P. v. McGraw
Filed 9/16/13 P. v. McGraw CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
CALVIN McGRAW,
Defendant and
Appellant.
2d Crim. No.
B236410
(Super. Ct. No.
MA049580)
(Los Angeles
County)
Calvin McGraw appeals
the judgment entered following his conviction by jury of (1) corporal injury to
a former cohabitant (Pen. Code, § 273.5, subd. (a)),
special finding that appellant used a chair as a deadly weapon (§ 12022, subd.
(b)(1)), and personally inflicted great bodily
assault with a deadly weapon (§ 245, subd. (a)(1)), with a special finding of
infliction of great bodily injury.
Appellant waived jury on the prior conviction
allegations and the trial court found them to be true. It sentenced appellant to an aggregate prison
term of 22 years.
Appellant contends the
trial court erred by finding no prima
facie case of discrimination during voir dire, by failing to instruct the
jury sua sponte with CALCRIM No. 850
and by denying appellant's motion to reopen the evidence. He further contends trial counsel provided
ineffective assistance of counsel by not objecting to inadmissible expert
evidence as to the victim's credibility and by failing to request the CALCRIM
No. 850 limiting instruction. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Antoinette
Watkins, who were in an "on and off" romantic relationship for 30
years, began living together in 2006. At
1:45 a.m. on June 20, 2010, Watkins called 9-1-1 to report an
"emergency." She said that
appellant "beat [her] all in [her] face," causing so much swelling
she could "barely see."
Repeatedly naming appellant as her assailant, she said they started
fighting because "Shawn" had sent a text message to her phone. Watkins said that appellant "beat me
with a chair."
When Watkins saw the
condition of her face later that morning, she went to the sheriff's station. The deputies photographed her injuries, which
included two black eyes, a cut to her cheek requiring two stitches, a cut on
her arm and a fractured elbow. They also
called an ambulance to take her to the hospital, where she was interviewed by
Deputy Sheriff Robert Claus. Watkins
told him appellant had inflicted the injuries to her eyes and face. She explained that after she received a text,
appellant got angry and warned, "I am going to beat your ass." He took a chair and beat her with it in the
head and upper torso, causing her to lose consciousness. Watkins' son arrived and fought with
appellant, who left the house.
Two days later, Watkins
was interviewed on videotape by Detective Lisa Ashworth. Watkins was ambivalent about the incident. She said that after appellant threatened to
kick her out of the chair, "I got up and I grabbed the chair. I don't remember if I hit him first. I might have, he says I always hit him
first. I might have hit him first
because he approached me. [¶] Because if
he approached me I might have hit him first." She said she thought her eye injury came from
a fist, not the chair, "because all [she] felt was fists." Watkins stated that after she called the
police, her son started fighting with appellant. She said she bit appellant during this
fight.
Watkins went to live
with her son. A few months later, she
moved to California City, where she and appellant resumed their
relationship. She did so because she
loved him.
Before appellant's
trial, Watkins was placed in custody because she refused to testify. When she did testify, she said that she did
not want appellant to "get in trouble." Watkins acknowledged she made the 9-1-1 call
shortly after receiving her injuries, but said she lied when she told the operator
that appellant had beat her with a chair.
Watkins testified that she "busted [appellant] in the head with a
chair" because she was jealous of another woman. She explained that before the fight, they
were drunk and playing dominoes, and that she hit him first, causing the wooden
chair to break into pieces. She said the
next thing she knew, she was standing up and "everything was quiet and
over." She did not remember getting
hit or how she got her injuries.
Watkins testified that
after she hit appellant with the chair, she tried to stab him with a
knife. She said that after appellant
returned to the residence, her adult son jumped on him and she started biting
appellant. She testified that during her
interview with Detective Ashworth, she said she hit appellant with the chair
and that she hurt her arm while punching appellant and "sliding in the
water" on the floor. Watkins
testified she was sure she hit appellant first.
The audio and video tapes of the earlier interview were played to the jury.
Watkins denied telling
Deputy Claus that appellant had hit her with a chair. Watkins explained that during the incident
her bipolar condition "kicked in" and she became very irritated. She stated that if she drinks while on her
bipolar medication, as she was at the time of the incident, it does not work
and she gets irritable and violent. She
said she is schizophrenic, and described a situation in Memphis where she hit
appellant with a car. She testified that
she hits people first "quite often."
