P. v. Candler

Filed 4/18/07 P. v. Candler CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On October 13, 2005, the Kern County District Attorney filed an information in superior court charging appellant as follows: count Iassault with a firearm (Pen. Code,^[1] 245, subd. (a)(2)), a serious felony ( 1192.7, subd. (c)(8)); count IIcriminal threats ( 422) while armed with a firearm ( 12022, subd. (a)(1)); count IIIinfliction of corporal injury ( 273.5, subd. (a)); and count IVfalse imprisonment ( 236).

On October 17, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.

On November 23, 2005, appellant rejected a plea offer of two years imprisonment despite a maximum exposure of six years eight months in state prison.

On December 12, 2005, the superior court ruled on various motions in limine and granted the prosecutions motion to introduce expert evidence as to battered womens syndrome (Evid. Code, 1107). On the same date, jury trial commenced.

On December 14, 2005, the jury returned verdicts finding appellant guilty as charged in counts I, II, and IV and finding him guilty of misdemeanor battery ( 243, (e)(1)), a lesser included offense of that charged in count III. The jury also found the special arming allegation associated with count II to be true.

On January 26, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of three years in state prison. The court imposed the middle term of three years on count I, imposed and stayed the middle term of two years on count II ( 654), and imposed and stayed a one-year enhancement on the arming allegation ( 12022, subd. (a)(1)). The court imposed a concurrent two-year middle term on count IV and a concurrent county jail term of 180 days on count III.^[2]

On January 26, 2006, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Facts Elicited on the Day of the Offenses

In 2005, appellant and Tomika resided in apartment C in a complex on Monterey Street in Bakersfield. They lived together with their infant daughter and Tomikas three minor children. On September 25, 2005, appellant and Tomika had an argument in the early afternoon. Appellant left with the baby, returned with the baby several hours later, and resumed the argument.

Bakersfield Police Officer James James received a radio call regarding the dispute and responded to the scene. He spoke to Tomika, who was upset, crying, and speaking loudly. Tomika said she had an argument with appellant at about 2:30 p.m. During that argument, appellant left with their infant. He returned to the apartment with the infant at 5:15 p.m. and he and Tomika resumed their argument. Tomika demanded that appellant return the baby to her. She also told appellant to leave the premises. When appellant refused, Tomika said she was going to call the police. Appellant responded by shoving her and telling her, Go ahead, call the police, Ill kill your ass right now.

Appellant told Tomika to get her kids, who were in apartment A of the complex at the time. As Tomika walked to the other apartment, she noticed her cordless telephone was on top of the apartment complex mailboxes. She took the phone and called 911 for help. Appellant looked out the window of apartment C and saw Tomika using the cordless phone. He ran toward her and rammed the top of her head into a closed door. He then grabbed her by the hair and by the neck and dragged her to apartment C. Before they re-entered the apartment, appellant grabbed Tomikas neck, pulled a firearm from his pants pocket, pointed it at her, and threatened to kill her. Tomika fell to the ground, assumed a fetal position, covered her head, and prepared to get shot.

Tomikas older daughters came outside and one of them said, [D]ont shoot my mom. Appellant responded, [G]et your little ass out of here or Ill shoot you [two] too. Appellant dragged Tomika into apartment C, pushed her onto a living room sofa, punched her left side, and threatened her. Appellant then went into the bedroom and picked up their infant daughter. As appellant did so, Tomika ran away to apartment A. Others in the area told Tomika that appellant had departed with the infant in a vehicle.

Officer James also spoke to Tomikas fellow residents, Rebecca Amador and Sonia A. Although they were initially reluctant to speak, they told Officer James they had seen appellant point a small black firearm at Tomika while he was choking her. They also said they heard appellant threaten to kill Tomika.

Just before 6:00 p.m., Kern County Sheriffs Deputy Arthur Ochoa and his partner, Deputy Dannick, were driving westbound on Niles Avenue when three female juveniles flagged them down. The three girls were standing at the corner of Niles and Robinson. They pointed in the direction of Monterey Street and said shes over there. Deputy Ochoa asked the girls to whom they were referring to and they said their mother. Deputy Ochoa determined the girls were referring to a broadcast report of a man who had taken a baby. When Deputy Ochoa contacted Tomika, she appeared upset and angry. She told Deputy Ochoa the appellant had taken the baby from her and said he was armed. She gave a physical description of appellant and the vehicle he was using. Tomika told Ochoa she had a bullet from appellants gun and handed the bullet to Ochoa.^[3] At that point, Ochoa turned the investigation over to the Bakersfield Police Department.

