Opinion
G056653
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JOSEPH HAMM, Defendant and Appellant.
Linnea M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODYFING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that our opinion filed on November 27, 2019 be modified as follows:
1. The paragraph commencing at the bottom of page 13 with "Defendant's claim of" and ending at the top of page 14 with "10 Cal.4th 764, 793" is modified to read as follows:
Defendant's claim of a due process violation fares no better. In his briefing on appeal, he simply repeats his belief that the prejudicial effect of the propensity evidence outweighed its probative value. Assertions not supported by legal authority and reasoned argument are deemed forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) And even if we were to consider the claim, it lacks merit because we have concluded the admission of evidence was not error (see People v. Garcia (2008) 168 Cal.App.4th 261, 278 [rejecting due process contention based on finding that court's ruling under section 352 was not abuse of discretion]), and the evidence was not "so prejudicial as to render [his] trial fundamentally unfair" (see People v. Falsetta (1999) 21 Cal.4th 903, 913).
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. DUNNING, J.
Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15HF0786) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Linnea M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury convicted defendant Matthew Joseph Hamm of forcible rape, domestic battery with corporal injury, sodomy by force, assault with a semiautomatic firearm, and assault with intent to commit a sexual offense, the trial court sentenced him to a total of 12 years in prison. He appeals from the subsequent judgment, contending the court made multiple evidentiary errors. Specifically, he argues the court wrongfully precluded his expert from offering relevant opinions about matters for which expert testimony is appropriate, as well as providing testimony to generally educate the jury concerning a relevant subject matter. He also claims the court erroneously allowed the prosecution to present propensity evidence regarding an uncharged incident involving defendant and one of the victims. We find no merit in any of these contentions, and because there is no error to cumulate, we also reject defendant's cumulative error claim. Accordingly, we affirm the judgment.
FACTS
At different times in the past, defendant, who was born deaf and primarily communicates using American Sign Language (ASL), was involved in romantic relationships with two deaf women, Jane Doe 1 (JD1) and Jane Doe 2 (JD2). After both relationships ended, an information charged defendant with multiple crimes arising from alleged incidents involving the women. The charges included the following: two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) (counts 1 & 3); two counts of domestic battery with corporal injury (§ 273.5, subd. (a)) (counts 2 & 5); sodomy by force (§ 286, subd. (c)(2)(A) (count 4); assault with a semiautomatic firearm (§ 245, subd. (b)) (count 6); assault with intent to commit a sexual offense (§ 220, subd. (a)(1)) (count 7); and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) (count 8)).
All further statutory references are to the Penal Code unless otherwise indicated.
Leading up to trial, the defense retained an expert, Dr. Carren Jean Stika, a licensed clinical psychologist who is hard of hearing and fluent in ASL. She interviewed defendant, his mother and his then-current girlfriend to gather information on "his family, educational, social, vocational, sexual, legal, and psychiatric history." In addition, she assessed defendant's auditory disability and communications skills through psychological tests, reviewed transcripts of interviews conducted by defense investigators and police reports, read text messages defendant exchanged with JD1 and JD2, and watched videos of JD1 that JD1 allegedly sent defendant after the relevant incidents. The result of this work was a written report which summarized Stika's proposed testimony, including various opinions.
The prosecution filed an in limine motion seeking to limit Stika's testimony. Among the matters it sought to exclude were the use of defendant's statements to explain the basis for any opinions, opinions concerning defendant's specific intent at the time of the charged crimes, and opinions predicting defendant's future dangerousness or rate of recidivism. Defense counsel agreed not to attempt to elicit an opinion about defendant's specific intent, future dangerousness or potential for recidivism; the trial court reserved ruling on the remainder of the matters until it came time for Stika to testify.
With the aid of an interpreter, both JD1 and JD2 testified at trial concerning their respective relationships with defendant and the alleged incidents. JD1, who knows little ASL and primarily communicates in Russian Sign Language, explained her long distance relationship with defendant began as a friendship, turned into a consensual sexual relationship, and ended with threats, abuse and forced sexual acts. JD2 conveyed a similar evolution of her relationship with defendant.
Also testifying during the prosecution's case-in-chief was a police sergeant who interviewed JD1 and JD2 and conducted the subsequent investigation, as well as an expert versed in intimate partner violence and rape trauma syndrome.
Sergeant Sarah Tunnicliffe relayed that with JD1's and JD2's permission, she set up separate electronic conversations with defendant through which she assisted the women in trying to get defendant to discuss details of their encounters. In the communications with JD1, defendant admitted he forced JD1 to have nonconsensual sex with him and apologized for physically hurting her. In those with JD2, he apologized for choking JD2, pulling her hair and demanding oral sex from her against her will.
