Filed 11/13/13 P. v. Curry CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B244828

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA 123064)
         v.

BILLY JAMES CURRY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Allen
Joseph Webster, Jr., Judge. Affirmed with directions.


         Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Julie A.
Harris, Deputy Attorneys General, for Plaintiff and Respondent.


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       Appellant Billy James Curry challenges his conviction for one count of inflicting
corporal injury upon a spouse plus enhancements on two grounds: (1) Evidence Code
section 11091 violates due process on its face because it permits the prosecution to
introduce other acts of domestic violence as propensity evidence, and (2) the jury
instruction regarding the jury’s consideration of that evidence in this case was
argumentative and violated appellant’s due process and fair trial rights. We affirm. We
will, however, direct the trial court to amend the sentencing minute order and abstract of
judgment to correct a clerical error in appellant’s sentence.
                               PROCEDURAL HISTORY
       In an amended information filed September 26, 2012, appellant was charged with
one count of corporal injury to a spouse or cohabitant in violation of Penal Code section
273.5, subdivision (a). It was further alleged appellant personally inflicted great bodily
injury upon the victim under circumstances involving domestic violence (Pen. Code,
§ 12022.7, subd. (e)), and he had a prior domestic violence conviction within the past
seven years (Pen. Code, § 273.5, subd. (e)(1)). It was also alleged appellant had two
prior convictions that qualified as “strikes” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), as serious felonies (Pen. Code, § 667, subd. (a)(1)), and as prior serious or
violent felonies requiring he serve any term of imprisonment in state prison (Pen. Code,
§ 1170, subd. (h)(3)).
       Following trial, the jury found appellant guilty of the charged offense and found
the great bodily injury allegation true. The court found the prior conviction allegations
true and denied appellant’s motion to strike them. The court sentenced appellant to a
total of 33 years to life in prison. As discussed post, although the sentencing minute
order and abstract of judgment incorrectly state otherwise, the term consisted of 25 years
to life for the base count, plus five years consecutive under Penal Code section 667,
subdivision (a)(1), and the low term of three years consecutive for the great bodily injury



1      Undesignated statutory citations are to the Evidence Code.


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enhancement. The court also imposed various fines, fees, and custody credits not at issue
here. Appellant timely appealed.
                                STATEMENT OF FACTS
       On April 12, 2012, appellant lived with his girlfriend Tina Jackson at his home in
Los Angeles. Appellant got into an argument with Jackson because he thought she was
cheating on him and he was jealous. Appellant punched and slapped Jackson in the face,
and when she fell to the ground, he slapped her again. Jackson testified appellant
punched her numerous times in the head, ribs, and back. Appellant also struck her with a
bat two or three times in the back. At one point appellant also threw a crowbar that
ricocheted off the wall and hit her in the leg. Jackson was taken to the hospital and
treated for fractured ribs and blood in her urine.
       Appellant’s sister Ruby Kiwanuka was visiting appellant and her other brother on
the day of the incident. She was standing in the driveway when she heard Jackson calling
for her help. She ran into the house and dialed 911. As she was talking on the phone, she
heard someone say “help,” and when she ran into the bedroom, she saw appellant hit
Jackson with his fist. Kiwanuka told him to stop hitting her, picked up a bat, and chased
him outside with it. She pursued him until he disappeared around the corner. She was
initially still on the 911 call when she pursued him, but hung up until he disappeared, and
then she called back. Audio from Kiwanuka’s 911 call was played for the jury.
       While paramedics treated Jackson at the scene, Los Angeles County Sheriff’s
Deputy Alejandro Ramirez arrived and conducted a preliminary interview with her.
Because Jackson was in a great deal of pain and being taken to the hospital, Deputy
Ramirez was only able to get a basic statement from her. She appeared bruised and
bloody with some swelling and she was wearing a neck brace.
       At the hospital, Jackson was treated by Dr. Scott David Bricker, who testified
Jackson had bruising on her face and extremities, and Jackson had told him they were
caused by appellant assaulting her with his fists, a bat, and a crowbar. An X-ray and CT
scan revealed she had a broken nose, a recent rib fracture, possibly an older spine
fracture, and lots of soft tissue bruising and swelling. Dr. Bricker testified these injuries

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were consistent with being hit with a bat or fist, or with being kicked, but not with being
slapped.
       Clinical social worker Lilalee Vicedo also spoke with Jackson the day she was
admitted to the hospital. Jackson had an abrasion on her forehead and a bloody nose, and
she told Vicedo her boyfriend had hit her with a bat.2
       Jackson testified to a similar altercation with appellant at their house on March 25,
2011, when appellant had accused her of cheating on him with other men. She ran
outside and away from him until he caught her. He punched her in the nose and she fell
to the ground, where he slapped her and kicked her in the ribs. A friend saw the
altercation and pulled appellant away from her; the friend took her to her sister’s house
and her sister called paramedics, who took her to the hospital. At trial, Jackson was
shown photographs of her injuries from the incident, showing a bruise on her ribs and a
bloody nose, which was fractured.
       Deputy Erin Higgs responded to the call on March 25, 2011, and later went to the
hospital where she took photographs of Jackson. At the time, Jackson was in a great deal
of pain, she had a bloody nose and scratches and abrasions to her face. Deputy Higgs
was unable to find appellant afterward.3
       At the time Jackson testified at trial for the current incident, she was in custody
because she had not come to court when subpoenaed for the preliminary hearing. She
testified she still loved appellant and remained in a relationship with him.
       Appellant did not testify or call witnesses in his defense.




