Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2008015666 of Ventura Edward F. Brodie, Judge
Wayne C. Tobin, 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, Mary Sanchez, Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Luis M. Gomez appeals the judgment entered after a jury convicted him of spousal rape (Pen. Code, § 262, subd. (a)(1)), attempted spousal rape (Pen. Code, §§ 664, 262, subd. (a)(1)), two counts of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)), and false imprisonment by violence (Pen. Code, § 236). The trial court sentenced him to a total term of five years, eight months in state prison. He contends the court erred in admitting the victim's out-of-court statements reporting the crimes under the prior consistent statement exception to the hearsay rule. (Evid. Code, § 791.) We affirm.
All statutory references are to the Evidence Code unless stated otherwise.
STATEMENT OF FACTS
Appellant and V. were married in September 2006. One day in May 2007, they argued about appellant not having worked during their entire marriage. V. wanted to leave because she was tired of fighting, but appellant would not let her. V. started crying and told appellant she would call the police if he did not allow her to leave. As V. walked into the bedroom and reached for the telephone, appellant followed her into the room, disconnected the telephone, and locked the door. Appellant struggled with V. and threw her on the bed. When she attempted to get up, he pulled her by the arms until she fell and bruised her leg. Appellant tried to get V.'s attention when she stood up, but she turned her back to him. Appellant pulled her by the arm and threw her to the floor. He got on top of her, unbuttoned his pants, and exposed his penis. Appellant tried "really hard to penetrate" V., who was wearing a skirt, and succeeded in doing so for about a minute. V. screamed and cried because she was "upset that he was doing it in this manner." She wanted to leave and call the police, but appellant prevented her from leaving "for hours." V. sustained bruises on her legs from when appellant forced her legs apart.
V. left with her children and moved to Oxnard. After appellant found out where she was living, he contacted her and she agreed to attempt a reconciliation. One day in March 2008, the two of them began arguing in V.'s bedroom. When V. attempted to leave the room, appellant blocked her exit. V. managed to run to her children's bedroom and locked the door. After knocking on the door for about 30 minutes, appellant forced his way in. He grabbed V.'s face as she lay on the bed and told her she had to listen to him. When V. turned over on her stomach, appellant grabbed her by the feet and threw her on the floor. He sat on top of her and said, "You're my wife, you have to be with me." V. said that she did not want to be with him and that he should leave. Appellant began unbuttoning her pants and told her, "Well, if you are not going to willingly do it, you have to do it anyway." She tried to push him off, called for help, and repeatedly told appellant "no." Appellant covered her mouth and began forcing her legs apart with his other hand. He was about to hit her, but changed his mind and let her go because she was "very pretty." When the incident was over, V. was so upset that she threw up. Appellant offered to take her to the hospital, but she told him, "all I want is for you to leave my house." V. believed that appellant had tried to rape her. As a result of the incident, they separated again for several months.
On April 16, 2008, V. was living by herself in Port Hueneme. At about 1:00 p.m., she was asleep in her bedroom when she was awakened by loud knocking at the front door. V. was expecting the "cable guy," but she opened the door to find appellant standing there holding a box of strawberries and some photographs. Appellant asked V. if he could come inside, but she refused and told him they had "nothing to talk about." Appellant repeated several times that he wanted to come in, and V. kept refusing. When she tried to shut the door, he forced his way inside and locked the door behind him. Appellant threw V. to the floor and climbed on top of her. When she screamed for the police and told him to leave her alone, he covered her mouth with his hand with enough force to cause her lip to bleed. V. managed to run to the window and scream for help, but appellant picked her up and carried her toward her bedroom. V. continued struggling with appellant, so he threw her to the floor again and grabbed her throat, causing her to vomit.
Appellant threw V. on her bed and locked the bedroom door. V. tried to use the telephone on her dresser to call the police, but appellant stopped her from doing so. V. continued struggling with appellant until her cell phone rang. Appellant grabbed the phone and threw it toward the window. V. convinced him that it was the police calling and that they would be bringing her children home from school if she did not pick them up on time. Appellant allowed her to go, but insisted on driving to the school with her. When they arrived, appellant stayed in the car because she told him he was not allowed inside and that she needed to call the police.
