Filed 12/3/13 P. v. Matute CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057098

v.                                                                       (Super.Ct.No. RIF1103288)

DARWIN CASTRO MATUTE,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard Todd Fields,

Judge. Affirmed.

         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.




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       This is an appeal by defendant and appellant, Darwin Castro Matute (defendant),

from the judgment entered after a jury found him guilty, among other things, of false

imprisonment (Pen. Code, § 236), as a lesser included offense to the charged crime of

kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)), forcible rape (Pen. Code,

§ 261, subd. (a)(2)), attempted forcible sodomy (Pen. Code, §§ 664, 286, subd. (c)(2)),

assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)), and an attempt to make

criminal threats (Pen. Code, §§ 664, 422). The trial court sentenced defendant to serve a

term of 15 years to life in state prison on the rape conviction, preceded by determinate

terms of three years on his conviction for attempted forcible sodomy, and eight months

on his conviction for false imprisonment.

       Defendant raises five claims of error in this appeal, the first of which challenges

the correctness of CALCRIM No. 852, which instructs the jury on how to consider

evidence of uncharged acts of domestic violence. Next, defendant challenges the trial

court’s ruling that defendant’s prior acts of domestic violence were admissible under

Evidence Code section 1109. Defendant also challenges the constitutionality of Evidence

Code section 1109 and Penal Code section 422, the criminal threats statute. Defendant’s

final claim is that CALCRIM No. 1300, which instructs the jury on the crime of making

criminal threats, is incorrect. We conclude defendant’s claims are meritless. Therefore,

we will affirm.




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                                          FACTS

       The facts that give rise to the charges in this case are not in dispute. Defendant

and Jane Doe had dated for about five years prior to the date of defendant’s trial. During

their relationship, defendant physically abused Jane Doe by pushing her, pulling her

around by her hair, and throwing her to the ground. Defendant frequently slapped Jane

Doe, with sufficient force to cause her mouth to bleed. Defendant also hit her with a belt,

and once hit her on the thighs with the buckle end of the belt. Defendant also took a

swing at Jane Doe while holding a screwdriver in his fist. Once, when she tried to call

the police, defendant grabbed the phone from Jane Doe and told her he would kill

whoever came around.

       Jane Doe’s relationship with defendant ended when she went to his house, after he

asked her to come over, and found him in bed having sex with a woman. Jane Doe

assumed defendant had wanted her to see him in bed with another woman, that their

relationship was over, and he would leave her alone.

       Defendant did not leave Jane Doe alone; instead he called her every day and

threatened to hurt her if she refused to go back to him. He also threatened to kill her if he

ever saw her with another man. About three weeks after she ended her relationship with

defendant, he called and asked Jane Doe to give him a ride home from a club. Because

he sounded scared, she was worried about him, and agreed to pick up defendant.

Defendant seemed angry and told Jane Doe not to talk to him when he got in her car.

When they arrived at his house, Jane Doe declined defendant’s request that they talk

about their relationship. Defendant grabbed her by the hair and forced Jane Doe to drive


                                              3
her car up his driveway. Defendant then pulled Jane Doe by her hair from the car and

into his room. Defendant threw Jane Doe on his bed. He grabbed a screwdriver and

began to swing it at her. When she refused to have sex with him, defendant tore Jane

Doe’s clothing off her body. Defendant pulled out a knife which he held at her neck

while he got on top of Jane Doe. Defendant bit both of her breasts, and also bit her in

several places on her back. Defendant penetrated her vagina with his penis.

       Jane Doe eventually was able to push defendant away and leave. All the while

defendant called Jane Doe insulting names and laughed about what he had just done to

her. Jane Doe went home and to bed. The next morning when she awoke defendant was

in her bedroom. He accused her of taking his wallet and cell phone. Jane Doe denied

taking anything from defendant and found his wallet in her car on the passenger side.

Defendant forced Jane Doe to buy him a new cell phone by telling her he would not leave

her house until she bought him a new phone. Defendant used that phone to call Jane Doe

repeatedly and threatened to kill her.

       Several days after defendant sexually assaulted her, Jane Doe called the police and

reported defendant. She did so because she was in pain and because she was afraid of

defendant. Additional facts pertinent to the issues defendant raises on appeal will be

recounted below.




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                                     DISCUSSION

                                            1.

                                   CALCRIM No. 852

       Defendant contends that CALCRIM No. 852, which instructs the jury on the

various purposes for which the jury may consider evidence of prior acts of domestic

violence, interferes with the presumption of innocence and the burden of proving

defendant’s guilt beyond a reasonable doubt. We disagree. More importantly so does

our state Supreme Court. In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, as

defendant acknowledges, our high court addressed and rejected the precise claims

defendant raises in this appeal. We are bound by decisions of our state Supreme Court,

as defendant also acknowledges. (Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 456.) Therefore, we must reject defendant’s first claim of error, which he

concedes he has asserted primarily to preserve the issue for possible federal review.

