Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 197799
Margulies, J.
Defendant was convicted of mayhem (Pen. Code, § 203), corporal injury on a cohabitant (§ 273.5, subd. (a)), and assault (§ 240). The court suspended imposition of sentence and placed defendant on five years’ probation on the condition she serve one year in the county jail, six months of which were to be served on home detention.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the court erred by sustaining a hearsay objection when defense counsel asked the defense expert on intimate partner battering to relate the incidents between defendant and the victim that she relied upon in forming her opinion. Assuming arguendo the ruling was erroneous, we hold the error did not deprive defendant of a meaningful opportunity to present her defense, and that any error was harmless.
I. FACTS
Defendant and the victim, Mehdi Farid, began dating in the fall of 2005 and moved in together. Farid soon realized defendant experienced mood swings and could become angry and violent, especially after drinking. Eventually he asked her to move out, but relented when she threatened to tell the police he had raped and beaten her. In December 2005, Farid moved to San Francisco. Defendant continued to visit and also stored some of her luggage and belongings with him.
On January 11, 2006, defendant called Farid from a nearby bar and told him she wanted to come pick up her luggage. At approximately 10:00 p.m., defendant arrived at Farid’s apartment with a friend. When Farid opened the door, defendant told the friend, “I can take care of him myself,” and the friend left.
As Farid retrieved defendant’s suitcase, he grabbed his phone because he was worried that defendant might become violent. Defendant knocked the phone from his hand. When Farid bent to pick up the phone, defendant jumped on his back and began biting and chewing his ear. Farid called 911 twice while defendant bit and chewed on his ear. Eventually the ear detached. While waiting for the police to arrive, Farid left his apartment and headed to the elevator, but defendant followed and continued to hit and bite Farid.
When the police arrived they found Farid’s ear and gave it to him as he left the scene in an ambulance. The doctors were able to re-attach his ear; however, ultimately parts rotted and fell off leaving only 35 percent of the ear successfully preserved.
Defendant was arrested and gave a statement to Inspector Albert Lum. She acknowledged that she can become angry quickly, yet asserted Farid initiated the fight by pushing her. Although she initially told Inspector Lum she could not remember how Farid lost his ear, she eventually admitted that she bit Farid on the head, back, and ear.
At trial, defendant admitted biting Farid, but testified that she did so because she was afraid he was going to “ruin [her] life,” would not let her leave, or would “push [her to] have sex again.” She testified that a few days before her arrest Farid had anally raped her in his San Francisco apartment. She testified that he initially treated her well, but then became unhappy and started to scold and verbally abuse her. He was also jealous. He always wanted to know where she was, accused her of having a boyfriend, and said she dressed like a stripper. When defendant did go out, she would have her girlfriends talk to him to convince him she did not have another boyfriend. Farid called her names, and once slapped a salad out of her hand when she served him the wrong type of salad dressing. He became angry when driving, and slapped her in the face once when she refused to ask another driver to allow him to make a turn. He also punched her in the face during an argument triggered by her overpayment of some housecleaners. According to defendant, Farid did not want her to work, and once called her at work and pretended he was an immigration officer. He asked if she had a work permit. This made her nervous because she only had a student visa.
Dr. Linda Barnard, a licensed marriage and family therapist, testified on defendant’s behalf as an expert on intimate partner battering. She opined that defendant was a victim of intimate partner battering. She specifically testified that the defendant’s act of biting Farid’s ear “was consistent with the theory of intimate partner battering” because it occurred in the context of a history of domestic violence, causing the “battered woman” to believe the violence has “escalated to a different level.”
The Evidence Code formerly designated “intimate partner battering” as “battered women’s syndrome.” (See Evid. Code, § 1107, subd. (f).) Domestic violence experts criticized use of the phrase “battered women’s syndrome” because it implies battered women develop and suffer from a mental illness (People v. Humphrey (1996) 13 Cal.4th 1073, 1083–1084, fn. 3) and because the victim is not always female (People v. Brown (2004) 33 Cal.4th 892, 899 & fn. 5).
II. ANALYSIS
Defendant contends that the court erred by precluding her from asking Dr. Barnard about numerous incidents of verbal and physical abuse defendant had described in her interview with Dr. Barnard. Defendant cites a single ruling sustaining the prosecution’s hearsay objection when defense counsel asked Dr. Barnard: “What... incidents from the history of [defendant’s ] relationship with Mr. Farid are you relying upon... ?” The court ruled: “That’s hearsay at this point.” Defendant argues the court should not have sustained the objection because experts may rely upon hearsay as a basis for their opinion and repeat it when explaining the reasons for their opinion. She further asserts the court’s error deprived defendant of a meaningful opportunity to present her claim that she acted in self-defense because it prevented Dr. Barnard from explaining the basis for her opinion that defendant’s behavior was consistent with that of a victim of intimate partner battering.
An expert may base an opinion on hearsay that would not otherwise be admissible, and, on direct examination, an expert may explain the reasons for his or her opinion. (See Evid. Code, §§ 801, subd. (b), 802; In re Fields (1990) 51 Cal.3d 1063, 1070.) The court nevertheless retains discretion under Evidence Code section 352 to exclude expert testimony on any hearsay matter to avoid the prejudice that may arise if, under the guise of reasons, the expert’s testimony gives undue weight and credibility to hearsay evidence simply because it is repeated by an expert. (People v. Pollock (2004) 32 Cal.4th 1153, 1172; People v. Nicolaus (1991) 54 Cal.3d 551, 583.) A typical method of avoiding this potential prejudice is to permit the expert instead to respond to hypothetical questions. (See, e.g., People v. Pollock, at p. 1172.)
