P. v. Mejia

Filed 7/13/07 P. v. Mejia CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

Appellant was charged with four felony counts following a violent confrontation with M. (the victim) on April 9, 2005: infliction of corporal injury resulting in traumatic condition upon the victim, who was then the spouse/cohabitant of appellant (Pen. Code,  273.5, subd. (a) [count 1]), assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1) [count 2]), false imprisonment by means of violence, menace, fraud, and deceit (Pen. Code,  236 [count 3]), and threatening to commit a crime which would result in death or great bodily injury (Pen. Code,  422 [count 4]). He was also charged with using force and violence upon the victim for an incident on March 21, 2005 (Pen. Code,  243, subd. (e)(1) [count 5]). A jury trial ensued and the jury found appellant guilty of counts 1, 3, 4 and 5. The jury found appellant not guilty of count 2 as charged in the information, and instead found him guilty of the lesser included misdemeanor offense of simple assault (Pen. Code,  240).^[1] Appellant now challenges the admission of certain evidence, as well as the sentence imposed. We conclude that no prejudicial error resulted from the trial courts evidentiary rulings, but remand for resentencing.

Factual Background^[2]

The Victims Testimony

The victim described the entirety of her 30-year abusive relationship with appellant. In the 1970s, when the victim was 12 years old, she moved from Mexico to Madera, California, to live with her aunt Ophelia, her uncle (Ophelias husband and the appellant in this case), and their five sons. The victim spoke no English at that time and was not sent to school because she had no papers. Approximately one week after the victim arrived in appellants home, appellant took her shopping and to a drive-in movie. At the movie, appellant tried to kiss the victim, but she refused and started crying. They returned home, and appellant told the victim not to disclose what had occurred because nothing had happened and it would cause problems in the family. Later that same week, the victim fell asleep in her bedroom in the middle of the day and awoke to find appellant carrying her to his bedroom in his underwear. She began crying uncontrollably and eventually appellant had to call Ophelia to calm the victim. Appellant explained he had been trying to move the victim to make her more comfortable.

On another day within the victims first two weeks in California, appellant, Ophelia, and the victim were at home. Appellant called Ophelia to the bedroom and made her a drink, and the two stayed in the bedroom a while. Appellant then brought the victim to the bedroom, where the victim observed Ophelia passed out on the floor. The victim tried to wake Ophelia by kicking her, but was unsuccessful. Appellant told the victim to sit on the bed, and he started touching her and trying to kiss her. The victim began crying and appellant told her it wasnt going to hurt and she shouldnt scream because nobody would hear. Appellant pulled off the victims clothes, continued to touch her and eventually had intercourse with her. The victim later told Ophelia what happened, and after Ophelia and appellant argued, appellant apologized and said he would never do it again.

However, appellant continued to have sex with the victim two or three times a week. The victim would cry and beg him to stop, but appellant would hit her, yell at her, or put a gun to her head. The victim could not leave because appellant told his sons to watch her and threatened his sons that they were going to get it if she left the house. At one point appellant gave his gun to one of his sons and told him to shoot the victim if she tried to leave.

When the victim was 16 years old she gave birth to a daughter, Emma. The child was the result of a consensual sexual relationship with the victims oldest cousin, Joe, appellants son.

When Emma came home from the hospital, appellant and Ophelia said Emma would sleep in their bedroom. On Emmas second night at home, the victim went to stay in that room to be with her baby, and continued to live in that room until the family later moved out of the house. Appellant continued to have sex with the victim in that room, sometimes when Ophelia and Emma were present. The victim no longer fought back during sex because she was afraid appellant would do something to Emma, but appellant continued to hit the victim for crying or not acting properly. When the victim was 17 years old, appellant learned that Joe was the father of Emma and appellant hit, kicked, and slapped the victim.^[3]

In 1982, when Emma was three years old, the family sold the house in Madera and moved to Fresno. In Fresno, pursuant to appellants orders, the victim and Emma shared his bedroom and Ophelia had a separate bedroom. Three of appellants sons continued to reside with the family, and they shared a bedroom as well. Appellants violent, sexual relationship with the victim continued in Fresno. The victim was not allowed to attend school or go outside, and she did not know anyone outside of the family. The victim was unable to use the phone because appellant placed a locking device on the rotary dialer.

In 1987, appellant became upset when he heard Ophelias oldest son, Ray, was coming to the house. Appellant started arguing and took out his gun. Appellants son, Frank, moved in front of appellant and the gun and told appellant he was not going to do that to his mother any more. Appellant became angrier and told the victim to get her things because they were leaving. The victim gathered some clothes and she, appellant, and Emma left the house and went to a motel. Appellant had the gun with him at the motel, but he no longer pointed it at the victim. Appellant, the victim, and Emma stayed in the motel for about a week and then moved to an apartment in Fresno.