Bakersfield Police Officer Christopher Knutson also responded to the scene. He spoke with Tomikas neighbor, Dolores Amador,^[4]who said she heard appellant and Tomika arguing. Amador told Knutson she went outside her apartment and saw appellant choking Tomika with his arm. Appellant also pointed a firearm at Tomikas face and threatened to kill her. Tomikas older daughters told Officer Knutson they went outside their apartment and saw appellant point a firearm at their mother. When they yelled at him to stop, he yelled back and said he would shoot them if they did not go away. The two girls ran back into the apartment because they were scared.

Bakersfield Police Sergeant Greg Jehle also heard the radio broadcast of the crime on the evening of September 25. The dispatcher described the suspect vehicle as a white Oldsmobile with a license plate number of 5CKV270. Jehle responded to the area of the crime and saw the vehicle parked on south curb of the 1600 block of 11th Street. The car was facing eastward and the rear passenger door was open. An individual named Smith was standing outside the vehicle and appellant was seated inside the vehicle. Smith stepped away and Jehle ordered appellant out of the Oldsmobile and detained him. While Sergeant Jehle focused on appellant, Smith disappeared into an alley behind an apartment complex for about five minutes. Deputies did not find a gun on appellants person or in the car. Sergeant Jehle later conducted a search of the alley area but did not find a gun there.

At the Bakersfield jail, Officer James read appellant his rights under Miranda v. Arizona (1966) 384 U.S. 436. James told appellant that several witnesses saw him pointing a firearm at Tomika. Appellant told James he had a black and silver BB gun earlier in the day. Appellant claimed that gun resembled a .45-caliber automatic handgun. Appellant told James that prior to the incident with Tomika he had given the .45-caliber replica back to the person who had given it to him. Appellant also said his brother had given him a .25-caliber semiautomatic round and that he stored the round in a cup in his bedroom.

Facts Elicited at Trial

At trial, the prosecution played recordings of 911 calls made by Tomika and one of her daughters. In the first call, Tomika said her babys daddy, appellant, had taken the baby away from her. She gave a description of appellants vehicle, a license plate number for his vehicle, and said his drivers license was suspended. She also said he was driving to a specific address on Eye Street. Tomika said appellant pushed her down, she had staples in her stomach, and there was glass all around.

In the second 911 call, Tomika said appellant came back, pulled a gun on her, threw her on the ground, hit on her, and that her leg was all cut up and bleeding. She also told the 911 operator that appellant was dressed in a red shirt and some blue jeans.

In the third 911 call, Tomika again said appellant put a gun on her and threw her to the ground. She said he beat her up in front of her children and put the gun on her kids. Tomika also told the operator that appellant threw their eight-day old baby in his white Oldsmobile Delta 88 without strapping the baby in. She explained he was still armed with the gun. Tomika described appellant as a 19-year-old Black male with a bald head, red shirt, and blue jeans. At the end of the call she told the operator the police had arrived.

In the final 911 call, one of Tomikas older children said appellant pulled a gun on his mother and slammed her. The child gave a description of the apartment where the conduct occurred. The child said appellant took off with her little sister and said appellant did not strap the little sister in the car. The older child explained there was a car seat in the car but appellant did not strap up the little sister.

At trial, Tomika admitted, We got into it and he left with the baby. I got scared, I was already lost because I didnt get my medication or nothing, I was just really upset, I couldnt get my medication, I was scared. Tomika said she needed psyche meds because she is a paranoid schizophrenic. She said she did not want to be involved in the case and did not want to testify. She also said she did not want to get appellant into trouble [b]ecause it was my fault. Tomika said she told Officer James that appellant yelled at her and she called the police. She denied telling Officer James that appellant threatened to kick her ass. She denied telling Officer James that appellant slammed her head into the door of apartment A. She denied telling Officer James that appellant grabbed her by the hair or put his hands around her neck and dragged her toward apartment C. She admitted telling Officer James that appellant grabbed her by the shirt. She denied telling Officer James that appellant rammed the top of her head into a concrete block wall near apartment C. She also denied telling Officer James that appellant pulled a small semiautomatic gun from his pants pocket and held it at her. She further denied telling Officer James that appellant pointed the firearm at her face and said, Ill kill you, bitch. Tomika denied that her older children told appellant not to shoot her. She denied that appellant told the older children to [g]et your little ass away or Ill shoot you too. She also denied telling Officer James that appellant shoved her onto the apartment sofa and hit her in the left side of her head with his fist. She admitted giving officers a .25-caliber automatic round but said appellant was not the source of the round. Rather, Tomika said the round had been on the ground for a week or so and she was tired of the kids picking it up. Lastly, Tomika denied telling Officer James she was scared because appellant had said he was going to kill her. On cross-examination, Tomika said she had exaggerated some of what she told the 911 operator. For example, she told the operator her knees were cut up but the scraping only happened because she grabbed appellants shirt, he kept walking, and that caused her to fall. On recross-examination, Tomika said she thought Child Protective Services was going to take all of her children because appellant had taken her newborn from the apartment.