Shortly after the
incident, Watkins told her sister Lisa that appellant had caused her injuries
and that she was not going back to him.
Lisa testified she did not like appellant because he beat her sister. Lisa said that whenever she told Watkins to leave
appellant, Watkins always said "she's not going to take him back, for the
kids, and she's tired of dealing with him." But then Watkins would "take[] him back
every time."
Lisa stated that Watkins
told her that she was going to testify against appellant, but that
"eventually changed." Watkins
informed Lisa that she was not going to court and that she keeps going back to
appellant because he was her childhood sweetheart. Lisa recalled that Watkins also was the
victim of domestic violence in another relationship.
Appellant did not
testify or present any other evidence on his own behalf.
Subsequent
Confrontation
After appellant and
Watkins had reconciled, and before trial, California City Police Officer Jesse
Hightower responded to a 9-1-1 call of a man chasing his family with a
knife. When the officer arrived at the
scene, Watkins told him that appellant became angry when she called his
friend's wife a bitch. Appellant went
into the kitchen to get a knife. Watkins
and her daughter jumped out of the bedroom window and ran to a neighbor's house
for help. Watkins saw appellant pacing
outside their home with what appeared to be a six-inch knife in his hand. She told the officer she thought appellant
was going to kill her. This incident
resulted in appellant's conviction for brandishing a deadly weapon.
At trial, Watkins denied
that she told Officer Hightower that appellant had chased her with a
knife. She said "nothing
happened," and that she lied about the knife because she was still mad at
him about the June 2010 incident and wanted the police to take him to
jail. She did admit that she and her
daughter had jumped out of the window and had run to the neighbors' house. She testified she was afraid they were going
to have another fight, not that she was afraid appellant was going to kill
her.
Expert
Witness Testimony
Detective Lisa Ashworth
testified as a percipient and expert witness.
Based on her experience, she testified that victims of domestic violence
may recant and generally are not cooperative with the prosecution. She explained that domestic violence victims
may blame their abusers immediately after the incident, but within a short time
they will decide they do not want to testify against them. She noted that some victims return to their
abusers for a wide variety of reasons, ranging from financial dependence, to
fear, to love.
Detective Ashworth
observed that the differences between Watkins' description of the incident to
Deputy Claus and her June 22 interview with Detective Ashworth were indicative
of the minimizing behavior of persons who report domestic abuse. She testified that Watkins' conduct in
initially blaming appellant, but later blaming herself, was "consistent
with" that of a recanting witness.
The detective further opined, in response to questioning from the
prosecutor, that Watkins was a "recanting victim."
DISCUSSION
Batson/Wheeler
Motion
Appellant, who is
African American, contends the prosecution violated his
peremptory challenges to exclude from the jury a cognizable group of minority
women (one African American and three Hispanic women). The result, appellant contends, was a jury
lacking African American and Hispanic representation.
"[U]se of
peremptory challenges to strike prospective jurors on the basis of group bias
-- that is, bias against 'members of an identifiable group distinguished on
racial, religious, ethnic, or similar grounds' -- violates the right of a
criminal defendant to trial by a jury drawn from a representative cross-section
of the community under article I, section 16 of the California
Constitution" and "the defendant's right to equal protection under
the Fourteenth Amendment to the United States Constitution." (People
v. Avila (2006) 38 Cal.4th 491, 541, citing Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258, 276-277 (
Where, as here, a
defendant challenges the prosecution's use of peremptory challenges by way of a
Batson/Wheeler motion, he or she must comply with the following
procedures. "'First, the defendant
must make out a prima facie case "by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose." [Citations.] . . .'" (People
v. Williams (2013) 56 Cal.4th 630, 649.)
Second, if the defendant succeeds in making this prima facie case,
"'. . . the "burden shifts to the State to explain adequately the
racial exclusion" by offering permissible race-neutral justifications for
the strikes. [Citations.] Third, "[i]f a race-neutral explanation
is tendered, the trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination."' (Johnson
v. California (2005) 545 U.S. 162, 168.)" (Williams,
at p. 649; see also People v. Johnson
(1989) 47 Cal.3d 1194, 1216.)
The prosecution used a
peremptory challenge to strike Juror No. 10, an African American administrative
assistant with an ongoing "DUI" case.
