Opinion
A161516
12-16-2022
THE PEOPLE, Plaintiff and Respondent, v. ABDULLAH HOMRAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-191197-3
TUCHER, P.J.
Abdullah Homran (Abdullah) was convicted of multiple offenses arising out of two altercations that occurred in March 2018, when Abdullah was married to Jane Doe-1 (Jane). The trial court suspended imposition of sentence and placed Abdullah on three years' probation. On appeal, Abdullah contends the judgment must be reversed due to a series of errors stemming from the erroneous admission of evidence regarding a 2013 domestic violence restraining order that was obtained by Abdullah's former wife, Jane Doe-3 (Doe). We affirm the judgment.
To protect privacy interests and avoid confusion, we use some fictitious names and some given names when referring to people involved in this case.
BACKGROUND
In July 2019, Abdullah was charged with the following offenses: assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)); felony child abuse (id., § 273a, subd (a)); misdemeanor child endangerment (id., § 273a, subd. (b)); unlawful possession of a firearm (id., § 29825, subd. (b)); carrying a concealed firearm in a vehicle (id., § 25400, subd. (a)(1)); carrying a loaded firearm while belonging to a prohibited class (id., § 25850, subd. (a), (c)(4)); misdemeanor spousal battery (id., § 243, subd. (e)); and felony battery causing serious bodily injury (id., subd. (d)). In July 2020, these charges were tried to a jury.
I. The Prosecution Case
A. Abdullah's Marriage to Jane
In 2013, Abdullah and Jane became involved in a romantic relationship, and they were married in June 2014. Prior to this marriage, Jane was married to Abdullah's cousin, Morad, and Abdullah was married to Morad's sister, Doe. The marriage between Abdullah and Jane caused a scandal in their Yemeni community because people accused them of cheating on Morad and Doe, which Jane denied. Jane testified that her marriage to Abdullah was often strained. Early in their relationship, Abdullah would yell at Jane when she refused to follow certain rules of Yemeni culture, such as wanting to work outside the home. Later, there were financial problems, they were evicted from their Oakland home, and Jane had to work.
In late 2017 Jane told Abdullah she wanted a separation. Soon thereafter, Abdullah became physically abusive. The first time, Abdullah slapped Jane in the face. Another time, Abdullah became angry because he did not want Jane to smoke a hookah pipe that she had bought for herself. He took the pipe from Jane and used it to hit her in the arm, causing the arm to swell for three days. On another occasion, Abdullah became angry because Jane received a text message at night while they were in bed. It was 8:00 p.m., and Jane's boss from the hookah lounge where she worked wanted to know if she was coming in the next day. Abdullah asked in a harsh voice who was texting Jane in the middle of the night, then grabbed the phone and slapped Jane in the face. The slap was "really hard," and Jane reacted by hitting Abdullah with the phone. Jane did not leave Abdullah because of these incidents or report them to the police because she did not have a plan about where to live with her children, she was afraid of what people would say about her, and she wanted to avoid more family drama.
Early in March 2018, Abdullah and Jane were living in a rented home in Antioch with Jane's five minor children, Jane's sister Ebtesam, and Ebtesam's two children. But the household was packing to move because their landlord was planning to sell the house.
B. The March 4 Incident
On March 4, 2018, Abdullah and Jane had an argument about a cellphone that turned into a physical altercation involving Jane's 10-year-old son, John Doe-2 (John). Jane and John both testified about the incident at Abdullah's trial.
Jane testified that on the evening of March 4, she asked John to hide her cellphone while she went to take a shower because Abdullah was looking for it so he could find out who she had been calling and texting. When she returned from her shower, John told her Abdullah took the phone. Jane suspected Abdullah went to the Sprint store to try to "hack" her password, so she got in her Prius and went to find him. She did not find Abdullah at the store, but on her way home, she saw his black Ford Explorer and followed it. Unbeknownst to Jane, John was in the backseat of the Explorer.
When Abdullah stopped at an intersection, Jane drove up next to his passenger door, and demanded her phone. Abdullah denied having the phone but then admitted John gave it to him. The conversation became heated and then Abdullah drove his car into the driver's side of the Prius and drove away. Jane continued to follow Abdullah, exceeding the speed limit to keep up with him. Abdullah braked suddenly, causing the Prius to collide "quite hard" into the back of the Explorer. Abdullah made a U-turn, hit the Prius, causing it to spin, and drove away.
Fearing for her life, Jane drove home, borrowed a neighbor's phone, and called 9-1-1. The dispatcher asked if Abdullah had "any weapons on him." Jane responded that he had a small gun he used to carry. Then Jane said, "yeah, of course" the gun was with him because they were in the process of moving and had taken everything out, but she had not seen the gun that day. Jane said that she did not think the gun was registered to Abdullah because it belonged to his friend. The dispatcher asked about a restraining order that had been issued against Abdullah. Jane reported that Abdullah's ex-wife obtained the restraining order.
Photographs of Jane's damaged Prius were admitted into evidence. Recordings of a series of 9-1-1 calls were played for the jury.
At trial, Abdullah's friend, Rodolfo A., testified that he gave the gun to Abdullah as a birthday gift approximately 10 years before Abdullah's trial.
After Jane completed her 9-1-1 report, she went home to an empty house because her sister had taken the children out. When they returned, Jane discovered John was not with Ebtesam. The next day, March 5, Jane called 9-1-1 and reported that Abdullah had called Ebtesam from a phone with a blocked number and told them he was not going to bring John home. On March 6, Jane called 9-1-1 again and reported that Abdullah was in their garage and John was not with him. While Jane was still on the phone, Abdullah drove away in a U-Haul.
John testified that on the evening of March 4, 2018, he was sitting outside waiting for his mom to come home when his stepdad, Abdullah, drove up in his big black car, with several rows of seats. Abdullah told him to get in the car, John said no, but then Abdullah yelled at him to get in, so he did. At some point, John's mom drove up in her car, but she did not see John because he was in the back of the Explorer. John did not recall what Abdullah and Jane said to each other, but he did recall that Jane was angry because she wanted her cellphone back. John also testified that there were two separate crashes, and both times Abdullah hit Jane's car. He was afraid during the incident because he "want[ed] to live longer."
After the second car crash, Abdullah and John drove out of Antioch, and spent the next two days together. Abdullah took John to McDonalds, they went to "Get Cash" for some money, and they slept in the Explorer at night. When they returned to Antioch, Abdullah parked the Explorer near their house and went and climbed a fence leading into their yard. John stayed in the Explorer and watched videos on Abdullah's phone for about 15 minutes and then went to see what was going on. He was walking down the street when a police officer approached him and took him home.
C. Abdullah's Gun and the Restraining Order
Antioch Police Officer Kenneth Krein was dispatched to Jane's home on March 6, 2018, at around 8:00 a.m. Jane told Krein that when Abdullah left the house in a U-Haul Jane's sister had followed him to a fitness center about a mile away. Krein found Abdullah in the parking lot of the fitness center. After repeated questioning, Abdullah disclosed that he left John in the Explorer, which was parked near the home. Krein found the boy walking near the Explorer and brought him home. Then Krein searched the Explorer. In the glove compartment, he found Jane's social security card and cellphone, and Abdullah's prescription medication. Behind the glove compartment, a .380 caliber pistol was "jammed down" into the "wiring harness." There was a bullet in the chamber, and live rounds in the magazine.
