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PEOPLE v. VELARDE, B224484. (2011)

Court: Court of Appeals of California Number: incaco20110816019 Visitors: 9
Filed: Aug. 16, 2011
Latest Update: Aug. 16, 2011
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ZELON, J. Mark A. Velarde Jr. (Velarde) appeals from a judgment entered after a jury convicted him of residential burglary. He was sentenced to the lower term of two years in state prison. Velarde contends the trial court committed reversible error in admitting into evidence his prior acts of domestic violence. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Velarde was charged by information with burglarizing the mobile home inhabited by Candice Smit
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

Mark A. Velarde Jr. (Velarde) appeals from a judgment entered after a jury convicted him of residential burglary. He was sentenced to the lower term of two years in state prison. Velarde contends the trial court committed reversible error in admitting into evidence his prior acts of domestic violence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Velarde was charged by information with burglarizing the mobile home inhabited by Candice Smith, his former girlfriend, on November 1, 2009. The primary issue at trial was Velarde's intent in entering the mobile home, although Velarde also disputed evidence that he actually committed a theft or a felony once inside the mobile home.

I. Prosecution Evidence

The evidence at trial established that Candice moved into the mobile home of her sister, Sandra Smith, in March 2009.1 At around 8:30 p.m. on November 1, 2009, the sisters left the mobile home together. Later that night, neighbors telephoned police after they saw Velarde enter the mobile home through a window. Arriving officers ordered Velarde out at gunpoint and took him into custody. Police then notified Sandra of both the burglary and Velarde's arrest. The sisters returned and found the mobile home had been ransacked and vandalized. Clothing and personal items had been thrown on the floor, feces and blood had been smeared the walls, and a pet fish had been crushed on a nearby wall and ceiling.2 Sandra later discovered her ring and iPod were missing.

Velarde was interviewed by police following his arrest. He admitted entering Sandra's mobile home through a window that night because he was not allowed inside, and explained he had intended to take some of Candice's belongings because she owed him money. Neither of the missing items was found on Velarde's person.

II. Defense Evidence

Members of Velarde's family testified that Velarde was drinking beer at his parents' house and became intoxicated by dinner time on the night of the burglary. When Velarde began to behave irrationally, his mother demanded that he leave. Velarde reacted by putting his fist through a window, cutting himself. His mother telephoned police, but Velarde left before officers arrived.

Velarde testified that he had been drinking malt liquor and smoking marijuana all day on November 1, 2009, and he ingested Ecstasy around 8:00 p.m. Velarde did not recall how he was injured, but he did testify that he was bleeding that night. He recalled leaving his parents' home but not where he was going; and he ended up at Sandra's mobile home. There, he entered the mobile home through a window as he had in the past on numerous occasions. Velarde testified he had gone to the mobile home "for help, and when I got there, I guess — I knew she had a bag of medical supplies, so I helped myself."3 Velarde thought Candice would be there to help him, but she was not home at the time. Velarde testified he did not intend to take any belongings and did not steal the ring or iPod. Candice did not owe him any money.

DISCUSSION

Velarde contends the trial court abused its discretion by admitting evidence of his prior acts of domestic violence, because the evidence was more prejudicial than probative within the meaning of Evidence Code section 352.4 He also argues the admission of this evidence violated his right to due process, requiring reversal, citing People v. Watson (1956) 46 Cal.2d 818, 836.

I. Relevant Proceedings

Sandra testified on direct examination that she knew Velarde as her sister's former boyfriend and had told him two months earlier that he was not welcome in her home. Thereafter, Sandra repeatedly saw Velarde outside her mobile home and elsewhere on the grounds of the mobile home park and told him to leave. On a couple of occasions, Sandra threatened to telephone police if he did not leave.

During cross-examination, defense counsel asked Sandra about her feelings towards Velarde and his relationship with Candice. Among the questions defense counsel posed: "Now, you indicate that . . . Candice has lived with you on and off during the past year and a half. [¶] You've known [Velarde], and you've had numerous contacts with him; correct?" "You know that your sister's had a dating relationship with him for quite some time?" "She's known him, actually, much longer than you; correct?" "And they've had — you don't approve of their relationship?" "Would that be a correct statement?" "You discourage her from having any contact with him?" "Okay. [¶] Do you have — have you had numerous arguments with her regarding her contact with him?" To each of these questions, Sandra answered, "Correct."