Appellant objected that she was one of only two African Americans in the
initial 35-member jury panel and that there was no indication from voir dire
that she could not be fair. The trial
court determined that the excusal of one of the two African Americans did not
demonstrate a prima facie case of discrimination. Nonetheless, the prosecutor volunteered that
Juror No. 10 was "the only one with the open DUI here in the Antelope
Valley."
The prosecution also
excused three Hispanic women: Juror No.
12, a medical biller whose husband was twice convicted of assault with a deadly
weapon; Juror No. 14, a full-time nursing student; and Juror No. 30, a
full-time student studying to become a social worker. Appellant interposed a second
prosecution was systematically excusing "women of ethnic
background." The trial court again
determined the defense had not made a prima facie case of discrimination. The court observed that Juror No. 12's
husband had been convicted twice of assault with a deadly weapon. The court noted that Juror No. 30 was living
at home, that her mother was a nursing student and that the juror herself was a
full-time student studying to become a social worker. The court found that because of her work and
her mother's nursing ties, the juror "may be sympathetic to victims . . .
exposed to injuries, and having to deal with those things involving domestic
violence because of the nature of the work and what her studies are." The court made the same finding regarding
Juror No. 14, due to her full-time nursing studies. The court concluded: "On their face, [the challenges] don't
appear to be a systematic elimination of any particular race. [¶]
Counsel has excused as far as race is concerned total, four whites, four
Hispanics, and one African-American out of the nine. [¶] As
far as the nine peremptories, there's been six females and three males
excused. [¶] And I don't see a prima facie showing that
would warrant the justification for the People to respond."
As the People point out,
race-based discrimination is difficult to show from a small number of
challenges. In People v. Taylor (2010) 48 Cal.4th 574, 642-643 (
its ten peremptory challenges to excuse one Hispanic and two African-American
prospective jurors. The court concluded
that "[s]uch evidence, without more, is insufficient to create an
inference of discrimination, especially where, as here, the number of
peremptory challenges at issue is so small.
[Citations.]" (
"obvious race-neutral reasons for the excusal" of the prospective
jurors in question. (
Conceding
"objective race-neutral reasons for excusing [prospective] Juror Nos. 10
[ongoing DUI] and 12 [husband with history of assault]," appellant asserts
that no such reasons existed for striking the aspiring social worker and
full-time nursing student. We disagree. The record of voir dire evidences obvious
race-neutral reasons for striking both jurors.
In Taylor, supra, 48 Cal.4th
at page 644, the court determined that the record not only failed to support an
inference of discrimination, but it also showed obvious race-neutral reasons
for the excusal of the prospective jurors in question. Noting that the juror questionnaires revealed
that one of the prospective jurors was a probation officer and another was a
nurse, the court determined that "both were engaged in professions the
prosecutor reasonably could believe would tend to make them overly sympathetic
to the defense." (
excuse prospective juror based on belief that juror's occupation renders him or
her ill-suited to serve on that case].)
Here, the trial court reasonably concluded that full-time students
studying nursing and social work fall within the same category.
We conclude appellant
failed to satisfy his burden of showing an inference of discrimination, and
that the totality of the facts supports the trial court's denial of his
v. Jenkins (2000) 22 Cal.4th 900, 993-994.)
Ineffective
Assistance of Counsel
Appellant contends he
was denied his state and federal constitutional rights to effective assistance
of counsel because his trial counsel failed to interpose the correct objections
to Detective Ashworth's expert testimony:
first, as to the prosecutor's alleged misconduct in eliciting testimony
in violation of the trial court's limiting instruction and, second, by
permitting the admission of improper expert testimony as to Watkins'
credibility. We are not persuaded.
Before Detective
Ashworth was qualified to testify as an expert witness, the prosecutor stated
his intent to limit her testimony to "recanting victims" in domestic
violence cases. The trial court then
asked the witness: "And you
understand if you are allowed to testify, you couldn't talk about this
particular victim or any opinions as to why she herself may be
recanting?" Detective Ashworth responded: "That's correct."
Detective Ashworth
testified about the generic patterns of behavior associated with victims of
domestic violence, including their tendency to recant their accusations against
the abuser, to minimize the events, to blame themselves and to become
uncooperative with police. When the
prosecutor asked about her interview with Watkins, the detective
responded: "The story, she already
began to minimize the incident."
When the prosecutor asked her to explain what she meant by "minimize,"
the defense attorney objected, citing expert testimony and hearsay, and
requested a sidebar. The trial court
overruled the objections.
