P. v. Gani

Filed 9/24/07 P. v. Gani CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

Christensen, Glaser, Fink, Jacobs, Weil & Shapiro, Robert L. Shapiro; and Robert J. Waters, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Omar Farouk Gani beat, kicked, and slammed his cohabitants face into the floor, causing her to sustain facial injuries. He was charged with one count of inflicting corporal injury to a cohabitant resulting in a traumatic condition (Pen. Code, 273.5, subd. (a)) and one count of assault by means of force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) After deliberating an hour, a jury found defendant guilty of both counts, as well as found true allegations on both counts that defendant personally inflicted great bodily injury under circumstances involving domestic violence. (Pen. Code, 12022.7, subd. (e) & 1192.7, subd. (c)(8).)

On appeal, defendant contends that (1) there was insufficient evidence to sustain his convictions, (2) a defense alibi witnesss arrest for corporal injury to a child was improperly admitted to impeach and the error was compounded when the jury was instructed it could consider the prior misdemeanor conduct to assess the witnesss credibility, (3) he was denied the opportunity to probe the bias and motive of a prosecution witness, and (4) the trial court erroneously admitted expert opinion testimony regarding the psychology of domestic violence victims.

We conclude that there was sufficient evidence to support defendants domestic violence convictions. We further find the trial court erroneously allowed inadmissible evidence of a defense alibi witnesss prior arrest, however, the result would have been the same even without that evidence. We conclude the trial court properly exercised its discretion to curtail defense cross-examination regarding irrelevant matters. Finally we determine that the expert witnesses were properly qualified to testify regarding domestic violence. Consequently, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY^[1]

Sometime after 8:45 a.m. on April 15, 2004, Debra Kelly (Kelly) received a telephone call from her best friend and neighbor, Zaheera Noorbhai (Noorbhai). Noorbhai, who was crying so hard she could barely speak, asked Kelly to come over to her house. When Kelly arrived, she saw Noorbhais face was swollen; she had a fat lip, and a two to three-inch gash above her right eye that was so deep that the white of her forehead bone was visible. Noorbhais shirt was covered in blood. Inside Noorbhais kitchen, the walls and pantry were splattered with blood, a couple of pools of blood wet the floor, and blood covered the counters and had dripped into the sink.

When Kelly asked Noorbhai what happened, Noorbhai said that she and defendant were fighting, He beat [her] again, and she had fucked [her] life. Noorbhai related that defendant [beat] her with his hands until she fell to the ground, . . . kick[ed] her in the head . . . then he got on her back, . . . grabbed her hair and slammed [her head] into the linoleum. Kelly insisted that Noorbhai receive medical care at a hospital, but Noorbhai resisted, saying, [defendant] said all I need is a Band-Aid. Kelly finally persuaded Noorbhai she needed to be treated at a hospital. Noorbhai agreed, but only after she extracted from Kelly a promise that she would not divulge that defendant, Noorbhais husband,^[2]was the cause of her injuries. Because she was afraid, Noorbhai warned Kelly that she would tell hospital personnel that she fell off a ladder while trying to change a light bulb.

During the hospitals admitting process, Noorbhai repeatedly made Kelly reaffirm her promise not to divulge the true cause of her injuries, saying Promise youre not gonna say anything . . . [d]ont you say anything. I fell off the ladder. . . . Thats what Im going to say. Kelly responded, Okay, and Well, are you sure you dont want me to say anything? However, Kelly felt really wrong [and] bad about her promise. She came to the conclusion she had to break her promise to Noorbhai by reporting the matter because the beatings were getting worse. . . . [She] had never seen anyone get beaten like that . . . [a]nd [Noorbhai] was gonna end up dead.

Kelly told the hospital receptionist, My friend didnt want me to say anything, . . . but her husband is the one who did this. . . . She didnt fall off a ladder.