At trial, the following stipulation was read to the jury: "Mr. Homran is in a class of persons prohibited from possessing a firearm. The parties also agree that Mr. Homran was ordered by a court to not possess a firearm and that this order was in effect during March 2018. [¶] Finally, the parties agree that Mr. Homran knew of the court's order in March 2018."
D. The March 15 Incident
On March 15, 2018, Abdullah and Jane had an altercation that involved Jane's friend, Nicholas N. Prior to the incident, Jane had admitted to Abdullah that she was beginning to have feelings for Nicholas, who was also going through a divorce. Jane and Nicholas both testified about the incident at Abdullah's trial. By that time, they were married to each other and had eight-month-old twins.
Jane testified that on the evening of March 15, she was at a motel where she was staying when she received a call that her sister needed a ride because she had been drinking. Jane did not have her car because of the March 4 incident, so she called Nicholas. They picked up Jane's sister at a restaurant, which was a few doors down from a hookah bar where Jane worked. They were walking across the parking lot when Abdullah came toward them screaming and yelling, and then punched Nicholas in the face and body. Jane attempted to intervene, but Abdullah struck her in the face, knocking her to the ground. Nicholas told Abdullah to stop and tried to get him under control, but Abdullah attacked him. Jane ran to the hookah lounge looking for help and then called 9-1-1.
Nicholas testified that when Jane called on March 15 and told him her sister was intoxicated, he agreed to go with Jane to pick her up. Nicholas was getting out of his car in the parking lot when he saw Abdullah walk quickly toward him in an aggressive manner. He attempted to deescalate the situation and explain what was going on. He did not raise his fists or make any aggressive movement, but Abdullah put hands on him and took a swing. Nicholas raised his hand to protect his face and blocked a punch that broke his finger. Then, when Jane attempted to talk to Abdullah, he struck her in the face. At that point, Nicholas planned to put Abdullah in a choke hold and have someone call 9-1-1. He attempted to restrain Abdullah, but did not strike him. Abdullah, however, struck Nicholas several times, and also bit him, after breaking Nicholas's finger.
Under cross-examination, Nicholas testified that when the March 15 incident occurred, he and Jane may have been in a romantic relationship, or were "possibly just starting to become romantic." Prior to the incident, Nicholas had a few "brief" encounters with Abdullah, but could not remember if they were "friendly." It was "possible," Nicholas testified, that the two men had argued, either in person or through text messages, and he may have challenged Abdullah to a fight.
II. The Defense Case
Abdullah's defense was that the prosecution had not carried its burden of proof because its witnesses were not credible. Jane and Nicholas were liars, the defense argued, and John's testimony was not reliable because he was attempting to protect his mother. To shore up this defense, Abdullah presented testimony from three character witnesses before testifying on his own behalf.
A. Character Witnesses
1. Ehssan H.
Ehssan is the oldest son of Abdullah and Doe. Ehssan testified that at the time of trial, Abdullah and Doe were together and living in the same home with him and his wife and children. Ehssan has a very close relationship with Abdullah; they "do everything together" and also used to work together. Ehssan described Abdullah as a "great man," and a good father and husband, who has a good, honest character. Ehssan is also aware of the reputation that Abdullah and Jane have within their family's local Yemeni community. Jane is considered to have a "very bad character" because she was "always lying" and people could not trust her. Abdullah, on the other hand, has a "very strong" reputation for being honest and peaceful. Everyone loves him, wants to shake his hand and wants to be around him.
During his direct examination, Ehssan testified that he had heard about a restraining order Doe obtained against Abdullah, but he did not "know the details." Under cross-examination, Ehssan confirmed his belief that Abdullah was a nonviolent person, but testified that his opinion would change if the current charges were true. Ehssan was living in Yemen when his mother obtained a restraining order against Abdullah, and, prior to trial, he had not heard about Doe's allegations of physical violence and threats by Abdullah.
2. Melissa G.
Melissa was married to Nicholas N. for five years before filing for divorce in June 2018. She met Jane in the summer or fall of 2017, when Nicholas started using Jane as a babysitter despite Melissa's objection. Melissa suspected Jane was having an affair with Nicholas, but Jane adamantly denied the accusation. In March 2018, Jane and her children moved in with Nicholas and Melissa, ostensibly because Abdullah was stalking Jane. Melissa did not believe this story and did not trust Nicholas or Jane. She did not kick Jane out, but was clear that the arrangement was temporary and, eventually, Jane called Abdullah, who came and picked up the family. After Melissa filed for divorce, Jane admitted that she did have an affair with Nicholas. In Melissa's opinion, Jane was never afraid of Abdullah. It seemed to her that both Abdullah and Nicholas did whatever Jane wanted. In Melissa's opinion Jane and Nicholas do not have truthful characters because both lied to her repeatedly.
3. Monna H.
Abdullah's 31-year-old daughter Monna testified that her father is her "king" and "best friend." She has always been close with her father, except for a period of about six or seven years when they did not speak after a falling out in November 2013. Monna considers Abdullah to be "[o]ne hundred percent" honest, and testified that he is well known in the Yemeni community as an honest and educated man. He also has a reputation for being a peaceful person. He would never allow violence against women in his household and has always been a strong advocate for the rights of the women in his family. He is not controlling of women, as evidenced by the fact that Monna's mom "basically wore the pants" in the family.
Monna testified that she first met Jane in 2000, when Jane was married to Monna's uncle, Morad. The two were very close until around October 2012, when Monna and Jane had a falling out. Soon thereafter, Monna also fell out with her father. According to Monna, Jane is a controlling person especially in her romantic relationships. When Monna no longer wanted to be Jane's friend, Jane made it impossible for Monna to speak with Abdullah. She controlled where they went, had his credit cards, and even took control of the car that belonged to Monna's mother. She flaunted her power and was a habitual liar. When asked about Jane's reputation in their Yemeni community, Monna testified that "[e]verybody knows her as someone who's very dishonest and nobody trusts her."
Under cross-examination, Monna acknowledged that her mother (Doe) obtained a restraining order to protect herself from Abdullah, but Monna did not "know about any domestic violence that had occurred." Monna also acknowledged that she did not know what type of relationship Abdullah had with Jane between 2013 and 2019 because she was not in contact with them during that period. However, Monna knew her father was nonviolent and believed that the charges against him were fabricated.
4. Izzuddim A.
Izzuddim has known Abdullah for about 43 years. They grew up together and are part of the same Yemeni immigrant community. Abdullah was a leader in that community and had a reputation for being a sincere and honorable person until he started a "relationship" with Jane. Jane used to be best friends with Izzuddim's wife, but then she started making up stories and telling lies and developed a bad reputation in the community. Although Abdullah's reputation suffered because of his relationship with Jane, Izzuddim renewed their friendship after Abdullah and Jane separated. According to Izzuddim, Abdullah is still regarded as an honest and peaceful man. Izzuddim knew that Abdullah's first wife, Doe, obtained a restraining order, but that did not change his opinion about Abdullah because "women get restraining orders all the time" and it's always the man that gets "arrested for stuff like that."
