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Filed 2/29/16 P. v. Haff CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DERRICK MATTHEW HAFF,

Defendant and Appellant.

C076319

(Super. Ct. No. 13F5044)

As argued by the prosecution, and supported by the evidence, the brutal beating in 

this case began a cycle of violence and forgiveness often encountered in domestic 

violence cases, including a victim who recants, reunites with her abuser, and refuses to 

cooperate with the prosecution. Despite the victim’s minimization at trial of the damage 

to her jaw, head, teeth, tongue, and upper torso, a jury convicted defendant of corporal 

injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and mayhem (Pen. Code, § 203) and 

found he personally inflicted great bodily injury within the meaning of Penal Code 

section 12022.7, subdivision (e). On appeal, defendant Derrick Matthew Haff urges us to 

reverse the jury verdict for insufficiency of the evidence, instructional and evidentiary 

error, and ineffective assistance of counsel. We conclude his arguments are without

merit and affirm the judgment.
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FACTS

Because the victim felt abused by the system but loved her abuser and openly 

admitted her desire to help him, the prosecution relied foremost on the testimony of those 

who saw and heard her in the aftermath of the beating she sustained on March 15, 2013. 

Her neighbor first observed her stumbling toward her with a rag on her head. She 

testified she had never seen anyone beaten that badly in her lifetime: the victim’s eye 

was bulging out, she was covered in blood, she could not speak, her teeth were all 

“screwed up,” and it looked like her jaw was broken. The victim told her, “[H]e beat me 

up,” which the neighbor understood to be a reference to the victim’s boyfriend, 

defendant. The prosecution played a recording of the 911 call the neighbor made 

wherein she explained that the victim’s boyfriend beat up the victim, they had to get him 

arrested, and the victim’s mouth was too swollen to talk. The neighbor did not mention 

an injury to the victim’s tongue.

When the victim’s mother arrived within a few minutes, she saw her daughter 

“[b]ruised, bloody. She was a mess. Totally -- totally beat up.” Her face was swollen 

and she had bruises on her arms and legs. The victim told her mother that defendant had 

beaten her up, kicked her, and kicked her in the head. The mother also explained that her 

daughter suffers from a seizure disorder. She drove her daughter to the hospital.

A deputy sheriff contacted the victim in the emergency room. He observed a lot 

of swelling on the left side of her face, bruising all over her face, and bruises on her arms. 

The victim told him she had pain in her legs and ribs. He did not notice any injuries to 

her tongue, and he could understand what she was saying. He did not inspect the victim’s 

house because she told him “she cleaned up the scene prior to going to the neighbor’s 

house.” About two weeks later, he showed the victim a picture of defendant and she 

confirmed that he had assaulted her. Defendant was arrested on May 30, 2013.

A victim advocate from a program that serves victims of domestic violence 

testified the victim had been referred to her program on March 20, 2013. She placed the 
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victim in a motel and provided support services to her. During her initial meeting, she 

noticed red bruising on the right side of the victim’s face and around her neck. The 

following day, the victim had “raccoon eyes” that were black and blue under her eyes 

with more visible bruising on the right side of her face. She slurred her words and did 

not directly answer questions. By the 22d, her facial bruising was more black and blue, 

she had redness on her neck, the back of her neck and behind her ear was black and blue, 

she had trouble focusing, she had redness in the whites of her eyes, and she complained 

of pain in her jaw and the back of her neck. She had additional bruising on her upper left 

shoulder, the back of her left arm and around the whole arm, and she had a bad tooth. 

Eventually the victim advocate took the victim to the emergency room again.

The victim did not appear to testify as ordered. She was arrested and had spent the 

night in jail before she ultimately testified. She was angry with the district attorney and 

abrasive throughout her testimony. She told the trial judge, “I don’t have any answers. 

They really want to talk. So, I might not answer.” Shortly after she began to testify, she 

announced, “I’m done with this. I just want to go home, you guys.” She admonished the 

prosecutor to “[g]et to the point.” On many occasions she refused to answer the question, 

but she insisted, “I’m an honest fricking person for the most part unless I’m being a 

dick.” She purportedly remembered little of what had happened on March 15, 2013. 

