Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06674
SCOTLAND , P. J.
A jury found defendant James Johnson guilty of two counts of inflicting, on the parent of his child, corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)), and defendant admitted having a prior serious felony conviction. He was sentenced to an aggregate term of six years in state prison.
On appeal, defendant contends, among other things, that he was denied his right to a fair trial because the prosecutor committed misconduct during closing argument. We agree and shall reverse the judgment.
BACKGROUND
The charges were based on two separate incidents occurring on July 1, 2006, and July 31, 2006, involving Angelica Murdock, who cohabited with defendant and is the mother of their child.
A
During an argument on Saturday, July 1, 2006, defendant kicked Murdock on the back of her thigh, leaving a bruise and shoe mark.
Murdock reported the attack to a 9-1-1 operator on July 6, 2006. A recording of the call was played for the jury. Murdock said that on Saturday night, defendant kicked her on the back of the leg and caused a big bruise, locked her and her children out of the house, and ransacked her bedroom. Since then, she had been staying at a friend’s house. She called the 9-1-1 operator after defendant was observed “stalking” Murdock outside her friend’s house. Murdock wanted defendant arrested and out of Murdock’s residence. Fearing further harm from defendant, Murdock was afraid to go home “unless [she had] the police with [her].”
Officer William Connor, who met Murdock at her friend’s house and took a report about the incident, testified that Murdock told him she had been ironing her pants on Saturday evening, as she was getting ready to go out with a friend. Defendant became agitated about her going out, started yelling at her and calling her names, and then kicked the upper part of the back of her thigh from behind. The kick hurt but she did not call the police right away because this type of conduct occurred fairly often and she did not want the police involved. Connor observed that the bruise was still noticeable, and Murdock said it still hurt. Murdock said she wanted to press charges against defendant.
Murdock recanted at trial and testified as follows: Defendant had never hit her prior to the incident on July 1, 2006, when they got into an argument. Angry about the number of other women’s phone numbers that were in defendant’s phone log, Murdock hit defendant in the head with his cell phone. Defendant responded by kicking her in the back of her thigh. She did not think it was aggressive of him to kick her after she hit him. After he kicked her, she told him to leave and he did so. She had lied about defendant ransacking her bedroom. The only reason she had been locked out of the house was because her children had lost the house keys. She cried during the 9-1-1 call because she just wanted police to escort her home and defendant out of the house. On the day she spoke with Officer Connor, she was angry with defendant because he had been cheating and had borrowed the car against her wishes. She wanted him arrested because she thought police would arrest him on outstanding warrants. She did not tell Connor that the bruise on her thigh still hurt.
Photographs of the bruise on Murdock’s thigh were introduced into evidence.
B
Defendant and Murdock got into an argument on July 31, 2006, while Murdock’s father was present. Murdock suffered injuries to her face, mouth, shoulder, hip, and arms.
The next day, Officer Marty Gish was driving his patrol car when the occupants of a vehicle began flashing its lights and honking the horn to get his attention. When he pulled over, Murdock got out of the other vehicle. As soon as Gish saw Murdock, he “could tell [that] she had something going on. . . . [s]he had some -- either bruising or black eyes. It looked like she had been in a fight.” Murdock told Gish that the father of her child had beaten her the night before and that she wanted him arrested. Murdock said defendant had yelled at her and called her names and then began packing his things to leave. When he tried to take a DVD Murdock had borrowed from her cousin, she told him to leave it. Defendant then picked her up and “slammed” her onto the bed, causing both of them to fall to the floor. Defendant jumped on top of Murdock and punched her five to ten times in the face, cutting her mouth. As they got on their feet, defendant began to “box” with Murdock, throwing punches. Gish observed injuries to Murdock’s forehead, face below the right eye, right lip, chin, left bicep, left tricep, right forearm, right lower back, chest, right shoulder, right hip, and inside of her mouth. When defendant was arrested at the home, Gish did not observe any physical injuries on defendant.
Murdock recanted at trial and testified as follows: During the argument on July 31, she told defendant to “shut the fuck up.” As he was leaving, Murdock angrily told him he could not take a DVD with him. He calmly ignored her and said he was going to take it. She then blocked his exit. Defendant called Murdock’s father to help him leave, but Murdock shut the door. Murdock then pushed defendant. Defendant tried to pick her up to move her and they fell on the bed. Murdock tore defendant’s shirt and he broke away from her. As this occurred, the mattress slipped and slid off the bed. When they fell, their heads collided, which is how she hurt her face, mouth, shoulder, hip and arms. She then grabbed his pants, which slid down. Defendant pulled up his pants, got a fresh shirt, and left. Murdock denied telling Officer Gish that defendant punched her five to ten times in the face. She also testified that she bruises easily.
C
At trial, Murdock admitted she had visited defendant and had multiple telephone conversations with him while he has been in jail. She also admitted that her testimony at the preliminary hearing was inconsistent with her testimony at trial on the following topics: the number of women’s names on defendant’s cell phone log prior to the incident on July 1, 2006; whether a woman called during their July 1 argument; whether the kick to her thigh hurt; at what point she pushed defendant during the argument on July 31; at what point defendant’s pants fell; and who witnessed the incident on July 31.
Murdock’s father (Jerry) also testified at trial. He said that he was watching television when Murdock and defendant argued about a DVD and Murdock would not let defendant leave. Jerry grabbed Murdock and told her to let defendant have the DVD and go. Murdock agreed and started toward the door but then closed it, leaving only Murdock and defendant in the bedroom. Jerry could hear them talking in the bedroom. He went outside to smoke then “heard a little noise” and “hoped for the best.” Fifteen to 30 minutes later, defendant left. It appeared to have been a minor argument. He had never saw Murdock or defendant lay hands on the other and did not see injuries on either of them. A few days later, he saw faint bruises on Murdock.
