P. v.
Filed 1/2/13 P.
v. Anderson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(Siskiyou)
THE
PEOPLE,
Plaintiff and Respondent,
v.
DARREL
MARK ANDERSEN,
Defendant and
Appellant.
C065054
(Super. Ct. No. MCYKCRF
07-001969)
The
trial court granted probation to defendant Darrel Mark Andersen following his
convictions for dissuading a witness by
force or threat (Pen. Code, § 136.1), assault with a firearm (Pen. Code, §
245, subd. (a)(2)), misdemeanor spousal
battery (Pen. Code, § 243, subd. (e)(1)), and misdemeanor battery (Pen.
Code, § 242).
name="_ftnref1" title="">[1] The jury found defendant not
guilty of spousal rape, corporal injury to
a spouse, criminal threats, corporal injury to a child, false imprisonment by
violence, and cruelty to an animal.
The two misdemeanor battery convictions were lesser included offenses to
the charged offenses of corporal injury to a spouse and corporal injury to a
child.
The
victims were defendant’s wife, Tina, and daughter, Bailie. Defendant’s son Beau no longer lived at home. Defendant was a Highway Patrol officer.
Defendant
argues the trial court erred when it excluded evidence that Tina had been in a
mental hospital 15 years earlier, and that he was not sufficiently informed of
the charges against him with respect to the crime of
violation of his right of confrontation because the record does not support his
claim that Tina was in a mental hospital, or if she was hospitalized, the
record does not indicate the nature of such hospitalization. We shall further conclude that defendant
forfeited his claim that he did not receive notice of the charges against him
when he did not raise the issue below.
Defendant
also makes several claims of instructional error, all of which we shall
conclude are without merit. We shall
therefore affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Between
2003 and 2006, Tina Anderson called the Siskiyou County District Attorney’s
Office twice and spoke to a victim witness advocate. Tina said she was a victim of domestic
violence and asked what the office could do for her. When the advocate asked whether she had
reported the violence to law enforcement, Tina said no, “because he is law
enforcement.†Tina told the advocate she
could not leave and go to a shelter because she could not leave her children,
she had no job, she had no way to support herself, and she had no friends.
On
November 15,
2005, police were dispatched to defendant’s
house. Sergeant Raymond Boutin, then
Officer Boutin, testified that he could tell by the face of defendant’s
children that both had been crying before the officers arrived. Tina told Boutin that she had been abused by
defendant. He asked whether she had any
injuries, and she replied that she did not have any that he could see. She later explained she had injuries, but she
was afraid to show the officer because defendant was there, and he might have
“gone berserk and killed all of you.â€
She was mistrustful of the police because defendant was in law
enforcement. Defendant was not arrested.
On
September 3,
2007, Sergeant Shelley Barlow, defendant’s
supervisor, went to defendant’s house to do a welfare check. Barlow had received a call from Tina’s
father, Richard Gervassio. Gervassio
relayed that defendant called him and told him Tina was in the hospital dying,
then hung up. Gervassio requested Barlow
go to the house to check on Tina.
Barlow
and some other officers went to defendant’s house and knocked. No one answered the door. Defendant’s daughter, Bailie, testified
defendant was at home when Barlow knocked on the door, and instructed them not
to answer. Barlow left, but returned
shortly thereafter, when she confirmed through Gervassio that Tina was in the
house. By this time defendant had left
the house.
Bailie
opened the door to the officers. They
found the house completely dark. Barlow
went to the back bedroom, following the sound of a woman crying and ranting
hysterically. The room was completely
dark, with blinds that were covered with dark curtains. Barlow opened some curtains and saw Tina,
dressed all in black, lying on the bed.
She was hysterical, screaming and crying, and there were many used
tissues beside her. When she saw Barlow,
she started screaming at Barlow to help her.
Tina
told Barlow that defendant had been abusing her for 24 years, and that Barlow
did not “know who you’re dealing with.â€
Tina did not appear injured. Tina
insisted she was not crazy, and that she had books and pictures to prove that
she had been abused. Tina then passed
out, possibly from hyperventilation.
Barlow saw a small bruise on Bailie’s arm, which Bailie said was from a
prior altercation with her father.
When
the medics came and asked Tina what medication she was taking, she named heart
medication and some mental health medications.
She said, “I wasn’t like this before.