The emergency rooms treating physician and nurse determined Noorbhai suffered a laceration on one side of her face, bruising and swelling under the opposite eye and the opposite side of her face, and a swollen lip. The nurse, Teresa Gardner, received a report from the triage nurse that domestic violence may have taken place. Initially, Noorbhai told Nurse Gardner that nothing bad had happened, that she had just fallen. When Nurse Gardner probed further, asking Noorbhai if she had been hurt by someone, Noorbhai started to cry and would not look at her. Noorbhai said, I just cant talk about it. Nurse Gardner told Noorbhai she felt there was enough evidence for her to be concerned and had to follow-up on the possibility that domestic violence occurred by contacting law enforcement. Noorbhai became more upset and tearful, begging her not to contact police because she would find herself in more trouble. It would really be a problem, Noorbhai told Gardner.

Based on her 34 years of medical experience treating innumerable injuries, including those caused by falls from ladders, chairs, countertops, and kitchen sinks, interviewing numerous domestic violence patients, the nature and locations of Noorbhais injuries, Noorbhais demeanor, and her training in recognizing domestic violence, Nurse Gardner opined that Noorbhais injuries were a result of someone assaulting her and not the result of a fall. Nurse Gardner testified she could tell that a fall from a ladder did not cause all Noorbhais injuries at the same time due to the fact that the laceration was on one side of the face, the bruise and swollen eye were on the other side of the face, and the swollen lip was on the lower front of the face.

Because they are mandated reporters, hospital staff reported Noorbhais treatment for suspected domestic violence injuries to law enforcement. Upon learning the police were contacted, Noorbhai became stressed and insisted to Kelly that she had to leave the hospital. Noorbhai angrily confronted Kelly, demanding to know why Kelly lied and told the hospital staff defendant was responsible for Noorbhais injuries. Noorbhai and Kelly left the hospital.

A deputy sheriff was dispatched to the hospital to investigate. As Noorbhai was no longer at the hospital, the deputy went to Noorbhais house to contact her. No one at the residence answered the door or picked up the phone. The deputy left his business card at the home.

Noorbhai called the deputy the next day. The deputy spent an hour on the phone with Noorbhai, developing rapport with her and finally asked to meet her in person. Noorbhai finally relented and agreed to meet with the deputy.

When they met, the deputy observed Noorbhais whole face was swollen; she had a large two and one-half inch sutured gash above her right eye, a swollen black eye with bruising underneath, and a swollen upper lip. Noorbhai refused to allow the deputy to take pictures because it could possibly lead to her husbands arrest. She explained its not like her husband comes home and beats her on a regular basis. Noorbhai changed the subject each time the deputy brought up the topic of domestic violence.

A couple of days later, the deputy arrested defendant.

Shortly after her hospital visit, Noorbhai called Nurse Gardner and told her Thank you for caring, but wondered why she would care about someone she didnt even know. Gardner replied that as a nurse and as a woman, she didnt want to see this happen to her. Noorbhai started to cry.

At trial, the prosecution called Sheddi Skeete, a former Montebello police officer, who testified that he witnessed an act of domestic violence committed by defendant against Noorbhai on April 23, 2000. He recalled that after Noorbhai requested his assistance, she declined to prosecute. He testified he had received training to investigate domestic violence and had personally investigated 100 cases of domestic violence. He explained domestic violence victims will make a statement that they later recant. He described that at the scene, a victim is upset, heated, and agitated; however, once an investigation is conducted and the victim realizes the aggressor is going to jail, she recants.

The responding deputy, Deputy Porrazzo, also testified that he had investigated over 400 domestic violence cases, received 40 hours of domestic violence basic training at the academy and received eight hours of supplemental domestic violence training yearly. He described how domestic violence victims are reluctant to testify against their abusers and often minimize their injuries. When asked what causes victims to stay in abusive relationships, minimize the extent of their injuries and minimize their abusers culpability, the deputy explained that domestic violence victims fear further physical abuse and loss of financial support.

