Opinion
A145854
08-04-2017
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC DANIEL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C171810)
A jury convicted defendant Dominic Daniel of second degree murder after he brutally beat to death his girlfriend, Tsega Tsegay, and the trial court sentenced him to 15 years to life in prison. On appeal, Daniel claims that the court erred by (1) admitting general expert testimony about domestic violence and (2) failing to instruct the jury that this testimony was not evidence that he committed the charged crime. We affirm.
Daniel was convicted of murder under Penal Code section 187, subdivision (a).
Because we conclude that both claims fail on the merits, we need not address Daniel's arguments that, to the extent either claim was forfeited by his failure to object below, his trial counsel provided ineffective assistance of counsel.
I.
FACTS
A. Daniel and Tsegay's Relationship.
Daniel and Tsegay, an Ethiopian immigrant, met in 2009 and began dating. Both were alcoholics, and their relationship was marked by domestic violence.
One of the key witnesses who testified about the couple's violent history was Patrick L., who was 70 years old at the time of trial in 2015. He met Tsegay in the late 1990's and considered her to be like a daughter. She lived with him in his apartment in downtown Oakland and assisted him with daily tasks because he was legally blind. Daniel sometimes visited Tsegay at the apartment while Patrick L. was present. Patrick L. testified that Daniel was often drunk and "beating on [Tsegay] . . . and fighting," and Tsegay said "many times" she was afraid of Daniel. On a few occasions, Patrick L. witnessed Daniel bite Tsegay's face. Daniel had also threatened to kill Tsegay, including once when Daniel was talking to his mother on the telephone and said, "I'm going to kill the bitch." Patrick L. testified that he never saw Tsegay start a fight with Daniel, although Patrick L. also admitted that she "was no angel with" her boyfriend.
During one incident in December 2010, Daniel tried to force his way into Patrick L.'s apartment. After Patrick L. opened the door, Daniel grabbed him by the throat, and Patrick L. attempted to hit Daniel with an ashtray. Daniel pushed his way inside and then attacked Tsegay, who was sleeping, by hitting her in the face until it looked like she had "golf balls in her mouth." Daniel made Tsegay leave with him, and Patrick L. called 911.
Officer Raymond Ward responded to the 911 call. He testified that he first spoke with Patrick L., who was "visibly upset and shaken." After leaving Patrick L.'s apartment, he got into his patrol car, drove about a block, and saw Daniel chasing Tsegay around a parked car. Officer Ward knew Tsegay because "[s]he walked around West Oakland," which was his beat, and was "very friendly." The officer saw Daniel punch Tsegay in the face "at least four times." Daniel stopped the attack only after Officer Ward intervened and arrested him. Both Daniel and Tsegay appeared intoxicated. Tsegay had "[s]wollen eyes and there was some blood," and Daniel did not have any injuries. Daniel pleaded no contest to a misdemeanor count of domestic battery based on this incident, and he was ordered to have no contact with Tsegay.
Police were called to Patrick L.'s apartment again in December 2011 for a report of domestic battery. This time, Officer Richardson San Andres responded. He testified that when he first arrived to the apartment, he spoke to Tsegay in the hallway. She was "a little nervous . . . [and] a little frantic," and "[s]he had a minor laceration to the bridge of her nose" and dried blood on her shirt. Tsegay indicated that Daniel, who soon emerged from the elevator, had assaulted her, and Officer San Andres arrested him.
Another incident occurred in April 2012. This time, police were summoned to Daniel's mother's house in North Oakland based on a report that a man was preventing medical personnel from treating a victim inside the house. Officer Ward, who had responded to the first incident at Patrick L.'s apartment in December 2010, was among the first officers to respond. He approached Daniel, who was standing at the front door, and asked him whether someone inside the house was hurt. Daniel, who appeared to be intoxicated and had an "[a]ggressive" and "hostile" demeanor, responded, "No," but Officer Ward could see Tsegay standing inside with a "badly beaten" face. Daniel refused to allow the police inside to check on the house's occupants and turned to go inside himself, at which point Officer Ward and another officer grabbed Daniel to detain him. Daniel dropped to his knees, causing the two officers holding him to fall to the ground, and began to struggle. At one point, Daniel attempted to bite Officer Ward but was unable to inflict any injury because the officer was wearing a bulletproof vest. Daniel was finally subdued when more officers arrived to assist.