B. Abdullah's Testimony
At trial, Abdullah referred to Doe as his wife, testifying that they married in 1984, "were together for approximately 28 years," and have six children. In "[a]pproximately mid-2013," Abdullah had a second marriage with Jane. It was not a court marriage, but a religious ceremony conducted by an imam in a mosque. Before his second marriage, Abdullah's family had a relationship with Jane because she is the daughter of Abdullah's cousin, and she was previously married to Doe's brother, Morad. After Jane moved from Saudi Arabia to live with Morad in California, she spent a lot of time with Abdullah's family. Abdullah's relationship with Jane became more than "just friendly" in 2012 when Abdullah's wife and children were living in Yemen. At the time, he helped Jane resolve some problems she was having with her husband and also provided financial assistance. When Abdullah and Jane got married the following year, they were "totally cut-off" by the family. A few months later, Abdullah lost his janitorial company, which changed his financial status and caused problems in his marriage to Jane.
In December 2017, Abdullah began to suspect Jane was having an affair because she was up late at night talking on her phone in a different room. He found the number Jane had been calling on their phone bill and began communicating with Nicholas N., who denied doing anything "wrong" with Jane. In January 2018, Abdullah met Nicholas in person when he went to see Jane at the hookah lounge where she worked and found her "sitting side by side with Nick." Over the next few months, Abdullah and Nicholas had angry and hostile communications through text messaging. Many times, Nicholas questioned Abdullah's manhood, challenged him to fight, and threatened to turn him over to the police.
Abdullah testified that on March 4, 2018, the family spent the day loading a U-Haul because they were getting ready to move. Around midday, Jane went out in the Explorer that Abdullah used for his work as an Uber driver. After Jane returned, she said something about needing to get her phone fixed and asked to use Abdullah's phone. Then she started deleting text messages between Abdullah and Nicholas that Abdullah had saved on his phone. Abdullah tried to get his phone back, but Jane and her kids tossed it between them as they ran through the house, eventually locking Abdullah in the garage. When Abdullah returned to the house, Jane had destroyed his phone. Upset and dismayed, he went for a drive in the Explorer because he did not "want to have any issues." When he returned home, it was dark outside.
As Abdullah approached his house on the evening of March 4, he saw his young stepson John standing on the curb across the street, holding the hand of a neighbor. Abdullah asked where everybody was, and John, who seemed upset, said his mom and everybody left. Abdullah asked if John wanted to get in the car and John hopped in the front passenger seat. Abdullah's "intention" was simply to drive across the intersection and wait at the house for the family but as soon as he crossed the intersection, he felt Jane's Prius hit the back of the Explorer. Abdullah kept driving, but Jane followed, yelling at him as she tried to drive in the space on his right side. Abdullah rolled down the passenger side window and heard Jane yelling that she wanted her phone, which he did not have. John, who was sitting in the passenger seat, was waiving and trying to talk to Jane, but she kept driving "irresponsibly," perhaps trying to pass Abdullah on his right side where there was no room for her. In the process, Jane's Prius made "impact" with the Explorer. Abdullah continued to drive, speeding up to get away, but Jane kept chasing after him.
At trial, Abdullah recalled that he was "uncomfortable" and "basically just shocked" by the way Jane was behaving knowing that John was in the Explorer. Abdullah never intentionally hit the Prius, slammed his brakes or put his car in reverse, but just tried to get away. After chasing him for about two miles, Jane hit the right rear end of the Explorer, causing it to spin around and come to a stop while facing oncoming traffic. As Jane continued to drive the other direction, Abdullah had time to get away.
Abdullah did not want to go home after the incident because he did not want any more problems with Jane. That night, he and John stayed in the neighborhood near their house and slept in the Explorer. The next day they went to San Leandro while Abdullah tried to figure things out. They got food, went to the marina, and got a new phone for Abdullah to replace the phone Jane broke the day before. They spent another night in the car because John was too scared to return home. On March 6, they did go home because Abdullah wanted to finish using the U-Haul. He parked the Explorer around the block from the house, and told John to walk home after giving Abdullah a few minutes to retrieve the U-Haul. As Abdullah drove away in the U-Haul, he saw that Jane's sister and oldest son were following him. He pulled into the fitness center to tell them that John was in the Explorer near the house. Abdullah was still in the parking lot when the police came and arrested him.
At trial, Abdullah acknowledged that the gun the police found in the Explorer had been given to him by a friend. He testified, however, that he gave the gun to Jane in 2013. He knew that Jane kept the gun in the house because he had seen her with it a few times over the years. He did not know that the gun was in the Explorer on March 4, 2018.
Regarding the March 15 incident, Abdullah testified that he was working in San Francisco when he received a call from his stepchildren that prompted him to drive home so that he could get them some food. Jane was supposed to be home with the kids, but she was not there and did not answer Abdullah's call. The kids said Jane was at work, so Abdullah drove to the hookah lounge, but Jane was not there. He was walking back to his car when he "spotted" Jane pulling into the parking lot with Nicholas. He was very upset as he walked toward them, got "very close to Nick," and asked what Nicholas was doing with his wife. Nicholas acted like he was "physically looking to fight," holding his halfway fisted hands up below his chin, and asked Abdullah what he was "going to do about it." Abdullah did not touch Nicholas but put out his hands as he backed up so Nicholas would not come too close. Then Nicholas pushed Abdullah's hands and Abdullah tried to take a swing at him. Nicholas blocked the swing, and the two men began to struggle, quickly going to the ground. At one point, Jane tried to pull Abdullah up, not realizing Nicholas was holding Abdullah down with his legs. Abdullah responded by extending his hand above his shoulder "and telling her please stay away from this. Let us deal with this. Just stay away." As Jane was leaning down over Abdullah, he unintentionally made contact with her neck and chin. When the police arrived Nicholas let Abdullah get up.
During his direct examination, Abdullah was asked about the restraining order that Doe obtained in 2013. He testified that when Doe returned from Yemen in November 2012, their relationship was "pretty bad," and early the following year Doe left Abdullah and went to live with her brother. After the separation, there was an incident at Doe's brother's house that occurred because Abdullah went to pick up some of his kids and Doe would not allow them to leave. Abdullah was upset and angry, but he did not become physical with Doe, and when other family members told Abdullah to leave, he went home. But then Abdullah realized that his children had his house keys, so he had to go back and retrieve them. During the entire incident, Abdullah never raised his hands against Doe or threatened her in any way. Abdullah did not recall ever hitting Doe during their marriage, testifying that "[a]ll the 28 years we were so happily married."
Under cross-examination, Abdullah testified that during the year prior to March 4, 2018, he used the Explorer every day to drive for Uber and that the gun the police found in the Explorer had been given to him as a birthday gift in 2009 or 2010. Abdullah acknowledged that in March 2018 he was not allowed to have a gun because in March 2013 Doe had received a restraining order from the court. However, Abdullah denied that Doe had asked for the restraining order because of something that he had done to Doe, and testified that the order was issued "for no reason." Abdullah denied that the restraining order was issued because he choked Doe, slapped her over the course of five months, or threatened to kill her and the family. Abdullah acknowledged he was present when the restraining order was issued and understood it prevented him from having a gun, but he testified that he did not possess a gun in March 2018, because he gave his gun to Jane in 2013.
