P. v. Baima

Filed 9/30/08 P. v. Baima CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Corey Joel Baima of spousal battery (Pen. Code, 273.5, subd. (a)), false imprisonment effected by violence (Pen. Code,  236; 237, subd. (a)), assault with a firearm (Pen. Code,  245, subd. (a)(2)), and criminal threats (Pen. Code,  422). The jury also found to be true allegations defendant personally used a firearm in committing the charged offenses. (Pen. Code,  12022.5, subd. (a).) Defendant contends the trial court erroneously certified a police investigator as an expert witness on domestic violence. He also argues the court erred in admitting several instances of uncharged conduct under Evidence Code section 1109 establishing his propensity for domestic violence, challenges numerous other evidentiary rulings, and contends the trial court erred by failing to declare a mistrial after the jury appeared to be deadlocked on the assault with a firearm count. [1] As we explain below, defendants arguments are without merit, and we therefore affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with the standard of review, we set out the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 364, p. 414 [All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by trier of fact].)

Having dated defendant since she was 14 years old, Heather McClung married him in August 2004 when she turned 21. She had moved in with him after her 18th birthday, but periodically returned to live with her parents when defendant could not keep a job. When McClung resided with defendant, he kept her isolated from her family, barring her from contacting or spending time with them without his approval. He monitored her phone calls and hid or broke her cell phone several times to isolate her.

McClung never told anyone about defendants controlling behavior. She enrolled at UC-Irvine, majoring in English. Defendant accused McClung of sleeping with her professors whenever she achieved good grades. If she had a long break between classes or ran late because of traffic, defendant subjected her to a probing interrogation. McClung worked throughout college to pay the rent on their apartment and other bills; defendant controlled how she spent the money she earned.

In 2004, defendant bought a Glock pistol and kept it in the home, which worried McClung because of his temper. In September 2004, suspicious that defendant was cheating on her just a month after their wedding, McClung confronted him at a friends house. The pair argued, defendant drove away and then returned a few minutes later, still angry. He found McClung sitting in her car discussing her troubles with defendants friend. Incensed, defendant accused her of sleeping with his friend. He persuaded her to climb into his truck, refused her pleas to take her home, confiscated her cell phone, and drove her to a dirt road in a remote, dark area off Ortega highway.

Retrieving his gun from a backpack, defendant held it against her head, threatening to kill her if she did not admit the affair. He threw her to the ground outside the vehicle and stood over her with the gun pointed at her head. Good luck screaming for help, he told her, adding, I could kill you, and leave you out here, and nobody will find you for days, and Ill be long gone by then. Defendant started to drive away, but McClung clambered back into the truck and left with him. She obeyed him when he directed her to call her mother and tell her everything was fine. She did not report the incident to the police.

McClung attempted suicide later that month by overdosing on medication. She did not seek medical treatment.

McClung found defendant with another woman. He often did not return home at night. In an incident in January 2005, upset that McClung was crying, defendant grabbed her by the neck, smothered her mouth with his hand, and warned her to be quiet because she was driving him crazy. He squeezed her neck so hard she had trouble breathing, and would not let go until she agreed to stop crying. McClung did not report the abuse.

Around 11:00 p.m. on February 9, 2005, McClung was sitting at the dining room table in the apartment she still shared with defendant, working on a school assignment due the next day. She asked defendant to turn his music down, but he turned it up instead. The two argued and when McClung threatened to throw one of the stereo speakers on the floor, defendant retorted, You shouldnt do that because Im allowed to use deadly force to protect my property. Defendant grabbed her by the neck and shoulder, threw her to the floor, and choked her until she had difficulty breathing.

He reminded her she could not tell him what to do. He shut the windows, closed the blinds, and unplugged the phone. At one point, he pressed her to the wall with his hand on her neck and lifted her off the ground. He dragged her to the bedroom, where he grabbed his gun and loaded it. Holding the gun against her temple, he ignored her pleas and informed her she would never leave alive and that, if the police came, nobody would leave alive. Accusing McClung of infidelity, he ransacked the room, throwing her school books on the ground while searching them for love notes or other evidence of an affair.

