Filed 9/19/14 P. v. Williams CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137072
v.
O’NEILL WILLIAMS,                                                    (Contra Costa County
                                                                     Super. Ct. No. 05-120827-1)
         Defendant and Appellant.


         O’Neill Williams repeatedly harassed his wife, S.B., after she obtained a
restraining order against him. A jury convicted him of one count of stalking in violation
of a restraining order, and he was sentenced to five years in prison. His sole contention
on appeal is that the trial court erred by permitting S.B. to testify that, based on “past
experience,” she believed his threats to rape her. We are not persuaded and affirm.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         Williams and S.B. married in December 2009 after living together for about four
years. Six months later, S.B. obtained a restraining order against Williams that required
him to stay at least 100 yards away from her and her home and workplace, and a few
months after that they were legally separated. They briefly attempted to reconcile a few
months later, and S.B. requested that the restraining order be lifted. She soon rescinded
the request, however, and they moved apart.




                                                             1
         In May 2012, an information was filed charging Williams with felony counts of
stalking in violation of a restraining order, making criminal threats, and inflicting
corporal injury on a spouse resulting in a traumatic condition, and a misdemeanor count
of disobeying a protective court order resulting in physical injury.1 The information also
alleged various sentence enhancements based on prior convictions.2
         Before S.B. testified at trial, the trial court held a hearing under Evidence Code
section 402 to receive testimony from her about various matters, including evidence the
prosecution sought to introduce under Evidence Code sections 1101, subdivision (b) and
1109.3 S.B. testified that in March 2007, Williams held her down, slapped her face
repeatedly, and raped her twice. She then had sex with him on the next ten nights out of
fear that he would hit her again. As a result of these incidents, charges were filed against
Williams, but they were ultimately dismissed.
         The trial court tentatively ruled that it would not admit evidence of the March
2007 rapes. It observed that it had “to exercise [section] 352 discretion,” and it
determined that admitting the evidence would be “too time[-]consuming” because the
previous charges had been dismissed, proving the incidents could require several
witnesses, and Williams might be “forced to defend himself in a mini[-]trial.”

1
  The felony counts were brought under Penal Code sections 646.9, subdivision (b)
(stalking), 422 (making criminal threats), and 273.5, subdivision (a) (inflicting corporal
injury). The misdemeanor count was brought under Penal Code section 273.6,
subdivision (b). Williams was also charged with second degree robbery under Penal
Code section 211, but that charge was dismissed before trial.
2
  The information alleged two prior strikes under Penal Code sections 667 and 1170.12
based on 1978 felony convictions for assault with a deadly weapon under Penal Code
section 245 and kidnapping by force under Penal Code section 207. These allegations, as
well as an allegation that the 1978 convictions resulted in a prior prison term under Penal
Code section 667.5, subdivision (b), were later stricken on the prosecution’s motion. The
information also alleged that a 2004 felony conviction for receiving stolen property under
Penal Code section 496, subdivision (a) resulted in a prior prison term under Penal Code
section 667.5, subdivision (b) and that the 1978 convictions, the 2004 conviction, and a
1986 conviction for procurement under Penal Code section 266 made Williams ineligible
for probation under Penal Code section 1203, subdivision (e)(4).
3
    All further statutory references are to the Evidence Code unless otherwise noted.