During her trial testimony, Noorbhai stated she had not argued with defendant on that day. She stated her injuries were a result of her falling off a plastic stool she placed on top of a cutting board upon her kitchen countertop while she was changing a recessed light bulb. However, Kelly testified she never saw a plastic stool atop a counter or a light bulb in the kitchen on that date.

Defense witness Leon Richardson, a handyman who worked for defendant, testified that defendant was with him at defendants store in Perris at 9:00 in the morning of April 15, 2004.

During his closing, defense counsel argued that jurors should disregard any evidence the prosecution submitted on other acts of domestic violence. He also said that Noorbhai sustained injuries on April 15, 2004, but it was a result of a fall and not domestic violence. He asserts that if it truly had been domestic violence, Kellys husband, a police officer, would have shown up. Finally, he said Nurse Gardners testimony was tainted by Kellys false report of domestic violence, thus causing her to wrongly suspect domestic violence by defendant.

The jury found defendant guilty of both counts, as well as found true allegations that defendant personally inflicted great bodily injury under circumstances involving domestic violence on both counts.

DISCUSSION

A. There Was Sufficient Evidence to Support Defendants Convictions for Domestic Violence

Defendant contends there was insufficient evidence to sustain the convictions. He maintains he was already at work at his store in Perris, and not at his Temecula residence at the time of the incident. He asserts that Noorbhai was the only witness who was present when the injuries occurred, and that she never told Kelly defendant had assaulted her. He claims Kellys testimony was biased and not credible: she had a preconceived idea that defendant inflicted the injuries. The prosecutions own witness, Nurse Gardner, testified that Noorbhai stated on her admittance form that she was not a victim of domestic violence.

In reviewing an appellants insufficiency of evidence arguments, the question is not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether there is substantial evidence of appellants guilt. (In re Michael M. (2001) 86 Cal.App.4th 718, 726.) Substantial evidence is evidence of credible and solid value, from which a reasonable trier of fact could have found guilt beyond a reasonable doubt. (Ibid.) The judgment must be affirmed if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] (People v. Rowland (1992) 4 Cal.4th 238, 269.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence. [Citation.] (People v. Staten (2000) 24 Cal.4th 434, 460.)

We conclude there was reasonable, credible, and solid evidence to show defendant inflicted a corporal injury upon Noorbhai, resulting in a traumatic condition, that he assaulted Noorbhai by means of force likely to produce great bodily injury, and inflicted great bodily injury upon Noorbhai.

[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66.)

Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Here, the evidence, though circumstantial, amply supported defendants convictions for inflicting great bodily injury on his cohabitant.

The physical evidence undermines defendants claim that Noorbhai was injured as a result of a fall. Noorbhai sustained injuries to the right side of her forehead, underneath her left eye, and her lips. Nurse Gardner testified when a person falls, the force of the impact would cause injuries to only one side of a persons face. According to the laws of physics, a fall from a ladder would not cause all those injuries at the same time. Because Noorbhai was injured on both sides of her face, it is logical to conclude that she did not fall off a stool on a countertop, but rather was assaulted, as there were injuries on three quadrants: the right, left and front sides of her head. If she had fallen, she would have only sustained injuries on one side of her head.

Furthermore, if Noorbhai had accidentally slipped and fell, Kelly would not have seen blood splattered throughout the kitchen. A fall would have limited blood to being spilled to a limited space inside the kitchen. However, blood splattered on the walls, the pantries and the countertops, and collected in two separate pools on the kitchen floor would more likely occur if there had been an assault, rather than a fall.

In addition, Noorbhai made several admissions that defendant was her batterer. She called Kelly after defendant left for work and asked her to come over. She confessed that defendant beat her again. When Kelly insisted on medical treatment, Noorbhai extracted a promise from Kelly that she not divulge that her husband caused her injuries. She became angry at Kelly when she exposed her secret by telling the hospital staff defendant was the one who inflicted her injuries. At the hospital, Noorbhais demeanor became teary and fearful when Nurse Gardner broached the topic of domestic violence. A couple of days later, Noorbhai thanked Nurse Gardner for her concern when Gardner said she did not want to see this [domestic violence] happen to her. Noorbhai impliedly acknowledged defendant assaulted her when she tacitly stated to the deputy that, its not like her husband comes home and beats her on a regular basis.