When V. walked into the office of her children's school, the office manager noticed that she was not wearing shoes and "seemed a little nervous." V. asked if she could use the telephone to call the police, and said her husband had forced his way into her house and prevented her from leaving. The office manager dialed 911 and handed the telephone to V., who spoke to the operator. The police responded shortly thereafter and spoke with appellant, who denied he had been involved in any physical altercation with V.
Port Hueneme Police Officer Robin Matlock went inside the school and spoke to V. She appeared frightened and had mascara running down her face from crying. She also had a swollen lip and redness around her jaw line and neck area, in addition to bruising or redness on her wrist. She told the officer that appellant "had held her against her will at the house, and when she started to scream for help, he had choked her, grabbed her by the mouth and choked her. She couldn't breathe, and she was able to get away and get out of the house, but he jumped in the car with her, and she drove directly to the school." When district attorney investigator Ralph Martinez interviewed V. at the police station about 30 minutes later, he asked her whether there had been any prior instances of domestic violence. V. replied that in May 2007 appellant forced himself on her, tore her clothes off, and raped her. She also recounted the incident in March 2008 when he "became upset and again threw her down on the bed wanting to have sex." She told the police that appellant let her go before they had sex after she vomited as a result of him choking her.
When appellant was interviewed at the police station by Officer Matlock, he said he had gone to V.'s house that day hoping to reconcile. V. tried to slam the door, so he used his foot to keep it open. He initially denied he had been violent with V., but subsequently admitted putting his hand over her mouth after she started screaming.
V. testified that she delayed reporting the May 2007 and March 2008 incidents to the police because she "didn't want [appellant] to have the problems that he's having now. The only thing [she] wanted is for things to get better, but it was impossible." She also testified that she had told her friend Violeta Zamora about the incidents. V. instituted divorce proceedings after the April 16 incident, and the divorce was finalized several months later.
Appellant testified in his own defense. He said the problems in their marriage began after he "let her go out dancing with her friends, and she took advantage of it." He denied ever forcing V. to have sex. When he first arrived at V.'s house on April 16, 2008, they sat outside and talked for about 15 minutes. V. started to get angry, and walked inside the house. When appellant followed her, she tried to slam to door. He only put his foot in the doorway to avoid being hit in the face. Once they were inside, V. screamed at him and told him she "had somebody else and she was waiting for [him] to get out so that he could come in." Appellant was "heartbroken" and hugged her. V. slid to the ground and he tried to help her up, but she started kicking him and "calling [him] names." When he asked her why she was doing this, she went to the window and started yelling for help.
Appellant suggested they talk in the bedroom. As they started walking toward the bedroom, V. "got a hold of the rail" and appellant pulled her until she let go. V. started banging on the walls, and he asked her why she was "making a big deal" when he just wanted to talk. He acknowledged that he may have put his hand over her mouth. After they spoke for about an hour in the bedroom, V. told him she needed to pick her daughter up from school so that the police would not bring her home. Appellant went with her because she was "hysterical" and did not have a driver's license.
Zamora testified that she was friends with V. and appellant, and that both had talked to her about their relationship problems. V. never told her that appellant had sexually assaulted her. If he had done so, V. "would have told [her], but she never said anything." In August or September 2008, Zamora, her daughter and V. were on their way to the airport, when Zamora's daughter asked V. if appellant had ever struck her. V. replied, "No." V. did not say appellant "had done anything else other than that."
DISCUSSION
Appellant contends the court erred in admitting her out-of-court statements reporting appellant's crimes to Officer Matlock and Investigator Martinez as prior consistent statements under section 791, subdivision (a). We disagree.
Background
During his cross-examination of V., defense counsel asked whether she recalled telling Zamora and Zamora's daughter that appellant "actually never hurt or abused you?" V. replied, "I said that he never hit me, that he would only leave marks on me, but that he'd never hit me, that he only tried, but that he never actually did it." When the prosecutor subsequently questioned Officer Matlock, he asked what V. had told him when he interviewed her following the incident on April 16, 2008. Appellant's defense counsel raised a hearsay objection. After an unreported sidebar conference, the court stated it would "allow the People to proceed with their line of questioning."
