Opinion
F070940
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL ROSILES, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12907640)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
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Gabriel Rosiles stands convicted of the murder of his girlfriend and infliction of corporal injury on her. He argues his conviction must be reversed for a number of reasons. He first contends the trial court committed multiple prejudicial evidentiary errors by: (1) excluding relevant third party culpability evidence; (2) admitting evidence of prior acts of domestic violence without proper foundation; (3) admitting improper expert testimony on domestic violence; and (4) admitting the improper opinion testimony of an investigating detective. Rosiles next argues the trial court gave a prejudicially erroneous jury instruction regarding consciousness of guilt arising from a third party's false testimony. Finally, Rosiles argues that trial counsel was ineffective in numerous respects. We will affirm.
PROCEDURAL HISTORY
Rosiles was charged by an amended information (information) with the murder of his girlfriend, Michelle Jimenez (Michelle), with whom he cohabited (count 1; Pen. Code, § 187, subd. (a)), and with inflicting corporal injury on her (count 2; § 273.5, subd. (a)). The information further alleged that Rosiles personally inflicted great bodily injury on Michelle under circumstances involving domestic violence, in the commission of count 2 (§ 12022.7, subd. (e)). In addition, the information alleged two strike priors (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), a serious felony prior (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
After a 21-day trial, a jury found Rosiles guilty of second degree murder in count 1 and inflicting corporal injury on a cohabitant in count 2. It also found the great bodily injury allegation attached to count 2 to be true. In a bifurcated proceeding, Rosiles admitted the prior strike, prior serious felony, and prior prison term enhancement allegations.
The trial court granted Rosiles's Romero motion to dismiss one of his strike priors for sentencing purposes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced Rosiles to state prison for an indeterminate term of 30 years to life on count 1: 15 years to life doubled on account of the strike prior. In addition, the court imposed a determinate term of seven years based on applicable sentence enhancements: five years for the serious felony prior, plus a total of two years for the two prison priors. Finally, the court imposed a term of 20 years on count 2 and related enhancements, which sentence was stayed pursuant to section 654.
FACTS
Prosecution Case
Michelle's Murder
In September 2012, Michelle and Rosiles were a couple and lived together in a trailer home in Fresno; they were the only occupants of the trailer. Rosiles and Michelle had dated for several years, most recently since June 2011. Since that time, they initially lived together in an apartment in Fresno but had recently moved to the trailer.
Rosiles indicated in his police interrogation that he and Michelle had dated for several years but the relationship was apparently not continuous. Rosiles had spent periods in prison, but the jury was not so informed.
Priscilla Galindo, the girlfriend of Michelle's brother Carlos, saw Michelle on the morning of September 27, 2012, the day Michelle was killed. Michelle did not own a car and the night before had asked Galindo to take her to the unemployment office in the morning. Michelle's trailer was located behind a locked gate and, at approximately 9:15 a.m. on September 27, 2012, Galindo pulled up to the gate, honked, and yelled for Michelle. Michelle appeared at the back door, with her hair wet and a towel wrapped around her. She said she had just showered and asked Galindo to give her five minutes to get ready. Galindo returned to her own home, which was about a minute's walk away from Michelle's trailer. Michelle soon arrived at Galindo's home; she was wearing a red Fresno State t-shirt and jeans. Galindo took Michelle to the unemployment office, which was about five minutes away; they were at the unemployment office for about half an hour. Afterwards they went to get a bite to eat at a Jack in the Box restaurant. Galindo took a less direct route to the restaurant in order to avoid passing by Michelle's trailer, as Michelle did not want Rosiles to see them.
In the meantime, around 9:40 a.m., Michelle's sister-in-law, Nancy Jimenez, arrived at Michelle's trailer. Nancy, the wife of Michelle's brother Jose Jimenez, Jr. (Jose, Jr.), had arranged to meet a locksmith to have keys made for Jose, Jr.'s car, which was parked on the trailer property. Nancy honked outside Michelle's trailer, but upon receiving no response, decided to wait for Michelle at Galindo's nearby home. When Galindo and Michelle were driving back to Michelle's trailer, they saw Nancy parked in front of Galindo's home. Nancy followed them back to Michelle's trailer, where they arrived at approximately 10:00 a.m. Since the gate was locked, Michelle climbed it and ran inside to retrieve the key; she indicated Rosiles was home. Galindo left around 10:15 a.m.
After Michelle unlocked the gate, Nancy parked her car on the property. Nancy and Michelle sat in the car and waited for the locksmith, who never showed up. Finally, at approximately 11:15 a.m., Nancy left. Galindo, who at that point was on her way to collect her son from preschool, saw Nancy leave; when Galindo returned five minutes later, no one was outside the trailer. Neither Galindo, nor Nancy, saw any injuries or bruises to Michelle's face or body that day.
Later that day, between 1:20 p.m. and 1:34 p.m., Rosiles made five phone calls (on Michelle's phone) to his mother, Caroline Rosiles, who had taken her daughter to a doctor's office in downtown Fresno. Rosiles was crying uncontrollably in the phone calls and begging, "'Mom, help me.'" He told Caroline that Michelle had fallen in the shower, and repeatedly asked Caroline to come to the trailer. Caroline believed Rosiles was confronting an emergency, so she left her daughter at the doctor's office and headed to the trailer.
Caroline stopped by her own house, which was located on the same street as Michelle's trailer. Upon arriving home, Caroline called for her sons Samuel Rosiles and Eliberto Rosiles, shouting, "We got to go. We got to go." Caroline, Samuel, and Eliberto then drove to Michelle's trailer. Rosiles was standing behind the locked gate, wearing red shorts and no shirt. He was crying and appeared scared and upset, and told Samuel and Eliberto, "help me" and "[j]ust bring her back, please."
Samuel and Eliberto jumped over the gate and ran into the trailer from the back door. They found Michelle lying, unconscious, on the floor of one of the bathrooms. Her face was purple, one of her front teeth was broken, and she looked as if she had been beaten. Her hair was damp and there were towels or clothing under her head. Eliberto emerged from the trailer and yelled to Caroline: "Michelle was beat up and she's in the shower."
Rosiles handed Michelle's cellphone to Eliberto, who called 911. The recording of the 911 call captured a discussion between Eliberto, Samuel, and Rosiles that occurred before the dispatcher came on the line. The recording of the 911 call was played for the jury. The preliminary discussion among the brothers ensued as follows:
"[Eliberto]: I didn't know she was dead Gabriel.
"[Samuel]: They're gonna think we did it.
"[Rosiles]: I don't want to stay here either.
"[Eliberto]: Well I don't know. [¶] ... [¶]
"[Rosiles]: You can't call the police, you can't...
"[Eliberto]: Go!"
The dispatcher came on the line at that point, and Eliberto said: "There's a girl on the floor and she's dead, it's my brother's girlfriend." Eliberto added: "She's all beat up." Eliberto explained: "We came, [Rosiles] called we came over here after we picked him up, came over here and his girlfriend's dead on the fuckin' floor. She's all beat up. We don't know what happened. [¶] ... [¶] She's not breathing at all. She's naked on the floor." Eliberto stayed on the line with the dispatcher until police arrived; both he and Samuel tried to administer CPR to Michelle as directed by the dispatcher. Although Rosiles was in the trailer with Eliberto and Samuel at the start of the 911 call, he left the trailer at some point during the call. Rosiles was not present when the police arrived.
Sergeant Richard Wilhoite of the Fresno Sheriff's Office (FSO) responded to Michelle's trailer around 1:44 p.m. Samuel was standing outside the trailer and Eliberto was performing CPR on Michelle, who was on her back on the bathroom floor. Wilhoite testified: "[Michelle] had contusions around her stomach area and arms. And they didn't appear to be naturally occurring or, you know, normal injuries, or normal skin pigmentation." Michelle had no pulse and was cold to the touch; EMS personnel soon pronounced her deceased. The shower in the bathroom was still running. Wilhoite did not see Rosiles on the property.
Crime Scene Investigation
FSO Detective Donna Davis arrived at the trailer at 2:15 p.m. and undertook an investigation until approximately 10:30 p.m. She was "assigned to work the crime scene" along with Detectives Hector Palma and Sergio Toscano. Three crime scene technicians, Patrick O'Brien, Mary Tigh, and Kristal Buckley, also assisted with the investigation. Michelle had "multiple bruises all over her torso, her face, her arms, legs"; however, at this point Davis did not see any blood in the bathroom. A clump of hair was beside the body and another clump was inside the toilet. A pair of torn or cut women's underwear and a torn bra, as well as other clothes, were randomly scattered around the bathroom. At 7:00 p.m. or 7:15 p.m., the body was moved for the coroner to be able to examine it more thoroughly. As the body was being moved, investigators noticed blood around it.
Since many of the injuries on Michelle's body were "linear type injuries," the investigators "were looking for cords, wire hanger type material or items." More specifically, Michelle had "[n]umerous" bruises that were "like a line, basically." A "wire frame shower caddy" of the type one "would hang in [the] shower," was found in the hallway near Michelle's body; it was "damaged" in that it was "bent" and some pieces were "broken off." The caddy appeared consistent with "the linear injuries" on Michelle's body.
The injuries on Michelle's face were "blunt-force-trauma-type injuries," along with a "pattern type injury" on her forehead. The investigators "located a square fan" with a "grille on the front" that was "consistent with the [forehead] injuries that she had." The fan, which was found in the living room, was "damaged"; specifically "it was cracked" and there "appeared to be blood on it." A "small bat," "like a novelty bat" or a souvenir bat, was found broken in half; the larger piece of the bat had an apparent blood stain on it. A lamp found on the floor also appeared consistent with some of the injuries sustained by Michelle.
In addition, the investigators found a knife in the hallway, a few feet away from Michelle's body, and another one on top of a TV in the living room; the TV appeared as if it had been moved to block the front door. The mattress in the master bedroom had blood on it, as well as a bloody handprint. At a later point, Davis determined there was also possibly a shoe print on the mattress. The mattress was partly off the bed frame. Some shoes with blood on them were collected from the crime scene, but the soles did not match the shoe print on the mattress. Investigators found blood on the front door and front porch; a blue t-shirt was recovered from the porch; and a pair of jeans with blood stains was also collected. Finally, a "sawed-off shotgun" was found in the master bedroom, "behind a mirror that was leaning up against the wall." Davis noted the master bedroom, the living room, the kitchen area, the hallway area, and the bathroom all appeared consistent with the occurrence of a struggle. As Davis put it, "there was movement through the trailer."
Questioning of Rosiles's Family Members and Rosiles's Arrest
At approximately 1:50 p.m. on September 27, 2012, FSO Detective Mark Fam arrived at the trailer, where he questioned Eliberto. Eliberto said that after Caroline picked him up at home, they drove to his cousin's nearby house and picked up Rosiles, who was crying heavily. They then drove to the trailer, where they found Michelle lying on the bathroom floor looking "all beat up."
Eliberto said that the cellphone he had used to call 911 had run out of power during the 911 call, so Rosiles left in search of another cellphone but never returned. Eliberto handed Fam the cellphone Rosiles had given him earlier to call 911. Eliberto did not know the phone number for the cellphone but Fam obtained it by using it to call his own cellphone. Looking through the cellphone, Fam found two previous calls to 911; five calls were made to Caroline in the 20 minutes preceding the 911 calls.
Detectives Palma and Toscano questioned Caroline in front of her home at approximately 5:00 p.m. on the day of the murder. The interrogation was recorded and played for the jury. Caroline told the detectives that Rosiles had called her earlier that day, crying hysterically. He told Caroline that Michelle had fallen in the shower and he did not know what to do; he begged Caroline to come to the trailer. When Palma asked Caroline to check her phone to determine the specific time that Rosiles had called, Caroline said she had deleted her call log to free up memory on her phone. Caroline said that Rosiles had called her repeatedly, even as she was driving to the trailer, telling her "Michelle fell, I need you." Caroline said she brought Eliberto and Samuel to the trailer and told them to check on Michelle. Caroline was emphatic about the fact that she had not seen Rosiles at any time that day; she said she last saw him the previous day, at her own house. She also denied Rosiles was at her house at that moment. When asked whether she would cover for Rosiles in the event he hurt Michelle, Caroline said: "Let me tell you one thing about [Rosiles]. [¶] [Rosiles is] a very abusive person and he needs help." She told the detectives she would contact them once she found out where Rosiles was. As Palma and Toscano drove away from Caroline's house, she called them and told them that Rosiles was at her house.
