Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA067889, Cynthia Rayvis, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
William Ernest Chilin appeals from the judgment entered after a jury convicted him of forcible rape, with findings he personally inflicted great bodily injury and personally used a deadly weapon (a knife) upon the victim. He was sentenced to 25 years to life in state prison. Chilin’s sole contention on appeal is the trial court committed reversible error by admitting “victim-impact” evidence. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of Trial Evidence
In 2008, Chilin lived with his sister, Rosa, and her then 15-year-old daughter, C. In May 2008, Chilin found cocaine in C’s backpack and confronted her. She was angry that he had searched her backpack, and they argued. Chilin urged his niece not to tell Rosa about the cocaine, but she told her mother anyway, and admitted she had experimented with drugs.
Because Chilin and his sister, Rosa Chilin, have the same last name, we refer to her as Rosa for purposes of clarity, and not out of disrespect.
Chilin’s niece admitted on cross-examination to having previously lied when she testified at the preliminary hearing that there was no cocaine in her backpack.
On the afternoon of May 19, 2008, Chilin was home when C. returned from school. He offered her some cocaine he had poured onto a plate. C. declined and knocked the plate from his hand. Chilin struck her and forced some cocaine into her mouth. A struggle ensued, during which Chilin threw C. on her bed and choked her. When she began to scream, Chilin covered her mouth with one hand and put a knife against her throat. She agreed to stop screaming, and Chilin removed his hand, while continuing to pin her down with the knife at her throat. At one point, C. was able to wrest the knife away from him, slicing her thumb, but Chilin managed to grab it back from her. She began to hit Chilin until he pressed the knife against her stomach. Chilin then pulled down C.’s underwear and raped her, leaving the knife against the lower part of her body. As Chilin was raping her, the knife blade pressed into C.’s vaginal area, thigh and leg, causing extreme pain.
After he raped C., Chilin instructed her to shower. There was blood all over the bed. Chilin gathered up C.’s clothing and bed sheets and put them into the washing machine. C. fled to the home of family friends, Leticia Llamas and Arturo Revelas. She was crying, trembling and shaking her head. Moments later, Chilin arrived, grabbing C. by her hair in an effort to take her with him. She was incoherent and continued to cry. Revelas demanded that Chilin leave, and he did. Llamas telephoned Rosa; after C. told her mother that Chilin had raped her, the police were called.
That same day, C. was examined by Michelle Darrow, a nurse practitioner specializing in sexual assault forensics. The examination revealed blood, swelling, and a deep clean cut – typical of a sharp object – in the vaginal area, which required sutures. Darrow described the injury as “traumatic” and “one of the worst” she had observed over many years of treating sexual assault victims. It was stipulated the DNA evidence recovered during the examination was consistent with both her and Chilin.
The next morning, Chilin telephoned his sister, Rosa. He cried, said he was “trash” and asked for forgiveness. Rosa demanded he go to the police, but he refused to do so. Two days later, Chilin made a similar telephone call to Rosa, saying he would kill himself, and the police would never catch him. Chilin was subsequently arrested after officers found him hiding in a detached garage.
Chilin neither testified nor presented other evidence in his defense.
2. The Challenged Evidence
The defense theory was after ingesting cocaine together, Chilin and C. had consensual sex, but she still bore a grudge against Chilin for searching her backpack and discovering her cocaine. With the defense theory in mind, the prosecutor engaged Rosa in a line of questioning about her daughter’s behavior before and after the rape:
“[PROSECUTOR]: Before May 19th, what was your daughter like?
[ROSA]: She’s always been a nice girl, “A” student.
[PROSECUTOR]: Did you two get along well?
[ROSA]: Yes.
[PROSECUTOR]: How was her personality? Was she outgoing or -- ”
Defense counsel objected on relevancy grounds, and after the objection was sustained, at sidebar, the prosecutor asserted that change of personality is relevant in child assault cases. Defense counsel also objected on Evidence Code section 352 grounds. The court then overruled the objection.
“[PROSECUTOR] Ms. Chilin, what was your daughter like before this incident? What was her personality like?
[ROSA]: Very good.
[PROSECUTOR]: Was she happy? Quiet?
[ROSA]: No, she’s always been happy?
[PROSECUTOR]: And did she like to do things?
[ROSA]: Yes.
[PROSECUTOR]: Like what?
[ROSA]: Cook. To paint. Read. She likes a lot to read a lot.
[PROSECUTOR]: Did she have friends?
[ROSA]: Girls, three girls.
[PROSECUTOR]: Would she go do things with her friends?
[ROSA]: They cook in the house sometimes.
[PROSECUTOR]: Did she play music?
[ROSA]: Sometimes.
[PROSECUTOR]: And immediately after this happened, how did your daughter behave?
[ROSA]: Differently. She wouldn’t – not too many friends come anymore. She’s always reading. She doesn’t talk to me much.