Noorbhai also changed her stories on how she sustained the injuries. First, she told Kelly that she would report she was injured when she fell off the ladder while changing a recessed light bulb on the kitchen ceiling. She continued that deception at the hospital with the nursing staff. At trial, her story changed: she testified she injured herself when she fell off a kitchen stool that was placed on top of a cutting board that lay upon a kitchen countertop while changing a light bulb. Needless to say, she described a precarious scenario. However, Kelly testified that when she went to Noorbhais house immediately after her telephone call, she did not see either a plastic stool or a light bulb.

Noorbhai acknowledged to two other people that her trial testimony was false. Kelly testified Noorbhai notified her before trial, that When I go to court . . . Im telling you that I am gonna look you in your . . . eye and Im gonna say that youre a liar to your face. . . . And Im telling you right now that Im apologizing now, and Im asking you to forgive me. Noorbhai continued, Im sorry, but Im going to lie to your face and say that you are a liar in court. . . . Because Im not ready for this. We note that a jury may consider a witnesss admission of untruthfulness in determining her credibility. (Evid. Code,^[3] 780, subd. (k).)

There is overwhelming evidence that defendant assaulted Noorbhai. Because there is reasonable, credible, and solid substantial circumstantial evidence, we conclude the evidence was sufficient to support defendants convictions. (People v. Lewis (2001) 25 Cal.4th 610, 645.)

B. While Evidence of a Witnesss Prior Arrest is Inadmissible, Exclusion of that Evidence and Accompanying Instructions Would Not Have Changed the Result

Defendant complains that the trial court erred when it allowed the prosecutor to impeach defense alibi witness Richardson with his prior arrest for inflicting corporal injury on a child. He claims if Richardsons credibility had not been impeached, the jury would probably have believed his testimony. He contends the jury would have concluded defendant was not at home at the time Noorbhai received her injuries and thus would have found him not guilty. He also asserts the error was compounded when the trial court gave the following instructions: (1) CALJIC 2.23.1 [] BELIEVABILITY OF A WITNESS--COMMISSION OF MISDEMEANOR [] Evidence has been introduced for the purpose of showing that a witness, Leon Richardson, engaged in past criminal conduct amounting to a misdemeanor . . . .; and (2) CALJIC 9.36 [] CHILD BEATING (PEN. CODE, 273d).

While the People concede it was inappropriate to impeach a witness with a mere arrest, corporal injury to a child is misconduct involving moral turpitude, which was relevant and admissible for impeachment. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522 (Lopez).)

We review rulings made by the trial court on evidence admissibility under an abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 723.) Evidentiary rulings will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

A party can attack the credibility of a witness either by proffered extrinsic evidence or by cross-examination of a witness. (People v. Allen (1978) 77 Cal.App.3d 924, 931; People v. James (1976) 56 Cal.App.3d 876, 886; Jeffersons Evidence Benchbook, 28.7, p. 535.) Although Richardson denied the allegations, it was not error to admit testimony about prior misconduct based upon the witnesss testimony alone.

However, we agree with the parties concession that an arrest cannot be used to impeach a witness. It is more prejudicial than probative to attack a witnesss credibility with his prior arrest, as it suggests to the jury that the witness had a bad character. It is only weakly probative because prior arrests do not necessarily show a willingness to distort testimony. (Lopez, supra, 129 Cal.App.4th at p. 1523.) Therefore, we find that the trial court abused its discretion in allowing the prosecution to impeach Richardsons credibility with his prior arrest.

Although the trial court abused its discretion in allowing the prosecution to impeach Richardson with his prior arrest, we do not find the result would have been any different had Richardson not been impeached with his prior arrest.

