Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge, Super. Ct. No. BF118037A
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Miguel Angel Ayon appeals from the judgment entered following a jury trial in which he was convicted of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), two misdemeanor counts of violating a court order (§ 273.6, subd. (a)), and one misdemeanor count of resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)). Appellant contends the trial court erred by (1) restricting his use of leading questions during cross-examination of the victim, and (2) restricting his cross-examination of the victim regarding her arrest and incarceration after failing to appear as a witness at appellant’s trial. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On December 18, 2006, appellant appeared in the Kern County Superior Court and was issued a written order, ordering him not to annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property, or otherwise disturb the peace of the victim, J.O. He was further ordered not to have any personal, telephonic, or written contact with J.O.
On February 13, 2007, police came to J.O.’s apartment in response to a domestic violence call. When contacted, J.O. was doubled over, crying and holding her left side. She had redness on both sides of her neck and some discoloration on the right side of her mouth.
J.O. told police that she lived with appellant and that he was the father of her children. J.O. was visibly pregnant and told police that appellant was also the father of her unborn child.
In explaining her injuries, J.O. said that she and appellant were arguing. He accused her of seeing another man when she went to the welfare office that morning. Appellant put his hands around J.O.’s neck and squeezed. He also grabbed her from behind, put his fingers into her mouth like a fishhook and squeezed. As J.O. tried to leave the room, appellant punched her in the stomach.
On February 14, 2007, police officers Matthew Roy and his partner, Jaime Getz, came to J.O.’s apartment in response to another domestic violence call. Officer Roy went to the front door, while Officer Getz went around to the back door.
When J.O. opened the front door, Officer Roy saw the back door was open and heard Officer Getz yell, “Put your hands up!” Officer Roy ran through the apartment and removed his service pistol from its holster. Once he could see appellant through the back window, he aimed his pistol at appellant because appellant had only one hand up in the air and the officer could not see where appellant’s other hand was.
Eventually, appellant put both his hands up. Officer Roy holstered his pistol and started to handcuff appellant. After he handcuffed appellant’s left hand, he had trouble handcuffing appellant’s right hand because appellant kept pulling it away from him. This went on for three to four seconds, until other officers came over and assisted him in handcuffing appellant.
Officer Getz testified that when she saw appellant come out the back door of J.O.’s apartment, she commanded him to stop and put his hands up. Appellant began to put his hands up but then put them back down. Officer Getz repeated her command three times. Each time, she took a step closer to appellant. The last time, Officer Roy came out the back sliding-glass door. Officer Getz went to assist Officer Roy handcuff appellant. Shortly, a third officer arrived. All three officers ended up falling on the ground because appellant kept pulling away from them.
Officer Getz spoke to J.O. Officer Getz observed that J.O. had bruising and redness around her neck and face. J.O. said these injuries were from the previous night.
Shortly into J.O.’s testimony, the trial court allowed the prosecutor to ask J.O. leading questions pursuant to Evidence Code section 767. J.O. denied that appellant ever attacked her physically and claimed she could not recall making statements attributed to her by police officers.
On cross-examination, J.O. claimed that Officer Roy shoved her against the wall when he came into her apartment; a claim Officer Roy denied. She also described him pulling his gun out in front of her one-year-old child, and officers tackling appellant and holding him to the floor with a gun to his head. J.O. testified she started experiencing pain and bleeding related to her pregnancy after Officer Roy shoved her to the wall.
J.O. further testified on cross-examination, that a district attorney investigator called and threatened to have her children taken away from her if she did not come to court to testify in the instant case. Later, two women came and gave her a subpoena and threatened to stop her cash aid if she did not come to court.
District Attorney Investigator Diana Kadel testified that she did call J.O. and tell her she had a subpoena for her but denied that she made any threats to J.O. regarding having her children taken away or her cash aid stopped. Kadel did warn J.O. that a warrant could go out for her arrest.
Nada Yorke testified as an expert on battered women’s syndrome. Yorke testified, among other things, that it is common for victims of domestic violence to later recant their claims against their abusers and to become uncooperative with law enforcement and the legal process.
The prosecution also presented evidence of two prior incidents of domestic violence by appellant against J.O. On October 3, 2005, Officer Rick Wimbish came into contact with J.O. while responding to a domestic violence call. She was upset and had red, “fingertip shaped” marks on her neck. J.O. told Officer Wimbish she and appellant were arguing and appellant accused her of cheating. She was lying on the bed, when he tried to hit her with his fist. She moved and he struck her hip.