In response to the prosecutor's questions, Officer Matlock proceeded to recount V.'s statements regarding, not only the incident that had taken place that day, but also the prior incidents in May 2007 and March 2008 upon which the charges of spousal rape and attempted spousal rape were based. At the conclusion of the officer's testimony, the court stated the following outside the presence of the jury: "[Defense counsel] was objecting to questions asked by the prosecutor of the witness regarding prior consistent statements of the victim. We spoke at bench. The Court allowed the prosecutor to continue on a line of questioning. The People had indicated they were invoking 791 of the Evidence Code, and as it turns out - - well, first, I'll state for the record, I allowed the People to continue with their prior consistent statements. I spoke with [defense counsel] at bench. It was apparent from his answers, and he can correct me if I'm wrong, that he was going to put on prior inconsistent statements or he was going to allege under 791(b) that the statements were somehow false with a motive, interest or bias that [sic] make up false statements. [¶] The question was, should I allow the witness to testify under the prior consistent statements under section 791. I allowed that to occur because I was under the impression that [defense counsel] was going to put on evidence of prior inconsistent statements which then allowed the consistent - - consistent statements to come in under (a) or (b) of 791. [¶] As it turns out, the defendant's statements elicited from that witness were inconsistent. So it would have come to it at any rate, but I want [defense counsel] for the record to be able to understand that I allowed it under 791 under the Court's inherent power under 765 of the Evidence Code to control the mode of questioning. It appeared to the Court these witnesses were going to testify to that information either now or in the People's rebuttal case, so the Court exercised its discretion to allow them to do it now."
Defense counsel responded, "I think that substantially matches our discussion at bench, and I do intend to elicit evidence of prior inconsistent statements." The court added: "I just want to put it on the record why [defense counsel] quit objecting because the Court at bench told him he's going to allow it in under those conditions, that it was either coming in now or coming in later, and I think the Court has the discretion to allow it now under the hope that it is going to be relevant at a later time, and I think it's [sic] become relevant even with the defendant's statements to Officer Matlock. So the record is clear why I did what I did."
In accordance with the court ruling, the prosecutor subsequently elicited Investigator Martinez's testimony recounting V.'s statements to him regarding the spousal rape that occurred in May 2007 and the attempted spousal rape that took place in March 2008. During cross-examination, Investigator Martinez testified that Zamora told him she did not remember V. "ever telling her that she had been raped," and that Zamora would have remembered such a thing. Zamora later testified that V. never told her about any incidents of sexual assault, and stated her belief that V. would have told her if anything had happened.
Legal Principles
Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is hearsay and is generally inadmissible. (§ 1200.) Out-of-court statements by a testifying witness that are consistent with the witness's testimony are inadmissible hearsay, unless they are offered after a statement that is inconsistent with the witness's testimony has been admitted to impeach his or her credibility; or there is an express or implied charge that the witness's testimony "is recently fabricated or is influenced by bias or other improper motive," so long as the prior consistent statement was made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (§ 791, subds. (a) & (b); People v. Kennedy (2005) 36 Cal.4th 595, 614.) We review trial court rulings under section 791 for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Welch (1972) 8 Cal.3d 106, 117.)
Section 791 provides in its entirety: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Analysis
Appellant asserts the court erred in admitting V.'s out-of-court statements to Officer Matlock and Investigator Martinez as prior consistent statements under section 791, subdivision (a), because no statements that were inconsistent with V.'s trial testimony had been admitted to impeach her credibility. We conclude the court properly exercised its discretion to admit the evidence out of order, in light of defense counsel's representation that evidence of V.'s prior inconsistent statements would be elicited in the defense's case-in-chief.
