Filed 3/27/18 P. v. Rabago CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

RAMON MEZA RABAGO,

Defendant and Appellant.
D073014



(Super. Ct. No. RIF1315502)

APPEAL from a judgment of the Superior Court of Riverside County, Thomas Kelly, Judge. (Retired Judge of the Butte Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Blumenthal Law Offices and Brent F. Romney for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ramon Meza Rabago of making a criminal threat (Pen. Code, § 422), witness intimidation accompanied by force (§ 136.1, subd. (c)(1)), spousal battery (§ 243, subd. (e)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)). In bifurcated proceedings, Rabago admitted one prison prior (§ 667.5, subd. (b)), two serious felony priors (§ 667, subd. (a)), and two strike priors (§§ 667, subd. (c), 1170.12, subd. (c)). The trial court dismissed one strike in the interest of justice under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced Rabago to a total term of 28 years in prison.
Rabago appeals. He contends the court erred by (1) allowing the victim to testify regarding Rabago's involvement in a prior fatal stabbing and (2) allowing a sheriff's deputy to testify regarding the behavior of domestic violence victims. We disagree with these contentions and therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On December 8, 2013, the victim ran to a neighbor's house and told the neighbor she needed to call 911. The victim told the operator she and her husband, Rabago, had been arguing all morning. He had taken her car, her cell phone, and her house keys. She said he was "holding [her] hostage" at home. The victim said that Rabago told her he would "kick [her] ass" if she left the house or called police. She said that Rabago "might be on drugs" and that he had a violent history, including an attempted murder conviction approximately 10 years before.
A sheriff's deputy, Isaac Perez, responded to the victim's call. He thought the victim had been crying; she looked scared and distraught. The victim told Perez she had been involved in an argument with Rabago because he accused her of having an affair. The victim went into a bathroom, but Rabago followed her and attacked her with a pair of scissors. He cut the victim on both sides of her neck and then punched her in the head. He also used a small key chain ornament to pierce the inner part of her ear. Perez saw a scratch on the front of the victim's neck, a small cut on the side of her neck, a painful lump on the back of her head, and injuries to her ear. He took photographs of the victim's injuries.
The victim told Perez that Rabago threatened to kill her if she called the police. She also said that he wrote the number 187, which she knew to be the Penal Code section defining murder, on his neck with lipstick. During his conversation with the victim, Perez did not notice any injuries to the victim's arms. The victim denied hitting Rabago at all during the argument.
Eight days later, the victim called 911 again. On the recording, Rabago can be heard demanding that the victim open her door. He appeared to believe that another adult was in the house with the victim, but she denied it. The victim told the 911 operator that Rabago broke her window and back door in his attempt to get inside. She again mentioned Rabago's involvement in a fatal stabbing, and she told the operator that Rabago was wanted on a domestic violence warrant. She said, "He has to get caught today 'cause if he doesn't I'm pretty sure he's gonna come back with a gun." The operator asked whether Rabago owned a weapon. The victim responded, "You know what, he hangs out with thugs that I wouldn't be surprised if they all have 'em. He has said in the past that he's not gonna go back to prison. That he'll go out in [a] shoot out with the cops. That's what he said before." Rabago was later arrested.
A day after Rabago's arrest, the victim asked Perez to contact her. He went to the victim's house and talked with her. Perez recorded their conversation. He reconfirmed the details of the attack and subsequent confrontation. Among other things, the victim told Perez again that Rabago accused her of cheating on him and cut her neck with a pair of scissors.
Nonetheless, the victim told Perez she wanted to drop the charges against Rabago. She explained that she owned a trucking company and Rabago was the driver. Without Rabago working, her family would suffer financially. Perez told her he would still have to file his report.
At trial, the victim denied that Rabago attacked her. She testified that Rabago's mistress began sending her text messages, and she got angry. She punched Rabago in the face, grabbed the scissors, and tried to stab Rabago. She said Rabago tried to soothe her, but she kept fighting. She hit his chin with the top of her head. Rabago then took the victim's car keys and cell phone and drove away. The victim said she called the police because she wanted her car and cell phone back. She said she lied to Perez and others about the attack. She said her neck was scratched because she pulled a necklace off and her ear was injured because she hit herself with the key chain ornament.
Perez testified that, in his experience, "victims will recant their stories or tell me that they're lying or they will withhold a lot of parts of the incident so that the suspect or the attacker . . . won't be arrested for different charges." He estimated that the victims had recanted their stories in approximately 20 of the 50 to 75 domestic violence cases in which he had been involved. He explained that victims typically will stay with their abuser if they have children together or if the victim will suffer financially.
DISCUSSION
I
Evidence of Rabago's Prior Involvement in a Fatal Stabbing
Rabago argues that the court erred by admitting evidence of his prior involvement in a fatal stabbing. Before trial, the prosecution moved in limine for a determination that evidence relating to the incident was admissible. The trial court held an evidentiary hearing, where the victim testified that Rabago had been involved in a stabbing, that a person had died as a result, and Rabago went to prison. The prosecution argued that the victim's knowledge of Rabago's involvement in the stabbing was relevant to her state of mind, i.e., whether she was reasonably in sustained fear for her own safety for purposes of the criminal threats statute (§ 422). Rabago objected on the ground that the evidence was unduly prejudicial under Evidence Code section 352.
