Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2007021364, of Ventura David R. Worley, Judge
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Lucio Alberto Gamez appeals the judgment entered after a jury convicted him of spousal rape (Pen. Code, § 262, subd. (a)(1)), false imprisonment by violence (§ 236), two counts of making criminal threats (§ 422), corporal injury to a spouse (§ 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), cruelty to a child by endangering health (§ 273a, subd. (b)), and intimidating a witness (§ 137, subd. (b)).
Further undesignated statutory references are to the Penal Code.
The jury found true the allegation that one count of making criminal threats was committed with the use of a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced him to a total of 12 years in state prison. He contends the court abused its discretion in admitting expert testimony on Battered Women's Syndrome. He also claims the court violated his due process rights by admitting evidence of his prior acts of violence against the victim under Evidence Code sections 1109 and 352. We affirm.
STATEMENT OF FACTS
The Instant Offenses
On June 6, 2007, appellant was living in Simi Valley with his wife Y.F., their nine-month-old daughter Dayanara, his parents Victoriano and Maria Gamez, and siblings Victor, Imelda, Esmeralda, and Alberto Gamez. When appellant arrived home from work that afternoon, he began arguing with F. Appellant did not like the fact that F. was working, and believed she was having an affair with one of her coworkers. He was also angry that she was going to school and about to graduate.
The argument, which lasted for about three hours, began in the living room and then moved to the bedroom. After F. handed Dayanara over to Maria, appellant locked the bedroom door. When F. tried to leave the bedroom, appellant pulled her by the hair, grabbed her by the ears, and punched her in the thigh. He also threatened to hurt her and her family and said, "I'll kill you if you leave." Appellant then grabbed a miniature sword that was mounted on the wall and stabbed it into the bed where F. was sitting. As he cut the sheets and mattress, he told F. he wanted to kill her and said he would destroy her face so that the police would be unable to recognize her when they arrived.
We refer to family members with the same surname by their first names for ease of reference, and intend no disrespect.
Appellant eventually calmed down and asked F. if she wanted to have sex. At the preliminary hearing, F, testified that appellant told her he would hit her again if she did not agree to have sex with him. She also testified that appellant pulled off her pants and started having sex with her against her will. At trial, F. testified that she initially told appellant no, but agreed to have sex with him because she wanted to end the argument and leave the bedroom. She also stated that appellant promised to let her leave after they had sex and told her, "Don't say I like forced you, you know. Don't say that."
After appellant finished having sex with F., she went into the living room and started breastfeeding Dayanara. Appellant went to the bathroom, then came out to the living room and started arguing with Victoriano. Appellant again became angry at F. He grabbed Dayanara from her, tried to pull her by the hair back into the bedroom, and slapped her across the face. F. told Victoriano, "Don't leave or he's going to kill me."
Victoriano and Victor went outside and quickly returned with a pole and a wooden stick. F. grabbed Dayanara and handed her to Imelda as Victor grabbed appellant and tried to prevent him from hitting F. again. F. saw appellant pull a knife before she ran into the bathroom and locked the door. Victor and appellant struggled and fell down. When Victor got up, he saw a knife in appellant's hand. As Victor ran outside, he realized that he had been stabbed in the leg.
Someone in the house called 911 and hung up. Simi Valley Police Officers Lincoln Purcell and Don Swanson both responded to the call at about 9:45 p.m. When Officer Purcell arrived, Officer Swanson was standing in the driveway with Victoriano while Victor sat on the curb with his leg bleeding. Victoriano told Officer Purcell that Victor had been stabbed by appellant, and Victor described the knife to Officer Swanson. During a search of the area, Officer Swanson found a knife matching Victor's description on the seat of a truck parked in the backyard. The truck's engine was running.
Officer Purcell went inside the apartment and found F. and Imelda upset and crying. Appellant came out of the bedroom with Dayanara in his arms. Officer Purcell repeatedly asked appellant to give the child to a family member and come outside to talk. After appellant complied, he was arrested. Another officer photographed F. and observed an injury to her forehead, a mark on her thigh, and redness and swelling on her scalp. The officer also saw F. removing hair that appellant had pulled from her head during the incident.
Appellant called F. from jail four days later and told her that nothing bad would happen to her again. He called her again two days later and asked if she was going to tell the truth. F. responded, "Well, no, Baby, we would want to say what the lawyer tells us so you can get out." Appellant also asked whether the police found the knife. When F. told them they had, he responded "fuck."