Although section 791 provides that a prior consistent statement of a witness is inadmissible unless it is offered after evidence of a prior inconsistent statement has been admitted for the purpose of attacking the witness's credibility, the court had discretion to alter the order of proof in the interests of economy, efficiency, and the convenience of witnesses. (§§ 320, Pen. Code, § 1044.) As we have noted, the court allowed thestatements to come in before appellant had presented any evidence of prior statements that were inconsistent with V.'s trial testimony because "[i]t appeared to the court these witnesses were going to testify to that information either now or in the People's rebuttal case, so the court exercised its discretion to allow them to do it now." The court considered this approach proper based on defense counsel's representation that he intended to elicit evidence of V.'s prior inconsistent statements during the defense's case-in-chief. Although this condition never came to pass, the court was entitled to rely on counsel's representation that the evidence would be offered. Under the circumstances, appellant effectively invited the alleged error of which he now complains. "''It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal.' [Citation.]" (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640.)
In its ruling, the court also concluded that Officer Matlock's testimony recounting statements that appellant had made to him rendered V.'s statements admissible under section 791. The court did not specify which statements it was referring to, and neither party discusses this aspect of the court's ruling in their briefs. Our review of Officer Matlock's testimony recounting his interview of appellant does not reveal any statements appellant attributed to V. that were inconsistent with the testimony she gave at trial. In any event, appellant's statements recounting what V. had said to him would not have rendered V.'s statements to Officer Matlock admissible under section 791 because V. would have made those statements to appellant before she spoke to the officer. (§ 791, subd. (a).)
In defense counsel's cross-examination of V. and his direct examination of Zamora, he attempted to establish that V. had told Zamora or her daughter that appellant had never "abused" her. As we have noted, V. testified she had merely said that appellant had never actually "hit" her, which is not inconsistent with her trial testimony. Zamora testified that V. had never told her that she had been abused, and also disputed V.'s testimony that V. had told Zamora about the May 2007 incident after it happened. While Zamora's testimony was undoubtedly elicited as an attack on V.'s credibility, it does not contain any actual statements by V. that are inconsistent with her trial testimony.
In light of our conclusion, we need not address the People's contention that V.'s prior consistent statements were properly admitted under subdivision (b) of section 791.
In any event, any error in admitting V.'s prior consistent statements was harmless. The prior statements appellant challenges consist of V.'s reports to the police regarding the crimes appellant committed against her in May 2007 and March 2008. Obviously, the jury would have known that V. had reported those crimes regardless of whether her actual statements had been admitted. Moreover, evidence of those crimes would have been known to the jury because appellant was charged with committing them. Although appellant correctly notes that the evidence supporting his convictions on counts 2 and 4 consists solely of V.'s testimony, the testimony of a single witness is sufficient. (People v. Young (2005) 34 Cal.4th 1149, 1181.) There was nothing that rendered V.'s testimony physically impossible or inherently probable. (See People v. Scott (1978) 21 Cal.3d 284, 296.) Appellant also had a full opportunity to cross-examine V., and exploited the fact that she did not immediately report the prior crimes. Because it is not reasonably probable the jury would have acquitted appellant on counts 2 and 4 if V.'s statements reporting those crimes to the police had been excluded, any error in admitting the challenged evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Partida (2005) 37 Cal.4th 428, 439 [recognizing that "[a]bsent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test"].)
Appellant expressly declines to challenge the admission of V.'s prior statements to Officer Matlock and Investigator Martinez regarding the incident that took place on April 16, 2008. He takes the position that these statements were admissible under section 791, subdivision (a) to rebut Zamora's testimony recounting V.'s statement that appellant had never struck or hit her. Appellant fails to appreciate, however, that V.'s statements to Officer Matlock and Investigator Martinez were admitted before Zamora testified. Accordingly, they were not admissible as prior consistent statements under subdivision (a) of section 791. Moreover, V.'s statement to Zamora that appellant had never struck or hit her was not inconsistent with her testimony at trial. While her testimony and the hearsay statements attributed to her by Officer Matlock and Investigator Martinez include numerous references to physical violence, nowhere does V. state that appellant actually struck or hit her. Nevertheless, we accept appellant's concession of the claim as it relates to his convictions for the crimes that took place on April 16, 2008. As we shall explain, the claim would have in any event failed because the court's error in admitting V.'s prior statements was harmless.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.