intermediate fact of motive' may be established by evidence of 'prior dissimilar crimes.' "
(Id. at p. 1018.)
Here, evidence that Megown committed uncharged acts of domestic violence
toward Michelle in the past was relevant to prove that Megown not only threatened and
assaulted Michelle with a firearm during the 2015 incident, but that he also committed
these crimes toward Maria when Maria came to Michelle's aid. The evidence also tended
to prove a common plan or scheme of threatening victims to prevent them from
contacting the police.
12
Moreover, even if we were to agree that Megown's acts toward Maria did not
constitute domestic violence within the meaning of section 1109 and that this evidence
was also inadmissible as to the counts pertaining to Maria under section 1101(b), we
would not reverse. Error in admitting evidence of a defendant's prior acts of domestic
violence under sections 1109 or 1101 is subject to the standard of prejudice set forth in
People v. Watson (1956) 46 Cal.2d 818 (Watson). (See People v. Ogle (2010) 185
Cal.App.4th 1138, 1145 [any error in admitting uncharged act of domestic violence was
harmless under Watson]; People v. Welch (1999) 20 Cal.4th 701, 750 [admission of
evidence prohibited by § 1101 is reviewed under the Watson harmless error standard].)
Under the Watson test, the trial court's judgment may be overturned on appeal only if the
defendant shows "it is reasonably probable that a result more favorable to the [defendant]
would have been reached in the absence of the error." (Watson, at p. 836.)
Here, Megown does not dispute that the prior domestic crimes evidence was
admissible as to all of the charged crimes against Michelle. As to the 2015 incident
involving both Michelle and Maria, the jury needed to assess the credibility of Michelle's
and Maria's versions of the incident versus Megown's version of the incident. Michelle
and Maria gave corroborating accounts of the 2015 incident and a neighbor testified
regarding Megown's use of death threats. The jury's guilty verdicts for the 2015 charges
show that the jury believed Michelle and Maria. It is not reasonably probable that
Megown would have obtained a better result if the trial court had instructed the jury that
the prior domestic crimes evidence was not to be considered as to the crimes alleged
where Maria was the victim. (Watson, supra, 46 Cal.2d at p. 836.)
13
2. Admission of remote evidence
Megown asserts the trial court erred in admitting evidence of his abuse of
Michelle that occurred more than 10 years before the charged crimes. Specifically, he
argues the trial court erred in allowing Michelle to testify (1) that the abuse started in
1999 and occurred about 10 times a year, and (2) about an incident that occurred in 1999
where Megown pushed Michelle against a wall and then threw her on a couch (together
the remote evidence). He asserts this testimony was presumptively inadmissible under
section 1109, amounted to bad character evidence, and undermined his defense.
"Evidence of acts occurring more than 10 years before the charged offense is
inadmissible . . . unless the court determines that the admission of this evidence is in the
interest of justice." (§ 1109, subd. (e).) The statute "clearly anticipates that some remote
prior incidents will be deemed admissible and vests the courts with substantial discretion
in setting an 'interest of justice' standard." (People v. Johnson (2010) 185 Cal.App.4th
520, 539.) "[T]he 'interest of justice' exception is met where the trial court engages in a
balancing of factors for and against admission under section 352 and concludes . . . that
the evidence was 'more probative than prejudicial.' " (Id. at pp. 539-540.) We review the
court's ruling for abuse of discretion. (Id. at p. 539.)
"Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person's
conduct on a specified occasion." (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.)
Critically, section 1109 is "an express exception to the prohibition against [bad character
or] propensity evidence set forth in . . . section 1101, subdivision (a)." (People v. Fruits
14
(2016) 247 Cal.App.4th 188, 202.) "[T]he statute reflects the legislative judgment that in
domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative'
of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became
section 1109 argued for admissibility of such evidence because of the 'typically repetitive
nature' of domestic violence. [Citations.] This pattern suggests a psychological dynamic
not necessarily involved in other types of crimes." (Johnson, supra, 185 Cal.App.4th at
p. 532, fns. omitted.)
The trial court, which allowed Michelle to state that the abuse started 16 years
earlier and was continuous, recognized the unique "probative value" of such evidence to
establish a "pattern of . . . violence" and found the evidence "highly relevant." We agree;
this evidence created a strong inference that Megown had a propensity to commit the acts
that Michelle described. This history of abuse was also relevant to Michelle's fear and
her earlier refusals to seek help or call the police. Moreover, Michelle's generalized
statements and the brief details provided about the 1999 incident were less aggravated or
inflammatory than the charged offenses. There is no reasonable likelihood that the result
would have been more favorable to Megown had the trial court excluded the 1999
incident and the testimony that Megown regularly became physically violent with
Michelle thereafter. The trial court acted well within its discretion in admitting the
remote evidence in the interests of justice.
