Opinion
G056029
10-01-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEWIS CHILDRESS, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF3078) OPINION Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.) Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
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Michael Lewis Childress appeals from a four-year sentence following his conviction for domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a); all further statutory references are to the Penal Code unless stated otherwise). On appeal, Childress contends the trial court abused its discretion in excluding evidence the victim suffered from a mental illness. He also contends the court abused its discretion in allowing evidence of a prior uncharged domestic abuse incident. For the reasons stated below, we find no abuse of discretion. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. 911 Call
On November 13, 2015, Amy H. called 911 and reported that Childress had hit her about an hour earlier, stating, "[h]e ripped my nail off [of] my finger, and my lip is busted." She also stated Childress had taken her cell phone, and she was calling from her son's father's phone. Amy explained that Childress was "really loud," so she told him to "keep it down because we have neighbors." He responded by hitting her and locking her in the bathroom for 30 minutes. B. Trial Testimony
Ryan Q. testified he has an on-again and off-again romantic relationship with Amy, who is the mother of his son. After their last break up, Amy began dating Childress. On November 12, 2015, Amy called him and asked him to pick up their son. She sounded like she was crying. When Ryan arrived, Amy asked to use his phone to call the police.
Anaheim Police Officer Vincent Dinh testified he responded to Amy's domestic violence report. When Dinh arrived, he observed Amy had a cut to the inside of her upper lip, injuries to her lower back, the right side of her chin and along the right side of her neck, and the fingernail of her right ring finger was "falling off." Amy's hair was messy and it looked like she had been crying.
Amy told Dinh she had been in a verbal argument with Childress over car keys. She did not want to give Childress the keys because he was drunk and did not have a license. Childress then "grabbed her by both sides of her head and started slamming her head in the back of the wall." Amy went into the bathroom to prepare a bath for her son and Childress followed. She tried to exit the bathroom, but he blocked the exit and slapped her hand away. Childress "grabbed her, slammed her head again, held the left side and right side and started hitting her head against the wall." He also pushed her into the toilet. Because Amy feared for her life, she requested an emergency protective order, which a judge granted over the telephone. Dinh also filed a child abuse report with Social Services because a child was present during the assault. According to Dinh, Amy did not seem confused and she was able to answer all his questions directly.
At the preliminary hearing, Amy testified she had come home from work and was showering. At some point, she exited the bathroom and told Childress "to keep the noise down." Childress asked her for her car keys, but she refused to give them to him. Instead, she put the keys, which were on the kitchen counter, into her purse. Childress tried to grab the purse. During the ensuing struggle, he grabbed her and hit her head against the wall twice. Amy went into the bathroom to turn off the water and Childress followed. Childress locked the bathroom door and again tried to grab her purse. During this struggle, Childress again grabbed her and hit her head against the wall. Childress took Amy's cell phone and threatened he would kill her if she called the police. Amy escaped from the bathroom, grabbed her son and exited the apartment.
At trial, Amy testified Childress did not assault her. She stated Childress did not ask her for her keys, follow her into the bathroom or lock the bathroom door. Amy claimed that on the day in question, she came home and saw Childress's cell phone on the counter. Because Childress previously had cheated on her, Amy looked through his phone and found romantic text messages from other women. Amy confronted Childress about the text messages, and he was "a little bit angry that I went through his phone." Amy then called Ryan to pick up their son. When Ryan arrived, she called 911 from his telephone.
Asked about her preliminary hearing testimony and statements to Officer Dinh, Amy claimed the prosecutor and the prosecutor's investigator had pressured her into testifying and saying "what [was] originally said to the police." She acknowledged she did not see the police report or hear a recording of her 911 call before trial.
On cross-examination, Amy testified that on the day in question, she was in "an altered mental state. . . . So I wasn't thinking clearly. I wasn't perceiving clearly." She denied being on medication. At the time of the preliminary hearing, she was having anxiety attacks.
Chris Peterson, an investigator with the Orange County District Attorney's Office, testified he never prepared Amy for her testimony at the preliminary hearing. He denied threatening her in any way.
Anaheim Police Detective Jose Duran testified he has worked on over 500 domestic violence cases. Based on his experience, it is very common for domestic violence victims to recant. Duran explained the victims would recant for various reasons, including low self-esteem, guilt, and finances. Asked a hypothetical mirroring the facts of the case, Duran opined the victim did not make a false accusation of domestic violence to the 911 operator or the responding police officer, but instead had recanted. C. Prior Uncharged Misconduct
Andrew H. testified his mother, C.C., married Childress when Andrew was in elementary school. In October 2005, when he was 15 years old, Andrew observed his mother and Childress having an altercation. He stated his mother and Childress had a verbal argument, "but I couldn't tell you what the argument was about." Childress then punched C.C. several times. When C.C. fell down, Childress got on top of her and began choking her. Andrew exited the house and called 9-1-1 to report the assault. Andrew observed that as a result of the assault his mother suffered injuries to her right eye and right cheek, and scratches on both sides of her neck. D. Verdict and Sentence
The jury found Childress guilty of domestic battery with corporal injury (§ 273.5, subd. (a)), but acquitted him of false imprisonment. The trial court found true a prior strike allegation and sentenced Childress to a total of four years in state prison.
