Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside Super. Ct. No. RIF116841, Eugene L. Huseman, Judge.
HUFFMAN, Acting P. J.
After a trial in which Roderick Brian Gibson was charged with crimes arising out of alleged domestic violence against two different victims (Julieta O. and Lanette W.), a jury convicted Gibson of battery on Julieta's stepfather (Pen. Code, § 242; count 4), resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 7), battery on a peace officer (§ 243, subd. (b); count 8), and spousal battery on Lanette W. with a prior conviction for spousal battery (§ 273.5, subd. (e); count 9). The jury also found true an allegation that Gibson had committed the spousal battery against Lanette while he had been released from custody on bail (§ 12022.1).
All statutory references are to the Penal Code unless otherwise specified.
The jury acquitted Gibson on counts charging him with terrorist threats against Julieta and her stepfather (counts 2 & 3) and with battery on a cohabitant, Julieta (count 6). After the jury could not reach a verdict on the count 1 charge of stalking Julieta, the court declared a mistrial and subsequently dismissed that count in the interests of justice.
The trial court granted Gibson's motion for dismissal of the count 5 charge of stalking Julieta's stepfather following the defense case at trial.
In a bifurcated proceeding, the court accepted Gibson's admissions that he had previously been convicted of a serious felony prior (§ 667, subd. (a)(1)) and a strike prior under the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). After considering a motion to strike the priors, reduce Gibson's count 9 felony conviction to a misdemeanor, and strike the on-bail enhancement to count 9, the court impliedly denied the motions and sentenced Gibson to a total prison term of nine years, consisting of the midterm of four years doubled for the count 9 felony spousal battery plus one year for the prison prior enhancement. The court then imposed concurrent 90-day terms on each of the three misdemeanor convictions (counts 4, 7 & 8).
Although the oral pronouncement of sentence does not show that the court expressly ruled upon the motions to strike the three strikes prior, reduce the count 9 felony to a misdemeanor, or strike the on-bail enhancement, we can infer from the actual sentence imposed that the court did so. Interestingly, the court's written minutes reflect the court denied the motion to reduce count 9 to a misdemeanor and ordered the on-bail enhancement stricken.
Gibson appeals, contending the trial court prejudicially erred by permitting an unqualified expert to testify on "battered women's syndrome" (BWS), by admitting prior acts of domestic violence under Evidence Code section 1109, and by imposing concurrent sentences on his counts 7 and 8 misdemeanor convictions for resisting arrest and battery on a peace officer. He also asserts that the admission of prior acts under Evidence Code section 1109 to prove his disposition violated his right to a fair trial under the due process provisions of the state and federal Constitutions. We affirm.
Although Evidence Code section 1107 was amended as of January 1, 2005, to use the phrase "intimate partner battering" instead of BWS, because the court and parties used the more traditional term BWS at trial, we will refer to such evidence in this opinion as BWS even though that label may be misleading as it appears to limit that syndrome to women and a victim of BWS can be either a male or female.
FACTUAL AND PROCEDURAL BACKGROUND
Although Gibson was not convicted of many of the crimes with which he was charged involving his alleged abuse of Julieta on April 17, 2004, and he does not challenge the sufficiency of the evidence to support his other convictions, we set out the facts at some length to provide background for his contentions on appeal. As mentioned earlier, Gibson was charged with numerous offenses stemming out of his alleged abuse at different times against two different women, Julieta and Lanette. We basically summarize the facts regarding those two women separately before setting out the remaining prosecution evidence and the defense evidence.
Victim Julieta
Julieta and Gibson began dating in 2001, and she subsequently moved in with him. During their relationship, Gibson controlled where Julieta could work, where she could go, and who she could call. He essentially did not allow her to remain at home or go anywhere without him.
After about three months of dating, Gibson became physically abusive, hitting Julieta in the eye, causing injury. When Julieta learned she was pregnant in 2003, they argued and Gibson hit her in the back of the head, leaving her dizzy, unable to see anything for several seconds, and with a lump on her head. When she was about seven months pregnant and refused to have sex with Gibson, he grabbed her and scratched her neck, leaving her with a scar.
After their child was born February 23, 2004, Julieta decided to leave Gibson and a month later went with the baby to live at her sister's house in Riverside, California. Gibson followed her to her sister's residence the night she left and demanded entry. When Julieta's sister refused to open the door, Gibson broke it down, entered the house, insisted that Julieta and the baby leave with him, and threatened to do something to her and her two sisters if she did not do so. Gibson fled when the police arrived at the home.