When asked to read her prior statement to refresh her recollection, she claimed she was 

dyslexic. The court concluded, “[S]he was intentionally evading the Prosecutor’s 

questions on direct and feigning lack of knowledge.”

Despite her obstreperous demeanor, the victim did admit to certain salient facts. 

She admitted that she and defendant had broken up on March 15, 2013, she went to the 

hospital that same day, and she had bruises on her body from the assault on that day. She 

admitted she told an investigator that she had blood in her eyes, her tongue looked 

different because she had ‘bit a chunk off of it during the assault,” her mouth had been 

bleeding a lot, and there was a puddle of blood because she was unconscious for a few 
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hours. She told the investigator her forearms were black from bruising as a result of 

trying to deflect kicks to her face with her forearms. She admitted she was in love with 

defendant and she did not want him to get in trouble.

During cross-examination, the victim described her seizure condition. When she 

convulses she shakes, loses consciousness, and falls. She often awakes violently and 

does not remember the convulsion. She insists she has memory loss associated with her 

condition. She testified she had “no real recollection” about the assault and she relies “on 

what other people had told me had happened.” Nevertheless, she testified she remembers 

biting her tongue during her convulsions and needing stitches on one occasion. She 

testified she has scars from injuries caused by falling. She reported that during one 

convulsion sometime before February 2013 she fell on her face and broke a tooth.

The prosecution offered the testimony of an expert on behavior typical of victims 

of domestic violence. Often they recant or minimize their original accusations or refuse 

to testify due to fear of reprisal, to preserve a family relationship, for economic stability, 

or to preserve a relationship with an abuser they still love. This same expert met with the 

victim five months after the beating. The interview was recorded and excerpts played for 

the jury. Because the victim told him she had injured her tongue and the disfigurement 

was still visible, he went to her home to take a photograph. The victim also said she had 

broken a tooth and she thought the broken tooth had severed her tongue from her body. 

In explaining one of the photographs to the jury, the expert stated, “And the purpose of 

taking this photograph was she had pointed to the left side of her tongue as being where 

that portion had come off of, had been bitten off of. And that it was noticeably different 

from the more severed front section on the right where you can see it’s more straight and 

somewhat of an indentation there on the left.”

A prior victim of defendant’s cruelty testified for the prosecution pursuant to 

section 1109 of the Evidence Code. She had lived with him for eight or nine years,

during which time there were many incidents of reported and unreported abuse. She 
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testified she never reported the following injuries: a broken jaw, fractured ribs, a 

collapsed lung, broken tailbone, broken fingers, and a miscarriage. She described 

specific incidents of abuse that occurred on September 30, 2001, December 21, 2001, and 

January 20, 2005. In at least two of the incidents, defendant hit her in the face and chest 

area. The parties stipulated that defendant was convicted of corporal injury on a 

cohabitant for the December 21, 2001, incident.

Defendant appeals.

DISCUSSION

I. Sufficiency of the Evidence

Defendant challenges his conviction for simple mayhem. Penal Code section 203 

defines simple mayhem as follows: “Every person who unlawfully and maliciously 

deprives a human being of a member of his body, or disables, disfigures, or renders it 

useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is 

guilty of mayhem.”

While defendant conceded during closing argument he had inflicted corporal 

punishment on the victim, he insisted throughout the trial, and reiterates on appeal, that 

there is no substantial evidence he cut or disabled the victim’s tongue. There is no doubt 

the evidence of mayhem is weak. As defendant aptly points out, none of the witnesses 

who saw her immediately after the beating testified she complained about her tongue. 