Shortly thereafter, at approximately 6:00 p.m., Palma and Toscano, along with other police units, arrived at Caroline's home. Through a loudspeaker, the police commanded Rosiles to exit the house. Rosiles emerged after 15 minutes. He was wearing only a pair of jeans; he did not have a shirt or shoes on. Palma noticed that his hair, which was long and in a ponytail, was wet and he appeared clean. The deputies asked for Rosiles's red shorts; Caroline turned them over, stating she had found them next to the shower in her brother Peter Montez's bathroom (Montez lived next door to Caroline). The shorts were wet.
Rosiles's Police Statements
Detectives Palma and Toscano interrogated Rosiles during the drive to the sheriff's office (around 6:15 p.m.) and, subsequently, at the sheriff's office (at 6:50 p.m.), and yet again a little later (at 7:45 p.m.). Redacted versions of Rosiles's recorded statements were played for the jury.
In the initial interrogation, during the drive to the sheriff's office, Rosiles explained that Michelle had gone to the unemployment office with Galindo that morning. When Michelle got back, Nancy came over. After Nancy left, Michelle woke Rosiles up. Rosiles said he and Michelle did not have sex that day, although they had done so the previous night. Rosiles got up, threw on the red shorts, and went out to look for some "weed." When he returned a little later, not having found any weed, the house was "messed up." It looked as if "someone's been in there looking for something." He saw Michelle naked on the bathroom floor; her lips were purple and blue. She was not breathing. Rosiles said he had Michelle's phone and could have called 911 but instead he called his mother for help. Rosiles said he then "looked around the house to see if anybody was there and left." Rosiles said strange people had been parking by the trailer recently; once someone in a Dodge Durango had even tried to run Rosiles over, near the trailer.
In the subsequent interrogation at the sheriff's office, Rosiles's story changed somewhat. Rosiles said that after Michelle returned from the unemployment office, she got back into bed with him and mentioned that Nancy would be coming by shortly. Rosiles said that he and Michelle then had sex. Afterwards, they talked for a while. Then Rosiles put on his red shorts and went for his walk, but Michelle stayed behind to wait for Nancy. When Rosiles got back, he found Michelle on the bathroom floor; her lips were turning purple or blue. Rosiles said Michelle "had blood in her hair"; blood was also "on the floor" and "in the bathtub." Rosiles wiped her face off, including her nose and mouth. He got "panicky" and called his mom, asking her to help him. When his mom arrived with his brothers, they called 911. At that point, Rosiles's mother took him to her house, while his brothers stayed at the trailer. Rosiles left because he was scared, he was "spooked." He insisted that he and Michelle never fought. He said, "I run when the cops come, I just run."
In light of Rosiles's acknowledgment that he had left the scene before police arrived, the detectives pressed him on his reason for leaving. Rosiles said he left because he was scared but the detectives asked him to be more specific about what scared him. Rosiles responded: "Well, I didn't know who was there, what was going on. I mean, I just walked into the house and I seen what I seen and ... fuck, yeah I'm scared! I'm scared, I'm paranoid too. I was like ... what's going on, I didn't know if people were still in there or not."
The detectives told Rosiles that his mother had denied driving him to her house after bringing Eliberto and Samuel over to the trailer. Rosiles insisted his mother had indeed taken him to her house. He said he took a shower there, and on his mother's advice, rested there for a while because he was tired and feeling sick. He surmised that his mother had misrepresented what happened because she was scared too, perhaps on his behalf, or she might have tried to protect him; otherwise, she was simply lying.
The detectives explained that Nancy and Galindo had seen Michelle around 11 a.m. and that the 911 call was made around 1:40 p.m.; they wanted to know what Rosiles was doing in that short window of time. Rosiles responded: "I was walking around, man. I mean, I didn't have no where to go." He added: "I always walk around all the time. I ride a bike down the street just for fun." He continued: "My mom stays down the street, I go back and forth all day, every day. Okay ... for fun, that's just what I do." When the detectives asked who would have hurt Michelle, Rosiles answered: "I don't know what to do. I don't know what to tell you. What do you want me to tell you, man?" He added: "I don't know man, I don't know what the fuck happened to her, man." Rosiles said he did not even know what to tell Michelle's brother Carlos, who had been looking for him. Finally, Rosiles said: "There's bad people out looking for us, alright? There's bad people out looking for us ... that's all I could tell you, man. There's been weird cars going over there, everybody knows, ask people man, they know people's been going over there."
During the interrogation, the detectives noticed injuries on Rosiles's nose; fresh, red scratches on his hands; and some scratches on his face and neck. Rosiles said he had been in a fight a month or two ago; he also said he had been cutting poles up, which explained the cuts on his hands. Rosiles then acknowledged that he and Michelle would have arguments, some of which turned physical. He said their altercations had involved "pushing and stuff" in the past.
Rosiles was feisty at points in the interrogation, telling the detectives that they were withholding information from him, lying to him, and playing games with him by insinuating that he would hurt Michelle when he would never do that. He insisted: "[Y]ou're not telling me shit about this! You're not telling me what's going on with, with my fiancée, nothing."
Coroner's Examination of the Body and the Autopsy
Dr. Venu Gopal, chief forensic pathologist at the Fresno County Coroner's office, examined Michelle's body at the trailer and, subsequently, conducted an autopsy. At the trailer, he noted injuries on Michelle's body that could have been caused by "an extension wire or a coat hanger" or by a shower caddy. Michelle also had several lacerations to the head and face that could have been caused by a baseball bat or pipe; these lacerations would have bled a lot when inflicted. As a specific example, Gopal pointed to an "antemortem" laceration, about two and three-quarter inches in length, on the left side of Michelle's head, extending from the left ear towards the left eye. Gopal opined this injury was "consistent with a localized force by an object such as [the] miniature bat" found at the crime scene.
An autopsy was later conducted at the Fresno County Morgue. A total of 61 injuries were found on the body (two of the 61 injuries were old ones). Gopal started by describing the injuries to Michelle's face and head. There was a pattern injury in the middle of the forehead; an abrasion on the right eyebrow; a laceration on the right upper eyelid; a "diffuse dark red contusion" on the right eye; a "dark red contusion to the right side of the upper lip"; "a lot of injuries inside the scalp"; and "areas of hemorrhage" on the head. Gopal opined these injuries were caused by "localized blunt trauma" inflicted, for example, by means of a punch, kick, or a hard object. Gopal further found "swelling of the brain," which "may not be reversible because we have multiple trauma to the head." There were, however, no skull fractures.
Michelle also suffered injuries to her extremities. Gopal first discussed the injuries to Michelle's arms. He noted a "diffuse dark red contusion to the left upper extremity extending from the top of the left shoulder all the way towards the wrist," an "area of 18 inches by 9 inches." Gopal opined this large contusion would have been caused by "blunt force trauma or that portion of the body coming in contact with a blunt surface or a blunt object." In addition, there was "a laceration to the back of the left forearm," also caused by blunt trauma, and a fracture of the left ulna, one of two long bones in the forearm. Gopal opined: "I have seen this type of injuries when somebody take[s] an evasive [or defensive] action and there's a localized force - force to that area." Along with the injuries to the left arm, there were also several injuries to the right arm. Gopal noted "again, a diffuse dark red contusion to the right arm over an area of 23 inches by 9 inches." "Virtually the entire right upper extremity." He said that this contusion was also caused by "blunt force trauma," "more than one application of blunt force." There was also "a contusion to the back of the right hand along with ... swelling," a "laceration to the back of the right elbow," and lacerations on the fingers of the right hand. Gopal then recounted the injuries to Michelle's legs. He said there were several blunt force injuries to both her legs, including patterned abrasions and linear injuries.
As for Michelle's "trunk region," Gopal noted "21 more injuries" there, including abrasions, contusions, and pattern injuries on the chest and abdomen, one of which clearly appeared to have been caused by the plug of an electrical cord. However, Gopal "did not find any injuries in the genitalia."
When asked about the cause of Michelle's death, Gopal concluded: "My opinion, bas[ed] on the finding[s], the cause of death is multiple blunt force trauma to the head and body." He explained his conclusion:
"I have described around ... 60 injuries to the body, 6-0. And I have observed out of which to the head injuries, there appear to at least four separate impacts to the head apart from blunt impact injuries to the face. That's number one.
"Number two is I have multiple patterned contusions, abrasions, and lacerations to the trunk, and also extensive contusions to the upper extremity and to both ... thigh[s].
"Taking all this into consideration, that's why I said multiple blunt impacts. And this type of injury causes a lot of bleeding into the skin and the muscles, and, also, there's a fracture of the - one of the bones of the left forearm. And there is some swelling of the brain. And taking all the injuries into consideration, I form the opinion as to multiple blunt force trauma."
Rosiles's Injuries
Dr. Gopal viewed post-arrest photographs of Rosiles. He opined that Rosiles had injuries on his face, knees, and left hand that appeared recent, in relation to when the photographs were taken. Detective Palma also testified that on the day of Michelle's murder, he noticed injuries to Rosiles's nose, scratches on his face, an abrasion on his left hand, and scratches on his knees, all of which appeared fresh.
Forensic Evidence
The physical evidence collected from the crime scene included: clumps of hair found near Michelle's body; a square fan that was consistent with a pattern injury on Michelle's forehead; a shower caddy and power cord that were consistent with linear-type injuries on Michelle's body; a broken novelty bat, with a reddish-brown stain, found on the floor of the master bedroom; a blue t-shirt found on the front porch; a mattress cover from the master bedroom with blood stains and a footprint; and samples from apparent blood smears on the front door, in the living room, and in the kitchen. Technicians were unable to lift fingerprints from the novelty bat or the square fan.
A forensic serologist, Amy Lee, analyzed the evidence collected from the crime scene. The clumps of hair were determined to belong to Michelle. Michelle's blood was found on the handle of the shower caddy as well as on an extension cord/surge protector. Vaginal swabs taken from Michelle's body revealed the presence of sperm from Rosiles. The blue t-shirt had Rosiles's semen mixed with Michelle's DNA. Blood stains on the mattress cover were linked to Rosiles. No biological fluids were found on Rosiles's red shorts.
In addition, Lee swabbed the handle of the broken novelty bat for the "handler's DNA," i.e., "touch DNA" or epithelial DNA. DNA testing of the sample taken from the bat's handle showed Michelle to be "the major contributor" and Rosiles a "possible minor contributor." However, Lee testified that sample taken from the bat's handle potentially included touch DNA as well as blood DNA (the sample actually tested positive for blood). Lee noted that Michelle's DNA "more likely" came "from the blood." In other words, the results of the DNA testing on the bat's handle possibly reflected "a combination of Michelle's bloodstain and handler DNA." However, Lee did not confirm that the blood on the bat's handle was in fact Michelle's blood. Blood was also found at the other end of the bat; however, Lee did not conduct further tests to match that blood to either Michelle or Rosiles.
Evidence of Rosiles's Relationship with Michelle
Priscilla Galindo, Michelle's friend from childhood, testified about Michelle's relationship with Rosiles. Galindo indicated that Michelle and Rosiles were a couple from June 2011 until Michelle was killed in September 2012. Michelle had a telemarketing job until June 2011, when Rosiles entered the picture. Rosiles and Michelle used to live in an apartment in Fresno but had moved to the trailer in July 2012. Initially, they lived in a small travel trailer next to the main trailer, in which other members of Michelle's family lived. In September 2012, Michelle and Rosiles moved into the main trailer and Michelle's family members went elsewhere. Galindo lived less than a minute's walk from Michelle's trailer.
