P. v. Goode

Filed 2/27/09 P. v. Goode CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant William Emmitt Goode admitted he killed his former girlfriend, Dahyoh Thomas, and set her body on fire. He claimed to have acted in self defense. Appellant pleaded guilty to arson of an inhabited structure (Pen. Code,  451, subd. (b)), and, following a jury trial, was convicted of second degree murder (Pen. Code,  187). The trial court sentenced him to serve 25 years to life in prison.

On appeal from the judgment of conviction, appellant contends the trial court erred by allowing expert testimony on intimate partner battering and its effects, also referred to as battered womens syndrome. He asserts the error in allowing the expert testimony was compounded by instructional error and by defense counsels failure to object to the prosecutors alleged misuse of the testimony during closing argument. He further contends the court erred by admitting into evidence as a prior incident of domestic violence testimony to the effect that appellant had forced Thomas to undress and stand outside a car in a deserted area of Oakland. With regard to his sentence, appellant claims the trial court acted in excess of its jurisdiction by modifying the sentence to impose consecutive rather than concurrent terms of imprisonment after he had filed a notice of appeal.

We find no merit in appellants attempt to overturn his murder conviction. However, because the trial court lacked authority to increase appellants sentence after an appeal had been filed, we have no choice but to modify the sentence to reflect that appellants terms of imprisonment for second degree murder and arson are to be served concurrently rather than consecutively. Accordingly, we affirm the judgment as modified.

Procedural History

The Alameda County District Attorney charged appellant by information with the murder of Dahyoh Thomas (Pen. Code,  187, subd. (a)) and with arson of an inhabited structure (Pen. Code,  451, subd. (b)). In connection with the murder charge, the district attorney alleged that appellant personally used a knife as a deadly weapon during the commission of the offense (Pen. Code,  12022, subd. (b)(1)) and that appellant personally inflicted great bodily injury upon the victim (Pen. Code,  1203.075). In addition, the district attorney alleged that appellant had suffered three prior convictions, including two convictions for which he had served terms of imprisonment as described in Penal Code section 667.5, subdivision (b).

On August 9, 2006, after the court had begun the process of jury selection, appellant pleaded guilty to the arson charge and waived his right to a jury trial on the special allegations that he had suffered prior convictions. The matter proceeded to a jury trial on the murder charge, with the prosecution seeking a conviction for first degree murder.

The jury returned its verdict on September 14, 2006, finding appellant guilty of second degree murder. The jury also found true the allegation that appellant personally used knives during the commission of the offense.

At the sentencing hearing on November 15, 2006, the court struck one prior conviction allegation and found the other two to be true. The court indicated that it would impose an additional punishment under Penal Code section 667.5, subdivision (b) for only one of the two prior convictions it had found true. The court sentenced appellant to an indeterminate term of 16 years to life, consisting of a 15 years-to-life term for second degree murder (Pen. Code,  187, 190, subd. (a)) plus a one-year enhancement for personal use of a deadly weapon (Pen. Code,  12022.1, subd. (b)(1)). In addition, the court sentenced appellant to the upper term of eight years for arson of an inhabited structure (Pen. Code,  451, subd. (b)), with an additional one year for the prior prison term (Pen. Code,  667.5, subd. (b)). The court did not indicate whether the terms for murder and arson were to be served consecutively and made no findings to support the imposition of consecutive terms.

Appellant filed a notice of appeal on November 15, 2006, the same day he was sentenced. On November 20, 2006, over defense counsels objection, the trial court purported to clarify its earlier sentencing order, stating that it was the courts intention to run the sentences consecutively to one another. Thus, the court sentenced appellant to serve 25 years to life in state prison.

Factual Background

Appellants Relationship with Dahyoh Thomas

Appellant met Dahyoh Thomas in mid-2001. At the time, appellant was dating Thomass friend, Shameka, a woman with whom appellant had a daughter. After appellant and Thomas had socialized together for three to four months, they began a sexual relationship. Although appellant continued to see Shameka, Thomas told her friends she was seeing appellant exclusively.

Thomas lived in Oakland with her mother, Corlena Decatur. In the spring or summer of 2002, appellant and his son[1] stayed with Thomas and her mother for about two weeks because appellant had nowhere else to live. After appellant moved out, he still saw Thomas about once a week and had sex with her once every month or two. By late 2002 or early 2003, appellants relationship with Thomas had deteriorated and they were no longer having sex. According to appellant, during their relationship he and Thomas argued primarily over his unwillingness to end his relationship with Shameka. Appellant testified at trial he was unwilling to stop seeing Shameka, the mother of his daughter, merely for a booty call with Thomas. He described Thomas as a friend[] with benefits.

Incidents Preceding Thomass Death

At trial, the prosecution elicited testimony regarding incidents that preceded and led up to Thomass death. With regard to two of the prior incidents, described below as the undressing incident and the finger to the forehead incident, the trial court admitted the evidence under Evidence Code[2] section 1109, subdivision (a)(1) for the purpose of showing that appellant engaged in an offense involving domestic violence on an occasion other than the one involving the charged offense. The court also admitted evidence concerning the two incidents, as well as a third incident described below as the downhill driving incident, under section 1101, subdivision (b) for the limited purpose of showing appellants mental state, motive, and intent, as well as Thomass state of mind.[3]

1. The Undressing Incident

Thomas told her friend, Monica Strong, and her niece, Taulona Glass, about an incident in which appellant took her to a deserted area of West Oakland some time after midnight when they had been arguing. Appellant forced Thomas to get out of the car and take off all of her clothes. Once outside the car, Thomas pleaded with appellant to let her back inside. Appellant threatened to drive away without Thomas but eventually allowed her to get back into the car. Thomas was upset and cried when she related the story to Strong and Glass. Strong and Glass differed as to exactly when the incident took place. Both fixed the time as shortly after their own children were born, although Glasss baby was born in February 2003 and Strongs baby was born in November 2002.

