidence of the June 25,
2012, incident on grounds that it was unduly prejudicial because the charges based on
this incident were dismissed at the preliminary-hearing stage, the parties and the judge
discussed this aspect of the June 25, 2012, incident in some detail during the in limine
proceedings. The prosecutor explained that the case based on the June 25, 2012, incident
was the first criminal domestic violence case brought against Hunwardsen and that at this
point the People had additional evidence regarding the June 25, 2012, incident that went
beyond the limited evidence that was presented at the preliminary hearing in the prior
case. The prosecutor argued that, in light of the additional evidence, the defense should
not be able to leverage the prior dismissal to argue that the evidence regarding this
incident was weak. Defense counsel agreed that she would not make that argument to the
jury.
        When, in the course of the trial, the prosecution addressed the June 25, 2012,
incident and introduced evidence related to that incident, defense counsel did not object
on any grounds, including the ground that charges related to that incident had been
dismissed at the preliminary-hearing stage. The record does not reveal all of the evidence
presented at the preliminary hearing in the prior case based on the June 25, 2012, incident
or how it compared to the evidence that defense counsel expected the prosecutor to
present regarding the same incident at the current trial. However, defense counsel could
have made a reasoned decision not to object to evidence of the June 25, 2012, incident

                                            23.
based on the prosecutor’s account that he would present additional evidence regarding
that incident at the instant trial.10 Defense counsel presumably knew what evidence the
prosecutor intended to present as indicated by the fact that she did not challenge his
account. Depending on the nature of the additional evidence, the fact that Hunwardsen
was not held to answer the charges after the prior preliminary hearing would not
necessarily be a determinative or even persuasive factor in assessing the admissibility of
evidence regarding the June 25, 2012, incident pursuant to Evidence Code sections 1109
and 352.11 (People v. Brown, supra, 192 Cal.App.4th at p. 1233 [under Evid. Code,
§ 1109, “evidence of a prior act [of domestic violence] may be introduced as propensity
evidence even if the defendant was acquitted of criminal charges based upon that act”].)
       The record does not support a claim of deficient performance by counsel since
counsel could reasonably have elected not to challenge the evidence of the June 25, 2012,
incident on the grounds Hunwardsen now proposes. In any event, Hunwardsen has failed
to establish prejudice given the ample evidence regarding other prior incidents of
domestic violence that was presented to the jury.
V.     Failure to report the court’s reading of jury instructions
       Hunwardsen contends he was deprived of his due process right to meaningful
appellate review and the right to a jury trial when the court permitted the parties to


       10In the instant trial, Officer Surina Gonzales, who investigated the June 25, 2012,
incident in Los Banos, testified about her investigation and the statements she took from
Bascue and Hunwardsen. In addition, the prosecution introduced into evidence Officer
Gonzales’s interview of Bascue and several photographs she took as part of her
investigation. The prosecution also moved into evidence the transcript of Bascue’s direct
examination from the preliminary hearing held in the prior criminal case (in which
Hunwardsen was prosecuted for the June 25, 2012, incident).
       11For prior-act evidence to be considered as propensity evidence pursuant to
Evidence Code section 1109, the prosecution has to prove by a preponderance of the
evidence that the defendant committed the prior act at issue. (People v. Johnson (2010)
185 Cal.App.4th 520, 529; see also CALCRIM No. 852; CALJIC No. 2.50.02.)


                                             24.
stipulate that the court reporter need not report the court’s reading of instructions to the
jury. We disagree.
       Hunwardsen had a right to have the trial court’s reading of jury instructions
recorded by the court reporter (People v. Gloria (1975) 47 Cal.App.3d 1, 5-6) and to
place the transcript of the oral instructions in the appellate record (Cal. Rules of Court,
Rule 8.320(c)(4)). However, defense counsel’s stipulation that the oral instructions need
not be reported waived these rights and forfeited any claim of error on appeal. (People v.
Ladd (1982) 129 Cal.App.3d 257, 263 [“By stipulating that the instructions need not be
reported, defendant has waived any claim of error on appeal.”]; People v. DeFrance
(2008) 167 Cal.App.4th 486, 495 [“Generally, defendant’s stipulation not to record a
portion of the trial forfeits the claim the record is inadequate for appellate review.”].)
       Furthermore, Hunwardsen has made no showing that the failure to record the
instructions violated his due process rights. (People v. Garrison (1989) 47 Cal.3d 746,
780-781 [“The parties stipulated that the court reporter might be excused from reporting
the reading of the jury instructions. In light of counsel’s stipulation and defendant’s
failure to suggest that there was any deviation in the reading from the typed copies
contained in the record, we find no violation of due process.”].) Here, defense counsel
was present when the judge orally instructed the jury. If the judge had deviated from the
written instructions, defense counsel presumably would have objected or otherwise
sought to correct the deviation. Indeed, Hunwardsen does not claim on appeal that there
was any discrepancy between the written and oral instructions. Under these
circumstances, Hunwardsen has not shown that his due process right to an adequate
record on appeal was curtailed in any meaningful way. (People v. Howard (1992) 1
Cal.4th 1132, 1165 [although defendant is entitled to record that is adequate to permit
meaningful appellate review, it is defendant’s burden to show that any deficiencies in
record are prejudicial].)



                                             25.
       Hunwardsen’s reliance on Harmon v. Marshall (9th Cir. 1995) 69 F.3d 963 and
People of Territory of Guam v. Marquez (9th Cir. 1992) 963 F.2d 1311, is misplaced as
those cases are factually distinguishable. Harmon held that a trial court’s “wholesale
failure” to instruct the jury (i.e., the failure to provide both written and oral instructions)
results in the deprivation of the basic right to jury findings on the elements of the charged
offenses. (Harmon, supra, at p. 967.) Marquez held that a trial court’s reliance solely on
written instructions and refusal, over the defense’s objection, to instruct the jury orally
regarding the elements of a charged offense violates due process because there is no way
to confirm whether the jury read the written instructions. In contrast, here, the jury was
instructed both orally and in writing, in the presence of defense counsel, who did not
raise any objection regarding the judge’s reading of the instructions and stipulated that
the oral instructions need not be reported. Unlike Harmon and Marquez, the facts at
issue here do not support Hunwardsen’s claims of constitutional injury. (People v.
Garrison, supra, 47 Cal.3d at pp. 780-781; People v. DeFrance, supra, 167 Cal.App.4th
at p. 496 [when there was no showing of prejudice, “absence of a record of the oral
instructions given did not deprive defendant of due process or the right to a fair trial”].)
Finally, we reject Hunwardsen’s argument that counsel’s stipulation was ineffective
because a personal waiver of his fundamental constitutional rights was required in order
for the court to forgo transcription of the court’s oral instructions to the jury.
Hunwardsen cites no authority for this proposition nor does he persuasively demonstrate
why, under the present circumstances, a personal waiver was required.




                                              26.
                                DISPOSITION
    The judgment is affirmed.


                                              _____________________
                                                            Smith, J.
WE CONCUR:


_____________________
Detjen, Acting P. J.


_____________________
Peña, J.




                                    27.
