Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028422
BLEASE, Acting P. J.
A jury found defendant John Arthur Ruggles guilty of inflicting corporal injury on his wife Martha (Pen. Code, § 273.5, subd. (a)) and found true special allegations he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally inflicted great bodily injury in the commission of a felony causing the victim to become comatose due to brain injury (§ 12022.7, subd. (b)). In a bifurcated proceeding, the trial court found true allegations defendant had one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)).
To avoid confusion, we refer to Martha Ruggles by her first name. In doing so, we intend no disrespect.
Unless otherwise indicated, further statutory references are to the Penal Code.
Sentenced to 18 years in state prison, defendant appeals, contending the trial court abused its discretion in admitting evidence of two prior incidents of domestic violence to impeach Martha’s testimony that defendant never hit or kicked her in the past. We shall conclude the trial court did not abuse its discretion in admitting the challenged evidence, and even if it did, any error was harmless. Accordingly, we shall affirm the judgment.
The trial court sentenced defendant to eight years (the upper term doubled for the prior strike) for the substantive offense, plus five years for the great bodily injury causing brain injury enhancement, plus an additional five years for the prior serious felony conviction. The court stayed the great bodily injury under circumstances involving domestic violence enhancement pursuant to section 654.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Martha were married in 1983. Defendant had a drinking problem. When he drank, he became angry, aggressive, and violent. During his marriage to Martha, defendant was sober for 15 to 20 years but resumed drinking in approximately 2005.
In March 2005, Martha’s daughter Sandy Pruitt observed an argument between defendant and Martha during which defendant threw up his arms and pushed Martha into a bedpost. Pruitt encouraged Martha to leave with her, but she refused.
In 2005, defendant became romantically involved with Denise Byram. Defendant stayed with Byram three or four times a week. Defendant became “very angry, very violent.... [and] very physical” when he drank. In October 2005, defendant and Byram went out to dinner. Defendant was unhappy with the meal and became angry. On the way home, he slapped and hit Byram, and pulled her hair. When Byram got out of the car and ran, defendant tackled her and forced her back inside. Defendant was convicted of misdemeanor battery as a result of the incident. (§ 243, subd. (e)(1)).
Martha left defendant sometime in late 2005. In November 2006, she moved into a mobile home park. When she turned in her application to live at the mobile home park, she told one of the park’s managers, Janice Wolfe, that she wanted to move into the mobile home park by herself because “she was tired of the abuse.” At trial, Martha testified she lived alone in the mobile home park because she could not find anyone to live with her.
In November 2007, Pruitt stopped by Martha’s home while Martha was gone and noticed Martha had 52 messages on her answering machine. Pruitt listened to the messages and discovered that all of them were left by defendant. Among other things, defendant threatened to burn down Martha’s house and told her to “sleep with one eye open.” Martha recalled defendant leaving her a number of messages sometime around Thanksgiving 2007, but denied he threatened to harm her or her property. She did not listen to all of the messages.
A week or two later, Pruitt observed bruises on Martha’s arms, legs, torso, and back. Martha said she had fallen off a stool and hit the stove while attempting to get some paperwork out of a cupboard for defendant. Pruitt explained that the stove was nowhere near the cupboard where Martha kept her paperwork. At trial, Martha explained that she bruised easily and “fell a lot of times.”
On January 7, 2008, Martha was with her sister Barbara Murray all day. Murray took Martha home around 3:00 p.m. Murray did not notice any bruising on Martha other than a very small bruise on her cheek.
Defendant came over to Martha’s home later that evening. He had been drinking and had a six-pack of beer with him. Martha was unable to remember everything that occurred that evening. She did recall defendant becoming angry while she was sitting on the couch. At some point, he grabbed her left forearm, pulled her into the bedroom, “jumped” onto the bed with her, and punched her in her upper left arm until it broke. She told defendant that she thought he was breaking her arm, and he responded, “No, I’m not. I know what’s broken, and I’m not breaking your arm.” She remembered defendant breaking her arm just before she passed out. She did not recall defendant hitting or kicking her anywhere else or doing anything to “cause [her] not to be awake.” If she had bruises, she did not know how she received them.
Martha’s neighbors James and Janice Wolfe, who managed the mobile home park, were able to see into Martha’s trailer from their porch. On the night in question, January 7, 2008, they saw defendant yelling into Martha’s face and waving his arms as she sat on the couch. Defendant was “very loud” and looked “really angry.” This went on for over an hour.
