P. v. Contreras

Filed 12/10/08 P. v. Contreras CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.

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PROCEDURAL HISTORY

On September 10, 2007, the Kern County District Attorney filed an information in superior court charging appellant Javier Contreras with infliction of corporal injury resulting in traumatic injury upon his spouse (count 1; Pen. Code,  273.5) and assault with a deadly weapon, a skateboard (count 2; Pen. Code,  245, subd. (a)(1)). A jury returned guilty verdicts on both counts. With respect to count 1, the jury found Contreras guilty of battery against a spouse (Pen. Code,  243, subd. (e)(1)), a lesser-included offense.

On January 22, 2008, the superior court denied Contrerass motion for a new trial and to reduce count 2 to a misdemeanor. On the same date, the court suspended imposition of sentence, granted Contreras three years formal probation as to count 1, and imposed one year in jail on count 2. The court imposed a term of 90 days as to count 1 and directed that term to run concurrent to the term imposed on count 2. The court also imposed various fines and directed Contreras to complete counseling.

FACTUAL HISTORY

On July 28, 2007, Bakersfield Police Officer Fred Torres received a 2:30 a.m. call to respond to a residential complex at Haley and Flower Streets. Upon arrival, Torres met with Barbara Contreras, who had placed the 911 call. Barbara was standing in the parking lot of the complex. She was barefoot, shaking, crying, and had a visible injury to her left leg. A cloth wrapped around the leg was saturated with blood, and dried blood was streaked down her leg to her foot. The left side of her forehead was swollen and bruised. One of her eyes was dark red and her nose also appeared red. Torres detected a slight odor of alcohol on her breath.

According to Torres, Barbara complained of pain in the reddish areas and said Contreras had punched her. Barbara also said Contreras had pushed her down the stairs on the front porch and hit her three times with a skateboard that was at the top of the stairs. When Barbara tried to get up, Contreras punched her in the face and head and fought her like a man. Barbara said at that point she ran to the apartment complex at Flower and Haley.

Barbara told Officer Torres that she and Contreras never had any prior instances of domestic violence. Torres offered to call an ambulance for Barbara, but she declined. After Torres interviewed Barbara, he and his partner, Officer Juarez, went to the Contreras residence, but Contreras was not present. The officers found a food tray and food scattered on the porch, but no skateboard.

Later in the morning, Barbaras cousin, Melissa Comacho, accompanied Barbara to the hospital where medical personnel inserted several stitches to close an inch-long gash on Barbaras shin. Later that day, Barbara called Contreras and said the police were looking for him. At trial, Barbara explained that she did not want the case prosecuted.

On July 31, 2007, Contreras turned himself in at Bakersfield Police headquarters. After being read his Miranda rights by Officer Andrew Ferguson, Contreras said he and Barbara went to a party on the date of the incident. Since there were no other females at the party, Contreras asked Barbara to go home. Barbara left and Contreras returned home at 1:30 a.m. Upon arriving, Contreras became upset because Barbara was not present. Barbara returned home at 2:00 a.m. She had changed clothes and looked dressed up. Barbara denied going out but Contreras called her a liar and told her to go inside the house. When she refused, Contreras thought he would need to get aggressive with her.

Contreras claimed that Barbara fell backward. He then tripped over a skateboard, became angry, and threw it; however, he did not believe he hit Barbara with the skateboard. When Officer Ferguson said Contrerass explanation was inconsistent with Barbaras injuries, Contreras chuckled and said, She falls. She falls a lot. Contreras told Ferguson he knew Barbara was going to call the police. He left because he wanted to sleep it off before officers arrived.

At trial, Barbara testified that she and Contreras had been married six years and lived with their two children at the apartment complex. On July 27, 2007, the entire Contreras family went to a park at 7:00 p.m. for a softball game and a barbecue. Melissa also attended. During the barbecue, Barbara drank one beer and Contreras had two or three beers. By 10:00 p.m., most of the women had left the barbecue and Contreras told Barbara to take their children home. Barbara, Melissa, and the children left the park with a tray of leftover barbecue rice, and Contreras remained with five male friends.

