P. v. Holguin

Filed 12/6/07 P. v. Holguin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yolo)

----

A jury convicted defendant David Edward Holguin of making criminal threats (Pen. Code, 422),^[1]forcible oral copulation ( 288a, subd. (c)(2)), forcible rape ( 261, subd. (a)(2)), and misdemeanor battery against a person with whom he had a dating relationship ( 243, subd. (e)(1)). Defendant admitted one strike and five prior prison term allegations, and was sentenced to 18 years four months in prison.

On appeal, defendant contends the trial court erred in instructing the jury with CALJIC rather than CALCRIM instructions, and expert testimony on rape trauma syndrome and battered woman syndrome was improperly admitted. We disagree and shall affirm.

BACKGROUND

Barbara T. testified about a series of incidents involving herself, her daughter, and defendant on October 25, 2004. Barbara, who was staying at her grandmothers house in Vacaville, was picked up by defendant, whom she had been dating since June 2004, at around 9:00 to 9:30 a.m. After going shopping in Vacaville, they picked up Barbaras five-year-old daughter from school. They then drove to Sacramento so Barbara could get her television and other belongings out of storage. Barbara drove, defendant was in the front passenger seat, and Barbaras daughter was in the back seat.

The trio first stopped at Gunthers, a Sacramento ice cream parlor. Barbara and her daughter went inside the shop and defendant drove away. Although defendant told them he would be back soon, 30 minutes passed and he had not returned. Barbara then decided to walk with her daughter to a friends apartment located about two blocks away.

Defendant met Barbara and her daughter as they were approaching the gate of the apartment complex. He pulled up to them in his truck, an older Suburban, and told them to get inside. Barbara was irritated with defendant for having taken so long, so she got in the back seat with her daughter.

They were supposed to go to the storage facility, but defendant drove down the street and parked near 28th Street and Broadway. Barbara guessed she then told defendant to take them home and forget about going to the storage facility. The couple bickered in the parked truck for five to 10 minutes.

When defendant eventually drove away, he went to the freeway. He and Barbara argued while defendant drove. Defendant wanted to pick up the television, but Barbara wanted to go home. Defendant headed east on Interstate 80, away from Barbaras home in Vacaville. Barbara had moved to the front seat just before they got on the freeway. She could not remember how she got to the front seat, but she admitted telling an officer in an interview that defendant might have made her move to the front of the truck.

As they argued, defendant grabbed Barbara by her left sleeve in an attempt to move her closer to him. Barbara pulled back and got away, leading to several more unsuccessful attempts by defendant to grab her by her sweater. After failing to pull her by the sweater, defendant succeeded in grabbing Barbara by the hair and pulling her head toward his lap.

Defendant refused Barbaras demand to let her go. He held her head down for about five minutes, finally let go, then grabbed her hair again. Barbara continued to argue with defendant, who repeated the process of holding her head down and then letting it up as they drove down the freeway.

Defendant eventually turned the truck around and drove west on Interstate 80. Barbara, who was upset and crying, noticed defendant was holding a screwdriver to her knee in a threatening manner. As they continued to argue, Barbara grabbed tools from the floor of defendants truck and threw them out the window so defendant could not hit her with them. Barbara also traded her cell phone for the screwdriver held by defendant, who then threw the phone out of the window.

Defendant held Barbara down for most of the drive west. At around 4:00 p.m., defendant turned off Interstate 80. He told Barbara he was going to take her to a place where other people would have sex with her. She did not take this seriously but became more concerned when she noticed defendant was driving on a little country driveway type thing.

Now off the freeway, defendant stopped the truck in a secluded area and told Barbaras daughter to lie down in the farthest back seat of the Suburban. He then told Barbara to perform oral sex on him in the front seat of the Suburban. Barbara asked, [W]hy are you doing this, David, dont do this right now. However, since her daughter was in the back seat and she did not want to make a big scene, Barbara complied.

According to her testimony, Barbara might have been a little unhappy about it, but she was not afraid of defendant and did not remember saying she was at the preliminary hearing. She gave in to him more so voluntarily than forcefully because he didnt push my head down and make me do it. Barbara also testified, I didnt want to do it. He knew I didnt want to do it, and she communicated this to defendant.