2      Jackson did not tell any deputies appellant had hit her with a bat.
3     Presumably this incident led to appellant’s June 2, 2011 conviction for violating
Penal Code section 273.5, subdivision (a) alleged in the amended information, but no
evidence of the conviction itself appears to have been presented to the jury.


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                                       DISCUSSION
1. Section 1109 Does Not Violate Due Process
       With exceptions not pertinent here, section 1109 provides in relevant part: “[I]n a
criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 [bar to character evidence to prove conduct] if the evidence
is not inadmissible pursuant to Section 352.”4 (§ 1109, subd. (a)(1).) Appellant asserts
this section violates his due process rights on its face because it allows admission of
uncharged acts of domestic violence to prove propensity to commit charged conduct.5
Appellant did not raise this contention below, so he forfeited it. (§ 353; People v. Catlin
(2001) 26 Cal.4th 81, 122-123.)
       To avoid forfeiture, appellant argues his trial counsel was ineffective for failing to
raise the argument in the trial court. In order to show ineffective assistance of counsel,
appellant must show “(1) his . . . trial counsel’s representation fell below an objective
standard of reasonableness and (2) he . . . was prejudiced (i.e., there is a reasonable
probability that a more favorable determination would have resulted in the absence of
counsel’s deficient performance).” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372,
citing, inter alia, Strickland v. Washington (1984) 466 U.S. 668, 687.)
       Appellant can demonstrate neither prong. In People v. Falsetta (1999) 21 Cal.4th
903 (Falsetta) the Supreme Court rejected a due process challenge to section 1108, which
is nearly identical to section 1109 but applies to the admission of uncharged sex




4      Section 352 states: “The court in its discretion 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.”
5      Appellant does not argue on appeal that the trial court erred in admitting the
specific evidence of his uncharged acts of domestic violence under section 352. Instead,
he limits his argument to a facial challenge that section 1109 violates due process.


                                              5
offenses.6 The court upheld that provision primarily because it preserves a trial court’s
authority under section 352 to exclude propensity evidence that is unduly prejudicial or
would result in undue consumption of time. (Falsetta, supra, at pp. 916-918.) Like
section 1108, section 1109 expressly incorporates section 352, and, although the Supreme
Court has not specifically ruled on the constitutionality of section 1109, the Courts of
Appeal have uniformly applied Falsetta to reject due process challenges to that section.
(See, e.g., People v. Johnson (2010) 185 Cal.App.4th 520, 529; People v. Cabrera (2007)
152 Cal.App.4th 695, 704; People v. Price (2004) 120 Cal.App.4th 224, 240; People v.
Escobar (2000) 82 Cal.App.4th 1085, 1095; People v. Jennings (2000) 81 Cal.App.4th
1301, 1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover
(2000) 77 Cal.App.4th 1020, 1026-1029; People v. Johnson (2000) 77 Cal.App.4th 410,
416-420.)
       As appellant recognizes, we are bound to follow Falsetta (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455), and appellant asserts no arguments that
might distinguish this case from Falsetta or from any of the cases extending Falsetta to
section 1109.7 As a result, in the face of uniform, controlling authority, appellant’s
counsel did not unreasonably fail to raise the objection and even if she had, any objection


6      Section 1108 states in relevant part: “In a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” (§ 1108, subd. (a).)
7      The court in Falsetta noted there was no undue consumption of time in that case
because the defendant’s prior convictions arising from guilty pleas were themselves
admitted as evidence. (Falsetta, supra, 21 Cal.4th at p. 916.) Here, by contrast, there is
nothing in the record to suggest appellant’s prior domestic violence conviction was
admitted into evidence. Nevertheless, section 1109 is not limited to prior convictions,
and the time consumed and risk of prejudice when convictions are not admitted into
evidence are considerations for the section 352 weighing process, which is not at issue
here. (See People v. Johnson, supra, 77 Cal.App.4th at p. 419, fn. 6; see also People v.
Johnson, supra, 185 Cal.App.4th at p. 533 [although jury was not informed that prior
misconduct resulted in a conviction, the conviction nonetheless reduced likelihood
defendant would have to produce evidence to rebut uncharged conduct, citing Falsetta].)


