Opinion
C082268
12-11-2017
THE PEOPLE, Plaintiff and Respondent, v. LORI MARIE HEWITT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF150733)
A jury found defendant Lori Marie Hewitt guilty of domestic violence with use of a weapon (count one) and simple assault (count two). (Pen. Code, §§ 240, 273.5, subd. (a), 12022, subd. (b)(1).) The trial court granted her probation, and she timely filed this appeal.
This appeal centers on the introduction of evidence of defendant's prior violent acts, introduced after she claimed self-defense. That evidence was used both to counter evidence that the victim was violent and that defendant was merely acting in self defense, and also to show defendant had made prior false allegations of domestic abuse. Defendant contends that this evidence was inadmissible, her trial counsel was ineffective regarding this evidence, and the trial court should have given the jury a limiting instruction regarding this evidence. We disagree with defendant's claims of error and shall affirm the judgment.
FACTS AND PROCEDURE
The trial evidence showed defendant hit her boyfriend on the head with a teapot and punched him in the face during an argument; she testified and claimed self-defense.
People's Case-in-chief
The case-in-chief rested on the testimony of the victim and a peace officer.
The victim testified he had dated defendant for five or six months beginning in August or September of 2014. Both were bodybuilders. The charged incident occurred on February 7, 2015, but he continued to see her after that because the couple was "trying to figure things out." After dating a couple of months, the victim and his dog had moved in with defendant and her seven-year-old autistic daughter.
The day before the charged incident they went "mudding" (four wheeling) in his truck after work. When they returned home--having picked up brandy and whiskey along the way--the victim spent an hour and a half washing his truck off. Defendant had begun drinking, and was talking on the telephone in the garage, so the victim went upstairs to watch television. When defendant came upstairs, she was upset and swore about the victim's dog; he understood that his dog had nipped defendant. He asked her what she wanted him to do and she swore again and went downstairs, returning to confront the victim twice, angry and cussing. Both had been drinking, and the bickering continued downstairs; she told him to leave, but by then he had had too much to drink to drive safely.
Defendant again told the victim to "get the fuck out" and then suddenly poured beer over him and threw food (nuts) at his face. She accused him of cheating and claimed a woman had knocked on the door asking for him, telling him to go look. When he saw nothing through the peephole, she told him to go outside and look, but the victim realized this was a trick to get him out of the house. He instead nudged her forward and shut (without locking) the door on her, telling her to find the woman herself. This infuriated defendant. After the victim opened the door and said he had not locked it, defendant smashed a large clay pot on the ground. He knew she was very drunk. He tried to calm her down when she returned inside, but she would not be mollified.
When the victim reached the kitchen, they continued to argue. Defendant then broke a porcelain teapot over the victim's head, leaving a scar on his forehead. At that point neither party was cornered. The victim then challenged defendant, saying if she were that mad she should hit him. She then punched him in the face six or seven times with closed fists. He pushed her away. She did not fall, but continued to curse, and called the police. He tried to take the telephone away, because he did not want her to call the police and get arrested, as she had "just broke a teapot over [his] face." During a struggle over the telephone, both fell to the floor, and she accused him of throwing her down. During defendant's 911 call she claimed that the victim was on steroids; the victim testified this was not true. She also claimed he had moved his things in the day before, when in fact he had been there for nearly two months. At one point in the call the victim can be heard saying, "Please come as soon as you can because I have a plate broken over my head."
When the police arrived, they took photographs of the victim that were shown to the jury. He was advised by emergency personnel to get stitches, but he declined.
The victim testified he was 5'10" tall and weighed 200 pounds, and he estimated that defendant was five feet four inches or five feet tall and weighed 130 to 135 pounds. Both were bodybuilders.
After the incident, the victim had not wanted defendant to be arrested or prosecuted, and he bailed her out of jail so she would not lose her job.
The victim testified that defendant's ex-partner (Allen, father of her daughter, and a defense witness as outlined post) treated defendant poorly and threatened the victim. At one point after warning Allen to be respectful, the victim punched Allen, "lectured him . . . and sent him on his way." He and defendant had lied to the police and a prosecutor's investigator about this incident.
The victim admitted he had been sent to prison in 2010 on a drug charge, and had used steroids (for bodybuilder shows) when he was younger.
A Woodland officer testified he interviewed the victim, who had been drinking but was calm and had visible injuries; in contrast, defendant was upset about going to jail, and cursed the victim. There was blood "scattered everywhere" in the kitchen, as well as shattered porcelain. Defendant limped and complained of pain in her knee or leg, but the officer did not see--and photographs did not depict--any visible injuries on her.
