P. v. Barragan

Filed 8/15/06 P. v. Barragan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James A. Edwards, Judge. (Retired judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed.

David Blair-Loy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General.

INTRODUCTION

In this domestic violence case, defendant Mario Ramos Barragan was charged with seven crimes upon his wife, Ana: (1) assault by means of force likely to produce great bodily injury (Penal Code^[1] § 245, subd. (a)(1)); (2) corporal injury upon a spouse (§ 273.5, subd. (a)); (3) attempting to dissuade a witness (§ 136.1, subd. (c)(1)); (4) spousal rape (§ 262); (5) assault with intent to commit rape (§ 220); (6) false imprisonment (§ 236); and (7) violation of a protective order (§ 273.6, subd. (a)).

A jury convicted defendant on all charges and he was sentenced to seven years and four months in state prison.^[2] He appeals, contending (1) the trial court had a sua sponte duty to caution the jury on the proper use of battered women's syndrome evidence; (2) it was error to allow the prosecution's expert to express a direct opinion of defendant's guilt; (3) the trial court should have excluded unnecessarily graphic testimony; (4) the trial court erred in imposing a court security fee; and (5) the trial court's sentencing scheme was unconstitutional. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Ana testified that she met defendant in 1996. She moved into his home but he began to be abusive in 2001. Nevertheless, they got married in 2002. The charged crimes occurred on March 30, 2003.

On March 29, 2003, defendant began drinking early, and left in an angry mood. Ana called him and asked him to take her to a drive-in theater. Defendant returned home and they went to the drive-in. Defendant wanted to have sex in the car, but Ana resisted him. Defendant got upset and in a reckless manner drove home from the theater.

Ana waited until she thought defendant was asleep and then went to bed. Defendant then awoke and forced her to have sex with him. The next morning defendant began drinking again and left the house. Defendant returned in the afternoon, and was angry that Ana had not answered his telephone calls. He again had forcible sex with her, against her wishes. They then went to a restaurant for a family dinner and defendant was again drinking heavily. They went to a second restaurant and defendant got angry at her.

When they got home, defendant tried to touch her and she pushed his hand away. He then struck her in the right eye. He jumped on her and began strangling her. She was able to escape and tried to pick up the telephone. Defendant took the telephone away and threw it down. After he took the telephone away, he hit her in the stomach. He then bit her on the arm. He threatened to kill her if she called the police. She told him she was going to the hospital and he agreed to take her if she told the hospital employees she injured herself falling down. Ana told the examining nurse that defendant had hit her and defendant was eventually arrested.

As noted above, defendant was convicted of all charges, and defendant does not challenge the sufficiency of the evidence to support the convictions.

DISCUSSION

A. Expert Testimony on Battered Women Syndrome

Defendant first contends that the trial court had a sua sponte duty to caution the jury on the proper use of testimony on battered women's syndrome. After an Evidence Code section 402 hearing, the trial court found that Detective Wheeler of the Riverside Police Department was qualified to testify concerning domestic violence. Detective Wheeler testified that it was common for domestic violence victims to be abused and not report the abuse to the police. He also testified about the power and control elements in an abusive relationship. The officer testified concerning a typical cycle of violence in such cases. He further testified that abusers can use rape as a punishment. In response to a hypothetical question, the officer opined that the situation here is a domestic violence situation.

Although the jury was instructed regarding expert testimony by the giving of CALJIC No. 2.80, defendant contends that the trial court should have given CALJIC No. 9.35.1 sua sponte.^[3]

Defendant relies on People v. Housley (1992) 6 Cal.App.4th 947 (Housley). In that case, a grandfather was accused of raping his granddaughter. A psychologist testified concerning behavior common to sexual abuse victims. (Id. at p. 954.) The appellate court found that â€