Later, while J.O. was in the kitchen, appellant came up behind her and told her he was going to cause her to lose the baby she was pregnant with and of whom he was the father. Appellant put both his hands around J.O.’s neck and began to choke her. J.O. felt like she was starting to go unconscious. After appellant choked her, he hit her again with his fists. J.O. kicked him away. The apartment manager came to collect the rent and appellant again accused J.O. of cheating and tried to attack her with his fists.
On July 14, 2006, Officer Jesse Gracia responded to a domestic violence call. He made contact with a woman who identified herself as “Rebecca Romero.” He later learned the woman was actually J.O. Officer Gracia testified that J.O. appeared upset and surprised to see him. When he asked her what happened, J.O. said she and appellant had argued because she was planning to leave him. After the argument, she went to feed her child. Appellant came up behind her, grabbed her hair, and cut a chunk of hair out of the back of her head with a large pair of scissors. Appellant told her he was cutting her hair to make her look ugly so nobody else would want her. Officer Gracia observed that a large amount of hair, about two to three inches, had been cut from the back of J.O.’s head.
J.O. told Officer Gracia that she attempted to leave the apartment, but appellant walked over to the door and blocked the exit. When she tried to walk past appellant, he smacked her across her stomach with his open hand. J.O. told Officer Gracia she did not want any criminal action taken against appellant; she just wanted him to leave. She also said she would not go to court to testify against appellant.
DISCUSSION
I. Restriction of Leading Questions on Cross-examination of the Victim
Appellant contends the trial court improperly restricted his statutory right to ask leading questions of J.O. during cross-examination, thereby violating his confrontation and due process rights under the state and federal constitutions. We disagree.
Before calling J.O. as the first witness, the prosecutor advised the trial court that, depending on J.O.’s responses, she might ask the court to deem J.O. a hostile witness and allow her to ask J.O. leading questions pursuant to Evidence Code section 767 (section 767). The prosecutor further stated: “I have a citation here that People vs. Gray, where a witness is called by the Prosecution as a hostile witness, use of leading questions on cross-examination by the defense is not permitted.” The trial court replied, “I think that’s the law.”
Evidence Code section 767 provides, in relevant part: “(a) Except under special circumstances where the interests of justice otherwise require: [¶] (1) A leading question may not be asked of a witness on direct or redirect examination. [¶] (2) A leading question may be asked of a witness on cross-examination or recross-examination.”
The parties on appeal agree that this was a reference to People v. Grey (1972) 23 Cal.App.3d 456.
Subsequently, the trial court permitted the prosecutor to ask J.O. leading questions pursuant to section 767. The defense did not object. During the defense’s cross-examination of J.O., the trial court sustained objections to three questions on the basis they were leading. Generally, however, defense counsel refrained from leading the witness on cross-examination.
Appellant now contends the trial court improperly restricted his right to ask J.O. leading questions during cross-examination on the basis that she was hostile to the prosecution. Appellant recognizes that the restriction of the use of leading questions on cross-examination rests in the sound discretion of the trial court. (People v. Spain (1984) 154 Cal.App.3d 845, 851-854 (Spain) [trial court did not abuse its discretion by restricting defendant’s use of leading questions while cross-examining defendant’s mother].) Appellant’s argument essentially consists of the assertion that the trial court was unaware of the scope of its discretionary power under section 767 and therefore did not exercise its discretion but arbitrarily restricted the use of leading questions. Appellant relies on the following language in Spain, supra, 154 Cal.App.3d at p. 853:
“If the prosecution is permitted to ask a hostile witness leading questions on direct, should the defendant be foreclosed such questions on cross-examination? The answer may not be the same in all cases, as the witness may be hostile to the prosecution for a reason other than favoritism to the defense. Accordingly, the decision to foreclose such questions must again be vested in the trial court’s discretion.” (Italics added.)
Appellant complains that the trial court failed to engage in an analysis of whether J.O. was hostile to the prosecution because she favored the defense or for some other reason, “such as her incarceration to secure her testimony, and statements to her that she might lose her children and cash aid if she did not cooperate.” “Instead,” appellant asserts, “the trial court arbitrarily assumed that any prosecution witness who the prosecution is permitted to lead on direct questioning, should not be asked leading questions on cross-examination.” Appellant contends the “arbitrary denial of [his] state created right under [section] 767” violated his confrontation and due process rights.
