P. v. Varelas

Filed 4/20/07 P. v. Varelas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant Jose Luis Varelas of two counts of felony infliction of corporal injury on the mother of his child (Pen. Code[1] 273.5, subds. (a) & (e)), two counts of misdemeanor false imprisonment ( 236, 237), and one misdemeanor count of violating a protective order ( 273.6, subd. (a)) arising out of events that occurred on separate occasions in October 2003 and October 2004. The jury also found true enhancement allegations that defendant had a prior conviction for domestic violence when he committed the 2003 offense and that he was on bail when he committed the 2004 offenses. The jury acquitted defendant of one count of assault with a deadly weapon (a hammer, 245, subd. (a)(1)) arising out of the 2003 incident and two counts of making criminal threats ( 422). In a bifurcated proceeding, the court found true enhancement allegations that defendant had two prior convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12).

The court denied defendants motion for new trial and his Romero[2] motion. The court sentenced defendant to 25 years to life on both of the infliction of corporal injury counts, for a total term of 50 years to life. The court also sentenced defendant to 90 days in jail on each of the misdemeanor false imprisonment and violation of a protective order counts, to run concurrent with each other and the other sentences imposed in the case. The court stayed punishment for the on-bail enhancement ( 12022.1, subd. (d)).

On appeal, defendant contends the court erred when it refused to dismiss Juror No. 10, when it permitted the prosecution to introduce expert evidence regarding battered womens syndrome, when it denied defendants request to present evidence regarding the victims psychiatric problems, when it denied defendants motion for new trial, when it failed to strike one or both of his prior strike convictions, and when it failed to dismiss rather than stay the on-bail enhancement ( 12022.1). He also claims his counsel was ineffective when he failed to challenge venue on counts 6, 7, and 8. We find no error and affirm the judgment.

Facts

I. Prosecution Case

Vanessa Ruiz met defendant in 2002. She became pregnant with defendants child two or three months later; their son was born in September 2003.

A. October 28, 2003 Incident

On October 28, 2003, Vanessa and her son were living with her parents in Morgan Hill. That morning, Vanessa appeared in court and obtained a restraining order against defendant. Defendant was present at the hearing and was served with a copy of the order. That evening, Vanessas aunt, Claudia Ruiz,[3] was in a local tattoo shop. Defendant walked in, screamed Wheres Vanessa? then asked Is she getting fucked?

1. Testimony of Felipe Ruiz and Officer Berlin

Defendant appeared at Vanessas home later that evening. Felipe Ruiz, Vanessas father, testified that defendant was sweaty, breathing hard, and almost crying. He was arguing with Vanessa. Felipe did not want Vanessa to be with defendant, so he gave defendant a ride home.

Morgan Hill Police Officer Curtis Berlin and other officers went to defendants residence in Morgan Hill around 10:00 p.m. on October 28, 2003, in response to a complaint by a neighbor of a woman yelling for help. The officers searched outside for signs of a struggle and searched the house, but did not find anything.

Later that night, Vanessa called home and told her father she was spending the night at defendants house. Her father responded I dont think so and went to defendants house to pick her up. Vanessa got into the car right after her father arrived and said Take me straight to the cops. Felipe testified that Vanessa looked like she had been dragged around. She had bruises on her hand and shoulder and appeared to be afraid. She had a lump on her right hand that was swollen for days. She said defendant struck her hand with a hammer. She told her father someone had called the police and defendant would not let her go outside to get help when the police arrived.

Felipe drove Vanessa to the police station, where she was interviewed by Officer Berlin. According to Officer Berlin, Vanessa appeared upset. She had red, bloodshot, very puffy eyes and looked like she had been through a severe ordeal. After conducting an initial interview, Officer Berlin asked Vanessa to repeat her story on videotape. ~(RT 385)~ The prosecution played the videotaped interview for the jury.

2. Taped Interview of Vanessa

Vanessa told Officer Berlin she was surprised to see defendant when he showed up at her house that day because she had put him in jail two weeks before. Defendant was sweating and crying and said they needed to get back together. He asked her to stop seeing Phil, a man she was dating.

After defendant and her father left, Vanessa walked to her aunts house. As she walked home, defendant drove by with his cousin, asked her where she was coming from, and told her to get into the car. Defendant grabbed her by the hair and threw her into the backseat of the car. He pulled her hair and asked whether she had just slept with another man. He pulled her hair so hard, she was screaming. Vanessa told the officer defendant had pulled her hair and slapped her before.

When they arrived at defendants house, he pulled her out of the car by her hair. She fell onto the dirt driveway. Defendant kicked her arms and legs and hit her. He grabbed her head and slammed it into the dirt. Defendants brother, Lupe Varelas (Lupe), heard her screaming, came outside, and pushed defendant off Vanessa. Defendant hit Lupe and kicked Vanessa again. Defendant put his hands on her throat so she could not breathe. He let go and she screamed. Defendant covered her nose and mouth and told her not to scream.