Mark did this to me.†Tina was
taken to the hospital and sedated.
Bailie
told officers that her father had physically and mentally abused her mother,
and that they were held hostage by money and threats of being homeless. Bailie relayed one incident when her father
had rubbed her mother’s face in the carpet because she had not properly
vacuumed it.
Lieutenant
David Gamache, then Sergeant Gamache, interviewed Tina at the hospital. She told Gamache that she had been
and forcibly raped 50 times over the past 24 years. She said defendant had also physically abused
Bailie. Bailie admitted having injuries
that were inflicted during a family dispute.
Bailie showed Gamache a light bruise approximately the size of a dime on
Bailie’s arm.
Barlow
had her department look for defendant.
The police put out a county-wide BOLO (be on the lookout). Defendant was not found that night, but he
reported for work the next morning, at which time he was arrested.
Boutin
conducted videotaped interviews of Tina, Bailie, and Beau. The recorded interviews were played for the
jury. They recalled an incident in which
Tina was cooking for Easter. She had
some meat in the oven and some more defrosting in the kitchen sink. She forgot to turn off the sink, and the
water spilled over. Defendant started
screaming at her and shoved her across the kitchen floor. She hit her head on the refrigerator.
Tina
testified at trial about another occasion when defendant hit her with a drill
when she damaged the wall while installing a cable line. He hit the top of her foot and punched her in
the arm. Tina took a picture of her
to the jury.
On
another occasion defendant got upset over a telephone bill and shoved Tina into
a closet door. The closet came off its
hinges. This left her with a bruise on
her breast.
Another
time Tina was helping move a set of box springs into the bedroom when defendant
ripped them out of her hands, leaving splinters in her hands.
On
another occasion the family went to a restaurant with friends. The friends were talking about getting older
and losing their hair. One of them said
defendant did not look like he would lose his hair. Tina replied that he was going a little bald
on top. This angered defendant and he
kicked Tina in the shin, causing a large bruise.
On
September 3,
2007, when defendant saw his boss at the
door he grabbed Tina’s arm and asked rudely if she had called the police. He gripped her arm so hard it left a red mark
that later turned into a bruise.
The
above incidents were the basis of the count two, misdemeanor spousal battery
charge.
Count
three, dissuading a witness, was based on the following testimony. Bailie and Tina testified that sometime
between October 2004 and September 2007, defendant told Tina that if she ever
left him or called the police, “you’ll be dead before they get here.†When Tina threatened to call the police he
responded, “I am 911.†Defendant
constantly threatened to withhold financial support, and told Tina and Bailie
that if they left it would be with nothing more than the shirts on their backs.
The
basis for the count five misdemeanor battery on Bailie was an incident
occurring the week before police officers responded to her home on September 3,
2007. She testified that defendant
grabbed her arm hard, left a bruise, and tore her rotator cuff.
Count
seven alleged assault with a firearm on Tina.
This incident occurred Christmas Eve, 2006. Defendant, Bailie, and Tina were sitting in
the same room. Tina asked defendant if
he could just be nice and they could have one nice holiday. Defendant left the room and got a gun from
under the bed. Bailie and Tina went
after defendant. He had the gun in his
hand and said he was going to kill himself.
It was not the first time defendant had threatened to kill himself with
his gun. Then defendant pointed the gun
at Tina’s stomach with his finger on the trigger. Finally after about 10 minutes, he let go of
the gun.
Defendant
testified in his own defense that Tina had a lot of mental problems, but that
he did not want to leave her because he loved her and he was her sole
support. He denied any violence against
her or Bailie, saying instead that they were the ones who attacked him.
DISCUSSION
I
Evidence of Tina’s Mental Hospital Commitment
During
opening statements, defense counsel made the following statement: “When the two kids were two and four years
old [i.e., approximately 1992 or 15 years before defendant’s arrest], Tina was
committed to a mental hospital because of mental issues.†The prosecutor objected to the statement as
irrelevant and not proper. The trial
court asked counsel to approach the bench.
The prosecutor stated: “There’s
no discovery. We don’t litigate by
ambush.†A discussion was held off the
record. Afterward, the court ordered the
last comment stricken.