Officer Roberto Ruiz was one of the backup officers to arrive at the scene. He testified that when he arrived he saw Daniel on the ground "screaming" and resisting as other officers attempted to handcuff him. Daniel's mother and Tsegay, both of whom were inside the house, were yelling at the officers to let Daniel go. Officer Ruiz also knew Tsegay, whom he regularly saw on his beat. The officer characterized her as "calm, mellow," chatty, and "[v]ery friendly" when she was not drinking, which was about 80 percent of the time. When she was intoxicated, she would become "[v]ery loud" and "slur" her words, but the officer never saw her be aggressive.
After Daniel, who was uninjured, calmed down and was put in a patrol vehicle, Officer Ruiz took Tsegay outside to the ambulance. Tsegay "had golf[-]ball-sized lumps underneath each eye and a big fist lump on her head." Tsegay initially claimed that "girls beat her up," but once inside the ambulance she told Officer Ruiz that Daniel had hit her "[a] lotta times" and she wanted to press charges. She also claimed that both she and Daniel were drunk, but she did not appear to the officer to be intoxicated. Daniel pleaded no contest to a felony count of false imprisonment based on this incident, and he was ordered to have no contact with Tsegay and Patrick L.
B. Tsegay's Murder.
1. The early-morning hours of July 31, 2012.
Daniel served about three months in jail as a result of the April 2012 incident, and he was released in late July 2012, about a week before the murder. Patrick L. testified that, despite the active restraining order, Tsegay and Daniel arrived at Patrick L.'s apartment early on July 31. Tsegay was "upset about something" and spoke in a loud voice. Within a few minutes, Patrick L. asked the couple to leave, because in his experience "every time she's like that . . . [Daniel] beats her up." Patrick L. testified that as the couple left, Tsegay picked up some eggs on the counter and threw or dropped them on the floor. Video footage from Patrick L.'s building showed two people who could have been Daniel and Tsegay leave at around 1:45 a.m.
Almost four hours later, at approximately 5:30 a.m., a woman out for a run on a path around Oakland's Lake Merritt was approaching a restaurant next to the lake. As she neared the restaurant's front entrance, an elderly Asian woman asked her to call 911. The runner immediately did so and followed the other woman around the building, where Tsegay was lying flat on the ground, apparently unconscious, and Daniel was standing nearby. The runner told the 911 operator that Daniel "said that [the woman] drank too much and passed out." The runner noticed that Tsegay "was half naked and her face was bloody," but it was not until later, after the sun came up, that the runner saw how much blood there was and "realized that it was more than just a passed out woman." At the 911 operator's direction, relayed by the runner, Daniel performed CPR on Tsegay until the paramedics and police arrived. Tsegay died at the hospital a few hours later. She was 33 years old.
The elderly woman left the scene at some point before the police arrived and was never interviewed.
2. Tsegay's autopsy.
A forensic pathologist testified that Tsegay's cause of death was an "extreme" level of blunt force trauma. Tsegay "had extensive trauma to her face," including two black eyes and hemorrhaging in and around the eyes; several abrasions to different areas of her face; and "extensive swollen lips" with an "extensively lacerated" upper lip. These injuries were consistent with Tsegay's having been repeatedly punched and kicked in the face. She had a large abrasion on the back of her head, numerous bruises on her scalp, and brain swelling, all of which were also the result of blunt force trauma to the head. Based on hemorrhaging in her neck tissue, it appeared she might have been strangled, but the pathologist testified that this hypothesis was impossible to confirm "because . . . what one sees with strangulation," such as pinpoint hemorrhages on the eyeballs and inside the eyelids, had "been obliterated by blunt trauma to the face."