They went inside Lupes room. Defendant said, Im going to kill this bitch tonight. While inside, he slapped her in the face twice and pulled her hair. He grabbed a hammer and threatened to kill her. Defendant asked her whether she had had sex with Phil. When she told defendant she had not done anything, he told her to call Phil and tell him she was in love with defendant. He threatened to kill her if she did not call; he threatened to stick her with a utility knife. When the police arrived, defendant told her to say she was okay so they would go away. But she was a mess, so they hid in the garage. He threatened to hit her with the hammer if she said anything. Defendant told her to call her father and say she was staying with him that night. She called, but her father did not believe her and picked her up.

Vanessa told the officer her right hand was swollen because defendant had kicked it. She said he had swung the hammer at her and hit her right forearm. She estimated defendant had slapped and punched her 10 to 14 times and kicked her five times.

3. Further Testimony by Officers Berlin, Swing and Newmeyer

Officer Berlin testified that there were minor inconsistencies between Vanessas original statement and her videotaped statement with regard to the number of times defendant struck her. In the first statement, Vanessa did not say anything about being forced to call Phil.

Officer Berlin took several photographs of Vanessa during the early morning hours on October 29, 2003. The photos depict a few scratches on her upper chest, bruising and swelling on her right hand, and bruising on both cheeks and both arms. Vanessa testified that her bruises became more pronounced a few days later. Officer Berlin did not observe any strangulation marks, bruising, or redness on Vanessas neck. Vanessa did not complain of any injury to her windpipe. He recalled that she had a horseshoe-shaped injury on her left arm.

Officers David Swing and Jerry Neumayer searched defendants residence after Vanessa reported the abuse to the police, looking for a knife, a hammer, and Vanessas sweatshirt. Officer Newmeyer found a claw hammer in a storage area in the garage; Officer Swing found the sweatshirt in Lupes room; they did not find the knife. The sweatshirt and hammer were in evidence. The sweatshirt was dirty, covered with dry grass, and had two large tears in the fabric.

Officer Neumayer interviewed Lupes girlfriend, Stephanie Toste, on the night of the incident. Toste said defendant was acting crazy and holding Vanessas arm when they entered Lupes room. She told the officer: (1) that Vanessa had injuries to her face and dirt on her clothing; (2) that defendant took the hammer out of Lupes desk, pointed it at Vanessa and told her to make a phone call; and (3) that Vanessa called Phil and told him she could not see him anymore.

Officer Neumayer also interviewed Lupe. Lupe said he did not tell the officers about the fight between defendant and Vanessa because he did not want to get in the middle of it. Lupe said he saw defendant take a hammer out of a drawer.

4. Vanessas Testimony at Preliminary Hearing

At the preliminary hearing on June 1, 2004,[4] Vanessa denied her statements to the police that defendant had grabbed, choked, kicked, stomped, hit, threatened, or forced her into the car or Lupes room. She testified that she tackled Antoinette Lopez, a woman who was interested in defendant, and fought with Lopez at defendants house. Vanessa said she hit defendant several times, but he did not hit her.

At trial, Vanessa testified that she lied at the preliminary hearing, when she said defendant did not injure her and when she testified that Lopez had inflicted the injuries. She said she testified falsely at the preliminary hearing to help defendant beat the charges because they were inaccurate. She did not want to get in trouble or lose her son.

Several hours after the preliminary hearing, Vanessa told Claudia that she was not right in the head, had lied to the police, and had set defendant up. Claudia sought medical help for Vanessa because she had cut and scratched her body.

5. Vanessas Trial Testimony

At trial, Vanessa told the jury she did not want to testify because she did not feel the police report or the charges were accurate. She said the whole thing was a big misunderstanding and that she made the police report out of anger, hatred, jealousy, and ignorance. She felt tremendous guilt because defendant was in jail for this case and could not be with his mother when she passed away.

Vanessa testified that defendant kicked in her door on March 19, 2003, after she asked him to sign away his parental rights to their son. She reported the incident to the police. Although he kicked the door, it did not cause any new damage because the door was already broken.

Vanessa testified that she lied to the police and filed a false report on October 16, 2003, when she told them defendant had scratched her. She said she set defendant up because she was angry that he was going out and was under the influence while she was at home with their baby. She was also upset that Lopez had bailed defendant out of jail a few days earlier.

When defendant came to her house on October 28, 2003, he was sweaty and real anxious. He did not want to talk to her and asked to speak with her father. Her father calmed defendant down and offered him a ride home. While Felipe was inside getting his car keys, Vanessa and defendant arranged to meet later at a local school.

Defendant was riding in a car with his cousin Anthony Robles and friend Mike Montes as Vanessa walked home from her aunts house. Defendant poked his head out the car window and they started arguing. Defendant was nervous because they both risked violating the restraining order and she was always calling the police. He wanted her to get in the car with him because she was making a scene. Defendant did not force her into the car. They continued arguing in the car, but defendant did not hit her or pull her hair. Later, she testified that she scratched him by accident or slapped him and then he pulled her hair.

When they got to defendants house, she tried to jump out of the car to piss him off and make a stupid scene. He did not pull her out of the car as she had reported to the police. They both said things to make each other jealous. He pushed her to the ground; they were wrestling, rolling in the dirt, and at each others throats. Lupe and Toste broke them up. Lupe told her to shut up and go inside. He was afraid the police would come because of her screaming.

There was a little pushing and shoving as they walked into Lupes room. Inside, defendant spit at her and shoved her into a wall. They both disrespect[ed] each other. They discussed their relationships with Lopez and Phil. Defendant said he did not want to be with Lopez and Vanessa told him there was nothing going on between her and Phil. She said defendant pushed or kicked her while she was on the floor.