After that incident, Gibson telephoned for Julieta up to 10 times a day and often showed up at the sister's house in the middle of the night, squealing his tires, honking his horn, banging on the door, ringing the door bell, and insisting to see their sleeping baby. He continually threatened Julieta that he would hurt her if she did not come back to him. During this time period, Julieta often stayed at different relatives' homes because Gibson followed her everywhere she went.
On March 25, 2004, Gibson tracked Julieta to her mother's house where she was then staying, saying he had a gun and directing her to get the baby and leave with him. Julieta complied. The next day, she filled out an application for a restraining order. When Gibson arrived at Julieta's mother's home in the middle of the night on April 17, 2004, banging loudly on the door and ringing the door bell, Julieta let him in. Gibson took Julieta's cell phone and smashed it, saying he wanted to know who she was calling and whether she was seeing anyone else. He then grabbed her by the hair, checked her neck for "hickies," and slapped her, causing her to fall. Awakened by all the noise, Julieta's mother and stepfather, came into the room. Gibson ran at and pushed Julieta's stepfather when he told Gibson to leave. Julieta called 911, but Gibson fled before the police arrived. Following that night, Gibson called Julieta's stepfather multiple times a day, threatening to kill him.
On May 9, 2004, while Riverside police officers Dennis Dodson and Carlos Vasquez were at Julieta's mother's home interviewing her stepfather about the April 17, 2004 incident, Gibson knocked at the door. Deciding to arrest Gibson for the earlier incident, the officers opened the door. While Vasquez, who was in uniform, grabbed Gibson's left arm, Dodson, a domestic violence detective who was not in uniform, grabbed Gibson's right arm and advised him he was under arrest. When Dodson tried to put handcuffs on Gibson, Gibson stiffened, and began fighting the officers to get away, and would not allow them to put his hands behind his back. Dodson used his hands to take Gibson to the ground face down, but Gibson continued to struggle against the officers and tried to kick Vasquez. When the officers directed Gibson to stop resisting and give Dodson his arm, Gibson continued to struggle against both officers and kicked Vasquez leaving him with a scratch on his right elbow. Dodson was finally able to handcuff Gibson when he applied his body weight to Gibson's torso, and Gibson finally complied with the demand to give Dodson his arm. Gibson continued to struggle and kick even after he was handcuffed.
On cross-examination, Julieta claimed she had lied to the police about the April 17, 2004 incident because she was angry with Gibson. She had continued to talk with Gibson after that incident and visited him in custody hoping they could get back together. When she testified at the preliminary hearing on that matter, she lied and said that Gibson did not hit her. While the case was pending, Gibson called her from jail, telling her to lie at trial and to say that he had done nothing wrong. Gibson also told Julieta to say that her stepfather had been drunk and had hit Gibson with a stick, and to tell her mother to refuse to testify.
Victim Lanette
Gibson and Lanette lived together for several months while he was out on bail for the April 17, 2004 incident involving Julieta, and before his arrest on February 1, 2005 for assaulting Lanette. Although at trial Lanette denied Gibson had ever physically assaulted her during their relationship, claiming he only bit her once during "kinky sex," her pretrial statements, and those of her family, told a different story.
Lanette had told an investigating deputy sheriff that on January 31, 2005, she and Gibson had argued and he had punched her in the ribs and left arm, leaving her left arm swollen and bruised. On February 1, 2005, they had again argued while in Gibson's car and he told her to get out. When she refused, Gibson tried to push her out of the car and bit her lower back, leaving a full red and bruising bite mark. Lanette also told the deputy that during their six-month relationship, Gibson had beaten her numerous times but she never reported any of the incidents. When the deputy told Lanette that Gibson would be arrested for felony domestic violence, Lanette became livid, saying she would refuse to press charges or testify. In court, Lanette explained that because she suffers from depression and mood swings and takes Prozac, she often can not remember what she had earlier said.
Lanette's family members testified that during the time Gibson and Lanette were together, they often noticed she had injuries, including bruises on her face, neck and body, a black eye and a bump on her head. One time when Lanette's mother had confronted Gibson about a bruise on Lanette, he said there had been an argument and he had hit her. Although Lanette had told her grandmother several times that Gibson had beat her, she never saw him do it, and Lanette never allowed her to call the police until the February 1, 2005 incident.