Appellant, the victim, and Emma remained in the apartment for five years. Appellant instructed the victim not to talk to the family or else she would get it, but the victim maintained contact with the family behind appellants back. Appellant continued to have sex with the victim, however the victim never consented. In 1997, the victim began working at McKesson and then at Kaiser, because appellant wanted [her] to bring money home.

In 2000, appellant, the victim, and Emma moved to San Francisco. They lived in a one-bedroom apartment, and Emma stayed on a bed in the living room when she was home.^[4] The apartment had one entrance through the front door and one bathroom, accessible only through the bedroom. The family continued to reside in this apartment through the charged incidents. In 2005, appellant was 64 years old and the victim was 42 years old.

A. March 2005 Incident

On March 22, 2005, appellant and the victim were alone in the apartment because Emma had traveled to UCLA with Ophelia for a medical appointment. Appellant was upset that Emma had gone with Ophelia. After the victim had fallen asleep that night, appellant hit her across the face with the back of his hand. Appellant then began arguing with the victim and moved on top of her and started trying to slap her. Appellant then reached for the victims throat and tried to choke her. The victim pulled appellants hand off of her neck and he ordered her into the living room, where she spent the remainder of the night. As a result of this incident, the victim had finger marks on her neck throughout the next morning and her face hurt to the touch for three or four days. She spoke with a counselor at Kaiser about the incident, and the counselor advised her to move out of the house, but she did not do so.

B. April 2005 Incident

On April 9, 2005, the victim had the day off of work and she walked Emma to work in the morning. The victim returned to the apartment around 9:15 a.m., and appellant, who had locked the front door, let her back inside. Only appellant and the victim were in the apartment. Once the victim was inside, appellant locked the front door with the dead bolt, put a steel bar against the door, and placed two large water bottles in front of the steel bar. He also unfolded a treadmill so that it blocked the door, and then placed a chair on top of the treadmill. The victim felt scared because appellant was acting very cold and calm, and, even after seeing all of his different moods over 30 years, [t]his was very, very different.

Appellant then told the victim to go to the bedroom. The victim obeyed because appellant had been angry for the past two weeks after finding out she was having contact with the rest of the family. He had accused her of giving other family members money or sex. Appellant followed the victim into the bedroom, closed the bedroom door, and placed a steel bar on the bedroom door. The victim had never seen defendant place a steel bar on the bedroom door when they were in the bedroom together. Appellant told the victim to take off her clothes and he turned up the volume on the television in the bedroom. The victim noticed a pillow inside of a plastic bag in the bedroom that she had never previously seen in the apartment. Once the victim had removed all of her clothes, appellant told her to turn on the compact disc player and to turn up the volume. Appellant told the victim to return to the bed and he began putting on speed gloves. Appellant told the victim she was going to be in a lot of pain but there will be no marks. The victim tried to prevent appellant from putting on the gloves, and he continued to say, I am going to knock you out. I know how to knock you out. The victim was very scared and thought appellant was going to kill her.

Appellant and the victim argued about money and the victims loyalty, until the victim found herself lying on her back on the bed with appellant on top of her. Appellant was still clothed and was again trying to put on the speed gloves. Appellant then reached for the pillow and placed it over the victims face. Appellant was holding the pillow down and shaking it, and he continued to tell the victim he was going to knock her out. The victim was able to breathe underneath the pillow because there was an air pocket, and she continued to struggle with appellant. Appellant finally removed the pillow, but he remained on top of the victim and was grinding on her abdomen, causing her to cry and groan because she had fibroids (explained by the victim as tumors in her uterus). Appellant told the victim this was just the beginning of a lot more pain. Next, appellant grabbed a plastic shopping bag, stretched it out, and put it over the victims nose and mouth. The victim was still able to breathe and fought with appellant to push the bag away from her face. Finally, appellant removed the plastic bag.

After approximately an hour sitting on top of the victim, appellant moved off of her and went to sit in a chair next to the bed to watch television. Appellant instructed the victim not to move and she remained on the bed. Appellant watched television, and would occasionally stand up and stare at the victim on the bed for a few moments, and then return to watching the television. At some point, the victim asked if she could get up to use the bathroom, and appellant allowed her to get up but told her to leave the bathroom door open.