Initially, we agree with respondent that appellant waived his constitutional claims by failing to raise them in the trial court. “A prerequisite to raising an issue for appellate review is an objection in the trial court thus preserving the issue for the appeal court. … The rule also requires the objection be made on the same grounds urged on appeal. [Citation.]” (People v. Derello (1989) 211 Cal.App.3d 414, 428.) It is unfair and inefficient to permit a defendant to raise a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. (People v. Saunders (1993) 5 Cal.4th 580, 590.) “Except for a handful of express constitutional rights that are deemed particularly ‘fundamental’ and personal, defense counsel is fully authorized to waive rights of constitutional dimension ... by not raising an objection or making a particular motion.” (People v. Williams (1998) 61 Cal.App.4th 649, 656.)
Here, defense counsel did not raise any objection to the trial court’s ruling to restrict the use of leading questions during the cross-examination of J.O. It is also apparent from the record that defense counsel attempted to abide by the trial court’s ruling and did not seek to lead the witness, asking only three isolated questions the trial court deemed leading throughout his entire cross-examination of J.O. We thus disagree with appellant’s assertion in his reply brief that “defense counsel’s use of leading questions in the face of sustained objections constitutes sufficient objection in the trial court.” Moreover, appellant cites no authority holding that the right to ask leading questions on cross-examination is a matter of constitutional dimension that cannot be waived. Indeed, Spain appears to support the contrary conclusion:
“While agreeing with defendant that a restriction on leading questions is important, we disagree that it is a matter of constitutional dimension. The defendant’s confrontation right permits him cross-examination [citation], but the form such cross-examination takes is a matter within the trial court’s discretion. [Citations.] As long as the defendant is fairly permitted to confront and cross-examine the witnesses against him, his constitutional rights are unimpaired. The defendant has erroneously attempted to equate his statutory right to use leading questions [citation] with his constitutional right of confrontation [citations]. The two are not necessarily coextensive.” (Spain, supra, 154 Cal.App.3d at pp. 853-854, fn. omitted, first italics added.)
For these reasons, we find appellant waived his current challenge to the court’s ruling to restrict the use of leading questions on cross-examination of J.O.
We also reject appellant’s assertion that the trial court was unaware of the scope of its discretion and thus failed to exercise its discretion under section 767, instead arbitrarily restricting the use of cross-examination on the ground J.O. was hostile to the prosecution. To establish error, appellant has the burden of affirmatively showing that the court failed to exercise its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’”]; People v. Penoli (1996) 46 Cal.App.4th 298, 305-306 [“[o]rdinarily, ... a trial court’s reasons for ruling in a particular manner are not reviewable on appeal,” but “[a]n exception is made ... when the court’s comments unambiguously disclose that it failed to pass on the merits of the issue [citation], or that its ruling embodied, or rested upon, a misunderstanding of the relevant law” (italics added)].) Appellant has not met that burden.
Appellant relies on the trial court’s response (“I think that’s the law”) to the prosecutor’s statement, “I have a citation here that People vs. Gray, where a witness is called by the Prosecution as a hostile witness, use of leading questions on cross-examination by the defense is not permitted.” Contrary to appellant’s suggestion, the court’s brief comment does not unambiguously demonstrate that the court did not understand the scope of its discretion under section 767. Assuming the court was familiar with the case the prosecutor was citing, the court could simply have been acknowledging that case set forth the applicable law, rather than necessarily agreeing with the prosecutor’s abbreviated description.
Indeed, People v. Grey, supra, 23 Cal.App.3d 456 (Grey) sets forth the discretionary nature of a court’s restriction of the use of leading questions and is entirely consistent with the court’s holding in Spain, supra, 154 Cal.App.3d 845, which appellant claims is controlling here. Grey held the trial court did not abuse its discretion under section 767 by restricting the defense’s use of leading questions on cross-examination of the defendant’s fiancée, where her testimony and demeanor during direct examination indicated she was inclined to favor the defense. (Grey, supra, at pp. 463-464.) The court cited the official comment to section 767, which states: “‘The court may also forbid the asking of leading questions on cross-examination where the witness is biased in favor of the cross-examiner and would be unduly susceptible to the influence of questions that suggested the desired answer.’” (See Grey, supra, at p. 464, fn. 11.) Over a decade later, the Spain court found Grey was “directly on point” and similarly concluded that the trial court properly exercised its discretion under section 767 to restrict leading questions on cross-examination of the defendant’s mother “who had demonstrated her obvious and natural bias in favor of defendant.” (Spain, supra, 154 Cal.App.3d at pp. 852, 854, italics added.)