After an hour, defendant left the bedroom, still holding the gun. McClung crept into the hallway on her knees, but defendant returned, held the gun against her head and threatened to shoot her, describing how the blood would spatter like . . . in the movies. Declaring the gun he held was made for killing, he showed McClung that the safety was disengaged and a bullet chambered. The ordeal in the hallway lasted another hour before defendant went to the kitchen and ate.

When defendant retired to the bedroom around 3:00 a.m., McClung seized the opportunity to escape. She fled out the front door, barefoot in pajama pants and a tank top, running until she reached a nearby hospital, where she reported the incident to emergency room personnel and to the officers who later arrived. The examining doctor found red marks on the front of her neck and the back of her shoulder. Defendant had fled the apartment, but police officers apprehended him at his grandmothers house, after they found him hiding in a locked bedroom. The red marks on McClungs neck and shoulder turned into bruises.

In March 2005, McClung reconciled with defendant. Facing charges based on the February attack, defendant warned McClung to fix this. She promptly recanted her statements to police, telling an investigator she lied because she had become hysterical after defendant asked for a divorce. Defendant also threatened to kill McClung if she did not recant to her mother; she obliged and further requested that the district attorney drop the charges.

McClung left defendant in November 2005. On December 16, 2005, defendant confronted her at a restaurant where she was dining with her sister, her sisters boyfriend, and two male friends, including Chris Crowe, who was in the restroom when defendant entered the restaurant. McClungs sister stepped outside to call the police. As Crowe sat down next to McClung, defendant charged him, punching Crowe twice in the head. Crowe did not speak to defendant before the attack and did not know him.

McClung and Crowe testified at trial, among others. Defendant did not take the stand. Following the jurys guilty verdict, the trial court sentenced defendant to a seven-year prison term. Defendant now appeals.

II
DISCUSSION

A. The Trial Court Did Not Err in Permitting the Officer to Testify as an Expert

Defendant contends the trial court erred in denying his pretrial motion seeking to disqualify City of Orange Police Officer Cathy Meyer as an expert on domestic violence. A 15-year veteran on the force, Meyer had spent the last 10 years investigating thousands of domestic violence cases. She typically handled 60 to 80 incidents per month, interviewing both the victims and the perpetrators after patrol officers had defused the situation. She received several awards from public agencies for her work on domestic violence, regularly taught classes and gave presentations on the subject, participated in several organizations devoted to combating domestic violence, attended ongoing police training seminars on the topic, and maintained familiarity with scientific studies in the field through two or three conferences per year. She had testified as an investigator in more than 20 domestic violence cases and once as an expert in a misdemeanor prosecution, but never had testified as an expert in a felony case.

Whether a witness is qualified to testify as an expert is a preliminary fact for the trial courts determination. ( 405, subd. (a).) We review the trial courts ruling under the deferential abuse of discretion standard. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)

Defendant argues Meyer lacked the requisite psychological background and training to testify as an expert on domestic violence, noting [t]here was no evidence she ever took a single psychology course . . . . The Legislature, however, has recognized that academic training is not the only avenue to expertise. Section 720, subdivision (a), provides in the disjunctive that [a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Italics added.)

Defendant focuses on three aspects of Meyers testimony, contending her complete lack of training or experience in psychological areas disqualified her from testifying to profiles of a domestic violence victim . . . , to a cycle of violence . . . and to a profile of a batterer. Meyer testified that victims often have poor self-esteem, blame themselves for the abuse they receive, are easily intimidated or embarrassed, and often fail to report the abuse. Their abusers typically exhibit quick tempers, jealousy, and controlling behavior. Meyer described a tripartite cycle of violence beginning with mounting tension between the eventual perpetrator and victim, followed by an explosion of violence, and ending with a honeymoon period in which the victim returns to the abuser with hope based on his profuse apologies, only to have the cycle start again and deepen in violence. Defendant attempts to cordon off these topics as solely the province of a psychologist, but the trial court could reasonably conclude Meyers extensive experience furnished an adequate foundation for her to testify as an expert on these matters. Accordingly, the trial court did not abuse its discretion in denying defendants motion to disqualify her.

