NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury convicted Diego Garza of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a), 189; count 1), mayhem (Pen. Code, § 203; counts 2, 5), making criminal threats (Pen. Code, § 422; count 3) and stalking (Pen. Code, § 646.9, subd. (a); count 4). It found true allegations as to counts 1, 2 and 5 that Garza personally used a knife (Pen. Code, § 1192.7, subd. (c)(23)) and as to count 1 that he personally inflicted great bodily injury committed under circumstances involving domestic violence (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (e)). The court sentenced him on count 1 to life with the possibility of parole plus five years for the great bodily injury enhancement, a consecutive two-year midterm on the count 3 criminal threat conviction, and a consecutive eight months for the count 4 stalking conviction. It imposed but stayed under Penal Code section 654 the sentences on counts 2 and 5.
Garza contends the trial court violated his Fifth and Fourteenth Amendment rights to due process by admitting his prior uncharged acts of domestic violence against Cassandra Chavez. He additionally contends the court prejudicially abused its discretion and violated his right to a fair trial by admitting the acts over his counsel's Evidence Code section 352 objections. Finally, Garza contends the court should have stayed under Penal Code section 654 his sentence on his count 3 criminal threat conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In late summer or early fall of 2015, Gwendolyn Rodriquez ended her approximately four-year-long relationship with Garza, with whom she had lived for about three years. Rodriquez did not immediately move out of their apartment because she was concerned about Garza's young son who lived with them. She finally left early one morning after Garza confronted and screamed at her about where she had been after she had attended a soccer game with friends. After Rodriquez moved out, Garza sent her multiple communications through her phone and social media asking her why she did not go back to him or give him another chance, as well as threatening messages that he would kill himself if she did not go back to him, or kill them both.
In October 2015, Garza confronted Rodriquez in the early morning in the parking lot of her gym, asking her to give him another chance and blocking her from leaving her car, then taking her passport, car registration and driver's license. Rodriquez was able to escape after her mother drove by and saw them. A couple of weeks later, on October 29, 2015, Rodriquez again arrived at about 6:30 in the morning to her gym. She circled the parking lot to make sure Garza was not there, but after she parked and left her car, she saw him approach her. He asked her why she would not give him another chance and why she cheated on him, then said, "I will have to kill you" while he walked toward her. Seeing Garza had a knife, Rodriquez told him to stop, put it away and leave, and that she would start screaming. According to Rodriguez, Garza responded, "No, no, no, no. I have to kill you. I have to kill you now." Rodriquez started screaming and tried to run away, but Garza grabbed her by the shoulders and held her against him. Garza pulled out his knife and stabbed at Rodriquez as she screamed and fought him, even after she fell to the ground. She eventually escaped when Garza was distracted by a homeless man. Rodriguez was hospitalized with numerous slash wounds.
Before trial, the People moved under Evidence Code section 1109 to introduce evidence of five uncharged domestic violence incidents occurring in 2012 involving Cassandra Chavez, Garza's former girlfriend and mother of his child. Defense counsel sought to exclude her testimony under Evidence Code sections 350 and 352. During arguments, defense counsel objected that the incidents would be time consuming and confusing to the jury, requiring mini-trials for each of the acts. She argued that with regard to acts that were not included in police reports, there was no way for the defense to assess Chavez's state of mind or effectively cross-examine her. The prosecutor responded that each of the incidents was memorialized in restraining orders Chavez sought against Garza, and thus Chavez could be cross-examined with those if she were to provide inconsistent information. The prosecutor argued the evidence was relevant and admissible under Evidence Code section 1109. She further pointed out none of the incidents were remote, as all had happened less than four years earlier.
Expressly acknowledging it was required to conduct an Evidence Code section 352 analysis, the court excluded one of the incidents on grounds it was "qualitatively different" that what occurred in the present case, and was not specific enough to permit cross-examination. It admitted evidence of the other incidents, finding they were not remote and would promote the purpose of Evidence Code section 1109 as they were not more serious than the acts against Rodriquez.
At trial, Chavez testified that she and Garza had dated for three months in 2009 and conceived a child, who was born in 2010. They reconnected in 2011 and began living together. Chavez actually related only three incidents that had occurred in 2012. In one, Chavez and Garza argued and Chavez tried to leave, but Garza would not let her go. He pushed her on a bed, got on top of her and put his hand around her neck, choking her. Garza apologized and convinced Chavez to stay, but she ultimately filed for a restraining order against Garza as a result of that incident. Another incident occurred when Chavez again was collecting her things to leave and Garza would not let her go, telling her she was not going to go anywhere. When she was walking out, he grabbed her and slammed her against the wall, telling her again she was not going anywhere. Chavez ended up on the floor and Garza put a knife to her throat. Chavez was able to get away. She filed a police report on that incident. In a third, Garza became angry at Chavez after she went to one of her father's soccer games, grabbing her phone and throwing it in a fish tank. Chavez suffered a bruise on her nose as a result.