Defense Case
An officer testified about the incident in which Allen reported that the victim had hit him; the victim had then denied it. A friend and former coworker of defendant's testified that defendant was formerly married to the coworker's cousin, Coleman Bohl. In December 2014 the victim had described the incident with Allen to the coworker, and admitted striking Allen. But when an investigator spoke to the victim after the charged incident, the victim denied it.
Allen testified the victim was "very aggressive" and "pushy, controlling." Once when Allen was picking up his daughter, the victim sucker-punched him. Allen conceded that during his relationship with defendant, she had called the police, and he agreed that she had "wrongly" caused him to be arrested.
Defendant testified she met the victim in September 2014. She had been in counseling since the incident leading to the charged offenses, and claimed she had a "track record of picking men that abuse me." The victim moved himself into her life and her home, and became confrontational with Allen and intruded on their parenting of their daughter. The victim described himself to her as an "alpha male" with an "aggressive side." He used injectable steroids. Over time he became angry more easily, and demanded that she cut off contact with male friends on social media. A former girlfriend of the victim and another friend of the victim had warned defendant about his potential for control and violence.
Defendant testified she suffered a torn ACL in the kitchen during a struggle over the telephone, and claimed that she had hit the victim with a teapot because she was in pain and scared. When the victim pushed her out the front door of her house, she was worried about her daughter. She picked up a flower container to break the window, but it dropped from her hands.
Defendant testified the victim never asked her to hit him, and she never did hit him; she also denied pouring beer on him or throwing food at him. However, she was confronted with the 911 recording, which reflects that she described the victim telling her to hit him. She then backtracked and testified she may have been too intoxicated to remember. She at first denied telling a doctor that her knee injury was old, but when confronted with the hospital records--which evidently showed she had no visible injuries and had reported a prior knee problem--she explained she had never had a torn ACL before. She testified she later had to have surgery to correct the problem.
The victim bailed her out of jail and continued to live at her house for two or three weeks, although she said she thought he was dangerous.
Defendant testified that the police were called many times during her marriage to Bohl, sometimes by her, sometimes by Bohl, and sometimes by a third party; she claimed Bohl assaulted her more than once. She had Bohl arrested three times, and she was arrested once, resulting in a misdemeanor battery conviction, in an incident where she entered Bohl's apartment while he was with another woman. She claimed she had gone to Bohl's apartment to get her son's inhaler.
Rebuttal
Lyn Beck testified she had been seeing Bohl, and defendant approached her and told her to stay away from him. Later, defendant entered Bohl's apartment through a window and attacked Beck.
Bohl testified that during the Beck incident, defendant began screaming, jumped through a screen into his apartment, and began attacking Beck. She never mentioned her son's medication during that incident. Bohl had married defendant in 1999 and they remained married for three or four years. During the marriage each called the police on the other between three and five times. Bohl had been convicted of domestic violence and admitted violating a restraining order more than once, because defendant allowed him to be around her.
On Halloween 2003 defendant assaulted Bohl, and pursued him after he left, continuing to try to assault him, even though he is six foot two inches tall and weighs 240 pounds. In an incident at Kenny's Bar, Bohl went to find defendant when she did not timely return; he found her in the bar with another man. Words were exchanged, and she became violent in the parking lot; Bohl was then arrested for violating the restraining order. At some point they both worked at a casino, where Bohl assaulted a man "she was seeing while we were married, and I was totally guilty. . . . I got arrested for it and I paid my dues." At no time did Bohl ever assault defendant; at most he restrained her when she tried to assault him. Defendant once had Bohl wrongfully arrested for assault, but the charge was dismissed when he admitted violating the restraining order.
The victim was recalled and testified that although he had taken some kinds of over-the-counter steroids for bodybuilding, he had not taken injectable or illegal steroids. He admitted he used to use and sell methamphetamine and steal, but that was over six years ago; he had since gone to prison and got clean.
Surrebuttal
Nathan Allshouse, a longtime (platonic) friend of defendant's, testified the victim was controlling, and confronted them outside the courthouse and said something like "[y]ou better buckle up" and seemed to take pleasure in defendant's discomfort. Allshouse had been present at the Kenny's Bar incident. Bohl came in angry, threatened Allshouse, and demanded that defendant leave, then grabbed her purse and ran off.
Argument
The prosecutor argued the attack with the teapot was domestic abuse, because defendant did not act to defend herself, and the teapot was a weapon. That conduct also constituted assault with a deadly weapon. Defendant lied about incidents with Allen and Bohl, and thereby learned she can falsely tell the police that males have assaulted her and get them arrested.