B. The Trial Court Did Not Err in Admitting Uncharged Acts of Domestic Violence

1. Two Prior Domestic Violence Incidents Involving the Victim

The charges against defendant were predicated on the February 2005 incident in which McClung fled to the emergency room. Defendant contends the trial court erred by admitting evidence of the September 2004 Ortega Highway incident and the January 2005 choking incident as uncharged prior conduct demonstrating defendants propensity to engage in domestic violence. Section 1109, subdivision (a)(1), provides: Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by [s]ection 1101 if the evidence is not inadmissible pursuant to [s]ection 352.[2]

Defendant argues the trial court misapplied section 352 because the prior acts were uncorroborated. Phrased differently, because the evidence ha[d] nothing to back it up besides McClungs testimony, defendant asserts the prejudicial impact of the testimony outweighed any probative value. Defendant fails to grasp that the Legislature enacted section 1109 precisely because these offenses occur in the secluded environment of familial domesticity and therefore present problems of proof that condemn victims to a silent fate in a violent cycle, afraid to come forward with accounts that by nature generally remain uncorroborated.

The Legislature reasoned, as noted in People v. Brown (2000) 77 Cal.App.4th 1324, 1333, that special evidentiary rules are justified because of the distinctive issues and difficulties of proof in this area. Specifically, evidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses who are often children or neighbors who may fear retaliation from the abuser and do not wish to become involved. [Citation.] Consequently, lack of corroboration did not bar admission of the prior acts. Similarly, while defendant asserts the prosecutor could not establish the prior acts took place, the testimony of a single witness, including a party to the action, suffices to prove the acts occurred if the trier of fact deems the witness credible. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)

Defendant also argues the trial court erred in admitting both prior acts instead of limiting the evidence to once occurrence, since a single prior uncharged incident was more than sufficient to establish a propensity. That there were two acts undoubtedly damaged defendant, but the prejudice against which section 352 guards is not synonymous with damaging. (People v. Karis (1988) 46 Cal.3d 612, 638.) Because the two acts were probative of a greater propensity for domestic violence, defendants challenge to their admission is without merit.

2. Domestic Violence Perpetrated by Defendant on the Victims Friend

Defendant contends the trial court erred by admitting evidence of his assault on Crowe in McClungs presence as evidence of defendants propensity to commit domestic violence. Section 1109, subdivision (d)(3), provides in relevant part: Domestic violence has the meaning set forth in [s]ection 13700 of the Penal Code. Penal Code section 13700, subdivision (b), defines Domestic violence as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. The code further specifies Abuse as intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (Pen. Code,  13700, subd. (a)(3), italics added.)

We discern no ambiguity in this language. Where there is no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statutory language governs. (People v. Coronado (1995) 12 Cal.4th 145, 151.) Here, defendants assault on Crowe placed McClung in reasonable apprehension of imminent serious bodily injury to . . . another within the scope of the statutory language. The assault was therefore admissible.

Defendant argues admission of the assault was more prejudicial than probative because the assault was recent and because defendant was convicted for the assault. These two factors, however, weigh in favor of admitting the evidence, not against it. While a stale incident may have little probative value (see  1109, subd. (e) [generally barring admission of domestic violence committed 10 or more years earlier]), defendant assaulted Crowe in the same year as the charged offense against McClung. It was therefore probative of defendants propensity to commit domestic violence. And while a concern with propensity evidence is that the jury will punish the defendant for that conduct rather than restrict the evidence to its proper purpose as evidence concerning the charged crime, the trial court eliminated that danger by informing the jury defendant already had suffered a criminal conviction for the Crowe incident. Consequently, defendants ill-conceived challenges are without merit. Defendant also argues Crowes testimony about the incident was prejudicially cumulative after McClung had described the incident earlier in the trial, but defendants attack on McClungs credibility made Crowes corroborative account highly probative. The trial court did not err in admitting the evidence.

