P. v. Johnson

Filed 5/30/07 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found defendant, Michael Tyrone Johnson, guilty of assault with force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)) and corporal injury to a former cohabitant, resulting in a traumatic condition (Pen. Code,  273.5, subd. (a)). As to both counts, the jury also found true the special allegations that defendant committed serious felonies and personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code,  1192.7, subd. (c)(8), 12022.7, subd. (e)). The trial court sentenced defendant to seven years in prison. On appeal, defendant alleges a multitude of errors, including evidentiary errors, instructional error, ineffective assistance of counsel, and cumulative error. We affirm.

FACTS

I. Prosecution Evidence

A. Events Prior to the Assault

The victim, P.G., met defendant in 2002, while both were employed at J.C. Penneys department store; defendant worked in loss prevention, and P.G. was a sales associate. P.G. was 17 years old, 4 feet 9 inches tall, and weighed 95 pounds. Defendant, who was considerably older than P.G., was 6 feet 1 inches tall, and weighed 220 pounds. P.G. and defendant began dating in late 2002 or early 2003. The relationship became serious after two months, at which time P.G. believed that she was in love with defendant. P.G. began living with defendant and his mother in early 2003. She lived with defendant and his mother for approximately six months.

Sometime in early 2003, defendant became violent with P.G. during an argument. P.G. testified that defendant was going to take me out of his house. Defendant held P.G.s clothes high in the air so that she could not reach them. When P.G. jumped up to reach her clothes, defendant grabbed her by the back of the neck and pushed her face down onto the floor. P.G. was not injured, but she was a little bit frightened. Defendant then threw P.G.s clothes out of the door. As P.G. was picking up her clothes, defendant shut the door. P.G. began crying, and was about to leave when defendant came back outside and apologized. P.G. accepted his apology, and she decided to keep living with defendant. P.G. did not report this act of violence to the police. She also did not tell her family about this incident because she knew that they would be upset about it.

P.G. eventually moved out of defendants home in the summer of 2003, after discovering that she had contracted herpes, a sexually transmitted disease (STD). P.G. believed that defendant had given her the STD because he was the only person she had been intimate with during that time period. When P.G. confronted defendant, he denied giving her the STD; P.G. believed that defendant was being unfaithful.

After moving out of defendants home, P.G. went to live with her mother in Los Angeles. P.G. lived in Los Angeles for a couple of months, during which time she kept in contact with defendant by text messages. In November 2003, P.G. moved back to her familys house in South San Francisco, where she lived with her father, stepmother, and sisters. P.G. and defendant reconciled near the end of 2003. P.G. and defendant no longer worked together, but they saw each other almost every day and had resumed their sexual relationship. P.G. believed that she had an exclusive dating relationship with defendant. Although P.G.s father gave his approval to the relationship, he refused to let P.G. spend the night at defendants home; P.G.s father also imposed an 11:00 p.m. curfew on her.

B. The Assault

On April 9, 2004, defendant told P.G. that he was going out with his friends for a guys night out. P.G. suspected that defendant was going out to meet other women. P.G. and a female friend, Y.P., went to TGI Fridays restaurant in San Bruno. At the restaurant, P.G. saw defendant with a couple of men and one woman. P.G. did not recognize the men or the woman. P.G. said that she was bothered by the way defendant had been holding the woman because it looked like they ha[d] been dating. P.G. testified that she and Y.P. left the restaurant without speaking to defendant.

As P.G. left the restaurant, defendant sent her a text message, asking her why she left without saying hello. P.G. sent defendant a return text message, stating that she had seen him with another girl and that he looked happy with that girl. Defendant sent a reply text message, asking P.G. to return to the restaurant and to show him the girl that she said he was with. P.G. did not go back into the restaurant. She and Y.P. then went to dinner at Chilis restaurant in San Bruno. While P.G. and Y.P. ate dinner, defendant repeatedly sent P.G. text messages, claiming that he was not with a girl and asking her to return to TGI Fridays. P.G. did not return to TGI Fridays, but instead went home around 11:00 p.m.

Sometime after midnight, defendant began calling P.G. on her cellular telephone; she would not speak with him. When defendant sent P.G. a text message saying that he wanted to talk to her, she replied that she had nothing to say to him. P.G. then received a message from defendant stating that he was outside her house, that he wanted her to come out, and that he did not care if she called the police, or if her family woke up, and saying something to the effect that he would knock the door down if she did not come out and talk to him. P.G. testified that she was not frightened by the message because defendant had made similar threats in the past.

P.G. went outside because she did not want defendant to awaken her family. P.G. could not remember the exact words of her conversation with defendant, but she remembered having a heated argument with defendant about the woman she had seen him with at the restaurant. When P.G. turned her back to go inside, defendant grabbed her left arm, put his other hand around her head, and pushed her over his leg, causing her to trip. She was unable to put her hands on the ground. Defendant pushed P.G.s head down to the ground, causing the back of her the head to hit the hard ground. Once her head hit the ground, P.G. had an image of defendant kicking her a couple of times in the stomach as she tried to cover her face. P.G. recalled that defendant stepped on her hand as he was trying to step on her head. She also remembered defendant stepping on the right side of her face and head. P.G. was frightened during the assault; she could not recall what appellant was saying or whether she said anything to him.