II
DISCUSSION
A. Evidence of Victim's Mental Illness
Before trial, the prosecutor moved to exclude evidence that Amy suffers from a mental illness commonly referred to as bipolar disorder. At the hearing on the prosecutor's motion, the trial court expressed concerns about the relevancy of Amy's mental illness, explaining that her bipolar disorder was not relevant unless evidence showed she experienced symptoms on the day in question and "why the mental illness has some effect upon [her] as a witness." It deferred a ruling on the prosecutor's motion pending Amy's trial testimony.
After Amy testified on direct examination, defense counsel again sought to introduce evidence of Amy's mental illness. The trial court excluded any mention of Amy's bipolar disorder diagnosis, but allowed defense counsel to examine Amy's "ability to remember, recall, and if she was fabricating because of some feelings she might have." Childress contends the trial court abused its discretion in limiting the cross-examination of Amy. We disagree.
"'"[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." [Citation.]' [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1252-1253.) "However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390.)
"It is a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions." (People v. Anderson (2001) 25 Cal.4th 543, 579.) However, "'[a] person's credibility is not in question merely because he or she is receiving treatment for a mental health problem.' [Citation.]" (Ibid.) Rather, "[a] witness may be cross-examined about her mental condition or emotional stability to the extent it may affect her powers of perception, memory or recollection, or communication. [Citation.]" (People v. Herring (1993) 20 Cal.App.4th 1066, 1072 (Herring).)
Here, the fact Amy suffered from bipolar disorder was irrelevant unless defense counsel also could show it affected Amy's credibility. Counsel did not present any evidence Amy's mental illness affected "her powers of perception, memory or recollection or communication." (Herring, supra, 20 Cal.App.4th at p. 1072.) Moreover, the trial court permitted cross-examination on Amy's "ability to remember, recall, and if she was fabricating because of some feelings she might have." The jury heard evidence suggesting Amy was angry about Childress's possibly cheating on her before she made the 911 call. It also heard Amy's testimony she was in an altered state of mind that day. Evidence that Amy suffered from bipolar disorder would not have produced a significantly different impression of her credibility. Hence, there was no abuse of discretion or Sixth Amendment violation in excluding evidence of Amy's mental illness. For the same reasons, Childress was not denied his state and federal constitutional rights to a fair trial. B. Prior Uncharged Conduct
Before trial, the prosecutor moved to admit three prior instances of domestic violence, two in 2004 resulting in misdemeanor convictions and one in 2005, resulting in a felony conviction. Over defense objections, the trial court permitted the prosecutor to introduce only the 2005 incident involving C.C., finding it "sufficiently relevant to this matter" and "its probative value sufficiently outweighs any prejudicial effect." Childress contends the trial court abused its discretion in admitting evidence of the 2005 incident because its "minimal probative value" was "far outweighed by its prejudicial effect."
Evidence Code section 1109, subdivision (a), provides that "in a criminal prosecution 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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a).) "Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice." (Evid. Code, § 1109, subd. (e).) "[T]he 'interest of justice' exception is met where the trial court engages in a balancing of factors for and against admission under [Evidence Code] section 352 and concludes, as the trial court did here, that the evidence was 'more probative than prejudicial.'" (People v. Johnson (2010) 185 Cal.App.4th 520, 539-540 (Johnson).)
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." "'"The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense."'" (Johnson, supra, 185 Cal.App.4th at p. 531, quoting People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) '""The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.] Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, the probative value of the 2005 incident was great. Childress resorted to grabbing his wife's neck after a verbal argument. As a result of the assault, the victim suffered injuries to her eye, cheek and neck. The victim's children were present in the house when the assault occurred. Similarly, here Childress grabbed his girlfriend's head after a verbal argument. The victim suffered injuries to her lip, chin and neck. The victim's child was present. The common factors suggests Childress has a volatile temper and that he responds to verbal arguments by inflicting head and neck injuries on the victim, even in the presence of the victim's minor children.
"Also weighing in favor of admissibility, the evidence of the prior assault[ ] came from [an] independent source[ ], which reduced the danger of fabrication. [Citation]" (Johnson, supra, 185 Cal.App.4th at p. 533.) Andrew immediately reported the assault on his mother C.C. to the police in 2005. His testimony was independent of the assault on Amy. "In addition, defendant was convicted of the prior offense[ ]. Although the jury was not so informed, the fact that the prior misconduct had resulted in conviction—ultimately proved beyond a reasonable doubt to the court—reduced the likelihood that defendant could have produced evidence to rebut the witness['s] testimony. Therefore, the unfairness of forcing a defendant to mount a defense against evidence of a long-past incident was not a legitimate consideration in this case." (Ibid.) Likewise, here the 2005 misconduct resulted in a conviction.
On the prejudice side of the scale, evidence of the prior uncharged incident "was no stronger and no more inflammatory than the testimony concerning the charged offenses. This circumstance decreased the potential for prejudice." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The assault on Amy was more sustained and more egregious than the assault on C.C.. Childress hit Amy's head against the wall three times, twice in the kitchen and once in the bathroom. In addition, there was no reasonable possibility the jury would have confused the assault on Amy with the prior assault on C.C., and the fact it acquitted Childress of false imprisonment tends to show the jury was not inflamed by the prior incident. On this record, the trial court did not abuse its discretion in determining the probative value of the 2005 domestic violence incident sufficiently outweighed its prejudicial effect.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.