Filed 6/18/14 P. v. Halverson CA3
                                           NOT TO BE PUBLISHED



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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or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C070322

         v.                                                                      (Super. Ct. Nos. 05F02234,
                                                                                   07F09466, 09F09101)
JON ERIC HALVERSON,

                   Defendant and Appellant.




         A jury convicted defendant Jon Eric Halverson of attempted murder, assault with a
deadly weapon, and battery causing serious bodily injury in connection with a 2009
attack against his former girlfriend, T.O. The trial court admitted evidence of two
incidents of domestic violence committed by defendant against M.W., a woman with
whom defendant had a long-term dating relationship. The evidence was admitted under




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Evidence Code section 1109,1 which authorizes the admission of evidence that the
defendant committed other acts of domestic violence in a case where the defendant is
accused of domestic violence.
       Defendant now contends (1) the trial court abused its discretion in admitting the
prior domestic violence evidence, and (2) section 1109 does not apply because defendant
and T.O. did not have a dating relationship.
       We conclude (1) the trial court did not abuse its discretion in admitting the
evidence of uncharged domestic violence by defendant, and (2) substantial evidence
supports the finding that defendant and T.O. had a former dating relationship within the
meaning of section 1109.
       We will affirm the judgment.
                                      BACKGROUND
                                               A
       T.O. met defendant in December 2007 and dated him “a couple times” in January
2008. The couple dated for less than a month, but they had a sexual relationship while
they dated. T.O. fell in love with defendant, tattooed his name on her wedding ring
finger, and at one point planned to live with him. She placed his name on the utilities for
her home to help him establish residency. T.O. considered defendant her boyfriend, and
defendant said he considered T.O. his girlfriend when they were together. T.O. “broke
up” with defendant in 2008.
       Defendant called T.O. in 2009. At the time, T.O. believed someone was hacking
into her e-mail account, intercepting her telephone calls and possibly breaking into her
home. T.O. suspected defendant and his former girlfriend M.W. were responsible.




1 Undesignated statutory references are to the Evidence Code.


                                               2
       According to T.O., defendant said M.W. hacked into T.O.’s e-mail account and
stole T.O.’s personal identification information. Defendant said he had evidence showing
what M.W. did and he offered to show T.O. the evidence. T.O. agreed to let defendant
help her.
       Defendant stayed with T.O. at her apartment for two nights. With T.O.’s
permission, defendant’s girlfriend Courtney B. also stayed with T.O. During that time
defendant used T.O.’s computer but he did not produce the promised information.
       T.O. realized defendant was not there to help her when she found that he had left
his e-mail open on her computer. She discovered naked photos of M.W. According to
Courtney, T.O. accused defendant of bringing M.W. to T.O.’s house when T.O. was not
there. T.O. also accused defendant of stealing from her and collaborating with M.W.
against her. T.O. told defendant to leave. Defendant and Courtney left T.O.’s apartment.
       The next day, T.O. was getting out of the shower shortly before 6:00 p.m. when
she heard a knock at her bedroom window. She then heard a loud pounding at her front
door. T.O. opened the door but did not see anyone. T.O. quickly closed the door and
returned inside to get dressed.
       T.O. felt something brush against her back when she reached the bathroom door.
She turned and saw defendant. Defendant asked where his wallet was. T.O. told
defendant to leave. Defendant responded that he was not leaving. When T.O. said she
was going to call 911, defendant replied that he had already called 911.
       Defendant hit T.O. on the back of her head when she ran to the bathroom. T.O.
fell to the ground and lost consciousness. When she regained consciousness, defendant
was beating her and swinging her body around like a rag doll. Defendant beat T.O.’s
face with a closed fist possibly 25 times. T.O. tried to hit defendant back but defendant
threw T.O. to the ground. He took the top of the garbage can from the bathroom and hit
T.O.’s face, causing a gash above her eye. He also used a wood shelf from the bathroom
to hit T.O.’s back. T.O. fell into the bathtub, pulling the shower curtain down in the