As P.G. lay immobilized on the ground in a fetal position, defendant picked her up and threw her in his car. P.G. did not remember whether defendant dragged her by the ankles during the assault. However, she did recall that defendant did not appear to have any difficulty in carrying her to the car. P.G. remembered defendant holding her head as he drove her to the hospital.

C. P.G.s Hospitalization

P.G.s next memory was of waking up at the hospital, with doctors and nurses holding her head, feet, and hands. She was in a lot of pain, especially in her feet and head. P.G. could hear the hospital staff around her but could not see them. She remembered her head being shaved and the wound in her head being closed with staples. P.G. had no memory of telling the hospital staff that defendant had thrown something at her, or of saying, baby, I forgive you, Ill be a good girl.

Bessie Sandoval, an emergency medical technician at Kaiser Hospital in South San Francisco, first saw P.G. when defendant brought her to the emergency room sometime after 2:00 a.m. on April 10, 2004. P.G.s face and head were covered in blood. P.G.s hair was drenched in dripping blood. P.G. seemed confused and was combative when hospital staff moved her onto a gurney and applied a surgical collar.

Sandoval called the police due to the suspiciousness of the nature and extent of P.G.s injuries. Defendant told Sandoval that P.G. had tripped forward, which Sandoval thought was inconsistent with the injury to the back of P.G.s head. Sandoval also thought there was a certain awkwardness because defendant did not stay very long at the hospital. Sandoval had been concerned regarding the extent of P.G.s bruises. Finally, Sandovals concerns were prompted by hearing P.G. say something to the effect of, I forgive you.

South San Francisco Police Officer Bart MacHale reported to the emergency room at 6:30 a.m. on April 10, 2004. He spoke to Sandoval and wrote down her statements in his police report, using direct quotes where appropriate. Specifically, Officer MacHale, reading from his report, testified, Sandoval told me [P.G.] was slipping in and out of consciousness unquote. Sandoval said that [P.G.] had a serious injury to the back of the head along with scrapes, scratches, and bruises to several parts of her body. Sandoval said that [P.G.] told her [defendant] threw something at her head causing her injury. Sandoval also heard [P.G.] tell [defendant], baby I forgive you, Ill be a good girl end quote. Although Sandoval remembered speaking with Officer MacHale, she did not specifically remember giving this statement to Officer MacHale, but Sandoval added that if she were so quoted, she was a pretty honorable person. Sandoval further testified that she had given accurate statements to Officer MacHale about what she had seen and heard regarding P.G. After reading Officer MacHales report, Sandoval stated that she remembered that something P.G. said had given her cause for concern.

Defendant called P.G.s stepmother, Y.L., around 6:00 on the morning of April 10, 2004, and told her that P.G. had been in an accident and that she was at Kaiser Hospital in South San Francisco. At that time, defendant did not mention anything about P.G.s injuries. When Y.L. called defendant back to ask about P.G.s condition, defendant said P.G. was okay. Y.L. left immediately and arrived at the hospital about five minutes later. Y.L. did not see defendant at the emergency room. Y.L. was unable to see P.G. because she was being transferred to another hospital in Redwood City; Y.L. eventually saw P.G. a few hours later. Y.L. said that when she first saw P.G., P.G was in very bad shape, and that she had bruises all over and black eyes.

D. Defendants Initial Police Interview

Officer MacHale first saw defendant in the waiting room of Kaiser Hospital in South San Francisco on the morning of April 10, 2004. Officer MacHale noticed that defendant had dried blood on his sleeve, right hand, and shoe. Later that morning, Officer MacHale spoke with defendant at the South San Francisco Police Department regarding the circumstances of P.G.s injuries. During an hour-long conversation, defendant never mentioned he had an eyewitness or the name Patricia Rico.

E. P.G.s Recuperation and Initial Memory Loss

P.G. remained at the hospital for a week, during which time she was immobilized and unable to care for herself; P.G.s family came to the hospital to feed and bathe her. Initially, P.G. experienced significant vision loss, with everything appearing black, and then gradually she was able to see shadows and then color. She regained her full eyesight after about a month. P.G. did not recall mentioning her vision problems to her doctors while she was in the hospital; she was more concerned with the pain she was experiencing. P.G. also experienced hearing loss in her right ear that lasted for approximately a month. P.G. also lost her sense of taste and smell, the loss of which persisted at the time of trial.

In April 2004, P.G. had no memory of the events that caused her injuries. She only recalled being at T.G.I. Fridays and going home. When her parents expressed suspicions that defendant was responsible for her injuries, P.G. did not believe them. While she was recovering, defendant called P.G. and told her that she had been injured when she slipped backwards and hit her head on the concrete. Defendant always maintained that he had a witness to the incident that caused P.G.s injuries. However, defendant never named the witness, even after P.G. asked defendant to identify the person. P.G. did not recall a third person being present in defendants Mustang as they drove to the hospital; she further stated that there would not have been enough room in the car for another person.

On April 18, 2004, Officer MacHale interviewed P.G. at her home. P.G. was unable to say how she was injured. She reported having blurred vision and difficulty hearing in her right ear.

On April 22, 2004, P.G., at the insistence of her father, obtained a restraining order against defendant. P.G. did not want to get the restraining order, but her father was worried for her safety and she wanted to respect his wishes.

On April 24, 2004, Officer MacHale again interviewed P.G. at her home. She still complained of vision and hearing problems, and she still had no memory of how she was injured. The police continued to contact P.G. However, she did not want to cooperate with the investigation because she believed defendants explanation for her injuries.