Thus, both cases stressed that the key consideration in the court’s exercise of discretion to restrict a defendant’s use of leading questions on cross-examination was whether there were indications the witness favored the defense, not simply whether the witness was hostile to the prosecution. There is no basis in the record for us to conclude that the trial court here did not consider this issue or that it was not aware of the scope of its discretion when ruling to restrict leading questions on cross-examination of J.O. under section 767. Moreover, as discussed above, if appellant believed the trial court’s understanding of the applicable law was flawed or its ruling was in error, it was incumbent on the defense to raise an objection and create an adequate record for appellate review. Because appellant failed to do this, we must presume the trial court understood the law and was aware of the scope of its discretion when it prohibited the use of leading questions during cross-examination of J.O.
Finally, we find, and appellant does not dispute, there was ample indication in the record that J.O. was biased in favor of the defense such that the trial court could properly exercise its discretion to restrict leading questions on cross-examination pursuant to section 767. Furthermore, we reject appellant’s assertions that the court’s ruling precluded the defense from conducting an adequate cross-examination of J.O. or inquiring into whether there were other reasons, besides favoritism to the defense, for her to be hostile to the prosecution. In that regard, defense counsel elicited testimony that prosecution investigators threatened to have her children taken away and her cash aid stopped if she failed to cooperate with the subpoena compelling her appearance at appellant’s trial. We thus find neither an abuse of discretion or prejudice to appellant.
II. Restriction of Cross-examination of the Victim Regarding Her Arrest and Incarceration
Appellant contends the trial court improperly excluded evidence regarding J.O.’s arrest and incarceration after failing to appear as a witness at trial in violation of appellant’s due process and confrontation rights. According to appellant, the defense sought to introduce this evidence in order to impeach the prosecution expert and show there were other explanations, besides battered women’s syndrome, for J.O.’s lack of cooperation and hostility towards the prosecution.
Having reviewing carefully the record of the motions in limine and the recorder’s transcript references cited by appellant, we can find no motion by the defense to introduce evidence of J.O.’s arrest and incarceration. Rather, appellant’s citations refer to a discussion regarding the prosecution’s motion under Evidence Code section 1107, to introduce expert testimony on battered women’s syndrome. The prosecution asserted that “because … we have a recanting uncooperative victim, it’s going to be important to layout the foundation for the jury to understand the mentality of a victim under these circumstances.” In response, defense counsel argued that the evidence was not relevant “because, as to the, so-called, recanting of the victim, there’s other explanations that could very well explain very clearly the reasons why the witness … was so angry at the time of the preliminary hearing.” A little later, defense counsel reiterated his argument that evidence of battered women’s syndrome was not relevant, and there might be other explanations for why J.O. was hostile to the prosecution at the preliminary hearing, concluding:
“[T]he issue here is whether or not the conduct of that witness, when she was here, present in court, during the preliminary hearing, is consistent with someone who’s suffering from the syndrome, women battered, whatever, or, someone who simply was angry at the District Attorney’s Office, not her, or law enforcement officers, for having her beat up in the past, and having a number of things and issues that could have explained that.”
In ruling on the motion, the trial court stated: “The point that you brought up, I think could be covered in cross-examination. [¶] I’m going to grant the motion in limine.”
Appellant also cites to a brief discussion concerning the prosecution’s motion that J.O., who was in custody, should not be brought into the courtroom in shackles because it would be prejudicial to the prosecution. Defense counsel opposed the motion, arguing:
“I think that it’s very prejudicial on the matter that this lady has been treated, and when going back again to the issue that we were talking about, the women’s battered syndrome, and all that stuff, this is exactly why that woman is so hostile to this case, and to the proceedings here, because the way she has been treated.
“So, I think that the jury has a right to see how she has been treated, when she has been order[ed] by this woman, Diana, whatever her name is, handcuff[ed], she’s the one who requested that, and because of that, she was taken into custody and booked. [¶] … [¶]
“I want her to be brought in shackles, so they can see what they [have] done to this woman, to force her to tell the story that they want her to tell.”
After consulting with the bailiff regarding whether there might be a security issue, the trial court granted the prosecution’s motion, stating, “Now I’m not saying some things can’t be asked of her on cross-examination, but, she doesn’t have to be shackled.”