                                             3
process. Defendant hit T.O.’s sides, legs and kneecap with the shower curtain rod. He
then stabbed T.O. through her knee with the rod. T.O. screamed for defendant to stop.
Defendant stomped on T.O.’s face with his foot and grabbed the back of T.O.’s hair,
twisting her head back and forth as if trying to break her neck. Defendant released T.O.
when she pretended to be dead. He took T.O.’s purse as he left the bathroom. T.O.
screamed for help. A neighbor called 911.
       T.O. had injuries to her face, eye, ribs, arm, back, leg and knee. She was stabbed
at her knee joint and required surgery. She had a cut above her right eye that required
sutures. She stayed in the hospital for three days. At the time of the trial, she had scars
from her injuries.
       Someone visiting T.O.’s neighbor saw defendant at T.O.’s home prior to the
assault. Defendant was wearing gloves and a black leather jacket. The witness saw
defendant knock on T.O.’s front door. When no one came to the door, defendant walked
to the side of T.O.’s apartment and looked through a window. Defendant left and
returned more than once. Police found a black leather jacket among defendant’s
possessions when he was arrested.
                                             B
       Pursuant to section 1109 and over defendant’s objection, the trial court admitted
evidence that defendant assaulted M.W. on December 14, 2004, and August 25, 2007.
       M.W. testified at the trial. She said she and defendant began a relationship in
2002. They had a child in 2006 and stopped dating in February 2007.
       On December 14, 2004, defendant and M.W. argued at her condo because she
believed he stole her money. Defendant got on top of M.W., put his forearm on her neck
and choked her. M.W. nearly lost consciousness. Defendant kicked M.W. repeatedly,
punched her, and pulled out “chunks” of her hair.
       On August 25, 2007, defendant showed up at M.W.’s house, entering the property
through a gate leading into the side yard. Defendant surprised M.W. in the garage. He

                                              4
said, “Where the F were you last night?” M.W. tried to run but defendant tackled her
inside the house. Defendant held M.W.’s neck with both of his hands and held M.W.
down. He bit M.W.’s lip, drawing blood. He checked the call history on M.W.’s phone
and threw the phone against the wall, shattering it. M.W. tried to run but defendant
tackled her again. M.W. begged defendant to stop. He kicked her several times on her
side with his work boots. Defendant asked where his son was. M.W. answered that the
boy was asleep upstairs and to leave the boy alone. M.W. ran outside and screamed for
help. Defendant said “Scream all you want. No one can hear you.” Defendant left,
taking M.W.’s diaper bag, which looked like her purse.
       It was stipulated that defendant pleaded guilty to violating Penal Code
section 273.5, subdivision (a) (corporal injury on the mother of the offender’s child) on
August 21, 2008.
                                              C
       In the instant case, the jury convicted defendant of attempted murder (Pen. Code,
§§ 664/187, subd. (a) -- count one), assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1) -- count two), and battery causing serious bodily injury (Pen. Code, § 243,
subd. (d) -- count three). The jury found true the allegation that defendant personally
inflicted great bodily injury on T.O. when he committed the crimes charged in counts one
and two. (Pen. Code, § 12022.7, subd. (a).) The jury acquitted defendant of the count
four robbery charge. (Pen. Code, § 211.)
       After a bench trial, the trial court found true the allegation that defendant had two
prior strike convictions and it denied his motion to dismiss one of the prior strikes.
Combined with sentences in two cases involving probation violations, the trial court
sentenced defendant to a determinate term of eight years four months and an
indeterminate term of 27 years to life.




