People v. Bower

1

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY DAVID BOWER, Defendant and Appellant.

C091426

California Court of Appeals, Third District, Calaveras

February 22, 2022

NOT TO BE PUBLISHED

Super Ct. No. 19F7666

EARL J.

After a jury found defendant Timothy David Bower guilty of committing multiple crimes against his girlfriend, including assault with a deadly weapon and corporal injury to a cohabitant, the trial court sentenced him to an aggregate term of 16 years in state prison. On appeal, defendant argues his convictions should be reversed, because (1) the trial court contravened his constitutional and statutory rights by admitting evidence of his prior domestic violence convictions and his trial counsel provided ineffective assistance in connection with admission of that evidence; (2) the trial court improperly instructed the jury regarding consideration of a lesser included offense; (3) the prosecution committed misconduct in closing argument by distorting the burden of proof and commenting on defendant's failure to testify; and, (4) cumulative error. Regarding his sentence, defendant argues (5) there were inaccuracies in, and procedural irregularities in the generation of, a probation officer's presentencing report; (6) the trial court failed to exercise its discretion to impose a lesser sentence by dismissing defendant's prior strike on a count-by-count basis; (7) certain enhancements must be stricken due to recent changes in sentencing law; and, (8) the trial court imposed costs without a determination of defendant's ability to pay.

We reject defendant's challenges to his convictions. But we agree with defendant on two of the contentions he raises regarding his sentence. Namely, that the two 1-year prior prison enhancements must be stricken, and that the record suggests the trial court viewed a 16-year sentence as unduly harsh, and was unaware of the scope of its discretionary power at sentencing to dismiss defendant's prior strike conviction on a count-by-count basis. Accordingly, we will affirm the convictions, strike the enhancements imposed pursuant to Penal Code section 667.5, subdivision (b), then vacate the remaining sentence and remand to the trial court for resentencing (which makes it unnecessary to address defendant's other sentencing claims).

FACTUAL AND PROCEDURAL BACKGROUND

The defendant was charged in a second amended information with four felony counts including assault and corporal injury on a cohabitant, and three special allegations alleging that he had previously been convicted of one prior serious felony pursuant to Penal Code sections 667, subdivisions (b)-(j) and 1170.12, and two prior felonies resulting in prison terms pursuant to Penal Code section 667.5, subdivision (b).^[1] Jury trial commenced in November of 2019.

I In Limine Hearing

Prior to the start of evidence, the trial court held a hearing outside of the presence of the jurors, regarding in limine motions filed by both the People and defendant. Of significance here, the People sought to introduce in their case in chief, certain prior conduct of defendant pursuant to Evidence Code section 1109, which defendant opposed.

The conduct involved four prior acts of domestic violence occurring in 2012, 2000, and 1998 for willfully inflicting corporal injury on a spouse, cohabitant, or parent of defendant's child (§ 273.5, subd. (a)); and in 1997 for battery against a spouse, cohabitant, or parent of defendant's child (§ 243, subd. (e)).

In a pretrial pleading, the prosecution provided pertinent provisions of Evidence Code section 1109; argued defendant's prior domestic violence convictions "show[ed] a pattern of behavior . . . establishing that violence towards [defendant's] intimate partners [was] the natural consequence of the dynamics of his relationship[s] with them"; and maintained the prior conviction evidence "substantially outweigh[ed] any potential for unfair prejudice."

In his pretrial pleading, defendant argued his prior convictions were "remote and unduly prejudicial"; maintained that evidence of his prior convictions had to be analyzed under Evidence Code section 352; and highlighted the additional "interest of justice" inquiry in Evidence Code section 1109, subdivision (e), for "[e]vidence of acts occurring more than 10 years before the charged offense." At the in limine hearing, defense counsel argued the convictions "exceed[ed] ten years" and were "excessive and/or unduly prejudicial."

In ruling the evidence admissible, the trial court observed that "just because evidence is especially . . . harmful does not mean that it is inadmissible." It also observed that the prosecution was "not offering testimonial evidence," of the defendant's propensity to commit domestic violence, but "the fact of certain convictions only." "So it seems to me," the trial court continued, "that the People are being restrained here and their tender is proper." "And so," the trial court ruled, the prosecution "would be able to mention" defendant's "domestic violence related convictions in [its] opening statement."