We need not resolve defendant’s contention that the court abused its discretion by sustaining the hearsay objection because, even if it did, the error was harmless. Preliminarily, we reject defendant’s assertion that prejudice must be assessed under the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension. (Chapman v. California (1967) 386 U.S. 18, 24.) As a general rule, error in the “ ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.) Defendant’s contention that the claimed evidentiary error was of constitutional dimension fails because the record does not support her assertion that the court’s ruling resulted in a blanket exclusion of all testimony explaining the basis for Dr. Barnard’s opinion. To the contrary, although the court sustained the hearsay objection to this one question, it allowed defense counsel to pose a series of hypotheticals closely tracking defendant’s testimony regarding the abuse she claimed to have experienced in her relationship with Farid, and allowed Dr. Barnard to give other testimony explaining the reasons and factual basis for her opinion. Therefore, the assumed error did not amount to a refusal “ ‘to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)].” (People v. Fudge, at pp. 1102–1103; see also People v. Bordelon (2008) 162 Cal.App.4th 1311, 1328–1329.)
Under the Watson standard, any error in sustaining the hearsay objection is harmless unless it is reasonably probable that in the absence of the error defendant would have obtained a more favorable result. Defendant cites Dr. Barnard’s written report, in lieu of an offer of proof as to how Dr. Barnard would have answered defense counsel’s question. We have reviewed the report, and compared the portions summarizing incidents of abuse or exercise of power and control defendant related to Dr. Barnard with Dr. Barnard’s and defendant’s testimony at trial. The following summary of our review demonstrates that virtually all the same incidents that formed the factual basis for Dr. Barnard’s opinion were placed before the jury through a combination of Dr. Barnard’s response to other more specific questions about incidents defendant related to her, a series of hypotheticals posed to Dr. Barnard, and defendant’s direct testimony. (See People v. Fudge, supra, 7 Cal.4th at p. 1103 [any error in sustaining hearsay objection was harmless because defendant presented much of the same evidence by other means].)
Dr. Barnard was allowed to testify to many specific instances of physical and emotional abuse and factors affecting Farid’s control over defendant that she relied upon in forming her opinion. For example, she testified it was her understanding that defendant’s immigration visa had expired. Dr. Barnard also testified defendant told her Farid had anally raped her, and that defendant told her there had been other incidents of sexual assault.
Dr. Barnard also discussed other facts that would support her opinion through a series of hypothetical questions posed by both the prosecution and the defense, most of which were closely modeled on defendant’s testimony at trial. These included hypotheticals about a person constantly calling when his partner is out with friends in order to accuse her of having sex with other men; a partner’s use of verbal “put downs and denigration” such as telling his partner she has small breasts; a person impersonating an immigration official asking his partner whether she had a work visa; threatening to call the police if the partner refuses to leave; forcing a partner to have sex while on vacation; and starting arguments over minor things such as use of his wash cloth to clean the house and punching his partner. Dr. Barnard was also asked whether it would be consistent with intimate partner battering if, in the course of an argument involving pushing, shoving, and threats to call the police, the person who is normally the victim of domestic violence “grabs the abuser, pulls his hair... and, actually... ends up tearing a piece of his ear off.” After defendant testified and was impeached with inconsistent statements about when and where she was anally raped by Farid, the court even allowed Dr. Barnard to answer a hypothetical about whether her opinion would change if the victim made inconsistent statements about precisely when, where, and how she was sexually abused. Dr. Barnard explained that memory loss and confusion about traumatic events was associated with intimate partner battering.
Defendant herself also testified to virtually every type of abuse, and to the exercise of control and power in her relationship with Farid that she had related to Dr. Barnard: She testified that he initially treated her well, but then became unhappy and started to scold and verbally abuse her. He was also jealous, always wanted to know where she was, accused her of having a boyfriend, and told her she dressed like a stripper. He called her names, became angry when driving, and slapped her in the face once when she refused to ask another driver to allow Farid to make a turn. He punched her in the face during an argument triggered by her overpayment of some housecleaners. He did not want her to work, and once called her at work and pretended he was an immigration officer. He asked if she had a work permit. This made her nervous because she only had a student visa. She also testified that Farid had anally raped her.
In sum, despite the initial ruling sustaining the prosecution’s hearsay objection to defense counsel’s one broad question soliciting a summary of all the incidents between defendant and Farid that Dr. Barnard relied upon in forming her opinion, all or nearly all of these incidents were nevertheless presented to the jury either through Dr. Barnard’s answers to other questions, or in the form of answers to hypotheticals, and through defendant’s testimony. Any details that may have been omitted from Dr. Barnard’s testimony or the many hypotheticals posed were cumulative of the evidence already presented. Therefore, it is not reasonably probable that the result would have been any different had the court allowed Dr. Barnard to answer the question as initially posed. (Watson, supra, 46 Cal.2d at p. 836; see also People v. Fudge, supra, 7 Cal.4th at pp. 1103–1104; People v Bordelon, supra, 162 Cal.App.4th at pp. 1328–1329.)
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.