Filed 8/23/16 P. v. Sanchez CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A145291
v.
JOSE SANCHEZ,                                                            (Contra Costa County
                                                                          Super. Ct. No. 5-140478-9)
         Defendant and Appellant.


         This is an appeal from judgment after a jury convicted defendant Jose Sanchez1 of
one count of assault by force likely to cause great bodily harm and one count of child
abuse. Defendant challenges the judgment on two grounds, first, abuse of discretion and
violation of his constitutional right to due process based upon the jury’s consideration of
evidence of his commission of prior uncharged acts of domestic violence and, second,
further abuse of discretion and due process violation due to the trial court’s refusal to
designate his “wobbler” offenses as misdemeanors rather than felonies.2 We affirm.




1
        The probation officer’s report shows defendant’s correct name to be “Jose
Sanchez” with aliases of “Juan Manuel Gallardo,” “Juan Arroyo,” and “Juan Manuel
Ceja.” We use “Jose Sanchez” as defendant’s correct name, noting that the clerk’s and
reporter’s transcripts in this case refer to defendant as “Juan Manuel Gallardo.”
2
        As explained in greater detail below, a “wobbler” offense is one punishable as
either a felony or misdemeanor at the trial court’s discretion. (Pen. Code, § 17, subd. (b);
People v. Tran (2015) 242 Cal.App.4th 877, 885.)


                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
        On March 13, 2014, defendant was charged by information with the following
crimes: assault by force likely to cause great bodily harm (Pen. Code, § 245, subd. (a)(4))
(count one); child abuse likely to cause great bodily harm (id., § 273a, subd. (a)) (count
two); and battery on a spouse or cohabitant (id., §§ 242/243 (subd. (e)(1)) (count three).3
Trial began on February 25, 2015, at which the following evidence was presented.
        On the afternoon of October 4, 2013, defendant and his longtime domestic partner,
L.V., began arguing after defendant found another man’s phone number on L.V.’s cell
phone and suspected she may have been unfaithful to him. This argument took place at
the couple’s residence, which they shared with their two year-old daughter, as well as
L.V.’s two children, I.V., her 17-year-old daughter, and J.V., her 15-year-old son. As the
couple’s argument escalated, defendant slapped L.V. once or twice in the face, and she
hit him back, denying having cheated on him. Defendant reacted by retreating to his
bedroom for a nap.
        About two hours later, defendant awoke and went to the garage to work on his car.
L.V. confronted him there, again denying infidelity. Defendant told her to leave him
alone, prompting L.V. to push him on the shoulder. At this point, defendant pushed L.V.
back, and L.V. called out to I.V. for help, afraid he would strike her with a nearby
wrench. I.V., who stands five feet, one inch tall, and weighs 110 pounds, entered the
garage and saw the couple arguing. According to I.V., defendant “put his hands on
[L.V.],” and “could have been” grabbing, pushing or hitting her. I.V. stood between the
couple in an effort to get them to stop fighting. Defendant, however, told her to leave
them and go inside. When I.V. then pushed him, defendant put his hands on her face and
pushed her back. I.V., in turn, picked up a bottle of laundry detergent and tried to hit him
with it. At this juncture, all three became involved in the altercation.
        At some point, I.V. tried to reach for a tool and defendant pinned her to the
ground. She was able to get up, however, and retreat to the kitchen, where she retrieved
3
        Unless otherwise stated, all further statutory references herein are to the Penal
Code.


                                              2
defendant’s cell phone and threw it beyond the kitchen into the garage. Defendant
reacted by charging into the kitchen and punching I.V. in the face with a closed fist,
knocking her to the ground. I.V. got up, grabbed her two year-old sister, and ran to her
room, where she locked the door and called 911. At this point, I.V. was bleeding from a
laceration on her eye, and had pain inside her mouth, where defendant’s punch had
caused her braces to impact her cheek.
       A short time later, Police Officer Sahar Barkzi responded to I.V.’s 911 call. When
she knocked on the door, defendant opened it, stating, “I know I’m going to jail.” When
the officer next went to I.V.’s bedroom, she found I.V. hysterical and crying, with blood
on her face and hands. I.V. told Officer Barkzi that defendant had punched her. She
further stated that, when she tried to intervene in defendant’s and L.V.’s altercation,
defendant hit her twice in the face, causing her to fall, and then pinned her down and hit
her in the face again before she was able to run to the kitchen. Officer Barkzi noticed a
bleeding laceration above I.V.’s eye, so she helped arrange for I.V. to be transported to
the hospital, where she received treatment and threw up several times.
       Officer Barkzi also asked to speak to L.V., but L.V., who was upset and crying,
told the officer that she primarily spoke Spanish, so could not converse with the officer.
Officer Barkzi asked whether anyone was available to translate for her, and L.V.
responded that her son, J.V., could do so. With J.V.’s assistance, L.V. then told Officer
Barkzi that defendant had hit her while holding keys, causing pain to her head, neck and
chest. L.V. also told the officer that defendant had hit I.V. during their altercation, and
that he had previously hit her on numerous past occasions, always with his hands.
       After helping to arrange medical treatment for L.V., Officer Barkzi saw J.V.
sitting on a bed crying. When the officer approached him, J.V. explained there had been
so many past incidents of domestic violence in their home that he had lost count, and that
the violence involved the entire family, not just his mother. J.V. further stated that during
a recent incident over the summer, which was not reported to police, L.V. had been