Galindo said that while Michelle had a fun personality and a sense of humor, she was unusually quiet around Rosiles, who would do most of the talking. About two weeks before Michelle was killed, Galindo heard Rosiles berate her, using terms such as "[f]ucking bitch" and "fucking stupid"; he said Michelle "couldn't do anything fucking right." Although Michelle was generally "pretty vocal," she did not respond to Rosiles. Another time, about a month before Michelle was killed, Galindo heard Rosiles yell at Michelle: "Get away from me, fucking bitch." At the time, Rosiles was on a bike and Michelle was walking behind him with a dog on a leash, asking Rosiles to wait for her. In the month or two prior to Michelle's death, Galindo had noticed "dark bruises" on Michelle's "upper arms"; she had also noticed a burn mark on the back of Michelle's left shoulder. Galindo, however, never saw Rosiles hit Michelle.
Nancy Jimenez, Michelle's sister-in-law, also testified about Michelle's relationship with Rosiles. In addition to seeing Michelle on the day of her murder, Nancy had seen Michelle three days before that. Nancy had come to Michelle's trailer to photograph some items that belonged to Nancy's husband (who was Michelle's brother); Nancy intended to sell those items. Rosiles was inside the trailer while Nancy and Michelle walked outside. Michelle "seemed sad, just crying." Nancy testified: "I told her just to leave, it's not worth it." Nancy explained: "Something was wrong with her. She was like something was on her mind." Nancy recounted: "I said, 'He hit you?'" In response, Michelle "put her head down and started crying." Michelle's reaction greatly troubled Nancy because Michelle "was a tough girl," who normally would "let no one hit her." In other words, Michelle's reaction was totally out of character. Nancy said: "I told her it's not worth it, she should pack up and leave." Nancy, however, never saw Rosiles hit Michelle.
Rosiles's brother, Eliberto, who was 17 or 18 at the time of the murder, testified about Michelle's relationship with Rosiles. Eliberto agreed that Rosiles had a temper. Rosiles and Michelle would argue, and Rosiles would use terms such as "fuck you" and "fat bitch." "They would ... scream at each other and yell at each other." Eliberto admitted that he had told the investigating detectives that he saw Rosiles and Michelle in a physical fight two weeks before her death; however, he added that it was not really violent. Rosiles's other brother, Samuel, in his police interrogation, agreed that Rosiles and Michelle had a love/hate relationship. He explained: "[T]hey can't be away from each other but when they're together ... they're like the worst enemies together." Rosiles's mother, Caroline, had never seen Rosiles hit Michelle but she had heard the two of them argue and also heard Rosiles yell at Michelle. Caroline told the police that Rosiles was "a very abusive person and he needs help."
A recording of Samuel's interrogation was played for the jury.
Gualberto Martinez, who lived next to the trailer, testified that Rosiles and Michelle fought almost every day, running around the trailer yelling and cursing at each other. About a week before Michelle's death, Gualberto and Rosiles exchanged words over trash Rosiles had dumped in Gualberto's yard. Michelle told Rosiles that she did not want further problems. Rosiles responded: "You shut up, because I can do whatever I want." He told both Gualberto and Michelle: "If you keep bothering me, I could even - I could kill you."
Propensity Evidence: Rosiles's Past Abuse of Reinea Romo
Rosiles had been married to Reinea Romo. The two lived together from 2003 to 2004. During that time they would have "horrible" arguments. Rosiles would threaten to "beat the shit out of [her]." He would punch and kick her. His anger would escalate when Romo fought back.
In January 2004, during an argument, Rosiles punched Romo in the face or head while she was holding her infant son. When Romo fell down, Rosiles kicked her in her side and stomach. The next day, the couple had another argument. As Romo walked away holding her son, Rosiles threw a screwdriver at her; the screwdriver missed Romo, lodging in the wall behind her. On another occasion, Rosiles stabbed Romo in the leg with a pair of scissors and threatened to kill her were she to reveal the abuse to anyone.
Defense Case
Myrl Stebens, a defense expert on blunt force trauma and blood spatter, testified for the defense. Stebens, along with Karen Todd, a forensic crime scene analyst for the defense, examined the trailer about a year after Michelle's murder. They also examined the physical evidence collected by the police, along with other evidence.
Stebens opined that Michelle's head wound did not appear to have been caused by a baseball bat. Stebens said he could not say whether Michelle died in the bathroom, although it was possible she died by striking her head against the bathroom floor. He concluded that no physical evidence connected Rosiles to the murder of, or battery on, Michelle.
Stebens was critical of the police investigation. He noted, for example, that no blood analysis was conducted on the broken novelty bat; biological material on the recovered panties was not analyzed; police never matched any shoe to the shoe print found on the mattress cover taken from the master bedroom; and police did not locate, or even look for, the red shirt Michelle was seen wearing on the day of the murder.
Michael Gonzalez also testified for the defense. Gonzalez lived about a quarter mile from the trailer. One night, some weeks before the murder, Gonzalez had seen Michelle riding a bike with Rosiles walking beside her. A Dodge Durango going down the street went into a parking lot, spun around, and went the other way, up the street; as it sped off, it veered into the side of the roadway, towards Michelle and Rosiles. However, Gonzalez could not say whether the Durango purposefully veered towards them.
The defense called Detective Hector Palma, one of the lead detectives on the case. Palma confirmed that the police had not followed up on Rosiles's statement that someone in a Durango had surveilled him in the days preceding the murder. Rather, Palma testified: "The evidence that we gathered, based on statements, based on the scene, the people that we spoke with[,] led us to believe that our suspect was Mr. Rosiles."
Rosiles's brother, Samuel, testified for the defense. He said he stopped by the trailer about 11:30 a.m. on the day Michelle was killed. Michelle was there but Rosiles, whom Samuel had come to see, was not home. Samuel noticed a green Honda Accord, with two men in it, parked in front of the trailer. However, Samuel was impeached with his statement to police on the day of the murder. At that time, Samuel told the police he was out running errands with his mother until about 1:00 p.m. and had not been to the trailer for the last two weeks; he did not mention a green Honda.
DISCUSSION
I. Exclusion of Evidence Related to Prior Homicides at the Trailer
At trial, the defense sought to introduce, in a variety of ways, evidence related to two prior homicides committed on the trailer property. The defense argued the evidence was admissible as evidence of third party culpability with respect to Michelle's murder. The defense also argued that the evidence was relevant, and hence admissible, because it would potentially explain why Rosiles left the scene of the crime, given that Rosiles had told police he left because he was scared on account of the prior homicides on the property. Finally, the defense contended that the evidence was relevant because the defense wanted to highlight the inadequacy of the police investigation into Michelle's murder, by questioning the investigating detectives about their failure to explore whether her murder was connected to the prior homicides. The trial court rejected the defense's argument that the evidence of the prior homicides was admissible as evidence of third party culpability. The trial court also excluded, under Evidence Code section 352, any references to the prior homicides and related evidence for other purposes, on grounds that the limited probative value of this evidence was outweighed by the probability that its admission would necessitate undue consumption of time or create substantial danger of confusing the issues. Rosiles now argues that the trial court abused its discretion in excluding this evidence. We disagree.
Background
On August 27, 2012, Michelle's father, Jose Jimenez, Sr. (Jose, Sr.), and brother, Jose, Jr., shot and killed a father and son, Jimmy Oliver, Sr., and Jimmy Oliver, Jr., in the front yard of the trailer home where Michelle was killed a month later. The Olivers knew the Jimenez family from church; they were evidently attempting to rob the Jimenez family when Jimmy Oliver, Sr., and Jimmy Oliver, Jr., were shot. Jose, Sr., and Jose, Jr., pleaded to involuntary manslaughter as a consequence of the shooting.
On September 3, 2012, friends and family members of the Olivers held a candlelight vigil for Jimmy Oliver, Sr. and Jimmy Oliver, Jr. near the trailer property. Police received a report of a gunshot in the area, around the time the vigil took place. Separately, Caroline Rosiles apparently told Rosiles's defense team that, as a consequence of the killings, she did not want Michelle to live with her. Caroline was afraid that supporters of the Olivers might try to harm Michelle and Caroline did not want her own family endangered on that account.
On September 13, 2012, Jeff Pearce, an investigator on Jose, Jr.'s defense team, took a statement from Michelle regarding the August 27, 2012 incident. Thereafter, on the day of Michelle's murder, FSO Detective Mark Chapman talked to Pearce, who told Chapman about the statement he took from Michelle. Pearce told Chapman that Michelle had indicated she was afraid of people associated with the Olivers and believed they had been harassing her; she was afraid specifically of a person called Rooster, who she said was from Sanger and had numerous tattoos. However, the transcript of Michelle's statement to Pearce, which is in the record, does not support Pearce's account, as the trial court itself noted. In her actual statement to Pearce, Michelle did not say she was afraid of Rooster; on the contrary, her statement suggests she was not afraid of him.
Rooster's only relevance to the instant matter was in relation to a defense attempt to argue, based on Michelle's statement to Pearce, that Rooster was an associate of the Olivers and, therefore, might have murdered Michelle to avenge the Olivers. However, in her statement to Pearce, Michelle only mentioned Rooster in passing, noting that Rooster possibly was a member of the same Native American tribe as the Olivers. Michelle did not point to the existence of any animosity between Rooster and her own family, although she acknowledged her stepbrother had a minor tiff, essentially "horse play," with a cousin of Rooster, on the day on which the Oliver shooting occurred.
Exclusion of Evidence of Oliver Killings under Third Party Culpability Theory
Both parties filed motions in limine regarding evidence related to the Oliver killings. The defense sought to admit evidence of the Oliver killings on a third party culpability theory, arguing that Michelle was likely killed by associates of the Olivers in retaliation; the defense suggested that Rooster was an associate of the Olivers and may have been involved in Michelle's murder. The prosecution sought to exclude evidence of the Oliver killings, including any suggestion that Rooster was responsible for Michelle's murder. The court concluded the evidence related to the Oliver killings was inadmissible on a third party culpability theory and barred any reference to the Oliver killings under this theory. Rosiles now challenges the trial court's ruling. We review a trial court ruling on the admissibility of evidence of third party culpability for abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581; People v. Lewis (2001) 26 Cal.4th 334, 372.) We reject Rosiles's contention that the trial court erred in excluding evidence related to the Oliver killings.
People v. Hall (1986) 41 Cal.3d 826 (Hall) delineates the criteria governing the admission of evidence of third party culpability. The Hall court rejected the proposition, adopted by earlier cases, that for third party culpability evidence to be admissible, a defendant would have to adduce "'substantial proof of a probability' that the third person committed the act." (Id. at p. 833.) Rather, Hall explained that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ... unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [under Evidence Code section 352]." (Id. at p. 834.) Hall clarified that third party culpability evidence is relevant if it is "capable of raising a reasonable doubt of defendant's guilt." (Id. at p. 833.) However, the court cautioned: "At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (Ibid.) Indeed, "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.)
Under the standards governing admission of third party culpability evidence, as explicated in Hall, the trial court properly excluded evidence related to the Oliver killings, offered in support of a defense theory that Rooster or other associates of the Olivers murdered Michelle. Even assuming the evidence suggested that Rooster or other associates of the Olivers were motivated to murder Michelle, "mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt." (Hall, supra, 41 Cal.3d at p. 833.) On the contrary, Hall clarifies, "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.)
Here, there was no direct or circumstantial evidence linking Rooster or any other associate(s) of the Olivers to "the actual perpetration" of Michelle's murder. (See Hall, supra, 41 Cal.3d at p. 833.) The defense posited that several disparate pieces of evidence together amounted to circumstantial evidence that either Rooster or other Oliver associates had potentially murdered Michelle. The defense highlighted, for example, the temporal proximity between the Oliver killings and Michelle's murder, a report of a gunshot at a candlelight vigil held for the Olivers near the trailer, Caroline's potential testimony that she did not want Michelle to live in her house because she feared someone might seek to harm Michelle, references to Rooster in Michelle's statement to Pearce, a generalized fear on Michelle's part on account of the Oliver killings (reflected in her statement to Pearce), and reports about a Durango veering into Michelle and Rosiles as they proceeded along a roadside near the trailer. At the same time, defense counsel said he had "no idea" who, other than Rosiles, would have murdered Michelle; counsel posited Rooster was possibly involved because "we think that Rooster was the driver of that Durango." Counsel stated: "I want the Court and the jurors to hear that it is possible that someone else had it in for Michelle that did this crime."