Defense counsel argued defendant's self defense claim was credible, and the jury should reject the theory that she called the police to falsely accuse men.
Verdicts
The jury found defendant guilty of domestic violence with use of a dangerous or deadly weapon, but acquitted her of assault with a deadly weapon and instead chose the lesser offense of simple assault.
DISCUSSION
I
Prior Violent Acts Evidence
Defendant contends the trial court should not have permitted the introduction of her prior violent acts evidence, because it was an abuse of discretion (see Evid. Code, § 352 ), and it violated federal due process. We reject both points.
Further undesignated statutory references are to the Evidence Code.
A. Background
The People moved in limine to introduce three instances of alleged violence perpetrated by defendant against Bohl in 2003 and 2004, both as domestic violence evidence (§ 1109 ), and to show her intent (§ 1101, subd. (b)).
Section 1109, subdivision (a)(1) provides: "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." Subdivision (e) provides: "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."
At the hearing, the prosecutor represented that as to the earliest incident (the Halloween attack) there was no filing, the second incident (at Kenny's Bar) led to Bohl's arrest for violating a restraining order, and the third incident (at Beck's apartment) resulted in defendant's misdemeanor battery conviction. The defense argued these events were stale and unduly prejudicial because the circumstances were materially different than in the present case. The trial court denied the People's motion to introduce the three prior acts in their case in chief.
The People then argued that if defendant claimed self-defense and presented evidence that the victim was violent, section 1103 would allow the People to introduce rebuttal evidence of defendant's prior violence. The People also alleged the past conduct showed defendant had a habit of making false claims to the police, which should be admissible. After hearing from both sides, the trial court mused that this presented a "sauce for the goose, sauce for the gander" situation and ruled such evidence would not be substantially more prejudicial than probative.
Section 1103 provides in part as follows:
"(a) In a criminal action, evidence of the character or a trait of character . . . of the victim . . . 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.
"(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
"(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence . . . is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (Italics added.)
After a break in Bohl's testimony--and at defense counsel's request--the trial court clarified that it found the defense opened the door to Bohl's testimony.
At trial, Bohl testified as summarized above, including referencing the prior acts.
After the verdicts, the defense moved for a new trial, in part arguing the prior acts should have been excluded. The People opposed the motion, in part because the defense opened the door by presenting Allen's testimony about the victim's violent nature. The trial court denied the motion, in part because the evidence properly rebutted defense evidence of defendant's peaceable nature.
B. Analysis
On appeal, defendant concedes that by introducing Allen's testimony about the victim's supposed violent nature, defendant "opened the door for introduction of character evidence to establish her own character for violence under section 1103, subdivision (b)." However, she contends the trial court abused its discretion under section 352 because the Bohl evidence was stale, of minimal relevance, dissimilar to the charged offenses, and time-consuming, and would have been distracting and confusing to the jury, particularly because no limiting instruction was given. Separately, she contends admission of the evidence violated federal due process principles, because there was no permissible inference the jury could draw therefrom.
Defendant also contends that trial counsel was ineffective because no due process objection was interposed. We will address the merits of the due process claim, obviating the question whether trial counsel was ineffective for not preserving it.
1. Section 352
Under section 352, a trial court "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." (§ 352.) But the weighing of each factor and the balancing of the appropriate factors in any particular case is a matter confided in the first instance to the sound discretion of the trial court; its ruling will not be disturbed unless it applied erroneous factors or made a call no rational jurist should have made, not just one we might disagree with. As we summarized in a section 1108 propensity evidence case:
"Discretion is delimited by the applicable legal standards, a departure from which constitutes an 'abuse' of discretion. [Citation.] 'The discretion intended . . . is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice."' [Citations.]
" ' "The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors." ' [Citation.] Painting a person faithfully is not, of itself, unfair." (People v. Harris (1998) 60 Cal.App.4th 727, 736-737 (Harris).)
On appeal, defendant largely portrays each factor in the light most favorable to herself, in derogation of the correct standard of review.
Bohl's testimony about prior acts of violence by defendant was no more inflammatory than the victim's testimony about the charged incident, and therefore was not likely to evoke an emotional bias against defendant. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.) The testimony occupied a mere 39 pages of a trial transcript containing approximately 400 pages of testimony. But there was nothing inherently confusing about Bohl's testimony; he portrayed defendant as a violent person, something the jury would either accept or reject. This largely answers defendant's claim that the failure to give a limiting instruction contributed to jury confusion regarding how to properly consider the evidence, a claim we address more fully, post.