                                            2.

            ADMISSIBILITY OF PRIOR ACTS OF DOMESTIC VIOLENCE

       Defendant contends we must reverse the judgment because the trial court

committed error by allowing the prosecutor to introduce evidence of prior acts of

domestic violence defendant committed against Jane Doe. Defendant acknowledges such

evidence is admissible under Evidence Code section 1109, subject to the trial court’s

exercise of discretion under Evidence Code section 352. Defendant contends the trial

court in this case did not properly conduct the Evidence Code section 352 analysis. We

disagree.


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       The prosecutor informed the trial court, in a pretrial motion, of his intent to

introduce evidence of other acts of domestic violence defendant committed against the

victim. The prosecutor made an offer of proof the victim would testify that over the

course of their relationship, defendant hit her with a belt, attempted to hit her with bottles,

pulled her by her hair, threatened to cut her hair, and kicked, slapped and pushed her.

Defendant objected to the admissibility of the evidence under Evidence Code section

352. The trial court ruled the probative value of the evidence substantially outweighed its

potential for undue prejudice because the uncharged acts of domestic violence were

minor when compared to the charged crimes, that the evidence would not create

confusion for the jury, nor would introduction of the evidence be unduly time consuming.

       Under Evidence Code section 1109, subdivision (a)(1), “[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 if the evidence is not inadmissible pursuant to Section 352.” We review a

trial court’s ruling under Evidence Code sections 1109 and 352 for abuse of discretion.

(People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)

       Defendant contends the trial court abused its discretion by admitting the evidence

recounted above because it was too generic and showed only that defendant became

violent when he was angry, and in the absence of specific details, the other acts of

domestic violence were not connected to the charged crimes. Defendant contends it also

was “highly likely” the jurors would find defendant guilty of the charged crimes in order

to punish him for his other uncharged acts of domestic violence.


                                              6
       Defendant’s contrary claims notwithstanding, the trial court did not abuse its

discretion. Because the uncharged acts of domestic violence were significantly less

serious than the charged acts, the jury was less likely to punish defendant in this case

based on his prior conduct. In short, the evidence regarding other acts of domestic

violence committed by defendant against Jane Doe was not unduly inflammatory and

therefore we must reject defendant’s claim of error. The trial court did not abuse its

discretion in ruling the evidence admissible under Evidence Code sections 1109 and 352.

                                              3.

          CONSTITUTIONALITY OF EVIDENCE CODE SECTION 1109

       Defendant challenges the constitutionality of Evidence Code section 1109 on due

process and equal protection grounds. He acknowledges the Supreme Court addressed

and rejected his due process claim in People v. Falsetta (1999) 21 Cal.4th 903, 917

(Falsetta), albeit in the context of Evidence Code section 1108. Defendant urges us to

reconsider Falsetta in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769. We

are not inclined to do so, and in any event, we are precluded from reconsidering an issue

resolved by our state Supreme Court; we are bound by it. (Auto Equity Sales, Inc. v.

Superior Court, supra, 57 Cal.2d 450, 456.)

       Defendant’s equal protection argument is addressed and resolved in People v.

Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 (Jennings), as defendant

acknowledges, although he claims that court incorrectly analyzed the issue because it

applied the rational basis standard. Defendant contends the correct standard is strict

scrutiny. We disagree.


                                              7
       As explained in Jennings, when a statute creates two classifications of accused or

convicted defendants but does not infringe upon the right to a fair trial, due process or

proof beyond a reasonable doubt, then an equal protection challenge is subject to a

rational basis analysis. (Jennings, supra, 81 Cal.App.4th at pp. 1310-1311.) The court

relied on Falsetta, People v. Brown (2000) 77 Cal.App.4th 1020 (Fourth Dist., Div.

Two), People v. Hoover (2000) 77 Cal.App.4th 1334, and People v. Johnson (2000) 77

Cal.App.4th 410, to conclude Evidence Code section 1109 does not implicate the noted

constitutional rights. (Jennings, at p. 1312.) “On its face, section 1109 treats all

defendants charged with domestic violence equally; the only distinction it makes is

between such domestic violence defendants and defendants accused of other crimes.

Neither the federal nor the state constitution bars a legislature from distinguishing among

criminal offenses in establishing rules for the admission of evidence; nor does equal

protection require that acts or things which are different in fact be treated in law as

though they were the same. The equal protection clause simply requires that, ‘in defining

a class subject to legislation, the distinctions that are drawn have “some relevance to the

purpose for which the classification is made.”’ [Citation.] Absolute equality is not

required; the Constitution permits lines to be drawn. [Citation.] The distinction drawn

by section 1109 between domestic violence offenses and all other offenses is clearly

relevant to the evidentiary purposes for which this distinction is made.” (Id. at p. 1311,

citing Estelle v. Dorrough (1975) 420 U.S. 534, 538-539 and Douglas v. California

(1963) 372 U.S. 353, 357.)




