Filed 3/23/15 P. v. Guillen 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                                           NOT TO BE PUBLISHED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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075233

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F01716)

         v.

FRANCISCO JAVIER GUILLEN,

                   Defendant and Appellant.




         A jury found defendant Francisco Javier Guillen guilty of spousal abuse resulting
in a traumatic condition (Pen. Code, §§ 273.5, subd. (a) & 1022.7, subd. (e)), making a
criminal threat (id., § 422), (misdemeanor) child abuse (id., § 273a, subd. (b)), and
(misdemeanor) violating a court order (id., § 166, subd. (c)(1)). The trial court sentenced
defendant to five years in state prison.



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       On appeal, defendant contends the trial court erred in admitting evidence of his
2005 and 2010 incidents of domestic violence against the victim. He adds that there are
errors in the abstract of judgment. We disagree with his first claim but agree with his
second, and will direct correction of the abstract of judgment.
                     FACTUAL AND PROCEDURAL HISTORY
       Counts One through Five -- 2013
       On March 14, 2013, around 5:00 p.m., the defendant’s wife, C.G. (victim), came
home from work. She walked through the garage, where she found defendant drinking
beer. Defendant “looked like . . . [he was] about ready to want to fight.”
       The victim went inside and lay down on the bed in the room she shared with
defendant. Defendant soon followed with their nine-year-old son, N.G. Defendant and
N.G. stood at the foot of the bed and defendant told the victim to make their son
something to eat. The victim did not get up from the bed and defendant and she began to
argue. Defendant and N.G. ultimately left the room; the victim stayed in the bedroom
and locked the door. Defendant demanded she let him into the room so he could get his
clothes because he wanted to leave.
       The victim opened the door “a little” in order to give defendant some of his
clothes, but defendant pushed the door open, pushing her backward. Once inside the
room, defendant started hitting her. The victim “threw [herself] on the bed” as defendant
hit her in the head and “all over [her] body.” Defendant climbed on top of the victim,
who was face down on the bed, and continued to beat her. Every time defendant hit her,
defendant would “tell [her] to die.” The victim thought she was going to die.
       N.G., who was again in the room, grabbed defendant by his shirt and tried to pull
him off the victim. N.G. told defendant to leave her alone but defendant continued the
beating. N.G. left the room and then returned holding a kitchen knife. The victim was
still on the floor. Defendant said to N.G.: “Give me that knife. I’m going to kill her with
it.” Defendant then took the knife from N.G. and the victim grabbed her cell phone to

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call the police. Holding the knife, defendant told her that she was going to die. The
victim believed she was going to die “at that moment.”
       Ultimately, after a neighbor interceded, defendant left the house on N.G.’s bicycle.
Police officers soon arrived and confirmed the existence of a domestic violence
restraining order. They soon found defendant riding N.G.’s bicycle. Defendant pointed
at his house and told the officers, “I don’t live there.” One of the officers told defendant
to step off the bicycle and put his hands on top of his head. Instead, defendant put his
hand in his pocket. The officer then took defendant down to the ground and into custody.
       For this conduct, the jury found defendant guilty of spousal abuse resulting in a
traumatic condition (count one), criminal threats (count two), child abuse (count three),
and violating a court order (count five). The jury failed to reach a verdict on count four--
resisting a police officer.
       Counts Six and Seven -- 2012
       Nearly a year earlier, on May 22, 2012, the victim was asleep in a bedroom
separate from defendant’s when defendant forced open her bedroom door, grabbed her
cell phone, and began reading her text messages. Defendant became angry because there
were text messages to her from a male friend. The victim got out of bed and defendant
kicked her in the leg, just below the knee. Defendant then told her that she had 24 hours
to get out of the house and walked out of the room.
       The victim soon spoke with a police officer who observed a bruise on her leg
where defendant had kicked her. The officer also learned there was a restraining order in
effect between defendant and the victim; he went to their home to find defendant but
defendant was not there.
       The jury found defendant not guilty on the charges of spousal abuse (count six)
and violating a court order (count seven) related to this conduct.