There was a hammer in the room. Vanessa reached for it and defendant took it from her. She thought he was going to hit her, but he did not hit her or threaten her with the hammer. After he grabbed the hammer, she tried to get it back and they played tug-of-war with it. She called Phil and broke it off with him to avoid any more drama with defendant.

Lupe told them the police were there. Vanessa went into the garage with defendant voluntarily to hide, because they did not want any more police reports.

Vanessa testified that things were fine between her and defendant after she broke it off with Phil. Later, she said she was angry when she left because they had not resolved their issues. When her father picked her up, he was mad at her because she was at defendants house and it was late. Her clothes were dirty and her make-up was smeared, so her father asked her what was going on. Her father told her to stay away from defendant because it was not a healthy relationship. Her father told her he had already talked to a lawyer about taking custody of her son, so she decided defendant needed a time out and went to the police.

She lied to Officer Berlin when she told him defendant forced her into the car, held her down and struck her in the head, hit her in the face several times, slammed her head to the grounds, strangled her, kicked her, hit her in the arm with the hammer, and slammed her into the wall in Lupes room. Her hand was swollen because she had hit defendant. She testified at trial that defendant grabbed the hammer away from her and threw it somewhere. She does not know how she got the mark on her arm.

6. Lupes and Tostes Testimony

Lupe testified that he saw Vanessa with a hammer; he took it from her and put in the garage. Vanessa was angry; defendant was not angry, he was laughing at Vanessa. Lupe repudiated his prior statements to the police and said he did not see any injuries on Vanessa.

Toste did not see anything out of the ordinary when Vanessa and defendant entered Lupes room. She repudiated her prior statements to the police. She did not see defendant threaten or strike Vanessa.

B. October 2004 Incident (Vanessas Trial Testimony)

Vanessa sold her car to bail defendant out of jail after the preliminary hearing. She continued to see him and they started living together. Later, he missed a court date because she had not written it down correctly. She was afraid he would go back to jail and arranged for him to stay in a recreational vehicle (R.V.) at his uncles house in Los Banos.

Vanessa took a bus to Los Banos on Friday, October 8, 2004, to stay with defendant over the weekend. She admitted telling a police officer that defendant had greeted her at the bus station by saying [Y]oure lucky your cousin is here or I would have beaten the shit out of you for not arriving sooner. However, at trial, she claimed her statement to the officer was not true.

Vanessa testified that she and defendant used a lot of methamphetamine that weekend; they started arguing and it got physical. They spit at each other and were hitting each other. Defendant slapped her pretty hard in the face, pulled her hair and punched her. She ran from him inside the R.V. He pulled her back by the hair, pushed her, and she hit a cabinet. She got a couple of black eyes and a busted nose. She had bruises on her arms. Vanessa did not recall when the injuries occurred over the weekend, but stated that defendant became irritable, tired, sleepy, and delusional while coming down from the methamphetamine on Saturday.

Defendant hit Vanessa while they were walking to the store with one of defendants friends. She had flirted with defendants friend to make defendant jealous and defendant pushed her. At trial, she denied telling the grand jury that defendant had punched her in the face and mouth after she flirted with his friend. After this incident, Vanessa became separated from defendant for several hours. She eventually returned to the R.V.

Vanessa testified that she lied when she told the grand jury (1) that defendant had threatened her after she returned to the R.V.; (2) that defendant had covered her nose and mouth until she could not breathe and passed out; (3) that defendant had sexually assaulted her; and (4) that she had used a knife to cut defendant. She lied to Officer Palsgrove when she told him she smoked rather than injected the methamphetamine and when she said she only used $5 worth of the drug. She lied to Palsgrove when she told him defendant stomped on her or kicked her three or four times outside the R.V. and slammed her head into a window frame.

Defendant became concerned about the injuries Vanessa sustained in Los Banos. She looked pretty gross and he did not want her going home looking like that. She had planned to go home on Monday. Defendant asked her to call her parents and make up an excuse to stay longer. Vanessa wanted to leave and go home; she called her parents and asked for the addresses of relatives in Los Banos, so she could borrow some money to take the bus home. Her father suggested she borrow money from defendants uncle or ask his uncle for a ride home.

Vanessas father picked her up on Monday. She tried to cover her injuries with make-up and a hat. After her father became aware of her injuries, he took her to the Los Banos police station.

Vanessa reported the events of the weekend to Officer Palsgrove of the Morgan Hill police on October 14, 2004. He took photographs depicting her injuries, which were in evidence. The photos show: (1) two very noticeable black eyes; (2) a 4- to 5-centimeter bruise on the outside of her right upper arm, near the shoulder; (3) a large bruise on the underside of her right upper arm; (4) a 5-centimeter bruise on her left forearm; and (5) puffiness and bruising on her right hand. Vanessa testified that she enhanced her injuries for the photos by applying eye shadow and eyebrow pencil. Later, she testified the only injury she enhanced was the shoulder injury. At trial, she suggested that her father may have bruised her left forearm the day before she went to Los Banos.