The deputy who interviewed Lanette arrested Gibson later that day and questioned him after he waived his rights under Miranda v. Arizona (1966) 384 U.S. 436. At first Gibson denied having seen Lanette in quite some time, but then conceded he had seen her that morning, but denied he had left the place where he was then staying. However, the other occupant of the house where Gibson was staying said she had seen Gibson drive away from the residence earlier in the morning.
Expert Testimony
Detective Richard Wheeler, a former member of the police department's domestic violence unit, testified in the prosecution case as an expert witness on BWS. Aside from his academy and seminar training on domestic violence issues, Wheeler had assisted in the investigation of more than 1,500 domestic violence cases, and had qualified as a domestic violence expert on four earlier occasions. In addition to explaining the definition of BWS, Wheeler testified based on his experiences as a police officer about the cycle of violence that is commonly part of a domestic violence relationship. Specifically, he testified about the role of power and control in a domestic violence situation, the fact that domestic violence victims often remain in abusive relationships, how domestic violence victims often fail to report or minimize the abuse, and the fact that when they do report they often recant. In doing so, Wheeler provided several examples of the cycle of violence from cases he had worked on as a police officer investigating domestic abuse.
Prior Acts of Domestic Violence
Pursuant to Evidence Code section 1109, Gibson's former wife, Lisa B., was permitted to testify in the prosecution case. Lisa had started dating Gibson in February 1993, became pregnant and moved in with him. Their baby was born in November 1993, and they eventually got married in December 1995.
Lisa testified that the first time Gibson became physically violent with her occurred three days after their baby was born. At that time, he grabbed her by the neck and pushed her up against a wall. Then in January 1994, Gibson grabbed her by the hair and threw her down. On May 29, 1994, he pushed her, causing her to fall into the stove and burn her elbow. One time he also strangled her and then poured baby shampoo on her hair and her outfit so that she could not go out with a friend. By that time in their relationship, Gibson controlled whom she could and could not see. During their entire relationship, Gibson continually told her that if she ever left him, he would kill her.
After Gibson spent a short time in custody for the May 1994 incident, Lisa reconciled with him and he resumed his aggressive behavior. On October 20, 1998, Gibson called Lisa while she was working and threatened that bad things would happen to her and her family if she did not leave work and pick up their son at her father's house. Later, when Gibson found out Lisa was having an affair in November 1998, he threatened to shoot her and her lover. When Lisa served Gibson with divorce papers on November 30, 1998, he created a scene at her place of employment prompting her to obtain a restraining order against him.
After again reconciling in January 1999, Gibson again abused Lisa on January 30, 1999, when she refused to have sex with him. Enraged, Gibson pushed his fingers into Lisa's eyes, bit her arm, and called her "a bitch, a slut and a cunt." When Gibson drove Lisa to the hospital the next morning because she could not see, he told her that if he went to jail for the incident, he would kill her. Lisa's eyes were bandaged due to internal bleeding.
The Defense
A woman who had lived with Gibson and Julieta, Gibson's cousin, Lanette's ex-husband and his mother, as well as Gibson's mother, all testified in Gibson's defense, which was designed to show that Julieta had lied and Lanette was a mentally unstable woman whose testimony could not be trusted. The woman roommate testified that although she had overheard arguments between Gibson and Julieta, she had never seen any signs of physical abuse on Julieta, and Julieta had never complained to her of any such abuse.
Gibson's cousin testified about an incident after Thanksgiving dinner 2004 with the family when Lanette was taken to the hospital after taking some pills and becoming sick. Lanette's ex-husband testified that during their four-year relationship, Lanette often refused to take her medication for bipolar disorder, described her behavior as erratic, and opined she was "mentally insane." His mother testified that she had seen Lanette act violently toward her son during their relationship and that she believed Lanette was a manipulator and a liar. Gibson's mother also described Gibson's relationship with Lanette, opined she was mentally unstable and had once seen her physically abuse Gibson.
In closing argument, Gibson's counsel asserted that Julieta and Lanette had lied about Gibson's physical assaults. He also argued that Gibson had never threatened Julieta's stepfather and that, at most, Gibson had only committed simple batteries against Julieta's stepfather and against Officer Vasquez while Gibson was resisting arrest. Counsel further argued that the prosecution evidence concerning Lisa was presented solely to inflame the jury's passion and to substitute for the minimal evidence supporting the current charges, and that Wheeler's expert testimony was inadequate evidence to support the charges because he had no psychological background and was thus not qualified to give an opinion on BWS.