The trial court overruled Rabago's objection. It found that the victim's state of mind "is critical at the time of this alleged threat, and what she knew about the defendant is clearly relevant. It had bearing on how she would interpret any alleged threat that he might make." The court did not believe the evidence was unduly prejudicial. However, it limited the evidence to the victim's understanding of the stabbing, not any details she was unaware of. It summarized the victim's testimony as follows: "There was a bar fight. Person was stabbed to death. [Rabago] was one of six people that [were] prosecuted for that bar fight, and he went to prison [for] it."
Rabago expressed concern that the jury would misinterpret the victim's testimony and believe that he had been in prison for murder, rather than attempted murder. The court encouraged the parties to come to a stipulation that Rabago was convicted of attempted murder, but no such stipulation appears in the record.
At trial, the stabbing was mentioned in the victim's two 911 calls, both of which were admitted into evidence. In the first call, the victim said, "[L]ike 9-10 years ago he was, um, caught up in a case in Riverside, um, for attempted murder." In the second call, the victim said, "He has a prior. He went in for, um, attempted murder years ago. He did nine years in prison for that." In her testimony, the victim explained that she read about the stabbing in the newspaper before she began dating Rabago. She learned that six people were involved and one person was stabbed. The stabbing victim later died, though it was unclear whether he died as a direct result of the stabbing or a medical error during his treatment. At some point before she married Rabago, the victim found out that he had been involved in the stabbing and spent time in prison as a result.
Following the close of evidence, the trial court instructed the jury using a modified version of CALCRIM No. 303 that it could use the evidence of the fatal stabbing for the limited purpose of the victim's mental state. The court stated, "[T]he alleged victim testified that at the time of the December 8th, 2013, incident, she was aware of the defendant doing time for an attempted murder conviction arising out of a six-suspect stabbing incident some years earlier. This testimony was admitted for the limited issue of the alleged victim's mental state during the incident of December 8th, 2013." The court explicitly cautioned the jury, "Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
In general, evidence of a defendant's involvement in a prior criminal act is admissible only if it is "relevant to prove some fact . . . other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b); see People v. Demetrulias (2006) 39 Cal.4th 1, 14.) "[T]he admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute 'may be either an ultimate fact in the proceeding or an intermediate fact "from which such ultimate fact[] may be . . . inferred." ' " (People v. Catlin (2001) 26 Cal.4th 81, 146.) "As long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper." (People v. Daniels (1991) 52 Cal.3d 815, 857.)
"Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' [Citations.] 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' " (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Even if relevant, the evidence " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.' " (Ibid.) " 'We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.' " (People v. Butler (2005) 127 Cal.App.4th 49, 60.)
Rabago has not shown the court abused its discretion here. An element of the charged offense of making a criminal threat under section 422 is the victim's reasonable and sustained fear for her own safety. (People v. Toledo (2001) 26 Cal.4th 221, 228.) Prior acts of violence known to the victim are directly relevant to this element. (People v. Garrett (1994) 30 Cal.App.4th 962, 967 (Garrett).) As such, the victim's knowledge of Rabago's involvement in a prior fatal stabbing was relevant here. While evidence of prior criminal acts inherently carries some risk of prejudice, Rabago has not shown that this risk substantially outweighed the probative value of the evidence under Evidence Code section 352. Not only was the evidence directly relevant to the victim's state of mind, the victim herself mentioned Rabago's criminal history in each 911 call, thus drawing an explicit link between her knowledge and the fear she experienced. The court did not abuse its discretion by admitting this evidence. (See Garrett, at p. 967 ["Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense."].)
Rabago argues that the prejudicial effect of telling the jury that the stabbing victim had died outweighed any potential probative value. He claims the trial court told the prosecutor to avoid mentioning the death. We disagree. The record shows that the trial court was concerned that the jury would mistakenly believe that Rabago had been convicted of murder, not that the stabbing victim eventually died. The victim testified she was aware of the death, but that it was potentially not directly caused by the stabbing itself, so the jury would not have drawn the mistaken impression the court was worried about. The 911 calls admitted into evidence, and the court's limiting instruction, all referenced "attempted murder" as well. Rabago has not shown the court abused its discretion by admitting this evidence.
Rabago makes several somewhat related arguments, none of which is supported by reasoned legal argument or authority. We will, however, briefly consider them. Rabago claims the court erred by not providing its limiting instruction immediately after the victim's testimony. He did not request such an instruction, so he has forfeited that claim of error on that basis. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408.) Rabago also claims the court erred by admitting the victim's testimony that she told Perez Rabago may have been under the influence of unspecified drugs. He did not object to such testimony below either, so any claim of error is also forfeited. (People v. Thomas (1992) 2 Cal.4th 489, 520.)