Appellant denied driving Thomas to a location in West Oakland and forcing her to undress.

2. The Finger to the Forehead Incident

On the weekend before Thomass death, appellant and Thomas went to Monica Strongs house. Strong was upset and somewhat surprised to see them together because she believed their relationship had ended. Strong believed that appellant was high.

Strong and Thomas went into the bathroom to smoke marijuana. While they were in the bathroom, appellant came in and asked what they were talking about. Thomas replied, Nothing. Appellant then placed his finger on Thomass forehead and pushed her head, telling her, Ill fuck you up. After Strong grabbed a soap dish to threaten appellant, he left the bathroom.

Appellant admitted he was at Strongs house but denied he had threatened Thomas as Strong had claimed.

3. The Downhill Driving Incident

In November 2002, Thomas called her stepsister, Laneco Nicki Brandi, and told her of an incident that had happened earlier that morning. Thomas sounded scared and upset. She and appellant had been driving to Thomass job at a high school. Thomas was driving and appellant was in the passenger seat. They were arguing because Thomas said she wanted to break up with appellant. While they were driving downhill, appellant grabbed the steering wheel and nearly caused Thomas to have an accident. Thomas managed to regain control of the car and slow down. As she was approaching a stop sign, appellant jumped out of the car.

Later that same day, appellant showed up at Brandis house. He told Brandi he had walked from the high school where Thomas worked, which was about 15 minutes away by car. Because Brandi thought that appellant was acting unusual, she did not go outside to see appellant but instead spoke to him from inside her house.

Appellant told Brandi that he and Thomas had argued and that Thomas had wanted to break up with him. He asked Brandi to speak to Thomas and persuade her to stay with him. He said if Thomas left him, he would have nothing. He also said that no one cared about him and that he wanted to end his life.

Appellant admitted jumping out of the car while it was moving slowly. However, he claimed it was him and not Thomas who wanted to end the relationship. When Thomas objected, appellant asked her to let him out of the car. According to appellant, when she refused he grabbed the steering wheel, tried to steer the car to the curb, and then jumped out when the car slowed.

4. Thomass Letter to Appellant

At some point in early 2003, Thomas left a letter on appellants van. In the letter, Thomas said she was ending her relationship with appellant because he was not man enough to call and tell [her] that its over. She wrote that she was glad appellant and Shameka were married because he was becoming a headache. She also indicated she was pregnant and intended to keep the baby.[4]

Appellant testified he believed the part of the letter in which Thomas said she was pregnant was a trick. He claimed to have put the letter in a drawer and disregarded it. After his arrest, however, the police found the letter on appellants kitchen counter.

5. Thomass Desire for a Restraining Order

Shortly before her death, Thomas told several people that she considered obtaining a restraining order against appellant. At the end of 2002 and the beginning of 2003, Thomas told Monica Strong that she wanted a restraining order. In late February or early March 2003, Thomas told Taulona Glass that appellant had told her there were only three ways out of their relationshipshe would end up in a box, she would leave the country, or [appellant] would end up in a box. Glass understood appellant to mean that either appellant or Thomas would end up dying or being killed. As a result of these threats, Thomas spoke to Glass about the need for a restraining order.

On March 14, 2003, two days before her death, Thomas called Nicki Brandi and said she wanted to get a restraining order because appellant had threatened to kill her. Brandi offered to meet Thomas at her work that afternoon and go to the police station together. When Brandi arrived 10 to 15 minutes late, she discovered that Thomas had already left. Brandi later spoke to Thomas by phone and learned Thomas was going to Sacramento. They agreed to go to the police station to seek a restraining order on Monday, March 17.

6. The Drive-By of Appellants House

Thomas met Monica Strong on the evening of Friday, March 14, 2003. The two friends planned to go to Sacramento to have their hair done. Before leaving for Sacramento, they drove past appellants house at 1:00 or 2:00 a.m. Saturday morning, honking the car horn and playing loud music. After appellant came out of his house yelling, the women got scared and Thomas quickly drove away. At the time of this incident, Strong believed that Thomass relationship with appellant was over.

The women drove to Sacramento and spent the night. The next day, they got their hair done and returned to Oakland. During the drive to Sacramento, they discussed Thomass desire for a restraining order. Thomas said [s]he was afraid of what [appellant] might do to her.

Shortly after Strong returned home, appellant appeared at her balcony and signaled for her to come talk to him. He told Strong she needed to stay out of it because it was deeper than what [she] thought. Strong understood this as a threat.