At 1:30 p.m., there was a knock at the front door. Appellant told the victim to stay in the bedroom and he walked out to answer the door. Appellant returned and told the victim to put on her clothes. Emma entered the bedroom and said she needed to use the bathroom. Emma looked over at the victim, but the victim said nothing. When Emma came out of the bathroom, she asked the victim to pick up a few things at the store for her, but appellant told the victim she would not be going anywhere. As Emma was leaving the bedroom, the victim told appellant she was going to get up to lock the door behind Emma. The victim walked up behind Emma, grabbed her purse, and told Emma, run.

The victim and Emma ran out of the apartment and eventually took a taxi to the emergency room. The victim called one of the boys in Fresno to tell them what had happened, as she was afraid appellant would go after them looking for her. The victim then went inside the emergency room and asked to speak with a counselor about domestic violence. The victim spoke to a nurse and then saw a doctor because her arm felt numb and her legs were shaking. The victim had redness around her nose and her arm remained numb for the rest of the evening. She was sore all over for some days after and was spotting from [her] fibroids.

The hospital called the police for the victim and the police assured the victim that appellant had been arrested and would not be released at that time. The victim and Emma returned to the apartment that night, and family members picked them up the next day.

The prosecutor offered for identification a pair of speed gloves, which the victim identified as those used by appellant on April 9, and the speed gloves were later moved into evidence.

Emmas Testimony

Emma also testified at trial for the prosecution. Emma testified that appellant is her great uncle and also her grandfather, but he raised her as a father. The victim informed Emma that appellant was not her biological father when she was 13 years old. Emma lived away from home while she attended college at UCLA, but returned to live with appellant and the victim after graduation.

On April 9, 2005, Emma was living with the victim and appellant in San Francisco. Emma and the victim walked to Emmas work together the morning of April 9 and agreed to meet for lunch that day at 1:00 p.m. The victim usually called Emma upon returning to the apartment after dropping Emma off at work, but failed to call that morning. Emma tried calling the apartment, but nobody answered the phone. Emma tried again around 11:00 a.m., but nobody answered. Around noon, Emma called a third time, and this time left a message saying she had forgotten her glasses at home and needed the victim to call her back. She said this because she wanted to give the victim a reason to call her back just in case she was not being allowed to use the phone. Emma said in the past appellant had forbidden the victim from making phone calls in order to prevent her from calling other family members. Emma also said she was worried something bad might have happened because appellant had been angry lately about her and the victims contact with other family members. At 1:00 p.m., Emma still had not heard from the victim and she went to where they were supposed to meet for lunch. When the victim did not appear, Emma walked home to check if she was okay. Emma knocked on the door and after a few minutes appellant let her inside. Emma told appellant she needed to use the bathroom, and she saw the victim sitting on the bed. Emma then slowly said she would be leaving and tried to kiss appellant good-bye. Emma saw the victim stand up and follow her toward the front door, and, as they approached the door, the victim told Emma to run. Emma could see the victim was scared and noticed [h]er eyes were really wild and she was breathing heavily. Emma could see red marks on the side of the victims nose and said the victim complained about pain and heaviness in her arm and discomfort in her abdomen.

After describing the events of April 9, Emma testified regarding appellants previous acts of violence toward the victim. When Emma was four or five years old, she saw appellant hit the victim across the face during an argument. Emma also stated when she was four or five years old she shared a bedroom with appellant and the victim, and appellant and the victim would have sex while Emma was in the room. Emma testified the victim was always unresponsive, listless, and never wanted to talk afterward. Emma also recalled the argument when she was eight years old that led appellant, the victim, and her to move away from the rest of the family. Emma testified as far as she knew the victim had never talked to anyone outside the family about her problems except on March 22, 2005, when the victim went to speak with a domestic violence counselor at Kaiser.

Ophelias Testimony

Next, Ophelia was called as a witness for the prosecution. She testified appellant was her husband, and although they never divorced, they were separated. Ophelia testified that the victim was her sisters daughter, and the victim came to live with her family in Madera when the victim was 12 years old. Ophelia said appellant began abusing the victim shortly after the victims arrival, and Ophelia would see appellant tie the victim to the foot of the bed and abuse her sexually. She witnessed appellant abusing the victim approximately every third day.^[5] Ophelia recalled about seven incidents when a gun was involved. Ophelia felt she could not do anything to help the victim because appellant threatened to have the rest of her children taken away. Appellant would refer to the victim as his bitch and he would sometimes hit the victim. Ophelia testified appellant gave a gun to one of their sons and told him to shoot the victim if she tried to leave. Ophelia recalled the argument when appellant decided he, the victim, and Emma were moving out. Appellant had a gun, pointed the gun at the victims head, and told the victim and Emma to leave with him.