Abdullah was also cross-examined about text messages he exchanged with Nicholas prior to the March 2018 incident. Abdullah acknowledged he may have told Nicholas," 'If you are a man, let us meet just you and me alone,'" and he may also have said that if Nicholas was a man, he would meet Abdullah "one to one" instead of threatening to call the police. Abdullah also sent Nicholas a text that said:" 'You will lose sooner or later, I promise you.'" However, he explained that he sent these texts after receiving "actual threats" from Nick. The prosecutor asked if Abdullah's suggestion that Nicholas meet him like a man was an invitation to fight, to which Abdullah responded, "Not necessarily. I am a very peaceful person." When they did eventually meet in the parking lot of the hookah lounge, Abdullah was mad because it was upsetting to see another man with his wife. Abdullah reiterated that Nicholas was the aggressor, but also confirmed that Abdullah was not injured during the altercation despite the fact that he is 30 years older than Nicholas.
Abdullah acknowledged that when police arrived at the March 15 incident, he may have told the officer that he and Jane had been happily married for five years, and had no problems until Nicholas came along. Abdullah also told the officer that there had been no domestic violence between himself and Jane, and at trial he denied this statement had been untrue. Abdullah denied that he slapped Jane, hit her with a hookah pipe, rammed her with his car, or hit her during the altercation with Nicholas.
III. Jury Verdicts
On July 16, 2020, the jury acquitted Abdullah of the felony assault charge arising out of the March 4 incident. The jury also found Abdullah not guilty of felony child abuse but guilty of a lesser included offense, thus convicting him of two counts of misdemeanor child endangerment during the March 4 incident and its aftermath. Abdullah was also found guilty of all three weapon offenses. Finally, as to the March 15 incident, Abdullah was found guilty of felony battery against Nicholas and misdemeanor spousal battery against Jane.
DISCUSSION
The issues on appeal all pertain to the 2013 restraining order that Doe obtained against Abdullah. Specifically, Abdullah contends the trial court made two sets of errors, first by admitting evidence about the restraining order, and then by excusing Doe from testifying at trial. Abdullah also contends the prosecutor committed misconduct when questioning defense witnesses about the restraining order, and his trial counsel's failure to make and or preserve objections to this evidence deprived him of his right to the effective assistance of counsel.
I. Additional Background
A. The In Limine Order
The People filed a pretrial motion to introduce evidence of prior acts of domestic violence pursuant to Evidence Code sections 1101 and 1109. They also filed a motion to admit a certified copy of the domestic violence restraining order obtained by Doe, which forbade Abdullah from possessing a firearm, arguing that the order was admissible during their case-in-chief to prove the firearm charges, and as impeachment evidence if Abdullah elected to testify. (Citing § 452.5, subd. (b) [certified court records are subject to judicial notice]; People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson) [record of prior sex offense admissible under section 1108].)
Statutory references are to the Evidence Code, unless another code is cited.
During the in limine hearing, the defense requested that the restraining order be excluded under section 352, arguing the evidence lacked probative value because (1) Abdullah was willing to stipulate that he was prohibited from possessing a gun, and (2) Doe could testify about prior domestic violence without disclosing that a restraining order was granted. Moreover, the evidence was prejudicial, Abdullah argued, because he disputed allegations of prior domestic violence.
The trial court observed the issue was thorny because even if Abdullah stipulated that he was prohibited from possessing a gun in 2018, the restraining order was relevant to the current domestic violence charges. Defense counsel acknowledged that testimony about conduct that led to the restraining order was admissible under section 1109, but argued that the fact the order actually issued amounted to "judicial tokenization" because it signified that another "judge verified that this information is true." The defense conceded its cross-examination of Doe could potentially open the door to some other theory of relevancy, but argued that otherwise the jury should not be told about the order.
The court opined that the progress of the trial would affect its decision. If, for example, Abdullah stipulated that he was a prohibited person prior to testimony about events that led to issuance of the restraining order, the court could allow testimony that Doe applied for a restraining order without telling the jury the outcome of the application, unless something unearthed during cross-examination changed the court's ruling. But, the court stated, "it's pretty difficult for me to say absolutely that eventually as the course of the trial comes out, the jury won't find out there was a restraining order."
Ultimately, the court ruled that (1) the defense would stipulate that, at the time of the events that gave rise to the current charges, Abdullah was subject to a court order prohibiting him from possessing a firearm and that he was aware of the court order, and (2) during the People's case-in-chief, they were not to "introduce the fact that a prior court issued a restraining order, in those words." The court clarified that the prosecution could establish that Doe sought a restraining order against Abdullah. It also ruled that during opening statements, the prosecutor could tell the jury Abdullah "is a person prohibited by court order from possessing or owning a firearm," and that he knew about the court order imposing this prohibition, as these were facts the People intended to prove, regardless of the stipulation.
During opening statements, the prosecutor stated that Abdullah's domestic violence was not limited to Jane, as he had also hit Doe, over and over, forcing Doe "to ultimately seek a restraining order." Defense counsel objected to this statement, referencing "In limines," but the court responded, "No. The Court ruled that she could produce evidence that [the] ex-wife sought a restraining order. Overruled."
B. Evidence Ruling During Jane's Trial Testimony
The prosecution presented its case on July 9 and 10, 2020, calling Jane as its first witness. As noted in our background summary, a recording of the 9-1-1 call that Jane made on March 4 was played for the jury, and during that call the dispatcher asked Jane about a restraining order that had been issued against Abdullah. After the 9-1-1 recording was played, the jury was excused for a break and the court discussed the matter with counsel. It was perplexed as to how both parties had failed to redact the reference to the restraining order from the 9-1-1 recording, as that reference violated the in limine order. Ultimately though, the statement was harmless, the court found, because the trial had progressed such that the in limine ruling needed to be changed. During opening statements, the defense informed the jury that it would call witnesses to testify to Abdullah's good character and raised several other matters that made the restraining order relevant, the court found. Therefore, the court retracted its in limine order, and ruled instead that: (1) the prosecution could "introduce evidence that there was a restraining order" during its case-in-chief; and (2) Abdullah was not required to enter into a stipulation regarding the order precluding him from possessing a firearm. Neither party objected to this ruling.
C. Doe's Refusal To Testify
On the afternoon of July 10, the People intended to call Doe as their last witness. Outside the presence of the jury, the prosecutor advised the court that Doe had just informed the prosecutor that she refused to testify. Doe was sworn in and questioned by the court. She stated that Abdullah was her husband, and she did not want to testify against him. The court told Doe that it was fine that she did not want to testify, but the court was ordering her to answer the attorneys' questions, and she must obey that order. Doe repeated several times that she did not want to testify despite the court's attempts to convince her that the law required her to testify. Defense counsel requested an opportunity to examine Doe, which the court denied. But counsel continued, "I do believe there's another legal basis that she could be refusing," at which point, the court interjected: "Stop. Stop right now. You're trying to influence the witness. Stop."