Thereafter, Detective
Ashworth testified that Watkins' behavior was consistent with a recanting
victim in that she minimized the event, changed her version of events after the
9-1-1 call and initial interviews and started taking the blame to protect
appellant. The prosecutor then
asked: "Based on your practical
experience and the information in your investigation of this case involving
Antoinette Watkins, do you have an opinion as to whether Antoinette Watkins is
a recanting victim?" She
responded: "Absolutely."
An expert generally may
not give an opinion as to whether a witness is being truthful because the determination
of credibility is not a subject sufficiently beyond common experience that the
expert's opinion would assist the trier of fact. (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 (Coffman).) But the court may
allow "expert testimony to explain to lay jurors conduct that may appear
counterintuitive in the absence of such insight." (People
v. Ward (2005) 36 Cal.4th 186, 211.)
The trial court admitted
Detective Ashworth's testimony that persons who report domestic abuse often
recant the accusation, finding that it was not common knowledge. Appellant contends the court erred, however,
in admitting her testimony that Watkins was a "recanting
victim." In Coffman, supra, 34 Cal.4th at page 82, the court observed that an
"expert may not testify about rape trauma syndrome, a condition analogous
to battered woman syndrome, in order to prove that a rape actually
occurred," but noted that "such testimony is admissible to
rehabilitate the credibility of the complaining witness against a suggestion that
her behavior after the assault -- such as a delay in reporting it -- was
inconsistent with her claim of having been raped." The court explained that while an expert may
discuss, "with reference to her expert knowledge, certain aspects of [a
victim's] behavior that a layperson might find irreconcilable with her claim to
have been battered," the witness may not testify that "she believed
[the victim's] claims of abuse and domination . . . were true." (Ibid.,
fn. omitted.)
Detective Ashworth did
not testify that Watkins' initial reports of abuse were true. Nor did she testify that Watkins' trial
testimony was false. Rather, she
testified that Watkins' subsequent disavowal of her earlier statements was
consistent with the detective's experience of witness recantation in domestic
abuse cases. Because the detective did
no more than explain that, in her experience, certain aspects of Watkins'
behavior are reconcilable with her claim of domestic abuse, the trial court
appropriately allowed the evidence. (
People v. McAlpin (1991) 53 Cal.3d
1289, 1299-1300, 1302 [expert testimony regarding failure of parent of child
molestation victim to promptly report abuse].)
The prosecutor did not
commit misconduct by soliciting the detective's opinions, and thus the
derivative claim of ineffective assistance of counsel fails. (See People
v. Marshall (1996) 13 Cal.4th 799, 832 [ineffective assistance claim fails
upon failure to establish prosecutor's misconduct].) Moreover, to prove ineffective assistance, a
defendant must show there is a reasonable likelihood the result would have been
different absent counsel's alleged deficient performance. (Strickland
v. Washington (1984) 466 U. S. 668, 687, 690-694 (Strickland).) Appellant
fails to make this showing.
That Watkins was a
"recanting victim" is apparent.
The jurors heard her initial allegations -- as described in her taped
9-1-1 call and in her interviews with Deputy Claus and Detective Ashworth --
and saw the graphic photographs of her injuries. The jurors also knew Watkins was in custody
during trial because she refused to cooperate with the prosecution. When she did testify, she admitted she loved
appellant and wanted to protect him.
Watkins' sister confirmed that Watkins originally planned to testify but
then changed her mind. Detective
Ashworth's opinion testimony was not necessary to establish that Watkins was a
"recanting victim."
In addition, the trial
court properly instructed the jury pursuant to CALCRIM No. 332 that it was not
required to accept the expert's opinion.
It was the jurors' responsibility to "decide whether information on
which the expert relied was true and accurate," and to disregard any opinion
they found "unbelievable, unreasonable, or unsupported by the
evidence." (Ibid.)
CALCRIM
No. 850
Appellant contends that
the trial court had a sua sponte duty to give CALCRIM No. 850 -- the pattern
instruction concerning testimony on intimate partner battering syndrome and its
effects as to the credibility of the complainant -- and that its
"failure" to do so was prejudicial error.
instruction, there was nothing to prevent the jury from using Detective
Ashworth's expert testimony as affirmative evidence of appellant's abuse.
Evidence Code section
355 provides that "[w]hen evidence is admissible
.