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       Additional Incidents in 2005 and 2010
       The trial court allowed the victim to testify regarding two prior incidents of
domestic violence between her and defendant occurring in 2005 and 2010, both of which
resulted in criminal convictions.
       On or about October 9, 2005, defendant became angry with the victim when she
brought home for N.G. a toy car she found lying in the street. That day, she and N.G.
were both sick; the victim was lying in bed and defendant was outside working on his car
and drinking. Defendant came inside the house and told her to get up and get rid of the
toy car. When she did not get up, defendant took off his belt and began to beat her with
it, calling her lazy.
       Defendant was later arrested and was ultimately convicted of misdemeanor assault
in violation of Penal Code section 240.
       On or about September 10, 2010, the victim returned home from work to find
defendant drunk; defendant’s brother Oscar was there as well. She began to cook dinner
while she talked to Oscar about her brother’s work. Defendant became “very angry.” He
got up from the couch, walked into the kitchen, and punched her twice: once in the
mouth and once in the chest. While he was hitting her, defendant asked her if Oscar “was
[her] man.” The victim ran into another room and called the police.
       Defendant later pleaded guilty to charges filed against him as a result of the
assault.
       Pre-Trial Motions, Trial, Judgment, and Sentencing
       The People moved in limine to introduce the 2005 and 2010 incidents. The trial
court granted the motion, stating: “Well, I have read the papers on the [Evidence Code
section] 1109 issue. The Court is likely to grant the request to use the evidence with
regard to 1109. It does seem to fit the criteria of 1109. It is relatively recent, one is two
years earlier, one is seven years earlier, so we do see a pattern.” Following a brief
argument by counsel, the court continued, “the Court is going to allow the prior conduct

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to be admitted for purposes of 1109 evidence. The Court has considered it both in the
context of 1109 and in the context of Evidence Code section 352. The Court does not
believe that the probative value is outweighed by any substantial prejudicial effect.”
         At trial, defendant presented no evidence. At the conclusion of the trial, the court
instructed the jury pursuant to CALCRIM No. 852 on the limited use of the prior acts
evidence, stating it was relevant to show defendant’s disposition to commit domestic
violence, but was only one factor for the jury to consider and was not sufficient to prove
guilt.
                                        DISCUSSION
                                               I
                            Admission of 2005 and 2010 Incidents
         Defendant first contends the trial court abused its discretion in admitting the 2005
and 2010 incidents, and accordingly denied defendant his federal and state rights to due
process. He claims the probative value of the evidence was diminished because the
victim in both cases provided the evidence, the 2005 incident was too remote in time, and
the evidence was cumulative. Defendant further claims that because he was charged with
seven crimes, allowing in evidence of two prior crimes was “fundamentally gratuitous
and prejudicial,” and because the prior criminal acts were “so similar” to those charged
here, the evidence necessarily confused the jury. Finally, defendant claims the trial court
failed to comply with Evidence Code section 352,1 arguing that the court “did not
exercise the required ‘discerning care,’ when ruling on this critical issue.” We are not
persuaded.




1   Further undesignated statutory references are to the Evidence Code.

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       A. The Law
       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 acts of domestic violence is admissible to show a defendant has a
propensity to commit acts of domestic violence. (People v. Brown (2011)
192 Cal.App.4th 1222, 1232.)
       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, 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.
(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

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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.)
       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.)
       B. Analysis
       The prior acts here were strikingly similar to the charged acts, thus making their
probative value great. (See People v. Johnson, supra, 185 Cal.App.4th at p. 532; see also
People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 [“The principal factor affecting the
probative value of an uncharged act is its similarity to the charged offense”].) In the
2005 and 2010 incidents, as here, defendant and the victim were at home, defendant was
drunk, he became angry with the victim, and then he beat her.
       There is little in the record to show the probative value of defendant’s prior acts
was diminished by any other factors. The priors were not so remote in time as to
diminish their probative value, particularly when considered in context. (People v.
Ewoldt (1994) 7 Cal.4th 380, 404-405 [uncharged conduct occurring 12 years prior to
trial did not lessen probative value in the context of that case], superseded by statute as
stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991 (finding Ewoldt’s
“similarity analysis” was superseded by enactment of section 1108).) The evidence
showed that defendant abused in the victim in 2005 and 2010 before he abused her in
2012 and 2013, which gave rise to the charges here. The evidence thus established a
pattern of domestic violence that began seven years ago and continued despite
defendant’s convictions. Defendant’s convictions for these prior acts of domestic
violence also diminished the possibility of fabrication. (See Ewoldt, at p. 404 [probative
value of uncharged conduct is increased if the source is independent of evidence of the