In the weeks following her release from the hospital, P.G.s stepmother, Y.L., tried to talk to P.G. about her injuries. Y.L. testified that on one occasion, P.G. said that he hit me, but she didnt say much. Y.L. also stated that when she inquired about P.G.s injuries at the hospital, the staff said that P.G. said that he hit her.

Despite her fathers suspicion that defendant had assaulted her, P.G. continued to have contact with defendant. P.G. and defendant continued to talk every day on the telephone. She saw defendant once at work, and then another time at the end of May for his birthday. In November 2004, P.G., at defendants request, withdrew the restraining order. Defendant told P.G. that he wanted to become a police officer and that the restraining order would interfere with this goal. At the time she withdrew the restraining order, P.G. still had no memory of the cause of her injuries, but she believed defendants explanation. P.G. wanted to remember what happened. She even asked one of her doctors if medication or hypnosis would help her to recovery her memory.

By February 2005, P.G. and defendant had reunited, but they argued almost every day about what happened that night, about him lying, over little things, [and] girls pretty much. When defendant traveled to the Super Bowl, P.G. became upset because she suspected that he went on the trip with another woman.

F. P.G.s Recovered Memory

On February 8, 2005, P.G. spent time with her friend, M.V. During their visit, M.V. asked P.G. many detailed questions about her injuries that P.G. was unable to answer. Feeling useless and suffering from a headache, P.G. went home and took a nap. After sleeping for about 45 minutes, P.G. woke up and started to see little images of what happened on the night of her injuries. What she saw was an assault by defendant. P.G. felt like a fool for believing defendant; she also experienced feelings of sadness, anger, and confusion. Upon recovering her memory, P.G. called Y.P. P.G. then went over to Y.P.s house and described how she awoke from her nap and had images of defendant assaulting her.

G. Subsequent Police Investigation and Videotaped Interview

On February 8, 2005, P.G. went to the police station to talk to Officer MacHale, but he was off duty that day. She returned to the police station on February 11, 2005, and was interviewed by Officer MacHale and Detective Tom Neary. During the interview, P.G. described defendant dragging her to the car by her ankles and putting her in the car. P.G. testified that what she told the officers about her attack was based on her recovered memory; she was not motivated by her suspicion that defendant had been cheating on her.

On February 11, 2005, Detective Neary conducted a videotaped interview of defendant at the police department.^[1] Regarding the night in question, defendant said that he had been at TGI Fridays for a guys night out, when he saw P.G. and Y.P come into the restaurant and sit down at a table. Defendant was at the bar with his friends when he noticed that P.G. and Y.P. were leaving. As P.G. left, she sent defendant a text message saying, have fun with those girls.  Defendant looked at the message and said, What girls, I am surrounded by five guys.

Defendant said that he went home and changed his clothes. He then picked up a coworker, Patricia Rico, and drove over to P.G.s house. While outside of P.G.s house, defendant sent a text message to P.G. telling her that he wanted her to come outside so that they could talk, and that if she did not come out he would kick the door in. P.G. came outside, and defendant told her that he loved her, but that she had to stop being upset about nothing. P.G. and defendant walked down the street and then sat down on the curb. When P.G. accused defendant of being with those girls, she grabbed his sweatshirt and started jerking back and forth. As P.G. was pulling on defendants sweatshirt, she lost her grip and fell backward. Defendant put his hand under P.G.s head and felt blood.

Defendant stated that, at this point, his witness hops out of the car. Defendant was barely able to carry P.G. because of her baggy clothes. Defendant explained that he had to drag P.G. to his car, and that in this process her toes were dragging on the ground. When Detective Neary commented that P.G. had bruises on her head that were consistent with being kicked, defendant denied causing the bruises and explained that the injuries were caused when P.G.s head initially hit the ground. Defendant put P.G. in his car and drove her to the hospital. Defendant gave the police Patricia Ricos name and telephone number.

H. Patricia Ricos Testimony

Patricia Rico testified that she was not with defendant in the late evening/early morning hours of April 9-10, 2004. Rico had never been to P.G.s residence, and had heard about P.G.s injuries from defendant. Defendant did not tell Rico that he was going to name her as an eye witness; he simply said he would use her as a character witness.

I. Expert Testimony

1. Neurosurgeon

Cecil Jun, M.D., a neurosurgeon at Kaiser Hospital in Redwood City, first saw P.G. on the morning of April 10, 2004. She was in bed and had blood-stained bandages around her head. At the time of the initial examination, P.G. was not alert, and seemed somewhat tired, sleepy, and lethargic. Upon removing the bandages, Dr. Jun saw a laceration on P.G.s scalp. A CT scan revealed that P.G. had suffered a skull fracture on the right side of her head, specifically referred to as a linear fracture in the occipital area. This type of fracture does not require surgery, but it can take several months to heal.

Dr. Jun opined that P.G. had sustained an unusually severe injury that seemed inconsistent with a mere slip and fall at home. Additionally, numerous other bruises on P.G.s back, left shoulder, right wrist and fingers, left elbow and fingers, and feet were more extensive than one would expect from a mere fall.^[2] Dr. Jun further testified that the bruising on P.G.s eyelids was not the result of the skull fracture, but was consistent with direct trauma to the eye.