When appellant called F. from jail on March 2, 2008, F. told appellant the prosecutor was going to drop the rape charge and that "[i]f you speak with the D.A., he'll remove that charge because right now he believes everything I tell him." Appellant told F. "to be smart with the D.A." During a telephone conversation on April 8, 2008, appellant told F., "When we go to court and everything, we have to each do our part so things will come out right." Three days later, appellant told F., "There are things you could do so things could go better." When F. asked him, "Like what?" he said he could not tell her over the telephone.
F. testified that appellant met with her and his family before the preliminary hearing and tried to come up with a story that Victor had accidentally stabbed himself. Later that day, appellant told F. he was going to harm her or her family if she did not testify as they had planned. When Victor testified, he denied ever being told by appellant to lie about what had happened.
Prior Incidents of Domestic Violence
In September 2006, appellant and F. got into an argument while he was driving her to work. Instead of driving F. to her job, he drove up a hill and stopped. F. stepped out of the truck, tripped on a rock, and fell down. At trial, F. denied that appellant had threatened her with a gun and said he was going to kill her. She stated that he had done so, however, in a letter she wrote around the time of the incident. F., who was nine months pregnant with Dayanara at the time of the incident, also wrote that she decided not to call the police because she was afraid of appellant and did not want to lose her baby.
In November 2006, appellant and F. were in bed when appellant woke up and became angry about something. While F. was breastfeeding Dayanara, appellant pulled the child from her and slapped F. across the face. F. testified that appellant slapped her so hard that she briefly lost her hearing.
Expert Testimony on Battered Women's Syndrome
Gail Pincus, the executive director of the Domestic Abuse Center in Northridge, testified as an expert on Battered Women's Syndrome (BWS). Pincus testified that BWS is a theory that explains the cycle of abuse in a relationship between a batterer and his victim. The batterer achieves his need for power and control of his partner and their children through criticism, emotional abuse, isolation, jealousy, economic control and abuse, coercion, threats, intimidation, and violence. The displaying of weapons, especially a knife, can be used to intimidate. Marital rape is also often part of the cycle of abuse.
Pincus explained that women suffering from BWS commonly recant their initial reports of abuse. She also spoke about how the batterer might use his family or even a clergy member to convince the victim to return to the relationship. If the victim returns, the violence increases in severity and frequency to the point that she will eventually develop post traumatic stress disorder.
Pincus made clear that her testimony was offered to educate the jury about BWS, and was not intended to prove whether domestic violence took place in a particular case. She did not read the police reports or speak with any of the individuals involved in the instant case, and she was unable to determine whether F. suffered from BWS.
DISCUSSION
I.
BWS Testimony
Appellant contends the court erred in allowing expert testimony on BWS under Evidence Code section 1107, subdivision (a). He argues, for the first time on appeal, that the testimony should have been excluded to the extent it "conflated post-battering 'make-up' sex with rape." He also claims the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352.
BWS is now called "intimate partner battering and its effects." (See Evid. Code, § 1107, subd. (a).)
"[E]xpert BWS 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. [Citation.] The use of BWS evidence in this manner is statutorily authorized by Evidence Code section 1107. (Evid. Code, § 1107 ['[i]n 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'].) 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 BWS 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 BWS evidence, provided, of course, that there is an adequate foundation for a finding that the witness has been affected by BWS. [Citation.]" (People v. Riggs (2008) 44 Cal.4th 248, 293.)
The trial court's decision to admit expert testimony on BWS is reviewed for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.) "[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "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. [Citations.]'" (Id. at pp. 1124-1125.)
In moving to exclude BWS evidence prior to trial, appellant challenged Pincus's qualifications and contended that her testimony was not probative because she did not interview F. The prosecutor argued that the testimony was necessary to educate the jury about BWS. The court allowed the testimony, but gave the following limiting instruction: "You will hear testimony from Ms. Pincus regarding the effect of a – something called either the Battered Women's Syndrome or I believe more recently the Intimate Partner Syndrome. [¶] Her testimony about this syndrome is not to be regarded as evidence that this defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [F.'s] conduct was not inconsistent with someone who has been abused in evaluating the believability of her testimony."
The court did not abuse its discretion in allowing Pincus to testify about BWS. F.'s trial testimony that she agreed to have sex with appellant contradicts what she told the prosecutor and testified to at the preliminary hearing. F. also recanted her reporting of the two prior incidents of domestic violence that took place in September and November 2006. Pincus's testimony on BWS was therefore relevant to assist the jury in evaluating the credibility of F.'s "trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence." (People v. Brown (2004) 33 Cal.4th 892, 895-896.)