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charged offense].) And the evidence of defendant’s prior acts of domestic violence was
not cumulative, rather it showed the pattern of increasing violence directed at the victim.2
       The evidence also was not unduly prejudicial. 3 The prior acts of violence were
actually less serious than those charged here, so they were not inflammatory. (People v.
Tran (2011) 51 Cal.4th 1040, 1047 [potential for prejudice is decreased “when testimony
describing the defendant’s uncharged acts is no stronger or more inflammatory than the
testimony concerning the charged offense”].) The defendant was convicted on criminal
charges related to the prior acts of domestic violence, which obviated any concern that
the jury would seek to punish him now for his prior criminal conduct. (Ibid. [prejudice is
increased if the uncharged acts did not result in a criminal conviction, increased the
chance jury will want to punish defendant for prior abuse].) The actual lack of prejudice
is further evidenced by the fact that the jury acquitted defendant on multiple similar
charges.
       Defendant nevertheless contends the jury was confused by the evidence of
defendant’s prior acts of domestic violence because they were “so similar” to the acts
charged here “the jury must have wondered why they were placed in evidence.”
Defendant points to the jury’s questions during deliberations as evidence the jurors were
confused about how to handle the evidence of his prior domestic violence; he argues the
court’s limiting instruction did not alleviate their confusion. We disagree.



2 Defendant argues without authority that this evidence was cumulative because the prior
acts were so similar to the current charges; we reject this argument as specious.
3 Defendant contends without authority that allowing the prosecution to present evidence
of two prior acts was “fundamentally gratuitous and prejudicial.” This claim is directly
counter to the Legislative intent in allowing prior acts of domestic violence to be
admitted because criminal prosecution is one of the four factors which may “interrupt the
escalating pattern of domestic violence . . . .” (See People v. Johnson, supra,
77 Cal.App.4th at p. 419, quoting Assem. Com. Rep. on Public Safety (Jun. 25, 1996) pp.
3-4.)

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       The jury’s questions reveal careful consideration of testimony and potential
confusion regarding the law related to resisting an officer (count four, later dismissed).
They do not evidence confusion related to defendant’s prior acts of domestic violence.
Moreover, we presume the jurors understood and followed the court’s instructions.
(People v. Holt (1997) 15 Cal.4th 619, 662.)
       Finally, the trial court expressly stated on the record that it “read the papers on the
1109 issue . . .,” and after allowing the attorneys to argue, found “the probative value is
outweighed by any substantial prejudicial effect.” It is, therefore, evident that the trial
court understood and fulfilled its responsibilities under section 352. (People v. Williams
(1997) 16 Cal.4th 153, 213.) We find no error.
                                              II
                                   Errors in the Abstract
       Defendant next contends the abstract of judgment incorrectly includes two
unauthorized fines; the People agree and so do we. At sentencing, the trial court properly
imposed $160 in court operations assessment (Pen. Code, § 1465.8(a)(1)) and a $120
court facilities assessment (Gov. Code, § 70373). The abstract of judgment, however,
incorrectly lists the court operations assessment at $200 and the court facilities
assessment at $150. “An abstract of judgment is not the judgment of conviction; it does
not control if different from the trial court’s oral judgment and may not add to or modify
the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th
181, 185.) Appellate courts may order correction of abstracts of judgment that do not
accurately reflect the sentencing court’s oral pronouncement. (Ibid.) We shall direct the
trial court to correct the abstract of judgment.




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                                     DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.



                                                       DUARTE                , J.



We concur:



      ROBIE                 , Acting P. J.



      HOCH                  , J.




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