On cross-examination, Dr. Jun admitted that the unusual severity of P.G.s skull fracture could be consistent with a person falling without breaking the fall and striking concrete. However, he was unable to express an opinion as to the cause of P.G.s numerous other bruises.

Dr. Jun next saw P.G. on April 15, 2004, when he removed her staples and cleaned the wound. Dr. Jun saw P.G. again on April 27, 2004, at which time he observed that her laceration had not been healing as expected. At this visit, P.G. complained of decreased hearing in her right ear. Dr. Jun stated that P.G.s hearing loss could have been the result of blood draining behind her right eardrum. P.G. indicated that she was experiencing vision problems and had lost her sense of smell.

On cross-examination, Dr. Jun stated that he seemed to recall P.G. telling him at the April 27, 2004 visit that she had regained her memory. However, his file did not include a notation that P.G. had regained her memory. Dr. Jun testified that he would not have expected P.G. to remember the events immediately preceding the injury, or to be able to recover these memories if she had been totally unconscious. According to Dr. Jun, head trauma patients never regain such memories. On redirect, Dr. Jun testified that the neurological community believes it is impossible for someone who has retrograde amnesia to recover his or her memory. He further testified that if P.G. had told him that she had remembered the incident, he probably would have told her that he did not think she would ever regain her memory.

2. Psychiatrist

Jose Maldonado, M.D., an associate professor of psychiatry at Stanford University, testified as an expert in neuropsychiatry. Dr. Maldonado specializes in changes in brain function following surgery or physical trauma. As a neuropsychiatrist, he examines how brain function leads to mental changes, like behavior changes or mental changes like memory disturbances, post traumatic stress syndrome . . . .

Dr. Maldonado did not examine P.G., but he reviewed her medical records, as well as the police reports and photographs. He offered two explanations for P.G.s delayed recollection of how she was injured. The first theory was purely psychological. According to this theory, a person who undergoes significant traumatic events may repress those memories for a certain period of time. These memories can be recovered later when the patient feels safe and something jogs the memory. Any number of things could trigger the memory, including watching another event that is reminiscent of the repressed event, talking with a friend, or walking by the place where the incident occurred.

Dr. Maldonado also discussed a second, more physiological explanation for P.G.s recovered memory. In this scenario, a patient suffers a traumatic injury with accompanying stages of recovery. In the first or emergent stage, the patient emerges from the trauma itself. This stage is associated with acute confusion and delirium, as well as variable posttraumatic amnesia. The second or recovery stage can last anywhere between six and twelve months. In this stage, memories can come back all at once or in pieces.

Based on the medical evidence he reviewed and the hypothetical facts regarding the injury, Dr. Maldonado opined that P.G. had suffered significant brain injury, which weighed in favor of a physiological explanation for her memory loss. He described her skull fracture as being large enough to allow air to flow into the brain. He further stated that there was absolutely no doubt that P.G.s brain was bruised. Looking beyond the interpersonal drama surrounding the injury, Dr. Maldonado stated that P.G. had significant memory, significant cognitive and brain function deficit[s], which he opined were more likely than not the cause of P.G.s amnesia and subsequent recovered memory. He disagreed with the suggestion that a patient who initially had no memory of a traumatic event could never regain that memory.

On cross-examination, Dr. Maldonado conceded that if a person truly lost consciousness and then claimed to recall what happened during the time he or she was unconscious, that person could be lying or confabulating the incident. He further explained that confabulation has two aspects. There is confabulation for the purpose of lying, and there is confabulation based on a faulty memory of an event. In the latter, the person is not consciously lying, but is trying to fill in the gaps in his or her memory.

On redirect, Dr. Maldonado explained that he would question the veracity of persons recovered memory claim only in the event of a complete loss of consciousness.

J. Prior Incident of Domestic Violence

Defendant met C.M. in 1992, while they were in the Army stationed in Texas. Defendant and C.M. dated for approximately two years. During an argument at a Super Bowl party in 1994, defendant accused C.M. of flirting with another man and pushed her. She pushed defendant back and he fell into a window and broke it. Both C.M. and defendant had been drinking alcohol at the party. C.M. did not recall how much alcohol defendant had consumed, but remembered that she had not been intoxicated to the point where she did not know what she was doing. Defendant and C.M. left the party and went back to defendants barracks to continue their conversation.

When the pair arrived at defendants room, defendant no longer wanted to talk about the argument, he wanted to watch the rest of the Super Bowl. C.M. stood in front of the television and insisted that they talk about what had happened at the party. Defendant asked C.M. to move out of the way; she refused to move. C.M. told defendant that she was going to leave if they did not talk. Defendant did not want C.M. to leave, but he did not want to talk about the argument. When C.M. turned off the television, defendant grabbed both of her legs below her knees and pulled her legs out from under her. C.M. fell and hit the back of her head on the cement floor. C.M. testified that defendant was standing above her, with his hand on [her] neck pushing on [her] Adams apple. She recalled that she was unable to breathe as defendant was forcefully pressing on her neck, and that he was saying, say good-bye, Chris, say good-bye.