After Barbara stopped, defendant told her to take off her clothes and get on top of him. She complied and started having sex with defendant. As this happened, defendant said to Barbaras daughter, see what happens when you act stupid? Barbara stopped and got off of defendant at around 5:30 p.m. According to her testimony, once Barbara did get into the sex with defendant, she enjoyed it. She did not believe she had been raped.

Barbara put her clothes on and told defendant she would drive them back. She got the truck back on the freeway and was headed toward home, but the Suburban, which was in the middle lane, stalled and would not start again. It was eventually towed to a location close to a Safeway store in West Sacramento, near the freeway exit.

Barbara told defendant to stay in the Suburban and charge his cell phone while she and her daughter walked to Safeway to get something to eat. She first went into a Rite-Aid store to get a drink for her daughter; as she was leaving the store, defendant came in, then went with them to Safeway.

Barbara bought a plate of food for her daughter, then sat on a bench inside Safeway so her daughter could eat. Defendant wanted to leave, and the couple started to argue. Defendant wanted Barbara to come with him, but she refused. As the argument continued, Barbara told defendant she would find her own ride home. Defendant, who would not leave, paced outside the stores door for a minute.

Barbara went to the customer service area to use the phone and arrange a ride home. Defendant followed Barbara there and continued to insist that she and her daughter leave with him. They went back to the bench where they had been sitting, and defendant told Barbara that if she did not leave he would drag her out. Barbara pushed her daughter toward a cashier and told the cashier to call the police if defendant did something. The police soon appeared. Barbara was not afraid of defendant but did not want to take the chance of being beaten up by him. Barbara was more ashamed and embarrassed than actually afraid.

Barbara remembered talking to a police officer that night and giving a taped interview about the incident a few days later. She accepted the officers offer to get an emergency protective order. Barbara later filed for and received a domestic violence restraining order against defendant.

Some time after the restraining order was issued, Barbara signed an affidavit to the judge stating she no longer felt threatened by defendant and did not want to press charges against him. Defendants sister had someone help write the statement, and she drove Barbara to get it notarized. Barbara never wanted to testify against defendant.

Barbara also testified about an earlier incident in which defendant hit her, giving her a black eye and some bruises.

West Sacramento Police Officer Mark Marquez responded to the domestic disturbance call on October 25, 2004, and interviewed Barbara at the Safeway store. She was visibly shaking and crying when Marquez met her. Barbara told the officer she was afraid of defendant because of things that had happened in the past. She told the officer that defendant made her do things in front of her child that she did not want to do. He asked Barbara if she wanted an emergency protective order and she said yes.

Officer Jill Rivera interviewed Barbara on October 28, 2004. An audio tape of the interview was played at trial and a transcript provided for the jury.^[2]

In the interview, Barbara said when they got on the freeway defendant grabbed me by my hair and um more or less just hitting me in the head and in the body areas and used a screwdriver to scare her. Defendant made sexual comments about her to Barbaras daughter and continued to hit me in the body area, in the head grabbing me by my hair. They got off the freeway in the Arden area, then got back on the freeway and headed north on Interstate 5 toward Woodland.

Defendant told Barbaras daughter to get in the third seat of the Suburban and lie down. He kept hitting Barbara and told her he was going to take her to a place where there would be men who would have sex with her for money. When he parked, defendant made her have oral sex with him and then made her take off her clothes and have sex with him while her daughter was in the back seat. At this point, defendant had stopped hitting me but he was still making me do these things, um.

Barbara told the officer she was scared, which is why she more or less did it willingly. Defendant hit me previously and I knew that he was capable of doing more harm to me than what he had actually done. He had hit her in the head and body area, but Barbara knew defendant can do a lot worse so she kind of went willingly and I, I just did what he told me to do.

Defendant was more relaxed after everything was kind of over with sexually and looked as if he would pass out, so Barbara drove the truck. The truck stalled, and eventually they were towed to the area near the West Sacramento Safeway. Defendant wanted her to walk back to the truck with him after she got the drink at Rite-Aid and food at Safeway, but Barbara did not feel safe. In the store, defendant told Barbara to leave with him and that if she did not, he would beat her up either inside or outside the store. She told a cashier to call the police after defendant got even angrier. When he found out the police were coming, defendant told Barbara something would happen to her, either inside or outside the store.