When the prosecutor sought to introduce evidence of defendant's domestic violence convictions after the last witness testified, defense counsel responded: "I have objected." "[T]hese [convictions] are obviously prejudicial." "I think one or two would be sufficient to advise the jury that he has a propensity if that is the goal of these are. After that I think it becomes 352. It's unduly prejudicial." The trial court responded, "I don't intend to re[-]visit the [in limine] rulings."

II Trial Testimony and Evidence

A. Ana L.

Ana L. met the defendant in March or April of 2019. By June 27th of 2019 they were living together and were boyfriend and girlfriend. On June 27, 2019, Ana L. and defendant began to argue in a loft area outside of their bedroom. "[I]t escalated" and Ana L. backed up "to get away from" defendant and found herself on the bedroom floor. After ending up on the floor, Ana L. revealed to defendant that she slept with his friend. In response, defendant kicked her, hit her, and threw a video game "cabinet" (made of wood and plastic) at the back of her head, causing immense pain. Ana L. "saw stars," and thought she was going to pass out. Defendant helped Ana L. onto the bed, apologized to her, and told her "it wouldn't happen again." Things were "calm for awhile," until another argument arose a few hours later.

During the subsequent argument, defendant threw several glass candle holders at Ana L. while she was in bed. Then, he picked up a "torch, propane tank" by the bedroom fireplace, and "came at" Ana L., who covered her head with her arms. Defendant struck Ana L. three times, on her right arm and hands, with the propane tank. The blows bent out of shape, a ring that Ana L. was wearing at the time. It felt like "getting hit with a hammer," Ana L. testified.

Ana L. did not call the police. (At trial, when the prosecutor asked why, Ana L. answered, "Because I love him.")

Ana L. had swollen fingers on both hands, and a lump on the back of her head. Pain in her hands, arm, and head lasted for about two months. She began having regular headaches.

During another argument on July 1, 2019, defendant slapped Ana L. on the left side of her face. Ana L. fell, and defendant kicked her three times on the left side of her body, where pain lasted for a couple of weeks. As a result of the attack, Ana L. had a black eye and facial bruising that was visible for at least nine days.

On the morning of July 4, 2019, Ana L. woke up with chest pain, and thought she was having a heart attack. (She had a heart attack about 14 years earlier.) Ana L. told defendant, who called for an ambulance.

At first, Ana L. told no one at the hospital about defendant's attacks, because she didn't want defendant to get into trouble. But Ana L. eventually "broke down and started crying" after a nurse who had been treating her asked her, "who hit you?"

A police officer came to the hospital, interviewed Ana L., and took photos of her injuries. Afraid of defendant, Ana L. asked the officer for an emergency protective order against him.

B. Nurse Practitioner Banke

An emergency room nurse practitioner who treated Ana L. on July 4, 2019, testified she had no independent memory of the event, but she documented her treatment of Ana L. in hospital medical records.

According to the nurse's notes, Ana L. reported "her boyfriend had been physically abusive," and Ana L. had injuries consistent with physical abuse: "bruising around her eye" and "chest wall tenderness." Ana L. told the nurse she had been "pushed down" and "struck in her face" on July 1, 2019.

The nurse testified that it "can be common" for emergency room patients to reveal domestic violence as a secondary complaint, after being seen by medical professionals for an initial health complaint.

The nurse's notes did not memorialize any complaints by Ana L. of hand pain, head pain, dizziness, or back pain. Nor did the medical records reflect that the nurse saw any bruises on Ana L., other than on her face.

C. Officer Brandow

A police officer who came to the hospital and took photos of Ana L.'s injuries, testified that Ana L. "seemed distraught" and "a little bit scattered" when the officer interviewed her.

In addition to a black eye, Ana L. had bruises on her neck, hand, forearm, and knees. She also had "two large lumps" (each "the size of a fifty cent piece and raised maybe a quarter to half an inch") on the back of her head, and "winced" when the officer touched them. Ana L. showed her injuries to the officer because the officer asked her to.

The lumps on Ana L.'s head were not visible to the naked eye and Ana L.'s bruises were not as apparent...