C. The Trial Court Did Not Err in Excluding or Admitting Other Evidence

1. Exclusion of Videotapes

Defendant insists the trial court erred in excluding two videotapes he proferred. One showed a 2001 excessive force incident for which he received a $200,000 settlement from the Orange County Sheriffs Department. The other, a home video less than a minute long, showed McClungs frustration with defendant when he taunted her while hiding an internet access password she needed to complete her school work. Only relevant evidence is admissible ( 350), and [t]he trial court has wide discretion in determining relevance. [Citation.] (People v. Chatman (2006) 38 Cal.4th 344, 371.)

The trial court agreed with defendant that the incident in the first video was relevant to bolster his claim he fled his apartment and hid at his grandmothers house not out of consciousness of guilt, but because he feared how police would react to McClungs claims of abuse. The four- or five-minute video showed a traffic stop in which an officer, shouting expletives, pushed defendant against a patrol car, handcuffed him, and apparently pepper-sprayed him (the trial court noted I could not see that on the video but there was a reference to that, that he was going to be pepper-sprayed).

Because the tape also showed the heated, profanity-laced encounter began when defendant exited his vehicle and approached the officer against express instructions, the trial court excluded the video under section 352 to prevent jurors from straying into a trial within a trial concerning the reasonableness of the deputys actions.[3] The trial court instead directed the parties to submit a stipulation focusing on the relevance of the incident, i.e., that defendant prevailed on his excessive force claim, obtaining a settlement that resulted in a judgment in favor of [defendant].

Defendant protests that exclusion of the video prevented him from presenting a complete defense (Crane v. Kentucky (1986) 476 U.S. 683, 690), including a more sympathetic picture of himself as a victim, but the stipulation conveyed the heart of defendants position. We cannot say the trial court erred. (See People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch) [abuse of discretion standard governs review of section 352 rulings].) The trial courts concerns regarding undue consumption of time and confusion of issues were real, and a defendant is not entitled to present his case in whatever way, and to whatever extent, the defense might wish. [Citation.] [Citations.] (People v. Cooper (1991) 53 Cal.3d 771, 817.)

Nor did the trial court err in excluding the second video. Defendant asserted the second tape supported his innocent version of habitual spousal bickering and undermined the credibility of McClungs reports of abuse by showing she responded irrationally to harmless provocation. Specifically, defendant claimed she unreasonably escalated an argument at home by pushing and shoving him when she could not find her internet access card. After viewing the tape, however, the trial court concluded: I did not see . . . any physical abuse. I did not see any striking or hitting. . . . [I]t appears to the court its nothing more than an argument between spouses that got videotaped. I dont see it [as] germane to the issue here at hand.

The court did not err. Defendant implicitly argues that if McClung escalated a verbal fight with physical violence, she also necessarily would have a propensity to lie about defendants conduct on other occasions. But apart from a prior felony conviction ( 788), specific instances of conduct are inadmissible to attack the credibility of a witness ( 787). True, section 787 has been repealed by implication by enactment of Proposition 8, to the extent [m]isconduct involving moral turpitude may suggest a willingness to lie. (People v. Wheeler (1992) 4 Cal.4th 284, 295.) But the simple battery defendant claims McClung committed against him in the video, i.e., pushing or shoving, is not a crime of moral turpitude. (People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89.) The video was therefore inadmissible even if it showed the pushing defendant claimed. But defendants argument fails on its own terms because he failed to establish his predicate: the tape did not show McClung hit him, otherwise physically abused him, or responded irrationally to his taunting. Because the video did not bear out defendants proffer, the trial court properly rejected it. For all the foregoing reasons, the trial court correctly concluded the video of the incident was irrelevant and inadmissible.