                                              3
hospitalized due to defendant’s abuse. J.V. added that he was scared and “tired of this
happening.”4
       Later that evening, defendant came to the police station to speak with Officer
Barkzi. Defendant admitted slapping L.V. once, and also backhanding her, after finding
another man’s number on her cell phone. Defendant also admitted punching I.V. in the
face after she threw his cell phone at him, explaining he was angry because the phone had
struck his car. This interview was recorded and later played for the jury.
       Officer Barkzi returned to the family residence the next evening, and again spoke
with I.V. Officer Barkzi noted that her eye and lip were swollen. I.V. again described
the events of the previous day, reiterating that defendant had punched L.V. in the face
and chest, and had hit her twice in the face when she tried to intervene. He also pinned
her arms down and hit her in the face again. It was at this point, she recalled, that she
escaped into the kitchen, returning with defendant’s cell phone, which she hurled at him
in the garage. According to I.V., defendant, extremely angry, then charged into the
kitchen and punched her in the face, stating, “you owe this to me.”
       On the same evening, Officer Barkzi also attempted to speak again with L.V., but
she was extremely evasive and declined to respond directly to her questions.
       At trial, the prosecution offered Rickey Rivera, senior inspector with the Contra
Costa County District Attorney’s Office, who testified as an expert on the impact of
domestic violence on victims. According to Inspector Rivera, victims may become
trapped in a “cycle of violence” with their abusive partners, which may consist of a
peaceful “honeymoon” phase, a “tension-building” phase, and a violent phase. He added
that victims often blame themselves for the abuse, and may remain in the relationship
despite the abuse for many reasons, including emotional concerns (including love or fear)
or situational concerns. It is “very common” for victims to change or recant their stories
4
        At trial, L.V. denied that defendant had ever abused her, including on the day in
question, and insisted that J.V. did not speak Spanish very well, so could not be relied
upon for accurate translation. J.V., in turn, testified that he did not recall whether there
had been any previous incidents of domestic violence in their house, and did not recall
telling Officer Barkzi otherwise.


                                              4
of abuse due to these same concerns and, once the victim recants her story, family
members typically do the same.
       Defendant offered no witnesses in his defense. During closing arguments, his
counsel conceded that defendant had admitted slapping L.V. and punching I.V., and
noted the real issue for the jury was whether he committed simple or aggravated assault
crimes.
       On March 4, 2015, the jury found defendant guilty of all counts. Following a
sentencing hearing, the trial court suspended imposition of sentence5 and placed
defendant on formal probation for a period of three years subject to various terms and
conditions, including service of 180 days in jail and completion of a 52-week domestic
batterer’s program.6 Defendant filed a timely notice of appeal on May 21, 2015.
                                      DISCUSSION
       Defendant raises two arguments on appeal. First, defendant contends the trial
court abused its discretion and violated his due process rights by permitting the jury to
consider evidence of his prior uncharged acts of domestic violence. Second, defendant
contends the trial court further abused its discretion and violated his due process rights by
rejecting his request pursuant to section 17 to designate his two “wobbler” offenses as
misdemeanors rather than felonies. We address each argument in turn.
I.     Admission of Evidence of Defendant’s Prior Uncharged Crimes.
       Defendant challenges as reversible error the trial court’s admission of evidence of
his commission of prior uncharged acts of domestic violence, including a particular
incident occurring just months before the charged offenses that led to L.V.’s
hospitalization. He reasons that this evidence was unduly vague and inflammatory, such
that the court should have excluded it under Evidence Code section 352. He further


5
       The sentencing order in the clerk’s transcript is in the name of “Juan Manuel
Gallardo” one of defendant’s aliases. We order the sentencing order to be corrected to
state defendant’s real name, Jose Sanchez.
6
       The trial court found defendant eligible to serve the jail time on electronic home
detention.