The
record contains no offer of proof that Tina was ever committed to a mental
hospital, and consequently no information as to the nature of any such
commitment. Defendant did not make a
later motion to admit the evidence or attempt in any way to introduce the
evidence. Defendant did not argue in his
motion for new trial that the trial court committed an error of law in refusing
to admit the evidence.
name="_ftnref2" title="">[2] (See § 1181 [the court may
grant a new trial if it has erred in the decision of any question of law
arising during the course of the trial].)
Now, however, he argues it was an abuse of discretion and a denial of
his right to confront the witnesses against him to exclude evidence of Tina’s
history of mental treatment, mental disorders, and mental issues.
“[T]he
right to confrontation is a trial
right, designed to prevent improper restrictions on the types of questions that
defense counsel may ask during cross-examination.†(Pennsylvania
v. Ritchie (1987) 480 U.S. 39, 52 [94 L.Ed.2d 40, 54].) The confrontation clause protects a
defendant’s right to ask the witness questions pertinent to his or her
credibility. (People v. Anderson (2001) 25 Cal.4th 543, 577, fn. 11.) Not every restriction of a defendant’s method
of cross-examination is a violation of the defendant’s right to
confrontation. (People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) “Within the confines of the confrontation
clause, the trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance. [Citations.] California law
is in accord. [Citation.] Thus, unless
the defendant can show that the prohibited cross-examination would have
produced ‘a significantly different impression of [the witnesses'] credibility’
[citation], the trial court's exercise of its discretion in this regard does
not violate the Sixth Amendment.†(People
v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another point in
421, fn. 22.)
We
do not find the trial court abused its discretion in violation of the Sixth
Amendment, because defendant has not shown that a significantly different
impression of Tina’s credibility would have been produced by the introduction
of evidence of Tina’s prior commitment to a mental health facility. Defendant is unable to make such a showing
because the record contains no indication that Tina actually was committed to a
mental health facility, or for what condition any such commitment was
made. Only a commitment impacting Tina’s
credibility and reliability as a witness would have been relevant to impeach
her testimony. As Justice Kennard stated
in her concurring opinion in People v.
Anderson, supra, 25 Cal.4th at page 609, “a mental illness that causes
hallucinations or delusions is generally more probative of credibility than a
condition causing only depression, irritability, impulsivity, or anxiety.†In addition, where, as here, the commitment
was remote in time, and there was no testimony that Tina currently suffered
from the condition for which she was earlier committed, the court may be
justified in disallowing such cross-examination. (Id.
at pp. 608-609)
Furthermore,
defendant was successful in casting doubt on Tina’s credibility. There was evidence that when officers
responded to her home on September 3, 2007, she was hysterical, and that she
had to be restrained and sedated when she was taken to the hospital. Defendant testified that Tina had “a lot of
mental problems,†that she was on medications, and that she had seen a lot of
therapists and doctors for many years.
One of the jury’s questions to the court was: “If we can not agree on who to believe what
do we do?â€
Defendant
has not shown there would have been a significantly different impression of
Tina’s credibility had evidence of her commitment for an unspecified mental
illness been allowed. Accordingly, we
cannot say the trial court abused its discretion in violation of defendant’s
confrontation rights.
II
Lack of Notice Argument Forfeited
Defendant
argues his conviction for dissuading a witness (count three) must be reversed
because the time frame alleged in that count was a period of three years, and
he had no reasonable notice of what conduct was alleged as the basis of that
count. The amended information alleged
that defendant: “on or about October 1,
2004 through September 3, 2007, did willfully, unlawfully, knowingly and
maliciously do an act described in subdivisions (a) and (b) and such act was
accompanied by force and an express and implied threat of force and violence
upon T.M.A., d.o.b. 1-21-59 and a third person and the property of a victim,
witness and third person, in violation of Section 136.1(c)(1) of the California
Penal Code, a felony.â€
Defendant
did not object to lack of notice of the charges against him below. An objection to lack of notice of the charges
must be raised in the trial court and cannot be raised for the first time on
appeal. (People v. Seaton (2001) 26 Cal.4th 598, 641.) Furthermore, defendant waived a preliminary
hearing. “[H]aving foregone the use of a
preliminary
hearing—‘the touchstone of due process notice
to a defendant’ [citation]—defendant has forfeited his right to complain on
appeal that he was provided with insufficient notice of
the charges against him.†(People
v. Butte (2004) 117 Cal.App.4th 956, 959.) It is too late for defendant to assert this
objection for the first time on appeal.