Tsegay had numerous abrasions on her torso indicating places where her skin had been scraped with some force, suggesting she had been dragged along the ground, and extensive bruising to her abdomen, suggesting she had been hit there several times. Internal lacerations, including injuries to her pancreas and spleen, indicated punches or kicks applied with a significant amount of force. There were also what appeared to be human bite marks on her back and one buttock. Her left femur (thigh bone) was fractured, which the pathologist testified is "a most unusual injury to see [in] someone who is being beaten" because it requires the application of an enormous amount of force when part of the leg is off the ground to snap the bone. Broken femurs are usually sustained in automobile accidents, and the pathologist testified that he initially had the impression that Tsegay was "thrown out of a car in addition to obviously being beaten elsewhere."
Tsegay had very few defensive injuries, suggesting that she may have been unconscious or otherwise incapacitated during the attack. At the time of death, her blood-alcohol content was .38 percent, which the pathologist testified would cause her to "be severely impaired," but her level of intoxication did not contribute to her medical cause of death.
3. Other physical evidence at the scene.
A large amount of blood was discovered in an area on and around the lakeside path, beginning just south of the restaurant and stretching for over 70 feet. An evidence technician testified that "there appeared to be a lot of activity" based on several shoeprints, which were later matched to the boots Daniel was wearing; pools of blood of differing sizes; and drag marks. The testimony of an expert in bloodstain-pattern analysis suggested that the beating had begun in the northern area of the scene, where most of the impacts occurred, that Tsegay was on the ground while being hit, and that she had been dragged south and then north again, toward the lake.
Items Tsegay had been wearing were also scattered around the scene, including two pieces of a broken beaded necklace covered in blood; a bra, which was torn apart in the front where the cups met but was still fastened in back, that was wrapped up with a camisole with ripped front straps; and a red leather jacket found floating in the lake. A man's jacket with Tsegay's blood on the interior fleece lining was recovered from the path.
C. Daniel's Statements.
Officer Ryan McLaughlin responded to the scene at approximately 5:40 a.m. He testified that he activated the video-recording device on his uniform when he saw that Tsegay's face was bloody and swollen and became suspicious that it was not just a medical call. He asked Daniel for his name, and Daniel gave him accurate information. Referring to Patrick L. and Tsegay, Daniel volunteered, "My dad tell me that my wife was hurt so I came looking for her" at the lake. Daniel also said that he flagged down the runner and asked her to call 911.
Daniel claimed that he did not have a telephone number, and he later indicated that the cell phone he was carrying at the time had been out of service since he had gone to jail. In fact, the phone was in service and had been used to make an outgoing call several hours before the murder, but it was not used to make any calls that morning.
Officer McLaughlin then escorted Daniel, who did not seem intoxicated, to the patrol vehicle to take a statement from him. Daniel's pants were damp from the knees down, and there was diluted blood, later determined to be Tsegay's, on the cuffs and stomach area of his shirt. Upon being asked his name again, Daniel gave his brother's name instead of his own. When Officer McLaughlin confronted him about this discrepancy, Daniel insisted that his brother's information was correct and indicated that he had initially given the wrong information because he "was just probably really scared" and did not "know what the fuck was going on with [Tsegay]."
When Daniel's blood was drawn at around 10:45 a.m., his blood-alcohol content was .14 percent.
Daniel then repeated the story that Patrick L. had told him to look for Tsegay, that he had discovered her by the lake, and that he had asked the runner for help. Officer McLaughlin decided to detain Daniel, handcuffed him, and left him in the back of the patrol vehicle. While the officer was gone, Daniel was recorded talking to himself at length, including saying that he had not done anything to Tsegay and would have left the scene if he "was so fucking guilty." When Officer McLaughlin returned, Daniel said, "I ain't a fucking murderer or nothing."
Officer McLaughlin confronted Daniel with the photograph of Daniel's brother that had come up in the system, and Daniel insisted that it was his own. Daniel became angry and said, "What, you all charge me for lying to the police? . . . Shit, that bitch was on the ground. Them people is telling me and the bitch to do 911. Bitch is already leaking. . . . I never man, I'm innocent. I ain't did nothing to that girl." When told he was being arrested for attempted murder, Daniel repeatedly claimed that he had merely been trying to resuscitate Tsegay and would have left the scene if he had done something wrong.