Barbara took the children to her mothers house and then went to a bar with Melissa. They split two pitchers of beer and left at 1:30 a.m. when the bar closed. When Barbara returned home, she took the tray of rice from the car and began to walk toward the house. Contreras was sitting on the porch at the top of the stairs when Barbara arrived. He was upset and seemed to be under the influence of alcohol. He asked Barbara, Where the fuck have you been? He then asked why she was not at home and where the children were. Barbara said she wanted to leave but Contreras did not want her to go because she had been drinking. Contreras tried to take the car keys from her and they struggled. During the struggle, Barbara said she lost her balance, fell down the porch stairs, and landed on her sons skateboard at the bottom of the staircase. Barbara said Contreras attempted to help her up but she cursed at him, told him she was going to call the police, and walked up the street.

Contrerass brother, Juan, arrived as Barbara was leaving. Juan lived in the residence behind Contreras and Barbaras home. Juan accompanied Barbara as she walked up the street. During the walk, Barbara called Melissa to pick her up and then called the police because she was angry with Contreras. Barbara told the responding police officer that Contreras had hit her three times with their sons skateboard. She testified she lied to police because she had been drinking, was angry with Contreras, and wanted to get him into trouble.

Defense

Melissa testified that she met Contreras and Barbara at the barbecue at about 9:00 p.m. on July 27, 2007. Before she and Barbara left the barbecue, they talked about going out to a club later in the evening. They left the baseball park in their own cars. First they drove to Barbaras mothers home and dropped off the children. Then they drove back to Barbaras home so Barbara could change her clothes. Melissa left her car at Barbaras house and they took Barbaras car to a club. They arrived at the club at 11:00 p.m. and stayed until about 2:00 a.m. They shared two pitchers of beer with three other people, and each woman drank about three, eight-ounce beers. After they left the club, they returned to Barbaras house, where Contreras was standing on the lighted porch at the top of the stairs. Melissa heard Contreras ask Barbara where she had been. Melissa left because she did not want to get involved.

Melissa said Barbara called her later and asked Melissa to go with her to the hospital. Melissa asked what had happened between Barbara and Contreras. Barbara said she slipped on her shoes and fell backwards down the stairs. Melissa did not know that Barbara had told a different story to Bakersfield Police officers. Melissa believed Barbara and Contreras had a happy marriage, and she never saw Contreras try to control Barbara or lose his temper at her.

Grinnell Griffin, an investigator with the Kern County Public Defenders Office, contacted Barbara about the incident. Barbara said that the police report was inaccurate and that her injury was, in fact, accidental.

DISCUSSION

I. Admissibility of testimony given by expert witness Jeri Darr

Contreras contends that his judgment of conviction should be reversed because the prosecutor did not lay an adequate foundation to support expert witness Jeri Darrs testimony. He points out there was no evidence that Contreras and Barbara were involved in a cycle of violence and takes the position that Darrs testimony was fundamentally unfair in violation of the federal due process clause because it prejudicially portrayed him as a perpetual spousal abuser.

Evidence Code section 353 states:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

A miscarriage of justice occurs when it is reasonably probable the trier of fact would have reached a result more favorable to the appellant absent the error. (See In re Jacqueline H. (1979) 94 Cal.App.3d 808, 814-815.)

A. Motion in limine

On November 19, 2007, the prosecution prepared a motion in limine in support of admission of evidence regarding battered womans syndrome (Evid. Code,  801, 1107). The court conducted a hearing on the motion, and defense counsel maintained there was no evidence to show that Barbara was a battered woman or that battered womans syndrome was relevant. The prosecutor explained, The purpose of that testimony is the People believe the victim is going to recant and change her story. The People need to present evidence to explain why, in generic terms, that happens in domestic violence cases. After hearing the arguments of counsel, the court reserved its ruling.