Dr. Jody Ward, a clinical and forensic psychologist, testified as an expert concerning the cycle of violence in a domestic violence relationship and the psychological impacts of rape on a victim. Her testimony was generalized because she did not interview defendant or the victims, and she was not aware of the details of the case.
After the prosecution rested, the defense confirmed its intent to call Stika as a witness to offer expert opinions. The prosecution renewed its objection to much of the proposed testimony, including opinions about the victims and their relationships with defendant. Defense counsel agreed certain matters were "off-limits" and indicated Stika would not offer opinions in those areas. At the same time, it requested an Evidence Code section 402 hearing (402 hearing) to qualify Stika for additional testimony after the trial court made some preliminary rulings concerning the scope of permissible opinion testimony. Before the 402 hearing, however, the defense withdrew its request.
Ultimately, the trial court excluded a portion of Stika's proposed opinion testimony. It precluded her from testifying to her opinions concerning the following: (1) JD1 and JD2, both of whom she never interviewed; (2) defendant's relationships with JD1 and JD2; (3) whether defendant is a rapist or someone who would commit domestic violence; (4) whether defendant has the tendencies or traits of a sexual offender; and (5) whether the prosecution's evidence properly characterized the victims and the events at issue. It confirmed, however, she could testify regarding defendant's personality, psychological functioning, personal history, ability to communicate using ASL, and reading comprehension, as well as the results of the cognitive and intelligence tests she administered to him.
The defense then pivoted strategies the morning before Stika was scheduled to testify, informing the court she would instead testify "as a teaching expert" to educate the jury about deaf culture and how the deaf communicate. In response to the court's concern the change was simply a way to introduce evidence the court already excluded, defense counsel further explained his intentions. He advised Stika would testify concerning, inter alia, "the difference between sign language and English"; deaf culture being more accepting of touching for communication purposes; the psychology and language skill development of those who are deaf; and the difference in how deaf people understand the world and react in various situations compared to hearing individuals.
After a 402 hearing, the trial court held the newly proffered expert testimony inadmissible. From a procedural standpoint, it found the defense failed to give the prosecution the requisite notice. And from a substantive standpoint, it concluded there was a lack of foundation for the testimony and Stika lacked qualification to testify to much of it. The court explained its overarching concern continued to be that the new testimony was "essentially a backdoor way of getting in [Stika's] opinion about the alleged victims in this case" and her opinion that "these events should not be characterized as rape, sodomy, or attempted forced oral copulation."
Consistent with the court's earlier determination, Stika testified to her opinions about defendant and the results of tests she administered to him. She also explained the importance of understanding hearing loss and its impact on a person's development prior to any psychological evaluation of a deaf person.
The jury found defendant guilty of all counts charged except two on which it was unable to reach a verdict—one count of forcible rape and one count of domestic battery with corporal injury. The court sentenced defendant to a total of 12 years in prison.
Prior to trial and pursuant to a defense motion, the court dismissed the count alleging assault with force likely to produce great bodily injury.
DISCUSSION
Defendant challenges the trial court's exclusion of portions of Stika's opinion testimony and, what the defense termed, general education testimony. He asserts Stika was qualified to provide the testimony and everything offered was relevant, had adequate foundation and was a proper subject for expert testimony. He separately challenges the admission of testimony regarding an uncharged incident which occurred between him and JD1. The Attorney General argues to the contrary, contending the court justifiably excluded the various portions of Stika's testimony and properly allowed testimony concerning the uncharged incident. Reviewing the record for an abuse of discretion as we must (Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 773 (Sargon)), we find no error in the court's determinations and actions. A. Expert opinion evidence
"As a general rule, the opinion of an expert is admissible when it is '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .' [Citation.] . . . 'Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' [Citation.] However, the admissibility of opinion evidence that embraces an ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes. [Citation.] There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 (Summers).)
Even if an expert's opinion steers clear of questions of law, it is not admissible if it invades the province of the jury to decide a case by, for example, expressing a general belief as to how the case should be decided. (Summers, supra, 69 Cal.App.4th. at p. 1182; People v. Humphrey (1996) 13 Cal.4th 1073, 1099 [an "expert must not usurp the function of the jury"].) These types of opinions "are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful)." (Summers, at p. 1183.) "'Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.'" (People v. Torres (1995) 33 Cal.App.4th 37, 47.) 1. Victims' characters and the relationship between defendant and each victim
One of the areas in which Stika intended to testify concerned the victims and their respective relationships with defendant. Specifically, she was prepared to opine: (1) JD1 and JD2 are "even more immature, problematic, and poorly developed than . . . defendant"; (2) the women and defendant "were actively engaged in highly immature, highly sexualized, and highly dysfunctional scenarios that preceded and continued after the events [in question]"; and (3) defendant was the real victim in the matter.