Dolores Amador testified at trial she was helping her sister-in-law, Rebecca Amador, move out of apartment B in the Monterey Street complex on the date the domestic violence occurred. Doloress cousin lived in apartment A of the same complex. When Dolores was in apartment A, she heard loud voices, looked outside, and saw a car drive off. Tomika was outside and Dolores asked whether she was all right. Tomika said she was fine but she just wanted the baby. Dolores denied telling officers that she saw appellant choke or point a gun at Tomika. She also denied telling officers that she heard appellant threaten to kill Tomika. Dolores admitted that Tomika was just really upset and that she wanted her baby. Dolores testified she did not want to be involved in the case because I didnt see anything, so I dont feel like Im any help to anything about the case.

The older daughter of Tomika who had called 911 also testified at trial. The older daughter said she did not remember handing one of the officers a bullet. She did not remember telling officers that appellant choked her mother. The older daughter said she never saw appellant near her mother, never saw appellant hit her mother, and never saw him point a black gun at her mother and threaten to kill her. The older daughter explained she was playing in the front yard and her brother was the only person in the back yard with appellant and her mother. The older daughter said Tomika injured one knee as she walked by the childrens dressers. She did not know how Tomika injured her other knee. Tomikas next oldest daughter also testified and denied telling officers that appellant threatened to kill their mother. The child also denied telling officers that appellant choked Tomika, touched Tomika, or pointed a gun at Tomika.

Sonia A. testified she was helping her sister, Rebecca Amador, move from the apartment complex on September 25, 2005. Sonia said she heard appellant and Tomika argue but thought they were playing around. She did not recall telling Officer James that appellant threatened Tomika, choked Tomika, or pointed a black handgun at her. Sonia said she was afraid of being in a courtroom but was not afraid of appellant.

Rebecca Amador testified a number of relatives helped her move from the apartment complex on September 25, 2005. Rebecca said she heard shouting and yelling that day but did not remember speaking to officers. She also did not remember telling officers that appellant had threatened, choked, or pointed a black handgun at Tomika. Rebecca admitted she did not want to be involved in this situation but claimed she was not afraid of appellant.

Defense

Appellant did not call any witnesses on his behalf. Defense counsel argued that Tomika had given birth to the infant just eight days before September 25 and she was depressed, on medication, and overly emotional. Counsel suggested that Tomika became angry when appellant took their child and called 911 as a way of getting the police to retrieve her child. Counsel argued that Tomika scraped her knee when she tried to chase appellant down. He noted the only visible injuries were to her knee and nothing suggested injuries from choking, punching, or being slammed into a door or concrete brick wall.

DISCUSSION

I.

WAS DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO

ADMISSION OF EXPERT TESTIMONY ABOUT BATTERED WOMENS

SYNDROME?

Appellant contends his defense counsel rendered ineffective assistance at trial by failing to object to the admissibility of expert testimony on battered womens syndrome.

On December 14, 2005,^[5]the district attorney filed a motion in limine in support of admission of battered womens syndrome pursuant to Evidence Code section 1107. The district attorney proposed to call Shafter Police Officer Christopher Jackson as an expert witness on domestic violence and argued:

Expert testimony in the area of the reactions of battered women to the attack and the attacker is of crucial importance in this case. Unlike non-domestic violent crimes against the person, domestic assault victims are frequently assumed to have asked for it in some way. Indeed, even the victims have assimilated this cultural expectation to such a degree that the emotional aftermath for the victim of an assault by a loved one is much more devastating than the consequence of a non-domestic assault. Other common misconceptions surrounding domestic abuse are that the victim could have left or could have reported the incident to the authorities immediately and must have liked it because she did not. The expert witness is vital to disabuse the jury of these notions.

The following exchange occurred at the December 12, 2005, hearing on motions in limine:

MS. HARTNETT [deputy district attorney]: [] I have also submitted a written motion regarding a motion in limine of admission of battered womens syndrome expert, and I did provide that to defense counsel.

THE COURT: Mr. Prince?