The court instructed the jury that it could consider evidence of the uncharged acts against Chavez (as well as others involving Rodriguez) only if the People had proved by a preponderance of the evidence that Garza had in fact committed the uncharged domestic violence. It further instructed the jury that if it decided Garza had committed uncharged domestic violence, "you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit the crimes charged here." The court instructed: "If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not such by itself to prove that the defendant is guilty of the crimes charged here. The People must still prove each charge and allegation beyond a reasonable doubt."
Garza did not testify or call witnesses in his defense.
I. Claim of Due Process Violation
Garza contends the court violated his due process rights under the Fifth and Fourteenth Amendments by admitting the prior uncharged domestic violence offenses under Evidence Code section 1109
The People first respond that Garza forfeited the constitutional claim by failing to present it to the trial court. We agree. "In order to preserve an evidentiary objection on appeal a party must make a timely objection in the trial court `so stated as to make clear the specific ground of the objection or motion.' [Citation.] The purpose of this rule is to give the trial court a concrete legal proposition to pass on, to give the opponent an opportunity to cure the defect, and to prevent abuse." (People v. Holmes (2012) 212 Cal.App.4th 431, 435-436, citing Evid. Code, § 353, subd. (a); see People v. Catlin (2001) 26 Cal.4th 81, 122-123 [claim that admission of other-crimes evidence violated defendant's state and federal constitutional right to a fair trial waived because it was not raised below]; People v. Bolden (2002) 29 Cal.4th 515, 546-547 [defendant did not preserve argument that court should have excluded test results under the federal Constitution's due process clause, among other objections, by failing to object on such grounds below].) In Holmes, the defense counsel raised a confrontation clause objection and was granted a running objection, which he renewed with each witness by stating, "hearsay" or "ongoing." (Holmes, at p. 436.) The appellate court rejected the People's claim he had forfeited his confrontation objections, because the "context makes clear that the court and opposing counsel were aware that the confrontation clause was the basis of the hearsay objection. . . ." (Ibid.)
Here, Garza's counsel's Evidence Code section 352 objections below did not rest on the same grounds as Garza's constitutional due process claim, and there is nothing in the context of his counsel's discussion of the matter that would give the People notice that those were the grounds she relied upon. We reject Garza's assertion in reply that his Evidence Code section 352 objections preserved his due process claim based on People v. Partida (2005) 37 Cal.4th 428. In Partida, the high court made clear that where a defendant objects at trial to the admission of evidence on the basis of Evidence Code section 352, and alerts the court to the nature of the evidence and basis on which its exclusion was sought, the defendant "may argue that the court erred in its ruling. But he may not argue that the court should have excluded the evidence for a reason different from his trial objection. If he had believed at trial, for example, that the trial court should engage in some sort of due process analysis that was different from the Evidence Code section 352 analysis, he could have, and should have, made this clear as part of his trial objection. He did not do so. Accordingly, he may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his Evidence Code section 352 argument." (People v. Partida, at p. 435.) Because Garza seeks to make different arguments on appeal to support his due process arguments for exclusion than his position that the evidence would be time consuming and result in mini-trials or would not permit sufficient cross-examination, he has forfeited his due process contention.
We need not address Garza's additional arguments against forfeiture, because we conclude his due process challenge is without merit in any event. This court and others have applied Falsetta, supra, 21 Cal.4th 903, which we are bound to follow, to reject similar due process challenges. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 704 [following the reasoning of numerous Courts of Appeal who have applied Falsetta to reject argument that admission of prior acts of domestic violence under Evidence Code section 1109 violates due process; under Falsetta, Evidence Code section 1109's grant of trial court discretion to exclude criminal propensity evidence under Evidence Code section 352 "`saves [Evidence Code] section  from defendant's due process challenge'"]; People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; People v. Johnson (2010) 185 Cal.App.4th 520, 529 [citing cases].) We agree in view of Falsetta and the numerous authorities following it, "the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)
II. The Trial Court Did Not Abuse its Discretion by Admitting the Uncharged Act Evidence Over Counsel's Evidence Code Section 352 Objection
We also conclude that Garza's challenge to admission of the evidence under Evidence Code section 352 is unavailing.