There are no medical records her tongue was cut or disabled. Indeed, the first mention of 

the injury to her tongue was not until five months after the beating. During a telephone 

interview with an investigator from the district attorney’s office, the victim stated that at 

some point during the assault she “had bit a chunk outta [sic] my tongue,” and after the 

assault “[t]here was a chunk of my tongue on the floor.” As a result, she told the 

investigator, “[M]y tongue looks kinda [sic] weird.” He drove to her apartment to take 

photographs of her tongue, and those photographs were shown to the jury.
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Defendant reminds us of the routine principles guiding appellate review of the 

sufficiency of the evidence. We are not to look at snippets of the record but must review 

the evidence of mayhem in light of the entire record. (People v. Johnson (1980) 

26 Cal.3d 557, 577.) Some evidence is not enough to sustain a judgment. (Ibid.) Rather,

we must be able to point to evidence of solid value; that is, credible evidence that 

reasonably inspires confidence. (People v. Rountree (2013) 56 Cal.4th 823, 852-853.) In 

defendant’s view, the victim’s isolated and uncorroborated comment to an investigator 

five months after the beating does not constitute substantial evidence, particularly when 

the victim admitted lying to the investigator and no witness actually saw an injury to her 

tongue at the time of the beating. Moreover, at trial the victim testified that the assault 

did not cause her to bite off her tongue. In essence, defendant recycles on appeal the 

same argument the jury rejected at trial.

We have carefully reviewed the evidence of mayhem in the context of the entire 

record to determine whether it is sufficient to support the jury’s determination. The 

question, of course, is not whether we would have reached a different assessment, but 

whether the evidence is sufficiently credible, reasonable, and of solid value to satisfy the 

substantial evidence test. Defendant did an excellent job at trial exposing the weaknesses 

in the victim’s account to the investigator, including her motives for lying to him, her 

ongoing seizure condition, and the lack of permanent disfigurement. But on appeal he 

minimizes the evidence that supports the jury verdict and meets the threshold for 

affirming the judgment.

As mentioned, the victim told the investigator that during the assault she bit a 

portion of her tongue off and she saw a chunk of it on the floor. A single witness’s 

testimony alone constitutes substantial evidence. (People v. Young (2005) 34 Cal.4th 

1149, 1181.) In addition, the investigator followed up by taking a photograph of the 

victim’s tongue, which apparently revealed an ongoing disfigurement. Even defendant’s 

lawyer counseled the jury that not all tongues are symmetrical. It was the jury’s 
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prerogative, not ours, to evaluate the victim’s credibility and to determine if the 

photograph supported her description of the abnormality still present on her tongue.

Defendant ignores how closely the victim fits the profile of a repeat victim of 

domestic violence. In the context of the whole record, the jury could consider the 

expert’s explanation that victims often recant, minimize the violence they previously 

reported, and seek to protect their perpetrators. It is true, as defendant argued to the jury, 

that the victim suffered from a seizure condition and she may have bitten her tongue 

during one of those episodes. But the jury was free to reject that inference and believe, as 

the prosecutor contended, that as a classic victim of abuse she was feigning forgetfulness 

or boldly lying. In short, the jury may have found that her description of biting off a 

chunk of her tongue during the assault was more credible than her later testimony 

denying that it happened. The jurors were well informed about the dearth of 

corroborating evidence to support the belated report of the damage to her tongue, and yet 

they found beyond a reasonable doubt that defendant had cut or disfigured her tongue. 

We reject his argument that there was no substantial evidence to support it.

We also reject defendant’s contention that although he may have been punching 

and kicking her in the head, he is not guilty of mayhem if the victim bit off a piece of her 

own tongue. As support, he cites to a case in which the defendant personally bit the lip of 

his victim. (People v. Caldwell (1984) 153 Cal.App.3d 947, 950.) Because the facts in 

one mayhem case involve the direct maiming of the victim does not mean that causing a 

victim to maim herself by the direct use of force against her does not constitute mayhem. 