The trial court concluded the defense had not met the standard enunciated in Hall for showing that the proffered third party culpability evidence was relevant, and, hence, admissible. Essentially, the trial court found: (1) the defense had failed to adduce direct or circumstantial evidence "linking" any third party to "the actual perpetration" of Michelle's murder; and (2) consequently, the defense had not shown that evidence related to the Oliver killings was "capable of raising a reasonable doubt of defendant's guilt." (Hall, supra, 41 Cal.3d at p. 833; see People v. Kaurish (1990) 52 Cal.3d 648, 685 [evidence that third party had a motive for being angry with murder victim's mother did "nothing to link [the third party] to the actual perpetration of the crime, as required by Hall"].) The court determined the proffered evidence of third party culpability was thus not "relevant" evidence under Hall, noting: "It is simply an unfortunate coincidence that there were three persons killed at the same address on two separate dates, a month apart, and apparently by different individuals." The court made clear, however, that Rosiles was free to introduce other types of evidence to show that someone other than him had murdered Michelle, including, as reflected in defense representations, "the few injuries to [Rosiles], the nature of the injuries that were inflicted on [Michelle], and the nature of the crime scene in general when her body was discovered." Similarly, the court permitted admission of evidence about the Durango incident. We detect no abuse of discretion in the court's ruling.
Defense counsel had earlier stated: "[A]s much blood, as much tearing up, as much ... brutality that went on in that apartment, in that trailer, having no evidence on [Rosiles] of any injuries that is fresh and new is the compelling evidence that somebody else likely did this crime."
Citing non-California authorities, Rosiles complains the trial court erred because it required the defense to make a showing that a specific person, other than Rosiles, had possibly committed Michelle's murder. However, the court correctly noted that the applicable Hall standard calls for "direct or circumstantial evidence linking an individual, a person to the crime." Here, Rosiles failed to show that any third party, whether or not his or her identity was known to the defense, was linked, by direct or circumstantial evidence, to "the actual perpetration" of Michelle's murder. (Hall, supra, 41 Cal.3d at p. 833; People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [trial court properly excluded proffered evidence of third party culpability where "defendant's proposed evidence did not identify a possible suspect other than defendant or link any third person to the commission of the crime"].) We reject Rosiles's contention that the court erred in this regard.
In sum, the trial court properly precluded the defense from introducing third party culpability evidence to suggest that Rooster or other (unknown) associates of the Olivers possibly murdered Michelle. Since the evidence related to the Oliver killings did not amount to relevant third party culpability evidence, the balancing process of Evidence Code section 352 did not apply (as discussed below, the trial court, in any event, further excluded evidence related to the Oliver matter under Evid. Code, § 352). Accordingly, we find no error in the court's ruling excluding this evidence for the purpose of showing that someone other than Rosiles possibly murdered Michelle.
Exclusion of Evidence of Oliver Killings under Other Defense Theories
The defense also advanced other theories to support the admission of evidence related to the Oliver killings. The court rejected the defense's requests to admit evidence related to the Oliver killings under these theories as well.
For one thing, the defense sought to admit evidence of the Oliver killings, and purportedly suspicious occurrences such as the Durango incident that followed the killings, to show that Rosiles had a legitimate reason to be afraid for his safety and, in turn, that his decision to flee the trailer was justified. (However, Rosiles did not flee the scene until his family had arrived and police and emergency responders were called and dispatched.) The defense, furthermore, sought to question the investigating detectives as to their failure to follow up on Pearce's heads up that Michelle was afraid of Rooster and possibly other associates of the Olivers, to determine whether they were responsible for Michelle's murder. (However, the recording and transcript of Michelle's statement to Pearce reveal that Michelle was not afraid of Rooster and expressed only a generalized fear in relation to the Oliver killings.) Finally, the defense raised other, more tangential, theories for admission of evidence related to the Oliver killings. For example, the defense argued that the testimony of a crime scene investigator that the crime scene was consistent with a struggle but not a burglary opened the door for the defense to introduce evidence of the Oliver killings, to show that Michelle's murder was committed in retaliation for the Oliver killings.
As mentioned above, the trial court had conducted the balancing inquiry required by Evidence Code section 352 and concluded that evidence related to the Oliver incident was inadmissible under "any theory." The court determined that the evidence related to the Oliver killings had limited probative value that was substantially outweighed by the probability that its admission would necessitate undue consumption of time and create substantial danger of confusing the issues. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [the trial court is best situated to evaluate the evidence at issue through the lens of Evid. Code, § 352, and, accordingly, enjoys broad discretion in applying the statute].) Based on its determination to exclude evidence related to the Oliver killings, the court appropriately ordered redactions to Rosiles's police statements to excise references to these killings.
Evidence Code section 352 provides: "The court in its discretion may 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."
We conclude the court properly considered the issues raised by the defense and see no basis to disturb its rulings. (See, e.g., People v. Anderson (2012) 208 Cal.App.4th 851, 879 ["[A] trial court is not required to make detailed factual findings when excluding evidence under Evidence Code section 352]; People v. Williams (1997) 16 Cal.4th 153, 214 ["All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352."].)
In sum, we detect no abuse of discretion in the court's exclusion of evidence related to the Oliver killings under every theory advanced by the defense as part of its effort to introduce this evidence. (See People v. Rodrigues, supra, at pp. 1124-1125 [trial court's rulings under Evid. Code, § 352 are reviewed for abuse of discretion and will not be disturbed unless the court acted in an arbitrary, capricious, or patently absurd manner]; People v. Branch (2001) 91 Cal.App.4th 274, 281-282 [same]; People v. Hamilton (2009) 45 Cal.4th 863, 930 [no abuse of discretion where trial court excluded, under Evid. Code, § 352, evidence of limited probative value that "would have required a 'mini-trial'"].)
The trial court rejected the defense's argument that it should be permitted to introduce evidence of the Oliver killings, and Michelle's reference to Rooster in her statement to Pearce, for purposes of questioning Detective Palma about law enforcement's failure to follow up on leads suggesting that Oliver supporters might have murdered Michelle. However, the court permitted defense counsel to ask Palma, more generally, whether the investigation into Michelle's murder involved consideration of any other suspects besides Rosiles.
Exclusion of Evidence of Oliver Killings and Rosiles's Constitutional Rights
Rosiles's derivative arguments that the court's erroneous exclusion of relevant third party culpability evidence violated his constitutional rights also fail. (See People v. Gonzalez (2012) 54 Cal.4th 1234 ["[T]he exclusion of weak and speculative evidence of third party culpability does not infringe on a defendant's constitutional rights"].) Similarly, the trial court's exclusion of this evidence under Evidence Code section 352 did not result in a violation of Rosiles's constitutional rights. (See People v. Dejourney (2011) 192 Cal.App.4th 1091, 1106 [due process is violated when the trial court's improper application of Evid. Code, § 352 results in the denial of a fair trial]; People v. Thornton (2007) 41 Cal.4th 391, 452-453 [due process encompasses a defendant's right to present a defense]; but see People v. Hovarter (2008) 44 Cal.4th 983, 1010 ["[t]he 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights'"]; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [same].) Here, the trial court did not improperly apply Evidence Code section 352; in turn, there was no violation of Rosiles's right to a fair trial and due process. Rosiles's argument that the court's exercise of discretion under Evidence Code section 352 also violated his right to confrontation fails for the same reason. (See People v. Ardoin (2011) 196 Cal.App.4th 102, 122 [reliance on Evidence Code section 352 to exclude marginally probative evidence involving undue consumption of time generally does not contravene the rights to confrontation and cross-examination]; People v. DeSantis (1992) 2 Cal.4th 1198, 1249.)
Any Error in Excluding Evidence of Oliver Killings was Harmless
Finally, exclusion of evidence related to the Oliver killings was harmless under any standard of prejudice. When Michelle returned to the trailer after going to the unemployment office on the day of her murder, she ran inside to get the key to unlock the gate to the trailer property. The key was under Rosiles's pillow and Michelle told Galindo and Nancy that Rosiles was home. In his initial police interrogation, Rosiles said that Nancy "had barely left" when Michelle came in and woke him up. In his subsequent interrogation, Rosiles added that he and Michelle had sex when she woke him up. Not too long after that, Rosiles called Caroline and told her that Michelle had fallen in the shower; however, the forensic pathologist's testimony indicated that Michelle had died from multiple blunt force trauma to the head and body, not a simple fall. Rosiles stayed at the scene until his family arrived but did not call 911. After his family arrived and the police were on their way in response to Eliberto's 911 call, Rosiles fled the scene. While his family talked to the police, Rosiles hid out at his mother's house, where he took a nap as well as a shower, before surrendering several hours later. Upon his eventual arrest, detectives observed various injuries, which appeared to be fresh, on his person. Rosiles's ex-wife testified that he had beaten her during their marriage; there was also ample evidence that he and Michelle argued constantly and that he had physically abused her in the past. Rosiles's family provided conflicting accounts of events on the day of Michelle's murder, in an apparent effort to protect him. Finally, Rosiles's DNA was found on the broken novelty bat and the shower caddy, which appeared to have been used to beat Michelle; fingernail scrapings from Rosiles's hands also yielded Michelle's DNA.
II. Testimony of Sierra Chavez and Priscilla Galindo regarding Rosiles's Prior Abuse of Michelle
Sierra Chavez and Priscilla Galindo testified regarding injuries they had separately observed on Michelle; the testimony of each was offered and admitted under Evidence Code section 1109.
Rosiles challenges admission of the testimony of Chavez and Galindo regarding prior abuse of Michelle by Rosiles. He contends that "nothing but speculation supported the conclusion that [Rosiles] was responsible for the injuries Chavez and Galindo observed." He argues that before the trial court could admit, under Evidence Code section 1109, the testimony of Chavez and Galindo regarding Michelle's injuries, it was required to perform a threshold screening under Evidence Code section 403 to determine whether the injuries were actually inflicted by Rosiles. (See People v. Cottone (2013) 57 Cal.4th 269, 284; Huddleston v. United States (1988) 485 U.S. 681, 689 [uncharged offense evidence "is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor"].) Specifically, Rosiles argues: "The trial court erred in admitting the evidence without requiring the prosecution to make a foundational showing that it could present admissible evidence of [Rosiles's] identity as the perpetrator of the uncharged offenses. As the prosecution failed to make the required foundational showing that [Rosiles] had inflicted the injuries, the trial court should have excluded the evidence as irrelevant." Rosiles also contends the trial court further erred in not instructing the jury to disregard the testimony of Chavez and Galindo as to any physical injuries each observed on Michelle. The People acknowledge that these issues were properly preserved for purposes of appeal and we will address the merits.
We agree with Rosiles that admission of a defendant's prior bad acts under Evidence Code section 1109, to show propensity, requires a preliminary showing, by a preponderance of the evidence, that the defendant in fact committed those acts. (See, e.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1115 ["the truth of the prior uncharged act and defendant's connection to it are preliminary factual issues which must be decided before the prior misconduct can be deemed" relevant, and hence, admissible]; People v. Simon (1986) 184 Cal.App.3d 125, 129-132 [same]; Evid. Code, § 403 [determination of preliminary facts].) Here, however, the trial court properly admitted the testimony of Sierra Chavez and Priscilla Galindo regarding physical injuries they had respectively observed on Michelle.
Admission of Sierra Chavez's Testimony
Sierra Chavez testified that she had lived for a time in apartment No. 106 at the Parkview Apartment complex in Fresno. Michelle moved to the complex shortly after Chavez; she lived in apartment No. 107, right next door to Chavez. Michelle and Chavez became friends; during her testimony, Chavez identified Michelle from a photograph. Chavez testified: "I would see [Michelle] pretty much every single day. We would talk for a few minutes here and there every day." After a period of time, Rosiles moved into apartment No. 107 with Michelle.