DISCUSSION
I
QUALIFIED EXPERT
In limine, the prosecutor gave notice to the court and defense counsel that he would be seeking to admit expert testimony on BWS under Evidence Code section 1107 and would soon have his papers ready. The next court day, the prosecutor moved to admit the testimony of Riverside Police Department Detective Wheeler on BWS, representing that Wheeler would discuss BWS generally and not specifically regarding the current victims as he had not interviewed them. Faced with defense counsel's objection that the request to admit such evidence was untimely, the court tentatively denied the motion on grounds of "lateness," but advised counsel to do more research on the matter and it would revisit the issue later.
Subsequently, during his case-in-chief, the prosecutor advised the court he wanted to call Wheeler as an expert on BWS, but the defense had a problem with his qualifications and wanted the evidence limited. After further argument, and noting that the law appeared to be "pretty liberal" as to satisfying the foundation or qualifications element for an expert to testify, the court conducted an Evidence Code section 402 hearing regarding Wheeler's qualifications and knowledge regarding BWS.
Wheeler had been a Riverside police officer for more than 11 years and had worked for one year as one of four domestic violence investigators in the domestic violence unit after receiving 12 to 15 hours of domestic violence training in 1995 at his original academy training and on-the-job training as a patrol deputy. During his year with the domestic violence unit, he had assisted in the investigation of more than 1,500 domestic violence cases. Wheeler also had continuing training and education from a 40-hour Peace Officer Standards and Training (P.O.S.T.) course in domestic violence in May 2002 and an eight-hour domestic violence course with the California District Attorney's Association (CDAA) that same year. Both the P.O.S.T. and CDAA courses covered BWS. Wheeler took another P.O.S.T. course in May 2003 that trained him to testify as an expert witness on domestic violence issues and he had qualified and testified as a domestic violence expert four times, the most recent having been two months earlier in June 2005.
On cross-examination, Wheeler conceded he had no formal psychological education or experience except for on-the-job experience with the domestic violence cases he had investigated and done follow-ups on. He knew of the woman psychologist who had started the concept of BWS and was halfway through her book. Wheeler explained that he could discuss the concepts of BWS from his training and testify about a domestic victim's experience from his investigations, but could not provide a clinical diagnosis.
At the conclusion of the hearing, the court ruled it was satisfied Wheeler was qualified to give his opinion on BWS limited to his experiences and would instruct the jury accordingly before he testified.
Before Wheeler did so, the trial judge instructed the jury with CALJIC No. 9.35.1 as follows:
"Ladies and gentlemen, I'm going to instruct you at this time that the testimony that is going to be presented to you concerning [BWS] is also known as . . . Intimate Partner Battering and its Effects. This evidence is not received and you must not consider it . . . to prove the occurrence of the act or acts of abuse which form the basis of the . . . crimes charged. [BWS] research and experience is based on an approach that is completely different from the approach which you must take to this case. [¶] The syndrome research begins with the assumption that the physical abuse has occurred, and seeks to describe and explain common reactions of women to that experience. As distinguished from that research approach, you are to presume the defendant innocent. [¶] The People have the burden of proving guilt beyond a reasonable doubt. You should consider this evidence for . . . certain limited purposes only; namely, that the alleged victim's reactions as demonstrated by the evidence are not inconsistent with her having been physically abused."
Wheeler then testified before the jury about his training and experience and the fact that his testimony was limited to BWS and his experiences from his past domestic violence investigations and not on any specific information from this case. After defining BWS, Wheeler described the cycle of violence commonly involved in domestic violence relationships and the role of power and control in such situations that he had learned from his education and training. He then used specific examples of cases he had worked on as a police officer to describe parts of that cycle; i.e., victims often remaining in abusive relationships, victims often failing to report or minimizing the abuse, and victims often recanting after reporting abuse.
On cross-examination, Wheeler was thoroughly questioned about his lack of a psychological background. He conceded he did not have a college degree in psychology and had never taken a college psychology class. He clarified that he was not testifying about the psychological effects of BWS but rather on the conduct and experiences of the domestic violence victims he had interviewed in the past.
In closing argument, Gibson's counsel stressed Wheeler's lack of a psychological background to attack his testimony, arguing the jury should not find it a substitute for evidence to prove Gibson's guilt with regard to the count 9 spousal battery alleged against Lanette. In rebuttal argument, the prosecutor explained to the jury that the expert testimony was limited in this case to give an understanding of the cycle of abuse in domestic violence cases and not to provide an opinion on the facts of this case. In instructing the jury, the court again gave CALJIC No. 9.35.1 on the limited use of evidence regarding BWS and also gave CALJIC No. 2.80 on how to consider and weigh testimony provided by an expert witness.