MR. PRINCE [deputy public defender]: I got that this morning, Judge. Theres no notice as to who the expert is or what, when. This is the first Ive heard of Ms. Hartnetts intent to have this witness. Id object to the admission.

THE COURT: Ms. Hartnett, do you have any information who its going to be?

MS. HARTNETT: I do, your Honor. Mr. Prince is familiar with Mr. Jackson. I think hes been involved in cases perhaps where he was an expert.

THE COURT: Maybe other cases, but have you supplied him information for this trial?

MS. HARTNETT: I have not. I just let him know it was Mr. Jackson. I do have his C.V. I dont have it present.

THE COURT: Youre going to have to do that.

MS. HARTNETT: Yes, your Honor, I intend to do that. Your Honor I would just call him depending on what, I dont know the victim, how shes going to testify, I havent had much contact with her. I know she doesnt want to come to court.

THE COURT: Youre going to have to give him the information. Mr. Prince, if it requires that you need additional time as a result of that, then Ill consider that. But Im not going to preclude her from that particular witness. I think thats a common type of witness in this type of case.

MR. PRINCE: And I had anticipated getting some information on that. I was surprised when I didnt, and this morning I get the information.

THE COURT: When she supplies you with the information, if theres anything on there thats unusual thats going to require you to take additional time, then Ill hear your request for that....

At the conclusion of trial proceedings on December 12, the following exchange occurred outside the presence of the jury:

MS. HARTNETT: For the record, defense counsel did tell me he wanted to ask some things about the expert the People intend to call in this case and I indicated to him, and I dont know if the Court would be willing to do this, but he could go ahead and voir dire the expert out of the presence of the jury if he would like, or in the presence of the jury. He was just questioning the expertise of this witness.

THE COURT: Im not trying this case, its up to you.

MR. PRINCE: I dont have any of the information that this expert supposedly relied on.

THE COURT: If its the battered womens syndrome, he does not rely on anything from this case, he simply expresses an opinion as to the syndrome. The jury has to be admonished and they will be admonished before he testifies, they cant use it for the purpose of showing what occurred in this event. Thats standard jury instruction.

Deputy District Attorney Hartnett called Shafter Senior Police Sergeant Chris Jackson to offer expert testimony about battered womens syndrome on behalf of the prosecution at trial. Defense counsel did not interpose an objection to that testimony. Detective Jackson, testified he had been a police officer with the City of Shafter for 11 years, the first six years as a patrol officer. During those years he had training in domestic violence for first responders, i.e., officers who are the first people to get a 911 call regarding domestic violence. After six years in patrol, Jackson became a detective and went to advanced classes on domestic violence investigation, crisis negotiations in domestic violence situations, battered womens syndrome, and training in relation to courtroom testimony and the recantation of witness testimony. As a detective, he studied the total dynamics of domestic violence cases, including domestic relationships, prior acts of violence, alcohol and chemical abuse, and courtroom preparation. Jackson said he had a lot of contact with alleged victims of domestic violence during his years as a patrol officer and detective. Jackson testified a victims reaction to a domestic violence incident will change significantly with the passage of time. Jackson said it is common for a victim to return to the abuser, recant his or her testimony, and accuse a responding officer of lying. Jackson said the officer who first responds to a domestic violence call will get the truest representation of the situation. According to Jackson, the victim starts to minimize things as time progresses.

Officer Jackson gave an example of a recent case in which he served as the watch commander on duty. He said a live-in boyfriend kidnapped his girlfriend, drove her to Mojave, held her for two days, repeatedly raped her, and beat her into unconsciousness requiring hospitalization. Jackson said by the time the boyfriend was tried, convicted, and sentenced, the victim was putting money on his books, writing letters, saying she would wait for him, coming in telling me I want to take it back, it wasnt that bad.

When the prosecutor posed hypothetical questions based on the facts of the instant case, Officer Jackson said he would not be surprised if a victim changed her story and said that domestic violence never happened. He also said it is very common for children who witness such violence to lie about it because they have the same interest in maintaining the family unit that the victim does .... Jackson also said that friends of a victim can change their story after initial contact with law enforcement because such people want to protect the victim. He said it is common for people not to understand the dynamics of domestic violence and to think that an abusive situation can be handled. Therefore, they recant or back off a story to keep what they believe is a successful family together.

At that point in Jacksons testimony, the court gave the following limiting instruction:

Evidence is being presented to you regarding intimate partner battering and its effect. Its sometimes referred to as battered womens syndrome.

This evidence is not received and must not be considered by you to prove the occurrence of the act or the acts of abuse which form the basis of the crimes charged.