After Rosiles moved in with Michelle, Michelle became more isolated and the nature of Chavez's interactions with Michelle changed. Chavez testified: "[A]fter the boyfriend ... I didn't talk to [Michelle] and hang out with her as much as I had before." Michelle simply didn't "come out of her apartment as often." In contrast, prior to Rosiles moving in, Michelle was out and about: "she had a job" and would usually be "taking the dog for a walk."
At one point during the period when Rosiles was living with Michelle, Chavez, who was not working at the time, became very concerned for Michelle; she "hadn't seen [Michelle] for about a week," which was very unusual. Chavez testified: "I hadn't seen her leave or come home or, you know, walking her dog outside." When Chavez saw Rosiles leave the apartment in that time period, she seized the opportunity "to go and see, you know if [Michelle was] okay." So Chavez "walked over to [Michelle's] apartment door [and] knocked on her door." Chavez heard Michelle inside and told her to open the door. Michelle opened the door only "[a] few inches." Chavez testified that Michelle looked so "horrible" that Chavez was "scared." Chavez explained: "She had bruises all over her face. Her - I remember her nose was cut, and her face was bruised. She had a black eye, and - and I cried when I saw her face." Michelle "started crying" too. However, Michelle "never opened the door all the way," and when Chavez asked her what was going on, she simply said: "I'm fine. Just please leave." Chavez persisted but Michelle told her "again to please just leave." Chavez went back to her own apartment and called 911.
Less than a week later, Chavez saw Rosiles and Michelle outside their apartment. Although Michelle "was healing up" and "had a lot of makeup on," Chavez could see the bruises "[u]nderneath her makeup." Rosiles approached Chavez. He acknowledged that "he gets angry," "he gets mad," and "[h]e gets stressed out." However, he said he loved Michelle and would never hurt her.
Although Rosiles complains of foundational error, Chavez's trial testimony supports, by a preponderance, the conclusion, based on circumstantial evidence, that Rosiles inflicted the injuries Chavez saw on Michelle. At the risk of being repetitious, we will highlight the salient aspects of Chavez's testimony. Chavez testified that she and Michelle were neighbors and friends before Rosiles moved in with Michelle. After Rosiles moved in with Michelle, Michelle became isolated and seldom ventured outside her apartment. Her behavior in this respect was in stark contrast to her previous routines. Prior to Rosiles moving in, Michelle was invariably out and about, she had a job, she regularly walked her dog outside, and she talked to Chavez on a daily basis. After Rosiles moved in, Chavez saw Michelle far less frequently, a change Chavez attributed to Rosiles's arrival. At one point, Chavez did not see Michelle venture out for an entire week, which worried Chavez. Accordingly, when she saw Rosiles leave one day, she took the opportunity to reach out to Michelle but Michelle barely opened her door. Chavez saw bruises on Michelle's face and cried; Michelle provided no explanation for her "horrible" appearance and cried too. Although both women were crying and Chavez was clearly worried, Michelle repeatedly told Chavez to leave, suggesting she was afraid to talk to Chavez in light of the possibility of Rosiles's return (prior to Rosiles moving in, Michelle would frequently interact and talk to Chavez, with no apparent problem). Chavez was so alarmed at Michelle's condition that she called 911. When Chavez next saw Michelle, Michelle was with Rosiles; she had "a lot of makeup on" to conceal her healing bruises. Rosiles, inexplicably, went out of his way to tell Chavez that although he got "mad" and "angry" at Michelle, he would never hurt her.
We conclude Chavez's trial testimony was adequate to support a finding, based on circumstantial evidence, that Rosiles inflicted the injuries Chavez saw on Michelle. (See People v. Coddington (2000) 23 Cal.4th 529, 591 ["circumstantial" evidence was adequate to establish the requisite foundation, for purposes of Evid. Code, § 403, to show the defendant committed the action at issue). In turn, Rosiles's claim that his convictions must be reversed on account of insufficient foundation for Chavez's testimony has no merit. (See People v. Huy Ngoc Nguyen (2010) 184 Cal.App.4th 1096, 1120 ["Absent a 'miscarriage of justice,' we may not reverse the judgment."]; Cal. Const., art. VI, § 13.)
Admission of Priscilla Galindo's Testimony
Priscilla Galindo testified she and Michelle had been friends since they were 12 years old. Also, Michelle's brother, Carlos, was Galindo's boyfriend. Galindo identified Michelle from a photograph. Galindo saw less of Michelle in the period from June 2011 until Michelle's death in September 2012. During this period, Michelle was romantically involved with Rosiles; the two of them initially lived together at the Parkview Apartments and then at the trailer home, which was "less than a minute's walk" from Galindo's own home. Michelle was a "good character" and had a "funny personality," but she was "different" around Rosiles; when Rosiles was there, Michelle "didn't speak much." Rather, Rosiles "did more of the talking," while Michelle would be "quiet" and her "sense of humor wasn't as it normally was." When Rosiles was around, Michelle would stay near him.
Galindo had heard Rosiles berate Michelle and show hostility to Michelle. One time, approximately two weeks before Michelle died, she forgot to bring Rosiles's boxer shorts for him when he was showering at an outside shower at Galindo's house. Rosiles got "upset." He said: "Fucking bitch, that she was fucking stupid. That she couldn't do anything fucking right." Although Michelle was usually "pretty vocal," and "[n]ormally if she was disrespected, she would say something," she did not respond to Rosiles at all. Another time, about a month before Michelle's death, Galindo saw Michelle and Rosiles go past her house. Galindo heard yelling and went out to her front porch. She saw Rosiles on a bicycle and Michelle walking with a dog on a leash. Michelle called to Rosiles to wait for her, but Rosiles yelled, "Get away from me, fucking bitch." Galindo also testified that in the month or two before Michelle's death, Galindo saw bruises on Michelle's upper arms, as well as a burn mark on the back of her left shoulder. However, Galindo had not seen Rosiles hit Michelle; nor had she seen these injuries being inflicted on Michelle.
The record indicates Galindo had informed law enforcement that Michelle told her that Rosiles would hit her and had burned her on the shoulder with a pipe. However, this evidence was ultimately not introduced into evidence.
We conclude that Galindo's trial testimony was adequate to support a finding, based on circumstantial evidence, that Rosiles inflicted the injuries Galindo saw on Michelle. Galindo, a childhood friend of Michelle, saw less of Michelle once Rosiles started living with Michelle. Galindo also observed that Michelle was not her usual self when Rosiles was around. Although she was normally "vocal" and would not tolerate disrespect, she was submissive and withdrawn around Rosiles, even in the face of vicious verbal abuse and overtly hostile behavior. Although Rosiles complains of foundational error, Galindo's trial testimony supports, by a preponderance, the conclusion, based on circumstantial evidence, that Rosiles inflicted the injuries that Galindo saw on Michelle. Rosiles's claim that his convictions must be reversed for insufficient foundation for Galindo's testimony therefore has no merit.
Finally, even were we to assume the trial court erred in admitting evidence of Rosiles's prior acts of domestic violence as testified to by Chavez and Galindo, the error was harmless. There was ample evidence in the record regarding Rosiles's history of abusive conduct. For one thing, apart from the respective testimony of Chavez and Galindo regarding the injuries each observed on Michelle, both also testified that Michelle had become withdrawn and isolated after Rosiles moved in with her. Gualberto Martinez testified that about a week before Michelle was killed, Rosiles had threatened to kill both Gualberto and Michelle. Rosiles himself acknowledged to law enforcement that in the past, arguments between Michelle and him had turned physical, involving "pushing and stuff." Nancy, Michelle's sister-in-law, testified that just a few days before Michelle was killed, Michelle "seemed sad, just crying." Nancy testified: "I told her just to leave, it's not worth it." Nancy further recounted: "I said, 'He hit you?'" In response, Michelle "put her head down and started crying." Michelle's reaction greatly troubled Nancy because Michelle "was a tough girl," who would normally "let no one hit her."
In addition, Reinea Romo, Rosiles's ex-wife, testified that Rosiles would punch and kick her violently when the two were married; she also testified that he hurled a screwdriver at her that missed her but lodged in a wall behind her. On another occasion, Rosiles stabbed Romo in the leg with a pair of scissors and threatened to kill her if she told anyone about the abuse. Beyond the evidence of Rosiles's prior abusive conduct, the record as a whole also convincingly demonstrated Rosiles's guilt.
Moreover, the disputed testimony of both Chavez and Galindo was relatively brief, both made clear they had not seen Rosiles inflict the injuries at issue on Michelle, neither testified about inflammatory, contextual details related to the infliction of the injuries, and the injuries they described were less severe than the injuries underlying the charged crimes. The jury was also instructed that it could not consider the testimony of Chavez and Galindo as to prior acts of domestic violence to infer propensity, unless it first found, by a preponderance of the evidence, that Rosiles had committed the acts at issue, and further, that evidence of any prior acts of domestic violence "is not sufficient by itself to prove the defendant is guilty of the crimes charged." (See CALCRIM No. 852.)
Rosiles argues that to the extent the respective testimony of Chavez and Galindo regarding the injuries observed on Michelle was admitted without adequate foundation, the prejudice from this testimony was amplified by the lack of an instruction directing the jury to disregard the testimony. Rosiles further argues, unconvincingly, that the court's standard instruction to the jury regarding the use of propensity evidence served to exacerbate, rather than ameliorate, the prejudicial effect of the inadmissible testimony of Chavez and Galindo. However, even were we to assume the instructions, as given, exacerbated any prejudice arising from admission of the respective testimony of Chavez and Galindo regarding injuries each observed on Michelle, it is not reasonably probable that, had this evidence been excluded, the result of the proceeding would have been more favorable to Rosiles. (People v. Watson (1956) 46 Cal.2d 818; see People v. Ogle (2010) 185 Cal.App.4th 1138, 1145 [any error in admitting uncharged act of domestic violence was harmless under Watson standard]; People v. Harris (1998) 60 Cal.App.4th 727, 741 [applying Watson standard to sexual offense propensity evidence admitted under Evid. Code, § 1108].)
We reject Rosiles's contention that the erroneous admission of this testimony violated his right to a fair trial, thereby triggering application of the Chapman standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24.)
III. Admission of Testimony of Bob Meade, the People's Domestic Violence Expert
Rosiles next challenges admission of the testimony of Bob Meade, the People's expert witness on domestic violence. Rosiles argues Meade's testimony was improperly admitted to prove the charged crimes, by showing that Rosiles fit the profile of a typical abuser and acted accordingly. We reject this contention.
Meade's testimony was admitted under Evidence Code section 1107. This statute provides: "In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." (Evid. Code, § 1101, subd. (a).) The prosecutor told the court that it planned to introduce Meade's testimony in light of the "People's theory that this is a murder committed during a domestic violence episode," and, more specifically, because it would "provide the jury with background on the [Evidence Code section] 1109 evidence" that would be introduced at trial. The prosecutor explained that without expert testimony regarding the "dynamics" of domestic violence "the jury would be left without explanation as to some of the [Evidence Code section] 1109 evidence that would be introduced." The prosecutor also represented that the expert testimony was relevant in light of evidence that Michelle was resigned to Rosiles's abuse and would not hit him back. Specifically, the prosecutor said: "[T]he People would request to introduce [expert] evidence to show the behavior of a victim in a domestic violence abuse relationship pursuant to [Evidence Code section] 1107 and [to] offer that fact to Mr. Meade in the form of a hypothetical." The court agreed that expert testimony would be admissible under Evidence Code section 1107 for the stated purposes, to the extent the expert would "testify in generalities about the nature of intimate partner battering."
Rosiles was charged with Michelle's murder, as well as the infliction of corporal injury on Michelle, a domestic partner and cohabitant. The prosecution presented evidence, under Evidence Code section 1109, to show that the relationship between Michelle and Rosiles was marked by domestic violence. The prosecution also presented, under Evidence Code section 1109, the testimony of Reinea Romo, a prior cohabitant and spouse of Rosiles, to show that Rosiles had extensively abused Romo. As discussed in more detail below, the trial court properly admitted expert testimony on intimate partner battering and its effect on victims for purposes of assisting the jury in understanding uncharacteristic or inconsistent behavior exhibited by Michelle and Romo during their respective relationships with Rosiles.
