P. v. Griffin

Filed 9/24/07 P. v. Griffin CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County and PETITION for writ of habeas corpus. Thomas K. Herman, Judge. Judgment reversed; petition denied as moot.

Teresa R. Barrera, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Lisa J. Brault, Deputy Attorney General, for Plaintiff and Respondent.

James E. Griffin appeals following his conviction of battery with serious bodily injury (Pen. Code,  243, subd. (d); undesignated section references are to that code), assault by means of force likely to produce great bodily injury, involving infliction of such injury in domestic violence ( 245, subd. (a)(1), 12022.7, subd. (e)), attempting to dissuade a witness from reporting a crime ( 136.1, subd. (b)(1)), and cutting a utility line ( 591). Appellant was placed on formal probation for five years, with conditions including that he spend 365 days in county jail and undergo 52 weeks of domestic violence counseling.

Appellant contends: (1) the prosecutors cross-examination and comment about appellants pretrial silence violated due process as interpreted in Doyle v. Ohio (1976) 426 U.S. 610 (Doyle); (2) if appellants trial counsels failure to object to the Doyle violations waived their assertion on appeal, then that failure constituted ineffective assistance of counsel (IAC); (3) the court erred in admitting testimony about prior acts of domestic violence by appellant; and (4) the errors cumulatively require reversal.

Appellant has also filed a petition for writ of habeas corpus, in which he further advances his IAC claim. We ordered the petition considered concurrently with the appeal. We requested respondent to file a memorandum regarding whether an order to show cause should issue, and we invited appellant to file a response. Both have been received and considered.

We conclude that the judgment must be reversed because of prejudicial error in admitting evidence that appellant had previously committed violence against the victim. We therefore need not consider at length the claim of Doyle violations, or the accompanying IAC contentions. We therefore deny the petition for habeas corpus as moot.

FACTS

Viewed in accordance with the governing rules of appellate review (Peoplev. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed as follows. The victim, Nicole Piggee, testified that in January 2005 she and appellant had been dating for about two years. On January 18, while appellants four children were at school, he and Ms. Piggee visited and drank beer with a neighbor of appellants named Robin. Appellant then proposed marriage to Ms. Piggee, but she did not respond to the proposal.

At about 4:00 p.m., appellants daughter Latrese returned from school with the news that if she maintained her grades she could receive an art scholarship from the University of Southern California. Celebration ensued.

At around 6:30 p.m., Robin drove appellant and Ms. Piggee to her apartment, where appellant had left his car, afraid to drive it because it had been making a loud noise. The three waited for a tow truck, to return the car, and appellant drank another beer, while Ms. Piggee had three and one-half beers. Appellant then rode back to his apartment in the tow truck, while Ms. Piggee rode with Robin. The group returned to Robins home, where appellant continued drinking beer for about 30 minutes. He and Ms. Piggee left, but when asked, she told him she was not coming to his apartment (where she had spent the previous night). She was concerned about appellants demeanor having changed during the day; he had been drinking and his voice was becoming angry and aggressive.

Ms. Piggee began walking to her grandmothers house nearby. She saw appellant begin following her, and she hid behind a van. Ms. Piggee then decided to walk to her friend Floyd Clevelands, hoping he would give her a ride home. He stated he couldnt, but agreed to and did take her to a bus stop, at which she caught a bus home. She arrived near 11:00 p.m.

Soon Ms. Piggee heard a knock at the door, and observed appellant through the peep hole. She unlocked the door and admitted him. He remarked that Cleveland had driven her home. Appellant then picked up an open bottle of beer from a coffee table. Ms. Piggee told him not to touch it, that it was hers, and appellant threw the contents on her. He then hit her with his fist, on her cheek near the left eye, knocking her down and unconscious. When she opened her eyes, appellant was standing above her. He stated, Im going to kill you, bitch, and withdrew a steak knife from his jacket pocket. Ms. Piggee pleaded, No, and appellant again punched her, on the right side of the face.