On cross-examination, she testified that her statements to the police and the prosecutions investigator and her testimony at the preliminary hearing were a mix of truth and lies. She said she bruises easily and told the jury she and defendant liked to have rough sex, which may account for the bruising.

C. Expert Testimony Regarding Battered Womens Syndrome

Richard Ferry, a licensed marriage and family therapist, testified regarding battered womens syndrome (BWS) and domestic violence. He explained that BWS is a collection of symptoms that occur in many battered women in response to being battered in an intimate relationship. He stated the experience of being battered impacts womens thinking in several ways. They see the world and themselves as flawed, dangerous and unreliable. They believe their abuser is capable of additional violence that may be more severe. They believe they are negative and blame-worthy, responsible for the violence, and somehow deserving of it. They make excuses for the abuse and find ways to rationalize it. They believe they can manage or control the violence and rely on the defense mechanisms of minimization and denial. Minimization may include describing some kind of mutuality in the event.

Battered women engage in behaviors that may not make sense to others. They may not leave the relationship when they have an opportunity to do so. They may not report the violence to friends or police, may distort the report, minimize the report, refuse to cooperate with the prosecution, or recant. Battered women will employ a variety of strategies to keep themselves safe, some of which may result in increased violence. The victim wants to stop the violence and reduce the danger to herself. If cooperating with the police is going to increase the violence, she is not likely to do that.

Ferry identified several myths associated with domestic violence. It is a myth that a battered woman can always leave the relationship. Ferry explained, if there are children, the woman may believe a violent father is better than no father or fear a potential threat to the child if she leaves. There might be economic pressures preventing a woman from leaving or the woman might believe the man will follow her and force her to return if she tries to leave. Some women believe the system is powerless to help them. Domestic violence does not mainly affect poor people. [A]ffluent people are better able to conceal violence while poor people are more likely to use the police and public health clinics to help them with these situations. And those are locations where statistics are gathered. According to Ferry, alcoholism and drug addiction do not cause domestic violence; however, they loosen inhibitions, facilitate the collapse of self-control, and provide the batterer with a convenient excuse.

Ferry indicated there are seven broad categories of abusive behavior that constitute domestic violence, including imposing isolation from friends and family on the victim; financial exploitation; using the children against the victim; verbal and emotional abuse; threats, harassment and stalking; and physical violence. He described various forms of physical violence.

Ferry described the cycle of violence theory developed by Lenora Walker, a psychologist who has done extensive research on BWS. She proposed three phases of the cycle: (1) tension building; (2) acute violence; and (3) loving contrition or remorse. Some women will provoke the violence in an attempt to terminate unbearable tension and get the situation over with. The final phase explains why battered women stay with abusive men. Ferry indicated some believe the cycle of violence does not involve loving contrition; rather, it involves only one episode after another. Ferry stated that, without treatment, the violence becomes more severe and more frequent.

Ferry discussed the concept of traumatic bonding. In BWS, it includes a pronounced loyalty to the abuser. The victim may take on the abusers beliefs, see herself as troublesome, unattractive, stupid, and fail to take action on her own behalf, including failing to cooperate with the police. Recanting is common in such cases, either as a manifestation of traumatic bonding or a survival strategy. Some battered women change their stories to protect their abusers.

Ferry acknowledged that he did not know defendant or Ruiz, although he may have met Ruiz briefly the day he testified when he asked a woman for change for a dollar. Ferry did not know the specific facts of this case and could not say whether Ruiz suffers from BWS.

On cross-examination, he agreed that BWS is not the sole basis for determining whether an allegation is true. His role is not to make a clinical analysis of Ruiz or determine the truth of the charges. He acknowledged that a woman who has BWS can lie and that there are women who make false domestic violence claims. He assumes the woman has lied somewhere along the way or he would not have been asked to testify.

II. Defense Case

Defendant did not testify. His uncle, Fidel Ortiz, testified that defendant stayed in an R.V. on his property for two weeks in October 2004. He recalled that Vanessa visited over a weekend. They had a barbeque together and everything seemed fine. Vanessa used the bathroom in his house. He did not notice anything unusual the entire weekend and never noticed any bruises on her.

Discussion

I. Request to Discharge Juror No. 10

Defendant contends the trial court erred when it denied his request to discharge Juror No. 10 and replace her with one of the two alternate jurors. Defendant asked the court to dismiss Juror No. 10 because she waited until after voir dire was completed and the presentation of evidence had begun to advise the court that her mother-in-law and members of her husbands family had been victims of domestic violence.

A. Facts

During jury voir dire, the court asked the prospective jurors whether they knew anyone who had been arrested for, charged with or accused of a domestic violence offense or who had been a complaining witness or a victim of domestic violence. Three prospective jurors disclosed their personal experiences involving domestic violence to the court and counsel in private, outside the presence of other prospective jurors. Four other prospective jurors disclosed their experiences with domestic violence in front of the other prospective jurors. These prospective jurors related experiences of domestic violence involving their parents, adult children, and friends. Juror No. 10 did not mention any experience with domestic violence at any time during voir dire. Jury selection was completed in a single day on Monday, May 23, 2005.