                                              5
                                      DISCUSSION
                                             I
       Defendant contends the trial court erred in admitting the uncharged domestic
violence evidence under section 1109 because defendant’s relationship with M.W. is
vastly different from defendant’s relationship with T.O., and there was a serious risk the
jury would improperly conclude defendant dodged appropriate punishment for his
offenses against M.W.
       Section 1109 provides that when a defendant is accused of an offense involving
domestic violence, evidence that the defendant committed other uncharged domestic
violence is admissible unless precluded under section 352. (§ 1109, subd. (a)(1).)
Evidence of other domestic violence is admitted to show the defendant has a propensity
to commit acts of domestic violence. (People v. Brown (2011) 192 Cal.App.4th 1222,
1232.) Section 1109 is an exception to the general rule, stated in section 1101, that
evidence of a person’s character or trait, including evidence of specific instances of
conduct, is inadmissible when offered to prove his or her conduct on a specified occasion.
       Courts have held that admitting evidence of prior domestic violence to show a
propensity to commit the charged domestic violence offense does not violate due process
of law because section 1109 affords the defendant substantial protections. (See, e.g.,
People v. Johnson (2000) 77 Cal.App.4th 410, 417-420; People v. Hoover (2000)
77 Cal.App.4th 1020, 1027-1029.) In particular, the statute allows the trial court to
exclude unduly prejudicial evidence under section 352. (§ 1109, subd. (a); People v.
Johnson, supra, 77 Cal.App.4th at p. 420.) The trial court 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. (§§ 352, 1109, subd. (a).)
       The weighing process under section 352 requires consideration of the unique facts
and issues of each case, rather than the mechanical application of automatic rules.

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(People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) But consistent with the
legislative intent behind section 1109, “ ‘ “[t]he principal factor affecting the probative
value of an uncharged act [of domestic violence] is its similarity to the charged
offense.” ’ ” (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) Other factors
relevant to the trial court’s consideration include whether the evidence of the uncharged
act of domestic violence comes from an independent source, which reduces the danger of
fabrication; the recency or remoteness of the uncharged offense; whether the evidence
would unduly confuse the issues; whether presentation of the evidence would consume
inordinate time at the trial; and whether the evidence of uncharged conduct is
inflammatory when compared with the facts of the charged offense. (Id. at pp. 533-535;
People v. Rucker (2005) 126 Cal.App.4th 1107, 1119-1120.)
       A trial court need not expressly weigh prejudice against probative value or even
expressly state it has done so when making a section 352 determination. (People v.
Williams (1997) 16 Cal.4th 153, 213.) All that is required is that the record demonstrate
the trial court understood and fulfilled its responsibilities under section 352. (Ibid.) We
will not disturb the trial court’s exercise of discretion except upon a showing that its
decision is arbitrary, capricious and patently absurd. (People v. Brown, supra,
192 Cal.App.4th at p. 1233; People v. Jennings, supra, 81 Cal.App.4th at p. 1314.)
       Here, although defendant had a long-term relationship and a child with M.W.
whereas he dated T.O. for less than a month, the circumstances of the domestic violence
against M.W. and T.O. are similar. Defendant attacked M.W. in 2007 and T.O. in 2009
after he was no longer in a relationship with them. He surprised both women in their
homes. He expressed anger against the women before using his hands and feet to choke,
push, hit or kick them. Defendant appeared to know that M.W.’s neighbors were not
home when he attacked M.W. He indicated to M.W. that it was useless to scream for
help because the neighbors were not home to hear her screams. There was also evidence
of preparation prior to the attack against T.O. Defendant went to T.O.’s home when she

                                              7
was apparently not there and, wearing gloves, he looked inside through a window. In
addition, just prior to attacking T.O., defendant said he already called 911, suggesting it
was useless for T.O. to call for help. Regarding the 2004 assault against M.W., defendant
reacted violently when M.W. accused him of stealing. T.O. likewise accused defendant
of stealing. She called defendant a liar and told him to leave. In all three incidents,
defendant reacted with violence toward the women. He bit, choked, punched and/or
kicked M.W. He retaliated against T.O. by brutally beating, kicking and stabbing her.
The similarities between the attack against T.O. and the attacks against M.W. make the
uncharged incidents probative of defendant’s disposition to assault women with whom he
had an intimate relationship when he is angry with them. (People v. Johnson, supra,
185 Cal.App.4th at pp. 532-533.) As the trial court noted, this was the type of evidence
the Legislature contemplated was particularly probative in a domestic violence case when
it enacted section 1109.
       The prior acts of domestic violence occurred less than five years before the
charged offenses. The section 1109 evidence was, therefore, not too remote to be
probative. (People v. Rucker, supra, 126 Cal.App.4th at p. 1120.) With regard to
whether the uncharged acts of domestic violence were more inflammatory than the
evidence concerning the charged offenses, while M.W. suffered serious injuries as a
result of defendant’s attacks, the injuries defendant inflicted on T.O. were more serious.
Defendant continued to violently beat and choke T.O. until it appeared T.O. was dead.
       Additionally, the trial court limited the prior domestic violence evidence to two
incidents, not allowing other evidence of abuse against M.W. The evidence regarding the
2004 and 2007 incidents was straightforward and took up only 12 pages in the reporter’s
transcript. No contrary evidence was presented. Thus, there is no reasonable probability
that the uncharged domestic violence evidence confused the jury.
       M.W. testified about the 2007 and 2004 incidents, and defendant had an
opportunity to cross-examine her and challenge her credibility. There is no indication the