Meade had extensive experience working with victims of domestic violence; he had also counseled perpetrators of domestic violence in "batterer's intervention" programs. Meade explained that physical violence in an intimate relationship reflected the abusive partner's need to "dominate" and "control" the other partner, and served as a means to reinforce "mental and verbal abuse." Thus, physical abuse exists alongside mental and verbal abuse, with physical abuse causing fear in the victim and mental and verbal abuse leading to a "brainwashing" of the victim.
Meade talked about the fact that abusers tended to show their victims two alternate states or faces: a wonderful, nice, caring, sweet, perfect face (the "Dr. Jekyll state") and a vicious, ugly, monstrous face (the "Mr. Hyde state"). "This type of duality creates a mind set oftentimes with the victim that if they can just get [the abuser] to be Dr. Jekyll all the time, everything would be wonderful. And it is almost ... a brainwashing. It becomes addictive almost." Meade suggested that victims end up staying in abusive relationships because of the periodic appearance of the abuser's "Dr. Jekyll state."
Meade also talked about a "cycle of violence" that characterizes abusive relationships. The cycle of violence has three phases: a honeymoon phase, a tension phase, and an explosion phase. The honeymoon phase is where "everybody is in love, peaches and cream time." "That is followed by a tension phase, where sooner or later one of us says something or does something the other one doesn't like." "And that swings into an explosion phase where you have the abuse, which can be verbal, and verbal putdowns, yelling, screaming, it can be mental, [involving] crazy-making mind games, and also generally involves physical [abuse]." The cycle can create situations where victims deliberately provoke the abusive partner to explode, in the hope that the relationship would thereafter revert to the honeymoon phase. Other victims try to change their own behavior, struggling to make everything right so the relationship can "swing into a new honeymoon phase."
Meade further explained: "The thing with the cycle of violence is that the longer it goes, usually the cycles become shorter, until usually the honeymoon phase will drop out and you just have tension and explosion, and usually it becomes more violent as it goes. Where it starts out as a poke or a yank of the hair, it can eventually escalate to serious physical damage and/or death." The intensity of the violence also tends to increase when the abuser does not receive treatment. At the same time, the brainwashing effected through the co-occurring mental and verbal abuse, results in victims faulting and blaming themselves for the abuse. In the face of ongoing abuse, victims lose agency and instead develop a sense of helplessness. Victims thus usually do not ask for help from or cooperate with law enforcement; indeed, they are "usually in love with the abuser" and want to remain with him because at least "[h]e's there" and "comes home" to them. Victims fear they would not manage without the abuser, who controls them and tells them what to do; they doubt that the police would be able to provide an effective remedy; and they are afraid of enraging the abuser in the event an attempt to seek outside help fails. Abusers also systematically isolate their victims, so they have limited outside support as well as minimal opportunities to confide in others about the abuse; victims thus are more susceptible to the abuser's control.
Meade clarified that his testimony related to domestic violence in general. He had never met Rosiles or Michelle, did not know any details or facts about them, did not know anything about the incident underlying the present case, had not reviewed any investigative reports related to the present case, had not prepared any reports in connection with his testimony, had not met with the prosecutor in connection with the case or spoken to him about the substance of his testimony, and had no opinion regarding the relationship between Rosiles and Michelle or Rosiles's conduct in that relationship.
In the instant trial, several witnesses testified that Michelle was generally a strong and vocal person who would not tolerate disrespect from anyone. At the same time, these witnesses indicated that Michelle would not stand up to Rosiles or directly reveal to others that she was suffering ongoing abuse. Meade's testimony contextualized Michelle's behavior and was relevant for purposes of assisting the jury to properly interpret the evidence about Michelle's unusual behavior.
Meade's testimony was more specifically relevant for purposes of assisting the jury in interpreting Romo's testimony and properly evaluating her credibility. Romo's testimony was significant in light of the prosecution's theory of the case; her testimony was admissible as relevant propensity evidence under Evidence Code section 1109. Romo described instances of severe abuse by Rosiles. Nonetheless, Romo never called 911 or told anybody about the abuse Rosiles inflicted on her. Rosiles was, however, eventually charged and tried in connection with his abuse of Romo. Romo was called as a witness in that trial; her testimony there was markedly different from her testimony in the instant trial. In the earlier trial, Romo had lied, minimizing the violence inflicted on her in order to "protect" Rosiles. Despite the ongoing abuse, she "loved him" and "didn't want him to go away." By the time of the instant trial, 10 years had passed since she and Rosiles had parted ways. Romo testified that, unlike the prior case, she told the truth in the instant case.
Prior to trial, defense counsel had challenged the admissibility of Romo's testimony. Counsel pointed to the discrepancy between Romo's testimony in the prior trial and her preliminary hearing testimony in the instant case. With respect to the discrepancy, counsel asserted: "[Romo's] testimony either at that trial was not credible or at the preliminary hearing was not credible. Either way, this witness's testimony is questionable. And therefore, while it is highly prejudicial, it is not one that the Court should allow in because it is just fundamentally not reliable." The prosecutor indicated that Meade's testimony would help explain why Romo had lied in the prior trial and was therefore relevant to the jury's assessment of Romo's credibility. As the prosecutor had anticipated, the discrepancy between Romo's testimony at the prior trial and her testimony in the instant case became an issue at trial; defense counsel asked Romo whether she lied in the prior trial and Romo acknowledged that she did.
Meade's testimony was relevant for the jury to properly interpret Romo's testimony and evaluate her credibility. Meade explained that, in general, victims of domestic abuse are controlled by the abuser, blame themselves for the abuse, and stick by the abuser, who isolates his victim from other sources of support. In light of the relevance of Meade's testimony to the assessment of Romo's credibility, the trial court ultimately instructed the jury that it could consider Meade's testimony solely for purposes of evaluating Romo's credibility. Specifically, the court instructed the jury:
"You have heard testimony from Bob Meade regarding the effect of intimate partner battering.
"Bob Meade's testimony about intimate partner battering is not evidence that the defendant committed any of the crimes charged against him.
"You may consider the evidence only in deciding whether or not Reinea Romo's conduct was not inconsistent with the conduct of someone who has been abused and in evaluating the believability of her testimony."
Several cases have clarified that an expert's testimony on the "cycle of violence" that characterizes intimate partner battering is admissible under Evidence Code section 1107. For example, People v. Gadlin (2000) 78 Cal.App.4th 587 (Gadlin) explained: "When ... testimony [regarding intimate partner battering] is properly admitted, testimony about [the] hypothetical abuser and hypothetical victim is needed for [the dynamics of a violent intimate relationship] to be understood." (Id. at p. 595.) "[L]imiting the testimony to the victim's state of mind without some explanation of the types of behaviors that trigger [specific responses on the victim's part] could easily defeat the purpose for which the expert is called, which is to explain the victim's actions in light of the abusive conduct. (Ibid.) Our Supreme Court further explained in People v. Riggs (2008) 44 Cal.4th 248, 293, that the relevance of expert testimony regarding intimate partner battering is related to the fact that "the jurors might unjustifiably develop a negative view of [a] witness's credibility" based on "misperceptions" about her conduct, even when her credibility is not contested by the defendant.
Here, there was a representation by the prosecutor to the court that Meade's testimony was offered to explain the behavior of domestic violence victims, including Michelle and Romo. In addition, Meade explicitly clarified that he knew nothing about the facts of the instant case and had no opinion on the relationship between Michelle and Rosiles or the conduct charged in this case. Finally, the court correctly and prudently instructed the jury that it could consider Meade's testimony only for purposes of evaluating Romo's testimony, thereby clarifying its reasoning in admitting Meade's testimony in the first place. (See Gadlin, supra, 78 Cal.App.4th at p. 594 [expert evidence on intimate partner battering "speaks directly" to provision of inconsistent testimony by a domestic abuse victim, "especially where such actions are used to attack her credibility"]; Riggs, supra, 44 Cal.4th at p. 293 [expert testimony on intimate partner battering "is relevant to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand"]; see also People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 14 [we presume the jury followed the court's instructions].) The court also cautioned the jury, as part of the instruction, that "Bob Meade's testimony about intimate partner battering is not evidence that the defendant committed any of the crimes charged against him." In addition, the jury was instructed that evidence of uncharged domestic violence was "not sufficient by itself to prove that the defendant is guilty of the crimes charged," which must still be proven beyond a reasonable doubt.
We review the court's ruling to admit Meade's expert testimony for abuse of discretion and find none. (People v. Lindberg (2008) 45 Cal.4th 1, 45 [a court's decision to admit expert testimony is reviewed for abuse of discretion]; People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125 ["Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'"].) Rosiles's contention that Meade's testimony was admitted for the improper purpose of proving the charged crimes, by showing that Rosiles's actions conformed to those of a typical abuser, has no merit.
Rosiles also contends the prosecutor posed an improper hypothetical to Meade. Specifically, the prosecutor asked: "Assume, hypothetically, Mr. Meade, that we have a certain domestic violence abuser who has hurt, we'll call her woman A, and the domestic violence abuser and woman A for whatever reason stop being together in an intimate relationship and the domestic violence abuser moves on to person B. What similar - what similarities or differences do we expect in the dynamics of the relationship with domestic abuser and person B." Meade responded that the abuser would repeat the cycle of violence in the second relationship. Rosiles contends the hypothetical was improper because it elicited testimony that did not shed light on the behavior of a victim of domestic violence but, rather, was designed to elicit testimony to prove the occurrence of the acts of abuse underlying the instant charges. However, here defense counsel did not interpose an objection to the prosecutor's question on this specific basis; counsel simply objected on vague grounds of incompleteness of the hypothetical. Accordingly, Rosiles cannot now challenge this aspect of the expert's testimony. (See People v. Clark (1992) 3 Cal.4th 41, 125-126 ["In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial court's rulings on admissibility of evidence will not be reviewed."].)
Finally, to the extent Rosiles further argues the prosecutor improperly referenced Meade's testimony in his closing argument, that issue is also forfeited, as defense counsel did not object when the prosecutor made the disputed references. In any event, as discussed below, any errors arising from the prosecutor's conduct were ultimately harmless.
IV. Testimony of Detective Palma Regarding Rosiles's Interrogation
Rosiles challenges Detective Palma's testimony describing certain aspects of Rosiles's behavior during his police interrogation, which Palma conducted. Rosiles argues Palma's testimony amounted to inadmissible opinion evidence as to Rosiles's credibility. Rosiles further contends the trial court's admission of this testimony constitutes reversible error. We reject these contentions.
Background
At trial, during the testimony of Detective Palma, the prosecutor played recorded audiotapes of Rosiles's police interrogation. Palma, along with another detective, conducted the interrogation, which occurred in three back-to-back sessions. The prosecutor asked Palma whether Rosiles became agitated during the interrogation. Palma said Rosiles became upset as the interrogation proceeded. Palma explained: "He raised his voice and he was - he still stayed seated in the chair, but he raised his voice and he was confrontational and asking us questions. We were asking him questions, but he would interject and ask us ... his own questions, accusing us."
The prosecutor asked whether Palma had any training on this point, i.e., "a subject of an interview interjecting his own questions ... that are not responsive to your questions?" After Palma answered affirmatively, the prosecutor attempted to ask a followup question but defense counsel objected on grounds of "lack of foundation." The court directed the prosecutor to proceed with a different question. The prosecutor then asked Palma whether he perceived Rosiles "to be utilizing deflection" during the interrogation. Palma answered "yes," explaining that he understood deflection to signify a situation in which the subject of an interrogation "interject[s] by either switching the subject or asking you questions themselves about another - another matter." Palma described the way Rosiles interacted with the detectives in more detail: "[O]n several occasions throughout the interview when we were questioning Mr. Rosiles about what happened in the trailer, rather than him answering the question, he kept asking us questions and accusing us of not telling him what happened with Michelle. He kept accusing us of [not telling] him that Michelle was deceased. That's where I could perceive that Mr. Rosiles was using a deflection tactic."