We review evidentiary errors under the Watson^[4]standard of review. Under Watson, an error is prejudicial if, in light of the record, it is reasonably probable that the jury would have reached a result more favorable to a defendant had the court not erroneously excluded the evidence. (See People v. Mullens (2004) 119 Cal.App.4th 648, 669.) In this instance, the jury would still have found defendant guilty beyond a reasonable doubt for inflicting corporal injury upon and battering Noorbhai.

As we discussed previously, there was overwhelming evidence proving defendant injured Noorbhai. Based on the location of her injuries, Noorbhais admissions, her fearful demeanor, the physical blood splatter evidence, and the absurdity of her claim that she fell from a stool perched on a cutting board, we find that it was not reasonably probable that the jury would have reached a not guilty verdict if Richardsons arrest was excluded.

Moreover, Richardsons testimony does not establish a complete defense; he was equivocal regarding the time he arrived at work. He testified that when he got to work between 9:00 and 9:15 in the morning, defendant was already at his Perris store to let him in. This testimony does not assure an airtight alibi that defendant was in his Perris store and not at his Temecula residence at the time Noorbhai was injured. Defendant left his home between 8:30 and 8:45 a.m. It is possible defendant could have traveled that distance and arrived at his store by the time he let Richardson into work.^[5]

Finally, Richardson denied the allegation that he inflicted corporal injury on minors. He testified he never struck the children and did not cause any injury.

We also disagree with defendants claim that the trial court gave faulty instructions regarding impeachment evidence. The trial court gave CALJIC No. 2.23.1 (Believability of a Witness-Commission of a Misdemeanor) and CALJIC No. 9.36 (Child Beating). These instructions clearly recite the law that prior misconduct can be used for the limited purpose of determining the believability of a witness. The prior arrest does not impair credibility, but was only one of the circumstances that could be considered in weighing credibility. Erroneously admitting Richardsons prior arrest and instructing the jury to weigh that evidence did not, a fortiori, compel the jury to find defendant guilty. Even if the instructions had not been given, the result would have been the same: the overwhelming evidence supported the jurys conclusion that defendant battered Noorbhai.

C. Limiting the Defenses Cross-Examination of Kelly Was Not an Abuse of Discretion

Defendant contends the trial court erroneously curtailed his ability to explore Kellys bias and motivation for testifying against him. He claims defense counsel should

have been allowed to impeach Kelly regarding: (1) her being a victim of domestic violence, (2) her troubled marriage, and (3) her apparent fascination with [Noorbhai] and her family, as evidenced by her characterization of [Noorbhai] as her best friend after only approximately 10 months.

Citing section 780, defendant argues that Kellys personal experience with domestic violence has tendency in reason to affect [her] credibility. He asserts the jury would have evaluated Kellys credibility differently had they known she was a battered womanher domestic violence trauma may have caused her to see common elements between her plight and her neighbors plight, and thus color her testimony accordingly. He also asserts that limiting his ability to cross-examine Kelly violated his Sixth Amendment right to confront and cross-examine witnesses.

Defense counsels cross-examination of Kelly only comprises nine pages of transcript. During Kellys cross-examination, defense counsel never asked her whether her marriage was troubled or whether she was fascinated by Noorbhai and her familial relationships. The only line of questioning raised and excluded by the trial court was whether Kelly herself had been battered. Defendant did not raise below the specific claim that Kelly was biased in the prosecutions favor because she had a troubled marriage and was inappropriately fascinated by Noorbhai.

To preserve an error for appeal, an offer of proof must inform the trial court of the purpose, and relevance of the excluded evidence. [Citations.] This is in accord with the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.] (People v. Valdez (2004) 32 Cal.4th 73, 108.) This allows the proponent of the evidence to lay an additional foundation for its admission. (People v. Morris (1991) 53 Cal.3d 152, 187-188, cert. den. sub nom. Morris v. California (1991) 502 U.S. 959, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1.) The failure to raise these specific claims in the trial court waives the matter on appeal. ( 354, subd. (a); People v. Fauber (1992) 2 Cal.4th 792, 854.)