The Events of March 16, 2003

On Sunday, March 16, 2003, Thomass mother, Corlena Decatur, awoke at around 5:30 or 6:00 a.m. She was preparing to go to a church service and then to brunch. Shortly after waking up, she heard a knocking on the outside wall of the house, near Thomass upstairs bedroom. Decatur assumed it was appellant making the noise. She explained that appellant would call Thomas frequently, often multiple times, and sometimes late at night. The knocking lasted a couple of hours and made her feel very uncomfortable. During this time, Decatur checked Thomass room and saw that her daughter was still asleep. Eventually, Decatur looked out the window and saw appellant. She asked, Hey, is that you? Appellant immediately replied, Yeah, and then walked away. Decatur said appellant seemed hostile.

Between 6:00 and 7:30 a.m., appellant called Decaturs house twice and asked to speak to Thomas. Each time, Decatur told him that Thomas was still asleep. Appellants tone of voice was aggressive, and he seemed frustrated he could not speak to Thomas. Decatur also answered a third phone call from a female who wanted to speak to Thomas. Appellants sister-in-law testified she had placed the third call at appellants request.

Later that morning, between 8:00 and 8:30 a.m., Thomas awoke. By that time, Decatur had decided not to go to church because she did not want to leave Thomas by herself. She told Thomas, Did you know thatthat crazy boy was knocking on the wall since 6:00? Decatur invited her daughter to brunch but Thomas declined. Decatur left her home at 10:45 or 11:00 a.m. to go to brunch, leaving her daughter alone.

At 10:25 a.m., a neighbor who lived near Decatur, Edward Andrews, began walking from his house to church. He saw a man standing in his driveway. Because there was no logical reason for someone to be standing there at that time in the morning, it caused Andrews some concern. At trial, Andrews identified appellant as the man he had seen that morning.

At about 10:30 a.m., Georgian Price arrived at her sisters house, which is located across the street from Decaturs home. Price went inside the house for about 15 or 20 minutes. She then made several trips outside to load food items into her car. On the second trip to her car, she noticed a man outside the front door of Decaturs residence. The man was arguing with a woman who was inside Decaturs house. The man seemed angry and very agitated. He was pacing back and forth, yelling, and trying to convince the woman to let him inside so he could get [his] shit. The woman told him to [j]ust go away. The argument lasted about five to eight minutes until the woman eventually let him inside. Price left the area at 10:56 a.m. At trial, Price was shown a picture of appellant and identified him as the man she saw arguing outside Decaturs residence.

The Oakland Fire Department received a 911 call at about 1:00 p.m. regarding a fire at Decaturs house. Inside the house, a firefighter saw smoke about a foot off the floor. Underneath the smoke, he saw a glow, which he put out with a fire hose. The firefighter then noticed the bare feet of a body underneath the smoke. The bodywhich was Thomasswas badly burned and there was no hope of saving her. The firefighter observed a bottle of lighter fluid in the general area of Thomass body.

Fire investigators searched the house after the fire had been extinguished. They found knife blades in the burn area, underneath the body, and underneath a couch. They found more knife blades near the kitchen sink, and they found knife handles underneath the couch and on the stove top. The investigators found the bottle of lighter fluid, with blood on it, near the entryway going from the living room into the dining area. The investigators determined the fire started on the body as well as the floor below it.

The blood on the lighter fluid bottle matched appellants DNA profile. Appellants DNA profile also matched blood found on a washing machine door in Decaturs house and a blood drop found outside the house.

Appellant turned himself into police custody on March 20, 2003.

Autopsy Findings

Dr. Paul Herrmann, a forensic pathologist, performed an autopsy on Thomass body. His external examination showed the upper portion of Thomass body had suffered extensive burns, exposing her chest cavity and internal organs. Dr. Hermann observed numerous cutting wounds on the skin as well as a few stab sounds. The stab wounds extended from behind Thomass right ear to her right shoulder. In addition, she had stab wounds on both of her hands and arms and four stab wounds to the back of her right flank. In total, Dr. Hermann counted 40 wounds. He was unable to determine if the portions of Thomass body that had been consumed by the fire had sustained additional stab wounds.

Dr. Hermann highlighted one wound to Thomass trachea that was a life threatening wound. That wound, however, would not have caused instantaneous death, or even a quick death. Ultimately, Dr. Hermann concluded that the cause of Thomass death was hemorrhage from . . . multiple stab wounds. He said it probably took about 20 minutes before Thomas lost enough blood from her wounds to die. He could not determine what role the fire might have played in Thomass death because there was no definitive proof either that she was alive or that she was dead when the fire was set.

At trial, Dr. Hermann examined photographs of appellants hands taken on March 20, 2003, four days after Thomas died. He saw evidence of some superficial cuts to appellants fingers. He opined that some of the cuts were healing and looked older than four days. A cut on appellants left thumb, and another on his left index finger, showed less evidence of healing and could have occurred within four days of the picture.

Appellants Version of Events

Appellant testified in his own defense at trial. He acknowledged that he had showed up at Thomass house early in the morning of March 16, 2003, and had thrown rocks at her window. Thomas came to the window and told appellant to call her later. As appellant walked away, he saw Decatur. He went to a nearby McDonalds, where he placed one call to Thomas and asked his sister-in-law to place another. Both times Decatur answered the phone and said Thomas was sleeping.

Appellant got tired of waiting and returned to Thomass house at around 11:00 a.m.. He was anxious to see Thomas and finally put an end to their relationship. After Thomas answered the door, he told her he wanted to talk about the previous night. She invited him inside. Appellant denied that he and Thomas argued while he was standing outside the house.