Rabago also appears to argue the prosecutor committed misconduct by referencing the portions of the victim's second 911 call where she mentions "thugs" and "guns" and by arguing on that basis that the victim was afraid. He did not object to this argument either, and he has not shown an exception applies, so this claim of error is also forfeited. (People v. Boyette (2002) 29 Cal.4th 381, 432.)
II
Evidence Regarding Domestic Violence Victims' Behavior
Rabago contends the court erred by admitting testimony by Perez, the deputy sheriff, regarding the behavior of domestic violence victims in his experience. During Perez's testimony, Rabago objected to his statements regarding the behavior of domestic violence victims as lacking in foundation. Following an evidentiary hearing, the court observed that Perez had limited experience in domestic violence cases compared to other law enforcement personnel. It concluded, however, that Perez's testimony would be admissible if limited to his own experience. It stated, "I'm going to allow him to testify that in his training and experience he's had a certain number go sideways, and based [on] conversations with those witnesses, these are the reasons they've given and leave it at that."
The court does not appear to have conclusively determined whether this testimony was proper as lay opinion or expert opinion, and neither the prosecution nor the defense sought clarification on this issue. Following the close of evidence, the court stated that it admitted Perez's testimony as lay opinion testimony. It therefore intended to instruct the jury using CALCRIM No. 333 regarding lay opinion testimony. The reporter's transcript of the jury instructions, however, appears to show that the court instructed the jury that it heard opinions from witnesses "who were testifying as an expert," rather than witnesses who were not testifying as an expert as CALCRIM No. 333 would have stated. In response to Rabago's motion for a new trial, the court stated that Perez's testimony was proper expert opinion. Regardless of these inconsistencies, the written jury instructions refer to lay opinion testimony not expert testimony. (See People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113 ["The written version of jury instructions governs any conflict with oral instructions."].)
In this appeal, the Attorney General argues that Perez's testimony was proper as lay opinion testimony and does not rely on principles of expert opinion testimony. " 'A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), "i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed." ' " (People v. DeHoyos (2013) 57 Cal.4th 79, 130.) "Matters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (Id. at p. 131.) "Unlike an expert opinion, a lay opinion must involve a subject that is ' "of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." ' [Citation.] There is no 'third category of admissible opinions provided by highly experienced, nonexpert, lay witnesses.' [Citation.] Although a lay 'witness's experience may affect the weight of the testimony,' the witness's 'opinion testimony may rest only on common experience.' " (People v. Fiore (2014) 227 Cal.App.4th 1362, 1384, italics added.)
To the extent the trial court believed that Perez's testimony about the behavior of domestic violence victims was admissible as lay opinion testimony, it was mistaken. The behavior of domestic violence victims, and its relationship to the truth of their abuse, is a matter beyond common experience. Instead, it is the domain of psychology and sociology, and it is commonly the subject of expert opinion testimony. (See, e.g., People v. Brown (2004) 33 Cal.4th 892, 906-907; People v. Williams (2000) 78 Cal.App.4th 1118, 1129.) The Attorney General attempts to avoid this result by claiming that Perez was merely relating the facts of his own experience, i.e., the number of times domestic violence victims he had assisted had recanted. But Perez's testimony was not so limited. He testified about the reasons why a domestic violence victim might recant or minimize her abuse, and the implication of his testimony was that domestic violence victims who recant were telling the truth in their initial statements. Even if limited to his own history with such victims, Perez's testimony had no relevance except as an opinion about domestic violence victims in general—including the victim here—which he could not properly offer as a lay witness because it is beyond the realm of common experience. (See People v. Melton (1988) 44 Cal.3d 713, 744 ["The instant record does not establish that [the witness] is an expert on judging credibility, or on the truthfulness of persons who provide him with information in the course of investigations."].)
As noted, the trial court appears to have believed at certain times that Perez's testimony was admissible as expert opinion testimony. However, we need not decide whether Perez qualified as an expert because, even assuming his testimony was inadmissible, any error was harmless. "Improper admission of lay opinion evidence is a state law error subject to the Watson test. [Citations.] That test asks whether it is reasonably probable the defendant would have obtained a more favorable verdict if the improper evidence had not been admitted." (People v. Shorts (2017) 9 Cal.App.5th 350, 362; see People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the evidence overwhelmingly showed that Rabago attacked and threatened the victim and that the victim's testimony at trial was untrue. The victim's two 911 calls were recorded, and they vividly described the attack and subsequent confrontation. Perez also recorded the victim's statements to him, which confirmed the details of the attack and also explained the victim's financial concerns should Rabago be convicted. These recorded statements were supported by photographs of the physical consequences of the assault, the testimony of the victim's neighbor, and the unobjectionable testimony of Perez. Perez's testimony regarding the behavior of domestic violence victims was inconsequential in light of the entire record. There is no reasonable probability Rabago would have obtained a more favorable verdict if Perez's testimony on that point had been excluded.
DISPOSITION
The judgment is affirmed.


GUERRERO, J.

WE CONCUR:




McCONNELL, P. J.




IRION, J.