B. Evidence Code section 402 hearing

During an Evidence Code section 402 hearing, Barbara testified that Contreras did not assault her and that she suffered injuries because of an accident on the front porch steps of her home. Defense counsel objected to Jeri Darrs testimony on relevancy grounds and argued there was no evidence that Barbara was a battered woman. Defense counsel also contended, Ive seen some of the testimony thats been provided by this particular expert. And one area that shes testified to in the past is the timing of recanting, that most battered women are likely to tell the truth between 24 to 48 hours. And I suspect thats where the People are going with that. [] That is not part of battered womens syndrome. Its outside the scope. And that would require completely different supporting expert foundation.

During the section 402 hearing, counsel questioned Jeri Darr about her qualifications, battered womans syndrome, and the cycle of violence. Darr, a social worker, testified that she currently conducted foster-care social work for a nonprofit organization. She previously had handled overall program management for the Alliance Against Family Violence and Sexual Assault and conducted individual and group counseling for domestic violence victims at Valley Oasis. Darr said she helped create the Domestic Violence Response Team for the Los Angeles County Sheriffs Department. She also said she had about 1,500 hours of training on issues surrounding intimate partner violence and had direct contact with approximately 2,000 victims of such violence over the 12 years preceding trial.

Darr said she had testified about domestic violence in cases before the Los Angeles County, San Mateo County, and Kern County Superior Courts. In Darrs experience, victims of domestic violence tend to be most truthful at the time of or immediately after the incident. After hearing the testimony of Darr and the arguments of counsel, the court declined to exclude Darrs testimony but agreed to give a limiting instruction (CALJIC No. 9.35.1).

C.                 Jeri Darrs testimony at trial

After Darr described her qualifications, the court instructed the jury as follows:

Evidence is going to be presented to you concerning whats called the intimate partner battering theory. This evidence is not received and must not be considered by you to prove the occurrence of the act or acts of abuse which form the basis of the crimes charged against [Contreras].

This intimate battered partner theory is based upon an approach thats completely different from the approach that you must take to this case. This theory begins with the assumption that physical abuse has occurred and seeks to describe and explain common reactions of women to that experience.

As distinguished from that theoretical approach, youre to presume [Contreras is] innocent. The People have the burden of proving guilt beyond a reasonable doubt.

You should consider this evidence for certain limited purposes only; namely, consider this evidence only in deciding whether or not [Barbaras] conduct was not inconsistent with the conduct of someone whos been abused and in evaluating the believability of her testimony.

Darr went on to explain that intimate partner battering is violence that happens in a relationship between two people who have an intimate connection. Darr said many victims identify a cyclical nature to the violence experienced in their relationships. She explained that Dr. Lenore Walker is the lead researcher on the theory of cycle of violence. The cycle consists of a tension-building stage (where the victim feels as though she is walking on eggshells), an explosive stage (during which violence will occur), and then a honeymoon stage (in which the batterer will be contrite, apologize, and make assurances that it will never happen again).

Darr testified that not all victims go through all three stages of the cycle of violence. She also said the cycle is very situational, with some victims experiencing it only once and other victims having the cycle replicate itself within days. Further, Darr explained that domestically violent relationships are volatile and undependable.

In Darrs experience, it is not uncommon for the victims of intimate partner battering to change or recant their stories. Common reasons include the fact that the victim is financially dependent upon the abuser; the abuser may be the father of their children; the victim may want to maintain her family; the victim may have been pressured by family and friends; or the fact that the victim is still emotionally attached to the abuser. Darr cited the 1998 Commonwealth Study, which suggested a woman will leave and return to an abusive relationship, on average, five times before deciding to make it permanent.

In addition, it was common for victims to blame injuries on their own clumsiness rather than on their abuser. Although victims never spoke to Darr about which version of their injuries was most accurate, Darr observed:

We would maintain contact with the victim immediatelyfrom the point immediately after the injury occurred through the court date. We would speak to them, typically, daily within the first seven days. And what we would notice is that probably around three days after the incident took place, while, perhaps, he was still in jail or there was bail pending, something had occurred, the details of the story might begin to change. And it would beeven in the face of the fact that we had videotaped their statement at the time of the incident.