Indeed, as stated in People v. Nunes (1920) 47 Cal.App. 346, “If a person unlawfully 

strikes another, not with the specific intent to commit the crime of mayhem, and the blow 

so delivered results in the loss or disfigurement of a member of the body of the assaulted 

party or in putting out his eye, the crime is nevertheless mayhem.” (Id. at p. 349.) Thus,

defendant’s assault on the victim, which resulted in the cutting or disfigurement of her 

tongue, can constitute mayhem. There is ample evidence defendant assaulted the victim, 
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and therefore there is substantial evidence that the assault caused her to bite off a chunk 

of her tongue. He was properly convicted of the crime of simple mayhem.

II. Instructional Error

A. Great Bodily Injury

Given its historical underpinnings in the 19th century, the law on mayhem is 

somewhat anachronistic and no longer exists as a crime in many of our sister states. 

(People v. Santana (2013) 56 Cal.4th 999, 1003-1004 (Santana).) Nevertheless, 

California retains its mayhem statutes, including Penal Code section 203 as quoted above. 

Despite the absence of “great bodily injury” within the text of the simple mayhem statute, 

defendant contends the trial court committed reversible error by failing to instruct sua 

sponte that great bodily injury is an element of mayhem. The evolution of the crime may 

suggest ambiguity, but defendant cites no case that requires a court to instruct on great 

bodily injury. To the contrary, the language of the statute and recent cases suggest just 

the opposite.

Some of the conduct proscribed by the statute is quite general, whereas other 

conduct is described with specific particularity. A person who “deprives a human being 

of a member of his body, or disables, disfigures, or renders it useless” commits mayhem. 

But the Legislature goes on to identify very specific injuries, and so a person who “cuts 

or disables the tongue, or puts out an eye, or slits the nose, ear, or lip” is also guilty of 

mayhem. The Supreme Court is attuned to the distinction. In Santana, supra, 56 Cal.4th 

999, the court explained: “[S]ection 203 includes among the injurious acts constituting 

mayhem, cutting or disabling the tongue and slitting the nose, ear or lip. Nothing 

suggests that these injuries must involve protracted loss or impairment of function, 

require extensive suturing, or amount to serious disfigurement. While these examples are 

merely illustrative and do not constitute serious bodily injuries as a matter of law 

[citation], they underscore how imprecise and ill fitting the definition is for the statutory 

offense of mayhem.” (Santana, at p. 1010.)
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Adopting the Santana rationale, the Court of Appeal in People v. Robinson (2014) 

232 Cal.App.4th 69 also recognized that cutting or disabling the tongue, like slitting the 

nose, ear, or lip, does not require a separate finding of serious bodily injury. “[T]he 

California Supreme Court held that serious bodily injury is not an element of [Penal 

Code] section 203 and that CALCRIM No. 801, which included a requirement that the 

prosecution must prove that the defendant caused serious bodily injury, is erroneous. 

[Citation.] The court specifically noted that section 203 can be violated by cutting the 

tongue or slitting the nose, ear or lip, none of which are necessarily serious bodily 

injuries.” (Robinson, at p. 74.)

The courts in these cases, therefore, recognize that the Legislature has defined a 

subset of injuries—injuries to parts of the face—that are inherently egregious and are 

tantamount to great bodily injury. In those cases, the jury need not make a separate 

finding on great bodily injury. A cut or disabling injury to the tongue is on the list of 

injuries delineated by the Legislature that qualify as great bodily injuries. As a result, the 

court did not have a sua sponte obligation to instruct that great bodily injury is an element 

of mayhem.

Moreover, any instructional error would have been harmless beyond a reasonable 

doubt. The jurors certainly could have rejected the victim’s testimony that she bit her 

tongue during the assault and saw a chunk of it on the floor, but they did not. Thus, the 

record does not support an inference that the victim suffered a minor cut or an 

insignificant disabling injury. In finding mayhem based on a severed piece of tongue, the 

jury would have found the injury constituted great bodily injury beyond a reasonable 

doubt.

B. Lesser Included Offenses

Defendant argues the mayhem conviction should also be reversed because the trial 

court failed to instruct sua sponte on the lesser included offenses of assault and battery. 