Defendant did not make an offer of proof that he had evidence substantiating his allegations that Kelly had a troubled marriage or was inordinately fascinated with Noorbhai. Neither did defense counsel explain the relevancy of this evidence to the trial court. The only intimation defendant made in his brief was that Kelly was displacing her pain.

With respect to defendants assertion that section 780 allowed him to cross-examine Kelly on all matters affecting her credibility, we find that the trial court was within the sound exercise of its discretion in precluding this line of questioning, based upon the virtual certainty that it would have resulted in a lengthy and confusing mini-trial. (People v. Hart (1999) 20 Cal.4th 546, 604-607.)

A trial court has the discretion to admit or exclude evidence offered for impeachment under section 352. (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) A trial courts exclusion of evidence under section 352 is reviewed for abuse of discretion. (Ibid.) A trial court abuses its discretion when it rules in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (Id. at pp. 9-10)

Contrary to defendants assertion, section 780 does not grant litigants an unbridled right to prove the existence or nonexistence of any fact. Rather, it provides that the trier of fact may consider any matter that has any tendency in reason to assess the truthfulness of her testimony. The fact that a witness may have marital difficulties or is unduly fascinated with a person is not relevant to credibility. Many people have marriage problems, and we suspect quite a few people may be fascinated by the affairs of others. However, these circumstances do not make a witnesss testimony any less credible. Any potential marital problems Kelly may have had or any purported fascination with the victim, does not make her biased against defendant, or inclined to slant her testimony in the prosecutions favor.

Even if we were to assume the trial court erroneously denied defense counsel the opportunity to cross-examine Kelly regarding her marital situation and her interest in Noorbhai, the result would have been the same. Reversal is only required when erroneous exclusion of evidence causes a miscarriage of justice. ( 354.) It was not reasonably probable that upon hearing evidence that Kelly may have suffered marital problems or may have been fascinated by Noorbhai, the jury would have reached a result more favorable to defendant. (People v. Earp (1999) 20 Cal 4th 826.) As the trial court noted in denying defendants motion for new trial, if, in fact, [Kelly] were a victim . . . of past acts of domestic violence . . . [i]f, in fact, she has an interest to protect other women, why, if this incident . . . did not occur, . . . would she have any motive to protect an alleged victim who was not a victim? I just think it was just too much of a stretch.

The testimony would have added little to the evidence presented regarding her credibility. Defense counsel was allowed to cross-examine Kelly fully. She testified regarding her emotional state under the circumstances: she was scared, frightened, upset and crying; he also suggested she was frantic. She discussed her telephone conversation with defendant: she did not know where defendant was at the time she spoke with him. The jury heard that Kelly went home and told her husband about the incident before she went to the hospital, but her husband did not call the police. For 18 months she delayed in turning over to law enforcement photos documenting a prior incident of domestic violence against Noorbhai. Finally, she expressed that defendant was concerned for Noorbhai and wanted to take her home from the hospital. Nothing more was necessary.

With respect to defendants constitutional claim, the issue has been waived as it was not raised in the trial court. (People v. Hines (1997) 15 Cal.4th 997, 1035.) Even if it had been raised, this contention is without merit.

The Sixth Amendments Confrontation Clause guarantees a defendant the right of an accused in a criminal prosecution to be confronted with the witnesses against him. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall.) [T]he right of confrontation [under the Sixth Amendment] includes the right to cross-examine adverse witnesses on matters reflecting on their credibility . . . . (People v. Quartermain (1997) 16 Cal.4th 600, 623.)