Megown claims the trial court erred by failing to inquire into the specifics of this
evidence to determine whether the prior incidents even qualified as domestic violence.
Based on this failure, he contends the trial court lacked the information to evaluate the
15
admissibility of the remote evidence under section 352. In his motions in limine,
Megown objected to the remote evidence under section 352 and requested a "pretrial
hearing" to litigate the admissibility of the prior incidents outside the presence of the jury.
At the hearing on the in limine motions the trial court conducted a section 352
analysis after defense counsel reiterated his objection under section 352. At the hearing,
defense counsel never expressed a concern that the prior incidents did not qualify as
domestic violence, nor did he request a section 402 hearing to litigate this issue. By
failing to raise his request for a pretrial hearing under section 402 when the court ruled on
the in limine motions or before Michelle testified, defense counsel forfeited his request.
(See People v. Williams (1997) 16 Cal.4th 153, 196 ["[T]he trial court was not bound to
provide, unprompted, additional hearings under . . . section 402 merely because it had
earlier suggested it would do so 'at the appropriate time.' "].)
II. ALLEGED INTRUCTIONAL ERROR
A. Instruction Regarding Uncharged Crimes Evidence
1. Additional background
Before allowing the jury to hear evidence regarding Megown's uncharged acts the
court told counsel that it would be reading the jury a "shortened version" of CALCRIM
No. 852 regarding the use of uncharged domestic violence evidence. Neither counsel
objected to the court's proposal. As relevant here, the court deviated from CALCRIM
No. 852 by inserting into the instruction that jurors could use the uncharged acts of
domestic violence evidence to determine that Megown "was likely to commit and did
commit . . . any of the charged offenses that you are here to decide." It then told the jury
16
that if they decided Megown had committed the uncharged offenses they could consider
the evidence "in deciding whether or not: [¶] 1. The defendant acted with the intent that
his threats to kill or cause great bodily injury to Michelle [R.] be understood as a threat
pursuant to Penal Code section 422 in this case; [¶] 2. The defendant had a motive to
commit the offenses alleged in this case; or [¶] 3. The defendant had a plan or scheme to
commit the offenses alleged in this case." Neither counsel objected after the court's
recitation.
The court did not instruct the jury with CALCRIM No. 375 regarding the use of
uncharged offense to prove identity, intent, common plan, etc. under section 1101(b).
Rather, the court instructed with a modified version of CALCRIM No. 852 that included
portions of CALCRIM No. 375 and told jurors it could use the uncharged domestic
violence evidence not only on the counts pertaining to Michelle, but on all counts,
including counts 12 and 13, the assault with a firearm and criminal threats charges as to
Maria. The jury later returned guilty verdicts on counts 12 and 13.
2. Analysis
Megown complains that the trial court made several instructional errors regarding
the uncharged acts evidence. He contends the court erroneously instructed the jury that it
could consider prior acts of domestic abuse in reaching its verdict on counts 12 and 13
involving Maria. As discussed ante, the uncharged acts evidence was admissible as to
Maria (ante, pt. I.C.1.), thus the trial court did not err when instructing the jury on its use.
In a related argument, Megown claims that the trial court erred in omitting a
bracketed portion from CALCRIM No. 375 from the hybrid version of CALCRIM No.
17
852 that it used. CALCRIM No. 375 is the pattern instruction pertaining to the use of
evidence admitted under section 1101(b). This instruction contains a bracketed sentence
stating: "[Do not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime.]" Megown acknowledges that a use note for CALCRIM No.
375 provides that the bracketed sentence should not be given where, as here, "the court is
also instructing under . . . section . . . 1109." (Bench Notes, CALCRIM No. 375.)
Nonetheless, he claims the court should have provided the bracketed sentence because
the jury could not use the uncharged crimes evidence to conclude that he had a
predisposition to commit the crimes against Maria. However, Megown's act of pointing a
gun at Maria and threatening to kill her, committed in Michelle's presence, was a crime
that involved domestic violence. (Ante, pt. I.C.1.) Thus, the jury could properly use this
evidence to infer that Megown had a propensity to commit domestic violence.
Megown also claims that the trial court made the modified version of CALCRIM
No. 852 "confusing" by moving a sentence which stated that the People must "prove each
charge and allegation beyond a reasonable doubt" to the end of the instruction, instead of
keeping this language immediately after recitation of the charged offenses. Megown
does not explain how moving this sentence changed anything as the instruction still stated
that the People must prove all charged crimes and allegations beyond a reasonable doubt,
a concept that was further emphasized in CALCRIM No. 220. A jury is presumed to
follow the instructions given, and Megown offered no reason for us to conclude that this
presumption was overcome in this case. (People v. Jackson (2014) 58 Cal.4th 724, 767.)