Darr said in 85 to 90 percent of the cases in which she was involved, the abuser was very controlling with the victims time and money. She also said that between 95 to 98 percent of victims were accused falsely of infidelity. Darr also said she had not met with Barbara and was not able to testify whether Barbara was a battered woman.

D. Evidence Code section 801

Contreras initially contends that Darrs testimony was inadmissible because there was no evidence that he and his wife were engaged in a cycle of violence. Consequently, Darrs testimony was inadmissible under Evidence Code section 801.

Evidence Code section 801 states:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

In People v. Brown (2004) 33 Cal.4th 892, where only one incident of abuse occurred, our state Supreme Court held that expert testimony about the behavior of domestic violence victims is admissible under Evidence Code section 801 because it would assist the trier of fact in evaluating the credibility of the victims trial testimony and earlier statements to police. The court also held that this expert testimony would provide relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence. (People v. Brown, supra, at pp. 895-896.) When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume the victim is an untruthful or unreliable witness. When the victims trial testimony supports the defendant or minimizes the violence of his actions, the jurors may assume that if there really had been abusive behavior, the victim would not be testifying in the defendants favor. (Id. at pp. 906-907.)

Contreras contends that his case is distinguishable from Brown because Brown entailed a cycle of violence. He cites the following excerpt to support his contention:

Here, there was an adequate foundation for that expert testimony, because evidence presented at trial suggested the possibility that defendant and Kimberly Pipes were in a cycle of violence of the type described by expert Jeri Darr. Pipes told Deputy Wheeler that defendant had complained about the cleanliness of the apartment on the evening of the assault. There was also evidence that Pipes and defendant also argued that evening about defendants failure to take her side in an argument with his cousin (their landlord) regarding the rent, that defendant told Pipes that if she did not pay the rent she would have to move out, and that he later threatened to kill her if she did leave. Finally, there was evidence that when Pipes actually tried to leave the apartment, defendant assaulted her. To assist the jury in evaluating this evidence, the trial court properly admitted the expert testimony by Darr. (People v. Brown, supra, 33 Cal.4th at p. 907.)

Contreras claims that, unlike Brown, the evidence in his case did not establish that he and his wife were engaged in a cycle of violence. He maintains that the alleged offense was the first and only time that he and Barbara engaged in a physical dispute.

Contreras misreads the opinion in Brown. The Supreme Court did not conclusively determine that the abuser and victim in that case were engaged in a cycle of violence. Rather, the Court held that there was an adequate foundation for expert testimony because the evidence at trial suggested the possibility that the abuser and victim were engaged in a cycle of violence. (People v. Brown, supra, 33 Cal.4th at p. 907.)

Here, Barbara told Officer Torres at the scene that Contreras picked up her sons skateboard and struck her three times on the shin, causing a gash in her leg. She also told Torres that Contreras fought her like a man and punched her several times in the face and head. However, Barbara recanted those statements at trial. Contreras told Officer Ferguson that he sent his wife home from a males-only party and became upset when he arrived home, did not see her, and then saw her return in a change of clothes. Contreras said he confronted his wife and felt he had to get aggressive with her. Jeri Darr said she had seen and interviewed thousands of victims of domestic violence and observed a pattern in which victims would be unwilling to testify against their abusers or would recant their stories on the stand. Darr also testified that victims often blamed injuries on their own clumsiness.

The admission of expert testimony is reviewed on appeal for an abuse of discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) Darrs testimony explained the shift in Barbaras statements between the evening of the incident and the time of trial. Although Contreras repeatedly claims no cycle of violence existed, Darrs testimony took this fact into account. Darr acknowledged that the cycle-of-violence theory was very situational and not every victim would experience something like this. Nevertheless, Darr observed that domestically violent relationships are characterized by their volatility and unpredictability. Darrs statements were relevant to an understanding of the sequence of events of July 28, 2007. Moreover, the limiting instruction specifically advised the jury to consider this evidence [Darrs testimony] only in deciding whether or not [Barbaras] conduct was not inconsistent with the conduct of someone whos been abused and in evaluating the believability of her testimony.

