Filed 12/23/19 P. v. Basped 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NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

MIKEYO LAJOHN BASPED,

Defendant and Appellant.

C087176

(Super. Ct. No. 17FE004382)

Defendant Mikeyo Lajohn Basped was charged with felony corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), with personally inflicting great bodily injury, prior prison term, and prior misdemeanor domestic violence allegations. (§§ 12022.7, subd. (e), 667.5, subd. (b), 273.5, subd. (f)(1).) Following a jury trial, defendant was convicted of the lesser included offense of misdemeanor battery of a cohabitant. (§ 243, subd. (e)(1).) The trial court suspended imposition of sentence and placed defendant on three years’ probation.

On appeal, defendant contends the admission of prior domestic violence evidence violated his Fifth Amendment, Sixth Amendment, and due process rights, and was a prejudicial abuse of discretion. Applying well-settled law, we find admitting prior misconduct evidence pursuant to Evidence Code section 1109 does not violate a defendant’s constitutional rights, and there was no abuse of discretion in admitting the prior misconduct evidence here. We shall affirm.

BACKGROUND

The Crime

The complaining witness, Jane Doe, did not want to testify at trial. She testified that as of March 2017, she had been dating defendant for two or three months. She had told the police they lived together, but testified that this was not true. Defendant took care of her son, who called defendant his stepdad. Her son got upset when she and defendant argued.

When asked questions about the incident that led to the charge, Doe repeatedly answered that she did not know or did not remember. As a result, the prosecution was permitted to submit Doe’s preliminary hearing testimony into evidence. The facts of defendant’s crime are taken from this testimony as well as her statement to the police, which is essentially consistent with her preliminary hearing testimony.

Defendant and Doe had been dating for about three months and were living together on March 1, 2017. That night, Doe and defendant’s brother Lonnie attended a candlelight vigil for a recently deceased coworker. Defendant did not want her to attend the vigil.

Doe drank about two shots from a bottle of Hennessey she shared with Lonnie at the vigil. She arrived at her home with Lonnie around 9:35 or 9:45 p.m. Defendant answered Doe’s knock on the door by calling her names and asking where she had been. Doe told defendant she went to the vigil to pay respect to a friend who just died. Defendant accused her of drinking; she replied that she had two shots and was not drunk.

Doe asked Lonnie to go inside the house with her, as she knew defendant would be angry and Lonnie could help keep him calm. After defendant’s initial outburst, Doe began to call 911, as things “were going to get bad.” Defendant took Doe’s phone and threw it into the house, breaking it. He told Doe to “get the fuck in the house” and then tried to pull her inside by grabbing her hair. Doe told defendant to let go, but he did not let go of her until she punched him in the face.

Lonnie tried to calm down defendant. Doe took her son and said she was leaving. A frustrated Lonnie said he wished to leave as well. Doe walked to a neighbor’s house, while Lonnie walked to his car. As Doe prepared to knock on the neighbor’s door, defendant came up to her and said, “[I]f you knock on the door, I’m going to fuck you up.”

Doe walked back towards Lonnie and asked him to stay. After Lonnie declined to stay and left, the confrontation between Doe and defendant worsened. Defendant slapped Doe on the left side of the face. He told Doe, “[A]ll this over a bitch ass nigga,” and punched her in the right eye. She could not see out of the eye, which began to bleed. Doe felt like defendant pushed her eye into her brain.

Defendant followed Doe as she entered the house to get a towel. After initially blaming Doe for the incident, defendant apologized about 20 to 30 minutes later. Defendant got Doe an ice pack for her eye later that night, and stayed with her until he left for work around 6:00 the next morning.

The following morning, Doe went to a neighbor’s house and told her about the incident. She made two calls to a nonemergency line, but no one responded. Doe called her father, who picked her up and took her and her son to his home, where she called 911 after her father said he would call if she did not.

Doe suffered an orbital fracture to her right eye as a result of the attack.

Prior Misconduct

On April 6, 2014, Christine Razo told a police officer she saw defendant struggle over a woman’s purse, call the woman a bitch, and threaten to kill the woman. Defendant slapped the woman, choked her, lifted her onto a chain-link fence, and kicked her.

That same day, Autumn Bicker heard defendant tell a woman, “[G]ive me it from your purse, bitch,” and the woman reply, “I don’t have it.” Defendant hit the woman more than two times with a closed fist, and continued to hit her when she fell to the ground. After the woman got up, she ran to a neighbor’s house and defendant left. Bicker called the police and gave her statement to an officer.

Defendant was arrested. Photographs of the victim show she sustained injuries that included a scratch on her neck. She also had pieces of grass struck on her clothes.

Defendant pleaded no contest to misdemeanor infliction of corporal injury to a cohabitant as a result of the incident.

The Defense

Matthew Becker was a student trainee who helped investigate the case for law enforcement. He did not interview Lonnie because Doe did not want him involved. Doe wanted to recant her statement to the police that Lonnie was present at the incident.

Doe’s father testified that Doe called him on the day after the incident between 9:00 and 10:00 a.m. He did not want Doe involved in the case or testifying. Doe told him that when they were outside the house, defendant threw a boot at her face, injuring her eye, and threw her to the ground and kicked her with his boot to the face as hard as he could, like he would to a man. Doe told him she was “buzzed” after returning from the vigil.