On appeal, Gibson contends the trial court abused its discretion in permitting an unqualified witness to testify about BWS as Wheeler had no psychological background, had minimal training on BWS, and admitted he was not qualified to diagnosis a person as having BWS. We find no error.
Evidence Code section 801 provides for the admissibility of expert testimony that may assist the trier of fact. In addition to this general statute, Evidence Code section 1107 specifically provides for the admission of expert testimony on BWS if relevant to prove or disapprove a disputed issue. (Evid. Code, §§ 210, 351; People v. Brown (2004) 33 Cal.4th 892, 903 (Brown); People v. Humphrey (1996) 13 Cal.4th 1073, 1088 (Humphrey); People v. Gadlin (2000) 78 Cal.App.4th 587, 592.) "[BWS] 'has been defined as "a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives." [Citations.]' [Citation.]" (Humphrey, supra, 13 Cal.4th at pp. 1083-1084.)
Section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Section 1107 provides that: "(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding [BWS] battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. [¶] (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. . . ."
Here, Gibson does not challenge that portion of the foundational requirement for admission of testimony on BWS regarding relevancy to the disputed issues in this case, but rather only to the latter requirement that Wheeler be qualified as an expert who can testify on BWS under Evidence Code section 1107. Regarding this latter foundational requirement, Evidence Code section 720, subdivision (a) also provides in part that, "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." The question of an expert's qualifications is a matter addressed in the first instance to the sound discretion of the trial court and will not be disturbed absent a showing of manifest abuse. (People v. Bloyd (1987) 43 Cal.3d 333, 357; Brown v. Colm (1974) 11 Cal.3d 639, 646-647.) A court will be deemed to have abused its discretion only when " ' "the evidence shows that a witness clearly lacks qualification as an expert." ' [Citation.]" (People v. Williams (1989) 48 Cal.3d 1112, 1136.) " 'Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.' " (Seneris v. Haas (1955) 45 Cal.2d 811, 833.)
Applying the above law to the record facts in this case, we conclude the trial court did not abuse its discretion in permitting Wheeler to testify about BWS in this case. Despite not having a psychological background, which was openly conceded by Wheeler, his responses to questioning at the Evidence Code section 402 hearing reflected he had knowledge about BWS from his training and experiences with the domestic violence unit as a police officer investigating more than 1,500 cases of alleged domestic abuse, 200 to 300 on which he had been the lead investigator. Although BWS originated as a concept from the work of psychologist Lenore Walker (Brown, supra, 33 Cal.4th at p. 899), no statutory or case authority requires an expert testifying about BWS to be a psychologist or possess a specific degree of any kind. As the trial court found, the statutory authority was very liberal in permitting qualifications to testify based on special knowledge, experience and training as well as just on any type of specialized education.
Wheeler related this background to the jury, explained what BWS was as learned through his training and education, and then discussed a wide variety of circumstances based on his own experiences as a police officer regarding the typical responses of victims in those domestic violence situations. Wheeler clearly noted the limits of his testimony by stating he did not have knowledge of the particular facts in this case and that he was not offering any opinions as to whether Julieta or Lanette were telling the truth or whether they were clinically exhibiting BWS. Gibson's counsel challenged Wheeler's qualifications before the jury on cross-examination and in closing arguments and the court fully instructed the jury both before Wheeler's testimony and again before deliberations as to the limited scope of his expert testimony and their use of such evidence.
Under these circumstances, Gibson has not shown a manifest abuse of the court's discretion in finding Wheeler had sufficient knowledge of BWS to entitle his limited testimony and general opinions to go to the jury. Rather, Gibson's complaints about Wheeler's qualifications go to the weight of his testimony and not to its admissibility. (See People v. Chavez (1985) 39 Cal.3d 823, 829.) No error is shown.
II
EVIDENCE CODE SECTION 1109Pretrial the prosecutor filed a motion to admit certain earlier incidents of domestic violence committed by Gibson against Julieta, Lanette and Lisa, his former wife, under Evidence Code section 1109. At the first discussion on the matter, when the trial court agreed that the earlier acts concerning Julieta and Lanette would come into evidence as part of a continuing course of abusive conduct against those victims, defense counsel commented that he did not see such as true Evidence Code section 1109 evidence and that he was focusing his objection on the other acts evidence involving Lisa who was "not charged in this case as a victim." As to such evidence, counsel objected under Evidence Code section 352 because the evidence was "highly inflammatory, highly prejudicial" and some prior acts predated the current charges by 10 years.