III
Instructional Error
Defendant
claims four of the standard instructions given were in error.
A. Obtaining False Testimony
First,
defendant claims the standard instruction given on obtaining false testimony
was error because there was no evidence in the record to support it. The instruction given was as follows:
“If
the defendant tried to create false evidence or obtain false testimony, that
conduct may show that he was aware of his guilt. If you conclude that the defendant made such
an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot
prove guilt by itself.â€
It
is error to give an instruction which has no application to the facts, even if
the instruction correctly states a principle of law. (People
v. Guiton (1993) 4 Cal.4th 1116, 1129.)
In this case, however, there were facts to which the instruction was
applicable.
Bailie
testified that defendant told Beau he would “buy him a new car and take him out
places and stuff.†She said Beau told
her defendant was going to get him a new car after the trial, and that Beau
kept asking her to take her restraining order off of her father so her father
could get his job back and give Beau a car.
When
Beau was asked about this, he said his dad never said he would buy him a
car. He said his father’s family was
going to try to help him with transportation.
Either way, there was “some evidence in the record which, if believed by
the jury, [would] sufficiently support the suggested inference.†(People
v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on another ground by
750, 762-763.) Thus, there was no error
in giving the instruction.
B. False Statement as Consciousness of Guilt
Second,
defendant argues the trial court erred in giving the following instruction:
“If
the defendant made a false or misleading statement related to the charged crime
knowing the statement was false, or intending to mislead, that conduct may show
he was aware of his guilt of the crime and you may consider it in determining
his guilt. If you conclude that the
defendant made the statement, it’s up to you to decide its meaning and
importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.â€
Defendant claims the instruction was
erroneous because the instruction must refer to a false statement to police
prior to trial, not to a defendant’s trial testimony.
in People v. Beyah (2009) 170
Cal.App.4th 1241, 1248-1249 (Beyah),
in which the court stated its “doubt that the CALCRIM Committee intended
CALCRIM No. 362 to be used as it was here:
to permit an inference of consciousness of guilt based on knowingly
false or intentionally misleading statements in a defendant’s trial testimony.â€
However,
Beyah concluded that the defendant “
because California
that a defendant's
false trial testimony
may, in proper
circumstances, be
of consciousness
supra, 170 Cal.App.4th at p. 1249.)
The court explained that “CALCRIM No. 362 did nothing more than state
this principle, i.e., that if the jury concluded that defendant intentionally
gave false or misleading testimony, it may
infer that defendant is aware of his guilt and may consider that inference—along with other evidence—in
determining defendant's guilt. And
although it might be said that the instruction singles out a defendant's
testimony as subject to heightened scrutiny compared to other witnesses, that
is true only because the principle involved is uniquely applicable to the
defendant. That is not, however, a
legitimate ground for concluding that the instruction unconstitutionally
burdened defendant's choice to testify or resulted in any improper inference of
guilt based on the jury's evaluation of his testimony.†(People v. Beyah, supra, 170
Cal.App.4th at p. 1250, fn. omitted.)
The
instruction given used permissive, rather than mandatory language. A trier of fact may properly infer
consciousness of guilt from a defendant's false trial testimony. (People v.
Showers (1968) 68 Cal.2d 639, 643; Beyah, supra,
at pp. 1249-1250.) Furthermore, by
cautioning the jury that “evidence that the defendant made such a [false or
misleading] statement cannot prove guilt by itself,†the instruction precluded
any harm. We presume the jury understood
and followed the instruction given. (
139.) The trial court did not
prejudicially err in giving the instruction.
C. Flight as Awareness of Guilt
Third,
defendant argues the trial court erred by giving the standard instruction that
flight may show an awareness of guilt.
The court gave the following instruction:
“If
the defendant fled immediately after the crime was committed, that conduct may
show that he was aware of his guilt. If
you conclude that the defendant fled, it is up to you to decide the meaning and
importance of that conduct. However,
evidence that the defendant fled cannot prove guilt by itself.â€
Defendant
argues there was no evidence in the record to support this instruction. He claims that the instruction had to refer
to his leaving the house when his supervisor, Barlow, came to the house to
check on Tina. Defendant testified at trial
that he did not answer the door when Barlow knocked because he had been crying
and was embarrassed, and because he did not have a key to the deadbolt. Contrary to Bailie’s testimony that he
forbade her to open the door, he claimed he told Tina to have Bailie to open
the door.