Appellant left, and Ms. Piggee experienced pain in her right temple and left eye and jaw. She went to call 911, and discovered that the phone cord had been cut. She then went to a neighbors apartment and asked him to phone, explaining that appellant had struck her. Paramedics took Ms. Piggee to a hospital, where her injuries were identified as including a facial fracture under her eye, a loose tooth, and swelling and bruising. Ms. Piggee told various medical personnel that appellant was responsible for her injuries. While in the hospital, Ms. Piggee sought a restraining order against appellant.^[1]

Early the following morning, January 19, 2005, Los Angeles Police Officers Jackson and Sullivan, of the Pacific Division, spoke with Ms. Piggee at the hospital. They requested that the Southwest Division detain appellant until they could reach him. Accordingly, Officers Hawkins and Hollywell were dispatched to appellants apartment, where they waited with appellant between a half hour and an hour. Officer Hawkins testified that during this period no one at the apartment stated that appellant had been there throughout the night. Had someone said this, he would have told the other officers.

Officers Jackson and Sullivan arrived at about 3:45 a.m. and arrested appellant. According to Officer Sullivan, appellant smelled of an alcoholic beverage. While the officer and his partner were present, no one told them that appellant had been there all night.^[2]

Appellants defense was alibi, that he had been at home with his children when Ms. Piggee claimed he had assaulted her. Preliminarily, appellant characterized his relationship with Ms. Piggee as casual dating, said she had a drinking problem, and denied her having stayed over on January 17, or his having proposed to her on January 18. Appellant recounted going to Ms. Piggees, with Robin, her daughter, and appellants daughter Lanae, to have the tow truck retrieve his car. While waiting, appellant did not drink, while Ms. Piggee, who earlier had had a few beers at Robins, drank another. Appellant had had one beer at Robins.

When all had returned to appellants apartment building, appellant repaired home, while Ms. Piggee went to Robins apartment. Appellant later came over to thank Robin for procuring the tow truck. Ms. Piggee was tipsy, and appellant gave her money for a taxi home. She left, and he didnt see her again that day. Appellant denied striking Ms. Piggee that night, or going to her home.

Regarding Officers Hawkins and Hollywell, appellant testified that, in response to their inquiry, he told them he had been at home all night. One officer asked questions about when appellant had had the two beers he stated he had consumed. Later, two other officers arrived, and placed him in a car. When appellant asked why he was being arrested, an officer read him his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and after that I didnt say anything else.

On cross-examination, appellant claimed he had gone to sleep between 9:30 and 10:00 p.m. The prosecutor then inquired as follows. Q How do you know what time you went to sleep. [] A Well, theres a clock in the bedroom. I go check on the kids then I go look and see what time it is. [] Q Did you tell the police that? [] A The police didnt ask me that. [] Q You say they advised you of your rights; true? [] A Yes. [] Did you tell them what time you went to sleep? [] A No. [] Q Did you tell them what you told us regarding what you did all day? [] A No. [] They didnt ask. [] Q Did you tell them? [] A They didnt ask. [] Q Did they ask you any questions? [] A No. [] They didnt ask me anything except for the beers. Thats the only thing, if I had been drinking, cause they smelled alcohol. [] Q And they let you know that? [] A Yes, they did. [] Q And you didnt volunteer any information that youre telling us? [] A No, I didnt. [] [The prosecutor]: Thank you. [] No further questions.

Appellants daughter Latrese also testified in support of his alibi. She stated she had gone to sleep at 9:00 p.m. and awakened at 12:15 a.m. At both times she had seen appellant present. She remained awake when the police came, and told them that appellant had been home all night, but the officers told her to be quiet.