The Attorney General does not dispute the general proposition that a trial court is obliged 
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to instruct on any lesser included offenses supported by the evidence (People v. Smith

(2013) 57 Cal.4th 232, 239), nor does she dispute that assault and battery are lesser 

included offenses of mayhem (People v. De Angelis (1979) 97 Cal.App.3d 837, 841). 

The question is whether there is substantial evidence from which reasonable jurors can 

conclude that the lesser offense, but not the greater, was committed. (People v. 

Breverman (1998) 19 Cal.4th 142, 162.)

Defendant again emphasizes how weak the evidence is that he caused the victim to 

bite off a portion of her tongue. He reminds us yet again that no one observed the 

abnormality near the time of the beating and no medical evidence corroborates the 

victim’s account, given five months later. In his view, a reasonable juror who had been 

properly instructed on simple assault and battery might have discounted the victim’s 

testimony and found defendant guilty of the lesser crimes. His argument suffers from a 

fundamental flaw—he is utilizing different evidence to support the lesser crimes than the 

evidence used to support the mayhem conviction.

The prosecution’s theory was that defendant caused the victim to bite off part of 

her tongue while beating and kicking her in the face. Based on the victim’s account to 

the investigator that was introduced as evidence at trial, either the jury believed her 

account and defendant is guilty of mayhem or it rejected her belated story. But if the 

victim did in fact sever her tongue, as the jury found, defendant’s conduct amounted to 

mayhem, not assault and battery. The evidence of beating and kicking supported the 

conviction for the corporal injury to a cohabitant, but it was the injury to the tongue that 

rendered the crime mayhem. Given the pivotal evidence that a tongue was severed, there 

was no substantial evidence warranting an instruction on assault and battery. In other 

words, there was no substantial evidence that if the victim bit off a chunk of her tongue 

defendant was guilty of the lesser included offenses of assault or battery, and the trial 

court did not err by not instructing on the lesser included offenses.
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C. No Obligation to Prove Crime was Committed on the Charged Date

The information charged that defendant committed corporal injury on a cohabitant 

causing great bodily injury and mayhem on March 15, 2013. At least two of the 

witnesses, the victim and her neighbor, could not remember precisely when the beating 

occurred. The defense did not rely on an alibi or lack of opportunity; in fact, the defense 

conceded defendant inflicted corporal injury on the victim on March 15, 2013. The trial 

court instructed the jury, in the language of CALCRIM No. 207, as follows: “It is 

alleged that the crime occurred on or about March 15, 2013. The People are not required 

to prove that the crime took place exactly on that day but only that it happened 

reasonably close to that day.”

Defendant argues that the instruction undermined his defense to the mayhem 

charges and the allegation he inflicted great bodily injury upon the victim and denied him 

due process. He acknowledges he inflicted a corporal injury on the victim on March 15, 

but he disputes the nature and severity of the injury. He insists that the victim may have 

bitten her tongue during one of her seizure episodes and not as a result of the corporal 

injury he inflicted on March 15. By allowing the prosecutor to prove that the crime took 

place reasonably close to March 15, he concludes the jury may have convicted him of a 

mayhem he did not commit and found he inflicted great bodily injury when he did not. 

We disagree.

Ordinarily, the prosecution need not plead or prove the exact time of commission 

of an alleged crime. (People v. Barney (1983) 143 Cal.App.3d 490, 497.) A limited 

exception applies, however, when the defendant urges an alibi defense and the exact time 

of the commission of the crime becomes critically essential to establishing an alibi. Here 

the defense was not predicated on an alibi or lack of opportunity. As a consequence, the 

“on or about” instruction did not “deflect the jury’s attention from a crucial temporal 

element for which the defendant had an alibi.” (People v. Richardson (2008) 43 Cal.4th 

959, 1028.) We agree with the Attorney General that nothing in the challenged 
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instruction impeded defendant from presenting evidence that the victim sustained her 

injuries during a different assault or as a result of a fall during a seizure.