After directing Doe to wait outside the courtroom, the court began by admonishing defense counsel that her attempt to dissuade Doe from testifying was "worrisome" and "wrong." Turning to the substantive issue, the court advised the parties it was "not going to sanction or punish or rebuke or hold in contempt a victim of domestic violence for not testifying." After further discussion, the court agreed to delay trial until the following Monday to give Doe the weekend to seek legal advice and reconsider her position. The jury was excused, and then the court and counsel discussed potential repercussions if Doe did not testify. The court noted that during opening statements, the prosecutor had made a reference to the fact that Doe had sought a restraining order against Abdullah. The court did not think that this statement would create confusion for the jury, but it offered to explain that the restraining order was relevant because it prevented Abdullah from possessing a firearm. The court invited comment, but neither counsel offered any.
The court stated: "Counsel, that is really close to a problem. You cannot try to influence a witness' testimony or dissuade a witness. That's what you were doing. When I told you to stop and you continued to talk, that is particularly worrisome to me, and you intentionally tried to get words out to this witness that would make it so that she remained committed to her desire not to testify. That's wrong."
Then the court asked about the "restraining order evidence." The People had proffered certified copies of Doe's application and the order itself. The court stated the application was not admissible, but the DV-130 order was relevant to show that when the current charges arose, Abdullah had a restraining order prohibiting him from having a firearm, and it inquired if the parties had discussed whether the order should be redacted. Defense counsel stated that Abdullah was still willing to stipulate that in March 2018, he was subject to a court order precluding him from possessing a firearm, and offered a proposed draft of the stipulation. Upon further discussion, the court found that if the parties agreed to a stipulation, the order would not be admissible to show Abdullah was subject to a firearm restriction, but it would be admissible if character witnesses called by the defense testified about their opinions, Abdullah's reputation, or specific acts of conduct that opened the door for the prosecution to ask witnesses their knowledge of events that led to the restraining order. The prosecutor agreed that if a stipulation was reached before the People rested, she would not need to offer the restraining order during her case-in-chief, with the caveat that the situation could change depending on the character testimony. The court concurred.
Before the court turned to another matter, Ms. Eisenhart from the Alternate Defender Office (ADO) entered the courtroom and introduced herself. Eisenhart notified the court that Doe had contacted the ADO the previous week. Eisenhart had just learned that Doe was expected to testify that day, and notified the court that she was available to represent Doe "in an advise-and-assist capacity going forward." The court stated that Doe had not disclosed prior contact with the ADO or given the court reason to refer her for representation, but if the ADO was in a position to advise Doe, it was "perfectly okay to do that."
The following Monday, Doe appeared in court with Eisenhart, who spoke on her behalf. Eisenhart informed the court that Doe understood the court was ordering her to testify and despite that order she was not going to testify. The court inquired if either counsel wanted "to do anything further" with respect to the matter and both counsel answered "No." The court was disappointed that Doe felt she could disregard a court order but reiterated that it would not punish a domestic violence victim. Its main concern was to ensure that the jury not speculate that Abdullah had done something to dissuade Doe from testifying. Then the court stated, "so I'm about to excuse her with the understanding that I'm not going to take any further action on this issue. [¶] Does anyone object to that?" Both counsel responded, "Submit."
After Doe was excused, the court opined that it was not likely the jury would speculate about why Doe did not testify, noting that it had reviewed the transcript and found nothing concerning. The court invited further discussion. Neither counsel expressed concern about improper speculation, but the defense asked the court to reconsider its ruling that evidence about the restraining order would be admissible if the defense elicited testimony that Abdullah had a character for nonviolence. The court confirmed its prior ruling that if the defense opened the door to evidence of Abdullah's reputation for nonviolence, the prosecutor could explore the witnesses' knowledge about the restraining order.
D. The Stipulation
Before the People rested their case, the court and counsel discussed remaining issues pertaining to the People's exhibits, including the restraining order. The parties advised the court that the defense had submitted a proposed jury instruction containing its version of the stipulation, the prosecutor had revised that language, and the parties were now ready to present their stipulation to the jury. The last sentence of the proposed stipulation told the jury not to speculate about the reason Abdullah was prohibited from having a gun. The court stated that this sentence was an instruction, not a stipulation. By the same token, the court found, a statement in the stipulation directing the jury to accept it "as true" was an instruction that did not belong in the stipulation. Neither party disagreed nor objected to removing both sentences. After the jury returned to the courtroom, the prosecutor delivered the pared-down stipulation and then the People rested their case.
II. Analysis of Evidentiary Rulings
We begin with Abdullah's claim that evidence about the restraining order was erroneously admitted. We review the trial court's evidentiary rulings for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437; People v. Mani (2022) 74 Cal.App.5th 343, 358 (Mani).) Abdullah contends the court erred here by reversing the initial order that precluded the prosecution from introducing evidence of Doe's restraining order "merely because" the defense elected to present evidence of Abdullah's good character.
As a preliminary point, the trial court's initial order did not preclude the People from introducing evidence about the restraining order. The in limine order was limited to the People's case-in-chief; it did not address whether defense witnesses or Abdullah could be asked about that matter. Moreover, the in limine order was narrow and tentative; it prevented the prosecutor from presenting evidence that the restraining order was actually granted if there was a stipulation about the court order prohibiting Abdullah from possessing a weapon. And even in that context, the door was left open to the possibility that the jury would learn that Doe was granted a restraining order.
"A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself." (People v. Holloway (2004) 33 Cal.4th 96, 133; see also People v. Valdez (2012) 55 Cal.4th 82, 142-143.) In this case, when the trial court reversed the in limine order during Jane's trial testimony, Abdullah did not object, thus failing to preserve this aspect of the court's ruling for review.
Moreover, Abdullah fails to show that permitting the prosecutor to question defense witnesses about the restraining order was an abuse of discretion. His substantive argument appears to consist of three prongs: (1) a domestic violence restraining order that was previously issued against a defendant does not fall "within the purview of section 1109"; (2) a witness who testifies about the defendant's good character may not be questioned about a restraining order obtained by a former victim of the defendant; and (3) the existence of such an order has no impeachment value.
First, as a general rule, the prosecution may not present evidence of a defendant's bad character to prove the defendant acted in conformity with that character in committing the charged offense. (§ 1101, subd. (a); People v. Tuggles (2009) 179 Cal.App.4th 339, 357 (Tuggles).) However, section 1109, subdivision (a)(1) provides that, "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." Abdullah concedes, as he did below, that testimony about prior acts of domestic violence may be admissible under section 1109. But without citing authority, he maintains that a domestic violence restraining order is not admissible under section 1109. We need not decide the issue here where the record shows that Doe's restraining order was not admitted into evidence.
Abdullah also contends that the fact that a restraining order has been issued against a defendant is inadmissible character evidence under section 1101. As support for this contention, Abdullah cites two cases: People v. Thomas (1978) 20 Cal.3d 457, and People v. Scott (1987) 194 Cal.App.3d 550. Neither case involved a restraining order (ibid.), and both were decided before the enactment of section 1109, which creates an exception to the general rule that evidence of a person's character is inadmissible when offered to prove the person's conduct on a specific occasion. (People v. Baker (2021) 10 Cal.5th 1044, 1088-1089 (Baker).) The exception is limited because it applies only if the evidence is not made inadmissible by section 352 (§ 1109, subd. (a)), which gives courts discretion to exclude evidence when its probative value is "substantially outweighed" by a "substantial danger of undue prejudice." (§ 352.) But evidence is not prejudicial within the meaning of section 352" '" '" 'merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant.'" '" '" (Baker, at p. 1089.)