Expert Witnesss Testimony

The prosecution called Thomas Walsh to testify as an expert witness in the area of domestic violence. At the time of trial, Walsh was a sergeant inspector for the San Francisco Police Department Homicide Unit and had been with the police department for 28 years. He initially worked as a uniformed patrol officer for eight years and handled approximately 20 domestic violence cases each month. He was promoted to an inspector for general works detail, where he continued to investigate cases, approximately 60 percent of which were domestic violence cases. Walsh would speak to both male and female suspects, and male and female victims, and he estimated he spoke to 10 victims each month. Over the course of his career, Walsh estimated he had spoken with 1,500 domestic violence victims and 500 or 600 suspects.

Walsh received training in domestic violence at the police academy every two years and attended conferences on domestic violence. Around 1995, Walsh became the case assignment officer for the new domestic violence response unit. At this time, he also became involved in developing training programs on domestic violence for law enforcement or prosecutors. He helped create training tapes dealing with domestic violence, elder abuse and stalking. He also helped develop an eight-hour course for first responders to explain how to handle a domestic violence case and how to handle the victim, a 40-hour domestic violence investigators course, a three-day course on domestic violence for field training officers, a two-day course about how to investigate a domestic violence case where there is a police officer as a suspect, and a three-day course for hostage negotiators on how to handle hostage situations involving domestic violence. Walsh was also an instructor or back up instructor for three of these courses.

The court permitted Walsh to testify as an expert. Walsh testified about common behaviors of domestic violence victims, including a tendency to initially cooperate with law enforcement and then later become reluctant, to minimize the seriousness of the conduct in order to protect the batterer or someone else in the household, and to reestablish contact with the batterer. Walsh testified victims usually stay with their batterer for their own safety, or because they lack resources, or if children are involved.

Walsh stated he was familiar with a power and control wheel (wheel) and the prosecutor offered this wheel as an exhibit. Walsh testified the wheel was developed as a tool to work with domestic violence victims and batterers. He began using the wheel in the early 1990s to help explain domestic violence to victims, and he also used the wheel in all of the domestic violence classes he helped develop. The wheel works as a training tool because it illustrates that domestic violence includes more than the physical assault. As explained by Walsh, the wheel contains various terms: sexual violence and physical violence are around the outside of the wheel because these are only intermittent actions; behaviors such as intimidation, coercion, and threats are on the inside of the wheel because they are happening consistently in the relationship. These behaviors may manifest themselves as controlling the finances in a relationship, exercising male privilege, or threatening to take the children. Also on the wheel are batterer behaviors such as minimizing or denying the conduct, blaming the victim, and using isolation or emotional abuse to maintain control.

Walsh stated he had not previously worked on this particular case, did not know the facts of this case, and did not know appellant or the victim. When asked hypothetical questions, Walsh testified that placing a lock on a telephone and not allowing an individual to have contact with other family members would be consistent with isolation in domestic violence.

Richards Testimony

Finally, the prosecution called Richard as a witness. Richard is the son of appellant and Ophelia, and he was approximately 12 years old when the victim came to live with his family. Richard testified that appellant was possessive of the victim and would call the victim into his bedroom. Richard would listen by the bedroom door and would hear hitting noises. Richard stated the victim was not allowed to leave the house unless she was with the entire family. On one occasion, appellant gave Richard a gun and told him to shoot the victim if she tried to leave. A second time, appellant told Richard where the gun was located, if the victim tried to leave. Richard recalled he was unable to access the telephone in his home because it had a lock on it, and the front yard was enclosed by a high fence with a bar across double doors that always had to be locked. Richard was thrown out of the house when he was 17 years old and has not lived with appellant since that time.

After Richards testimony, the prosecution rested. The defense offered no witnesses, and rested as well.

Discussion

On appeal, appellant contends the trial court erred in (1) admitting evidence of past acts of abuse and prior domestic violence, (2) instructing the jury on the definition of domestic violence, (3) admitting certain expert testimony and the accompanying visual aid, (4) imposing the upper term sentence, and (5) setting the restitution fine.

I. Admissibility of Evidence of Past Domestic Violence

At trial, the court admitted all evidence of appellants past abuse against the victim from the time she arrived in California at age 12 under Evidence Code section 1109.^[6] Appellant asserts various challenges to the admission of some or all of this evidence, and we discuss these challenges in turn.