Defendant
argues the circumstances did not suggest that his leaving the house was
motivated by a consciousness of guilt.
He notes that he reported for work the next morning in a normal fashion.
“A
flight instruction is proper whenever evidence of the circumstances of
defendant's departure from the crime scene or his usual environs, or of his
escape from custody after arrest, logically permits an inference that his
movement was motivated by guilty knowledge.â€
(People v. Turner (1990)
50 Cal.3d 668, 694.) The prosecution is
not required to prove that the defendant departed the scene in order to avoid
arrest. (People v. Bonilla (2007) 41 Cal.4th 313, 328.) The prosecution is entitled to the
instruction if a jury could find that the defendant fled the scene and could
permissibly infer a consciousness of guilt from the evidence. (Ibid.)
The
inference that defendant was conscious of his guilt was permissible from the
fact that he left his house immediately after law enforcement officers knocked
on the door. That other inferences were
also permissible is not determinative.
It was not error to give the flight instruction.
D. Mutual Combat
Fourth,
defendant argues the trial court erred by reading the standard instruction on
mutual combat. The instruction was as
follows:
“A
person who engages in mutual combat or who is the initial aggressor, has a
right to self defense only if he actually and in good faith tries to stop
fighting, he indicates by word or by conduct to his opponent in a way that a
reasonable person would understand that he wants to stop fighting and that he
stopped fighting and he gives his opponent a chance to stop fighting.
“If
a person meets these requirements, he has a right to self defense if the
opponent continues to fight. A fight is
a mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claimed self defense arose. The right to use force in self defense continues
only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer
appears capable of inflicting any injury, then the right to use force ends.â€
The
instruction was apparently given because of defendant’s claim that he never
hit, punched, kicked, or choked Tina, although he may have hurt her when he
grabbed her in self-defense. Defendant
argues the mutual combat instruction (CALCRIM No. 3471) is to be given only for
cases of true mutual combat, such as a duel or other mutually arranged combat. He relies principally on People v. Ross (2007) 155 Cal.App.4th 1033, in which the court held
that “mutual combat†means an express or implied agreement to fight, and that
the instruction should not be given unless there is evidence from which the
jury could reasonably find that both combatants actually consented or intended
to fight before the claimed occasion for self-defense arose. (Id.
at pp. 1046-1047, 1052.)
We
find no error because the instruction is correctly given where, as here, there
is evidence defendant was the aggressor.
Bailie testified she never saw her mother be the aggressor against
defendant.
Furthermore,
any error in giving the instruction on mutual combat was technical error
only. “[G]iving an irrelevant or
inapplicable instruction is generally ‘ “only a technical error which does
not constitute ground for reversal.†’
[Citation.]†(
67.) When the court gives a correct
instruction that has no application to the facts of the case, the error “does
not appear to be of federal constitutional dimension.
. . . [¶] The error is
therefore one of state law subject to the traditional Watson test (People
v. Watson (1956) 46 Cal.2d 818, 836) applicable to such
error. . . . Under Watson,
reversal is required if it is reasonably probable the result would have been
more favorable to the defendant had the error not occurred. [Citation.]â€
(People v. Guiton,
supra, 4 Cal.4th 1116, 1129-1130.)
Unlike
the instruction in People v. Ross, supra, 155 Cal.App.4th at page 1043,
footnote 9, upon which defendant relies, the instruction here contained the
legal definition of the term “mutual combat.â€
The jury was instructed that, “[a] fight is a mutual combat when it
began or continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claimed self defense arose.†The jury would not have believed that the
mutual combat portion of the instruction applied to the incidents described by
Bailie and Tina. Neither would the jury
have believed the instruction applicable to defendant’s version of events. He largely denied the specific incidents to
which Tina and Bailie testified. To the
extent he claimed self-defense, it was when Tina or his daughter hit him, and
he grabbed them to keep them from hitting him.
DISPOSITION
The
judgment is affirmed.
BLEASE ,
Acting P. J.
We
concur:
HULL ,
J.
HOCH ,
J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] Defendant brought a motion
for new trial on the ground of juror misconduct.