C.M. testified that the next thing she remembered was being on the bed or some soft surface, face down, with defendants hands still on her neck. C.M. did not know how long she remained in that position or whether she lost consciousness. She recalled waking up on the bed, with defendant lying next to her. C.M. experienced soreness in her whole body. When she got out of bed and looked at herself in the mirror, she could barely see herself. She had two black eyes that were very swollen; it was very difficult for C.M. to open her eyes. The whites of C.M.s eyes were red from broken blood vessels, and she had blurred vision. After looking at herself in the mirror, C.M. turned around and said to defendant, look what you have done to me. Defendant denied injuring C.M., and told her that she had gotten beaten up in a fight in Juarez, Mexico. When C.M. told him that she remembered what had happened and that she knew his version of the incident was untrue, defendant admitted that he was responsible for her injuries.

Although C.M. wanted to seek medical attention, defendant persuaded her to stay at his room and allow him to take care of her injuries. C.M. stayed at defendants room for approximately one day. When her pain and blurred vision persisted, defendant agreed to take C.M. to the hospital. Before going to the hospital, defendant and C.M. agreed that they would say that she had been injured in a fight in Juarez, Mexico. C.M. agreed to go along with the story because she believed that defendant was sorry, and that this was an isolated incident for which defendant would seek counseling. C.M. was also in love with defendant and wanted to maintain her relationship with him.

Initially, C.M. told military personnel the false story about being injured in Juarez, Mexico. She later told a chaplain and the military police the truth about her injuries. As a result, C.M. was restricted from going to defendants barracks and she could not use military telephones to contact him.

C.M. testified that there was no violence between them after the January1994 incident. However, a few times before the incident, defendant had grabbed her neck and pushed her against a wall during arguments. C.M. never reported these incidents to law enforcement.

C.M. completed her term of enlistment approximately six months after the January 1994 incident. Following her discharge from the Army, C.M. and defendant remained in contact for approximately six months. During this time, the two exchanged letters, and they visited each other at or near the Army base; defendant also visited C.M. at her familys home in Wyoming.

In 1995, defendant paid a surprise visit to C.M. in Wyoming. At that time, C.M. had a new boyfriend and was pregnant. Defendant told C.M. that he wanted to reconcile and be a couple again; C.M. declined.

Following the 1995 visit, C.M. had no further contact with defendant until September 2005. At that time, she received a call from Detective Neary regarding the January 1994 incident. Defendant called her about one week later. During the conversation, defendant indicated that he was aware that she had spoken with Detective Neary. Defendant told C.M. that he was sorry about the 1994 incident and said that he had a different recollection of what had happened. Defendant told C.M. that he was in trouble and needed her help. During this conversation, defendant did not ask C.M to lie and did not specify how she could help him; he also did not threaten her. C.M. explained that there was nothing she could do for defendant, and that her only involvement with the instant case was to tell the truth about what had happened between them.

II. Defense Evidence

A. Expert Testimony

1. Psychiatrist

James Missett, M.D., a board certified psychiatrist and deputy chief of psychiatric services at Stanford University, testified as an expert in psychiatry. Dr. Missett reviewed P.G.s medical records, as well as the police reports and her testimony at the preliminary hearing. Dr. Missett explained that there are three components to memory: (1) perception, meaning the experience of seeing, hearing, or thinking something; (2) the ability to encode or retain the experience; and (3) the ability to recall the retained experience. He further explained that memory has temporal components of immediacy and remoteness.

Dr. Missett opined that a person suffering P.G.s skull fracture would likely lose consciousness and would have no memory of the event while unconscious. He did not know of any patient who had sustained a serious brain injury who was able to remember the injury-causing event itself. However, an emotionally traumatic event, where there is no physical damage to the brain, may cut both ways, in terms of a persons ability to recall the event. Specifically, one person may be able to recall the event with exquisite detail, while another may have no memory at all, or traumatic amnesia, because the event is too painful to think about. A person suffering from traumatic amnesia is usually able to recover his or her memory of the traumatic event.

Based on the severity of P.G.s injuries, Dr. Missett opined that her recovered memory could be result of confabulation, lying, or both. He noted that P.G. had made inconsistent statements regarding whether the injury was an accident and whether she had a memory of the event. These inconsistencies created a problem for determining the veracity of P.G.s recovered memory claim.

Dr. Missett could not explain with any degree of certainty whether P.G.s claim of recovered memory was presented consciously and accurately, or whether it was consciously false, or if she were malingering, or in some way mistaken. Based on the hypothetical questions, Dr. Missett could not determine whether P.G. lost consciousness, and if so, when or whether she was confabulating. However, he did opine that if P.G. were at all conscious during the event, she could have experienced it, encoded it, and later retrieved the memory.

2. Emergency Medicine Physician

Terry Fotre, M.D., testified as an expert in the field of emergency medicine. Dr. Fotre estimated that about 20 percent of the patients he had treated for skull fractures had no memory of how they were injured. Of this group of patients, none had ever recovered a memory of the injury-causing event after arriving at the hospital with no such memory.

Dr. Fotre testified that a common sequel to a skull fracture is the possibility of a seizure, though it happens in less than 50 percent of the time. He explained that a seizure can cause spasm, shaking, odd posturing, grunting, straining, and a massive discharge of the muscles in the body.

Dr. Fotre opined that the redness in P.G.s eyes was consistent with increased pressure in the brain, and could also have been caused by her straining against the cervical collar after she was brought to the hospital, or from being kicked. He further explained that if blows to the eyes were the cause of redness in P.G.s eyes, he would have expected to see swelling, which was not present in the medical records or photographs. Additionally, the raccoon sign or discoloration of P.G.s lower eyelids was an indication of a skull fracture.