Beginning with the latter, defense counsel conceded below that opinions about fault and identity of the victim were not proper and should be excluded. Failure to object to the exclusion forfeits the issue on appeal. (People v. Dykes (2009) 46 Cal.4th 731, 756.)
As for the other two opinions, they do not "[r]elate[] to a subject that is sufficiently beyond common experience that [they] would assist the trier of fact[.]" (Evid. Code, § 801, subd. (a).) Under the circumstances, maturity and the dynamics of a relationship are matters which a jury is capable of evaluating on its own. Given that both JD1 and JD2 testified at trial, and that the jury received a variety of other evidence concerning the incidents at issue, the jury had ample evidence from which it could draw inferences and conclusions without an expert opinion.
Further, the court appropriately expressed concern about the lack of foundation for the opinions. Stika never spoke to or otherwise communicated with JD1 or JD2, yet she proposed to opine on their character and other traits, as well as their relationships with defendant. "'[A]n expert opinion based on speculation or conjecture is inadmissible.'" (Sargon, supra, 55 Cal.4th at p. 770.) And though Stika reviewed text messages exchanged between defendant and the victims, the court did not abuse its discretion in concluding such limited information was insufficient to render the opinions admissible. (See Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 817 ["The court's gatekeeper function allows it to conclude there is simply too great an analytical gap between an expert's data and the opinion proffered"]; Sargon, at p. 773 [A ruling will be deemed an abuse of discretion only if it is so irrational or arbitrary that no reasonable person could agree with it].) 2. Credibility of another witness
Having reviewed Tunnicliffe's pretext communications with defendant, Stika was of the opinion the officer "manipulated [defendant's] choice of words and comments, and ultimately his willingness to state exactly what [the officer] was requesting in order to 'win' back his relationship with [the victims]." She further believed the officer's investigations, interpretations and conclusions "d[id] not reflect an understanding of the unique psychosocial . . . issues that influenced the behavior of [defendant] and the . . . victims[,]" and that the "events and three individuals involved [had] not been characterized accurately."
Defendant describes these opinions as attacks on Tunnicliffe's credibility, arguing they would have impeached the officer's testimony. The argument fails for multiple reasons. Regarding the portion of the opinions relating to the victims, we already explained the trial court did not abuse its discretion in finding a lack of foundation for such opinions. As for the remainder, "[t]he general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) Whether Tunnicliffe accurately portrayed the events, whether she manipulated defendant in any way, and what weight to accord her testimony were matters within the scope of the jury's capabilities and its charge. 3. Ultimate issues of fact
Defendant contends experts are allowed to opine on ultimate issues of fact and, thus, the trial court should have allowed Stika to testify that defendant "became caught up in a tangle of highly dysfunctional interactions with individuals whose social and emotional development appears to be even more immature, problematic, and poorly developed than his own." Using similar reasoning, he argues the court also should have permitted Stika to express her opinion that defendant is "the individual who stands to become the most significant 'victim' from the outcome of the alleged charges[.]" We need only address the latter because, as detailed above, the former opinion lacks foundation and is not a proper matter for expert opinion.
Although defendant disagrees, opining that he is the true victim in this case expresses the belief that he is innocent of the crimes charged. It is well established such an opinion by an expert witness is inadmissible. (People v. Torres, supra, 33 Cal.App.4th at p. 46.) This "is not because guilt is the 'ultimate issue of fact' to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Id. at p. 47.) Accordingly, the trial court did not err in excluding Stika's opinion concerning defendant's guilt. B. Expert "general education" evidence
After a 402 hearing, the trial court excluded testimony from Stika concerning the deaf community, culture and psychosocial development, as well as methods by which deaf individuals communicate—collectively referred to by defendant as "general education" testimony. The court's primary reason for the exclusion was the defense's failure to timely disclose the anticipated testimony to the prosecution pursuant to section 1054.3, subdivision (a)(1). It also indicated a lack of foundation for the testimony and concern the testimony was simply "a backdoor way" of getting in information the court previously held inadmissible—opinions about the victims and whether other witnesses properly characterized the events.
Defendant claims the court acted outside its authority because it did not exhaust all alternative sanctions before imposing the harshest sanction of outright exclusion. The Attorney General disagrees, arguing the court properly exercised its discretion because it simply limited the scope of Stika's testimony as opposed to precluding her from testifying entirely. We find no error.
Defendant does not challenge the court's determination he failed to provide requisite notice of the belatedly offered general education testimony.