Evidence Code section 1109 provides: "(a)(1) 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. [¶] (2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant's commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] (3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101. [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code. [¶] (c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law. [¶] (d) As used in this section: [¶] (1) 'Abuse of an elder or dependent person' means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering. [¶] (2) 'Child abuse' means an act proscribed by Section 273d of the Penal Code. [¶] (3) 'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense. [¶] (e) 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. [¶] (f) Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section."
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."
Although recognizing that conduct more than 10 years old was generally excluded under Evidence Code section 1109, the court outlined why it was finding good cause for including the acts of abuse Gibson allegedly committed upon Lisa right after their baby was born in 1993. The court specifically found good cause to go outside the 10-year limit of Evidence Code section 1109 because the earlier acts on Lisa were part of a continuing course of conduct with Gibson's alleged abuse on her during their relationship which culminated in abusive incidents occurring in 1999 before the relationship ended.
After ruling on several other in limine matters, the court returned to Gibson's objection that the prior domestic abuse acts involving Lisa should be excluded under Evidence Code section 352 because they were too prejudicial. The court specifically explained why the evidence was probative and prejudicial, why it would not take up too much time or be too weighty so as to overwhelm the jury and why it thought the bottom line was it was not overly prejudicial and would be admitted.
When the prosecutor brought up the matter a third time requesting an Evidence Code section 402 hearing, the court again found that the earlier incidents involving Lisa were part of a continuous abusive relationship and that their probativeness outweighed any prejudice under Evidence Code section 352. Several days later, Lisa's conditional examination under Evidence Code section 1109 was videotaped while it was conducted. By stipulation, Lisa's videotaped testimony, as noted in the factual background above, was played for the jury. The court subsequently instructed the jury under CALJIC Nos. 2.50.02 and 2.50.1 regarding the scope of prior acts evidence and the prosecutor's burden of proof regarding such evidence.
On appeal, Gibson not only argues that the trial court abused its discretion when it admitted the prior domestic abuse acts regarding Lisa into evidence under Evidence Code section 1109 over his Evidence Code section 352 objections, but also argues the court erred in admitting the priors acts evidence concerning Julieta with regard to Lanette and the prior acts evidence concerning Lanette with regard to Julieta. Gibson further contends that the admission of any such evidence under Evidence Code section 1109 violates his state and federal due process rights. We find that Gibson has waived his due process claim and those regarding the prior acts evidence concerning Julieta and Lanette, and conclude the trial court did not abuse its discretion in admitting the other acts evidence under Evidence Code section 1109 with regard to Lisa.
Generally, a defendant waives a federal constitutional claim on appeal if he did not argue for or against the exclusion of evidence based on that constitutional provision at the trial level. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; People v. Davis (1995) 10 Cal.4th 463, 501, fn. 1.) With regard to state evidentiary claims, such will be waived where a defendant does not specifically object below on the ground raised on appeal. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124 (Kipp).) Because Gibson did not specifically object below to the admission of the prior acts evidence concerning Julieta or Lanette, or on due process grounds to the admission of the Evidence Code section 1109 evidence concerning Lisa, his appellate assertions regarding such claims are waived.
As to the objection Gibson did make concerning the admission of Lisa's Evidence Code section 1109 evidence, we note that subject to Evidence Code section 352, Evidence Code section 1109 permits a jury to consider prior incidents of domestic violence for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current charge of domestic violence. (Evid. Code, § 1109, subd. (a)(1).) Although before Evidence Code sections 1108 and 1109 were enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, § 1101; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913 (Falsetta)), their enactment created statutory exceptions to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses and other acts of domestic violence in cases charging such conduct to prove the defendant's disposition to commit the charged offense. (Id. at p. 911; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025 (Hoover).) Gibson recognizes that in Falsetta, at pages 910 through 922, the California Supreme Court ruled that section 1108, addressing sexual offenses, was constitutional, and that lower appellate courts have repeatedly applied Falsetta to reach the same conclusion for section 1109, addressing domestic violence. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1338; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310 (Jennings); Hoover, supra, 77 Cal.App.4th at pp. 1026-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 420.)