DISCUSSION
Defendant claims he was deprived of the effective assistance of counsel when his trial attorney failed to object to the prosecutor’s prejudicial misconduct during closing argument when the prosecutor referred to evidence outside the record.
The prosecutor told the jury: “Many people don’t understand why domestic violence occurs in the first place, and they have an even harder time understanding why a domestic violence victim would come in here and tell you a different story, what’s called a recant, why they would change their story to protect the defendant. [¶] It’s a world that’s constantly in crisis. You don’t know when violence is going to come. When it comes, you don’t know how bad it’s going to be. And once it’s over, you are glad it’s over. But what happens in those moments of crisis, during those moments of violence, is very telling not only as to the incident itself but as to the nature of the relationship. It’s a world of chaos and uncertainty. Again, you don’t know when violence will erupt. [¶] It is a world that’s accepted as completely normal by those who live in it. Many domestic violence abusers don’t consider themselves doing anything wrong. Most domestic violence victims have grown up with it since childhood, seeing dad abuse mom, seeing dad abuse them or siblings, and that’s just the way people interact in relationships. [¶] And that’s part of what goes to explain why they come in here, because they call the police in the moment of crisis, in the moment of chaos, when they need help. But then when it comes down to it and they are sitting in the hot seat and they are faced with the criminal charges, they are no longer in danger. It’s no longer a crisis. Now it’s, how do I keep my family together.”
The prosecutor also said to the jury that prosecutors “always” give “immunity” to victims of domestic violence who recant their accusations and “[w]e would never be able to prosecute those cases if we did not give them that immunity, because then they could get up there and claim [their Fifth Amendment right to remain silent for purportedly lying to the police].”
Defendant acknowledges that, as a general rule, a claim of prosecutorial misconduct is deemed forfeited and cannot be raised on appeal where, like in this case, defense counsel did not object and seek an admonition. However, he asserts that the forfeiture rule should not apply here because the misconduct was obvious, “there could [have been] no conceivable tactical purpose for counsel to fail to object,” and, thus, ineffective assistance of counsel has been established. We agree. (See People v. Hart (1999) 20 Cal.4th 546, 624.)
Psychological evidence--such as “intimate partner battering” syndrome (Evid. Code, § 1107, subd. (f))--may be introduced to disabuse jurors of common sense misconceptions about the behavior of persons in certain affected groups. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1401.) “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a).) For example, if a victim delays complaining of an incident or, having complained, attempts to retract the complaint, such syndrome evidence may explain said behavior and would be admissible to demonstrate that the behavior is not inconsistent with the incident having occurred. (See People v. Morgan (1997) 58 Cal.App.4th 1210, 1214-1216.)
The term “intimate partner battering” syndrome is now used for what has previously been called battered women’s syndrome. (Evid. Code, § 1107, subd. (f), Stats. 2004, ch. 609, § 1.)
In this case, the prosecutor did not present any expert evidence regarding domestic violence or intimate partner battering syndrome. Nevertheless, during closing argument, the prosecutor explained to the jury some aspects of the syndrome. In doing so, he in effect acted as an expert witness, without being subject to cross-examination, in violation of defendant’s right to due process.
Contrary to the People’s argument, the prosecutor’s comments were not limited to matters of common knowledge or an illustration drawn from common experience. In fact, Evidence Code section 1107 provides for the introduction of such expert evidence to dispel common misconceptions. (Evid. Code, § 1107; see also People v. Erickson, supra, 57 Cal.App.4th at p. 1401.) The syndrome evidence is permissible to aid jurors whose lack of experience with such abuse and its effects may cause them to misinterpret counterintuitive behavior of the victim. (People v. McAlpin (1991) 53 Cal.3d 1289, 1302; People v. Morgan, supra, 58 Cal.App.4th at pp. 1214-1216.)
Indeed, when the prosecutor began his argument about domestic violence and intimate partner battering syndrome, he acknowledged his comments addressed an issue that was beyond common knowledge and experience. In his words, “Many people don’t understand why [a domestic violence victim would recant when testifying at trial].” In making this argument, he relied upon information that, although appropriate for expert testimony, was not in evidence.
A prosecutor’s reference to facts not in evidence is “‘clearly . . . misconduct’ [citation], because such statements ‘tend[] to make the prosecutor his own witness--offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 828.)
Prosecutorial misconduct requires reversal of the judgment when it “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.] ‘To constitute a due process violation, the prosecutorial misconduct must be “‘of sufficient significance to result in the denial of a defendant’s right to a fair trial.’”’ [Citations.]” (People v. Bell (1989) 49 Cal.3d 502, 534.)
Such was the case here. The jury’s assessment of Murdock’s credibility at trial was pivotal to the prosecution of defendant, and it is reasonably probable that the prosecutor’s explanation for Murdock’s inconsistent conduct and testimony swayed the jury to disbelieve the version of events she relayed at trial. (People v. Brown (2004) 33 Cal.4th 892, 903 [properly introduced, syndrome evidence is relevant to a victim’s credibility because it dispels many commonly held misconceptions about battered women]; People v. Morgan, supra, 58 Cal.App.4th at p. 1215 [such evidence can explain inconsistencies in a victim’s testimony or conduct].)
We cannot conclude, as suggested by the People, that the effect of this explanation was dispelled by the general jury instruction that arguments of counsel are not evidence. The improper argument was of such significance, it resulted in the denial of defendant’s right to a fair trial, and there is no conceivable tactical reason for defense counsel’s failure to object to the improper argument. Therefore, the judgment must be reversed, and we need not address defendant’s other claims of error.
DISPOSITION
The judgment is reversed, and the matter is remanded to the Superior Court for a new trial.
We concur: BLEASE , J., HULL , J.