The first mention of any restriction on evidence concerning J.O.’s arrest and incarceration was made by the prosecutor before she called J.O. to testify. The prosecutor stated: “Since I will be calling [J.O.] as my first witness, I would like the opportunity before she does begin to testify to have her instructed as to the motions in limine with respect to what she can testify to pertaining to the bench warrant and being arrested, because she doesn’t know about that.”
After J.O. was sworn in, this discussion occurred:
“THE COURT: All right. The reason that we brought you in before the jury got here is I’ve made some rulings that I’m ordering you now and I will expect you to follow. And those rulings are that you are not to discuss the fact that you were recently incarcerated or arrested I guess on Tuesday morning.
“THE WITNESS: Um-hmm.
“THE COURT: That is not relevant in this lawsuit at the present time, so you are not to discuss that.
“THE WITNESS: Um-hmm. [¶] … [¶]
“[DEFENSE COUNSEL]: Yes, your Honor. If I understand, correctly, what you instructed the witness is that at this moment this is not relevant; is that right?
“THE COURT: Well, and until something changes that makes it relevant.
“[DEFENSE COUNSEL]: Yes, sir. I understand that.
“THE COURT: And we will not have any -- until somebody believes that it’s become relevant, we’re not going to delve into it. And when that -- if we get to that, then we will take it up outside the presence of the jury. We’ll take it up at sidebar initially and so -- okay.”
Later, during cross-examination, when defense counsel appeared to start asking J.O. a question regarding the circumstances leading to her arrest (i.e., her failure to show up at court), the prosecutor objected and the court warned, “All right. Let’s go to something that’s relevant.”
Based on the forgoing record, we interpret appellant’s second contention on appeal to be a challenge to the court’s ruling to restrict appellant’s cross-examination of J.O. regarding her arrest and incarceration. Appellant contends the court’s ruling prohibiting inquiry into J.O.’s arrest or incarceration in connection with her appearance at trial unduly restricted appellant’s ability to present his defense in violation of the Sixth Amendment of the federal constitution.
As with his first contention on appeal, appellant has waived his constitutional claim because his counsel did not object on this ground at trial. When the trial court ruled to restrict inquiry into J.O.’s arrest and incarceration, defense counsel did not challenge the court’s ruling or the court’s finding that those circumstances were not relevant.
In any event, we find no error. “Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 946.) “Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (Ibid., second & third bracketed insertions added.)
The trial court could reasonably find that J.O.’s arrest and incarceration was not relevant to any disputed fact of consequence to the question of appellant’s guilt of the charged crimes, or to J.O.’s credibility. (Evid. Code, § 210.) As respondent notes, the main disputed issue at trial was the truthfulness of J.O.’s prior statements to police officers claiming appellant abused her. The circumstance that J.O.’s attendance at trial was the result of her arrest on a bench warrant has no direct bearing on the veracity of her prior statements. Thus, it does not appear the trial court abused its discretion in restricting inquiry into J.O.’s arrest or incarceration on cross-examination.
Furthermore, it does not appear the trial court’s ruling was in any way prejudicial to appellant. Contrary to appellant’s suggestion, the trial court’s ruling did not prevent appellant from showing facts, besides battered women’s syndrome, could explain J.O. uncooperativeness and hostility towards the prosecution. Defense counsel conducted an extensive cross-examination of J.O. in which she gave testimony favorable to appellant and critical of the police and prosecution investigators. In closing argument, defense counsel drew on specific examples from J.O.’s testimony to bolster its theory that J.O. was traumatized, not by appellant, but by agents of the prosecution who engaged in bullying tactics to pressure J.O. to testify because “they were pushing their own political agenda” and were unconcerned “about what really happened.”
For example, defense counsel argued: “The behavior of the Prosecution in this case was described -- not by me -- as something horrible. I join in that. Was it traumatic? Yeah, but not from a domestic violence perspective. It was triggered by the events of those days, yes. You think about it. Having the police show up in the middle of the night, 7:00 p.m., guns drawn, that’s traumatic. Having the threats -- and that’s what she testified to, that they were going to take her kids away. That’s traumatic.”
Thus, we disagree with appellant’s premise that he was precluded from challenging the prosecution’s inference that J.O. was hostile to the prosecution because she was a victim of battered women’s syndrome. Moreover, additional evidence that J.O. was arrested and incarcerated in connection with her trial appearance was repetitive of other evidence on the issue of J.O.’s hostility to the prosecution, and appellant has not shown it would have given the jury a significantly different impression of J.O.’s credibility that would have inured to appellant’s benefit. Accordingly, we conclude there was no error in the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.