18
Finally, Megown notes that the modified version of CALCRIM No. 852 provided
to the jury at the end of trial did not list the 1999 incident with the other uncharged
incidents. Megown claims that the trial court's omission "left [the jury] with no handle
on what to do" with this evidence. While Megown is correct that the 1999 incident was
not listed in CALCRIM No. 852, the instruction did not tell the jury that the uncharged
conduct evidence was limited to those instances listed in the instruction, only that the
uncharged conduct evidence "involve[d]" the listed incidents. Moreover, Megown's
argument ignores that the court specifically preinstructed the jury with a modified version
of CALCRIM No. 852 immediately before Michelle testified. Additionally, after
Michelle testified that the abuse began in 1999, the trial court told the jury, "This is part
of the uncharged conduct that I was telling you about. You know how to evaluate and
what the burden of proof is as to this incident." Thus, even assuming error in not listing
the 1999 incident, the assumed error is harmless as it is inconceivable that the jurors
confused the 1999 incident with the charged crimes that occurred 16 years later.
B. Assault with Firearm Instruction
1. Additional background
Without objection, the trial court instructed the jury with CALCRIM No. 875
regarding assault with a semiautomatic firearm. As relevant here, the instruction
provided:
"The defendant is charged in Counts 11, 12 and 14 with assault with a semiautomatic firearm in violation of Penal Code section 245.
"To prove that the defendant is guilty of these charges, the People must prove that:
19
"1. [For Counts 11, 12, and 14, t]he defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did the act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in application of force to someone;
"AND,
"4. When the defendant acted, he had the present ability to apply force with a semi-automatic firearm to a person." (Italics added.)
The court also instructed with CALCRIM No. 3515, which states, "Each of the
counts charged in this case is a separate crime. You must consider each count separately
and return a separate verdict for each one." The verdict forms also identified each count
and its corresponding victim.
2. Analysis
Megown argues that the trial court erred by failing to modify CALCRIM No. 875
regarding assault with a semiautomatic firearm, claiming that the error affected his
substantial rights and is not forfeited by his counsel's failure to request modification. He
asserts that, if we find his claim was forfeited by the failure to object below, he received
ineffective assistance of counsel. Megown concedes that the instruction correctly stated
the law in general terms, but claims that it does not correctly state the law in the context
of this case because he was charged with assault with a semiautomatic firearm against
two people, Michelle and Maria. The instruction, however, indicated that he could be
20
convicted if his acts would directly and probably result in application of force to
"someone."
He claims the instruction does not indicate that there must be an application of
force as to each victim to support a guilty verdict as to that victim. Thus, following the
letter of the instruction, he claims the jury could have concluded that the gun was pointed
only at one person but, because the gun was pointed at "someone," the evidence was
sufficient to establish assault with a semiautomatic firearm on both victims. Finally, he
argues that the error was not harmless beyond a reasonable doubt because the first jury
hung on the two counts after Maria's arrival which shows several members of the jury did
not believe either Maria or Michelle, or both of them.
Generally, a defendant who believes that an instruction is erroneous or requires
clarification must request correction or clarification of the instruction to avoid forfeiting
the issue on appeal. (People v. Carrington (2009) 47 Cal.4th 145, 189.) Where a
defendant did not object to the instructions, the contention is forfeited unless the
instruction affected the defendant's substantial rights. (Pen. Code, § 1259; People v.
Christopher (2006) 137 Cal.App.4th 418, 426-427.) Substantial rights are equated with a
miscarriage of justice, which results if it is reasonably probable the defendant would have
obtained a more favorable result had the correct instruction been given. (People v.
Christopher, at pp. 426-427.) We consider Megown's argument on its merits because
"[a]scertaining whether claimed instructional error affected the substantial rights of the
defendant necessarily requires an examination of the merits of the claim." (People v.
for resentencing even though trial court suggested it would not have stricken firearm
enhancement even if it had that discretion as the court was not aware of the full scope of
the discretion it now has under the amended statute].) We express no opinion regarding
how the court should exercise its discretion under Penal Code section 12022.53,
subdivision (h).
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is
remanded to the trial court with directions to (1) stay the sentence on count 10 under
Penal Code section 654, and (2) exercise its discretion whether to strike or dismiss the
firearm enhancements or punishment under Penal Code sections 1385, 12055.2,
subdivision (c) and 12022.53, subdivision (h), and, if appropriate following exercise of
31
that discretion, to resentence defendant accordingly. We further direct the trial court to
correct its minute order of the previous sentencing hearing to indicate that the sentence on
count 15 is stayed and, following resentencing, to prepare an amended abstract of
judgment reflecting all modifications. The court shall forward a certified copy of this
amended abstract to the Department of Corrections and Rehabilitation.