Intimate partner battering and its effect is based on an approach thats completely different from the approach which you must take to this case.

The research on this subject begins with the assumption that physical abuse has occurred, and seeks to describe and explain common reactions of women to that experience.

As distinguished from that research approach, you are to presume that the defendant is innocent. The People have to prove guilt beyond a reasonable doubt. You should consider this evidence for certain limited purposes only, namely, that the alleged victims reactions as demonstrated by the evidence are not inconsistent with her having been physically abused, or the beliefs, perception or behavior of victims of domestic violence or proof relevant to the believability excuse me. Skip that. I think that covers it for now.

After the court instructed the jury, the prosecutor asked Officer Jackson several more hypothetical questions based on the facts of the instant case. Jackson essentially testified he would not be surprised if a victim or her children recanted or changed their version of events following incidents of domestic violence.

On cross-examination, Officer Jackson acknowledged he did not interview appellant or Tomika prior to testifying in the instant case. He further said he did not know anything about the specifics of the case and did not know anything about appellant or the victim, Tomika. Jackson did say, in his experience, an officer who first responds has always been able to differentiate between an incident that did occur and an incident that didnt occur. Jackson acknowledged that people sometimes use the police because they are angry at their partner. However, the officer who initially responds and the officer who conducts the supplemental investigation have to determine whether the complainants statements are accurate. Jackson admitted that the better job the first responding officer does, the easier it is to recreate the situation that occurred. He also admitted that information can be tainted if the first responding officer does a poor job. He also observed: But again, there are things that dont necessarily lend themselves to being tainted; photographs, recordings, statements of people that arent necessarily directly involved.

Appellant now argues in relevant part:

CALJIC No. 9.35.1 provides that the jury must not consider evidence of battered womens syndrome to prove the occurrence of the act or acts of abuse which form the basis of the crimes charged. Yet in this case, the jury was presented with no expert evidence about any such syndrome, its causes, characteristics, and manifestations. Rather, the jury was presented only with the conclusory testimony that victims of domestic violence are truthful in their initial allegations and later recant. Despite the cautionary language in the instruction, this testimony would create in the minds of the jurors a presumption that because [Tomika] made initial allegations to the police and later recanted, she must be a victim of domestic violence. The effect of this testimony was to reduce the prosecution case to little more than a syllogism: victims of domestic violence tell the truth to first responders and later recant; [Tomika] made allegations to the police and later recanted; therefore [Tomika] must be a victim of domestic violence. Thus, under the circumstances of this case, the expert testimony was used to prove the truth of the charges.

Under these circumstances, it was error for the trial court to admit the conclusory testimony of Detective Chris Jackson without any supporting evidence on the causes and effects of battered womens syndrome and without any evidentiary foundation in the record. [Citation.] Further, the record does not suggest that defense counsel made a deliberate decision not to challenge the admissibility of this evidence, nor could there have been a tactical reason to allow this evidence. [Citation.] Thus, counsel was ineffective for failing to object to the testimony of Chris Jackson. [Citation.]

Appellant frames his contention in terms of ineffective assistance of his defense counsel. An appellant bears the burden of proving ineffective assistance of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425; People v. Carter (2005) 36 Cal.4th 1114, 1189.) A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) A claim of ineffective assistance will not be accepted on direct appeal unless the appellate record makes clear that the challenged act or omission was a mistake beyond the range of reasonable competence. (People v. Montiel (1993) 5 Cal.4th 877, 911.) In that same vein, if a defendant has failed to show the challenged actions of counsel were prejudicial, the court may deny his or her claim of ineffectiveness without determining whether counsels performance at trial was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

Prejudice exists when there is a probability that, but for counsels failings, the result would have been more favorable to the appellant. A reasonable probability is one sufficient to undermine confidence in the outcome. (In re Neely (1993) 6 Cal.4th 901, 908-909.) The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (In re Visciotti (1996) 14 Cal.4th 325, 352.) In sum, the prejudice component of ineffective assistance focuses on the question whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.) A reviewing court will find prejudice when a defendant demonstrates a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Gurule (2002) 28 Cal.4th 557, 611.)

To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Hart (1999) 20 Cal.4th 546, 623-624.) Generally speaking, where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for writ of habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. (People v. Pope, supra, 23 Cal.3d at p. 426.)