. . for one purpose and is inadmissible . . . for another purpose, the court
upon request shall restrict the evidence to its proper scope and instruct the
jury accordingly." "[A]bsent a
request by defendant, the trial court has no sua sponte duty to give a limiting
instruction." (People v. Macias
(1997) 16 Cal.4th 739, 746, fn. 3 (Macias);
People v. Jennings (2000) 81
Cal.App.4th 1301, 1316 (Jennings).)
Appellant acknowledges
that Detective Ashworth's expert testimony was "admissible . . . for one
purpose and [was] inadmissible . . . for another purpose" within the
meaning of Evidence Code section 355.
Because he did not request a CALCRIM No. 850 limiting instruction, the
court had no duty to give one. (
3; Jennings, supra, 81 Cal.App.4th at
p. 1316.)
Alternatively, appellant
contends his trial counsel provided ineffective assistance by failing to
request a limiting instruction. We agree
that a CALCRIM No. 850 instruction would have been appropriate based on the
evidence, but appellant has not demonstrated that his counsel's decision not to
request the instruction was prejudicial.
The prosecution presented substantial independent evidence from which a
rational jury could have found that Watkins' initial allegations regarding
appellant's conduct were truthful and that she subsequently recanted them to
protect appellant. Appellant has not, and
cannot, meet his burden of showing a reasonable probability he would have
obtained a more favorable result but for his counsel's failure to request the
instruction. (See Strickland, supra, 466 U.S. at p. 694.)
Motion
to Reopen Evidence
After the trial court
had instructed the jury and the prosecutor had given his opening argument,
appellant moved to reopen the evidence to introduce a CD ROM of 31 photographs
supposedly showing the injuries Watkins inflicted on him during the
incident. The photographs, purportedly
taken by appellant's sister, were date-stamped June 21, 2010, and appeared to
depict an abrasion on the right side of his neck, lacerations to his right arm,
back, right ear and right eye, and bite wounds on his arm and back. The trial court denied the motion, saying
that appellant knew about the photographs when they were taken the year
before.
A trial court has broad
discretion to reopen a case to allow additional evidence. (§§ 1093, subd. (d), 1094;
1506, 1520.) To assess whether the trial
court abused that discretion, we consider four factors -- the stage of the
proceedings at the time of the motion to reopen, the defendant's diligence in
presenting the new evidence, the prospect that the jury would give undue
emphasis to the new evidence and the significance of that evidence. (People
v. Jones (2003) 30 Cal.4th 1084, 1110; Funes,
at p. 1520.)
The late stage of the
trial and appellant's lack of diligence in proffering the evidence supported
the trial court's decision, as did the prospect that reopening the case at that
stage would give undue emphasis to the photographs. (See People
v. Jones, supra, 30 Cal.4th at p. 1110; People
v. Funes, supra, 23 Cal.App.4th at p. 1520.) The probative value of the photographs also
was questionable. (Ibid.) As the trial court
observed, "[t]he victim [Watkins] has already stated that she was
physically abusive with the defendant in the past. You were able to bring that in. You also brought in the information about
Tennessee and that was brought in, you have that information that the victim
had a propensity for violence and brought before the jury." Indeed, Watkins testified that after the
incident with the chair, her adult son attacked appellant and she started
biting appellant. The photographs would
have been cumulative to the extent they corroborated that testimony.
Cumulative
Error
Appellant contends the
cumulative effect of the purported errors deprived him of a fair trial. Having rejected his contentions on appeal, we
also reject his claim of cumulative error.
"There was . . . no error to cumulate." (People
v. Phillips (2000) 22 Cal.4th 226, 244.)
And, to the extent there was any error, appellant was not prejudiced
>
thereby. (People
v. Jenkins, supra, 22 Cal.4th at p. 1056.)
The
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
>
Daviann L. Mitchell
Superior Court County of Los Angeles
______________________________
Alex Green, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Louis W. Karlin, Deputy Attorney General, for
Plaintiff and Respondent.
All statutory references are to the Penal Code
unless otherwise stated.
No. 850 states: "You have heard
testimony from
women's syndrome/intimate partner battering . . .). [¶] ________'s
testimony about (battered women's syndrome/intimate partner battering . . .) is
not evidence that the defendant committed any of the crimes charged against
(him/her). [¶] You may consider this evidence only in
deciding whether or not _________'s
abused, and in evaluating the believability of (his/her) testimony."