                                              5
insists the court’s ruling constituted a violation of his rights to due process and a fair trial.
The relevant law is not in dispute.
       Generally, all relevant evidence is admissible. (People v. Champion (1995) 9
Cal.4th 879, 922.) Relevant evidence is that which has any tendency in reason to prove
or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210.)
“The test of relevance is whether the evidence tends ‘ “logically, naturally, and by
reasonable inference” to establish material facts such as identity, intent, or motive.
[Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance
of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]’
[Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 940.) Moreover, even relevant
evidence may nonetheless be excluded if the trial court finds that its probative value is
substantially outweighed by its prejudicial effect. (People v. Champion, supra, 9 Cal.4th
at p. 922; Evid. Code, § 352.)
       Here, the challenged evidence was admitted pursuant to Evidence Code section
1109, subdivision (a) (hereinafter, section 1109(a)), which provides in relevant part that,
“in a criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not made
inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible
pursuant to [Evidence Code] Section 352.” (§ 1109(a).)7 This provision reflects the
well-established principle that “ ‘[e]vidence that a defendant committed crimes other than
those for which he is on trial is admissible when it is logically, naturally, and by
reasonable inference relevant to prove some fact at issue, such as motive, intent,
preparation or identity. [Citations.] The trial court judge has the discretion to admit such


7
       Evidence Code section 1101, in turn, “prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.
Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such evidence is relevant to
establish some fact other than the person’s character or disposition.’ [Citation.]” (People
v. Fuiava (2012) 53 Cal.4th 622, 667.)


                                               6
evidence after weighing the probative value against the prejudicial effect. [Citation.]
When reviewing the admission of evidence of other offenses, a court must consider:
(1) the materiality of the fact to be proved or disproved, (2) the probative value of the
other crime evidence to prove or disprove the fact, and (3) the existence of any rule or
policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type
of evidence can be so damaging, “[i]f the connection between the uncharged offense and
the ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’
[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667.)
       As several courts have recognized, use of character evidence in domestic violence
cases is often more justified than in other criminal cases, such as murder or forgery cases,
given the “typically repetitive nature” of domestic violence, which “suggests a
psychological dynamic not necessarily involved in other types of crimes.” (People v.
Johnson (2010) 185 Cal.App.4th 520, 532.) Acknowledging the unique nature of
domestic violence crime, the legislative history of section 1109(a) provides:
“ ‘The propensity inference is particularly appropriate in the area of domestic violence
because on-going violence and abuse is the norm in domestic violence cases. Not only is
there a great likelihood that any one battering episode is part of a larger scheme of
dominance and control, that scheme usually escalates in frequency and severity. Without
the propensity inference, the escalating nature of domestic violence is likewise masked.
If we fail to address the very essence of domestic violence, we will continue to see cases
where perpetrators of this violence will beat their intimate partners, even kill them, and
go on to beat or kill the next intimate partner. Since criminal prosecution is one of the
few factors which may interrupt the escalating pattern of domestic violence, we must be
willing to look at that pattern during the criminal prosecution, or we will miss the
opportunity to address this problem at all.’ (Assem. Com. on Public Safety, Rep. on Sen.
Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)” (People v. Hoover
(2000) 77 Cal.App.4th 1020, 1027-1028.)
       Thus, in light of these factors, “the California Legislature has determined the
policy considerations favoring the exclusion of evidence of uncharged domestic violence


                                              7
offenses are outweighed in criminal domestic violence cases by the policy considerations
favoring the admission of such evidence.’ [Citation.]” (People v. Hoover, supra, 77
Cal.App.4th at pp. 1027-1028.)
       However, at the same time, as an additional safeguard to the defendant’s
constitutional due process rights, even if the evidence is admissible under section
1109(a), the trial court still must assess under Evidence Code section 352 whether the
probative value of the evidence is substantially outweighed by the probability the
evidence will consume an undue amount of time or create a substantial risk of undue
prejudice, confusion of issues, or mislead the jury. (People v. Johnson (2000) 77
Cal.App.4th 410, 420.) In making this assessment, courts recognize that “the principal
factor affecting the probative value of any uncharged act is its similarity to the charged
offense.’ ” (People v. Johnson, supra, 185 Cal.App.4th at p. 531.) Moreover, other
factors weighing in favor of admissibility include whether the evidence of the prior
domestic violence came from independent sources (which reduces the danger of
fabrication), whether the defendant was convicted of the prior offenses, whether the prior
offenses are remote in time, and whether presentation of the evidence would unduly
confuse the issues or consume an inordinate amount of time at trial. (People v. Johnson,
supra, 185 Cal.App.4th at pp. 533-535.)
       Finally, as with other evidentiary rulings, the trial court has broad discretion when
making this determination, and we will not disturb the court’s exercise of discretion on
appeal absent a showing that it was exercised in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice. (People v. Brown (2003)
31 Cal.4th 518, 547; People v. Avitia (2005) 127 Cal.App.4th 185, 193; Korsak v. Atlas
Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1522-1523.)
       Applying these principles to the facts at hand, we find nothing arbitrary,
capricious, or patently absurd about the trial court’s decision to admit the evidence of
defendant’s commission of prior uncharged acts of domestic violence pursuant to
Evidence Code sections 1109(a) and 352. Most significant, we conclude, is the fact that
the prior uncharged acts involved similar conduct against the same victim – to wit, L.V.


