Opinion
D074062
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. NADYA GOLDFREED, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1501422) APPEAL from a judgment of the Superior Court of Riverside County, W. Charles Morgan, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Nadya Goldfreed was convicted by a jury of one count of corporal injury on her spouse (Pen. Code, § 273.5) and one count of the lesser included offense of spousal battery (Pen. Code, § 273.5, subd. (e)(1)). On appeal, Goldfreed asserts that the trial court prejudicially erred by denying her request to impeach the victim with evidence of his purported domestic violence directed against her. Goldfreed also contends that the prosecutor committed misconduct by asserting that there was no evidence that the victim had a motive to lie. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Goldfreed and her spouse, referred to as John Doe throughout the proceedings, began living together in 2005 and were married in 2007. Doe was 60 years old at the time of the crimes at issue and was in poor health. His various medical ailments included an open wound on his abdomen. Goldfreed provided wound care for Doe in exchange for payment from the state.
Goldfreed had a history of domestic violence with Doe that included three prior misdemeanor convictions and one prior felony conviction. On December 4, 2005, Goldfreed pled guilty to disturbing the peace for conduct related to a dispute between her and Doe. On February 23, 2006, she pled guilty to misdemeanor infliction of corporal injury on Doe. On June 4, 2009, she pled guilty to an additional charge of misdemeanor infliction of corporal injury on Doe and felony infliction of corporal injury on Doe, involving two separate incidents.
The present case involves three additional events that took place on May 18 and July 9, 2015 and March 15, 2016. At trial, Doe testified that on May 18, 2015, he was lying in bed when Goldfreed entered his room, very upset. According to Doe, Goldfreed picked up a ruler and a steel flashlight and hit Doe several times on the leg with the heavy flashlight. Doe got up from the bed and called 911.
On July 9, 2015, Doe was in his bedroom when Goldfreed entered the room and asked him where her cell phone was. Doe responded that he did not know. Goldfreed became upset and began physically attacking Doe—hitting, scratching, and spitting on him. Doe testified that he tried to leave the room and put his hand out defensively to prevent Goldfreed from hurting him. Doe then left the house and went to a nearby grocery store, where he borrowed a phone and called the police. When the police arrived, they took photographs of Doe's injuries, which consisted of scratches on his upper torso and arms. The third alleged incident took place on March 15, 2016, when Doe locked Goldfreed out of the house after she kicked him in his open abdominal wound.
Goldfreed was eventually charged with two counts of corporal injury to a spouse (Pen. Code, § 273.5) for the May 18 and July 9, 2015 incidents, and one count of violating a protective order (Pen. Code, § 273.6) related to the March 15, 2016 incident. At trial, Goldfreed took the stand and denied that she had ever hit Doe. She explained that the scratches on Doe's body that the police photographed on July 9, 2015 were the result of a skin condition that made Doe's skin itch, and he scratched himself. She also testified that she and Doe had engaged in an argument on the morning of July 9, 2015, but that, as far as she knew, he went to the grocery store to shop for groceries.
The jury found Goldfreed not guilty of the offense charged in count one, which involved the July 9, 2015 incident, but guilty of the lesser included offense of spousal battery (Pen. Code, § 243, subd. (e)(1)). The jury also found Goldfreed guilty of the charged offense with respect to the May 18, 2015 incident, and not guilty of violating a protective order with respect to the March 15, 2016 incident. The court sentenced Goldfreed to 600 days in county jail. Goldfreed timely appealed.
DISCUSSION
I
Goldfreed first asserts that the trial court erred by refusing her request to introduce evidence of two other incidents in which she claims that Doe hit her. She contends that this evidence was admissible to impeach Doe's credibility, and that the exclusion of the evidence unconstitutionally hindered her defense.