Defendant first argues the correct figure should be 78 pages, which she reaches by including her own testimony about Bohl; then, for the first time in the reply brief, she argues the correct figure should be 103 pages, including Beck's and Allshouse's testimony. But the important point is that the testimony about uncharged incidents did not dwarf the testimony about the charged incident.
Nor was the evidence particularly stale. The uncharged acts occurred in 2003 and 2004, and the charged incident was in 2015, just barely outside the presumptive (not mandatory) 10-year window provided by section 1109, subdivision (e) and defendant concedes that section 1103 has no similar presumptive window. The fact defendant had no intervening offenses was relevant, but not determinative.
The fact defendant was charged in only one of the three prior incidents does not signal the jury would want to punish her in this case for what she had done to Bohl in the past. The fact the jury acquitted defendant of assault with a deadly weapon and instead convicted her of simple assault shows that this was not a runaway jury, but one that carefully considered the instructions. That a prior incident of violence did not result in charges, or resulted in lenient charges, militates in favor of exclusion only when the uncharged incident is more serious than the current charge, so that it may be inferred the jury may be tempted to depart from the issue at hand. (Cf., e.g., Harris, supra, 60 Cal.App.4th at pp. 738-739.)
The fact the prior incidents were not similar in detail to the charged incident goes to their weight, generally speaking. The point was they showed defendant was not a peaceable person, not that she employed a particular method of violence. The evidence was highly probative to counter defendant's portrayal of the victim as a steroid-infused raging male who attacked a smaller female, requiring her to resort to self defense.
Although defendant concedes the evidence was legally admissible, much of her claim about section 352 is in effect a quarrel with the natural consequences flowing from the application of section 1103, subdivision (b). As another appellate court has said:
"While we agree with appellant that evidence he engaged in an unrelated domestic dispute or other altercations would not normally be admissible . . ., a very credible argument could be made against appellant's being allowed to show by his evidence that the victim was a violent man-implying or explicitly stating appellant was a peaceable person who acted only in response to the victim's violence-without facing evidence contesting this defense theory. . . . The defense choice of strategy often makes admissible in rebuttal certain evidence which would not be admissible in the prosecution's case-in-chief. There is no due process violation in allowing the defense to govern the admission of such evidence in rebuttal." (People v. Blanco (1992) 10 Cal.App.4th 1167, 1175-1176 (Blanco).)
With knowledge of the trial court's in limine ruling, defense counsel chose--no doubt for tactical reasons--to present evidence that the victim was violent. Defendant now claims she should have been shielded from evidence that she was violent. That is not what the law requires. (See, e.g., People v. Walton (1996) 42 Cal.App.4th 1004, 1013-1015, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Clark (1982) 130 Cal. App. 3d 371, 383-384.)
Accordingly, the trial court's ruling that the probative value of the evidence was not "substantially outweighed" (§ 352, italics added) by factors that arguably militated against its admission does not reflect an abuse of discretion. "Evidence is substantially more prejudicial than probative (see [§ 352]) if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.) That risk is not presented by this case.
Finally, in a trial that was essentially a credibility contest, the evidence of the charged offenses was strong. The victim was found covered in blood with a head wound that needed stitching, while defendant had no visible injuries, although she later claimed a knee injury. The prejudice flowing from a misapplication of section 352 is evaluated under the state law standard of prejudice. (See People v. Marks (2003) 31 Cal.4th 197, 226-227.) It is not reasonably probable that, absent the prior acts evidence, defendant would have obtained a better result.
2. Due Process
Relying on McKinney v. Rees (9th Cir.1993) 993 F.2d 1378, defendant argues the introduction of the prior acts evidence deprived her of due process. McKinney held that extensive evidence of a defendant's knife collection--in a case where that defendant was accused of killing someone with a knife--amounted to inadmissible character evidence, rendering his trial unfair. (Id. at pp. 1381-1382.) Even assuming we agreed with McKinney (but see People v. Holford (2012) 203 Cal.App.4th 155, 183 , fn. 19 [questioning McKinney]), it is distinguishable.
"Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see People v. Kelly (2007) 42 Cal.4th 763, 787 [distinguishing McKinney]; People v. Steele (2002) 27 Cal.4th 1230, 1246 [same]; cf. People v. Partida (2005) 37 Cal.4th 428, 439 [erroneously admitted evidence "results in a due process violation only if it makes the trial fundamentally unfair"].)