Over defendants objection, expert testimony was admitted on rape trauma syndrome and battered woman syndrome. The expert defined domestic abuse as psychological, physical, or sexual abuse by one intimate partner in an attempt to gain power and control over the other. A cycle of domestic violence -- where there is abuse followed by a honeymoon stage as the abuser tries to keep the victim placated, followed by more abuse as the abuser tries to regain power -- is common in these situations.

According to the expert, battered woman syndrome, now called intimate partner abuse, describes how victims, who often have little ability to leave the relationship, develop a sense of their environment in themselves that may not be reality, but is associated to this violent environment that theyre living in.

The expert described rape trauma syndrome as a term that helps one understand the implications of the trauma of having gone through a sexual assault. Victims disconnect from the extreme trauma of the event, thus displaying a flat affect when describing the details of the sexual assault. Individuals who go through traumas will compartmentalize their memories, forgetting certain events as a coping mechanism.

The cycle of violence can apply to people who are just dating rather than living together. Domestic violence victims will often recant after first reporting the incident to the authorities, as they often find the criminal justice system to be overwhelming. Victims will also minimize the abuse, both as a coping mechanism to stay in the relationship and to minimize their own responsibility and sense of shame. It is thus common for domestic violence victims to stay in a relationship with the abuser.

It is also common for victims of domestic violence who have been sexually assaulted to stay in the relationship, as the rape often deprives the victim of the strength to leave. The expert said it is common for a victim to give at least one statement regarding the assault and then later not want to press charges.

The expert never read the police reports, or met either defendant or the victim. The expert was only testifying about the syndromes generally, and was not saying whether anyone in particular was suffering from one of the syndromes.

DISCUSSION

I

Defendant contends the court committed structural error by giving the jury CALJIC instructions rather than CALCRIM instructions. We disagree.

The trial court discussed the jury instructions on October 14, 2005. On August 26, 2005, the Judicial Council withdrew its endorsement of CALJIC and adopted the new CALCRIM instructions, effective January 1, 2006. (See People v. Thomas (2007) 150 Cal.App.4th 461, 465 (Thomas); [as of Dec. 4, 2007].)

Under former rule 855(e) of the California rules of Court,^[3][u]se of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.

After the trial court told the parties it intended to use CALJIC No. 0.50, defense counsel informed the court that under former rule 855 of the California Rules of Court, the CALCRIM instructions were required where appropriate. The trial court declined to use the CALCRIM instructions, finding they were not yet mandatory; the court was accustomed to CALJIC; the CALCRIM version, CALCRIM No. 101, was very close to CALJIC No. 0.50; and the court did not have a copy of the CALCRIM instructions.

Although the CALCRIM instructions had been adopted at the time of the trial, the trial took place before their effective date. Defendant argues that during this period the court had the discretion to choose the appropriate instructions. He contends the court based its exercise of discretion on improper factors, such as familiarity and convenience, rather than on which instructions gave the more understandable and accurate statement of the law. This, he concludes, was an abuse of discretion.

A related problem was confronted in Thomas. There, the defendants trial apparently took place after the effective date of the CALCRIM instructions,^[4]but neither party requested the new instructions. (Thomas, supra, 150 Cal.App.4th at p. 465.) After noting that the trial court probably should have used the CALCRIM, not the CALJIC instructions, the Court of Appeal also recognized that the CALCRIM instructions were not mandatory, but merely strongly encouraged and recommended under the California Rules of Court. (Ibid.)

By adopting the CALCRIM instructions, the Judicial Council did not render the CALJIC instructions invalid or out of date. (Thomas, supra, 150 Cal.App.4th at p. 465.) CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. (Ibid.) The Judicial Council adopted the CALCRIM instructions simply because it viewed them as superior instructions. (Id. at pp. 465-466.) No statute, rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions. (Id. at p. 466.)

The court concluded that in the absence of a showing that the CALJIC instructions were erroneous or confusing when compared to their CALCRIM counterparts, the trial court did not err in giving the CALJIC instructions. (Thomas, supra, 150 Cal.App.4th at pp. 466-467.) Moreover, even if the instructions were erroneous, the error was harmless. The error, if any, did not affect the framework within which the trial proceeds, but is simply an error in the trial process itself. (Id. at p. 467.) Since the CALJIC instructions correctly state the law, the error in giving them is necessarily harmless since the jury was neither incorrectly nor inadequately instructed. (Ibid.)