Pruitt stopped by at 8:40 a.m. the next morning. Martha was still in bed, and the entire side of her face was black and blue. When Pruitt asked her what happened, she said she did not know and then surmised that the iron shot she received the day before had caused her face to bruise in the past. Martha received weekly iron shots, and they had never caused her face to bruise. Martha told Pruitt to wait for her in the living room. When Martha failed to come out 20 minutes later, Pruitt went to check on her. Pruitt found her standing in the bathroom in her underwear. She was bruised from head to toe. Martha told Pruitt she fell over the footrest on the recliner, defendant helped her up, and he was very rough with her arm. Pruitt did not take Martha to the hospital because Martha assured her she was fine. When Pruitt left, Martha was sitting in a recliner.
At trial, Martha testified that she did not think she tripped over the footrest on the recliner because it stuck in, not out.
Pruitt returned to Martha’s home around 6:45 p.m. that same evening. When she arrived, defendant was there. He would not look her in the eye and kept his head down the entire time. Martha was in bed. Defendant said she had gone to bed because she had a headache. Pruitt went to check on her and was unable to wake her. When Pruitt told defendant they needed to call 9-1-1, he disagreed and said there was nothing wrong. Pruitt called Murray for a second opinion, and Murray came right over. Martha was still in bed and was unable to speak. Murray dressed her, defendant carried her to Murray’s car, and Murray and Pruitt took her to the hospital.
Martha was diagnosed with an acute subdural hematoma -- a “big, thick, white, gelatinous blood clot over the surface of [her] brain.” The clot had formed sometime in the past 48 hours. The vast majority of subdural hematomas are caused by traumas, and Martha’s neurosurgeon opined that she had suffered some kind of trauma. He explained that the head need not be struck for this type of injury to result; rather, “[a]nything that causes an acceleration/deceleration of the brain can do this.” Martha told her neurosurgeon that she fell in her home the day before she was admitted to the hospital. She underwent two brain surgeries, and at one point fell into a coma. She remained in the intensive care unit for three weeks before moving to a rehabilitation hospital, where she remained for an additional five weeks. Martha also had a broken left arm, and there was a contusion in the soft tissue, indicating a recent trauma. That injury was sustained within a few days of January 9, 2008.
Martha’s cousin Brenda James visited her in the hospital. When James asked Martha what had happened, Martha said defendant hurt her and that she was scared of him. In particular, she stated that defendant “kicked her in the pee-pee and it was all swelled up and hurt real bad.” At trial, Martha denied making or said she did not think she made those statements to James.
On February 14, 2008, Pamela Chambers, a victim counselor with the Butte County District Attorney’s Office, and the deputy district attorney visited Martha in the hospital. The purpose of the visit was to open the lines of communication; they did not attempt to interview Martha about the incident. Martha, however, brought up the incident, stating that “the kids told her [defendant] hurt her..., but she does not remember.” Martha also indicated that she doubted defendant beat her up “[b]ecause he’s never hit me before.”
Chambers met with Martha a second time at Pruitt’s home. During that visit, Martha told Chambers she wanted to divorce defendant because “he messed up real bad.” When Chambers asked what she meant by “messed up,” she said, “Well, look what he did to me.” At trial, Martha testified she remembered stating she was divorcing defendant because she was “tired of getting hurt” by him, but explained that she was referring to the emotional hurt she felt when defendant was with other women.
Martha was interviewed three times by Detective Patrick Martin of the Butte County Sheriff’s Office. The first interview took place on January 21, 2008, right after one of her surgeries, and lasted about five minutes. Martha had some difficulty communicating; however, Detective Martin thought it was important to interview her at that time because he was concerned she might not survive her injuries. The interview was recorded, and the recording was played at trial. Martha told Detective Martin all of her injuries were caused by defendant. She recalled defendant hitting her with his hands, but she did not know whether he kicked her with his feet.
Detective Martin next interviewed Martha on January 28, 2008. Martha was better able to communicate during that interview. She initially stated that she did not remember anything and that Pruitt had suggested to her that defendant assaulted her. She later said defendant grabbed her left arm and pulled her from the living room to another part of the house. She denied that defendant hit her but said that it was possible the injury to her head and bruises on her body were from defendant. She also said she may have injured herself by closing a door on herself.
Detective Martin interviewed Martha a third time on April 24, 2008. The purpose of that interview was for Martha to review and comment upon the recording of the first interview. After watching the recording, she said she did not remember the interview. She did volunteer that defendant was drunk on the night in question and punched her in her left arm. That was not something her family told her, but something she recalled. She did not recall falling or tripping prior to going to the hospital.
DISCUSSION
Defendant contends the trial court prejudicially abused its discretion in (1) allowing Pruitt to testify that she observed defendant push Martha into a bedpost, and (2) allowing Mrs. Wolfe to testify that Martha told her she was moving into the mobile home park alone because she was tired of the abuse. We find no abuse of discretion. Moreover, on this record, we conclude that any abuse of discretion in admitting the challenged testimony was harmless under any standard.