A. Evidence of All Prior Acts of Domestic Violence
Against the Victim

Section 1101, subdivision (a) provides, Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. Section 1109, subdivision (a)(1) provides, Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.^[7]

Appellant contends all prior acts of domestic violence against the victim should have been excluded pursuant to section 352. Section 352 provides, The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Here, the trial court stated it had performed a [section] 352 analysis prior to admitting evidence of appellants prior acts of domestic violence against the victim. We review a challenge to a trial courts choice to admit or exclude evidence under section 352 for abuse of discretion. [Citation.] We will reverse only if the courts ruling was arbitrary, whimsical, or capricious as a matter of law. [Citation.] [Citation.]. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)

Section 1109 affects the practical operation of section 352 balancing because admission and consideration of evidence of uncharged domestic violence offenses to show character or disposition is no longer treated as intrinsically prejudicial or impermissible, and the evidence of other offenses is presumptively admissible. People v. Johnson (2000) 77 Cal.App.4th 410, 419 quotes the legislative history of section 1109 as saying,  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.  [T]he 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, at p. 420.)

In enacting section 1108, regarding the admissibility of uncharged sexual assaults in sexual offense cases, the Legislature recognized the need for evidence of prior uncharged sexual misconduct is particularly critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial [citation]. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) The same motivation exists for admitting evidence of prior uncharged domestic violence offenses in domestic violence prosecutions: [D]omestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim. . . . The Legislature could rationally [permit] the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.)

Because many of appellants past acts of abuse had occurred in the presence of other family members, their testimony regarding these past acts provided a critical supplement to the evidence of the charged crimes, fulfilling, in a significant way, the statutory goal. The probative value of such evidence was, therefore, high.

In People v. Harris (1998) 60 Cal.App.4th 727, 737-739, the court examined the manner in which section 352 should be applied to evidence introduced pursuant to section 1108 and set forth a list of factors to consider in evaluating undue prejudice: the inflammatory nature of the evidence, remoteness, probability of confusion, and consumption of time. This undue prejudice is then weighed against the probative value of the evidence. We adopt the Harris factors for our analysis of section 1109.

Some of appellants uncharged acts that were admitted were clearly inflammatory, particularly the testimony that appellant began forcing the victim to have sex with him when she was 12 years old and continued to do so throughout the victims life, that appellant had directed his sons to keep the victim in the house at gunpoint, and that appellant had used a firearm to coerce the victim to move out with him. Most of the testimony, however, related to acts of violence or nonviolent controlling behavior no more inflammatory than the acts charged in the information. And, though the sexual assaults and the armed assaults were more inflammatory, they helped explain the victims fear of appellant, her sense of hopelessness and her willingness to remain with him following the March 2005 incident. Evidence that appellant forced the victim at gunpoint to move away from the rest of the family illuminated the crucial turning point in the relationship with the rest of the family and, therefore, was directly related to appellants alleged anger toward the victim in March and April 2005.

Many of the prior acts were remote in time, but they were committed against the same victim, and the relationship between the victim and appellant was ongoing. As previously discussed, the victim testified the violence was continual and she had still never consented to having sex with appellant.

Regarding the risk of confusing the issues for the jury, the fact that the prior uncharged acts of domestic violence did not result in criminal convictions could have increased the risk of confusion because the jury had to determine whether the uncharged acts occurred and the jurors may have been more inclined to punish appellant for those uncharged acts. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.)

The presentation of the evidence regarding appellants past acts of domestic violence consumed approximately one-third of the total pages of witness testimony in the transcripts, with the other two-thirds taken up with testimony regarding the charged incidents, the expert testimony on domestic violence, and other background information. However, the vast majority of the prosecutors closing argument focused on the particular elements of the crimes charged and how the victims testimony about the incidents fit into those elements.

On balance, we find no abuse of discretion in the trial courts conclusion that the undue prejudice flowing from this challenged evidence did not substantially outweigh its probative value and uphold that ruling.

B. Evidence of Acts of Domestic Violence Occurring
More Than 10 Years Ago

Next, appellant contends the court abused its discretion in concluding that admitting evidence of prior acts of domestic violence against the victim occurring more than 10 years ago was in the interest of justice. Section 1109, subdivision (e) provides, Evidence 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. Though section 1109 does not define the meaning of the phrase in the interest of justice, we understand that, unlike a challenge to evidence under section 352, in the trial court the burden is on the proponent of the evidence, not the opponent of it. We review the trial courts decision under an abuse of discretion standard. (See People v. Carmony (2004) 33 Cal.4th 367, 373-378 [the trial courts exercise of discretion to strike a prior conviction in furtherance of justice is reviewed for abuse of discretion].)

On this record, we cannot say the trial court abused its discretion in ruling that admission of the prior acts evidence was in the interest of justice. As we discussed, the evidence of appellants prior acts were against the same victim, as part of an ongoing relationship. The earlier acts helped to illuminate the nature of the relationship between appellant and the victim and their relationship to the rest of the family. Further, the evidence provided a basis for the victims fear of appellant.