Section 352 is designed to avoid the kind of prejudice that results from prejudging a person or cause on the basis of extraneous factors. (Baker, supra, 10 Cal.5th at p. 1089.) "In the context of [section] 1109, a defendant's propensity to commit . . . domestic violence is not an extraneous factor; it is relevant to the guilt of the accused-and evidence tending to show that propensity has probative value." (Ibid.) By the same reasoning, the existence of a domestic violence restraining order is not an extraneous factor, particularly when the order was in effect when the defendant engaged in conduct that gave rise to charges of domestic violence. (Cf. Mani, supra, 74 Cal.App.5th at pp. 352-353, 364-366 [evidence defendant violated prior restraining orders properly admitted under section 1109].) Cases on which Abdullah relies are thus distinguishable. (See People v. Fauber (1992) 2 Cal.4th 792, 822 [prosecutor's opinion of the credibility of accomplice's testimony irrelevant]; People v. Allen (1978) 77 Cal.App.3d 924, 934-935 [robbery defendant's parole status irrelevant].) There may be cases where the probative value of the fact that a restraining order was issued is outweighed by other section 352 factors. But we reject the unsupported contention that the existence of such an order falls outside the scope of section 1109.
In the present case, when the trial court made its in limine ruling, the court and parties anticipated that Doe would testify about Abdullah's prior domestic violence and that the defense would dispute her allegations, which raised a concern that if the jury was told that a restraining order was granted, it might draw an unfair inference that a judicial officer was essentially vouching for Doe's credibility. However, subsequent developments led the court to change its ruling. During opening statements, defense counsel described Abdullah's defense to the current charges as a matter of "he said, she said." The jury was told about defense witnesses who would testify that Abdullah is honest and nonviolent. Defense counsel also alluded to factual evidence that only Abdullah could provide by exercising his right to testify, including that he had been falsely accused of domestic violence and that the gun found in his explorer belonged to Jane. In light of these disclosures, and the fact that the parties had not at that point entered into a stipulation about Abdullah's status, we find no abuse of discretion in the court's decision to change its prior in limine ruling, particularly when nobody objected. Later, after Doe was excused from testifying and the parties did reach a stipulation, the court recognized that the restraining order was no longer relevant to the prosecution's case, but it could be relevant to cross-examine witnesses.
Which brings us to Abdullah's second substantive claim-that Abdullah's decision to present evidence of his good character did not justify admitting evidence about the restraining order. We disagree. "In a criminal action, the defendant may introduce evidence of his or her own good character" to prove his conduct in conformity with that character or trait. (People v. Hawara (2021) 61 Cal.App.5th 704, 712 (Hawara); see § 1102, subd. (a).) "However, '[w]hen a criminal defendant presents opinion or reputation evidence on his own behalf the prosecutor may present like evidence to rebut the defendant's evidence and show a likelihood of guilt." (Tuggles, supra, 179 Cal.App.4th at p. 357; § 1102, subd. (b).)" 'The prosecutor may pursue the inquiry with cross-examination as to the contents and extent of the hearsay upon which the opinion was based, and may disclose rumors, talk, and reports circulating in the community.'" (Tuggles, at p. 357.) A prosecutor may, on this theory, enquire on cross-examination about reports that a court had found grounds for issuing Doe a domestic violence restraining order against Abdullah.
We find no abuse of discretion in allowing Abdullah's character witnesses to be questioned about the restraining order under the circumstances presented here. When the court made this ruling at the end of the People's case, it was made clear to the parties that the relevancy of this evidence would be dictated by the direct examination of character witnesses, and whether the door was opened to asking if they knew about events that led to the issuance of a restraining order. As our factual summary reflects, the defense opened the door widely, eliciting opinion and reputation testimony as proof of Abdullah's character for honesty and nonviolence. Moreover, aside from the 9-1-1 tape, the first time the jury heard that a restraining order was actually issued against Abdullah, rather than simply requested, was during defense counsel's direct examination of Abdullah's son.
The third prong of Abdullah's substantive argument is that Doe's restraining order did not "have any impeachment value." This contention is unsupported by analysis or authority, and is no more persuasive as to Abdullah than his character witnesses. By taking the witness stand, Abdullah "put his own credibility in issue and was subject to impeachment in the same manner as any other witness." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) Abdullah testified that he had not been violent during his marriage to Jane, that he was not responsible for instigating the fight with Nicholas because he is a peaceful person, and that there was no violence at all during his marriage to Doe. The fact that Doe sought a restraining order against him was relevant to impeach this testimony.
Abdullah makes an additional argument, which pertains to the manner in which the court made its rulings. He contends that the timing of the court's decision to reverse its in limine ruling was a due process violation because it deprived the defense of the opportunity to cross-examine Jane about what she knew about the restraining order. Abdullah argues further that the court "compounded" its error when it read to the jury the stipulation about the order preventing Abdullah from possessing a gun because the court omitted "the critical last sentence," which would have told the jury not to speculate about the reason Abdullah was prohibited from possessing a gun. Both prongs of this argument misconstrue the record.
The trial court retracted the in limine order during Jane's direct testimony, before she was cross-examined by the defense. Nothing prevented Abdullah from examining Jane about the restraining order, if there was something relevant to ask her. That the parties, near the close of the prosecution's case, agreed on a stipulation, and that the restraining order would not be admitted during the People's case does not change the fact that Abdullah could have examined Jane about the restraining order while she was on the stand. Moreover, when the parties presented their proposed stipulation, the trial court excised two sentences because they were instructions, not stipulated facts. Neither party objected, nor did the defense object when the prosecutor, not the court, presented the pared-down stipulation to the jury. We find nothing improper about the court's treatment of the stipulation, and Abdullah cites no authority suggesting any error.
In his opening brief, Abdullah intimates that the trial court never instructed the jury not to speculate about why Abdullah was prohibited from possessing a gun, which is untrue. As Abdullah's reply brief acknowledges, jury instructions delivered prior to deliberations included an instruction not to speculate about why the order prohibiting Abdullah from having a firearm was made. We reject Abdullah's assertion that this instruction came too late to be of any use.
Finally, if error was committed in connection with the restraining order evidence, we conclude it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Abdullah argues that it is reasonably likely the jury convicted him of offenses arising out of the 2018 incidents because they knew about the restraining order against Doe. We disagree. Abdullah does not dispute that his convictions are supported by ample evidence that is wholly unrelated to the fact that Doe was granted a restraining order. To be sure, the defense strategy was to make this a case about credibility, and it used that same strategy to dispute evidence of prior domestic violence against Doe. But the primary focus was on the credibility of the witnesses who testified about the March 2018 incidents. Indeed, neither party mentioned Doe's restraining order during their closing arguments to the jury.