After Daniel was taken to the police station, he was placed in an interview room where he was recorded for the next several hours. He spent much of the time while he was alone waiting to be interviewed talking to himself. At first, while Daniel still believed Tsegay was alive, he told himself that he had not done anything wrong and blamed her for the situation. saying, "She always gets drunk and do stupid ass shit. Now I'm in trouble behind her dumbass shit. . . . She needs to fix this shit real fast. . . . She gots to - she's got to tell these motherfuckers what the fuck really happened to her. These motherfuckers thinking I'm doing something to her trying to help her out 'cause she's so drunk. . . . I'm just sitting here for some shit I didn't do." Daniel also rehearsed his story, saying to himself, "I went looking for her. Earlier that night she got into it with her dad. She walked off and went by herself somewhere man. I'm not fucking lying blood. . . . I went looking for her. I went all around downtown. I went downtown and I can't cause she over by the lake where she go. . . . I didn't murder shit."
Sergeant Eric Milina conducted the formal interview of Daniel later that afternoon. Daniel admitted that he had violated the restraining order barring him from contact with Tsegay. He initially told a story that comported with what he had been recorded telling himself earlier. He claimed that the previous day he and Tsegay were at Patrick L.'s apartment until around 3:00 p.m. Tsegay got into an argument with Patrick L., and she and Daniel left and "walk[ed] around and [got] drunk." About an hour later, they returned to the apartment, and Tsegay fought with Patrick L. again. She and Daniel left again, drank more, and returned to the apartment again. Tsegay and Patrick L. fought yet again, and she and Daniel then went to Daniel's mother's house.
Daniel claimed that he and Tsegay eventually left his mother's house, went to a liquor store, and then took the bus back to downtown Oakland, where they returned to Patrick L.'s apartment for a third time. Tsegay and Patrick L. got into another argument, after which she left alone. Using a map, Daniel gave a detailed description of where he walked in downtown Oakland as he tried to find her. He stated that he finally arrived at Lake Merritt less than an hour after leaving Patrick L.'s apartment, and he heard Tsegay yelling and discovered her in the water. Daniel said he got in the water and was "tryin' to lift - get her up 'cause she can't swim."
The evidence suggested that Lake Merritt was approximately six to eight inches deep for several feet out from the shore near where Tsegay was killed.
Daniel, who is right-handed, had significant swelling to his right hand. After Sergeant Milina remarked on this, Daniel initially claimed that his hand was swollen from lifting Tsegay out of the water or from giving the blood sample but then stated that his hand was "always . . . swollen" and there was nothing wrong with it. A doctor who examined Daniel later that night, however, suspected based on the swelling that Daniel had "a fighter's fracture or boxer's fracture," which can be caused by striking something hard with the outside of one's fist. The doctor testified that, although x-rays did not reveal a fracture, Daniel had sustained "trauma to the hand that fell short of breaking the bone but was enough to cause swelling . . . [and] pain."
Sergeant Milina eventually asked Daniel whether he had seen "the Asian lady," who "had a lot to say," and Daniel appeared surprised. Sergeant Milina also confronted Daniel with the fact his bloody shoeprints were all over the scene and said there could be video of the attack on Tsegay. When the sergeant then said he wanted to know the truth, Daniel replied, "If, if I gotta take it sayin' that I did it, I did it, fuck it." Daniel claimed that he could not recall assaulting Tsegay but said, "If y'all say I got physical evidence, videos and stuff, . . . if I did it I did it."
Another officer entered the room and indicated, as an interview tactic, that Tsegay had reported that Daniel beat her up. Daniel then admitted that he had done so but continued to claim he could not remember the details. Eventually, however, he suggested that he may have become angry because "she did admit she was sleepin' with a married man" while he was in jail. Daniel also stated that Tsegay often attacked him when she had been drinking, and he claimed that she hit him while they were on the bus back to Patrick L.'s apartment because he said he was going to leave her.