We agree with Thomas. While defendant argues that several CALJIC instructions -- CALJIC Nos. 2.20 [believability of witness], 2.21.1 [discrepancies in testimony], and 10.00 [rape defined] -- are less clear than their CALCRIM counterparts, these CALJIC instructions neither confuse the jury nor misstate the law. The courts decision to use the much more familiar and still adequate CALJIC instructions before the CALCRIM instructions effective date was not error. If, as Thomas concluded, CALJIC instructions did not suddenly become a misstatement of the law on January 1, 2006, there is even less reason for them to be considered error before the effective date of the CALCRIM instructions.

Even if giving the CALJIC instructions was error, any error would be, as Thomas correctly concluded, necessarily harmless since the CALJIC instructions provide a correct statement of the law.

II

Defendants final contention relates to the expert testimony on rape trauma syndrome and battered woman syndrome. He argues that admitting the syndrome testimony was error because there was no evidence of juror misconceptions for the expert testimony to dispel. He is incorrect.

In an appropriate case, psychological evidence on such subjects as rape trauma syndrome, child molest syndrome, or battered woman syndrome may be admitted to disabuse jurors of common-sense misconceptions about the behavior of persons in the affected groups. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1401.) For example, if a victim delays complaining of an incident or, having complained, attempts to retract the complaint, syndrome evidence is admissible to explain such behavior. (See People v. Morgan (1997) 58 Cal.App.4th 1210, 1214-1216.) However, syndrome evidence generally cannot be admitted as proof that the incident in fact occurred. (Ibid.)

In determining whether syndrome testimony is relevant, courts do not look to whether the jurors harbored any misconceptions. As we have already noted, syndrome evidence is relevant to disabuse jurors of common-sense misconceptions raised by the evidence. In order for the syndrome testimony to be relevant, there must be sufficient evidence showing the relevant syndrome applies to the victim, and there must be a contested issue as to which [syndrome] testimony is probative. (People v. Gadlin (2000) 78 Cal.App.4th 587, 592.)

For example, [w]hen 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 that the victim is an untruthful or unreliable witness. (People v. Brown (2004) 33 Cal.4th 892, 906.) Also, 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. (Ibid.) In such cases, expert testimony on the relevant syndrome can assist the jury in evaluating the evidence. (Id. at p. 907.)

In the present case, there is substantial evidence Barbara was a battered woman within the experts definition of battered woman syndrome, as she testified to defendants beating her both during the current incident and on prior occasions. Her statement to the police and trial testimony also provide substantial testimony that rape trauma syndrome applies by virtue of her having been raped by defendant.

Barbaras trial testimony, when compared to her statement to Officer Rivera, tended to downplay defendants culpability by omitting his acts of violence against her and the amount of fear she felt toward defendant. Her statement that she started to enjoy the sex act with defendant is clearly inconsistent with the version of the rape she gave to Officer Rivera. Barbara also attempted to minimize defendants conduct through her testimony that she did not think she was raped, her desire not to testify against defendant, and her letter to the judge in which she expressed her desire not to press charges.

These discrepancies could lead the jurors to assume Barbaras statement to the police was untruthful. It is the type of misconception that can be explained by the battered woman syndrome and rape trauma syndrome evidence. Since the expert testified generally about the syndromes and did not attempt to conclude that a sexual assault had in fact been committed, defendant was not unfairly prejudiced by the testimony. We conclude the trial court properly admitted the syndrome testimony. For the same reasons, we also reject defendants due process attack on the syndrome evidence.^[5]

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code.

^[2] Respondents motion to compel transmission of Peoples exhibit No. 4, the audio tape of the interview, is dismissed as moot.

^[3] Rule 855 of the California Rules of court has since been renumbered rule 2.1050.

^[4] The Thomas opinion never specifies the date of the trial, but the statement CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006 (Thomas, supra, 150 Cal.App.4th at p. 465) strongly suggests the trial took place after the effective date of the CALCRIM instructions.

^[5] Defendant also contends that discovery violations warranted exclusion of the syndrome evidence. No support or analysis for this claim is given other than a bare citation to Penal Code section 1054.1. Contentions on appeal are forfeited by a party who fails to support them with reasoned argument and citations to legal authority. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)