According to Dr. Fotre, the bruise behind P.G.s ear was the result of blood pooling in that area, which had been caused by the skull fracture. He explained that if the bruise had been caused by a direct blow, there would have been bruising and swelling to the outer portion of the ear as well, which was not depicted in the photographs. Dr. Fotre did not find any indication of blunt trauma to P.G.s eyes or the front of her head.

On cross-examination, Dr. Fotre testified that the abrasions on P.G.s elbow and hand were consistent with someone falling backwards on the ground. However, the marks on P.G.s arm, which were in a fingerprint pattern, were consistent with someone grabbing or hitting the arm.

On further direct examination, Dr. Fotre testified that lifting an unconscious person was like lifting dead weight or a bag of wet cement.

B. Testimony from Defendants Family and Coworkers

1. Reva Hall

Defendants mother, Reva Johnson Hall, testified that P.G. moved into her home in February of 2003. P.G. lived at Halls home until the end of April 2003, when P.G. moved out for two days and then returned. P.G. stayed at Halls home until after P.G.s final exams that May. Hall said that P.G.s departure in April 2003 was sudden. Hall saw defendant carry P.G.s clothes to her car. According to Hall, defendant and P.G. had not been arguing, but Hall thought P.G had been unhappy that defendant had purchased a Mustang. Hall never saw defendant push P.G., but had seen P.G. push defendant a couple times in the past.

2. Patricia Rico

Patricia Rico, recalled as a defense witness, testified that she heard P.G. tell defendant on a speakerphone at work that it was an accident and that she remembered everything that happened. On cross-examination, Rico admitted that even though she knew that this was important information, she never disclosed this information to the defense investigator, Detective Neary, or the prosecutor, when she was interviewed by them.

3. Joseph Gerrans

Joseph Gerrans, a loss prevention manager at J.C. Pennys, recalled P.G. arriving at the store in November 2004. He heard P.G. say that she had had a restraining order lifted and that she remembered that it was not defendants fault. Gerrans did not know what P.G. was talking about when she referred to it not being defendants fault. On cross-examination, Gerrans admitted that he did not mention what he had overheard to the defense investigator, even though he considered it to be important information. After his interview with the defense investigator, Gerrans typed a statement dated June 2, 2005, in which he sets forth what he heard in November 2004; Gerrans had the statement notarized.

III. Prosecution Rebuttal

P.G. testified that when she visited Dr. Jun on April 27, 2004, she did not tell him that she had regained her memory of the attack. Rather, she asked him whether she would ever get her memory back, and if she could take some medicine, or be hypnotized, to regain it.

On December 2, 2004, P.G. saw Dr. Andrew Oh because she was experiencing dizziness. At that time, P.G. did not tell Dr. Oh that she remembered the assault that had occurred. She mentioned that her visit was regarding a domestic case because that is what she had been told by her family, friends, and neighbors, and that kind of made sense[] to her.

P.G. did not recall any conversation with defendant at his place of work in April 2004, or talking to him on a speakerphone. Defendant was the one who had brought up the subject of withdrawing the restraining order because he wanted to be a police officer. During their conversations, defendant told P.G. that her injuries were an accident and that he would never do something like that to her because he loved her. P.G. talked to defendant up until the time she had obtained the restraining order because he continued to call her. P.G. denied telling defendant that her injuries were an accident and not his fault because at that time she did not know what had happened to her.

DISCUSSION

I. Admitting Evidence Pursuant to Evidence Code Section 1109 and Instructing the Jury with CALJIC No. 2.50.02 Did Not Deprive Defendant of Due Process

A. Background

The prosecution moved in limine for an order allowing the introduction of defendants prior acts of domestic violence against C.M. in 1994 and against P.G. in 2003. With respect to the 1994 incident, defendant argued that it was too remote in time to be admissible under Evidence Code section 1109 (all further section references are to this code unless otherwise indicated).^[3] He also argued that the evidence should be excluded pursuant to section 352. As to the 2003 incident, defendant argued that it did not constitute an act of domestic violence within the meaning of section 1109. Following a lengthy section 402 hearing, at which C.M. testified, the trial court allowed the prosecution to present the testimony of C.M. at trial pursuant to sections 1109 and 1101, subdivision (b). In a detailed ruling, the trial court took pains to discuss the limits on admitting propensity evidence under sections 1108 (prior sexual offenses) and 1109, noting that courts faced with such an issue are required to consider the nature and type of evidence, the relevance and possible remoteness of that proposed evidence, the degree of certainty as to its commission and the likelihood of confusing, misleading or distracting jurors from their main inquiry whether or not that other evidence is to be prejudicial. The court explained that [i]n this particular case in weighing all of these factors the Courts biggest focus is on frankly, the question of remoteness, and noted that Subdivision E of 1109 contains a . . . statutory provision on the question of remoteness which is not contained within 1108. The court found that, given the unique facts and circumstances of this case, C.M.s testimony was admissible under section 1109. In so ruling, the court explained: Despite the issue raised as it relates to remoteness, I believe that in the interest of justice this jury should in fact hear this evidence much of which is due to the fact, one, there is describance [sic] here which may also be admitted under 1109 which would fit within the ten year period, that is, the events that took place between [P.G. and defendant] sometime on and between April and May of 2003 which would be admissible under 1109.