On Wednesday morning, on the third day of trial and after a half day of opening statements and testimony on Tuesday, Juror No. 10 handed the court a note, which stated: I wanted to let you know that due to extreme nervousness I did not let you know on Monday that I am very close with someone who was involved in an extremely abusive spousal situation. I honestly did not think about it Monday and on Tuesday did not know if it was too late to mention this. [] My Mother[-in-]laws husband, (My husbands Father) was extremely physically and verbally abusive to my Mother[-in-]law, Husband, Sister[-] and Brother[-in-]law. I never met my husbands Father but have heard many horrifying, sad stories. [] This statement is not an attempt to get out of jury duty and [I] feel to the best of my ability I think I can serve fairly on this jury. I just needed to let you know this about me. [] Thank you Sincerely, Juror 10.

At midday, outside the presence of the jury, the court read Juror No. 10s note to counsel and asked them to think about their proposed responses over the noon recess. The presentation of evidence continued through the afternoon. At about 4:30 p.m., the court excused the jurors except for Juror No. 10 and conducted a hearing regarding Juror No. 10s note. The court asked Juror No. 10 whether she believed she could still serve fairly on the jury. The following discussion ensued:

JUROR NUMBER 10: Umm, yes, I think so. I guess Monday when during the questioning, I was so nervous that I just you know. Then when I drove home, I thought: My God, I didnt even mention that. Then yesterday, I was going to approach you. Then I thought gosh, is it too late? So I just wanted to be extremely honest about it.

THE COURT: Its exactly what we expect. I appreciate your candor and honesty. Youre [sic] heard some of the evidence. [] Has your opinion changed that you can continue to be fair and serve and be fair and impartial in this case?

JUROR NUMBER 10: Umm, I think I can. But Im struggling because its my husbands mother, my mother-in-law. And you know, I have heard considerable amount of horrible stories about from his fathers spousal abuse.

THE COURT: Okay. But lets see. The opinion you expressed this morning is that you think you can still serve fairly. Is that still your opinion?

JUROR NUMBER 10: Yes.

THE COURT: Let me see if the attorneys have any questions theyd like to ask.

[PROSECUTOR]: . . . Juror Number 10, as I understand it, it was an oversight on your part in not informing us of this fact during jury selection.

JUROR NUMBER 10: That is correct. I think because I was extremely nervous, and I honestly did not even think of it. Then while driving home, Im like: Wow, I know someone extremely close to me.

[PROSECUTOR]: So were clear, the acts that youve described of the judge, you never actually saw those acts. Youve heard about them secondhand?

JUROR NUMBER 10: Thats correct. It was my husbands dad.

[PROSECUTOR]: And the person that you heard them from was your husband or your mother-in-law?

JUROR NUMBER 10: Ive heard them from my mother-in-law, my husband, and my sister-in-law. [] . . . []

[DEFENSE COUNSEL]: You seem to be having some pause when you are asked whether you can be fair and impartial. Would it be more of a struggle in this kind of case than, say, you know, a bar fight or something like that?

JUROR NUMBER 10: Yes.

[DEFENSE COUNSEL]: Okay. And you think it would be a difference in how you would be able to view the evidence in those two different types of situations?

JUROR NUMBER 10: Yes, definitely.

[DEFENSE COUNSEL]: Okay. So, I mean, it would take a definite effort that you wouldnt have to put out if it was a different kind of case?

JUROR NUMBER 10: Thats correct. []. . . [] Thats why I wanted to make sure and bring that to the judges attention. [] . . . [] Ive been worried about that.

After Juror No. 10 left the courtroom, defense counsel argued there was a real danger of prejudice. He stated Juror No. 10 was pausing when both the Court and counsel asked whether she could be fair and impartial. He argued that if she had given those types of answers during jury selection, it would have been close to cause and that he would have used a peremptory challenge. Because of the late disclosure and the fact that there were two alternates, he asked that Juror No. 10 be excused. The prosecutor argued that cause had not been established.

The court gave counsel the opportunity to research the matter overnight. The court stated, I agree there were pauses, but I also found her credible when she told me that upon reflection, she thought she could still be fair and impartial and do her job. The court and the parties revisited the issue two days later. The judge advised the parties that there were two grounds that might constitute good cause to dismiss a juror: actual bias and juror misconduct. Defense counsel said he did not believe there was juror misconduct, but argued there was bias. He also asked for an opportunity to question Juror No. 10 further. The prosecutor argued that they had already conducted an adequate inquiry into the matter.

The court denied the request to question Juror No. 10 further and concluded there was no evidence that Juror No. 10 harbored actual bias. The court observed that the juror was not a victim of domestic violence or a percipient witness to domestic violence. She had been informed of domestic violence in her husbands family. She had told the court, both in her letter and at the hearing that she thought she could be fair. The court stated But in watching her carefully, I was persuaded by her tone, body language, and the words that she told us that she was sincere in her belief that she could be fair and impartial. The court held that the jurors failure to disclose the information was inadvertent and that there was no misconduct and denied defendants request to dismiss Juror No. 10.

B. Analysis

Defendant contends the courts ruling was prejudicial and violated his constitutional rights to due process and a jury trial. He argues that the courts finding that the jurors nondisclosure was inadvertent and therefore did not amount to misconduct, was not supported by substantial evidence and that her failure to disclose was not a mere oversight. He also contends her failure to disclose was evidence of implied bias that requires reversal.