In the instant case, appellant contends his trial counsel was ineffective by failing to object to Officer Jacksons testimony because there was no foundational evidence from which it could be found that she suffered from battered womens syndrome. In People v. Brown (2004) 33 Cal.4th 892, 895-896 (Brown), the defendant was tried on charges relating to domestic violence and the prosecution offered testimony from an expert witness to explain that domestic violence victims often later deny or minimize the assailants conduct. The defendant objected, contending such testimony did not fall within the scope of Evidence Code section 1107. The latter statute authorizes expert testimony on battered womens syndrome. He argued the prosecution had failed to show the alleged victim was a battered woman because it offered no proof that the defendant had abused her on more than one occasion. The trial court overruled the objection and admitted the evidence. The defendant was convicted and the Court of Appeal affirmed. Without reaching the question of the applicability of Evidence Code section 1107, the Supreme Court concluded the evidence was admissible under Evidence Code section 801, governing opinion testimony of expert witnesses.^[6] The Supreme Court concluded the experts testimony would assist the trier of fact in evaluating the credibility of the victims trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of the violence.

Appellant contends Officer Jacksons testimony was inadmissible under Evidence Code section 801 because it consisted primarily of conclusory statements about victims of domestic violence without any supporting or explanatory evidence, scientific, psychological or otherwise, to explain why this phenomenon exists or what causes it, such as an explanation of the recurring cycle of violence in battering relationships or the psychological impact of domestic abuse which would lead a victim to recant and reconcile.

California law permits a person with special knowledge, skill, experience, training, or education in a particular field to qualify as an expert witness (Evid. Code, 720) and to give testimony in the form of an opinion (Evid. Code, 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801, subd. (a).)

Evidence Code section 801 limits expert opinion testimony to an opinion that is based on matter perceived by or personally known to the witness or made known to (the witness) at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which the expert testimony relates. (Evid. Code,  801, subd. (b).)

Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. (1 McCormick, Evidence (6th ed. 2006) Requirement of Firsthand Knowledge, 14, pp. 86-89.) Such a hypothetical question must be rooted in facts shown by the evidence, however. (People v. Castillo (1935) 5 Cal.App.2d 194, 197-198.) Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, 801, subd. (b); People v. Montiel, supra, 5 Cal.4th at pp. 918- 919.) Of course, any material that forms the basis of an expert's opinion testimony must be reliable. (1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence,  31, p. 561.) So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070.) Evidence Code section 802 allows an expert witness to state on direct examination the reasons for his opinion and the matter upon which it is based. Therefore, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. (People v. Wash (1993) 6 Cal.4th 215, 251.)

A trial court, however, has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay. (People v. Price (1991) 1 Cal.4th 324, 416.) A trial court also has discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness against the risk that the jury might improperly consider it as independent proof of the facts recited therein. (People v. Coleman (1985) 38 Cal.3d 69, 91.) This is because a witnesss on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into independent proof of any fact. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1525.)

According to appellant, [t]he defense theory of the case, presented in the closing argument, was that after [Tomika] and appellant argued and appellant took the baby, [Tomika] was furious and wanted her baby back. [Tomika] decided to call 911 and make up a story about appellant assaulting and threatening her so the police would get her baby back for her. Generally speaking, an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the experts opinion would assist the trier of fact. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) However, whereas herethe testimony of an alleged victim of domestic violence is inconsistent with what the victim earlier told police, expert testimony is admissible under Evidence Code section 801. That is because it would assist the trier of fact in evaluating the credibility of the victims trial testimony and earlier statements to police by providing relevant information about the tendency of victims of domestic violence later recant or minimize their description of that violence. (Brown, supra, 33 Cal.4th at pp. 895-896, 906.)

Respondents motion in limine was expressly based upon Evidence Code section 1107. Appellant correctly points out that the Supreme Court in Brown stopped short of holding that Evidence Code section 1107 authorized expert testimony in a first time incident and instead relied upon Evidence Code section 801. Nevertheless, if a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below. (Brown, supra, 33 Cal.4th at p. 901.) To the extent the trial court admitted Officer Jacksons testimony on the basis of Evidence Code section 1107, the judgment need not be reversed because it was admissible under Evidence Code section 801 as interpreted in Brown.

Since Officer Jacksons testimony was admissible under Evidence Code section 801, appellants trial counsel did not render ineffective assistance by failing to object to his testimony. Where there is no sound legal basis for objection, counsels failure to object to the admission of the evidence cannot establish ineffective assistance. (People v. Cudjo (1993) 6 Cal.4th 585, 616.)

II.

SHOULD THE TERMS IMPOSED ON THE SPOUSAL BATTERY AND FALSE IMPRISONMENT COUNTS BE STAYED UNDER PENAL CODE SECTION 654?