Defendant does not challenge the admission of any other evidence on appeal. Indeed, he concedes the trial court’s decision to admit evidence concerning the battery on Byram and the messages left on Martha’s answering machine “properly balanced [his] right to a fair trial with the prosecutor’s need to show some evidence of propensity in light of the circumstantial nature of [her] case and Martha’s memory problems.”
Prior to trial, the People moved in limine to admit nine prior acts of domestic violence as propensity evidence pursuant to Evidence Code section 1109. The trial court ruled that evidence concerning two prior incidents -- the battery of Byram and the threatening telephone messages left on Martha’s answering machine -- were admissible. The court found that evidence concerning the remaining seven incidents, including a 2005 incident where defendant pushed Martha into a bedpost, was inadmissible.
Evidence Code section 1109, subdivision (a) states: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 1101 prohibits the use of evidence of a person’s character to prove his or her conduct on a specified occasion, except as provided in that section and in sections 1102, 1103, 1108, and 1109. (Evid. Code, § 1101, subd. (a).)
During cross-examination, Martha testified defendant never hit or kicked her prior to January 7, 2008. Thereafter, the court ruled that it would allow in evidence two prior incidents of domestic violence to impeach Martha’s trial testimony. The court ruled that Pruitt could testify that she observed defendant push Martha into a bedpost in 2005, and that Mrs. Wolfe could testify that Martha told her that “she needed to move to get away from... defendant’s abuse.”
Evidence Code section 780 provides that in determining the credibility of a witness, the trier of fact may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of” the witness’ testimony. The witness’ credibility may be impeached by, among other things, “[t]he existence or nonexistence of any fact testified to” by the witness (Evid. Code, § 780, subd. (i)); and prior statements by the witness that are inconsistent with any part of his or her trial testimony (id., § 780, subd. (h)). Moreover, Evidence Code section 1101, which generally prohibits the use of evidence of a person’s character to prove his or her conduct on a specified occasion, states that “[n]othing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.” (Id., § 1101, subds. (a), (c).)
As with all relevant evidence, the trial court has broad discretion to exclude impeachment evidence pursuant to Evidence Code section 352. (People v. Douglas (1990) 50 Cal.3d 468, 509, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) The court is required “to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled.” (People v. Cudjo (1993) 6 Cal.4th 585, 609.) “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against [the] defendant” without regard to its relevance on material issues. (People v. Yu (1983) 143 Cal.App.3d 358, 377.) The court's discretion will not be disturbed unless it is exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, evidence concerning the bedpost incident and Martha’s stated reason for moving into the trailer park alone was relevant and probative to impeach Martha’s credibility. While Martha testified that defendant punched her in the arm on January 7, 2008, she said he never hit or kicked her prior to that. While she was only asked whether defendant hit or kicked her in the past, the clear implication of her testimony was that defendant did not physically abuse her prior to the night in question. Martha’s credibility on this point was undermined by Pruitt, who testified that in 2005, she observed defendant throw up his arms and push Martha into a bedpost, and by Mrs. Wolfe, who testified that in 2006, Martha told her she was moving into the trailer park alone because she was “tired of the abuse.”
The probative value of the evidence was not substantially outweighed by its prejudicial nature. Given the nature of the charged offense, evidence defendant pushed Martha or had “abused” her in the past was not the type to evoke an emotional bias against defendant or pose an intolerable risk to the fairness of the proceedings. As the People note, the bedpost incident was less violent than the charged offense, and Martha’s statement to Mrs. Wolfe did not describe any incident in particular. Moreover, any prejudicial impact was substantially lessened by the court’s limiting instruction, which directed the jury to consider the evidence for the limited “purpose of evaluating whether Martha’s testimony in court is believable.”
The jury was instructed in pertinent part: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] The following evidence was admitted only for the purpose of evaluating whether Martha’s testimony in court is believable: [¶] One, the testimony of Janice Wolfe that she heard Martha say that she was tired of the abuse; [¶] And two, the testimony of Sandra Pruitt that she saw the defendant push Martha into a bedpost....”
Defendant argues that Martha’s statement that she was tired of the abuse “is highly inflammatory because it raises the inference that [defendant] physically abused Martha over a long period of time[,]” despite “Martha’s other testimony [regarding emotional abuse]....” Defendant is correct that Martha’s statement is susceptible to more than one interpretation. That, however, does not make the statement misleading for purposes of Evidence Code section 352. Defendant was free to argue in his closing argument that the jury should infer that Martha was referring to emotional abuse based on the evidence in the record.