We begin with the general proposition that a criminal defendant has a constitutional right to a trial by impartial jurors. (In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings).) The impartiality of prospective jurors is explored during voir dire. Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judges responsibility to remove prospective jurors who will not be able impartially to follow the courts instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendants right to exercise peremptory challenges where provided by statute or rule. . . . (Ibid., citing Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.) The ability of a defendant, to examine the prospective jurors during voir dire is thus significant in protecting the defendants right to an impartial jury. (Ibid.)

The efficacy of voir dire is dependent on prospective jurors answering truthfully when questioned. (Hitchings, supra, 6 Cal.4th at p. 110.) Voir dire examination serves to protect [a criminal defendants right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a jurors being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554 (plur. opn. of Rehnquist, J.).) A juror who conceals relevant facts or gives false answers during the voir dire examination undermines the jury selection process and commits misconduct. (Hitchings, at p. 111.) A prospective jurors false answers or concealment on voir dire can prevent the parties from intelligently exercising their statutory right to challenge a prospective juror for cause and can eviscerate their right to exercise peremptory challenges and remove a prospective juror they believe cannot be fair and impartial. (Ibid.)

Section 1089 provides for the discharge of a juror before or after the final submission of the case to the jury for good cause shown. In reviewing a trial courts decision either to retain or discharge a juror, we use the deferential abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 892.) We will uphold the trial courts decision unless a manifest and unmistakable abuse of discretion clearly appears or it falls outside the bounds of reason. (People v. Duran (1996) 50 Cal.App.4th 103, 113; People v. Earp, at p. 892, internal quotation marks omitted.)

Juror misconduct involving the concealment of material information on voir dire raises the presumption of prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1208.)  [T]his presumption of prejudice may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing courts examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct]. . . . (Ibid.)

Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations]; mere inadvertent or unintentional failures to disclose are not accorded the same effect. [T]he proper test to be applied to unintentional concealment is whether the juror is sufficiently biased to constitute good cause for the court to find under sections 1089 and [former] 1123 that he [or she] is unable to perform his [or her] duty. (People v. McPeters (1992) 2 Cal.4th 1148, 1175 (McPeters).) Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. (Ibid.)

Applying these rules, we conclude the trial court did not abuse its discretion in finding Juror No. 10s nondisclosure to be inadvertent and in finding no bias on her part. In the context of voir dire examination, it is conceivable that a juror might not recall that her mother-in-law, husband and sister-in-law had been the victims of physical and verbal abuse by her father-in-law. As the trial court observed, Juror No. 10 did not experience the domestic violence personally and did not witness any of the alleged conduct. She never met her father-in-law and heard stories about his abuse from her husband and his family members. Notwithstanding her husbands and her in-laws experiences, Juror No. 10 affirmed her belief that she could be fair and impartial, both in her letter to the court and at the hearing. Her candid disclosure of the information shortly after she recalled it supports her determination to be a fair and impartial juror.

Defendant argues that Juror No. 10s answers regarding whether she could remain impartial despite the abuse in her husbands family were exceedingly equivocal. He argues that in her note she stated [I] feel to the best of my ability I think I can serve fairly. (Italics added by defendant.) He also relies on her responses at the hearing, (1) when she said she thought she could be fair, but admitted that she was struggling, because it was her mother-in-law; (2) when she paused when asked if she could be fair; and (3) when she agreed that it would be more of a struggle in this kind of case than a bar fight case. We are not persuaded that her words and responses prove bias. Defendants first point is based on emphasis he added to the note that was not in the original. The trial court reasonably could have interpreted her pauses as evidence of thoughtful deliberation, not bias, and most jurors would probably agree that a domestic violence case would be more difficult to evaluate than a bar fight because of the relationship between the accused and the victim. The trial judge, who was in the best position to assess her credibility, stated twice that he found her credible and believed her when she said she could be impartial.

Defendant argues that even if Juror No. 10 did not commit misconduct, her nondisclosure is evidence of implied bias. He asserts Juror No. 10 was so emotional about the issue that she waited two days before giving the bailiff her note and that her knowledge of the extreme abuse suffered by her family members and her deep-seated feelings surrounding the abuse present a . . . situation in which there is a great potential for, if not certainty of, substantial emotional involvement adversely affecting her impartiality.

Implied bias is a presumption of bias that could not be overcome by a finding that [the juror] could befair and impartial. Under California law, a juror may be excused for implied bias only for one of the reasons listed in Code of Civil Procedure section 229, and for no other. (Code Civ. Proc. 229.) If the facts do not establish one of the grounds for implied bias listed in that statute, the juror may be excused for [a]ctual bias if the court finds that the jurors state of mind would prevent him or her from being impartial. (Code Civ. Proc. 225, subd. (b)(1)(C).) (People v. Ledesma (2006) 39 Cal.4th 641, 669-670 (Ledesma).) Defendant relies on subdivision (f) of Code of Civil section 229, which provides that a challenge for implied bias may be based on [t]he existence of a state of mind in the juror evincing enmity against, or bias towards, either party. Defendant suggests the requisite state of mind can be inferred from the fact that Juror No. 10 heard stories of abuse from her husband and in-laws.