III. Analysis of Decision to Excuse Doe
Abdullah contends the trial court mishandled Doe's last-minute revelation that she would not testify against Abdullah. In presenting his argument, Abdullah appears to challenge three acts or omissions by the trial court: (1) ostensibly holding Doe in contempt; (2) failing to ascertain whether Doe could invoke a legitimate privilege; and (3) failing to require Doe to appear before the jury to refuse to testify. We address each issue separately to clarify why Abdullah's arguments lack merit.
First, the trial court did not hold Doe in contempt, nor was it required to do so in order to conclude she was unavailable to testify. (People v. Lawson (2020) 52 Cal.App.5th 1121, 1129-1130 [sexual assault victim may be deemed unavailable without holding her in contempt].)" 'Trial courts "do not have to take extreme actions before making a finding of unavailability." '" (Id. at p. 1130.) Rather, the court must make a reasonable effort under the circumstances to induce the witness to testify, and that inquiry must take account of section 1219 of the Code of Civil Procedure (Lawson, at pp. 1128 & 1130), which provides that a court shall not imprison a victim of a sexual assault or a domestic violence crime for contempt when the contempt consists of refusing to testify about that assault or crime. (Code Civ. Proc., § 1219, subd. (b).) Further, the court is not required to take other measures against a victim of a domestic violence crime who refuses to testify "when' "it is obvious that such steps would be unavailing." '" (Lawson, at p. 1130.) Applying these principle, we conclude that the trial court made a reasonable effort under the circumstances to induce Doe to testify in this case.
Turning to the second alleged error, Abdullah contends it is "fundamental" that when a witness refuses to testify, the trial court must "find out whether the witness is relying on a recognizable privilege." But Doe's refusal to testify in spite of the court's order effectively moots the question of whether the court's order that she testify was correct. In any event, Abdullah cites cases that address a materially different issue-the particularized inquiry a court must undertake after a witness invokes his or her privilege against self-incrimination. (See e.g. People v. Lucas (1995) 12 Cal.4th 415, 454 (Lucas).)
In this case, Doe did not invoke her right against self-incrimination as a basis for refusing to testify against Abdullah. Before the court examined Doe, the prosecutor and defense counsel both confirmed to the court that Doe was the former wife of Abdullah. The prosecutor added that Doe considered herself to be Abdullah's current wife. Then, when the court questioned Doe, she repeatedly stated that she did not want to testify against her "husband." These circumstances explain why the court and parties proceeded as though Doe was attempting to invoke a marital privilege that did not apply. (See People v. Catlin (2001) 26 Cal.4th 81, 130 [marital privilege applies only when marriage is valid].)
Abdullah contends the trial court should have solicited the views of counsel as to whether Doe's refusal to testify was based on a valid privilege, citing to Lucas, supra, 12 Cal.4th at p. 454, which imposes no such requirement. Regardless, the trial court did consult counsel repeatedly throughout the process. The only time the court instructed defense counsel to stop talking was when it appeared to the court that counsel was actively discouraging Doe from complying with the court's order to answer the attorneys' questions. Abdullah also intimates that the trial court erred by failing to appoint counsel for Doe, but this suggestion is unsupported by analysis or case authority. In any event, the record shows that Doe was represented by counsel when she refused to testify at trial, as we have discussed.
Abdullah's third objection pertains to the fact that Doe was not required (or allowed) to refuse to testify in front of the jury. The court made this ruling to protect Abdullah because requiring Doe to appear in front of the jury risked unfairly prejudicing the defense by creating the impression that Doe was afraid to testify against Abdullah. This ruling was not an error. Section 913 precludes the trier of fact from drawing an inference from a witness's claim of privilege regarding "any matter at issue in the proceeding." As a general rule, having a witness exercise her privilege in front of the jury is improper because it invites the jury to make an inference from the invocation of the privilege. (Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th 948, 981 [collecting cases].) Therefore, for example, our supreme court "repeatedly ha[s] rejected the argument that a trial court commits error in denying a request that a witness who intends to invoke the privilege against self-incriminating be compelled to do so in the presence of the jury." (People v. Williams (2008) 43 Cal.4th 584, 629.)
Abdullah acknowledges that if a witness has a legitimate privilege not to testify, that right should not be exercised in front of the jury. (Citing People v. Mincey (1992) 2 Cal.4th 408, 441.) But he argues that a different rule applies when the witness attempts to invoke an invalid privilege, and that he was prejudiced by the court's ruling in this case because the jury could properly have interpreted Doe's refusal to testify as proof that she had obtained the restraining order by making false or exaggerated accusations against Abdullah. First, Abdullah forfeited this argument by failing to make it in the trial court. Second, section 913 precludes drawing any inference from the exercise of a privilege about a matter at issue in the proceeding, without a qualification that the claim of privilege must be valid.
Abdullah relies on People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez). In that case, the defendant was convicted of multiple felonies committed for the benefit a criminal street gang. One issue on appeal was whether the trial court erred by permitting the prosecutor to call a member of the defendant's gang as a witness despite knowing that the witness would refuse to testify by invoking a privilege against self-incrimination. (Id. at pp. 1553-1554.) The Lopez court rejected the claim of error, finding that the trial court had concluded correctly that the witness did not have a valid Fifth Amendment right not to testify, and that the jury was entitled to consider the witness's improper claim of privilege because it supported the opinion of the prosecution's gang expert that "gang members act as a unit to advance the cause of the gang and to protect their members." (Id. at pp. 1555-1556.) In reaching this conclusion, the Lopez court acknowledged that it is improper to require a witness to invoke a valid privilege in front of the jury, but it found no error in permitting the jury to draw a negative inference from the fact that the witness was basing his refusal to testify on an invalid Fifth Amendment claim. (Id. at p. 1555.)
The fact that the prosecutor in Lopez was allowed to call as a witness a person who refused to testify based on an invalid claim of privilege does not mean that the trial court erred by reaching a different conclusion in this case. The trial court's ruling that Doe would not be required to appear in front of the jury had nothing to do with the validity of her position; the purpose of the ruling was to protect Abdullah from the risk of the jury drawing an unfair negative inference about Abdullah. Nothing in Lopez suggests that a trial court is required to make a witness take the stand whenever he or she refuses to testify based on an invalid claim of privilege. (See e.g. People v. Perez (2016) 243 Cal.App.4th 863, 887-889 [distinguishing Lopez and precluding prosecution from asking recalcitrant witness leading questions in front of the jury irrespective of the validity of the claim of privilege].)
IV. The Claim of Prosecutorial Misconduct
Abdullah contends the prosecutor committed misconduct by cross-examining Abdullah's character witnesses about Doe's restraining order."' "A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact." [Citation.] "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."' [Citation.] '[T]o establish reversible prosecutorial misconduct a defendant must show that the prosecutor used" 'deceptive or reprehensible methods'" and that it is reasonably probable that, without such misconduct, an outcome more favorable to the defendant would have resulted.'" (People v. Navarro (2021) 12 Cal.5th 285, 332 (Navarro).)