                                             8
In addition, according to J.V.’s statements to Officer Barkzi, the particular prior act
which was serious enough to lead to L.V.’s hospitalization occurred in July, just months
before the incident at hand.8 While J.V. later testified that he did not recall giving this
information to the officer, and while none of the witnesses was willing or able to provide
further detail about the incident, the trial court nonetheless had discretion to permit the
jury to consider the evidence in light of its substantial probative value with respect to the
issue of defendant’s propensity to engage in domestic violence against the same victim.
(People v. Johnson, supra, 185 Cal.App.4th at p. 531.)
       We hasten to add that the trial court strictly limited admission of the section
1109(a) evidence to acts committed within one year prior of the charged offenses, which
greatly reduced the potential for the evidence to mislead the jury or to consume an undue
amount of time at trial. As such, we affirm the trial court’s ruling as a proper exercise of
its discretion. (People v. Johnson, supra, 185 Cal.App.4th at p. 533.)
       And finally, given the totality of the record in this case, we conclude that, even
assuming for the sake of argument admitting this evidence was a mistake, the decision
resulted in no undue harm to defendant. Substantial other evidence, including
defendant’s own statements, established that, at minimum, he slapped L.V. and punched
I.V. in the face on the day in question. In light of defendant’s statements, his own
counsel conceded to the jury that the evidence sufficed to prove the lesser included
offenses of simple assault and child abuse. In addition, both victims had visible, serious
injuries to their persons that required medical treatment. And, while the victims may
have later denied or downplayed the seriousness of defendant’s abuse, there was
undisputed expert testimony that it is all too common for victims of domestic violence to
later alter or recant their stories due to both emotional and situational factors. Based on
this record, we conclude it is not reasonably probable the verdict would have been more
favorable to defendant had the court not admitted the evidence of his prior acts of

8
       We need not address whether there are any hearsay concerns with respect to the
court’s admission of Officer Barkzi’s testimony regarding J.V.’s statements to her on the
date in question, as neither party has raised this issue on appeal.


                                              9
domestic violence. (People v. Livingston (2012) 53 Cal.4th 1145, 1162-1163, citing
People v. Watson (1956) 46 Cal.2d 818, 836.) Accordingly, defendant’s evidentiary
challenge fails.
II.    Denial of Defendant’s Motion to Designate His Wobblers as Misdemeanors.
       Defendant also challenges the trial court’s refusal to classify his so-called wobbler
offenses as misdemeanors rather than felonies as an abuse of discretion and violation of
his due process rights. We disagree.
       “ ‘The Legislature has classified most crimes as either a felony or a misdemeanor,
by explicitly labeling the crime as such, or by the punishment prescribed.’ (People v.
Park (2013) 56 Cal.4th 782, 789 [156 Cal.Rptr.3d 307, 299 P.3d 1263] (Park).)
However, there is a special category of crimes that is punishable as either a felony or a
misdemeanor, depending on the severity of the facts surrounding its commission.
[Citation.] These crimes, referred to as ‘wobbler[s],’ are ‘punishable either by a term in
state prison or by imprisonment in county jail and/or by a fine.’ (Park, at p. 789.) The
conduct underlying these offenses can vary widely in its level of seriousness.
Accordingly, the Legislature has empowered the courts to decide, in each individual case,
whether the crime should be classified as a felony or a misdemeanor. In making that
determination, the court considers the facts surrounding the offense and the
characteristics of the offender. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 978 [60 Cal.Rptr.2d 93, 928 P.2d 1171] (Alvarez).)”9 (People v. Tran (2015) 242
Cal.App.4th 877, 885-886.)