Even if we assumed Gibson had not waived his due process claim to the admission of Evidence Code section 1109 evidence, we would not revisit the issue of the basic validity of such evidentiary scheme as we agree with the decisions cited above that the procedure established by Evidence Code section 1109 is within constitutional limits and its application does not violate due process.
However, because Evidence Code section 1109 conditions the introduction of prior domestic violence evidence on whether it is admissible under Evidence Code section 352, Gibson's specific objection, as well as any derivative due process assertion, necessarily depends on whether the trial court here sufficiently evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) As the Supreme Court stated in Falsetta, "trial judges must consider such factors as 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. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.)
On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1109 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) " '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.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting such other acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.)
Applying these rules in this case, we conclude the trial court's analysis was reasonable and sufficient to indicate it carefully and properly weighed prejudice against probative value before admitting the proffered evidence regarding Lisa under Evidence Code section 1109. As noted above, the court considered the matter several times and stated reasons on the record for finding good cause to go beyond the 10-year limit of Evidence Code section 1109 as well as for finding no undue prejudice and consumption of time after weighing the probativeness of the evidence on the charges currently before the court against the prejudice inherent in its admission. The prior acts of domestic violence against Lisa included similar behavior as alleged against the current victims, tending to show Gibson's propensity to commit violent acts against domestic partners, and thus the evidence had great relevance to the issues the jury had to decide. The prior acts were no more inflammatory than the charged acts, the video-recorded testimony did not take up a considerable amount of time and there was no probability of confusing the jury because the conduct with Lisa occurred for the most part two years before the current charged offenses. Although several acts were a bit older, the court found good cause for their inclusion in Lisa's testimony because of the continuing nature of the abuse alleged. On this record, we cannot find that the trial court abused its discretion in finding Lisa's Evidence Code section 1109 testimony was not unduly prejudicial, i.e., its probative value outweighed its prejudice. No evidentiary error in this regard is shown.
III
THE CONCURRENT SENTENCES ON COUNTS 7 AND 8
Gibson also contends the trial court illegally imposed multiple punishment in violation of section 654 when it imposed 90-day concurrent sentences for counts 7 and 8 because the charges, resisting or obstructing an unnamed police officer and battery on a named police officer (Vasquez), arose from a single, indivisible course of conduct. He, therefore, asserts that the sentence imposed for the count 7 charge must be stayed. We conclude the court properly imposed concurrent terms for counts 7 and 8.
The question of whether multiple convictions are part of an indivisible transaction, making section 654 applicable, is a question of fact. (People v. Martin (2005) 133 Cal.App.4th 776, 781 (Martin).) On appeal, we review such a finding under the substantial evidence test and consider "the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence." (Ibid.) "Although the determination of whether the facts and circumstances reveal a single intent and objective within the meaning of section 654 is generally a factual matter, the dimension and meaning of section 654 is a legal question." (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)
Section 654 provides in pertinent part: "(a) An act . . . that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Generally, even though multiple convictions may be permitted for more than one offense arising out of the same act or course of conduct (§ 954), section 654 precludes multiple punishment for the same "act or omission." (People v. Ortega (1998) 19 Cal.4th 686, 692, distinguished on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228.) In other words, "[s]ection 654 precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.) The policy behind section 654 is to prevent double punishment for the same criminal objective, despite the commission of separate crimes. (People v. Pena (1992) 7 Cal.App.4th 1294, 1311.) This "is to insure that the defendant's punishment will be commensurate with his criminal liability." (Neal v. State (1960) 55 Cal.2d 11, 20 (Neal).)
An exception to the section 654 proscription against multiple punishment, however, exists to permit separate punishment when crimes of violence are committed against more than one victim. (People v. Latimer (1993) 5 Cal.4th 1203, 1212.) Such insures punishment commensurate with criminal liability consistent with the policy behind section 654. (Neal, supra, 55 Cal.2d at pp. 20-21.) "A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person." (Id. at. p. 20.)