NARES, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
32
Filed 10/12/18
CERTIFIED FOR PARTIAL PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D072019
Plaintiff and Respondent, (Super. Ct. No. SCD264165)
v. ORDER MODIFYING OPINION AND CERTIFYING FOR KEVIN MEGOWN, PARTIAL PUBLICATION
Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on September 24, 2018, be modified as
follows:
The introductory paragraphs starting on page 1 immediately following the counsel
listing and ending on page 3 just prior to the factual background heading are deleted and
replaced as follows:
Kevin Megown beat Michelle R., the mother of his child. After one incident where Michelle's mother, Maria R., came to aid her, Megown threatened to kill both of them as he held a gun. A jury convicted Megown of violating a domestic violence restraining order (Pen. Code, § 273.6, subd. (a)), possessing an assault weapon (Pen. Code, § 30605, subd. (a)), and inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). It also found true allegations that he inflicted great bodily injury (Pen. Code, § 1192.7,
33
subd. (c)(8)) in circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). The jury also acquitted on some counts and could not reach a verdict on several others. Megown was retried on some of the unresolved counts.
A second jury convicted Megown of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), three counts each of criminal threats (Pen. Code, § 422) and assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). The jury also found true allegations that Megown personally used a firearm (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.5, subd. (a)). The trial court sentenced Megown to a total term of 17 years in prison.
Megown claims the trial court erred by: (1) admitting past uncharged acts of domestic violence under Evidence Code section 1109 with respect to the counts involving Maria, (2) admitting evidence of abuse that occurred more than 10 years before the charged crimes, (3) giving CALCRIM No. 875 (assault with a firearm) without modification, and (4) failing to stay the sentence on one of the criminal threats counts under Penal Code section 654. He also claims that the abstract of judgment should be amended to accurately reflect the trial court's oral pronouncement and that the cumulative effect of the above errors require reversal. In a supplemental brief, Megown argues that the matter must be remanded to the trial court so it may exercise its discretion in determining whether to strike the firearm enhancements.
In the published portion of this opinion, part I, we conclude the trial court did not err in admitting uncharged crimes evidence under Evidence Code section 1109 with respect to the counts involving Maria because the circumstances of these crimes involved domestic violence. We also conclude that the trial court did not err in admitting evidence of abuse that occurred more than 10 years before the charged crimes.
In the unpublished portions of our opinion, parts II through VI, we conclude that: (1) the trial court erred when it failed to stay the sentence on one of the criminal threats counts under Penal Code section 654, (2) the abstract of judgment should be corrected, and (3) the matter must be remanded to the trial court to exercise its discretion in determining whether to strike the firearm enhancements. We reject Megown's remaining arguments.
34
There is no change in the judgment.
The opinion in the above-entitled matter filed on September 24, 2018, was not
certified for publication. It appearing the opinion meets the standard for publication
certified in California Rules of Court, rule 8.1105(c), the request pursuant to rule
8.1120(a) for partial publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion, except for parts II through VI of the
Discussion, meets the standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED the words "Not to Be Published in the Official Reports" appearing on
page 1 of said opinion be deleted and replaced with the words "Certified for Partial
Publication" followed by a footnote designated with an asterisk, which shall read:
"Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication except for parts II through VI of the Discussion." It is further ordered the
opinion herein be published in the Official Reports in conformity with this order.
NARES, Acting P. J.
Copies to: All parties
35
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred by failing to stay the sentence on one of the criminal threats counts under Penal Code section 654 and by failing to exercise its discretion regarding firearm enhancements, necessitating a remand. The court otherwise affirmed the judgment, finding no abuse of discretion in the admission of prior domestic violence evidence.
Issues
Did the trial court abuse its discretion by admitting prior uncharged acts of domestic violence as to counts involving a victim other than the defendant's domestic partner?
Did the trial court err in admitting evidence of domestic violence occurring more than 10 years prior to the charged offenses?
Did the trial court err by failing to stay the sentence on one of the criminal threats counts under Penal Code section 654?
Must the case be remanded for the trial court to exercise its discretion regarding whether to strike firearm enhancements?
Disposition. Affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“We agree that the trial court erred when it failed to stay the sentence on one of the criminal threats counts under Penal Code section 654 and that the abstract of judgment should be corrected.”
“In a supplemental brief, Megown argues that the matter must be remanded to the trial court so it may exercise its discretion in determining whether to strike the firearm enhancements. We agree and remand for this limited purpose.”