Evidence Code section 1109, subdivision (a)(1) provides in relevant part: "Except as provided in subdivision (e) . . . in 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 352, the court has discretion to 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." (Evid. Code, § 352.) As to the prejudice contemplated by this section, "`[t]he code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption "`substantially outweigh'" the probative value of relevant evidence, [an Evidence Code] section 352 objection should fail. [Citation.]' [Citation.] `[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.'" (People v. Nguyen (2013) 212 Cal.App.4th 1311, 1333.)
In Falsetta, supra, 21 Cal.4th 903, the court explained with respect to prior-sex-act evidence under Evidence Code section 1108: "[T]rial 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." (Falsetta, at pp. 916-917.)
We apply those principles here (accord, People v. Disa, supra, 1 Cal.App.5th at p. 671) and review for abuse of discretion the court's decision to admit the evidence of prior domestic violence acts as propensity evidence under Evidence Code section 352. (Disa, at p. 672.) Under that standard, "the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown, supra, 192 Cal.App.4th at p. 1233; see also People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Garza contends that because there was no meaningful dispute that he had committed the acts against Rodriguez, the ostensible purposes of Evidence Code section 1109—to use prior incidents to prove a defendant committed charged offenses of the same type—were not served. He further contends the acts of violence against Chavez were not similar to those committed against Rodriguez, and thus the evidence was "gratuitous" and "had no real probative value but (1) to portray Garza as the type of man who would callously leave the woman he impregnated with his own child, and only return after the child was no longer an infant; and (2) to portray him as having a criminal disposition." Finally, he contends allowing Chavez's testimony posed a risk of a mini-trial to adjudicate what had occurred between them, as he had not been charged or convicted of any crimes stemming from that relationship. According to Garza, he was prejudiced by the evidence like the defendant in People v. Disa, supra, 1 Cal.App.5th 654 because Chavez's testimony was used to support an inference that he had the propensity to commit all of the charged crimes and allegations, including the special allegation that he attempted to kill Rodriguez with premeditation and deliberation.
We are unpersuaded. Garza did not stipulate to committing the acts against Rodriguez. Indeed, his counsel sought in closing argument to discount Rodriguez's testimony because "there are no eyewitnesses to say that they ever saw Mr. Garza inflict any pain on Ms. Rodriguez" and "Ms. Rodriguez is the only person who can say who may have or who may not have inflicted these injuries" in the parking lot of her gym on the day in question. The question is whether the trial court properly determined the probative value of Chavez's testimony was not outweighed by any prejudicial impact, and because the incidents with Chavez were not remote, not more inflammatory that what happened in the present case, and showed Garza's tendency or propensity to do violence to his girlfriend when he was faced with her leaving or rejecting him in circumstances like those here, the court did not abuse its discretion to admit them as more probative than prejudicial under Evidence Code section 352, to prove Garza was inclined to, and did, act similarly with Rodriguez. Nor was the testimony about the three incidents involving Chavez unduly time consuming; they took less than 20 pages of trial transcript. We cannot say the prior incidents of domestic violence against Chavez are "the sort to evoke an emotional bias against defendant." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.)
Garza is not assisted by People v. Disa, supra, 1 Cal.5th 654. In Disa, the defendant admitted to putting his girlfriend in a chokehold and killing her. (Id. at p. 658.) At trial, the People presented testimony about a prior violent incident involving the defendant's ex-girlfriend in which the defendant entered an apartment he and she alternately used, hid in a closet and waited for several hours until she and her new partner came home, then left the closet at 3:30 in the morning and tried to stab both of them. (Id. at pp. 662-663.) Though the trial court had admonished the parties not to get into the details of the prior conduct, an officer nevertheless testified that the defendant waited over 12 hours in the apartment, including more than six hours hiding in the closet, then attacked the couple in the middle of the night with a knife, leaving the new boyfriend covered in blood and the bedroom blood-spattered. (Id. at p. 670.)
On appeal, the Court of Appeal held the trial court had properly determined the prior incident was admissible to show the defendant's propensity to commit domestic violence under Evidence Code section 1109, but the facts of that incident were not admissible to show premeditation and deliberation in the current case. (People v. Disa, supra, 1 Cal.5th at p. 673.) However, the trial court ultimately permitted evidence that was at odds with its ruling, and it should have excluded evidence of the defendant's extensive planning and waiting in the prior incident "[g]iven the serious risk the jury would improperly use the specific facts of defendant's past conduct to find premeditation and deliberation in the current matter. . . ." (Ibid.) The evidence of planning and waiting was "highly inflammatory and was not specifically relevant to the purpose for which the past incident of domestic violence was admitted, that is, to show a propensity to do violence to a partner or former partner." (Id. at pp. 673-674.) The Court of Appeal held the error prejudiced the defendant as the evidence of premeditation in the case at hand—defendant's use of a carotid restraint hold for 15 seconds after the victim went limp—was "underwhelming" (id. at p. 675) and "paled in comparison" to the evidence from the past incident of bringing a knife, hiding in a closet for hours, and attacking the victims in the middle of the night, leaving the partner and bedroom covered in blood. (Id. at p. 674.) Under those circumstances, it was reasonably probable the result would have been more favorable to the defendant had the jury not heard the "vivid," extensive and inflammatory evidence of the prior incident. (Id. at p. 675.)