A
Before trial, the prosecution moved in limine to allow evidence of Goldfreed's character for violence to rebut any evidence that the defense might present under Evidence Code section 1103 regarding Doe's character for violence. At the hearing on the motion, Goldfreed's counsel explained that there were two police reports involving other incidents of domestic violence, in which Goldfreed alleged that Doe had committed acts of domestic violence against her. Goldfreed's counsel indicated that she would likely introduce these reports. The trial court then ruled that the prosecution could present rebuttal character evidence concerning Goldfreed's character for violence if the defense introduced the police reports.
During his testimony, Doe denied ever intentionally hitting Goldfreed, although he stated that on one occasion when Goldfreed was holding onto his hand, he let go, and this could have caused his hand to accidently strike Goldfreed. When asked by Goldfreed's lawyer whether he recalled the police coming to the couple's home on November 17, 2015, the date of one of the police reports in which Goldfreed alleged domestic violence by Doe, he testified that the police did come to the home, but said that he did not recall that Goldfreed had reported that he had hit her. When asked whether, on February 22, 2016, the date of the other police report at issue, Goldfreed had called the police alleging that Doe had kicked her, Doe stated, "I didn't so I don't know."
Goldfreed took the stand and testified that she had never physically attacked Doe. When her attorney asked whether Doe had ever struck her, Goldfreed said that she could not recall. She responded, "I don't recall" when her attorney asked her, "were there any physical acts by [Doe] on you during those ten years" of their relationship, and "do you recall if you were ever hit by [Doe]?" Her attorney then asked Goldfreed whether she recalled if Doe had hit her in November 2015. The prosecutor objected on relevance grounds, and the trial court sustained the objection. Goldfreed's attorney next asked her whether she remembered if Doe had struck her in February 2016. The prosecutor's objection was sustained, but not before Goldfreed again answered, "I don't remember." The defense did not request to strike that answer.
After Goldfreed was excused from the witness stand, her counsel asked the trial court to allow her to recall Goldfreed so that she could again ask her about the November 2015 and February 2016 incidents. The court stated that although the defense had made an evidentiary proffer before trial indicating that Goldfreed had acted in self-defense, she had failed to testify to that effect. It would therefore not be proper to permit defense counsel to recall the witness because her testimony was not relevant.
The trial court invited the parties to brief the issue. Both parties submitted briefing, and the trial court heard argument the following day. Defense counsel asserted that the evidence of Doe engaging in domestic violence against Goldfreed was relevant and admissible under Evidence Code section 780, subdivision (f) to impeach Doe's denial that he had engaged in such conduct. Defense counsel also asserted that the law enforcement officers who had written the reports in November 2015 and February 2016 could testify to impeach Doe's denial that he had hit Goldfreed on those dates by testifying about what they observed at the home on those dates. Defense counsel conceded that the evidence would not be admissible under Evidence Code section 1103, as she had argued in limine, because Goldfreed had not testified on direct examination that she had acted in self defense on those occasions.
The trial court denied defense counsel's request to recall Goldfreed, or the responding police officers, to the stand, finding that the statements by Goldfreed that the defense was seeking to introduce, as set forth in the police reports, were irrelevant hearsay. The court also denied Goldfreed's request to call the police officers to testify that Goldfreed's face appeared "flush" when they contacted her, explaining that the statement was meaningless without Goldfreed's hearsay statement that Doe had hit her. After the court made its ruling, the defense rested its case.
B
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351; People v. Williams (2008) 43 Cal.4th 584, 633 (Williams).) Relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Evidence is relevant if it tends " ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (Williams, at p. 633.) The "existence or nonexistence of a bias, interest, or other motive" on the part of a witness ordinarily is relevant to the truthfulness of the witness's testimony. (Evid. Code, § 780, subd. (f); Williams, at p. 634.)