9
        “ ‘ “A wobbler offense charged as a felony is regarded as a felony for all purposes
until imposition of sentence or judgment. [Citations.] If state prison is imposed, the
offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter
deemed a misdemeanor. [Citations.]” ’ [Citation.] The trial court has discretion to ‘reduce
a wobbler to a misdemeanor either by declaring the crime a misdemeanor at the time
probation is granted or at a later time—for example, when the defendant has successfully
completed probation.’ [Citations.] Assault by means of force likely to produce great
bodily injury is a wobbler. (Former § 245, subd. (a)(1); Stats. 2004, ch. 494, § 1,
pp. 4040–4041.)” (People v. Tran, supra, 242 Cal.App.4th at p. 885.)


                                             10
       “When the court properly exercises its discretion to reduce a wobbler to a
misdemeanor, it has found that felony punishment, and its consequences, are not
appropriate for that particular defendant. [Citation.] . . . Such a defendant is not
blameless. But by virtue of the court’s proper exercise of discretion, neither is such
defendant a member of the class of criminals convicted of a prior serious felony whom
the voters intended to subject to increased punishment for a subsequent offense.” (People
v. Park, supra, 56 Cal.4th at pp. 801-802.)
       A trial court’s discretion in this context “ ‘is neither arbitrary nor capricious, but is
an impartial discretion, guided and controlled by fixed legal principles, to be exercised in
conformity with the spirit of the law, and in a manner to subserve and not to impede or
defeat the ends of substantial justice. [Citations.]’ [Citation.] ‘Obviously the term is a
broad and elastic one [citation] which we have equated with “the sound judgment of the
court, to be exercised according to the rules of law.” [Citation.]’ [Citation.] Thus, ‘[t]he
courts have never ascribed to judicial discretion a potential without restraint.’ (Ibid.)
‘Discretion is compatible only with decisions “controlled by sound principles of law, . . .
free from partiality, not swayed by sympathy or warped by prejudice . . . .” [Citation.]’
[Citation.] ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment
and guided by legal principles and policies appropriate to the particular matter at issue.’
[Citation.] [¶] [O]n appeal, two additional precepts operate: ‘The burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.’ [Citation.] [Citation.]
Concomitantly, ‘[a] decision will not be reversed merely because reasonable people
might disagree. “An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Alvarez,
supra, 14 Cal.4th at pp. 977-978.)
       In this case, having applied “the extremely deferential and restrained standard by
which appellate courts are bound in these matters” (Alvarez, supra, 14 Cal.4th at p. 981),


                                              11
we conclude the trial court did not abuse its discretion when denying defendant’s motion.
As the People point out, in challenging the trial court’s ruling as an abuse of discretion
and on due process grounds, defendant fails to identify a specific basis for reversal.
Rather, defendant argues generally that the “constellation of facts” relating to both the
charged offenses and his criminal history proves the court erred. In particular, defendant
notes that his attacks on the victims were “momentary and intertwined with physical
attacks by [them],” their injuries were “minor,” his criminal history (which involved a
1996 conviction for misdemeanor domestic abuse) was “minimal,” and he took
immediate responsibility for his actions, telling Officer Barkzi upon his arrival, “I know
I’m going to jail.”
       We conclude defendant’s showing does not suffice to prove an abuse of discretion,
much less constitutional error, as it fails to account for the multitude of other facts in the
record weighing in favor of the trial court’s discretionary decision. To name just a few
such facts (most of which have already been discussed), defendant admitted to Officer
Barkzi that he slapped L.V. and punched I.V.; both victims had visible, serious injuries
requiring medical attention and told the officer that defendant had attacked them; both
J.V. and L.V. acknowledged to Officer Barkzi that defendant had a history of abusing
their family; and defendant’s criminal history included yet another domestic violence
offense involving an unrelated victim, indicating a pattern of domestic abuse spanning
nearly 20 years. There is no doubt based on this evidence, which the trial court properly
considered when reaching its decision, that no ground exists for reversal. (People v.
Tran, supra, 242 Cal.App.4th at pp. 891-892 [trial court had discretion to deny
defendant’s motion to reduce his felony conviction for assault with force likely to
produce great bodily injury to a misdemeanor where it properly considered the facts
relating to his conviction, as well as information in his postplea probation report].)
       As the People v. Tran court aptly noted under comparable circumstances, “[a]
convicted defendant is not entitled to the benefits of section 17(b) as a matter of right.
Rather, a reduction under section 17(b) is an act of leniency by the trial court, one that
‘may be granted by the court to a seemingly deserving defendant, whereby he [or she]


                                              12
may escape the extreme rigors of the penalty imposed by law for the offense of which he
[or she] stands convicted.’ [Citation.]” (242 Cal.App.4th at p. 892.) In this case, the trial
court had valid grounds to decline to afford defendant such leniency.

                                      DISPOSITION
       The judgment is affirmed.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




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