                                               2
       The trial court later made a final ruling that evidence of the rapes could not be
introduced under sections 1101 and 1109. When the prosecutor said, “So there would be
no mention of that 2007 incident,” the court responded, “Unless brought up sideways. I
don’t know. I’m just saying that your desire to prove it [under sections] 1101 [and] 1109
while you’re still presenting your case, I’m saying for that reason I will deny that.”
       At trial, S.B. testified about Williams’s behavior toward her from May 2010
through October 2011. Williams was physically violent toward her, including slapping
her face, choking her, punching her in the head, and shoving her. He threatened “to
stomp [her] into the ground,” “destroy” her, beat her even if it meant he would go to jail,
and harm her family. He accused her of prostitution and routinely insulted her in
extremely offensive terms. Throughout this period, he harassed her at her home, outside
her workplace, at her church, at her credit union, and even outside court immediately
after she obtained the restraining order. He also left numerous voicemail messages in
which he threatened and insulted her.
       When the prosecutor questioned S.B. about the voicemail messages, she testified
that Williams had left a message in which he threatened to rape her and that she believed
this threat. When the prosecutor asked her why she “believe[d] that . . . [Williams] was
capable [of] . . . carry[ing] out that threat,” she responded, “Past experience.”
       Outside the jury’s presence, Williams’s trial counsel objected that S.B.’s
testimony was “incredibly prejudicial” because it referred to the March 2007 rapes. The
trial court ruled, “There was no reference in her answer to things that I excluded. It
establishes she’s known the gentleman for [a] while . . . . Therefore, I don’t think she’s
put anything prejudicial out there. And the fact, as I say, shows she was with the
gentleman for a while and allows her, I think, to give her answer [in] that general way
without harm to the case, as far as I’m concerned.”
       The jury found Williams guilty of stalking and not guilty of making criminal
threats. It hung on the count of inflicting corporal injury on a spouse, and the trial court
dismissed the charge at the prosecution’s request. The jury also returned a verdict form
purporting to find Williams guilty of the charge of disobeying a protective court order


                                              3
resulting in physical injury, but it failed to make a required separate finding of physical
injury. The error was not discovered until after the jury had been discharged, and the
court found that the “verdict [was a] nullity and treated it as if there [was] no verdict at
all” on that count.
       The trial court denied probation and sentenced Williams to five years in state
prison, comprised of the upper term of four years and a term of one year for a sentence
enhancement based on a prior conviction with a prison term.
                                             II.
                                         DISCUSSION
       Williams argues that the admission of S.B.’s testimony that she believed his threat
to rape her based on “past experience” violated section 1101, subdivision (a). We
disagree.
       In general, “evidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or her conduct
on a specified occasion.” (§ 1101, subd. (a).) This rule has two limitations relevant here.
First, “evidence that a person committed a crime, civil wrong, or other act” is admissible
“when relevant to prove some fact . . . other than his or her disposition to commit such an
act” (§ 1101, subd. (b)), as long as it is also admissible under section 352, which allows a
trial court to “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.”
Second, with exceptions not relevant here, “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 [s]ection 1101 if the
evidence is not inadmissible pursuant to [s]ection 352.” (§ 1109, subd. (a)(1).)
       Evidentiary rulings are reviewed for an abuse of discretion. (People v. Rowland
(1992) 4 Cal.4th 238, 264.) Under this standard, we will not disturb the trial court’s
admission of S.B.’s testimony unless the ruling “ ‘falls outside the bounds of reason’


                                               4
under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th
148, 162.)
       We disagree with the basic premise of Williams’s argument, that S.B.’s testimony
was tantamount to “evidence of a past rape allegedly perpetrated by . . . Williams against
[S.B.]” Although that is one way to interpret her testimony, it is not the only one. For
example, she could have been referring to her past experience that Williams followed
through on what he threatened to do or that he was willing to use violence to get what he
wanted. The trial court did not abuse its discretion when it determined that her testimony
did not amount to evidence of the March 2007 rapes it had previously ruled inadmissible.
       Even if we were to accept that S.B. unmistakably testified that Williams had raped
her, we would conclude the trial court did not err by allowing the testimony. Williams
claims that the court had previously found evidence of the rapes inadmissible under
sections 1101, subdivision (b) and 1109, so that “when the evidence was ultimately
adduced in front of the jury, it was presented as plain and simple bad character evidence”
that was inadmissible under section 1101, subdivision (a). He is incorrect. The court’s
original ruling was based on the finding that the evidence was unduly prejudicial under
section 352, not on any finding that section 1101, subdivision (b) or section 1109 was
inapplicable. In fact, S.B.’s testimony was admissible under both sections.
       First, S.B.’s testimony was admissible under section 1101, subdivision (b) to
prove a fact other than Williams’s propensity to commit rape. One of the elements of the
stalking charge required the prosecution to prove that Williams made “a credible threat.”4
(Pen. Code, § 646.9, subd. (a); People v. Uecker (2009) 172 Cal.App.4th 583, 594.) The
focus in assessing whether a threat is credible is on whether the victim reasonably feared