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." We have long recognized that "[t]he trial court has considerable discretion in determining the relevance of evidence." (Williams, supra, 43 Cal.4th at p. 634.) We review a trial court's ruling under Evidence Code section 352 for an abuse of discretion. (People v. Clark (2011) 52 Cal.4th 856, 893; Williams, at pp. 634-635.) A trial court's discretionary ruling "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." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Character evidence is generally admitted under Evidence Code section 1101, which provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Evidence Code section 1103, subdivision (a)(1) states: "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
C
Goldfreed contends that the trial court should have allowed her to impeach Doe's credibility using the statements that she made to police, as set forth in the police reports pertaining to the November 2015 and February 2016 incidents. The trial court did not abuse its discretion by concluding that there was no basis to admit this hearsay evidence. Indeed, on appeal, Goldfreed provides no basis for the admission of the hearsay, asserting only that if Goldfreed's counsel had been permitted to recall her to the witness stand, counsel could have impeached Goldfreed, her own client, with her prior statements to the police. This argument is not well taken. Goldfreed testified repeatedly on direct examination that she did not recall Doe striking her. Thus, allowing Goldfreed back onto the witness stand to testify that Doe had in fact struck her would have had essentially no probative value, serving only to show that Goldfreed's testimony was inconsistent.
Goldfreed also contends that she should have been permitted to use the police reports to refresh Doe's recollection of the November 2015 and February 2016 incidents. As the Attorney General argues, however, Goldfreed's request to recall Doe was based on unsupported speculation. Defense counsel repeatedly questioned Doe as to whether he had ever struck Goldfreed, and specifically asked him about the two incidents in question. Doe consistently testified that he had never struck his wife, which was consistent with what he told the police officers, according to the police reports in question. There is no reason to believe that Doe would have changed his testimony after reviewing the police reports.
Conceding that there was no evidentiary basis that would permit her to introduce her own hearsay statements contained in the police reports, Goldfreed again argues that she should have been permitted to call the police officer who drafted one of the reports to testify that when he responded to the call and encountered Goldfreed, her cheeks were flush. But without Goldfreed's testimony that Doe had struck her, the information was not relevant. Goldfreed's argument amounted to an attempt to elicit inadmissible hearsay from the reporting police officer. The trial court's denial of this request was thus not an abuse of its discretion.
II
Goldfreed next asserts that the prosecutor committed misconduct by arguing that Doe did not have a motive to lie about Goldfreed's conduct. She argues that the prosecutor unfairly capitalized on the court's evidentiary rulings by asserting in her closing argument that there was no reason for Doe to make false allegations against Goldfreed, stating, "You didn't hear any other witnesses or any other facts to believe that [Doe] is a[ dis]honest person or any information to give you reason to doubt him and his credibility." Goldfreed also challenges the prosecutor's emphasis in her rebuttal closing that aside from defense counsel's statement that Doe was the aggressor in the relationship, the jury was not presented with any evidence that Doe "is an aggressive, violent person towards [Goldfreed]." Goldfreed points to the prosecutor's statement that Doe's "character is being attacked with no evidence to support that. It should not even be considered." The defense did not object to the prosecutor's statements at trial.
A prosecutor commits misconduct by using deceptive or reprehensible methods to persuade either the court or the jury. (People v. Price (1991) 1 Cal.4th 324, 447.) Bad faith is not required to reverse a decision on the ground of prosecutorial misconduct; however, "in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal." (People v. Bolton (1979) 23 Cal.3d 208, 214.)
Goldfreed has not shown that the prosecutor's statements were deceptive or reprehensible. Given the trial court's proper evidentiary rulings, the prosecutor's closing statements accurately reflected the evidence before the jury. The prosecutor was correct that no evidence had been introduced at trial showing that Doe had abused appellant or calling into question the veracity of the statements that he made concerning Goldfreed's conduct. We therefore agree with the Attorney General that no reversible misconduct occurred. (See People v. Lawley (2002) 27 Cal.4th 102, 156 ["Because the prosecutor's argument constituted fair comment on the evidence, following evidentiary rulings we have upheld, there was no misconduct . . . ."].)
Because there was no misconduct, Goldfreed's related claim of ineffective assistance of counsel also fails. --------
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.