Inside the house, Thomas was using a small knife to make a blunt or marijuana cigar. Appellant brought up the previous nights incident when Thomas had driven by his house. Thomas accused appellant of being engaged to Shameka. When appellant denied being engaged to Shameka, Thomas became agitated. With the knife in her hand, she came toward appellant, shouting that she aint going to be dealing with it no more.

Appellant grabbed Thomass hand and used his thumb to try to push the blade away, bending the knife blade. They fell into a coffee table, causing it to break. The knife blade broke. Thomas got up and went into the kitchen while appellant remained on the floor. Moments later, Thomas came out of the kitchen with more than three knives in her hand. She threw two of them at appellant, who avoided being hit by the knives. Thomas then jumped on top of him, holding a big knife in her hand. Still lying on the floor, appellant used his right hand to block the knife blade. He and Thomas wrestled. According to appellant, Thomas was trying to stab him in the face and eyes. With his left hand, appellant grabbed one of the knives that Thomas had thrown at him. With that knife, appellant started poking Thomas to try to get her off of him. He claimed he was not trying to plunge the knife through her. He denied knowing he had caused a five-inch laceration across Thomass neck. When asked if that wound was a poke, he responded that [i]t could have started as a poke and things changed, stating they were in a struggle. He could not explain how Thomas sustained wounds to her back. When asked to explain the number of injuries to Thomas and the lack of injuries to himself, appellant said, We were both injured. I just didnt have any hella wounds.

Thomas, who outweighed appellant by about 30 pounds, remained on top of him. They stayed in that posture for what seemed to appellant like a long time, until he noticed Thomas was no longer moving and was dead weight. He pushed her off of him and realized she was dead. He denied any intention to hurt or kill Thomas. Except for the one knife he claimed to have bent with his thumb, he could not explain how the other knives found in Decaturs home came to be bent or broken.

Because he had been to prison, appellant feared that no one would believe his claim of self defense. He put several knives on the stove and was preparing to leave when he saw a bottle of lighter fluid. He sprayed the fluid on and around Thomass body and set a fire. He then left the house. At trial, he claimed he did not know why he started the fire. He also could not explain how Thomass blood had gotten on a wall and on the telephone in the kitchen.

Phone Calls from Jail

While in jail, appellant placed several recorded calls to various people, including family members. He was aware the calls were being recorded. In some of the calls, he denied killing Thomas and said he believed the police had little evidence against him. In other calls, appellant expressed concern that theyre gonna try to OJ me, and that the police had taken enough blood from him to taint anybody [sic] evidence. In others, appellant referred to Jose, whom he said needed to tell these people that I was at the house, and that, if Jose didnt step up, he would knock his bitch ass out plain and simple. Appellant identified Jose as his step-father.

At trial, appellant acknowledged he did not tell people he called from jail the complete truth. He claimed, however, that he did have concerns about the amount of blood that had been taken from him and the possibility the prosecution might O.J. him. He had this concern despite the fact he had, by his own admission, been at Thomass house and bled during their altercation. Appellant denied he wanted Jose to falsify an alibi.

Discussion

I. Intimate Partner Battering Evidence

Appellant asserts the trial court committed error by allowing the prosecutor to present the expert testimony of Nancy Lemon, a law professor at Boalt Hall School of Law who specializes in the area of domestic violence. Lemon offered testimony on what is now referred to as intimate partner battering and its effects, a subject formerly designated battered womens syndrome.[5] (See  1107, subd. (f); see also Stats. 2004, ch. 609 [changing battered womens syndrome references to read intimate partner battering and its effects].) Appellant contends the evidence was irrelevant to any disputed fact. We conclude there was no abuse of discretion in admitting the evidence.

A. Background

Before trial, the prosecutor sought permission to introduce the testimony of Nancy Lemon as an expert in domestic violence. In a written motion, the prosecutor argued that Lemons testimony was necessary in this case to disabuse jurors of commonly held misconceptions about domestic violence. The testimony would encompass general information about domestic violence and the typical actions, reactions and reasoning of victims of domestic violence and that of their abusers, including the cycle of violence, the power and control dynamic and reasons why a victim might not report abuse. The prosecutor explained that [p]ursuant to Evidence Code section 1107, the testimony will not be offered to prove that the specific charged offenses in fact occurred but rather to help the jury understand the victims behavior within a violent relationship and evaluate her credibility at trial.

At a hearing on the motion, the prosecutor added that the testimony of a domestic violence expert was necessary to explain why Thomas stayed in the relationship with appellant and why she let appellant into the house after they argued on the day of the killing. The prosecutor argued that without the expert testimony the jury might draw an unfair conclusion about Thomas in light of evidence that she had been the victim of domestic violence on prior occasions.

Over defense counsels objection, the trial court ruled the testimony was admissible, stating it was relevant [t]o dispel myths . . . that a woman who gets herself into a situation that is perhaps dangerous to her would get out of it, and if she doesnt, that must say something about her as a person. The court clarified that the experts testimony could not address the specific facts of the case, and the prosecutor confirmed he had no intention of providing the expert with any information about the facts of the case.