Palma described other aspects of Rosiles's behavior during the interrogation. Rosiles was cold so the detectives gave him a blanket. Rosiles covered his head and body with the blanket and lowered his body, at times placing his head on the table in front of him. Palma explained: "I felt that Mr. Rosiles, for one thing, he didn't want to be in [this] position, and other times we've interviewed other people, they sit up straight and they talk to you. On this occasion, Mr. Rosiles appeared to be upset that we were ... questioning him." Palma also said that Rosiles showed sudden "mood changes" over the course of the interrogation. Palma elaborated: "[Rosiles] would become very upset, accuse us, yell at us. And then right after he did that, we would either tell him to calm down or point something out to him, and he would de-escalate his level of intensity and become apologetic for what he did." Palma noted that Rosiles "would be crying," but in response to certain questions would get angry and then would "become very mellow, his voice would lower."
Analysis
Rosiles challenges Palma's testimony to the effect that, at various times in the course of the interrogation, Rosiles (1) got angry at the detectives, interjecting with accusations and questions of his own, seemingly as a deflection tactic; and (2) switched from crying to being angry to being contrite and mellow, in apparent, sudden mood changes. Rosiles argues Palma's testimony amounts to inadmissible opinion evidence as to Rosiles's credibility in relation to his police interrogation. Rosiles, however, has forfeited these challenges for lack of appropriate objections below. (See People v. Smith (2015) 61 Cal.4th 18, 46, fn. 13 (Smith) [defendant's claim that detective's testimony was improper opinion evidence "was forfeited by the failure to object on that ground below"]; People v. Chatman (2006) 38 Cal.4th 344, 397 (Chatman) [same].) When Palma testified, defense counsel objected on grounds of "lack of foundation," rather than improper opinion. In any event, as explained below, Rosiles's contentions fail on the merits.
We review the trial court's evidentiary rulings for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128 ["We review a trial court's rulings on the admission and exclusion of evidence under the abuse of discretion standard."]; People v. Ballard (1993) 13 Cal.App.4th 687, 691.) Here, Palma was a percipient witness and spoke from personal observation. He was competent to testify that Rosiles's behavior—getting angry, making accusations, and interjecting with questions rather than providing answers—was consistent with deflection. Palma was similarly competent to testify that Rosiles would go from crying to yelling to being calm, apparently undergoing sudden mood changes. "Generally, a lay witness may not give an opinion about another's state of mind." (Chatman, supra, 38 Cal.4th at p. 397.) "However, a witness may testify about objective behavior and describe behavior as being consistent with a state of mind." (Ibid. [testimony that defendant kicked a person and appeared to enjoy doing so was not improper opinion testimony].) In addition, Palma's testimony was relevant for purposes of assessing Rosiles's credibility. (See Smith, supra, 61 Cal.4th at p. 46 [detective's testimony to effect that defendant appeared to cry during interrogation but covered his eyes, his face and eyes were not red, and no tears were visible, was properly admitted as it was relevant to defendant's credibility and was not improper opinion evidence because it was based on detective's own observations]; People v. Butler (1970) 12 Cal.App.3d 189, 193 ["'Any conduct of a defendant subsequent to the commission of the crime tending to show consciousness of guilt is relevant and admissible.'"]; Evid. Code, § 210.) Accordingly, the trial court acted within its discretion in admitting the disputed testimony. Rosiles's contention that Palma's testimony was improper opinion evidence has no merit. Finally, this testimony was not prejudicial as it merely supplemented what the jury heard on the audiotapes of Rosiles's interrogation. (Smith, supra, 61 Cal.4th at p. 46.)
VI. Instruction on Consciousness of Guilt
The trial court instructed the jury pursuant to CALCRIM No. 371, Alternative C, regarding consciousness of guilt, on the defendant's part, on account of fabrication or suppression of evidence by a third party:
"If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was
present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
Rosiles now argues that, to the extent this instruction permits an inference of consciousness of guilt on the part of the defendant simply because a third party testifies falsely in his presence, the instruction is not supported by case law. Specifically, Rosiles contends this instruction contravenes applicable case law by permitting an inference of consciousness of guilt without requiring a showing that the defendant condoned or authorized the third party's conduct. We reject these contentions.
Contrary to the People's position, Rosiles's failure to object to CALCRIM No. 371 does not preclude our consideration of the merits of his claim. (§ 1259 [appellate court may review an instruction, even when no objection was made below, if defendant's substantial rights were affected]; People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13.)
In People v. Weiss (1958) 50 Cal.2d 535, 554 (Weiss), our Supreme Court stated: "'Generally, evidence of the attempt of third persons to suppress [or fabricate] testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation]. However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.'" (Italics added.) The high court reaffirmed this principle in People v. Hannon (1977) 19 Cal.3d 588, 597 (Hannon). Relying on Weiss, the court held that "the admission of evidence purporting to show suppression or attempted suppression of evidence is erroneous absent the prerequisite of proof that the defendant was present at such an incident or proof of authorization of such illegal conduct." (Hannon, supra, at p. 600, italics added.) Hannon thus holds that consciousness of guilt may be inferred under two distinct scenarios. When a third party tries to falsify evidence outside of the defendant's presence, the jury may infer consciousness of guilt if the defendant has authorized the conduct. Alternatively, a jury may infer consciousness of guilt when a third party tries to falsify the evidence in the defendant's presence. This is precisely what CALCRIM No. 371 instructs. Indeed, our Supreme Court has recognized that CALCRIM No. 371 correctly states the law: "Consciousness of guilt may be shown by (1) a defendant's own efforts to create false evidence or obtain false testimony, or (2) the efforts of someone else to do so, 'but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions.' (CALCRIM No. 371.)" (People v. Nelson (2011) 51 Cal.4th 198, 214, fn. 9.) The rationale underlying CALCRIM No. 371 is sound because acts of omission can be equally revealing as acts of commission and standing by while a third person falsifies the evidence may, depending on the circumstances, properly indicate consciousness of guilt.
Rosiles contends CALCRIM No. 371 violated his due process rights to the extent it allowed the jury to infer consciousness of guilt on his part from a third person's false in-court testimony, since such testimony would necessarily occur in his presence. Rosiles suggests the instruction prejudiced him in light of testimony given at trial by his mother, Caroline. We will summarize the evidence relevant to Rosiles's claim. The jury heard a recording of Rosiles's police interrogation at trial. During his interrogation, Rosiles stated that when he found Michelle on the bathroom floor, he panicked and called his mother, Caroline, who then arrived at the trailer with two of Rosiles's brothers. Rosiles said that after one of his brothers called 911, Rosiles left the trailer with his mother, evidently to go to her house. The detectives conducting the interrogation told Rosiles that Caroline had denied driving Rosiles from the trailer to her house. Rosiles, however, insisted that Caroline had done so. He said he took a shower there, and on Caroline's advice, rested there for a while. In contrast to Rosiles's statement, Caroline testified at trial that she did not see Rosiles upon arrival at the trailer on the afternoon of Michelle's murder, nor did she drive him from the trailer to her own home. Rosiles now complains that CALCRIM No. 371, as given, permitted the jury to infer consciousness of guilt on his part because he was present in court when Caroline testified, and was, in turn, prejudicial. Rosiles's suggestion is nothing short of absurd. For one thing, there is no reasonable possibility the jury interpreted CALCRIM No. 371 in the manner that Rosiles suggests. For another thing, the applicable record precludes any possibility that the jury would infer consciousness of guilt, on Rosiles's part, from Caroline's false testimony, given that Rosiles himself gave the police a directly contrary statement, which made the falsity of Caroline's testimony apparent in the first place. Accordingly, Rosiles cannot show, under any standard of prejudice, that he was prejudiced by CALCRIM No. 371 in the manner he suggests. Indeed, had the complained-of error been remedied by means of a further instruction clarifying that CALCRIM No. 371 did not apply to a third party's attempt to testify falsely in court, it would have had no effect on the verdict.
The prosecutor did not reference CALCRIM No. 371 in his closing argument or argue that any witness's in-court testimony showed that Rosiles was aware of his guilt. In addition, the court instructed the jury with CALCRIM No. 200: "Some of these instructions may not apply depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." This instruction adequately alerted the jury that it should disregard any instructions that did not apply to the facts of the case.
V. Ineffective Assistance of Counsel
Rosiles contends that defense counsel was ineffective at trial. He cites a long list of counsel's actions and omissions that he asserts constitute deficient performance. He also argues that counsel's alleged errors were prejudicial, either separately or cumulatively. We conclude Rosiles has not established ineffective assistance of counsel based on defense counsel's actions and/or omissions.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness" under prevailing professional norms, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.) "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Further, it is not necessary to determine, in every instance, whether counsel's challenged action or omission was professionally unreasonable. If the reviewing court can resolve the ineffective assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent the challenged action or omission by counsel—it may do so. (Strickland, supra, at p. 697.)
Failure to Introduce Evidence Related to the Oliver Killings
Rosiles faults counsel for his "handling of the issues" in the effort to introduce evidence related to the Oliver killings, labeling it "slipshod at best." He concedes, however, that "counsel ultimately did convey the relevance and admissibility of the evidence." We cannot agree that counsel was deficient in his attempts to introduce this evidence. As discussed at the beginning of this opinion, counsel was relentless in his attempts to introduce this evidence, presenting several different theories for its potential admissibility, but the trial court properly excluded it. The record discloses no evidence of a connection between the Oliver killings and Michelle's murder. Rather, the trial court correctly noted: "It is simply an unfortunate coincidence that there were three persons killed at the same address on two separate dates, a month apart, and apparently by different individuals."
The trial court properly excluded evidence of the Oliver killings proffered under a third party culpability theory. Similarly, the court properly excluded evidence of the Oliver killings under Evidence Code section 352 when offered to show that Michelle feared potential retaliation by supporters of the Olivers and that police had failed to investigate the basis for her fears (Michelle had expressed only a generalized fear in an interview with an investigator for her brother). (See People v. Panah (2005) 35 Cal.4th 395, 481-482 [evidence proffered to show that "someone was 'out to get'" defendant was not relevant third party culpability evidence and was inadmissible under Evid. Code, § 352].) Finally, the court properly excluded evidence of the Oliver killings when offered to show that Rosiles reasonably fled the crime scene out of fear that supporters of the Olivers had killed Michelle. Rosiles remained at the crime scene until his mother and brothers arrived in response to his calls, fleeing only when the arrival of the police was imminent. In short, although trial counsel diligently tried to introduce evidence related to the Oliver killings so as to be able to argue that someone related to the Olivers murdered Michelle in retaliation, the trial court properly excluded this evidence as irrelevant as well as inadmissible under Evidence Code section 352. Trial counsel's performance was not deficient in this regard; nor did exclusion of this evidence prejudice Rosiles's defense.
Failure to Object to Testimony of Bob Meade , the People's Expert Witness
Rosiles contends that defense counsel's failure properly to object to the testimony of Bob Meade, the People's expert on domestic violence, constitutes ineffective assistance of counsel. Rosiles faults counsel for failing to object to Meade's testimony about the cycle of violence that characterizes domestic abuse. Rosiles also faults counsel for not objecting to Meade's testimony to the effect that the cycle of violence becomes more violent over time such that, failing treatment for the abuser, the violence escalates until the victim leaves the relationship, the abuser is arrested, or "someone gets killed." However, many courts have found testimony about the cycle of violence to be admissible, so long as it refers to abuser behavior in the abstract, because a description of abuser behavior is necessary in order to understand victim responses and behavior over the long term. (See Gadlin, supra, 78 Cal.App.4th at p. 595 [expert testimony on intimate partner battering may properly encompass "testimony about the hypothetical abuser and hypothetical victim," in order for the battered partner's responses to be properly "understood"]; People v. Brown (2004) 33 Cal.4th 892, 905-907 [expert testimony regarding dynamics of domestic violence is admissible]; People v. Kovacich (2011) 201 Cal.App.4th 863, 899-900 [same].) Accordingly, competent counsel could reasonably determine that an objection to admission of this testimony would be futile. In any event, as discussed below, admission of this testimony was not prejudicial.