At the close of evidence, the court modified its ruling so as to admit the testimony to show only propensity evidence under section 1109, and not for purposes of section 1101. The court instructed the jury with CALJIC No. 2.50.02, regarding the permissible use of evidence of prior domestic violence. The court also instructed the jury with CALJIC No. 2.50.1, regarding the requirement of proof by a preponderance of evidence for crimes other than the charged offenses. The court gave several other instructions on the requirement of proof beyond a reasonable doubt; the elements of the charged offenses; the sufficiency of the testimony of a single credible witness as proof of any fact, and the duty to consider all the evidence upon which proof of a fact depends; the requirement of proof of each element independent of any confession by the defendant; and the requirement that the jury consider the instructions as a whole and each in light of all the others.

Defendants principal contention on appeal is that admission of the 1994 and 2003 incidents pursuant to section 1109 was improper and violative of his right to due process and a fair trial. He further contends that the giving of CALJIC No. 2.50.02, which advised the jury about the permissible use of evidence of prior domestic violence, likely confused the jury about its obligations, and impermissibly lowered the prosecutions burden of proof. We will discuss each of these issues in turn.

B. Section 1109 Issues

Section 1109 supplants the general rule that prior acts are inadmissible to prove a defendants conduct on a specific occasion. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1026; see also 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) This section reflects the Legislatures determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in new prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335; People v. Johnson (2000) 77 Cal.App.4th 410, 419 (Johnson).)

The statutes legislative history offers insight as to why the Legislature singled out domestic violence offenses for disparate evidentiary treatment: . . . The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.  (Johnson, supra, 77 Cal.App.4th at p. 419, citing Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)

Additionally, the nature of these crimes often produces uncooperative witnesses and victims because they fear retaliation from the abuser. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown.) Therefore, the California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence. (Johnson, supra, 77 Cal.App.4th at p. 420.)

Section 1109 authorizes the admission of other acts of domestic violence in a prosecution for domestic violence, subject to exclusion under section 352. ( 1109, subd. (a).) The admission of such evidence is also limited by section 1109, subdivision (e), which states that [e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.

Defendant contends that the admission of prior acts of domestic violence under section 1109 violated his right to due process. We have previously considered and rejected this claim, as have other appellate courts. (People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 (Escobar); People v. James (2000) 81 Cal.App.4th 1343, 1353 (James); People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings); Brown, supra, 77 Cal.App.4th at p. 1335; People v.Hoover, supra, 77 Cal.App.4th at pp. 1027-1028; Johnson, supra, 77 Cal.App.4th at p. 417.) We need not revisit this question. Because the trial courts discretion to exclude propensity evidence under section 352 provides an adequate safeguard, admission of prior acts of domestic violence does not facially violate the due process clause. (See Falsetta, supra, 21 Cal.4th at p. 916-918 [construing section 1108, which provides for an identical exception for the admission of prior sexual offenses in current prosecution for sexual offense]; People v.Hoover, supra, 77 Cal.App.4th at p. 1028.)

Defendant concedes that courts have rejected due process challenges to section 1109, but contends that this section is unconstitutional as applied in his case. He argues the trial court erred in its application of the remoteness limitation set forth in section 1109, subdivision (e), and failed to properly evaluate the evidence as required by section 352.

1. Remoteness

Section 1109 establishes a 10-year presumption of remoteness and requires that prior acts that occurred more than 10 years before the charged offense are inadmissible unless the trial court finds the evidence is admissible in the interest of justice. ( 1109, subd. (e).) Here, the prior act, occurring in late January 1994, fell just outside the 10-year period, by approximately two months. Defendant contends the trial court improperly interpreted the term interest of justice as merely calling for an inquiry as to whether the prior act was too  remote  to be admitted.

Section 1109 does not define the meaning of the phrase the interest of justice. Defendant argues that the  interest of justice  exception requires a heightened burden of justification that implicates some of the Legislatures concerns when it enacted section 1109. Thus, according to defendant, when a prior act of domestic violence occurs more than ten years before the charged offense, the question of whether admission of that prior act serves the interest of justice should include a close assessment of whether the case involves on-going violence and abuse or an escalating pattern of domestic violence and whether the charged offense presents acute difficulties of proof associated with uncooperative victims, fear of retaliation, or reluctant third party witnesses. However, as defendant concedes, there is no authority supporting this, or any other, interpretation of the meaning of  interest of justice  in the context of section 1109.

While we need not determine the exact criteria that define this requirement,^[4]we find that it requires more than a mere finding that the evidence is not remote. If that were the sole criterion, it would have been easy enough for the Legislature to have so stated. That said, defendant offers no compelling evidence that the trial court interpreted the interest of justice exception as merely requiring a determination as to whether the prior act was too remote to be admitted. The record reflects that the trial court gave greater scrutiny to the 1994 incident by evaluating more carefully the foundational hearing testimony of C.M. to determine the veracity of the witness when balancing the probative value of the evidence against its prejudicial effect.

Defendant further contends that the trial court erred in considering and admitting evidence of the 2003 incident between defendant and P.G., which thereby caused the 1994 incident to fall within the 10-year period of admissibility. He asserts that the 2003 incident did not constitute an act of domestic violence within the meaning of section 1109 because P.G. testified that she had not been injured and had been only a little bit scared. Essentially, defendant is challenging the sufficiency of the evidence to support a finding that he engaged in a violent act.