III. Propensity Evidence

Evidence Code section 1109 allows evidence of prior acts of domestic violence to 

be admitted to show a defendant’s propensity to commit such acts. (Evid. Code, § 1109, 

subd. (a)(1).) A trial court’s admission of evidence of prior acts of domestic violence 

will not be disturbed on appeal absent an abuse of discretion. (People v. Poplar (1999) 

70 Cal.App.4th 1129, 1138.) Defendant contends the trial court abused its discretion by 

indiscriminately allowing evidence of multiple acts of domestic violence against one of 

his former partners that were dissimilar to the manner in which he pummeled the victim 

in this case. He asserts that because admission of the prior episodes was far more 

prejudicial than probative, the trial court’s abuse of discretion amounted to a denial of 

due process. We can find no abuse of discretion and no denial of due process.

The admissibility of the propensity evidence challenged on appeal was thoroughly 

litigated during in limine proceedings before trial. The trial court provided a reasoned 

analysis of the probative value of the evidence and carefully weighed the probative value 

against the inflammatory nature of the prior acts of domestic violence. The court 

explained: “As to the incidents involving Laura Lucero in 2001, 2003 and 2005, the 

thing that strikes me about that, and the reason I am going to allow the People to 

introduce that evidence under [Evidence Code section] 1109, is that based on the 

information that has been provided to me in the prosecutor’s trial brief, it appears that the 

defendant[’]s habit in these situations of domestic violence is to strike a female victim 

with whom he has a relationship in the face and chest area multiple times. They appear 

to be driven to a certain extent by jealousy.

“In this relationship with the female the force used is extreme force and the focus 

seems to be on the victim’s head, which is -- or Ms. Lucero’s head in this particular 

situation -- which seems to be nearly identical to what the prosecutor has indicated is the 
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state of the evidence or what they believe the evidence will show in this particular case. 

So it shows to me that the defendant has a pattern of using physical violence against the 

person that he’s having a relationship with -- dating or otherwise -- and that demonstrates 

a course of conduct, a predisposition to commit these offenses to get what he wants out of 

the situation or to punish the other party for whatever he feels he’s been wronged or 

something of that nature.

“So the acts are very similar so the probative value is very high and it substantially 

outweighs any risk of prejudice in evaluating under Evidence Code [section] 352. I think 

it’s highly relevant to the jury to understand that this is the way that the defendant has 

acted in the past and for the People to argue that what occurred with the victim in this 

particular case is consistent with the past behavior of the defendant.

“So for those reasons primarily I’m going to allow the evidence in. Also, the time 

frame of these incidences is not too remote, considering the fact that the defendant has 

been in and out of custody either for committing new offenses or for parole violations, so 

he hasn’t remained free from custody for a significant period of time, which also 

mitigates the issue of it being too remote in time and prejudicing the defendant. So all 

the requested incidents -- if I didn’t state them all -- involving Ms. Lucero, I would admit 

her testimony under [Evidence Code section] 1109.”

As a result of the trial court’s ruling, Lucero testified to a number of incidents of 

domestic violence that occurred during the eight or nine years she lived with defendant. 

She testified defendant hit her on at least 10 occasions. She described several of the 

incidents in graphic detail. The shortened version of defendant’s acts of domestic 

violence in 2001 and 2005 follows.

On September 30, 2001, Lucero criticized defendant over a minor transgression. 

Enraged, he tore off the front of her shirt and proceeded to hit her in the face and chest 

area. A couple of months later during an argument about defendant’s using Lucero’s car, 

he threw her on the bed, hit her with a lamp, slapped her, and punched her in the face. 
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The parties stipulated that defendant was convicted of felony corporal injury on a 

cohabitant (Pen. Code, § 273.5) for the December 21 incident. In January of 2005

Lucero’s makeup triggered another violent response from defendant. Angry because he 

believed she was wearing too much makeup, defendant blew out the pilot lights, turned 

on all the gas appliances, and attempted to blow up the house.

Lucero also described injuries she never reported to the police. As a result of 

many other acts of domestic violence, she testified, she suffered a broken jaw, fractured 

ribs, a collapsed lung, a broken tailbone, broken fingers, and a spontaneous miscarriage.