Under the circumstances, the trial court did not abuse its discretion by admitting the testimony of Jeri Darr.^[1]

II. Alleged prosecutorial misconduct

Contreras contends that the prosecutor committed prejudicial misconduct during closing argument by erroneously summarizing the testimony of Jeri Darr to the jury. The following exchange occurred during the prosecutors opening argument:

[By Deputy District Attorney Wilson]: [Darr is] very clear. This isnt a diagnosis. This isnt a mental disorder. We dont know if [Barbara] suffers from battered womens syndrome or if she suffers from posttraumatic stress disorder. Because shes not a psychologist. And [Darr] never interviewed [Barbara]. All Ms. Darr was trying to explain and testify to was patterns of behavior that are typically seen in cases of domestic violence.

Now, what did she talk about.

Well, she talked about a lot of different things. But someseveral key points in why that 9-1-1 tape was so important.

She told you that in her experience with over 2,000 victims, victims of domestic violence usually provide the most truthful and accurate version of events within the first 24 to 48 hours.

MR. CASTRO: Your Honor, Ill object. [] That misstates the evidence.

THE COURT: Well, I dont remember exactly what her words were. But Im sure the jury remembers. And if they dont, they can ask that that be read back, if they feel thats a significant factor in the case.

The jury did not request a read-back of Darrs testimony and eventually found Contreras guilty of misdemeanor spousal battery and assault with a deadly weapon.

On January 17, 2008, Contreras filed a motion for new trial, contending the prosecution intentionally misled the jury regarding the testimony offered by Jeri Darr. Contreras argued that the prosecutor made this information [about the accuracy of victim statements made within the first 24 to 48 hours] up, it was a deliberate falsehood made to mislead the jury. This statement proved prejudicial to [Contreras] because the jury is led to believe that there is some authority or substance behind this statement and that since the victim had given her statements to the police shortly after the incident, then based on this representation, then this first story must be the correct version.

The prosecution filed written opposition to the motion for new trial, claiming the prosecutor argued the reasonable inferences and facts from the evidence. Following a hearing, the court denied the motion for new trial. Contreras now argues that the trial court erroneously denied the motion because the prosecutors argument was prejudicial misconduct.

A prosecutor violates the federal Constitution when he or she engages in a pattern of misconduct so egregious that it infects the trial with unfairness that makes the conviction a denial of due process. (People v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Hill (1998) 17 Cal.4th 800, 819.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court. (People v. Hill, supra, at p. 819.)

A defendant is excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, a failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct and as a consequence the defendant has no opportunity to make such a request. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.)

In this case, defense counsel did not object on the ground of prosecutorial misconduct to the portion of the prosecutors argument that is the subject of contention. In addition, defense counsel did not request a curative admonition from the court. Moreover, nothing in the record suggests that a curative admonition would have been futile or ineffective. As a general rule, a defendant may not complain on appeal about prosecutorial misconduct unless he or she made a timely objection and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Since defense counsel did not object to the prosecutors questioning on grounds of misconduct and did not request an admonition, Contreras has not preserved the issue for review. (People v. Frye (1998) 18 Cal.4th 894, 969.) Subsequent arguments of prosecutorial misconduct in a motion for new trial do not substitute for a timely objection. (People v. Williams (1997) 16 Cal.4th 153, 254.)

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Gomes, J.

_____________________

Hill, J.

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^[1]Contreras also contends that Darrs testimony was inadmissible under Evidence Code section 1107, subdivision (a) [intimate partner battering and its effects]. Contreras moved in limine to exclude Darrs testimony under section 1107, and the People moved in limine for admission of the testimony under that section. However, the court did not base its ruling on that statute. Since Darrs testimony was admissible under section 801, we need not reach the question of whether her testimony was also admissible under section 1107. (See People v. Brown, supra, 33 Cal.4th at p. 896.)