In this case, the People argue not only that the multiple-victim exception to 654 applies to the sentences imposed for the count 7 resisting arrest and count 8 battery on a police officer, but also that Gibson had more than one objective in resisting arrest from Officers Dodson and Vasquez and in committing battery against Vasquez. Gibson disagrees, claiming the multiple-victim exception to section 654 does not apply because resisting arrest under section 148, subdivision (a)(1) may also involve nonviolent conduct and, as charged here without a named victim, the jury could have found the crime applied only to Officer Vasquez thereby negating a finding of multiple victims. He also asserts that the language of section 148, subdivision (a)(1) specifically provides for punishment only when no other punishment is imposed and therefore the court could not impose a separate punishment for the count 7 crime as his behavior was already punished by the term imposed for the count 8 battery on a police officer. Finally, Gibson argues that because the People essentially conceded below that there was only one course of conduct from which the charges in counts 7 and 8 arose, i.e., fighting to resist arrest, the People may not now argue there were two separate incidents.
Section 148, subdivision (a)(1) provides in part that "Every person who willfully resists, delays, or obstructs any public officer, peace officer . . . in the discharge . . . of his or her office or employment, when no other punishment is prescribed, shall be punished . . . by imprisonment in a county jail not to exceed one year . . . ."
However, even assuming, without deciding, that the count 7 and 8 crimes occurred during the same indivisible transaction and that Gibson's intent and objective in resisting arrest from the two officers and committing battery against Vasquez was the same, we conclude the multiple-victim exception applies in this case.
Although resisting arrest under section 148, subdivision (a)(1) is not expressly labeled a violent crime and a defendant may resist arrest either by violent or nonviolent, willful conduct, such distinction is not dispositive as to whether the multiple-victim exception applies. "Whether the statute is framed as a crime 'against the person' [citation] or, while not so framed, is, in fact, such a crime, makes no difference in assessing whether the multiple-victim exception is applicable. The test is whether, in fact, a particular type of crime is a crime of violence against a person. [¶] Other offenses that are not specifically directed 'against the person' [citation] have nonetheless been found to be crimes of violence invoking the multiple-victim exception." (Martin, supra, 133 Cal.App.4th at p. 782.)
For instance, in People v. Centers (1999) 73 Cal.App.4th 84, where the defendant challenged the imposition of separate unstayed sentences for burglary and kidnapping, the fact that burglary is not an inherently violent offense, did not prevent the court from applying the multiple-victim exception to section 654. (Centers, supra, at pp. 98-100.) Because the facts revealed the defendant had carried out the burglary in a violent manner, i.e., by using a firearm to gain his entry into the victim's residence, and there were separate victims for the burglary and kidnapping, the court affirmed the separate sentences. (Id. at p. 102.)
Here, Gibson violently resisted arrest, requiring Officer Dodson to physically force him to the ground in an attempt to take him into custody. Gibson continued to resist arrest and kicked Officer Vasquez who attempted to aid Dodson in restraining Gibson. Although Vasquez was not seriously injured, the focus of the multiple-victim exception is not on the victim's injury, but rather on the defendant's criminal conduct. In this case such violent conduct was directed at two police officers and thus the multiple-victim exception applied and the imposition of multiple concurrent sentences was warranted.
Contrary to Gibson's argument otherwise, the phrase "when no other punishment is prescribed" in section 148, subdivision (a)(1) refers to the other subdivisions of section 148, i.e., for offenses listed in subdivisions (b) through (d), and does not preclude punishment under other code sections as charged in this case. (People v. Christopher (2006) 137 Cal.App.4th 418, 434-436.)
In addition, even though the section 148, subdivision (a)(1) charge did not name a specific officer, construing the facts in the light most favorable to the People, we presume the jury properly deduced that such charge was not solely alleged against Vasquez and applied equally to Dodson who was also a victim of Gibson's violent conduct. (Martin, supra, 133 Cal.App.4th at p. 781.)
In sum, no violation of section 654 is shown on this record.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.
Because we could not tell from the record what actually happened with the true finding on the serious felony prior that the trial court had made based on Gibson's admission as there was no mention of it in the court's oral pronouncement of sentence and the court minutes stated that the "Court Orders Prior(s) 2 Stricken," we asked the parties to brief whether the court had imposed an unauthorized sentence when it failed to impose that enhancement. Having reviewed the supplemental letter briefs, we concur with the parties that there is no current serious felony conviction which supports a true finding for a serious felony prior enhancement in this case. Thus, as a matter of law, the trial court should have initially declined Gibson's admission on the section 667, subdivision (a)(1) prior serious felony conviction allegation and found it not true. However, because it can be inferred from the court's minutes that the trial court belatedly recognized this fact, and correctly ordered that prior stricken and did not impose the enhancement, we need take no further action on the matter. We strongly suggest that in the future the trial court expressly make its rulings on motions and enhancement allegations orally on the record.