Domestic violence, for the purposes of section 1109, is broadly defined as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. (Pen. Code, 13700, subd. (b); 1109, subd. (d).)  Abuse is defined as intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.  (Pen. Code, 13700, subd. (a); 1109, subd. (d); People v. Rucker (2005) 126 Cal.App.4th 1107, 1114 (Rucker).)

For example, in Rucker, supra, 126 Cal.App.4th 1107, the court rejected a defendants contention that she had not engaged in domestic violence because her former boyfriend was not scared when she pointed a gun at him. (Id. at p. 1118.) There, the former boyfriend had testified that he was scared when the defendant pointed the gun at him, and became more frightened after she left. (Ibid.) Additionally, there was evidence indicating that defendant had wanted to kill her former boyfriend. (Ibid.)

Defendant argues that here, unlike in Rucker, supra, 126 Cal.App.4th 1120, there is no substantial evidence to support a determination that his conduct constituted domestic violence. We disagree. Defendants act of grabbing P.G., who was 4 feet 9 inches tall and weighed only 95 pounds, by the neck and pushing her, face first, to the ground reasonably supports a finding that defendant intentionally or recklessly caused or attempted to causebodily injury to P.G. (Pen. Code,  13700, subd. (a);  1109, subd. (d).) Additionally, P.G. testified that she had been frightened by defendants act.

We conclude that there was substantial evidence to support the predicate finding that defendant had engaged in a prior act of domestic violence against P.G.

2. Section 352

Section 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section is essential to protect a defendants due process right to a fundamentally fair trial. [Citations.] (Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.)

Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial courts exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] The [trial] courts exercise of discretion under [] section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. [Citation.] (Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)

Here, defendant complains that the evidence of the 1994 incident was prejudicial under section 352 because it was significantly dissimilar from the charged offenses; the evidence regarding the 1994 incident was stronger than the evidence of the charged offenses because C.M.s testimony was relatively unchallenged, whereas the charged offenses were based on P.G.s compromised memory and inconsistent statements; he was never punished for the 1994 incident; and the 1994 incident was remote and he had led a law abiding life in the interim.

Applying the above rules, we conclude that the trial court did not err in its application of section 352. As noted, the record reflects that the trial court articulated its reasons for admitting the evidence under section 352 in a detailed and thorough manner. Although defendant argues at length about the dissimilarities between the 1994 incident and the charged offenses, we are not persuaded by his attempt to subject the admission of this evidence to the exacting standards governing admission of evidence under section 1101, because the evidence was independently admissible under section 1109. (See Brown, supra, 77 Cal.App.4th at p.1338; People v. Poplar (1999) 70 Cal.App.4th 1129, 1138; see also People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 [discussing section 1108].) The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under section 1101, otherwise section 1109 would serve no purpose. (See Frazier, supra, 89 Cal.App.4th at pp. 40-41.) In other words, it is enough that the charged and uncharged offenses are domestic violence offenses as defined in section 1109. (See id. at p. 41.)

Even considering the remoteness of the 1994 incident, together with the defendants purported blameless life in the interim, the similarities between the prior act and the current offense balance out the remoteness. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1395.) Specifically, in both instances defendant tried to mislead the victims into believing that he was not the cause of the injuries.

To the extent defendant argues that the 1994 incident was based on stronger evidence than the charged offenses, the prior incident of domestic violence was no more egregious than the charged offenses, and posed no danger of confusing the jury. These circumstances decreased the potential for prejudice because it was unlikely that the jurys passions were inflamed by the evidence of the 1994 incident. Nor do we believe that any inclination to punish defendant for the 1994 incident was a significant factor in this case. (See Jennings, supra, 81 Cal.App.4th at p. 1315.)

Finally, defendant contends that even if the January 1994 incident was admissible, the trial court erred in admitting evidence regarding purported incidents of abuse that occurred prior to this date. Defendant claims that the trial court failed to engage in any section 352 weighing with respect to this evidence. He further contends that the trial court erred in admitting evidence regarding defendants 1995 visit to C.M.s home in Wyoming because it was irrelevant to the 1994 incident, and that C.M.s description of the visit as being  unexpected  was highly prejudicial as it portrayed defendant as being a disturbed stalker. Defendant failed to object to this evidence at trial and the issue is therefore waived on appeal. (People v. Thomas (1992) 2 Cal.4th 489, 520.) However, even overlooking the absence of a trial objection, defendants claims fail on the merits. Even assuming for the sake of argument that the trial court failed to weigh the prejudicial effect of this evidence,   [t]he prejudice referred to in [] section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. [Citation.]  (People v. Smith (2005) 35 Cal.4th 334, 357, italics omitted.) C.M.s testimony regarding the other incidents was brief and was unlikely to evoke an emotional bias against defendant as an individual.

In sum, the record reflects that the trial court properly performed its duty to weigh the probative value of the prior domestic violence evidence against its prejudicial effect.

3. CALJIC No. 2.50.02

Defendant contends that the trial court violated his right to due process, and related constitutional rights, by instructing the jury with CALJIC No. 2.50.02. According to defendant, CALJIC No. 2.50.02 impermissibly invited the jury to convict him based solely on evidence of prior, uncharged incidents of domestic violence and the inference that he had a propensity to commit such crimes.

The 2005 revision to CALJIC No. 2.50.02, which was given in the instant case, instructs in pertinent part: Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions than that charged in the case. [] . . . [] If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required t