AC Transit was unable to locate any surveillance footage showing that Daniel or Tsegay had ridden the bus line Daniel claimed they were on that night, much less that she had hit him.
Toward the end of the interview, Sergeant Milina informed Daniel that Tsegay had died. Daniel then said he had not intended to kill her but admitted that he had lost control when he began attacking her. After the officers left the room and Daniel was alone, he was recorded repeatedly saying, "I murdered my girlfriend, blood" and "I killed my baby."
II.
DISCUSSION
A. The Trial Court Properly Admitted Expert Testimony on Domestic Violence.
Daniel claims that the trial court erred by admitting expert testimony about domestic violence because the testimony (1) was not relevant to any disputed issue and (2) violated Evidence Code section 1107, subdivision (a), which prohibits the admission of such testimony "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." We are not persuaded.
All further statutory references are to the Evidence Code.
1. Additional facts.
Before trial, the prosecution filed a motion in limine seeking to call Sergeant Randy White to testify "as an expert in the area of domestic violence, specifically regarding the Cycle of Violence and Battered Woman's Syndrome." The motion explained that such evidence "may be used by the prosecution to disabuse the jury of commonly held misconceptions about domestic violence. It may be used to explain why a victim would recant an[] earlier description of the facts, delay reporting [an] assault[,] or remain with the defendant after [a] crime was committed."
During a discussion of the prosecution's motion, Daniel's trial counsel questioned whether such testimony was relevant. The trial court observed that the testimony would address the "ways in which a person who was a victim of domestic violence may behave," information "that the average juror may not be familiar with" and that would help jurors to understand what would otherwise seem like an "unreasonable, or irrational, or not logical" response to domestic violence. The court then determined that the testimony was admissible, although it also ruled that Sergeant White could not refer to "Battered Woman Syndrome" based on a concern that the term "would be overly persuasive to the jury."
At trial, Sergeant White was qualified "as an expert in the area of domestic violence investigation and common behaviors and characteristics of those cases." He explained that abusive relationships commonly reflect a "cycle of violence." The cycle begins with a positive relationship, when "everything is beautiful." Then there is "a tension[-]building stage" during which the victim knows the abuser is "getting upset, it's kind of walking on egg shells," until "the eruption phase," when actual physical or emotional abuse occurs. Sergeant White testified that the tension-building phase is not necessarily precipitated by anything the victim has done, because "it's about what's going on in the abuser's head" and his need for control. Indeed, the sergeant agreed that it is "common" for an abuser to become violent "where the victim literally did nothing at all" or is even asleep.
Sergeant White referred to a hypothetical abuser as "he" and a hypothetical victim as "she" because "the overwhelming majority of victims of domestic violence are women" abused by men, but the sergeant emphasized that "anybody can be a victim of domestic violence."
Sergeant White testified that after the eruption phase comes "the honeymoon phase," during which "the abuser feels completely bad for what he's done" and is apologetic and loving toward the victim, causing her to "accept[] him back." From there, the couple returns to the tension-building stage, and the cycle begins again. After a while, the "honeymoon stage starts getting shorter and shorter, . . . because an abuser has done a real good job of convincing the victim, hey, it's really your fault why we're in this situation," until that stage vanishes because the abuser no longer feels a need to apologize.
Sergeant White testified that victims are often reluctant to involve the authorities because they do not want their abusers to go to jail and they do not want to reveal their private business to others. When the authorities do become involved, the victim is likely to either "minimize or deny that the violence even took place or just recant [altogether]." In other cases, the victim will call the police as a way of stopping the violence in the moment with no intention of pressing charges. Even when the abuser is successfully prosecuted for domestic violence, the victim may well take him back again.
According to Sergeant White, there is usually "a dominant abuser" in a violent relationship, although it is possible for a victim to become abusive toward her abuser. As the cycle continues, the level of violence tends to escalate, to the point that "it happens quite often" that an abuser will finally kill the victim, particularly if he feels he has lost control over her.