C. Evidence of Prior Acts Against the Victim as a Minor

Finally, appellant argues the evidence of uncharged abuse of the victim prior to her turning 18 was improperly admitted pursuant to section 1109 because these acts were not encompassed by the applicable definition of domestic violence. The admission of the evidence was not challenged on this particular ground at trial and respondent argues that appellant has waived his right to assert this challenge on appeal. Assuming, without deciding, that the issue was not waived, we find any error was not prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836.

Pursuant to Evidence Code section 1109, if the prior acts occurred more than five years before the charged offense, they qualify as domestic violence only to the extent set forth in Penal Code section 13700.^[8] Section 13700, subdivision (b) provides in relevant part,  Domestic violence means 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. For purposes of this subdivision, cohabitant means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. (Italics added.) Although the trial court stated that all prior acts against the victim were admissible because she was a cohabitant with the defendant, appellant correctly points out that section 13700, subdivision (b) limits the definition of cohabitants to adults. Therefore, acts against the victim as a minor were inadmissible pursuant to section 1109. The trial court erred by not excluding this evidence.

However, we find the error was not prejudicial.^[9] A  miscarriage of justice [occurs] only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836; see People v. Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard to the erroneous admission of evidence of prior sexual offense].) After examining the entire record, we cannot say that had the evidence of prior acts against the victim as a minor been excluded, it is reasonably probable that appellant would have enjoyed a more favorable outcome.

First, even without evidence of the alleged acts against the victim between the ages of 12 and 17, the prosecution had powerful, corroborated evidence of appellants prior acts of domestic violence against the victim, from which the jury might have inferred appellants propensity to commit the charged acts of domestic violence. For example, the victim testified that the family moved to Fresno when Emma was three years old (meaning the victim was age 19, and therefore an adult and cohabitant under section 1109). She testified that she was not allowed to attend school or go outside, she and Emma were forced to share a bedroom with appellant while Ophelia had a different bedroom, the same violence that occurred previously continued to occur, and appellant continued on a regular basisto force the victim to have sex without her consent. When the victim would have been approximately 24 years old, appellant became angry with the family, took out his gun, and forced the victim and Emma to move out of the house with him. As for Emmas testimony, it remained admissible in its entirety because the earliest memories she recounted were from the time she was four or five years old, at which point the victim was age 20 or 21. Emma testified she remembered seeing appellant slap the victim during an argument and would see appellant having sex with the victim while she (Emma) was in the room, and the victim was unresponsive and listless. Although much of Ophelias testimony addressed acts against the victim as a minor, her testimony regarding appellants use of his gun to force the victim and Emma to move with him out of the house was proper. Appellant argues that admission of the acts committed against the victim before she turned 18 were more inflammatory because she was a child. We agree. However, the volume of violent and sexual offenses committed against the victim as an adult substantially reduced any prejudice resulting from introduction of the inadmissible evidence.

In addition, appellants claim he was prejudiced by admission of this evidence is undermined by the jurys decision to acquit on the second count, and convict appellant only of a lesser included charge. This reflects the sort of careful evaluation of the evidence that is at odds with appellants claim that the courts error led to an emotional decision against him. (See People v. Zavala (2005) 130 Cal.App.4th 758, 771.)

Further, the jury heard the undisputed testimony of the victim and Emma regarding the crimes charged. The victims testimony covered both the March and April 2005 incidents with a high degree of detail. Emmas testimony corroborated the fact that the victim sought counseling after the March incident, and significantly corroborated the victims account of the events of April 9. The jury also had in evidence the speed gloves that the victim testified were the gloves used throughout the April 9 incident.

Next, the prosecutor did not overemphasize the prior acts against the victim as a minor in her closing argument. In her initial argument, the prosecutor focused almost exclusively on the elements of the crimes charged, and how the victims testimony regarding the incidents fit each of those elements. In the prosecutors rebuttal argument, she referred the jury to the instruction that allowed the jury to infer appellant had the disposition to commit a domestic violence offense, and she stated that the history of the family and the past abuse was important in this respect.^[10] She briefly referred to the change in the victim since she came to California as a 12-year-old girl and mentioned appellant taking the victim into his room, but spent less than 10 percent of her argument altogether on this topic. Again, she spent the majority of her time in her closing argument focused on the incidents in question.

Finally, the jury was instructed that even if it determined that appellant had a disposition to commit acts of domestic violence and, therefore, was more likely to have committed the charged offenses, this inference is simply one item for you to consider along with all the other evidence, in determining whether [appellant] has been proved guilty beyond a reasonable doubt of the charged crimes. We presume the jury followed this instruction.^[11] (People v. Fitch (1997) 55 Cal.App.4th 172, 184.)