Appellant contends the terms imposed on counts II (criminal threat), III (spousal battery), and IV (false imprisonment) should all be stayed pursuant to section 654 because all of the offenses were incident to a single objective.

The trial court sentenced appellant as follows:

The upper term is warranted in light of the aggravating circumstances outweighing the mitigating circumstances; however, I do note that this is the defendants first visit to prison. And that being the case, Im going to go with the mid term, rather than the recommended upper term in this case.

As to Count 1, probation is denied. And the defendant is sentenced to the Department of Corrections for the mid term of three years.

As to Count 2, probation is denied and the defendant is sentenced to the Department of Corrections for the mid term of two years.

That sentence to be enhanced by one year, pursuant to Section 12022(e)(1) of the Penal Code.

Punishment for that sentence is to be stayed, pursuant to Section 654 of the Penal Code, until the successful completion of the sentence imposed in Count 1, and then permanently thereafter.

That sentence is to be served concurrent with the sentence imposed in Count 1.

As to Count 4, probation is denied. And the defendant is sentenced to the Department of Corrections for the ... mid term of two years. That sentence is to be served concurrent with the sentence imposed in Count 1. [] ... []

As to Count 3, the defendants application for probation is denied. And hes sentenced to the Kern County Jail for a period of 180 days.

That sentence to be served concurrent with the sentence imposed in Count 1.

To summarize, the court imposed the middle term of three years on count I, a stayed middle term of two years on count II ( 654), a one-year arming enhancement on count II, a concurrent jail term of 180 days on count III, and a concurrent middle term of two years on count IV.

A. Governing Law

Section 654, subdivision (a) provides in pertinent part:

An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. (Italics added.)

The purpose of section 654 is to ensure that punishment is commensurate with a defendants culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The proscription applies to a course of conduct violating more than one statute, where the offenses were incident to one objective. (People v. Martinez (2005) 132 Cal.App.4th 531, 535.)

Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. Under California law, it is the defendants intent and objective that determines whether the course of conduct is indivisible. Thus, if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Le (2006) 136 Cal.App.4th 925, 931.) Moreover, section 654 prohibits multiple punishments, not multiple convictions. Thus, the sections proscription extends to include both concurrent and consecutive sentences, since even concurrent sentences may work a disadvantage to petitioner in the fixing of his term and parole date by the Adult Authority. (In re Adams (1975) 14 Cal.3d 629, 636.)

Section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) Once again, the divisibility of a course of conduct depends upon the intent and objective of the defendant. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

The question of whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial courts findings in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We uphold the trial courts findings when supported by substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.) Where the trial court does not make an express finding, an implied finding that the crimes were divisible must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) If section 654, subdivision (a) requires that a sentence be stayed, then concurrent terms pursuant to section 669 may not be imposed. (People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.) Where multiple punishment has been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)

B. Appellants Contention

Appellant argues:

The trial court sentenced appellant to three years on Count One (assault with a deadly weapon). [I]t is not clear whether the trial court stayed appellants sentence on Count Two (criminal threat) pursuant to Penal Code section 654 or ordered it to run concurrent with Count One. The trial court ran the terms imposed on Count Three (spousal battery) and Count Four (false imprisonment) concurrent with Count One (assault with a deadly weapon). This was error. Appellants sentences on Counts Two, Three and Four should have been stayed pursuant to section 654.

1. Conceded/Acknowledged Points

We initially note that respondent concedes the term imposed on count II should be stayed because it appears that appellant entertained the same intent when he assaulted [Tomika] with the firearm (count one) and made criminal threats with the use of a firearm (count two). His intent was to threaten and terrify [Tomika].

Respondent further concedes: An enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed. (People v. Guilford [(1984)] 151 Cal.App.3d [406,] 411. Therefore the firearm enhancement added to count two must also be stayed pursuant to section 654.

As to count III, respondent agrees with appellant that the sentence imposed should be stayed because appellant possessed one criminal objective when he battered and imprisoned [Tomika]: to assault [Tomika].

2. Count IV

Respondent nevertheless maintains the sentence imposed on count IV should be affirmed:

... [A]ppellant possessed one criminal objective in the commission of the assault with a firearm and threat with the use of a firearm crimes, and possessed a different criminal objective in the commission of spousal battery and false imprisonment. Appellants objective as to counts one and two was to threaten and terrify [Tomika]; his objective as to counts three and four was to assault [Tomkia]. Therefore, as appellants course of conduct was divisible and therefore [gave] rise to more than one act, section 654 does not preclude the sentence imposed for either counts three or four. (Kellett v. Superior Court [(1966)] 63 Cal.2d [822,] 824-825.) Accordingly, appellants sentence as to count four should be affirmed because it provides for the longest potential term of imprisonment ....