To the extent defendant argues that the prosecutor “elicited evidence from Martha that [defendant] had not struck her in the past” solely for the purpose of impeaching her, the argument is not well taken. A party may not examine a witness upon collateral matters solely for the purpose of eliciting something to be contradicted. (People v. Lavergne (1971) 4 Cal.3d 735, 742-744.) Whether a defendant in a domestic violence case has committed prior acts of domestic violence is not a collateral matter. (Evid. Code, § 1109, subd. (a).) Moreover, when viewed in context, it is plain that the prosecutor was not attempting to elicit testimony merely for the purpose of contradicting it.
The following portion of the prosecutor’s direct examination of Martha is relevant to our determination:
“Q: Are you currently trying to get a divorce --
“A: Yes.
“Q: -- from [defendant?] “Why do you want a divorce from [defendant]?
“A: ‘Cause I don’t trust him anymore.
“Q: Why not?
“A: He had all kind of girlfriend....
“[¶]... [¶]
“Q: When you talked to Pam Chambers at your daughter’s house after the rehabilitation center, did you give her a different reason that you wanted a divorce from [defendant]?
“[¶]... [¶]
“A: I’m tired of getting hurt from him.
“[¶]... [¶]
“Q: Okay. Has he hurt you at any other time besides the night he punched you in the arm when you were in bed?
“A: I don’t think so.
“Q: So what do you mean that you’re tired of getting hurt from him?
“[¶]... [¶]
“A: I’m tired of being hurt by him. ‘Cause every time I saw him, he -- he had different women with... him.
“[¶]... [¶]
“Q: You were talking about your emotions being hurt, not your body; is that correct?
“A: Yeah.
“Q: Did you give a different reason to Pam Chambers when she talked to you at your daughter’s house?
“A: I don’t remember that.
“[¶]... [¶]
“Q: When she asked you why you want a divorce, did you tell her he messed up really bad?
“A: Yes.
“Q: And when she asked you how did he mess up, what did you say?
“A: I don’t remember.
“Q: Okay. Did you have any reason to lie to her that day?
“A: No.
“Q: Were you telling her the truth about how you feel and the reasons you want a divorce?
“A: Yes.”
As this colloquy makes plain, the prosecutor was attempting to impeach Martha’s testimony that she was divorcing defendant because he was unfaithful with her out-of-court statements to Chambers. Martha’s out-of-court-statement that she was divorcing defendant because she was “tired of getting hurt from him” appeared to contradict trial testimony. In asking Martha whether defendant had “hurt” her in the past, the prosecutor simply was attempting to determine whether Martha’s out-of-court statement was in fact true. The prosecutor was not attempting to elicit testimony for the purpose of contradicting it. The remaining portions of Martha’s testimony cited by defendant in support of his argument that the prosecutor elicited testimony solely for the purpose of impeaching Martha with additional evidence of defendant’s prior acts of domestic violence, e.g. that Martha denied stating that defendant had kicked her in the “pee-pee” or that she was afraid defendant would hurt her again, concern defendant’s actions on January 7, 2008, and have nothing to do with his past conduct.
Indeed, the court later allowed the prosecutor to call Chambers to impeach Martha’s trial testimony concerning the reason she was divorcing defendant. Chambers testified that Martha told her she wanted to divorce defendant because “he messed up real bad.” When Chambers asked what she meant by “messed up,” she said, “Well, look what he did to me.”
Finally, defendant’s repeated characterization of the challenged evidence as propensity evidence ignores the actual record in this case. The trial court specifically held such evidence was admissible to impeach Martha’s testimony, and the jury was instructed to consider the evidence only for that limited purpose. “The evidence was admitted for that purpose [impeachment], and therefore did not violate the general proscription in Evidence Code section 1101, subdivision (a), against the use of other crimes evidence. (People v. Lang (1989) 49 Cal.3d 991, 1017 [].)” (People v. Freeman (1994) 8 Cal.4th 450, 494.)
On this record, we conclude the court properly admitted the challenged evidence to impeach Martha’s credibility pursuant to Evidence Code section 780.
Moreover, even if it could be claimed it was error to admit the challenged testimony, such error was harmless. Numerous witnesses, including Martha, testified defendant was at her home on the night in question. Martha was with Murray earlier that day, and the only bruising Murray observed was a small bruise on Martha’s cheek. While Martha could not recall everything that occurred on the night in question, she repeatedly testified that she remembered defendant punching her in the arm and feeling it break. When Pruitt arrived at Martha’s home early the next morning, Martha was bruised from head to toe. She was taken to the hospital later that day and diagnosed with a broken arm and an acute subdural hematoma. Two years earlier, defendant was convicted of battering his girlfriend.
On this record, we conclude that even if it could be argued it was error to admit the challenged testimony, any such error was harmless under any standard. Stated another way, we conclude beyond a reasonable doubt that the jury would not have reached a different verdict had the trial court excluded evidence of the bedpost incident and Martha’s statement she was “tired of the abuse.”
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.