However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. (People v. Chatman (2006) 38 Cal.4th 344, 372.) A trial court has discretion to exclude impeachment evidence if it is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at p. 679; People v. Jennings (1991) 53 Cal.3d 334, 372; People v. Frye (1998) 18 Cal.4th 894, 946.) There is no Sixth Amendment violation unless the prohibited cross-examination might reasonably have produced a significantly different impression of [the witnesss] credibility . . . . [Citation.] (People v. Rodriguez (1986) 42 Cal.3d 730, 750-751, fn. 2.) The defendant has the burden of demonstrating that there would have been a significantly different impression of the witnesss credibility had the proposed impeachment been permitted. (People v. Williams (1997) 16 Cal.4th 153, 207.)

As discussed previously, Kellys involvement with domestic violence, her marriage, and her fascination with the victim is irrelevant in determining whether she had a motive to lie about defendant battering Noorbhai. Defense counsel fully cross-examined Kelly regarding the circumstances surrounding the charged offenses. Inquiry into these other matters was not reasonably likely to have produced a significantly different impression of Kellys credibility. (People v. Belmontes (1988) 45 Cal.3d 744, 780-781.)

Even if we were to find constitutional error, it would be harmless beyond a reasonable doubt. Improperly denying a defendant the opportunity to cross-examine an adverse witness on matters reflecting on the witnesss credibility is subject to the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). [U]nless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Chatman, supra, 38 Cal.4th at p. 372.)

The prejudicial effect of improperly restricting cross-examination is calculated by weighing a multitude of factors, including the cumulative nature of the lost information, the extent of cross-examination otherwise permitted, the degree of evidence corroborating the witness, and the overall strength of the prosecution case. (Van Arsdall, supra, 475 U.S. at p. 684.) On this record, precluding cross-examination regarding Kellys marriage, her prior domestic violence history, or her relationship with Noorbhai would not require reversal. (Chapman, supra, 386 U.S. at p. 24; People v. Ducu (1991) 226 Cal.App.3d 1412, 1415-1417.) The lost information was speculativethere was no evidence that Kelly had been a domestic violence victim or was abnormally fascinated with Noorbhai.

D. The Trial Court Properly Admitted Expert Witness Testimony

Defendant contends that the trial court abused its discretion in admitting the opinions of the emergency room nurse, the investigating deputy, and the former police officer as expert witnesses. Although he admits an expert can be qualified to testify in one particular area, he also states that an expert cannot testify on a closely related area where he does not have special knowledge, skill, experience, training, or education.

Specifically, he complains that the law enforcement officers could not offer their opinion that domestic violence victims often recant, blame themselves and stay in abusive relationships, as they did not have the specialized knowledge, skill, education or training to testify about the psychology of a domestic violence victim. Similarly, he asserts Nurse Gardner could only testify about the objectively verifiable medical and physical facts she observed, but was not qualified to testify that victims minimize their injuries, blame themselves for their injuries, and stay with their abusers. He argues that Nurse Gardners improper opinion was tantamount to saying Noorbhai was most likely untruthful, and thus proved the central accusation against defendant.

We apply an abuse of discretion standard in reviewing a trial courts decision to admit the testimony of an expert. (People v. Robinson (2005) 37 Cal.4th 592, 630.) Such abuse of discretion will be found only where the evidence shows that a witness clearly lacks qualification as an expert . . . . [Citations.] (People v. Chavez (1985) 39 Cal.3d 823, 828.)

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. [Citation.] Expertise, in other words, is relative to the subject, and is not subject to rigid classification according to formal education or certification. [Citation.] (People v. Ojeda (1990) 225 Cal.App.3d 404, 408.)

The pertinent question is whether expert opinion testimony would assist the jury, (People v. Prince (2007) 40 Cal.4th 1179, 1222), that is, whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth . . . . Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. [Citation.] (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.)

General testimony by an expert on the tendency of domestic violence victims to recant is necessary to disabuse the jury of the commonly held misperception that victims of crimes normally will not lie to protect the perpetrator. (People v. Williams (2000) 78 Cal.App.4th 1118, 1129.) Recanting is common, even after a first instance of abuse, and is not limited to situations in which abuse has extended over a period of time. (Ibid.)