4
  “Credible threat” is defined as “a verbal or written threat, including that performed
through the use of an electronic communication device, or a threat implied by a pattern of
conduct or a combination of verbal, written, or electronically communicated statements
and conduct, made with the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her family, and made with the
apparent ability to carry out the threat so as to cause the person who is the target of the
threat to reasonably fear for his or her safety or the safety of his or her family.” (Pen.
Code, § 646.9, subd. (a).)

                                             5
for his or her safety, and “[i]t is not necessary to prove that the defendant had the intent to
actually carry out the threat.” (Pen. Code, § 646.9, subd. (g); Uecker, at pp. 594-596.)
Evidence of S.B.’s past experience with Williams was relevant to prove whether she
reasonably believed his threat—a fact other than his disposition to commit rape—and was
therefore admissible under section 1101, subdivision (b). (See People v. Minifie (1996)
13 Cal.4th 1055, 1065, 1067 [evidence of past threats against defendant by victim’s
associates admissible under section 1101, subdivision (b) because relevant to prove
defendant reasonably feared for his life and acted in self-defense].)
       Second, S.B.’s testimony was admissible under section 1109 because it was
evidence of a prior act of “domestic violence” and Williams was charged with “an
offense involving domestic violence.” (§ 1109, subd. (a)(1).) Under section 1109,
“ ‘[d]omestic violence’ has the meaning set forth in [s]ection 13700 of the Penal Code”
and, if the prior act is within five years of the charged offenses, as is the case here, “the
further meaning . . . set forth in [s]ection 6211 of the Family Code.” (§ 1109,
subd. (d)(3).) The prior rapes described by S.B. were acts of “domestic violence” under
Penal Code section 13700.5 (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139
[rape is “offense involving domestic violence” under section 1109].) And stalking is “an
offense involving domestic violence” under section 1109 based on the definition of
“domestic violence” in Family Code section 6211.6 (People v. Ogle (2010)
185 Cal.App.4th 1138, 1143-1144.)
       Williams also claims that S.B.’s testimony should have been excluded because the
trial court had previously ruled that evidence about the rapes would be “extremely

5
  “ ‘Domestic violence’ ” is defined to include “abuse committed against an adult . . . who
is a spouse” (Pen. Code, § 13700, subd. (b)), and “ ‘abuse’ ” is defined as “intentionally
or recklessly causing or attempting to cause bodily injury, or placing another person in
reasonable apprehension of imminent serious bodily injury to himself or herself, or
another.” (Pen., Code, § 13700, subd. (a).)
6
  Family Code section 6211 defines “ ‘[d]omestic violence’ ” to include “abuse
perpetrated against” a spouse. “ ‘Abuse’ ” includes “engag[ing] in any behavior that has
been or could be enjoined pursuant to [s]ection 6320” (§ 6203, subd. (d)), which in turn
includes “stalking.” (Fam. Code, § 6320, subd. (a).)

                                               6
prejudicial” to him under section 352. The court’s earlier ruling was based on its
determination that proving the prior acts would take too much time and might force
Williams to take the stand. But the court expressly found that the specific testimony at
issue, which did not give any details about the rapes, was not prejudicial. As a result,
Williams cannot rest on the court’s previous ruling that evidence of the rapes generally
would be prejudicial. He fails to offer any independent reason that S.B.’s testimony was
inadmissible under section 352, and we perceive none. We conclude that the court did
not abuse its discretion by allowing that testimony.
                                            III.
                                       DISPOSITION
       The judgment is affirmed.




                                                   _________________________
                                                   Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.




                                             7