Section 1054.3 requires the defense to provide the prosecution with certain pretrial discovery. The required disclosures, which include the names of witnesses the defense intends to call and any written or recorded statements by those witnesses, must occur at least 30 days prior to trial unless there is good cause for a delay or nondisclosure. (§ 1054.7.) Failure to comply with these obligations permits a trial court to make any order necessary to enforce them, "including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).)
Section 1054.3, subdivision (a) provides: "The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [¶] (2) Any real evidence which the defendant intends to offer in evidence at the trial."
"Though a trial court has discretion in these matters, that discretion is not unfettered. 'The court may prohibit the testimony of a witness pursuant to [section 1054.7,] subdivision (b) only if all other sanctions have been exhausted.' [Citation.]" (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459.)
Here, the trial court considered its options. As it explained, the newly proposed testimony was an ambush on the prosecution and allowing it would essentially preclude the prosecution from presenting any evidence to counter Stika's "very unique, very esoteric type of testimony about the Deaf community in general." And although a continuance to give the surprised party the opportunity to prepare will often remedy any prejudice from a violation of the discovery statutes (see People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757), the court did not abuse its discretion or deprive defendant of his constitutional right to present a complete defense in concluding the circumstances before it were different. The jury had been sworn, jeopardy was attached, the prosecution had rested its case, Stika was scheduled to testify the next day, and the new testimony was radically different than that of which the prosecution was notified. "A party who creates prejudice to the other side by surprise . . . should not have the advantage of the disadvantage to which he or she has placed an opponent." (Ibid.)
Even assuming the defense gave proper notice, there was at least one other problem with the proposed testimony. Although the defense referred to Stika's offerings as general education for the jury, information provided at the 402 hearing revealed it was not so generalized. For example, the particular characteristics of deaf individuals which she planned to detail were precisely those she ascribed to the victims in her previously proposed opinion testimony. But the court held those opinions inadmissible because Stika never met with or interviewed the victims. The court was understandably not willing to allow an end run around its prior rulings through an alleged shift in focus of Stika's testimony.
Defendant argues the offered testimony would have rebutted that provided by the prosecution's expert, Ward. But the two experts' subject matter expertise and areas of testimony were completely different. Ward testified concerning intimate partner violence and rape trauma syndrome, including the cycle of violence in a domestic violence relationship and the psychological impacts of rape on a victim. In contrast, Stika's proposed testimony concerned the culture, language development and psychosocial development of deaf individuals. The latter cannot rebut the former. C. Evidence regarding prior Huntington Beach incident
Defendant's remaining challenge concerns the trial court's grant of the prosecution's motion in limine to allow testimony concerning an uncharged incident involving defendant and JD1. During the incident, defendant allegedly followed JD1 while she was out with friends, pulled what "could have been a gun" out of the trunk of his car, and said to one of the friends, "I want [JD1] back." In finding the propensity evidence admissible under Evidence Code section 1109, the trial court rejected defendant's argument the evidence should be excluded pursuant to Evidence Code section 352 (section 352). Defendant contends that ruling was a prejudicial abuse of discretion. Additionally, he claims admission of the evidence violated his due process right to a fair trial. We disagree.
"'Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109).' [Citation.] . . . Section 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]' [Citations.]" (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.) It matters not whether the other acts were charged or uncharged (id. at p. 1233), or whether they occurred before or after the presently charged offense (see People v. Medina (2003) 114 Cal.App.4th 897, 903).
"Even if the evidence is admissible under section 1109, the trial court must still determine, pursuant to section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury." (People v. Brown, supra, 192 Cal.App.4th at p. 1233.) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) On review, "[w]e will not overturn or disturb a trial court's exercise of its discretion under 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, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The trial court understood its analytical obligation under section 352, considered the parties' arguments and explained its reasoning. It found the uncharged incident relevant and highly probative because it corroborated JD1's testimony she feared defendant and there were allegations defendant used a gun during the charged incident involving JD1. The court also rejected defendant's sole contention concerning prejudice, that defendant would "be tried for being a bad person rather than on the crime alleged[,]" finding the propensity evidence would not inflame the jury or steer it away from a logical evaluation of the evidence. It also concluded there would be no undue consumption of time, confusion or misleading of the jury. On the record before us, the court's decision was not arbitrary, capricious or patently absurd.
Defendant's claim of a due process violation fares no better. He simply repeats his belief that the prejudicial effect of the propensity evidence outweighed its probative value. Assertions not supported by legal authority and reasoned argument are deemed forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) D. Cumulative error
"A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Because we reject all of defendant's individual error claims, or find them forfeited, his assertion of cumulative error necessarily fails.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. DUNNING, J.
Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------