Under federal law, the Supreme Court has never explicitly adopted or rejected the doctrine of implied bias. But both concurring opinions in McDonough Power Equipment, Inc. v. Greenwood, supra, 464 U.S. at pages 556-559 seem to embrace it and the Ninth Circuit has inferred or presumed bias on rare occasions. (Fields v. Woodford (2002) 309 F.3d 1095, 1102.) Bias may be implied only in exceptional circumstances. [Citations.] [The Ninth Circuit has] been willing to presume bias in extreme situations where the prospective jurors lies give rise to an inference of implied bias, [citation] and from the potential for substantial emotional involvement, adversely affecting impartiality, inherent in certain relationships. (Ibid.) Defendant relies on the latter point and argues that Juror No. 10s knowledge of the extreme abuse suffered by her family members presented a situation with a great potential for, if not certainty of, substantial emotional involvement. The California Supreme Court has not adopted the Ninth Circuit test. (Ledesma, supra, 39 Cal.4th at p. 670 [Even assuming these federal decisions are otherwise persuasive, we discern on the present record no potential for the type of emotional involvement that these cases found to be grounds for disqualification].)

As the court observed in People v. Diaz (1984)152 Cal.App.3d 926, 939, the probability of bias is substantial when a juror has been victimized by the same type of crime at issue in the case. In this case, the probability of bias is less, since Juror No. 10 was not a victim of her father-in-laws abuse, did not witness the abuse, never met her father-in-law, and only heard stories about the abuse from others. In our view, these facts are insufficient to create a presumption of bias that could not be overcome by a finding that [the juror] could be fair and impartial. The court found Juror No. 10 credible when she said she could be fair and impartial. Moreover, even if we were to apply the federal test, the trial court found on substantial evidence that Juror No. 10 did not lie and her failure to disclose was inadvertent. For these same reasons, we conclude the facts here are not so extreme that bias should be implied.

For all these reasons, we conclude the court did not abuse its discretion in failing to discharge Juror No. 10.

II. Admission of Evidence Regarding Battered Womens Syndrome

Defendant contends the trial court erred in admitting expert testimony regarding battered womens syndrome (BWS) because there was insufficient evidence that Vanessa was a battered woman to support the introduction of such evidence. Regarding alleged prior offenses, he argues a March 19, 2003 door-kicking incident was not true because the door was already broken, the October 16, 2003 report was false, and there were no witnesses to corroborate the prosecutors theory that the injuries were the result of domestic abuse. Regarding the charged offenses, he contends Vanessa exaggerated the extent of defendants conduct and self-inflicted her injuries. He argues the error violated his constitutional rights to due process and a fair trial.

In admitting expert testimony, the trial court has wide discretion to determine relevance (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117.), and its ruling will not be disturbed unless there is a manifest abuse of that discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1303 (McAlpin).)

The California Legislature has expressly authorized the use of expert evidence regarding BWS by enacting Evidence Code section 1107. (People v. Williams (2000) 78 Cal.App.4th 1118, 1128 (Williams).) The statute provides in pertinent part: (a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. [] (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven. (Evid. Code 1107, subds. (a) & (b).)

There is a split of authority in the courts of appeal on whether evidence of BWS is admissible under Evidence Code section 1107 in cases in which only one incident of abuse has occurred. The court in People v. Gomez (1999) 72 Cal.App.4th 405, 415 observed: Whether expert testimony regarding battered womens syndrome is admissible in a particular case initially depends on whether that evidence is relevant. The court held that a single violent incident, without evidence of other physical or psychological abuse, is not sufficient to establish that a woman suffers from [BWS] and that evidence regarding the syndrome is inadmissible in such a case because it is irrelevant. (Id. at p. 417.)

In Williams, the court reasoned that even one episode of domestic violence could trigger a need for expert testimony: There is nothing in Evidence Code section 1107 to suggest that the Legislature intended that a batterer get one free episode of domestic violence before admission of evidence to explain why a victim of domestic violence may make inconsistent statements about what occurred and why such a victim may return to the perpetrator. (Williams, supra, 78 Cal.App.4th at p. 1129.) In fact, the statute allows the admission of expert testimony regarding battered womens syndrome to explain the behavior and perceptions of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the crime at issue, and after a foundation of relevancy is established.

The California Supreme Court addressed this issue in People v. Brown (2004) 33 Cal.4th 892 (Brown). As in this case, the prosecution in Brown offered testimony from an expert witness that domestic violence victims often repudiate their reports of domestic violence to the police. The expert testified that some victims will say they lied to the police, others will attempt to minimize their assailants conduct. Similar to the testimony in this case, the expert also testified about the reasons a victim may change her story. (Id. at p. 897.) The defendant argued such testimony did not fall within the scope of Evidence Code section 1107 because the prosecution had failed to show that the victim was a battered woman because it had offered no proof that the defendant had abused her on more than one occasion. The Brown court observed: Two Court of Appeal decisions have addressed the issue whether expert testimony about the behavior of domestic violence victims is admissible when only one incident of abuse has occurred: [Gomez] held it inadmissible; [Williams] held it admissible. (Brown, at p. 895.) The court concluded the evidence was admissible under Evidence Code section 801,[5] because it would assist the trier of fact in evaluating the credibility of the victims trial testimony and earlier statementsto the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence. (Brown, at pp. 895-896, citing People v. McAlpin, supra, 53 Cal.3d at p. 1300.) The court did not reach the question of whether expert testimony on the effects of BWS was also admissible under section 1107. (Brown, at p. 896.) Although defendant cites Brown, he does not acknowledge its holding.