On redirect examination, the prosecutor asked Sandra, "And approximately when was it that [Candice] began residing with you?"

[Sandra] "Gosh. I want to say at least a year ago." [Prosecutor] "So around March of 2009?" [Sandra] "Yeah." [Prosecutor] Okay. [¶] Now, it is fair to say that initially you weren't aware of some of the less pleasant details of Candice's and [Velarde's] relationship?" [Sandra] "Yes." [Prosecutor] "At some point, did you become aware of some details of their relationship that disturbed you?" [Sandra] "Yes." [Prosecutor] "What were the nature [sic] of the details that you became aware of that disturbed you?"

Defense counsel objected, requested a sidebar conference, and argued the prosecutor was eliciting specific acts of conduct that were not made known to the defense during discovery.5 The prosecutor responded that defense counsel's cross-examination made it appear that Sandra disliked Velarde for no reason. To correct that misimpression for the jury, the prosecutor said she intended to show on redirect examination that Sandra "had very good grounds" for disliking Verlarde because he had physically abused Candice. Defense counsel then argued that such evidence should be excluded under Evidence Code section 352.

In overruling the objection, the trial court noted that defense counsel had "opened the door" to the issue of whether Sandra's dislike of Velarde affected her credibility. "It's a question of bias [Sandra] may have against [Velarde] such that she may not be truthful on the witness stand or exaggerate[ed] what occurred in her household upon her return." The court concluded the prosecutor was "entitled to ask any open-ended question and pursue why [Sandra] doesn't approve of [Velarde] because [defense counsel] opened that door like a sliding door."

Trial resumed, and the prosecutor asked Sandra why she disapproved of Velarde. Sandra answered that Velarde was "controlling" and "abusive physically and verbally." Sandra then testified to having seen a bald spot on Candice's head, where some hair "had been pulled out," bruising to her face, scratches on her arms and, on two occasions, "a fat lip." Sandra stated that Candice "had admitted" to her that Velarde had caused those injuries.

Immediately following this testimony, the trial court admonished the jury that "that statement in which this witness heard from her sister is not admitted for the truth of that statement, but only to indicate her state of mind in terms of how she arrived at her opinion."6

II. The Trial Court Did Not Commit Prejudicial Error

"We review for abuse of discretion a trial court's ruling on relevance and the exclusion of evidence under Evidence Code section 352." (People v. Avila (2006) 38 Cal.4th 491, 578.) Under the abuse of discretion standard, "`a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" [Citation]" (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)

Sandra's cross-examination testimony showed she had a bias against Velarde, and thus a possible motive to lie about his purported theft of her belongings. The colloquy indicates that the trial court concluded that (1) the prosecutor's inquiry into why Sandra disliked Velarde was relevant to her credibility because it enabled the jury to assess the reasonableness of her animosity, and (2) the limited testimony concerning Velarde's prior acts of domestic violence could be admitted without the risk of undue prejudice. Those determinations were well within the court's broad discretion in such matters. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 214; People v. Karis (1988) 46 Cal.3d 612, 638 ["The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"].) Thus, while Sandra's disputed testimony on redirect may have been relevant only to her credibility, and undoubtedly resulted in some prejudice to Velarde, based on our review of the record, including the court's limiting instruction to the jury, we cannot say the admission of this evidence was an abuse of discretion.

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J. and JACKSON, J., concurs.

FootNotes


1. Because the sisters share the same last name, we refer to each of them by her first name to avoid confusion.
2. Photographs taken of the damaged interior of the mobile home following the burglary were shown to the jury.
3. Velarde knew that Sandra, a medic, had first aid supplies inside her mobile home.
4. Evidence Code section 352 provides: "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. The prosecution clarified that the witness would testify to the same facts she had testified to at the preliminary hearing.
6. Candice subsequently testified that she had known Velarde for five years, and had lived with him at his parents' house for the past four years. Theirs was a volatile and mutually abusive relationship, which created a lot of stress and led Candice to move in with Sandra a couple of times. Candice acknowledged that Sandra did not like Velarde and disapproved of Candice's relationship with him.
Source:  Leagle

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