II. Instructing the Jury Regarding Past Domestic Violence
as Propensity Evidence

Appellant also contends the court committed prejudicial error when it erroneously instructed the jury regarding the definition of domestic violence. This argument tracks appellants challenge to the evidence discussed in part I.C. above. The trial courts instructions did not limit the jurys consideration of appellants past acts to those committed against the victim as an adult, and instead the instructions allowed the jury to consider all of appellants past acts against the victim, including those acts against her as a minor.

Following the same statutory analysis as outlined above regarding the admissibility of the evidence, we conclude the instructions were also improper in allowing evidence of past acts against the victim as a minor to be considered for propensity under section 1109. However, we also conclude the error was not prejudicial. (People v. Flood (1998) 18 Cal.4th 470, 482-490 [prejudicial effect of instructional error is to be evaluated under Watson standard].) As discussed, even without the evidence of the acts against the victim as a minor, there existed sufficient evidence of past domestic violence the jury could have relied on for a propensity inference. In addition, for all the reasons stated above, there is no indication that the jurys consideration of the acts against the victim as a minor unduly affected the outcome.

III. Admitting the Experts Power and Control Wheel
and Related Testimony

Appellant next contends the prosecutions expert, Walsh, was not qualified to testify regarding the power and control wheel and it was error to admit the wheel into evidence.

Section 1107, provides in relevant 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.

Here, the trial court ruled Walsh was qualified to testify as an expert on the dynamics of domestic violence. [A] trial courts decision as to the qualifications of a witness will be upheld absent an abuse of discretion [citation]. (People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) Error is only found where the evidence shows a witness clearly lacked qualifications as an expert. [Q]ualifications of an expert must be related to the particular subject upon which he is giving expert testimony. (Hogan, at p. 852.)

As previously outlined, Walsh testified about the various actions and dynamics that exist in domestic violence and referred to the wheel to illustrate this testimony. The wheel contained various terms representing behaviors common in domestic violence, arranged around and within the wheel based on frequency of the behavior. Walsh detailed his extensive experience with domestic violence, and he has personally helped create numerous training tapes and courses regarding how to handle a domestic violence situation. Further, despite the fact that Walsh was not the original creator of the wheel, he began to use the wheel as a training tool with victims and in his courses in the early 1990s, and thus he was familiar with using the wheel as a reference tool. Based on Walshs extensive experience with suspects, victims, and incidents of domestic violence, and his experience with the wheel itself, the trial court did not abuse its discretion by allowing Walsh to testify to the various common behaviors found in domestic violence as portrayed by the wheel.

In addition, the trial court overruled defense counsels objection and admitted the wheel into evidence. Appellant argues that because Walsh did not know how or why [the wheel] was developed there was no proper foundation for admitting the exhibit. We view the wheel simply as a prop, used by the witness to explain his testimony, not unlike a chart or a diagram. Even if the court erred in admitting the exhibit, it was not error to permit Walsh to refer to it during his testimony, and no evident prejudice flowed from admitting it into evidence.

IV. Imposition of the Upper Term Sentence

Appellant contends the imposition of the aggravated term in this case violated the Sixth Amendment and due process under Blakely v. Washington (2004) 542 U.S. 296. In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court held that Blakely applies to Californias determinate sentencing law. Under Cunningham, the imposition of an upper term in California is unconstitutional if based on facts neither admitted by the defendant nor found true by a jury beyond a reasonable doubt. (Cunningham, at pp. 870-871.)

Here, the trial court sentenced appellant to the upper term of four years on the charge of corporal injury to a cohabitant (Pen. Code,  273.5, subd. (a) [count 1]) and consecutive sentences of one-third the midterm (eight months) each on the charge of false imprisonment (Pen. Code,  236 [count 3]) and making criminal threats (Pen. Code,  422 [count 4]), for a total of five years four months in state prison.^[12]

The trial court imposed the upper term sentence on count 1 after finding the circumstances in aggravation outweighed those in mitigation. The court found the one mitigating factor to be appellants satisfactory performance on probation with respect to two previous statutory rape convictions. The court found the following three aggravating factors: (1) the crime involved the threat of great bodily harm, as well as a high degree of viciousness and callousness on the part of appellant, (2) the manner in which the crime was carried out indicated planning and sophistication, and (3) appellant was convicted of crimes involving violent conduct, indicating he is a serious danger to society.