In closing argument, the prosecutor restated: I asked the officer, Officer Hawkins who first arrived to just detain the defendant until the officers from Pacific Division came, Did anyone come up to you and say hes a been here all night? [] No. [] If they would have would you have told the other officers? [] Yes. [] Officer Sullivan, did anyone tell you or your partner Officer Jackson. [] No. [] Did any of the officers tell you someone came up to you. [] No. Appellants trial counsel did not object to this argument. Nor did she object to either the testimony it referred to or the cross-examination of appellant quoted above.

Evidence of Prior Domestic Violence

Testimony by Ms. Piggee that appellant had been violent with her on prior occasions was heard and admitted under the following circumstances. After Ms. Piggee completed her testimony, the court asked the jurors if they had any questions for her. Two did, and wrote down their questions. One juror wanted to know if Ms. Piggee had ever felt threatened by appellant before this incident, whether appellant had acted violently toward her or others in the past, especially after drinking, and what in her mind had caused her to hesitate and refrain when appellant proposed to her. A second juror inquired whether Ms. Piggee was referring to past violence or fear of violence when she said there were things standing between her marrying appellant.

Appellants counsel objected to opening this inquiry into prior domestic violence, stating she was unaware of any incidents from discovery. (See Evid. Code,  1109, subd. (b).) The prosecutor avowed she had given counsel statements by Cleveland about witnessing appellant inflict violence on the victim. The court stated the evidence would be relevant in terms of explaining her actions on that particular day. The court then proposed an Evidence Code section 402 hearing, at which Ms. Piggee testified that appellant had hit her before January 18, 2005, and that on that date she thought he might do so, because of his past behavior and his demeanor and attitude. That is why she hid behind the van. Appellant had not previously injured her to the same degree, and she had not reported the other incidents because scared, afraid, and hoping that we can work things out. It was usually after drinking that appellant hit her, and the last time he had done so was a few days after Thanksgiving of 2004. When he asked her to marry him, she was uncertain because of the violent past.

The court adhered to its intention to allow evidence of appellants prior violence, notwithstanding appellant continued to urge that he had not received notice and discovery as statutorily required (which the prosecutor countered by reference to Clevelands discovery). The court stated it intended to instruct that the testimony was limited to explaining why the victim reacted and did not follow appellant to his apartment that night. Appellant argued that Ms. Piggees state of mind was not an issue in the case, but the court felt that it deserved some explanation in light of the two jurors queries about her conduct. The court again intended to limit use of the evidence to explain that behavior, and would tell the jury that if they used it further they are denying the defendant a fair trial . . . .

When the jury reconvened, the court told them it would limit the use of the evidence they were about to hear, because its not germane to what I think will be the final issues in this particular case, but it certainly is worthy of some explanation. Reiterating that the evidence would not prove important when the jury received the case, the court instructed that it should be considered only for the limited purpose of explaining why Ms. Piggee did what she did on the day in question. If the jury considered it for another purpose, they would not be fair to appellant, who had not had notice, so if you take it beyond that and use it to infer that he might be prone to violence or that he might be a bad guy, youre not being fair to him . . . .

Ms. Piggee then testified that when appellant proposed to her, she was uncertain and did not accept because they had things to work out, namely the violence in the relationship. That meant prior incidents, and when she left Robins on the 18th she was afraid something would happen, as it had in the past. Similarly, two days before Thanksgiving,^[3]appellant had hit her. In the past, there had been a connection between him drinking and violence, and she had that in mind when she left. She decided not to go to appellants apartment because of his attitude and tone toward her, which she had experienced often when he drank. She feared something violent would happen. She hid behind the van because she feared he would jump on me in the street, which he had done before. Ms. Piggee hadnt reported the Thanksgiving incident because she didnt want to get appellant, whom she loved, in trouble. She had received injuries then, but not as bad as in January.

DISCUSSION

Because we find another point to be dispositive, we need address only briefly appellants claim of error under Doyle, supra, 426 U.S. 610. In Doyle, the Supreme Court held that using an arrestees silence after receiving Miranda warnings (including the right to remain silent) to impeach his or her testimony violates the Due Process Clause of the Fourteenth Amendment. (Id.. at p. 619; see id. at pp. 617-618.) In contrast, the high court subsequently held that impeachment of a testifying defendant by his or her pre-arrest silence does not offend the constitution. (Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins.) The questioning and argument of which appellant complains under Doyle must be assessed in light of both holdings.