Appellant's complaint that Pincus's testimony "conflated post-battering 'make-up' sex with rape" is unavailing because he did not challenge her testimony on that basis below. In any event, Pincus did not equate "make-up" sex with rape. She merely testified that a batterer may demand sex as a way to reassert control over his partner following physical abuse, and that the victim may "give in" in order to avoid further abuse. To the extent appellant claims this testimony amounts to an improper opinion on F.'s actual state of mind (see, e.g., People v. Erickson (1997) 57 Cal.App.4th 1391, 1401), Pincus made it clear to the jury that she was not expressing any opinion whether F. suffered from BWS or had ever been the victim of domestic violence. Moreover, the court instructed the jury that Pincus's testimony was not evidence appellant committed any of the charged crimes. (CALCRIM No. 850.) The jury was also instructed that appellant could not be found guilty of raping F. unless it found beyond a reasonable doubt that he had accomplished sexual intercourse against her will "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 262, subd. (a)(1).) We presume the jury followed these instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.) In light of these instructions, no reasonable juror would have interpreted Pincus's testimony to mean, as appellant suggests, that he was guilty of rape if F. had merely "capitulated for the sake of normalizing the relationship."
Appellant also fails to demonstrate the court abused its discretion in declining to exclude Pincus's testimony under Evidence Code section 352. Appellant's claim to the contrary is based entirely on People v. Gomez (1999) 72 Cal.App.4th 405. In that case, the court held that Pincus's testimony should have been excluded as irrelevant because there was no evidence the defendant fit the profile of a batterer or that he and the victim were engaged in an abusive relationship. (Id. at p. 419.) Evidence Code section 352 was not implicated. Moreover, Gomez was subsequently overruled to the extent it held that BWS evidence should be excluded where the evidence shows only one incident of domestic violence. (People v. Brown, supra, 33 Cal.4th at p. 908.) Here, F. testified at the preliminary hearing to multiple incidents of physical and emotional abuse. Gomez is plainly inapposite, and appellant provides no other basis for us to conclude that Pincus's testimony should have been excluded as unduly prejudicial under Evidence Code section 352.
II.
Evidence Code section 1109Appellant asserts that the court abused its discretion, and thereby violated his due process rights, by admitting evidence of two prior acts of abuse against F. under Evidence Code sections 1109 and 352. He claims the evidence created a substantial danger of confusing the issues, was likely to inflame the jury, and was of limited probative value. We disagree.
Where domestic violence is charged, evidence of the defendant's commission of other acts of domestic violence is admissible to prove his or her propensity to commit the present offense. (Evid. Code, § 1109.) Admissibility is subject to the court's discretion to exclude evidence that is more prejudicial than probative. (Evid. Code, § 352.) In determining whether to admit evidence of a prior act of abuse, trial courts should weigh factors including "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other... offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) "We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Over appellant's objection, the court admitted evidence of two prior incidents that took place less than a year before the incident upon which the current charges were based. The first incident took place in September 2006, when appellant threatened F. with a gun and said he was going to kill her. In the other incident, which took place in November 2006, appellant took Dayanara from F. while she was breastfeeding her and slapped F. across the face. In admitting the evidence, the court stated, "I do agree the prejudicial impact is high, it always is on these kinds of things on balance." The court also found that, although the probative value of the evidence was undermined by the lack of corroboration, both incidents were recent and involved the same victim. The court went on to find "that the balance of persuasive value and probative value and prejudicial impact weighs in favor of admission of both, and I will be allowing their admissions."
The court did not abuse its discretion in admitting the evidence. We reject appellant's claim that the evidence was likely to confuse the issues. Although appellant correctly notes that he testified to both incidents first, there was a clear delineation between those incidents and the one upon which the current charges were based. The prior acts were no more inflammatory than the charged crimes, and involved similar behavior evincing appellant's propensity to commit violent acts against F. They also demonstrated an escalating pattern of domestic violence, which is precisely what the Legislature was concerned with in enacting Evidence Code section 1109. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) Moreover, the independent evidence against appellant was substantial, and the jury was instructed on how to evaluate the evidence of the prior acts to avoid against the possibility of undue prejudice. Although appellant correctly notes that the probative value of the evidence was undermined by the lack of corroboration, the court took that into account in concluding that the balance weighed in favor of admission. There was no abuse of discretion.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.