Expert witness testimony is admissible under section 801. It provides: 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.

If the trial testimony of an alleged domestic violence victim is inconsistent with what the victim had earlier told the police, it is possible that jurors may conclude the victim is untruthful. (People v. Brown (2004) 33 Cal.4th 892, 906.) When the victims 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.) As it would assist the trier of fact in evaluating the credibility of the victims testimony by providing relevant information about the tendency of victims of domestic violence to later recant or minimize their description of that violence, expert witness testimony is admissible under section 801. (Id. at p. 905.)

Here, there was adequate foundation that Skeete and the deputy were experts and could qualify on matters where they have received specialized knowledge and skill. Skeete, a former Montebello police officer, testified he has been in law enforcement for 11 years, received training to investigate domestic violence, and had personally investigated 100 cases of domestic violence. The investigating deputy testified he had been a sheriffs deputy for five years, had investigated over 400 domestic violence cases and received 40 hours of domestic violence basic training at the academy. He also receives eight supplemental hours of domestic violence training on a yearly basis. The foundational elements were sufficient to establish both officers have specialized skill, training, and experience that would assist the jury in evaluating Noorbhais testimony. They are qualified to give an expert opinion that domestic violence victims are reluctant to testify against their abusers, change their stories, minimize their injuries, deny their abusers criminal culpability, and stay in abusive relationships for financial support and to ward off further abuse. (See People v. Fudge (1994) 7 Cal.4th 1075, 1120-1121 [officer qualified to testify as expert witness]; People v. Williams (1992) 3 Cal.App.4th 1326, 1330, 1332-1333 [officer qualified as expert witness].)

Nurse Gardner was qualified to testify regarding the behavior and demeanor of domestic violence victims, and need not be limited to merely describing a victims observable physical injuries. She has been an emergency room nurse for 34 years and attended three or four two-day domestic violence training classes. Having received instruction on the theory behind domestic violence enables her to identify victims of domestic violence. In her daily work in the emergency room, she encounters domestic violence victims on a fairly frequent basis. Over her 34 years of medical experience, she has treated innumerable injuries, among them injuries caused by falls from ladders, chairs, countertops, and kitchen sinks. She has conducted numerous interviews with domestic violence patients. Based on her specialized knowledge, skill, and training, she was qualified to testify that a fall from a ladder would not have caused all of Noorbhais facial injuries at the same time.

We conclude the testimony of the three experts were admissible under section 801 in that it assisted the jury in evaluating Noorbhais credibility when she testified she received her injuries as a result of a fall and was not caused by domestic violence abuse.

In addition to the officers and nurses testimony being admissible under section 1107, their expert testimony is also admissible under section 1107.

The California Legislature has expressly authorized the use of expert evidence regarding battered womens syndrome by enacting section 1107. (People v. Williams, supra, 78 Cal.App.4th at p. 1128.) The statute provides in pertinent part: (a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. [] (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven. ( 1107, subds. (a) & (b).) Because a syndrome involves a pattern of battering, meaning there are at least two or more incidents of domestic violence, section 1107 allows expert witness testimony as to the effects on victims suffering multiple acts of domestic violence.

Here, Skeete testified regarding an April 2000 incident where he witnessed defendant assaulting Noorbhai. Under the auspices of section 1107, Noorbhai may be considered a victim of intimate partner battering syndrome and expert testimony is admissible as to the effects of repeated battering. (People v. Brown, supra, 33 Cal.4th at pp. 907-908.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

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^[1] We view the facts in the light favoring the judgment as required by People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Staten (2000) 24 Cal.4th 434, 460.

^[2] Defendant married Noorbhai in a religious ceremony, but never legally formalized the marriage. Defendant lives with Noorbhai and is the father of her children.

^[3] All further statutory references will be to the Evidence Code unless indicated.

^[4]People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

^[5] We take judicial notice of the 22-mile distance between the cities of Perris and Temecula. ( 452, subds. (g) & (h) & 459.)