Sergeant White also addressed the role of alcohol abuse in domestic violence. He explained that although laypeople often believe that certain violent episodes would not have occurred had the abuser not been drinking, "in actuality when you have an abuser [he is] an abuser whether [he is] drunk or not. Now, when the person is drunk, now you have a drunk abuser. [¶] . . . [A]lcohol doesn't play much of a role as to whether or not [a victim] is going to be abused, because the violence is going to come whether [the abuser is] drunk or not." The sergeant did acknowledge, however, that it is possible for drinking to lead to domestic violence in that it may lower an abuser's inhibitions and self-control.
2. Discussion.
Section 1107 allows both the prosecution and the defense to introduce "expert testimony . . . 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." (§ 1107, subd. (a).) Such testimony is inadmissible, however, "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." (Ibid.)
Testimony admitted under section 1107 must be relevant evidence, that is, "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§§ 210, 350, 1107, subd. (a).) There are "two major components to a relevance analysis in this context. First, there must be sufficient evidence in the particular case to support a contention that [intimate partner battering] applies to the woman [or man] involved. [Citation.] Second, there must be a contested issue as to which [intimate partner battering] testimony is probative." (People v. Gadlin (2000) 78 Cal.App.4th 587, 592.)
We review the trial court's evidentiary rulings, including the admission of expert testimony, for an abuse of discretion. (People v. Lucas (2014) 60 Cal.4th 153, 226; People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Daniel does not contest that there was sufficient evidence that Tsegay was a victim of domestic violence. Instead, he claims that Sergeant White's testimony was not relevant because it did not fall into either of the "two distinct areas in which testimony concerning 'intimate partner battering and its effects' . . . is admissible in criminal cases": where offered by the prosecution on the issue of the victim's credibility, and where offered by the defense to support a claim of self-defense. Although those may be the two most common contexts in which such expert testimony is admitted, neither section 1107 nor any other authority provided by Daniel limits the admission of such testimony to only those two contexts. (See § 1107, subds. (a)-(b); see also People v. Gadlin, supra, 78 Cal.App.4th at p. 592.)
In any event, Sergeant White's testimony was relevant to the issue of Tsegay's credibility. Daniel claims that the defense never challenged her credibility, but "there is no requirement that the defendant explicitly challenge a witness's credibility on a basis that might be explained by [intimate partner battering] evidence before such evidence may be introduced." (People v. Riggs (2008) 44 Cal.4th 248, 293.) As our state Supreme Court explained, "[E]xpert [intimate partner battering] testimony 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. . . . The relevance of this evidence is based on the possibility that the jurors will doubt that a witness who claims to have been abused has indeed acted in the manner to which he or she testified, and therefore the jurors might unjustifiably develop a negative view of the witness's credibility. [Citation.] Even if the defendant never expressly contests the witness's credibility along these lines, there is nothing preventing the jury from ultimately finding in its deliberations that the witness was not credible, based on misconceptions that could have been dispelled by [intimate partner battering] evidence. Thus, there is no need for the defendant first to bring up the potential inconsistency between a witness's actions and his or her testimony before the prosecution is entitled to attempt to dispel any misperceptions the jurors may hold by introducing [intimate partner battering] evidence . . . ." (Ibid.)
We recognize, of course, that Tsegay did not testify. But her statements about the April 2012 incident leading to Daniel's conviction for false imprisonment were introduced at trial. When Officer Ruiz spoke to Tsegay at the time, she initially claimed that "girls" had beaten her up, but she then said that Daniel had hit her. The April 2012 incident was one of the main instances of past domestic violence on which the prosecution's case was based, and Tsegay's latter statement was direct evidence that Daniel was the perpetrator. Thus, even though Daniel did not argue that Tsegay was lying, Sergeant White's testimony about victims' reluctance to be truthful with the authorities was relevant to explain Tsegay's behavior and inconsistent statements. (See People v. Riggs, supra, 44 Cal.4th at p. 293; § 210.)