At trial, Nancy Lemon testified as to the dynamics and frequently recurring characteristics of abusive relationships. She described her area of expertise as domestic violence, which she also termed intimate partner battery and its effects. The court limited her testimony to the subject matter of domestic violence in general terms without reference to any of the specific facts of this case.

Lemon defined domestic violence as the deliberate use of many different types of abuse: Psychological; emotional; sometimes financial; physical; sexual; in an intimate relationship where one person is trying to get the other person to do something or not do something, basically control them. She described the cycle of violence that often exists in abusive relationships, explaining that most such relationships start off with a flowery whirlwind romance, which soon gives way to a tension-building stage, and ultimately, an explosion. The initial explosion is usually fairly innocuous, such as a push or shove or slap, and is generally followed by expressions of remorse. The cycle then begins anew, with the ensuing explosions becoming progressively more violent and the intervals between those explosions becoming progressively shorter.

Lemon also described the power and control wheela model developed to describe typical kinds of behaviors or characteristics that are present in abusive relationships. At the center of the wheel are the words power and control. The battering partners goal is to exert control over the victim partner. To do so, he or she may use a variety of methods, including demeaning and humiliating the other partner, monitoring and controlling their access to other people, minimizing the seriousness of the abuse, and denying the other partner access to money.

Lemon also discussed several common myths about domestic violence, including the belief that victims have the choice to simply end the relationship. Lemon explained that this belief is often untrue. Domestic violence often escalates at the point of separation and the battering partner frequently uses threats in order to bring the victim partner back into the relationship. Often, too, there is no safe place for the victim to go. People often assume that victims will tell others about the abuse. Frequently, however, that is not so. Also, victims of domestic violence frequently resume contact with an abuser after an incident. According to Lemon, [m]ost victims of domestic violence have very mixed feelings about their relationship with their partner, and we see a lot of cases where the victim will get a restraining order and then either invite contact or allow contact after its in effect.

B. Analysis

The effects of intimate partner battering have  been defined as a series of common characteristics that appear in women [or men] who are abused physically and psychologically over an extended period of time by the dominant male [or female] figure in their lives. [Citations.] [Citation.] (People v. Humphrey, supra, 13 Cal.4th at pp. 1083-1084.)

The admission of expert testimony on intimate partner battering is expressly authorized by statute. Section 1107, subdivision (a) provides: 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.

In addition, expert testimony is admissible as a general matter under section 801, subdivision (a) if the testimony is [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . . In People v. Brown, supra, 33 Cal.4th at p. 895, the California Supreme Court held that expert testimony about the behavior of domestic violence victims may be admissible under section 801 even when there has been only one incident of domestic violence. The court in that case found it unnecessary to reach the question of whether the expert testimony was also admissible under the more specific statute addressing intimate partner battering, section 1107. (People v. Brown, supra, at p. 895.)

Evidence concerning intimate partner battering and its effects is relevant if (1) substantial evidence supports a contention the purportedly victimized partner was the subject of intimate partner battering, and (2) the evidence is probative of a contested issue of fact. (People v. Gadlin (2000) 78 Cal.App.4th 587, 592.) Such evidence may be relevant for purposes of dispelling commonly held misconceptions about victims of battering and their behavior patterns. (People v. Brown, supra, 33 Cal.4th at p. 903; People v. Morgan (1997) 58 Cal.App.4th 1210, 1213-1214.) The evidence may also be relevant for purposes of assessing the credibility of the victim of domestic abuse. (People v. Humphrey, supra, 13 Cal.4th at p. 1087; People v. Morgan, supra, 58 Cal.App.4th at p. 1217.) As the Supreme Court stated in People v. Humphrey, expert testimony on intimate partner battering is admissible to counter the common sense conclusion that a battering victim would have left the batterer much earlier if the abuse was as bad as claimed. (People v. Humphrey, supra, 13 Cal.4th at p. 1087.) In addition, intimate partner battering evidence may be relevant to show the tendency of victims to recant or minimize earlier complaints of domestic violence. (People v. Brown, supra, 33 Cal.4th at pp. 895-896; cf. People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)

We apply an abuse of discretion standard in reviewing a trial courts decision to admit the testimony of an expert. [Citation.] (People v. Prince (2007) 40 Cal.4th 1179, 1222.) The trial courts decision to admit expert testimony  will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.] (People v. McAlpin, supra, 53 Cal.3d at p. 1299.)  [T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. It will be excluded only when it would add nothing at all to the jurys common fund of information, i.e., when the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness   [citation]. (Id.at pp. 1299-1300.)

Appellant asserts Lemons testimony was irrelevant to any fact in dispute and claims there was no issue raised concerning whether Thomas had recanted or minimized the earlier incidents of abuse. As a consequence, appellant argues that Lemons testimony was not relevant to evaluate Thomass credibility. He also claims it was irrelevant why Thomas would have chosen to stay in a relationship with appellant because the bulk of the evidence showed the relationship had ended by early 2003. Further, he argues it was immaterial why Thomas would have allowed appellant into the house on March 16, 2003. The relevant inquiry, according to appellant, was what happened once he was inside.