Rosiles also argues that defense counsel failed to object appropriately to Meade's testimony to the effect that when an abuser moves from an abusive relationship to a new relationship, the latter relationship could be expected to "follow the same line" as the previous one, i.e., the cycle of violence would continue because "[h]e is an abuser." Counsel objected to this testimony on grounds of "incomplete hypothetical," an objection the trial court overruled. While counsel could properly have objected to this testimony on grounds that it was inadmissible because it did not shed light on the behavior of a victim of intimate partner battering, for the reasons discussed below, we cannot say that counsel's failure to do so was prejudicial.
Finally, Rosiles contends defense counsel was derelict in not objecting when the prosecutor referenced Meade's testimony in his closing argument in allegedly improper ways. For example, defense counsel did not object when, after noting that Romo and Rosiles eventually went their separate ways, the prosecutor said: "Mr. Meade told us the names of the victims may change but the offender's behavior will not." Similarly, defense counsel did not object when the prosecutor referenced Meade's testimony in describing an instance when Rosiles sought out Sierra Chavez to tell her that he would not abuse Michelle. Specifically, the prosecutor pointed to Meade's testimony that abusers try to exonerate themselves in the eyes of their victims' friends and family members.
Here, the trial court had instructed the jury that it was to consider Meade's testimony only for purposes of evaluating Romo's credibility. Although an objection to the prosecutor's statements was warranted, the court's instruction minimized the possibility that the jury would misapply the prosecutor's remarks. Secondly, Meade made clear that he did not know anything about Rosiles or the facts of the instant case, a point that defense counsel reinforced in his own closing argument by noting that Meade simply talked "in abstracts" and knew "nothing" about the people or the situation at hand. Finally, to the extent the jury relied on Meade's testimony to conclude Rosiles abused Michelle, and therefore had a motive to kill her, other evidence would likely have yielded the same conclusion. (See People v. Kovacich, supra, 201 Cal.App.4th at p. 903.) Assuming that Meade's testimony exceeded the limits contemplated by the trial court in admitting the testimony under Evidence Code section 1107, and that the prosecutor improperly referenced certain aspects of such testimony, we cannot say that, had Meade's testimony been properly limited and the prosecutor's allegedly improper remarks stricken, the outcome of the proceeding would have been different. Accordingly, we conclude that Rosiles has not established ineffective assistance of counsel.
Testimony of Nancy Jimenez
Nancy Jimenez, Michelle's sister-in-law, testified that she had visited Michelle at the trailer a few days before Michelle's death. Nancy testified that Michelle seemed "sad, just crying." Nancy explained: "Something was wrong with her. She was like something was on her mind." Nancy asked Michelle, with reference to Rosiles: "He hit you?" The prosecutor then asked Nancy what she had observed after asking Michelle whether Rosiles hit her. Nancy responded that Michelle "put her head down and started crying." Nancy testified she found Michelle's conduct troubling because Michelle, whom she had known for 14 years, was a "tough cookie" who would not "let [anyone] hit her." The behavior Nancy had observed was not consistent with who Michelle was. Nancy told Michelle to "pack up and leave" because "it's not worth it." Nancy acknowledged she had never seen Rosiles hit Michelle.
In his closing argument, the prosecutor referred to Nancy's testimony about Michelle's uncharacteristic behavior to suggest that Michelle was afraid of Rosiles and resigned to her situation. The prosecutor stated: "And Nancy asked the question does he hit you? We didn't hear the verbal answer, but her body language says it all. Michelle hangs her head down and she cries. Does she really have to say what's been going on at that point." The prosecutor then referenced the state of learned helplessness that afflicts victims of domestic abuse, whereby they are under an abusive partner's control and do not seek outside help. The prosecutor noted, "[Nancy] had known Michelle for more than ten years, and that was not the Michelle that she knew." He added, "That's exactly why [Michelle] didn't seek help when Nancy Jimenez is saying, what's going on? Does he hit you? Michelle Jimenez was in a state of learned helplessness."
Rosiles now argues that defense counsel was ineffective because he failed to object, on hearsay grounds, to Nancy's testimony that Michelle had put her head down and cried when asked whether Rosiles hit her. We conclude Rosiles has not established ineffective assistance of counsel on this basis.
Rosiles argues that Michelle's conduct, i.e., putting her head down and crying, amounted to hearsay because it was offered to show that Michelle essentially answered Nancy's query as to whether Rosiles hit her, in the affirmative. However, when Nancy's testimony and the prosecutor's references to it in his closing argument are viewed in context, it is clear the prosecutor offered Nancy's testimony to highlight the change Michelle had undergone in the course of her relationship with Rosiles. Nancy described Michelle as a "tough cookie" and noted that the helpless and resigned way that Michelle responded to Nancy's question was inconsistent with the Michelle Nancy had known for 14 years. In short, Nancy's testimony was admissible to show the change that Michelle had undergone while living with Rosiles. Given that Nancy's testimony was admissible for this purpose, any hearsay objection lodged by defense counsel would have been unavailing. Under these circumstances, the only recourse available to counsel would have been to ask the trial court to instruct the jury that it could not consider Nancy's testimony to infer that Michelle had answered Nancy's question in the affirmative. However, given that the jury could properly infer, based on the change in Michelle's personality, that Rosiles was abusing her, we cannot say that the above-described jury instruction would have made any difference to the jury's consideration of Nancy's testimony and, ultimately, to the outcome of the proceeding. Thus, counsel's conduct in relation to Nancy's testimony was neither incompetent nor prejudicial. In turn, Rosiles has not established ineffective assistance of counsel.
Testimony of Rosiles's Relatives
Rosiles contends that defense counsel was ineffective in not objecting to the introduction of testimony or prior statements from his mother, Caroline, and two brothers, Eliberto and Samuel, all of which, he asserts, encompassed inadmissible character evidence. We conclude Rosiles has not established that counsel was ineffective in this regard.
Caroline's Testimony and Police Statement
On the day of Michelle's murder, Caroline gave a statement to the police in which she stated: "[Rosiles is] a very abusive person and he needs help." When Caroline was subsequently called by the People as a witness at trial, the prosecutor asked her whether she had ever described Rosiles as an abusive person. Caroline answered, "No." Thereafter, the prosecutor introduced Caroline's police statement, which served to impeach Caroline's trial testimony on this point. Rosiles contends trial counsel was ineffective for not objecting when the prosecution introduced Caroline's police statement. We reject the contention that counsel's conduct was deficient in this regard. Counsel could reasonably have decided not to object when the prosecutor initially raised the issue with Caroline, in order to avoid additional questions about the basis for Caroline's view, which, in turn, could have led to the introduction of damaging details. As it turned out, Caroline testified she had not described Rosiles as an abusive person, whereupon her statement to the police on this point was admissible as impeachment evidence, a turn of events that was not reasonably foreseeable. Furthermore, in light of the highly general nature of Caroline's comment that Rosiles was an abusive person, we cannot say counsel was deficient in failing to move in limine to exclude it. In any event, Caroline's comment was harmless in light of Romo's testimony of the severe abuse Rosiles inflicted on her, as well as Rosiles's own statement that he had engaged in physical altercations with Michelle.
Eliberto's Testimony
Eliberto testified that he had a good relationship with Rosiles; they did not fight although they "argued here and there." Eliberto acknowledged he had told detectives that he did not get along with Rosiles because Rosiles was always "trying to fight ... for stupid little reasons." However, Eliberto clarified that Rosiles had never been violent with him, or "even laid a hand" on him. When the prosecutor asked whether Eliberto had told detectives that Rosiles was a "violent guy," Eliberto stated, "[n]ot that I can remember." The prosecutor then sought to refresh Eliberto's recollection with a transcript of his police interview, but Eliberto countered that he "didn't say it exactly like that." We conclude that Eliberto's testimony was not prejudicial in light of the record as a whole. Accordingly, Rosiles has not established ineffective assistance with respect to counsel's failure to object at various points during Eliberto's testimony.
Samuel's Testimony
Samuel was a defense witness. During direct examination, Samuel testified that although he did not have a particularly good relationship with Rosiles in the past, more recently Rosiles had "changed a lot" and Samuel's relationship with him had improved greatly. The prosecutor then proposed introducing a redacted version of Samuel's recorded police statement into evidence, but defense counsel objected to parts of the statement on grounds of improper character evidence. The prosecutor argued that counsel, on account of his direct examination of Samuel, had opened the door to the introduction of Samuel's recorded statement. Defense counsel, for his part, specifically objected to the following statement in Samuel's recorded police interrogation: "[E]very time I'm around [Rosiles] ... I feel you know like I gotta be protective of myself, 'cause he's, he's like more of the prison mentality." Counsel also objected to the introduction of Samuel's affirmative response to the question whether Rosiles was violent. The trial court overruled the objections, ruling that these statements were neither improper character evidence, nor more prejudicial than probative. Thereafter, Samuel's redacted police interrogation was played for the jury, including the following statement: "[M]e and my brother we've, we've had a really bad past before. We used to fight. He used to bite pieces off of my back of my neck right here. We used to -he ... we used to stab each other, so me and him we don't really talk too good like that, you know?"
Rosiles now argues trial counsel was incompetent for failing to object to the above statement on grounds that it was inadmissible character evidence and more prejudicial than probative. Rosiles also contends that counsel should have objected, on grounds of lack of personal knowledge, to statements Samuel made to the effect that Rosiles and Michelle had a domestic dispute about four years ago, when both were arrested for hitting each other. However, given that the trial court had overruled counsel's objection to admission of other statements Samuel had made about Rosiles's violent conduct, counsel reasonably could have concluded that further objections would be futile. In any event, in light of the record as a whole, the introduction of Samuel's redacted police interrogation was harmless. Accordingly, Rosiles has not established ineffective assistance of counsel based on defense counsel's conduct in relation to Samuel's testimony and police statement.
Testimony of Sierra Chavez and Priscilla Galindo about Michelle's Injuries and Testimony of Detective Palma about Rosiles's Use of Deflection
Rosiles further contends that counsel was ineffective to the extent he forfeited the challenges Rosiles has raised in the instant appeal, to the testimony of Sierra Chavez and Priscilla Galindo about the respective injuries each observed on Michelle. However, the People have not argued that these challenges were forfeited and we have addressed them on the merits, above. Accordingly, Rosiles has not shown ineffective assistance of counsel in this regard.
Similarly, Rosiles contends counsel was ineffective to the extent he forfeited a challenge to Detective Palma's testimony to the effect that Rosiles had resorted to deflection in the course of his police interrogation. We concluded, above, that this challenge to Palma's testimony was forfeited on account of counsel's failure to make an appropriate objection. Nonetheless, we addressed and found no merit to the substance of Rosiles's contentions in this regard. Rosiles, therefore, was not prejudiced by counsel's failure to preserve the issue. In turn, Rosiles has failed to establish ineffective assistance of counsel.
Miscellaneous Allegations of Ineffective Assistance
Rosiles also challenges counsel's decision to bring a number of affirmative motions, including a motion under section 995, a number of motions in limine, and a motion for new trial. Rosiles alleges these motions were far from a model of clarity or cogency; rather, they reflected counsel's unfamiliarity with the applicable law and/or contained factual misstatements. However, Rosiles has not shown that he was prejudiced by the filing of these motions. He argues, rather, that along with the other alleged errors, these motions raise serious concerns about counsel's ability to play "the role necessary to ensure that the trial is fair." (See Strickland, supra, 466 U.S. at p. 685.) We need not analyze this claim further because Rosiles has not shown that he was prejudiced by counsel's conduct, even considering any prejudice cumulatively. (Strickland, supra, at p. 687 [it cannot be said that a conviction resulted from a breakdown in the adversary process, rendering the outcome unreliable, unless defendant shows both deficient performance on the part of counsel as well as prejudice on account of counsel's deficient performance].)
The same is true for a few additional instances of alleged deficient performance that Rosiles lists in the form of bullet points.
We conclude that Rosiles has not established ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.