Here, when the prosecutor cross-examined witnesses about Doe's restraining order, Abdullah did not make an assignment of misconduct or request an admonition. On appeal, he makes two new arguments, which lack merit even if they were not forfeited. According to Abdullah, (1) the prosecutor should not have broached the subject at all because the restraining order had not been admitted into evidence; and (2) even if the subject could be raised, the prosecutor erred by asking what these witnesses" 'knew'" about prior domestic violence instead of asking whether they had" 'heard'" about prior acts of violence.
Abdullah's contention that the prosecutor was prohibited from asking character witnesses about matters not already in evidence ignores the governing law. (Hawara, supra, 61 Cal.App.5th at p. 712; Tuggles, supra, 179 Cal.App.4th at p. 357.) A "defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense. 'When a defendant elects to initiate inquiry into his own character, presumably to establish that one with his lofty traits would be unlikely to commit the offense charged, an anomalous rule comes into effect. Opinion based upon hearsay is permitted. [Citations.] But the price a defendant must pay for attempting to prove his good name is to throw open a vast subject which the law has kept closed to shield him.'" (Tuggles, at p. 357.)
Of course, the prosecutor's scope of inquiry into a defendant's reputation is not unlimited; the prosecution may not ask" 'groundless'" questions or" 'take random shots at a reputation imprudently exposed.'" (Tuggles, supra, 179 Cal.App.4th at pp. 357-358.) But a "good faith belief by the prosecution that the acts or statements asked about actually happened suffices to allow questioning of the witness about their occurrence." (Ibid.; see also People v. Ramos (1997) 15 Cal.4th 1133, 1173.)
Abdullah suggests that the trial court failed to actually determine whether the prosecutor had a good faith basis for asking Abdullah's character witnesses about Doe's restraining order. (Citing People v. Eli (1967) 66 Cal.2d 63, 78 (Eli).) The trial court's obligation is to ensure there is some factual support for believing that the acts or conduct occurred. (Id. at p. 79) In this case, when the court rejected the defense's request to reconsider its ruling that character witnesses could be cross-examined about the restraining order, the court stated expressly that there was a good faith basis for asking about the matter. The record supports this ruling because by that time the prosecution had produced a certified record of the restraining order that Doe obtained. (See People v. Ramos, supra, 15 Cal.4th at p. 1174.) Moreover, although Doe did not end up testifying, she had been designated as a witness for the People, which was another indication of the prosecutor's good faith basis for believing the prior domestic violence occurred.
Abdullah contends the prosecutor did not have a good faith basis for asking about Doe's allegations of prior domestic violence because by that point in the trial the prosecutor knew that Doe was unwilling to testify about those prior acts. This argument fails because as Abdullah's own authority confirms, the prosecutor did not have to prove the prior acts occurred before she could ask about them, but only to have a good faith belief that the conduct occurred. (Eli, supra, 66 Cal.2d at pp. 78-79.)
Abdullah relies on Navarro, supra, 12 Cal.5th 285. In that death penalty appeal, the defendant argued that the prosecutor committed misconduct by making a prejudicial remark while cross-examining the defendant. (Id. at p. 335.) During the defendant's testimony, he disclosed that when he was being detained prior to trial, he had communicated with another inmate named Summer. In response to this disclosure, the prosecutor asked whether Summer was the same person who had been convicted of threatening a witness. (Ibid.) The question was "likely" improper because it appeared to have been asked solely for the purpose of suggesting to the jury that the defendant had been communicating with someone who was imprisoned for threating a witness, and "[i]t is 'well established that the prosecuting attorney may not interrogate witnesses solely "for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given." '" (Id. at p. 336.) But the question "did not constitute prosecutorial misconduct," the Navarro court found, because it "was neither deceptive nor reprehensible, nor did it infect the trial with such unfairness" as to render the defendant's subsequent conviction a denial of due process. (Ibid.)
Navarro supports our conclusion that the prosecutor did not commit misconduct under the facts presented here. The prosecutor cross-examined Abdullah's character witnesses for the legitimate purpose of impeaching their opinions that Abdullah is an honest and nonviolent person. And even if Abdullah could show that the questions were somehow improper, they were not deceptive or reprehensible, nor did they infect his trial with unfairness.
Abdullah's second objection to the prosecutor's conduct pertains to the form of the questions that the prosecutor asked about prior domestic violence. According to this argument, the prosecutor was required to ask character witnesses only if they had" 'heard'" about acts allegedly committed by Abdullah that were inconsistent with his reputation, but instead she committed misconduct by asking if the witnesses" 'knew'" about prior violent acts that Abdullah allegedly committed. As support for this argument, Abdullah cites People v. Hurd (1970) 5 Cal.App.3d 865, which permits cross-examination of a character witness by asking "have you heard" questions, but does not preclude other forms of asking for the same type of information.
A defendant who relies on evidence of his good character may present that evidence "in the form of a witness's own opinion, based on the witness's perceptions, or in the form of the defendant's reputation, based on what the witness has heard from others." (Hawara, supra, 61 Cal.App.5th at pp. 712- 713; §§ 800, 1324.) If the witness has testified about the defendant's reputation in the community, the witness may be properly impeached with" 'have you heard' questions." (Hawara, at p. 714.) But this does not mean that questions directed at what the witness actually knows are improper. (Ibid.) When opinions about the defendant's character are "based, at least in part," on the perceptions of the witness, it is "perfectly proper" to cross-examine the witness about "whether it would change their opinion if they knew or learned about instances of defendant's bad character." (Id. at p. 714.)
In the present case, the three witnesses who testified about Abdullah's good character based their opinion that Abdullah is an honest and nonviolent person on their personal observations and their knowledge of Abdullah's reputation in the community. Thus, it was "perfectly proper" to cross- examine them about whether their opinions would change if they knew or learned about the events that were alleged by Doe and resulted in the issuance of the domestic violence restraining order. (Hawara, supra, 61 Cal.App.5th at p. 714.) To the extent that the form of the questions the prosecutor asked ("did you know") was somewhat different from that in Hawara (" 'would it change your opinion if you knew' "), we are unwilling to characterize this difference as a deceptive or reprehensible method of attempting to persuade the jury. (Id., at p. 712.) Without approving the precise form of the impeachment questions here asked, we conclude they did not amount to prosecutorial misconduct.
V. The Right to Effective Assistance of Counsel
Finally, Abdullah contends that his trial counsel's failure to make or preserve objections to evidence about Doe's restraining order constituted ineffective assistance of counsel. "To establish that he was provided with ineffective assistance, a defendant must show both that counsel performed deficiently and that prejudice resulted-that it is reasonably probable he would have received a more favorable result had he received adequate representation. [Citations]. Absent a showing of prejudice, we need not consider whether counsel's performance was deficient in order to reject defendant's claim of error." (People v. Fiu (2008) 165 Cal.App.4th 360, 378.)
As discussed, evidence that a defendant was subject to a prior domestic violence restraining order is relevant under the section 1109 exception to the general rule excluding propensity evidence. And in this case, the existence of Doe's restraining order was admissible to cross-examine character witnesses and impeach Abdullah. Moreover, Abdullah's prosecutorial misconduct claim fails on the merits. Thus, even if defense counsel's handling of these matters was somehow deficient, there is no reasonable probability that the result of the proceedings would have been different if counsel had made more or different objections.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J., PETROU, J.