P. v. Graves

Filed 11/28/06 P.v . Graves CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RONALD EDWARD GRAVES, JR.,
Defendant and Appellant.
F049345
(Super. Ct. No. F05905053-5)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Fresno County. William Kent
Hamlin, Judge.
Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Stan Cross, Assistant Attorney General, David A. Rhodes and Clayton S.
Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Ronald Edward Graves of corporal injury to a spouse
with a prior violation (Pen. Code, § 273.5, subd. (e), count 1),1 false imprisonment by
∗ Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
1 Further statutory references are to the Penal Code.

-- 1 of 6 --

2
violence (§ 236, count 2), and misdemeanor resisting (§ 148, subd. (a)(1), count 3).
Graves admitted two prior prison term enhancements (§ 667.5, subd. (b)). The court
sentenced Graves to a prison term of seven years as follows: the five-year upper term for
count 1, plus two years for the prison priors; the three-year upper term for count 2, which
was stayed pursuant to section 654; and credit for time served on count 3. Graves
appeals contending the trial court abused its discretion by admitting evidence of prior
domestic abuse and erred by imposing the upper term in violation of Blakely v.
Washington (2004) 542 U.S. 296. We will affirm.
FACTS AND PROCEDURAL HISTORY
On July 4, 2005, Nina McNeil called her mother, Evelyn,2 who had recently
married Graves. Graves answered the phone sounding “very upset.” In the background,
Nina could hear Evelyn crying and saying her face was swollen and he would not let her
leave. Nina hung up, called 911, and called her mother back. Evelyn was still crying;
Nina heard Graves say, “That’s what you get.” Nina drove to Evelyn’s apartment and
found Evelyn sitting on the front porch. Her face was swollen. Evelyn told Nina that
Graves had hit her face several times.
Fresno Police Officer Brandon Wiemiller was called to the scene. When he
arrived, medical personnel were treating Evelyn. The left side of her face was swollen
and the skin above her lip was torn. There were abrasions on her elbows and knee and
discoloration on her chest. There were old cut marks on her wrists but nothing to indicate
recent injury. Evelyn told Wiemiller that she and Graves had been drinking. When she
told Graves she wanted out of the relationship, he replied, “you’ve turned against me,”
and hit her. Graves punched her face several times as she was attempting to leave. When
2 The victim and appellant share the same last name. She is referred to as Evelyn;
he as Graves.

-- 2 of 6 --

3
he heard the police had been called, he left with his nine-year-old daughter, who was also
in the apartment.
Officers found Graves and his daughter several miles away on bicycles. They
were riding to the nearby residence of the child’s mother. Graves did not immediately
comply with the officer’s directives to stop and to get on the ground.
By the time of trial, Evelyn had reconciled with Graves. She testified that Graves
had not struck her. He had attempted to restrain her because she was cutting her wrists--
something she had done before when she was upset. She had been drinking heavily and
her injuries resulted from several falls she took that day.
Prior Domestic Abuse Evidence
Rebecca Cain had an off and on again relationship with Graves between 1994 and
2001. On several occasions when he had been drinking, they argued and he beat her.
She suffered black eyes, “busted lips,” broken toes, and finger and “stomach” injuries. In
2001, Graves beat her and attempted to choke her but released her when her daughter
Monay, who witnessed at least part of the altercation, threatened him with a rolling pin.
Monay, who was 18 when she testified, confirmed the details of her mother’s 2001
beating.
Defense
Graves did not present any evidence. In closing, he argued that Evelyn’s
statements to the investigating officers were not credible. The jury should believe her
trial testimony that Graves did not hit her; she had injured herself by falling.
DISCUSSION
Prior Abuse Evidence
Graves contends the court abused its discretion by admitting the testimony about
his previous domestic abuse. We disagree.
Evidence Code section 1109, subdivision (a)(1) provides: “(a)(1) Except as
provided in subdivision (e) or (f), in a criminal action in which the defendant is accused

-- 3 of 6 --

4
of an offense involving domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.”
In determining whether to admit such evidence, the trial court must consider
whether the probative value of the evidence is substantially outweighed by the probability
that its admission will necessitate undue consumption of time or create substantial danger
of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352;
People v. Soto (1998) 64 Cal.App.4th 966, 983.) The trial court has broad discretion in
making that determination and its exercise of discretion will not be disturbed on appeal
except on a showing the court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In weighing probative value against prejudicial effect, trial judges must consider
such factors as the nature, relevance, and possible remoteness of the prior abuse
evidence; the degree of certainty of its commission; 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 offenses, or excluding irrelevant though inflammatory details
surrounding the offense. (People v. Falsetta (1999) 21 Cal.4th 903, 917; People v.
Poplar (199) 70 Cal. App. 4th 1129, 1139.)
Applying that standard, we find no abuse of discretion. The trial court found the
prior offense very similar to the charged offense, not unduly inflammatory, and not
terribly remote. Further, the testimony would be brief so there would be no undue
consumption of time and, because the two victims were easily distinguishable, there
would be no confusion of issues.

-- 4 of 6 --

5
Graves asserts the challenged evidence was irrelevant, unnecessarily cumulative,
and inflammatory. Specifically, testimony regarding the 2001 offense was unnecessary
because, despite Evelyn’s recantation, other prosecution witnesses testified that Graves
had abused her and an expert on Battered Women’s Syndrome explained Evelyn’s
changed story. Thus, the 2001 evidence was not necessary for corroboration. Moreover,
because the evidence was cumulative, it was not very probative.
We disagree. Rebecca and Monay’s testimony describing Graves’s prior domestic
violence was no more inflammatory than the prosecution witnesses’ testimony describing
Evelyn’s abuse and injuries. There was no probability of confusing the jury with the
evidence of prior acts of domestic violence. The testimony required only 32 pages of
trial transcript. Finally, the evidence was highly probative. There was no direct evidence
that Graves had abused Evelyn. The investigating officers, Evelyn’s daughter Nina, and
Nina’s friend all testified that Evelyn told them that Graves had hit her. However, at
trial, Evelyn gave various excuses for reporting a beating to those witnesses and testified
that Graves had not hit her; she had injured herself falling because she was intoxicated.
In contrast, Rebecca and Monay offered direct testimony that Graves had beaten Rebecca
in a manner similar to that which Evelyn initially reported and the beatings caused similar
injuries to both victims.
Because we conclude there was no abuse of discretion, we need not consider
whether the ruling prejudiced Graves or deprived him of a fair trial. Further, Graves’s
contentions that admitting such evidence violates his right to due process and a fair trial
and that Evidence Code section 352 is not a “realistic safeguard” in protecting his due
process rights were rejected in People v. Falsetta, supra, 21 Cal.4th at pages 917-918.
Sentencing Error
Graves contends that imposition of the upper term violated his right to a jury trial
and due process under Blakely v. Washington, supra, 542 U.S. 296. As Graves concedes,

-- 5 of 6 --

6
the California Supreme Court rejected this argument in People v. Black (2005) 35 Cal.4th
1238. Accordingly, the trial court did not err in imposing the upper term.
DISPOSITION
The judgment is affirmed.

-- 6 of 6 --