Appellant employs a much too limited view of the purposes for which intimate partner battering evidence may be offered. In order for testimony concerning intimate partner battering to be admissible, there must be a contested issue as to which it is probative. (People v. Gadlin, supra, 78 Cal.App.4th at p. 592.) However, there is no requirement that a victim of domestic violence must recant or minimize earlier incidents of abuse in order for evidence of intimate partner battering to be admitted. For example, the evidence may be relevant in assessing a battered partners self-defense claim by explaining how a typical battered partner may perceive a need to defend herself against an abusing partner. (People v. Jaspar (2002) 98 Cal.App.4th 99, 107.) It is only necessary that the evidence is relevant and will assist jurors in assessing evidence that might be beyond their common experience. ( 801.)

Here, a major issue at trial was the nature of the relationship between appellant and Thomas. Appellant sought to minimize his involvement with Thomas, stating the relationship was non-exclusive and nothing more than a booty call. He claimed his contact with Thomas had steadily decreased in the months preceding her death. By contrast, the jury heard testimony that Thomas had considered obtaining a restraining order against appellant and that it was Thomas, not appellant, who wanted to end the relationship. There were plainly two different stories being spun, yet the nature of the relationship between appellant and Thomas was critical to understanding the actions of appellant and Thomas on the day she died. The jury also heard testimony that Thomas had suffered abuse but continued to see appellant despite her fear of him. Jurors lacking firsthand experience with domestic violence might question Thomass conduct and wonder why someone who had suffered such abuse would not end the relationship. They might also tend to discount the allegations of abuse and accept appellants characterization of the relationship. The evidence of intimate partner battering and its effects was relevant and admissible to counter any common sense conclusion that Thomas would have left appellant much earlier if the abuse was as bad as the evidence suggested.

A related issue was why Thomas allowed appellant inside her house on March 16, 2003. On the one hand, there was evidence that appellant arrived at Thomass house early in the morning and had insistently waited for hours to see her. A disinterested witness observed that appellant was angry and agitated when he confronted appellant at her front door. This testimony was in stark contrast to appellants version of events. A juror might question why Thomas would have allowed appellant into her home if he was as angry and persistent as certain witnesses indicated, particularly given the history between them. The evidence on intimate partner battering and its effects was relevant for purposes of explaining why someone in Thomass position would have relented and not simply told appellant to go away. In the absence of such evidence, a juror might be inclined to conclude Thomas had no reason to fear appellant and that it was Thomas, not appellant, who was the aggressor in the final confrontation inside Thomass home.

Furthermore, although Thomas was obviously not available to testify at trial, her credibility was nonetheless at issue. For example, the jury heard about the undressing incident, which Thomas had told her friends. Appellant denied that the incident ever took place. Faced with such contradictory testimony, a juror might call Thomass account into question if the juror could not understand how someone could endure such abuse and still continue to see appellant. Indeed, in closing argument appellants trial counsel specifically questioned Thomass credibility, suggesting that someone in Thomass position would have acted differently, such as calling the police for help. Counsel also argued that no one could force Thomas to do anything if she didnt really want to. Similarly, with respect to the testimony that Thomas sought a restraining order against appellant, defense counsel questioned why she did not get a restraining order long before if the situation was so grave. Counsel characterized the desire to get a restraining order as just kind of a falsehood, arguing there was no reason or rhyme to it and [n]o necessity for it.

As defense counsels closing argument made clear, appellant and Thomas vigorously contested the facts underlying a number of key episodes in their relationship. Central to the attack on appellants credibility was the contention that Thomas acted in a manner inconsistent with the way someone would act who had suffered the abuse Thomas claimed. The expert testimony concerning intimate partner battering and its effects was probative of this issue because it tended to explain why someone in Thomass position would act the way she did even though she had endured humiliation and abuse.

We conclude that Lemons testimony concerning intimate partner battering and its effects was relevant to issues of fact that were contested at trial. The trial court did not abuse its discretion in permitting Lemon to testify.

II. CALJIC No. 9.35.1

Appellant contends the court exacerbated the evidentiary error of admitting the testimony on intimate partner battering by failing to deliver CALJIC No. 9.35.1, a jury instruction that limits the purposes for which the evidence may be considered.

CALJIC No. 9.35.1 is based on section 1107 and informs the jury it may not consider intimate partner battering evidence to prove the occurrence of the act of abuse that forms the basis for the crime charged.[6] (CALJIC No. 9.35.1.) The instruction further informs jurors that research on intimate partner battering and its effects begins with the assumption that physical abuse has occurred, and seeks to describe and explain common reactions of women to that experience. (Ibid.) Jurors are cautioned: As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. (Ibid.) CALJIC No. 9.35.1 further instructs jurors to consider the evidence for certain limited purposes only, such as the behavior of victims of domestic violence or the believability of certain testimony.

Appellant raises two related arguments with respect to CALJIC No. 9.35.1. First, appellant contends the court had a sua sponte duty to deliver the instruction. Second, appellant argues that even if there was no sua sponte duty to deliver CALJIC No. 9.35.1, defense counsel provided ineffective assistance of counsel by failing to request the instruction. We address these arguments in turn.

A. Sua Sponte Duty to Instruct with CALJIC No. 9.35.1

A trial court is obligated to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence and necessary for the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, as a general matter, the trial court does not have a sua sponte duty to give an instruction limiting the purpose for which evidence may be considered. (People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3; see  355 [limiting instruction given upon request].) When a defendant fails to request a limiting instruction, a court has no obligation to give the instruction on its own initiative.[7] (See People v. Champion (1995) 9 Cal.4th 879, 947, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.)