A forensic nurse looked at the medical records and opined that the records did not support the diagnosis of an orbital fracture to a medical certainty.

Testifying on his own behalf, defendant denied punching Doe, claiming her injury was an accident.

At the time of the incident, defendant and Doe were living together, having dated for about three and a half months. Defendant was not concerned about her going to the vigil, but instead worried about her drinking with his brother Lonnie, since Doe and defendant had stopped drinking when they got together. Defendant was concerned that night because when he called him, Lonnie was at a liquor store.

Doe was kind of drunk and staggering when she returned home from the vigil, which angered defendant. He and Doe began arguing by the door; Doe’s son and Lonnie were nearby. As defendant grabbed Doe’s arm, he caught some of her hair that was hanging over her arm. Doe responded by pulling her arm back and punching defendant. After defendant and Doe argued some more, defendant started arguing with Lonnie. When Lonnie decided to leave, defendant walked to Lonnie’s car with him.

When Lonnie left, defendant went into the house to get his gear for his work. This included steel-toed boots, which he sometimes carried around his neck. Defendant left the house and started walking down the street. Doe ran up and grabbed defendant by his dreadlocks, ripping out three of them. Defendant swung around to protect himself; he realized she was crying after he swung around.

Doe let go of defendant’s dreadlocks and grabbed at her eye. Defendant believed his boots, which were hanging around his neck, must have hit Doe in the eye when he swung around. Doe’s eye bled a little, but it stopped by the time defendant got to sleep. Defendant got Doe some ice for her injury.

Defendant neither slapped Doe nor broke her phone. He never threw his boot at Doe or kicked her in the face. Doe never ran to the neighbor’s house and he never threatened to hurt her if she knocked on the neighbor’s door.

DISCUSSION

I

Evidence Code Section 1109 is Constitutional

The uncharged misconduct evidence was admitted pursuant to Evidence Code section 1109.

Under Evidence Code section 1101, subdivision (a), unless an exception applies, evidence of a defendant’s character, including evidence of specific instances of past conduct, is inadmissible when offered to prove the defendant’s conduct on a specified occasion. Evidence Code section 1109, subdivision (a)(1) is one such exception: “[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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”

Defendant contends this provision violates his 14th Amendment right to due process, as well as his Fifth and Sixth Amendment rights. Defendant’s claim is without merit.

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Suspreme Court upheld the constitutionality of Evidence Code section 1108, permitting admission of a defendant’s other sex crimes in a prosecution for a sexual offense. (Falsetta, at p. 907.) Rejecting the defendant’s argument that Evidence Code section 1108 violates due process principles by allowing admission of propensity evidence, the court concluded that “in light of the substantial protections afforded to defendants in all cases to which [Evidence Code] section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.” (Falsetta, at p. 915.)

Since Falsetta, Courts of Appeal, including this district, have consistently applied Falsetta’s rationale in rejecting due process challenges to Evidence Code section 1109. (See People v. Johnson (2010) 185 Cal.App.4th 520, 528-529; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Price (2004) 120 Cal.App.4th 224, 239-241; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) “We agree with the reasoning and the results in these cases, and adopt their analyses as our own. In short, the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled.” (Jennings, at p. 1310.) The same applies to the other constitutional rights cited by defendant. Evidence Code section 1109 is constitutional.

II

Admitting the Uncharged Misconduct

Defendant also contends it was an abuse of discretion for the trial court to admit the uncharged misconduct evidence. We disagree.

Evidence Code section 352 “permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption,” but also “requires that the danger of these evils substantially outweigh the probative value of the evidence.” (People v. Lavergne (1971) 4 Cal.3d 735, 744.) This safeguard “ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.” (People v. Harris (1998) 60 Cal.App.4th 727, 730; People v. Brown (2000) 77 Cal.App.4th 1324, 1334.)

“In the analogous context of evidence of a defendant’s prior sex offenses governed by [Evidence Code] section 1108, our Supreme Court has explained how trial courts should evaluate such evidence under [Evidence Code] section 352: ‘By reason of [Evidence Code] section 1108, trial courts may no longer deem “propensity” evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ ” (People v. Disa (2016) 1 Cal.App.5th 654, 671, quoting Falsetta, supra, 21 Cal.4th at pp. 916-917.) We review admission of Evidence Code section 1109 evidence for abuse of discretion. (People v. Johnson, supra, 185 Cal.App.4th at p. 531.)

The prior misconduct evidence was not unduly prejudicial to defendant, as it involved conduct that was not more severe than the charged offense. The victim in this case sustained an orbital fracture to her right eye, while the victim in the prior misconduct declined medical treatment and apparently sustained no serious injury. The prior misconduct evidence did not take up much time, and did not present the jury with any confusing factual issues to resolve. It was highly relevant, consisting of similar conduct that took place a little less than three years before the charged offense. Less prejudicial alternatives were not available; the prior misconduct consisted of a relatively simple event witnessed by two people who recounted their observations to a police officer. Defendant would not be unduly burdened by defending against the prior misconduct, as he pleaded no contest to a charge stemming from it, and both witnesses who saw the attack testified at trial. Since no factors identified in Falsetta weigh against admitting the evidence, it was not an abuse of discretion to admit the prior uncharged misconduct.

DISPOSITION

The judgment is affirmed.

/s/

RAYE, P. J.

We concur:

/s/

BUTZ, J.

/s/

MURRAY, J.