These aggravating factors were neither admitted by appellant nor found true beyond a reasonable doubt by a jury. Referring us to Washington v. Recuenco (2006) 548 U.S.___[126 S.Ct. 2546] and People v. Sengpadychith (2001) 26 Cal.4th 316, respondent argues that Cunningham error is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. We agree, but reject respondents further argument that sufficient evidence of the three aggravating factors was presented to the jury.

As to the first aggravating factor, the trial court found that the crime involved the threat of great bodily harm. However, the jury acquitted appellant of the charge of assault by means of force likely to produce great bodily injury (count 2), creating at least a reasonable doubt as to whether the jury would have found true the first aggravating factor. We are also unable to conclude, beyond a reasonable doubt, that the jury would have found true the third aggravating factor relied on by the trial court, that appellant was convicted of crimes indicating he is a serious danger to society. Even if we agree with respondent that, beyond a reasonable doubt, the jury would have concluded the crime was carried out with planning and sophistication, we are unable to conclude, beyond a reasonable doubt, that the trial court would have imposed the aggravated term based on this factor alone. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.) Therefore, we vacate the aggravated term imposed on count 1 by the trial court and remand for resentencing.^[13]

V. Imposition of the Restitution Fine

Appellant contends, and respondent concedes, that the $16,000 restitution fine imposed by the trial court under Penal Code section 1202.4, subdivision (b) should be reduced to the statutory maximum of $10,000. Under section 1202.4, subdivision (b) the restitution fine shall not be more than $10,000, regardless of the number of counts involved. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) The judgment must be modified and the restitution fine reduced to $10,000.^[14]

Disposition

The case is remanded for resentencing and reduction of the restitution fine. In all other respects the judgment is affirmed.^[15]

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

NEEDHAM, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] On counts 1, 3 and 4, appellant was sentenced to state prison for a total of five years four months. On count 5, the court imposed a sentence of one year in the county jail consecutive to the prison sentence.

^[2] With no disrespect intended, we refer to the family members by their first names because they all share the last name Mejia.

^[3] The victim testified that although appellant had previously had a vasectomy, he initially thought he was the father of Emma.

^[4] Emma testified she was away from home for a period of time while she was attending college at the University of California, Los Angeles (UCLA).

^[5] On cross-examination, defense counsel elicited testimony that Ophelia saw appellant abuse the victim every single day and that appellant would force Ophelia to watch these acts so she (Ophelia) could learn how to have sex.

^[6] All undesignated section references are to the Evidence Code.

^[7] In its entirety, section 1109 provides:

(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendants commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendants commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.

(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.

(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.

(d) As used in this section:

(1) Abuse of an elder or dependent person means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.

(2) Child abuse means an act proscribed by Section 273d of the Penal Code.

(3) Domestic violence has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, domestic violence has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.

(e) Evidence 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.

(f) Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.

^[8] Evidence Code section 1109, subdivision (d)(3) provides,  Domestic violence has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352 [of the Evidence Code], which shall include consideration of any corroboration and remoteness in time, domestic violence has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.

^[9] Respondent contends that acts against the victim qualified as domestic violence from the time she was age 16 because appellant held Emma out to the world as his own and thus, the victim was a person with whom appellant had a child. Respondent also contends that even had the evidence of acts against the victim as a minor been inadmissible under section 1109, this same evidence could have been admitted for other purposes. Because we find the admission of the evidence was not prejudicial, we do not need to address these points.

^[10] As appellant points out, the prosecutor did state, That is why the history of this family . . . and all the horrible abuse we heard about for three long days, three and a half long days, is important. However, not only was this somewhat of an exaggeration, but the prosecutor did not dwell on this theme nor did she at any point suggest that the jury could or should convict on this basis. Instead, she properly told the jury how the evidence was to be used for an inference of propensity.

^[11] Appellant contends that the jurys written question to the judge, What is the definition of . . . likely . . . ?, demonstrated the importance of the propensity evidence to the jurors because it could only have been a reference to the instruction they were given regarding the prior acts of domestic violence, and specifically that they could infer that he was likely to commit the crimes charged. Appellant does not support this conclusion, and to the contrary, the jury request form as a whole actually suggests that the question related to the charge of felony assault by means of force likely to produce great bodily injury (count 2) (Pen. Code,  245, subd. (a)(1)).

^[12] The court additionally imposed a sentence of one year in county jail on the misdemeanor charge of using force and violence (Pen. Code, 243, subd. (e)(1) [count  5]), to be served consecutively to the state prison sentence. A six-month county jail sentence was imposed on the Penal Code section 240 charge (lesser included offense in count 2), but that sentence was stayed pursuant to Penal Code section 654.