Officer Hawkinss testimony, and the closing argument about it, were not violations because they involved pre-arrest, pre-Miranda silence. Moreover, the testimony of Officer Sullivan, denying that anyone had told him appellant had been at the premises all night, did not violate Doyle, because it did not refer to appellant but to anyone there, including Latrese, who claimed to have spoken up. On the other hand, appellants cross-examination contained several questions that were within the reach of Doyle. But the prosecutor did not utilize these questions and answers in argument to the jury. Rather her references that appellant assails were paraphrases of the officers testimony.

We need not pursue the further questions of waiver, IAC, and prejudice vel non from the Doyle violations, because an independent, reversible defect in the trial proceedings appears.

Appellant assigns reversible error in the trial courts admission of Ms. Piggees testimony that appellant had been violent with her, and injured her, before January 18, 2005. Ms. Piggee further testified that this violence was what had caused her to hesitate to accept appellants proposal, and that fear of violence had motivated her not to go to his apartment and to hide behind a van. The court deemed this evidence relevant to explain the victims state of mind, and one legal rubric under which it was considered admissible was the state-of-mind hearsay exception of Evidence Code section 1250. But respondent admits that that section did not authorize admission of the testimony, because Ms. Piggee was not reciting hearsay, particularly when she imputed prior violence to appellant.

The statute under which respondent claims admission of the prior violence testimony was proper is Evidence Code section 1109. Subdivision (a)(1)of that section provides: Except as provided in subdivision (e) or (f) [not here applicable], 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.^[4] In addition, subdivision (b) of Evidence Code section 1109 provides that 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 discovery provisions of section 1054.7.

Ms. Piggees testimony about appellants prior violence towards her was not admissible under Evidence Code section 1109, because it was offered without compliance with the statute. Evidence of Ms. Piggees prior violence testimony was not provided to appellant at least 30 days before trial, as required by both section 1054.7 and Evidence Code section 1109, subdivision (b). Although disclosure may have been made with respect to observations by Ms. Piggees friend Cleveland, they did not satisfy the requirement that Ms. Piggees evidence be disclosed. (Ibid.)

Furthermore, the relevance of the prior violence testimony was questionable. Ms. Piggees reasons for balking at appellants marriage proposal and declining to go to his apartment were not an issue in the case. And there was no charge of criminal threats under section 422, which would have made the victims fear an issue.

The prejudice to appellant of the prior violence testimony was significant. This was a one-on-one trial: Ms. Piggee contended that appellant had punched her on January 18, while appellant denied it and insisted he had remained at home. Adding to this contest evidence that appellant had previously struck Ms. Piggee, and had a history of violence with her, the onset of which was perceptible, eviscerated any possibility of appellants sustaining his defense. And the courts instructions directed at confining the evidence to a dubiously relevant purpose could not have overcome the potency of the claim of continuing violence by appellant against Ms. Piggee. There is a reasonable probability that appellant would have obtained a more favorable result had the prior violence evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is reversed. The petition for writ of habeas corpus is dismissed as moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] Ms. Piggee nevertheless admitted visiting appellants home, while walking to her grandmothers, about a month after the assault. She there apologized to appellants daughter Latrese for all that had happened. Ms. Piggee also admitted having falsely denied this visit at the preliminary hearing, and having suffered a conviction for embezzlement at age 19.

^[2] Officers Hawkins and Sullivan also testified that appellants hands and fists did not appear to be bruised or swollen.

^[3] Ms. Piggee had earlier stated two days after Thanksgiving, but she now recalled better.

^[4] Subdivision (d)(3) defines domestic violence in a way that includes the violence appellant allegedly committed.