In framing this argument, respondent essentially maintains counts I and II entailed an intent to threaten and terrify while counts III and IV entailed an intent to assault. In doing so, respondent implicitly acknowledges that counts I and II, between themselves, entail the same intent and objective and counts III and IV, between themselves, entail the same intent and objective. However, respondent submits the court could properly sentence appellant on both counts I and IV because each set of substantive counts had a different and distinct intent and objective. Therefore, respondent concludes the trial court could properly impose a term of imprisonment on one count from each set without violating the prohibition of section 654. We disagree.

In People v. Martinez (1980) 109 Cal.App.3d 851, defendant was convicted of assault with intent to commit rape ( 220) and false imprisonment with force and violence ( 236) with several firearm and prior conviction enhancements. The defendant had assaulted his victim, dragged her under a bridge, and, after desisting from his attempted rape, held her for a few moments to attempt to convince her not to complain to police. The trial court imposed concurrent terms of imprisonment on the substantive counts. Defendant appealed and Division Four of the Court of Appeal, Second Appellate District, stayed the term imposed on the false imprisonment count. The court held: Under all of the cases applying section 654 of the Penal Code, only one sentence can be served for that sequence of events .... (People v. Martinez, supra, 109 Cal.App.3d at p. 858.)

The instant case presents a similar situation. Here, appellants actions in grabbing, dragging, shoving, threatening, punching, choking, restraining, and pointing a firearm at Tomika comprised a continuous course of conduct. Although respondent attempts to differentiate counts I and II from counts III and IV based on purportedly different objectives, the threatening, terrifying, and assault to which respondent alludes were intertwined as part of a single sequence of events. Moreover, respondent acknowledges that appellant battered and imprisoned [Tomika] pursuant to one objective: to assault her. Presumably that very same objective was underlying count I, which expressly charged felony assault with a firearm.

In our view, respondent fails to offer a logical argument to support its claim of a different criminal objective underlying count IV. The conduct underlying count IV facilitated the assault charged in count I and appellant possessed that very same objective when he committed both offenses. Thus, the arguably concurrent term imposed on count II, and the arming enhancement imposed on count II, as well as the concurrent terms imposed on counts III and IV, each must be stayed under section 654.

DISPOSITION

The terms imposed on counts II, III, and IV and the arming enhancement imposed on count II are each stayed pursuant to Penal Code section 654. In all other respects the judgment is affirmed. Thus, appellants total unstayed prison term is three years. The trial court is directed to prepare an amended abstract of judgment and to transmit certified copies of the amended abstract to all appropriate parties and entities.

_____________________

HARRIS, Acting P.J.

WE CONCUR:

_____________________

LEVY, J.

_____________________

GOMES, J.

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

^[2] In sentencing appellant, the court imposed the middle term of two years on count II and enhanced that sentence by one year pursuant to section 12022, subdivision (a)(1). The court then stated: Punishment for that sentence is to be stayed, pursuant to Section 654 of the Penal Code, until the successful completion of the sentence imposed in Count 1, and then permanently thereafter. The minute order of the sentencing hearing indicated: Count 2 stayed pursuant to PC 654. However, the abstract of judgment filed February 1, 2006, reflected an unstayed one-year enhancement pursuant to section 12022, subdivision (a)(1), resulting in a total term of four years in state prison (three years on count I and one year for the enhancement, which the court had stayed). On March 22, 2007, appellant submitted a motion for correction of abstract of judgment to this court, alleging: The total sentence imposed upon defendant in this case by this Court was 3 years. There is absolutely nothing in the record to suggest that this Court ordered a 4 year prison term. Yet, that is what the abstract of judgment says. We agree and have addressed this point in issue II and the dispositional paragraph at the conclusion of this opinion.

^[3] Officer James testified he received the bullet from Deputy Ochoa. According to James, Ochoa said he received the item from one of Tomikas older daughters. Sherrie Hill, a technician with the Bakersfield Police Department Crime Laboratory, testified she analyzed the bullet but could not find any latent fingerprints.

^[4] Dolores Amador was the sister-in-law of Rebecca Amador. Rebecca lived in another apartment in the complex and Dolores was visiting her and helping her move that day.

^[5] The court held a hearing on motions in limine on December 12, 2005 and the district attorney addressed the motion at the time. The clerk of the court apparently filed the motion subsequent to the date of the hearing.

^[6] Evidence Code section 801 states:

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

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

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