                                              8
       We will follow Jennings here and in doing so conclude Evidence Code section

1109 does not violate the due process or equal protection clauses of either the state or

federal constitutions, defendant’s contrary claims notwithstanding.

                                               4.

             CONSTITUTIONALITY OF PENAL CODE SECTION 422

       Defendant contends Penal Code section 422 is unconstitutionally vague because it

defines a criminal threat as one that threatens commission of a crime “which will result in

death or great bodily injury to another person.” Defendant argues the quoted language

“is unconstitutionally vague because it calls upon law enforcement to evaluate the nature

of threats and to determine, on a case by case basis, and under a myriad of circumstances,

whether a threat is of the type which will result in great bodily injury or death.”

       This issue was addressed and rejected in People v. Maciel (2003) 113 Cal.App.4th

679, 685 (Maciel). The Maciel court held that the quoted phrase must be construed in

context. “Penal Code section 422 does not criminalize all threats of crimes that will

result in death or great bodily injury, leaving to law enforcement to determine those

threats that will result in arrest. Instead, the statute criminalizes only those threats that

are ‘so unequivocal, unconditional, immediate, and specific as to convey to the person

threatened, a gravity of purpose and an immediate prospect of execution of the threat, and

thereby causes [sic] that person reasonably to be in sustained fear for his or her own

safety or for his or her immediate family’s safety.’ This language means that not all

threats of crimes that will result in great bodily injury are criminalized, but only serious

threats, intentionally made, of crimes likely to result in immediate great bodily injury.


                                               9
Moreover, the statute also includes a specific intent element: ‘with the specific intent that

the statement . . . is to be taken as a threat.’ A statute that criminalizes threats of crimes

that will result in [death or] great bodily injury with the intent to place the victim in

sustained fear for personal safety or the safety of immediate family members adequately

advises an individual and law enforcement of the conduct prohibited by the statute. One

who willfully threatens violence against another, intending that the victim take the threat

seriously and be fearful, cannot reasonably claim to be unaware that the conduct was

prohibited.” (Id. at p. 685.)

       Defendant attempts to distinguish Maciel by claiming it is based in part on a

Nebraska case (State v. Schmailzl (1993) 243 Neb. 734) that involves an amended version

of a Nebraska statute but the original version includes language “which is so similar to

that found in [Penal Code] section 422.” Defendant’s statement is wrong. The Maciel

court’s discussion of Nebraska statutes and case law consists of the following statement:

       “Defendant relies on a case in which the Nebraska Supreme Court voided

Nebraska’s criminal threats statute as unconstitutionally vague. (State v. Hamilton

(1983) 215 Neb. 694 [340 N.W.2d 397].) The Nebraska Supreme Court was to some

extent concerned with language similar to the language challenged in this case. (Id. at

pp. 398–399.) However, the challenged Nebraska statute did not include language that

the victim must take the threat seriously or any intent element. Subsequently, the

Nebraska legislature adopted a new criminal threats statute modeled on the Model Penal

Code and including a specific intent element. The Nebraska Supreme Court concluded

that this revised statute did not suffer from unconstitutional vagueness. (State v.


                                              10
Schmailzl (1993) 243 Neb. 734 [502 N.W.2d 463, 465-467].)” (Maciel, supra, 113

Cal.App.4th at p. 686, fn. 3.)

       Defendant’s argument in this case is identical to the argument addressed and

rejected in Maciel. Based on Maciel we reject defendant’s argument in this case that

Penal Code section 422 is unconstitutionally vague.

                                              5.

  FAILURE TO INSTRUCT ON ELEMENTS OF THE THREATENED CRIME

       As his final claim of error, defendant contends the trial court’s instruction on the

crime of making criminal threats in violation of Penal Code section 422 was incomplete

and the error requires reversal because the instruction (CALCRIM No. 1300) did not

include the elements of the crime or crimes defendant threatened to commit. Again we

disagree.

       Defendant’s claim was addressed and rejected in People v. Butler (2000) 85

Cal.App.4th 745, 755. Although defendant purports to distinguish Butler, his effort is not

persuasive. In rejecting the defendant’s claim that the trial court should have instructed

on the elements of the crime threatened, the Butler court observed that the statutory

language requiring the threatened act be a crime or illegal act was included “in order to

take it out of First Amendment protection. [Citation.]” (People v. Butler, at p. 757.)

Simply put, the trial court, in instructing the jury on the elements of the crime set out in

Penal Code section 422, was not required to instruct on the elements of the crime

defendant threatened to commit. Therefore, we reject defendant’s final claim of error in

this appeal.


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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               McKINSTER
                                                           Acting P. J.

We concur:



RICHLI
                       J.



MILLER
                       J.




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