We also agree with the Attorney General that Sergeant White's testimony was relevant to rebut Daniel's claims that Tsegay had abused Daniel and that he killed her in the heat of passion or imperfect self-defense after she attacked him. Daniel's trial counsel argued that "there was mutual domestic violence between the parties" and that Tsegay also abused Daniel, including in a February 2010 incident for which she "was arrested for domestic violence toward him." Counsel claimed that before her death Tsegay provoked Daniel by telling him she had had an affair and "attacked him first," causing him to go into "a rage." Counsel also suggested that the couple's alcoholism, not domestic violence, was responsible for Tsegay's death. The expert testimony answered these points because Sergeant White testified that (1) an abuser can erupt into violence even if the victim has done nothing to precipitate it; (2) it is possible for a victim to become violent toward the abuser, but there is usually "a dominant abuser" in the relationship; and (3) alcohol use alone does not cause someone to be abusive toward a partner.
Sergeant Milina testified that he was aware of a police report in which Tsegay was listed as the aggressor against Daniel, because "the allegation was she slapped him," but no further details about the incident emerged. --------
Daniel also argues that Sergeant White's testimony was inadmissible because it was offered solely to prove he killed Tsegay. According to him, "[t]he prosecutor's theory in this case, pure and simple, was that [he] intentionally killed Tsegay in the culmination of an ever-increasing 'cycle of violence' that was inevitable, based on [his] psychological profile as an abuser." But it was undisputed that Daniel beat Tsegay to death, and his intent in doing so was the primary issue for the jury to decide. We do not read section 1107's bar on using expert testimony about domestic violence "to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge" to be a categorical bar on using such testimony to prove a defendant's intent in committing those acts. (§ 1107, subd. (a), italics added.) We therefore conclude that the trial court did not abuse its discretion by admitting Sergeant White's testimony because the testimony was relevant to Tsegay's credibility and Daniel's intent.
B. Any Error in the Omission of a Limiting Instruction on Sergeant White's Testimony Was Harmless.
Daniel also claims that the trial court erred by not giving a limiting instruction to inform the jury that Sergeant White's testimony was not evidence that he committed the charged crime.
As we have said, under section 1107, subdivision (a), expert testimony about domestic violence is inadmissible when offered "to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." Both CALCRIM No. 850—which is given when expert testimony on domestic violence is offered by the prosecution on the issue of the victim's credibility—and CALCRIM No. 851—which is given when such testimony is offered by the defense on the issue whether a defendant who is a victim of domestic violence acted in self-defense—include language instructing that such testimony "is not evidence that the defendant committed any of the crimes charged against (him/her)." (CALCRIM Nos. 850, 851.)
Daniel's trial counsel never asked for an instruction reflecting this principle. On appeal, Daniel argues that such an instruction should have been given by the trial court sua sponte and the Attorney General argues to the contrary. We need not resolve this dispute because we conclude that any error, if there was one, was harmless. At the outset of Sergeant White's testimony, the trial court emphasized that Sergeant White had not been "a percipient witness to any of the incidents that [c]ounsel will be presenting information about. That is[,] he was not on the scene and didn't interview anybody. We're just going to be asking him some questions about his general knowledge of a subject matter." In addition, in response to the first two questions on direct examination, the sergeant confirmed that he had not been involved in investigating Tsegay's murder and did not "know anything about the case at all." Thus, it was apparent to the jury that Sergeant White's testimony was not offered to establish that Daniel in particular had committed a crime. Moreover, there was extensive evidence to support the conclusion that Daniel and Tsegay had a violent relationship and, as already stated, Daniel's identity as Tsegay's killer was undisputed. Therefore, even if the court had a duty to instruct the jury sua sponte that Sergeant White's testimony was not evidence that Daniel had murdered Tsegay, it is not reasonably probable that Daniel would have received a more favorable verdict had the instruction been given. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Housley (1992) 6 Cal.App.4th 947, 959 [failure to give limiting instruction sua sponte assessed for prejudice under Watson].)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.