As noted previously, defendant argues the expert evidence should not have come in because there was no evidence Vanessa was a battered woman. However, the factual premise for defendants argument is incorrect. Vanessa told Officer Berlin defendant had hit her before October 28, 2003. There was evidence that Vanessa had reported a domestic violence incident to the police on October 16, 2003, although she testified at trial that that report was false. This case involves two alleged incidents of violence that occurred approximately one year apart from each other. Vanessas videotaped interview, the testimony of her father and Officer Berlin, and the photographs of her injuries provided ample evidence that she was a victim of domestic violence on October 28, 2003. Although she recanted most of her statements to the police when she testified at trial, she nonetheless testified that defendant pushed her to the ground and that they wrestled and were at each others throats outside his house. She also testified that he shoved her into a wall and pushed her or kicked her while she was on the floor in Lupes room. Thus, there was evidence that she had been battered before both the October 28, 2003 incident and the October 2004 incident.

Moreover, as Brown and Williams instruct, the prosecution need not prove prior incidents of intimate partner battery for this evidence to be admissible when the victims credibility is at issue. One of the primary issues in this case was Vanessas credibility. Vanessa changed her story repeatedly. She gave different information in her initial report to the police, her testimony at the preliminary hearing, her testimony before the grand jury, and at trial. Thus, the evidence was relevant because it would assist the jury in evaluating the credibility of Vanessas trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence. (Brown, supra, 33 Cal.4th at pp. 895-896.) Under the authority of Brown and Williams, we conclude the court did not abuse its discretion when it admitted the expert testimony on BWS.

III. Exclusion of Evidence Regarding Vanessas Psychiatric Problems

Defendant contends the trial court violated his constitutional rights when it excluded evidence that Vanessa had been involuntarily committed to a hospital for an undiagnosed mental illness after testifying at the preliminary hearing.

A. Facts and Procedure

The prosecution filed a motion in limine to exclude references to any Welfare and Institutions Code section 5150[6] psychiatric holds that may have been placed against Vanessa or other unsubstantiated mental health issues on relevance and Evidence Code section 352 grounds.

At the preliminary hearing, Vanessa testified that defendant was not guilty of the charges and that she had lied to the police and set defendant up because she was jealous because she suspected him of having an affair with Lopez. That evening, she went to Claudias house, told Claudia she was not right in the head, and needed help. She told Claudia defendant was not guilty and said she had set him up. She lifted her shirt and showed Claudia where she had cut and scratched herself. Claudia called 911. A police officer responded and filled out an application for a 72-hour hold. Defense counsel told the court that Vanessa had told him she was a chronic liar and has psychological problems that cause her to lie and to do things to get defendant in trouble. Defendant argued this evidence was relevant to show that Vanessa was jealous, to show her state of mind at the preliminary examination, and because it went to her credibility.

The court granted the motion as to the fact of the 5150 commitment itself, the police contact that led to it, or any issues of treatment or hospitalization. The court held that the evidence would not be admissible to show Vanessas state of mind at the preliminary examination, but would come in to show her state of mind when she spoke to her aunt. The court also held the statements may come in as prior inconsistent statements.

Both Vanessa and her aunt testified regarding the statements Vanessa made at her aunts house, her self-inflicted wounds, and her referral to Valley Medical Center. Claudia also told the jury that Vanessa had cut herself once before.

B. Analysis

On appeal, defendant argues the jury was never fully informed of the extent of Vanessas psychiatric problems and that evidence of those problems would have provided defendant with powerful evidence with which to attack her credibility.

We need not address the merits of these arguments, because defendant failed to preserve the issue for appeal. In general, a judgment may not be reversed for the erroneous exclusion of evidence unless the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means. [Citations.] This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580 (Anderson).)

At the hearing on the motion in limine, defense counsel told the court he did not intend to bring in any records regarding the 72-hour hold or ask any questions regarding the hold itself, stating that such matters could be considered irrelevant. There is nothing in the record indicating what Vanessas diagnosis was at the time of the 72-hour hold or whether she has ever been formally diagnosed with any kind of psychiatric condition.

Defendants contention also lacks merit. As the court observed in Anderson, It is a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. A persons credibility is not in question merely because he or she [has received] treatment for a mental health problem. (Anderson, supra, 25 Cal.4th at p. 579.) Evidence that Vanessa had been diagnosed with a specific psychiatric condition would have added little to the evidence presented regarding her credibility. Defense counsel was allowed to cross-examine Vanessa fully. She testified she had lied on numerous prior occasions, both to the police and in court proceedings. She discussed her motives for lying and her relationship with defendant. The jury heard about her emotional state after the preliminary hearing, that she had injured herself that evening and received medical treatment, that she had injured herself previously, and that she claimed some of the injuries depicted in the photographs were self-inflicted. Nothing more was necessary.

IV. Counsels Failure to Challenge Venue

Defendant contends his counsel was ineffective for failing to challenge venue on counts 6, 7, and 8, the charges arising out of the events in Los Banos.

To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)

Tactical errors are generally not deemed reversible; and counsels decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citat