                                             6
would have been rejected, so appellant suffered no prejudice. (People v. Ochoa (1998)
19 Cal.4th 353, 463.)
2. The Jury Instructions on Prior Uncharged Conduct Were Not Erroneous
       With regard to the uncharged domestic violence, the trial instructed the jury
according to CALCRIM No. 852 as follows:
       “The People presented evidence that the defendant committed domestic violence
that was not charged in this case, specifically that the defendant committed an act of
violence against Ms. Jackson on March 25, 2011.
       “Domestic violence means abuse committed against an adult who is a cohabitant
or former cohabitant, person who dated or is dating the defendant.
       “Abuse means intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable fear of imminent serious bodily injury to
himself or herself or to someone else.
       “The term cohabitants means two unrelated persons living together for a
substantial period of time, resulting in some permanency of the relationship. Factors that
may determine whether people are cohabitating include, but are not limited to, (1) sexual
relations between the parties while sharing the same residence, (2) sharing of income or
expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out
as husband and wife, (5) the parties’ registering as domestic partners, (6) the continuity of
the relationship, and (7) the length of the relationship.
       “You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. Proof by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true.
       “If the people have not met this burden of proof, you must disregard this evidence
entirely.
       “If you decide that the defendant committed the uncharged domestic violence, you
may, but are not required to, conclude from that evidence that the defendant was disposed

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or inclined to commit domestic violence and, based on that decision, also conclude that
the defendant was likely to commit Count 1, as charged here. If you conclude that the
defendant committed the uncharged domestic violence, that conclusion is only one factor
to consider along with all the other evidence. It is not sufficient by itself to prove that the
defendant is guilty of Count 1. The People must still prove the charge and allegation
beyond a reasonable doubt.”
       Appellant argues this instruction was argumentative and violated his due process
and fair trial rights. When proposed by a defendant, argumentative instructions are those
that “invite the jury to draw inferences favorable to the defendant from specified items of
evidence on a disputed question of fact, and therefore properly belong[] not in
instructions, but in the arguments of counsel to the jury.” (People v. Wright (1988) 45
Cal.3d 1126, 1135.) Appellant argues that, “by parity of reasoning,” CALCRIM No. 852
highlighted unfavorable evidence against him and invited the jury to draw an inference in
favor of the prosecution.
       We can see no reason why the court’s instruction was argumentative here. The
Supreme Court approved a similar instruction guiding the jury’s consideration of
propensity evidence under section 1108 (People v. Reliford (2003) 29 Cal.4th 1007,
1012-1016), and courts have extended that reasoning to approve the same CALCRIM
No. 852 instruction given in this case (People v. Johnson (2008) 164 Cal.App.4th 731,
738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 252-253). Although the
instruction referred to the March 2011 domestic violence committed by appellant against
Jackson, it merely informed the jury how to properly consider it in weighing all the
evidence and cautioned that the uncharged acts were not sufficient alone to prove
appellant was guilty, which prevented the jury from weighing the evidence too heavily.
In this respect, the instruction exceeded the one approved in Reliford. (Reliford, supra, at
pp. 1015-1016 [finding no error in instruction omitting statement that the inference drawn
from the uncharged conduct was only one item to consider in determining defendant’s
guilt].) Further, given that the trial court had no duty to instruct the jury as to the
admissibility or use of other crimes evidence absent a request from appellant (Falsetta,

                                               8
supra, 21 Cal.4th at p. 924),8 the instruction given in this case almost surely inured to
appellant’s benefit by carefully confining the jury’s consideration of the uncharged
domestic violence. Thus, the trial court did not err by giving the CALCRIM No. 852
instruction.
3. The Sentencing Minute Order and Abstract of Judgment Must Be Corrected
       The trial court imposed a total term of imprisonment of 33 years to life.
According to the transcript of the sentencing hearing, the court imposed 25 years to life
for the base count, and appears to have initially misspoken and identified an additional
five years consecutive for the great bodily injury enhancement, and a low term of three
years consecutive on the “enhancement.” Later, the court described the sentence as “25-
to-life with this strike. It’s another five-year prior and three years on the enhancement.”
The sentencing minute order and abstract of judgment reflect the five-year additional
term was imposed for the great bodily injury enhancement under Penal Code section
12022.7, subdivision (e) and the three-year additional term for the prior conviction under
Penal Code section 667, subdivision (a)(1).
       In context, it is clear the court imposed the five-year additional term under Penal
Code section 667, subdivision (a)(1), which was required under that statute (People v.
Jordan (2006) 141 Cal.App.4th 309, 319 [trial court lacks discretion to stay Pen. Code,
§ 667, subd. (a)(1) enhancement]), and imposed the low term of three years under Penal
Code section 12022.7, subdivision (e). Thus, the sentencing minute order and abstract of
judgment must be amended to correctly reflect the sentence as pronounced by the court at
the sentencing hearing.
                                      DISPOSITION
       The judgment is affirmed. We direct the trial court to issue an amended
sentencing minute order and abstract of judgment correcting the errors identified herein




8       It is not clear from the record which party requested this instruction or whether the
trial court gave the instruction on its own.


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and forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.




                                               FLIER, J.
WE CONCUR:




      RUBIN, Acting P. J.




      GRIMES, J.




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