                                              8
jury would have wanted to punish defendant for his conduct against M.W. or that it
believed he had escaped punishment for his 2007 act of domestic violence. Defendant
pleaded no contest to corporal injury of the mother of his child in relation to the 2007
assault. The jury heard that defendant was incarcerated in 2008.
       With regard to the 2004 assault, defense counsel did not dispute that defendant
committed that assault. There is no indication defendant was prosecuted or punished for
his conduct.2 But even if this factor favored exclusion, the other factors support the trial
court’s decision to admit the evidence of prior domestic violence by defendant.
       While prior domestic violence evidence may have been damaging to defendant,
the fact that evidence is damaging to the defendant does not make it unduly prejudicial.
(People v. Johnson, supra, 185 Cal.App.4th at p. 534.) The Legislature has determined
that in domestic violence cases, evidence of other domestic violence by the defendant
may be admissible to show propensity to commit domestic violence. (People v. Johnson,
supra, 77 Cal.App.4th at pp. 419-420.) The trial court did not abuse its discretion in
admitting the evidence involving M.W.
                                              II
       Defendant also contends section 1109 does not apply because defendant and T.O.
did not have a dating relationship.
       The term “domestic violence” in section 1109 includes abuse committed against a
person with whom the defendant is having or has had a dating relationship. (Pen. Code,
§ 13700, subd. (b); Fam. Code, § 6211, subd. (c); § 1109, subd. (d)(3).) “Dating
relationship” includes a range of relationships. (People v. Rucker, supra,
126 Cal.App.4th at p. 1116.) It does not require a “ ‘serious courtship,’ ” an
“ ‘increasingly exclusive interest,’ ” or a “ ‘shared expectation of growth.’ ” (Id. at



2 The fact that an act did not lead to criminal charges does not preclude the application
of section 1109. (People v. Brown, supra, 192 Cal.App.4th at p. 1233.)

                                              9
p. 1117.) A relatively new dating relationship can be a “dating relationship” under
section 1109. (Id. at p. 1116.) “The Legislature could reasonably conclude dating
relationships, even when new, have unique emotional and privacy aspects that do not
exist in other social or business relationships and those aspects may lead to domestic
violence early in a relationship.” (Ibid.) But a “ ‘casual relationship or an ordinary
fraternization between [two] individuals in a business or social context’ ” is not a “dating
relationship.” (Id. at p. 1117, fn. omitted.)
          Substantial evidence supports the finding that defendant was in a dating
relationship with T.O. Although T.O. and defendant dated for less than a month, T.O.
fell in love with defendant. She considered defendant her boyfriend. And defendant told
T.O. he considered them to have a boyfriend/girlfriend relationship. Defendant and T.O.
“broke up.” They had a sexual relationship while they were dating. T.O. contemplated
moving in with defendant. She even tattooed defendant’s name on her wedding ring
finger.
          While their relationship was short-lived, it was a dating relationship when
defendant and T.O. were together, rather than a casual social relationship. T.O. was a
person with whom defendant has had a dating relationship within the meaning of section
1109.
                                        DISPOSITION
          The judgment is affirmed.


                                                                  MAURO                  , J.

We concur:


                 RAYE                   , P. J.


                 HULL                   , J.


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