[PROSECUTOR]: Is she quieter than she was before?
[ROSA]: Yes.
[PROSECUTOR]: Has she changed her appearance?
[ROSA]: No.
[PROSECUTOR]: How has she done in school – did she do in school after this happened?
[DEFENSE COUNSEL]: Objection. Vague as to time.
[COURT]: Overruled. You can answer if you understand the question.
[ROSA]: Fine. She’s always doing good in school. At first the grades went down. Right now they’re the same.
[PROSECUTOR]: So after the incident happened, her grades went down?
[ROSA]: Yes, a lot.
[PROSECUTOR]: Is your daughter a smart girl?
[ROSA]: Yes.”
DISCUSSION
Chilin contends the trial court’s failure to exclude the challenged evidence was reversible error. He argues Rosa’s testimony concerning her daughter’s behavioral changes was of little or no relevance, and was unduly prejudicial under Evidence Code section 352. However, Chilin’s primary contention is that, because the testimony was irrelevant, it amounted to “forbidden victim impact” evidence admitted in violation of his federal rights to due process and a fair trial.
Statutory references are to the Evidence Code, unless otherwise indicated.
Chilin has forfeited his federal constitutional contentions on appeal because defense counsel objected to this evidence only on relevance and section 352 grounds. (People v. Martinez (2010) 47 Cal.4th 911, 961.) In any event, we note the prosecution never presented Rosa’s testimony as victim-impact evidence; Chilin cannot now mischaracterize it as such in order to lay claim to constitutional violations in the context of a noncapital trial. Victim-impact evidence relates “to the personal characteristics of the victim, the emotional impact of the crimes on the family, ” which are “relevant to the jury’s decision as to whether or not the death penalty should be imposed.” (Payne v. Tennessee (1991) 501 U.S. 808, 817, 827 [111 S.Ct. 2597, 115 L.Ed.2d 720].) “In a capital trial, evidence showing the direct impact of the defendant’s acts on the victims’ friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution. [Citation.] Under California law, victim impact evidence is admissible at the penalty phase under [Penal Code] section 190.3, factor (a), as a circumstance of the crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.” (People v. Pollock (2004) 32 Cal.4th 1153, 1180; see, e.g., People v. Taylor (2001) 26 Cal.4th 1155, 1170-1171 [physician’s testimony during guilt phase of nature and extent of victim’s injuries was not victim-impact evidence].)
As for Chilin’s evidentiary claim, his labeling of Rosa’s testimony as “pure, irrelevant victim impact evidence” on appeal does not somehow heighten the likelihood its admission resulted in undue prejudice at trial. “The circumstance that defendant describes the testimony as victim-impact evidence does not alter our analysis; defendant has not cited any authority for the proposition that the admission of irrelevant victim-impact evidence constitutes an error different from the admission of any other irrelevant evidence.” (People v. Redd (48 Cal.4th 691, 731, fn. 20. Accordingly, we determine whether Rosa’s testimony was admissible on relevance and section 352 grounds. (Redd, at p. 731.)
Relevant evidence is that “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210; see also People v. Kraft (2000) 23 Cal.4th 978, 1034.) The concept of relevance is broadly interpreted. (People v. Scheid (1997) 16 Cal.4th 1.) The trial court may exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (§ 352.) That the evidence is adverse to a defendant’s case does not make it prejudicial within the meaning of section 352. (People v. Salcido (2008) 44 Cal.4th 93, 105.) The prejudice referred to in the statute is evidence which tends uniquely to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. (People v. Bolin (1998) 18 Cal.4th 297, 320.)
We review the admission and exclusion of evidence on relevance and section 352 grounds for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578; see People v. Hovarter (2008) 44 Cal.4th 983, 1004 [under abuse of discretion standard, “‘trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice’”].)
Rosa’s testimony that after May 19, 2008, her daughter became withdrawn and performed poorly academically was minimally relevant to the issue of forcible rape. Nonetheless, the admission of this evidence was far from prejudicial under section 352. The trial court carefully restricted Rosa’s testimony to the changes she observed in her daughter’s behavior immediately following the incident. The testimony itself was unemotional and relatively brief, consisting of short and direct answers and comprising no more than two pages of the reporter’s transcript. Significantly, neither counsel mentioned the testimony during argument to the jury.
Finally, if the admission of Rosa’s testimony was error, it was utterly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Marks (2003) 31 Cal.4th 197, 226-227.) The evidence of forcible rape was overwhelming. The jury heard the compelling testimony, which was corroborated by the results of the sexual assault examination showing injury consistent with a knife wound. Additionally, several witnesses testified concerning Chilin’s conduct after the rape, which reflected consciousness of guilt. On this record, it is not reasonably probable Chilin would have obtained a more favorable result had the challenged evidence been excluded. (People v. Watson, supra, at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.