There was a permissible inference to be drawn from the evidence, namely, that defendant did not possess the peaceable nature she portrayed. Accordingly, it was not unfair to admit it. (See People v. Fuaiva (2012) 53 Cal.4th 622, 694-698; Blanco, supra, 10 Cal.App.4th at pp. 1175-1176.) As stated by our Supreme Court, "We cannot say that, in providing for the jury to obtain a balanced view of the possible violent tendencies of both the victim and the defendant, the Legislature ran afoul of any fundamental conception of justice embodied in the federal Constitution." (Fuaiva, at p. 698.) The evidence was properly admitted under section 1103 and generally, "when evidence is properly admitted under the Evidence Code, there is no violation of due process." (People v. Johnson (2015) 61 Cal.4th 734, 763 [dying declaration case].)
II
Effectiveness of Counsel
Defendant contends she was provided ineffective assistance of counsel (IAC) in that trial counsel was ineffective in failing to object to the prior acts evidence on all available grounds, and in failing to request a limiting instruction.
A successful IAC claim has two elements. The defendant must show: (1) that trial counsel's actions fell below professional norms; and (2) that it is reasonably probable a more favorable result would have been obtained had trial counsel acted within professional norms. (See People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Defendant first faults trial counsel for not objecting to the use of the evidence to the extent it tended to show (if believed) that defendant made false domestic abuse claims to the police. In a later section of her brief she contends trial counsel should have objected to the use of the evidence to show she had a custom or trait of making false police reports. The record does not support the IAC claim.
"Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence." (People v. Freeman (1994) 8 Cal.4th 450, 490-491 (Freeman).) As defendant acknowledges, where the appellate record does not explain the reasons for trial counsel's actions, a defendant is relegated to pursuing the IAC claim via habeas corpus, where the facts can be determined. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The appellate record in this case does not illuminate trial counsel's thinking on the challenged points.
Contrary to defendant's view, there could have been a rational tactical reason for trial counsel's inaction. Counsel rationally could have determined that the evidence--which had already been admitted pursuant to section 1103--would not lead the jury to believe defendant had a habit or trait for making false accusations, and that nothing would have been gained by trying to circumscribe its permissible purposes. Instead, as the People point out, trial counsel addressed the issue in closing argument, arguing there was no pattern of false claims by defendant, only a regrettable pattern of choosing inappropriate male companions.
Defendant separately attacks trial counsel for not requesting a limiting instruction. Again, because the record does not explain counsel's reasons for not requesting an instruction, defendant can prevail only if there could not have been any rational tactical reason for failing to request a limiting instruction. Here, trial counsel could have reasoned that the jury would understand the limited point of the evidence and concluded that a limiting instruction would unduly emphasize that perfectly valid point.
As another appellate court has observed, "whether to seek a limiting instruction is a tactical decision properly left to defense counsel, since defense counsel might conclude that the risk of a limiting instruction (unnecessarily highlighting a defendant's status as a felon) outweighs the questionable benefits such an instruction would provide." (People v. Griggs (2003) 110 Cal.App.4th 1137, 1141 (Griggs); see Freeman, supra, 8 Cal.4th at p. 495 ["Counsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted"].)
We agree, and conclude that a valid tactical reason existed in this case for defense counsel's inaction. Therefore, defendant's IAC claim fails.
III
Limiting Instruction
Defendant contends that the trial court had a duty to give a limiting instruction in the absence of a request. She acknowledges the general rule is contrary, but contends this is an "extraordinary case." We disagree.
Our Supreme Court has held that, "in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct." (People v. Collie (1981) 30 Cal.3d 43, 64 (Collie); see People v. Valdez (2012) 55 Cal.4th 82, 139 (Valdez).) Defendant relies on the following passage of Collie:
"There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence. But we hold that in this case, and in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct." (Collie, supra, 30 Cal.3d at p. 64.)
This was not an extraordinary case. The evidence was not "both highly prejudicial and minimally relevant to any legitimate purpose." (Collie, supra, 30 Cal.3d at p. 64). In fact, as we explained ante, it was relevant to rebut the defense claim that the victim was violent, used to bolster the claim of self defense. (See Evid. Code, § 1103, subd. (b).) Second, it was not the "dominant part of the evidence" (Collie at p. 64); that consisted of the victim's direct testimony that defendant attacked him in an unprovoked way, evidence that defendant contested via her direct testimony. Thus, neither prong of the hypothetical exception described by Collie is present in this case. (See Valdez, supra, 55 Cal.4th at p. 139 ["Defendant's reliance on Collie fails because the evidence of the witnesses' fear was more than minimally relevant to a legitimate purpose—supporting the witnesses' credibility—and was not 'a dominant part of the evidence against' defendant"]; Griggs, supra, 110 Cal.App.4th at pp. 1139-1140.)
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hull, J.