On appeal, defendant dissects each incident to demonstrate how dissimilar the 

violence against Lucero was from the violence he perpetrated against the victim in this 

case, and how the trial court should have sanitized the evidence to render it less 

inflammatory. For example, he finds nothing similar about picking up Lucero and 

throwing her to the ground, causing a miscarriage and a broken tailbone, and beating the 

victim here in the face and chest. And he suggests the court should not have allowed 

testimony of the miscarriage, along with many of the other injuries including a broken 

jaw, because those injuries were far more inflammatory than the injuries the victim here 

suffered to her face, tongue, and upper body. His argument is utterly without merit.

The trial court carefully evaluated the probative value of the evidence and 

concluded that in each instance defendant flew into a violent rage over minor irritations 

with a domestic partner. Many times, he took advantage of the women’s vulnerability 

and exerted terrible force to their faces, heads, and chests. We cannot say the court’s 

assessment of the similarity of defendant’s acts of domestic violence constituted an abuse 

of discretion. To the contrary, we agree with the court that defendant’s pattern of abuse, 

which included exceedingly violent beatings of a woman, targeting primarily her head, 

face, and chest, was evident in his abuse of Lucero and the violence he inflicted on the 

victim in this case. Nor do we accept defendant’s premise that the prior acts must be 

nearly identical to the present charges. Defendant’s abuse of these women had sufficient 
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common denominators from which the jury could infer that a man who was easily 

provoked by a domestic partner over minor annoyances, to the point of forcefully striking 

her in the face and chest, was likely to resort to the same type of violent outburst 

whenever a female cohabitant irritated him.

Defendant objects most vociferously to the admission of evidence that he tried to 

blow up Lucero’s house, an act he insists bears no resemblance to hitting and kicking this

victim in the face. We find no abuse of discretion in allowing his prior partner to 

describe yet another incident demonstrating the degree of rage defendant displays in his 

ongoing violent rampages against his domestic partners. The prosecution was not limited 

to propensity evidence that involved only injuries to a woman’s face.

We also reject the notion that the court erred by failing to sanitize the prior 

conduct to render it less incendiary. Defendant minimizes his own violent behavior by 

focusing exclusively on the injury the victim sustained to her tongue. But he ignores the 

testimony of every witness who observed her in the hours and days following the beating. 

Her neighbor expressed surprise she even survived such a brutal attack. Her neighbor, 

mother, and domestic violence victim advocate described how disoriented she was, how 

badly her face was swollen and bruised, and how much difficulty she had talking and 

walking. We therefore disagree with defendant’s assertion that Lucero’s testimony was 

far more inflammatory than the evidence of how defendant had beaten the victim and the 

numerous injuries she suffered. Actually, defendant’s abuse of Lucero was no more 

likely to incite the jury’s passions than the equally outrageous beating and kicking he 

inflicted on the victim here.

In sum, the trial court carefully considered the probative value of the propensity 

evidence as allowed by Evidence Code section 1109 and weighed the probative value 

against the risk of prejudice as dictated by Evidence Code section 352. The court’s 

decision to admit evidence of defendant’s prior acts of domestic violence against Lucero 

was well within its discretion. We can find no abuse of discretion.
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IV. Ineffective Assistance of Counsel

Defendant recasts each of the issues discussed above as an ineffective assistance 

of counsel claim. He bears the burden of proving counsel’s performance was 

constitutionally deficient and that he suffered prejudice as a result of the incompetent 

representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692

[80 L.Ed.2d 674].) Because we have rejected each and every one of his claims, 

defendant cannot show that defense counsel’s performance was constitutionally deficient. 

He had no obligation to raise futile objections to jury instructions, and he could have had 

tactical reasons for foregoing objections to those that would have made no difference. 

Moreover, because all of the asserted errors on appeal are without merit, he suffered no 

prejudice from the defense his lawyer provided.

DISPOSITION

The judgment is affirmed.

 RAYE , P. J.

We concur:

 NICHOLSON , J.

 MAURO , J.