Appellant concedes there is no reported case holding that CALJIC No. 9.35.1 must be given sua sponte whenever evidence of intimate partner battering and its effects is introduced. Nevertheless, appellant claims the court was required to give the limiting instruction for the reasons explained in People v. Housley (1992) 6 Cal.App.4th 947 (Housley), a case involving child sexual abuse accommodation syndrome (CSAAS). Evidence of CSAAS, like evidence of intimate partner battering, is properly used to show that behavior of an alleged victim, such as a failure to report, a delay in reporting, or a recantation, is not necessarily inconsistent with being a victim. (Id. at p. 955.) It is unnecessary for us to decide whether the court had a sua sponte obligation to instruct with CALJIC No. 9.35.1 because we conclude that any asserted error in failing to give the instruction was harmless under the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836-838, which focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. (People v. Breverman, supra, 19 Cal.4th at p. 177.)

In Housley, the appellate court found that the trial courts failure to give a limiting instruction on CSAAS evidence was clearly harmless. (Housley, supra, 6 Cal.App.4th at p. 959.) There, the expert witness twice told the jury she had not met the victim and had no knowledge of the case. Her testimony was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim. (Ibid.) Thus, the expert did not offer an opinion as to whether the victims behavior was typical of abuse victims or suggest in any manner the alleged abuse actually occurred. In addition, other witnesses offered testimony that explained the witnesss retraction of her claims. (Ibid.) The court concluded it was not reasonably probable [defendant] would have received a more favorable verdict if an appropriate limiting instruction had been given. (Ibid., fn. omitted.)

Like the experts testimony in Housley, Lemons testimony here was not directed to prove, and did not state, that appellant had in fact abused Thomas. Instead, Lemon provided an explanation of common myths and misconceptions about domestic violence. She couched her testimony in general terms and described the behavior of victims as a class. She had no knowledge of the facts of this case. Because Lemons testimony contained only a generalized discussion of the dynamics of intimate partner battering and its effects, it is not reasonably probable the jury misused the testimony to draw the inferences prohibited by section 1107, subdivision (a) and CALJIC No. 9.35.1. We conclude there is no reasonable probability a result more favorable to appellant would have been reached had the limiting instruction regarding intimate partner battering evidence been given. (See People v. Watson, supra, 46 Cal.2d at pp. 835-837.)

Appellants primary complaint about Lemons testimony appears to be that it constitutes improper profile evidence. A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 (Robbie).) Profile evidence is generally inadmissible to prove guilt. (Ibid.) It unfairly relies upon the syllogism that criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Id. at p. 1085.) Such evidence unfairly invites the jury to conclude that, because the defendant manifested some characteristics, he committed a crime. (Id.at pp. 1086-1087.)

Profile evidence is illustrated by the facts of Robbie. There, the defendant was convicted of kidnapping for sexual purposes, oral copulation, and penetration with a foreign object. (Robbie, supra, 92 Cal.App.4th at p. 1077.) Over a defense objection at trial, the prosecution was allowed to introduce the testimony of a special agent called to testify that defendants conduct was consistent with being a rapist. (Id. at p. 1081.) The prosecutor did not directly ask the expert to opine as to whether the defendant was a sex offender. Instead, the prosecutor used hypothetical questions describing defendants behavior. In this context, the expert opined that the behavior described by the prosecutor was typical of a particular kind of criminal. (Id. at p. 1084.)

Lemons testimony was not akin to the improper profile evidence in Robbie. Lemon testified generally about common characteristics of abusive relationship. She did not describe the profile of an abuser. She was not asked to opine whether abusers act a certain way or whether appellant acted in that way. Her testimony did not constitute improper profile evidence suggesting appellant was guilty merely because he fit the profile of an abuser.

In sum, we conclude the trial courts failure to give CALJIC 9.35.1 was harmless, and would have been so even if there had been a sua sponte obligation to give the instruction.

B. Trial Counsels Failure to Request CALJIC No. 9.35.1

Appellant next contends his trial counsel provided ineffective assistance by failing to request CALJIC No. 9.35.1. The contention lacks merit.

 In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsels performance was deficient because it fell below an objective standard of reasonableness [] . . . under prevailing professional norms. [Citations.] Unless a defendant establishes the contrary, we shall presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] If a defendant meets the burden of establishing that counsels performance was deficient, he or she also must show that counsels deficiencies resulted in prejudice, that is, a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] [Citation.] (People v. Lopez (2008) 42 Cal.4th 960, 966.) Thus, an ineffective assistance of counsel claim has two necessary components: (1) the defendant must show counsels performance was deficient; and (2) the defendant must show the deficient performance prejudiced the defense. (See Strickland v. Washington (1984) 466 U.S. 668, 687.)

Here, even assuming appellant could establish that defense counsels performance was deficient for failure to request CALJIC No. 9.35.1,[8] appellant cannot sustain the second prong of the Strickland v. Washington analysis. He cannot show the allegedly deficient performance prejudiced his defense. As explained above, the failure to give CALJIC No. 9.35.1 was harmless. Because there was no prejudice from the failure to instruct, there was necessarily no prejudice resulting from defense counsels failure to request the instruction.