Chavez's testimony concerning Garza's three acts of domestic violence against her was entirely unlike the vivid and extensive testimony of the officer in Disa, who recounted in detail a highly inflammatory prior domestic violence incident involving overwhelming evidence of planning and premeditation. Chavez's brief recounting of the background or history of her relationship with Garza was not unnecessary or irrelevant because it demonstrated that the prior incidents were of a domestic violence nature, and those facts do not come close to the sort of prejudicial facts related in Disa. There is nothing about the incidents involving Chavez—pushing her on a bed and choking her after an argument, grabbing her and slamming her against a wall and putting a knife to her throat after she tried to leave, or grabbing her phone after she returned from a soccer game causing a bruise to her nose— that would permit the jury to "improperly use the specific facts of [Garza's] past conduct to find premeditation and deliberation in the current matter. . . ." (People v. Disa, supra, 1 Cal.5th at p. 673.)
III. Imposition of Consecutive Term on Count 3 Criminal Threat Conviction
Garza contends the trial court erred and violated Penal Code section 654's proscription against dual punishment for a single act or course of conduct by finding the count 3 criminal threat was not "subsumed or incidental to the premeditated attempted murder" and then imposing a consecutive sentence on that conviction.
The People respond that the court correctly found Garza harbored two objectives on October 29, 2015: one to instill fear in Rodriguez and the other to kill her. They argue: "[Garza's] criminal threat was preceded by him asking Rodriguez why she had left him and why would she not give him another chance, suggesting the threat was another example of his attempts to manipulate her through fear. When she told him to go away, he grabbed her and started stabbing her." The People maintain Garza's threat "did not further or promote the attempted murder" and they point out he "could have attempted to murder Rodriguez without saying anything beforehand."
Penal Code section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654, subd. (a).) The statute "generally precludes multiple punishments for a single physical act that violates different provisions of law [citation] as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute." (People v. Newman (2015) 238 Cal.App.4th 103, 111-112.) "`"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (People v. Capistrano (2014) 59 Cal.4th 830, 885; see also People v. Correa (2012) 54 Cal.4th 331, 341.) It is not the temporal proximity of the offenses that determines whether the transaction is indivisible. (People v. Capistrano, at p. 886.) "`"The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced."'" (Ibid.) Accordingly, we review the court's express or implied determination that two crimes were separate, involving separate objectives, for substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Reviewing the court's determination of separate intents in the light most favorable to the judgment, and presuming in support of its finding the existence of every fact the trier of fact could reasonably deduce from the evidence (People v. Cleveland (2001) 87 Cal.App.4th 263, 266, 268-269), we conclude substantial evidence supports the court's decision not to stay Garza's sentence on count 3. Here, at least one of Garza's October 29, 2015 threats occurred while he walked toward Rodriguez with the knife, before he began stabbing her. As recounted by Garza in his reply brief, Rodriguez's testimony shows that on that morning, Garza first threatened to kill her as he was walking toward her and with the knife, after which Rodriguez had time to tell him to stop, put the knife away and leave. He then repeated his threats to kill her, grabbed Rodriguez as she tried to run way, and started stabbing her. The event was preceded by weeks of threats and communications by Garza to Rodriguez in an effort to convince her to return to him. His threat and the stabbings were thus separated by some break in time, and the court could conclude Garza harbored independent intents and objectives in first threatening and instilling fear in Rodriguez so as to again try to convince her to give him another chance, then actually stabbing Rodriguez with the objective of killing her. The evidence thus supports the court's finding Garza did not act in a single indivisible course of conduct and with a single objective. Though Garza argued the prosecutor had used his threats to prove the premeditation allegation on the count 1 conviction, the prosecutor also relied on Garza's decision to show up at Rodriguez's gym, his possession of a knife, and his decision to approach her. It was the court's obligation at sentencing to consider Penal Code section 654, and we look to the trial testimony to decide whether substantial evidence supports the court's finding. It does so here.
The judgment is affirmed.
HUFFMAN, Acting P. J. and DATO, J., concurs.