III. Prosecutorial Misconduct

Appellant continues his attack on the use of intimate partner battering evidence at trial, claiming the prosecutor committed misconduct in closing argument by using Lemons testimony as substantive evidence that appellant was guilty of second degree murder. In effect, he argues the prosecutor transformed Lemons testimony into improper profile evidence that suggested appellant was guilty of murder simply because his actions fit the profile of a batterer. Appellant claims there is a reasonable probability that, but for the prosecutors misconduct, he would have been convicted of voluntary manslaughter instead of second degree murder.

Appellants trial counsel failed to object to the alleged misconduct during closing argument. As a consequence of the failure to interpose a timely objection, the issue is waived on appeal, as appellant concedes. (People v. Jones (1991) 53 Cal.3d 1115, 1144.) Prevented from making a direct claim of prosecutorial misconduct, appellant instead argues his counsel was incompetent for failing to object. Appellants argument lacks merit. He cannot show his counsel provided deficient performance or that the alleged errors were prejudicial. (See Strickland v. Washington, supra, 466 U.S. at p. 687.)

Appellant cites the following passages from the prosecutors closing argument, placing particular emphasis on the italicized language: And we learned that its not always as easy to get out of relationship as we might think. But the point of separation can actually lead to violence, and in this case we know that the rocky times that existed between Dahyoh Thomas and the defendant, William Goode, occurred in the context of the two domestic violence incidents that you were told about. [] That Dahyoh Thomas was thinking about breaking up with William Goode in the context of when the naked [i.e., undressing] event occurred, and that Dahyoh Thomas was also thinking about all kinds of things related to restraining orders and such at the time that the Ill fuck you up comment occurred. [] Their relationship was at the point of separation when those incidents occurred, but people stay in those relationships because they want to avoid the violence thats associated with those points of separation. [] . . . [] In the case of the power and control wheel, we have it applied in this situation, that we have the use of intimidation by gestures and actions; we have the power in terms of taking someone to an unknown location and making her undress; we have intimidation by poking them in the head and telling them, Ill fuck you up; we have threats that are associated with this case. [] . . . [] Learned about the cycle of violence and the associated stages, and what we learned is that the time between those instances tends to shorten over time, the violence increases over time. [] And in this case we saw the application and the acceleration: The steering wheel incident on one date; the naked incident on another; Ill fuck you up on another; murder lastly.[9] (Italics added.)

With regard to whether defense counsels performance was deficient, the record does not disclose why counsel chose not to object to the prosecutors argument concerning the intimate partner battering testimony. The claim of ineffective assistance of counsel must be rejected unless there is no satisfactory explanation for counsels failure to object. (People v. Lopez, supra, 42 Cal.4th at p. 966.)

The decision whether to object to an opponents closing argument is a tactical determination.   In the heat of a trial, defendants counsel is best able to determine proper tactics in the light of the jurys apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel . . . . [Citations.] . . . The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence . . . .  [Citations.] (People v. Frierson (1979) 25 Cal.3d 142, 158.) An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. [Citation.] (People v. Kelly (1992) 1 Cal.4th 495, 540.)

During closing argument counsel is accorded wide latitude to urge whatever conclusions can properly be drawn from the evidence. (People v. Thomas (1992) 2 Cal.4th 489, 526.) As appellant acknowledges, there is nothing inherently prejudicial about the fact that an experts [intimate partner battering] testimony happens to coincide, in some regards, with the prosecutors theory of the case. The prosecutor here merely summarized Lemons testimony and explained how the relationship between appellant and Thomas corresponded to the cycle of violence described by Lemon. This was permissible argument. If counsel did not agree with the conclusion the prosecutor drew from the evidence, the proper course was not to object but to argue a contrary conclusion in the defenses closing. An objection would have simply drawn more attention to the argument with which counsel disagreed. On this record we cannot say the failure to object demonstrated incompetence.

Moreover, appellant cannot establish any prejudice resulting from the failure to object to the prosecutors closing argument. The testimony regarding intimate partner battering, while relevant to understanding why Thomas may have endured appellants abuse, was not a dominant part of the case against appellant. Instead, the jury convicted appellant of second degree murder because the evidence overwhelmingly established that, on the morning of March 16, 2003, appellant was angry at Thomas and stabbed her repeatedly with knives.

Appellant admitted he killed Thomas and set her body on fire. The only question was whether he acted in self defense. The evidence supporting his self-defense theory, however, was distinctly lacking in credibility. Shortly before the murder, Thomas had sent appellant a letter attempting to end their relationship. Appellant falsely testified that he disregarded the letter and placed it in a drawer, when in fact it was found on his kitchen counter following his arrest. He went to Thomass house at 5:00 a.m. on a Sunday and waited until 11:00 a.m. to see her, after making multiple attempts to contact her. A disinterested witness testified that appellant was angry and argued with Thomas at length before she allowed him to enter her home on the morning of the murder. Clearly appellant was deeply disturbed about something.

Appellants testimony about what happened in Thomass house was inconsistent with the autopsy findings. It would have taken Thomas about 20 minutes to lose enough blood to die from her wounds. Several broken and bent knives were recovered from the scene. Thomass blood was on a telephone in the kitchen, suggesting she might have tried to call for help at some point. The evidence simply is not consistent with appellants claim that Thomas attacked him and that he defended himself by poking her until he finally realized she was dead. Appellants version of events is also belied by his