2. Admission of Other Evidence

Defendant contends the trial court erred by admitting into evidence the gun he used in his attack on McClung, instead of a photograph of the gun. The gun was relevant to the charge of assault with a firearm and to the personal use enhancement allegations. Because a picture would have sufficed to prove the gun was a real firearm, defendant insists introducing the gun was more prejudicial than probative under section 352. But under section 352, prejudice is not so sweeping as to include any evidence the opponent finds inconvenient. (Branch, supra, 91 Cal.App.4th at p. 286.) Stated differently, [t]he prejudice which exclusion of evidence under section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Zapien (1993) 4 Cal.4th 929, 958.) Because the gun itself was highly probative of an element in a charged offense and the enhancements alleged against defendant, the trial court did not err in admitting it.

Defendant challenges admission of two stray, fleeting references to incidents of uncharged domestic violence the prosecutor elicited from McClung. Any conceivable error in admitting either of McClungs responses was harmless. (People v. People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) First, when the prosecutor asked McClung if defendant had physically abused her between the ages of 14 and 18, McClung responded, Some pushing and shoving. In a sidebar out of the jurys presence, the trial court sustained defendants objection based on the prosecutors failure to disclose her intention to introduce this evidence, as required by section 1109, subdivision (b). Defendant, however, failed to request that the trial court strike McClungs answer or admonish the jury to disregard it, forfeiting defendants claim of error on appeal. ( 353; People v. Navarette (2003) 30 Cal.4th 458, 515.)

The second incident came to light when the prosecutor asked McClung why she left defendant in November 2005. She responded, Because he was hurting me again, and he had hurt me bad a couple days prior. Defense counsel again objected he had no notice of these incidents. The trial court admonished the jury to disregard he had hurt me bad a couple days prior, but apparently concluded the first part of the statement, directly responsive on why McClung moved out, was admissible to reveal her state of mind. Section 1101, subdivision (b), supports the trial courts conclusion that prior conduct evidence may be admissible to show motive or some fact . . . other than [the defendants] disposition to commit such an act. In any event, even assuming arguendo the trial court erred in admitting the first snippet of McClungs statement, any error was harmless. The snippet was brief and, in light of the plethora of other more damning incidents, it is not reasonably probable defendant would have obtained a more favorable verdict had it been excluded. (Watson, supra, 46 Cal.2d 818, 836.)

Defendant argues the trial court should have excluded the testimony of the officer who took McClungs police report for the charged incident in February 2005. Defendant complains the officers testimony was merely cumulative of McClungs trial testimony concerning that incident. But the officers testimony was relevant and admissible to bolster McClungs credibility at trial, since McClung, like many domestic violence victims, had recanted her story during an intervening reconciliation with her abuser. Accordingly, the trial court did not err in admitting the officers testimony.

D. No Error in Declining to Declare a Mistrial in Midst of Juror Deliberations

Defendant argues the trial court erred by rejecting his mistrial motion when the jury foreperson initially indicated the jury was deadlocked on the assault with a firearm count. Defendant moved for a mistrial on that count. Penal Code section 1140 provides for a trial court to discharge the jury and declare a mistrial when, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. Whether there is a reasonable probability of juror agreement is left to the trial courts sound discretion. (People v. Cook (2006) 39 Cal.4th 566, 615.) Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency, the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered. (People v. Harris (2005) 37 Cal.4th 310, 363-364.)

Defendant contends the trial court coerced the jury into reaching a verdict after the jurors emphatically indicated they were deadlocked with no chance of reaching a verdict. (Original formatting and bolded typeface deleted.) The record does not support defendants contention.

At 3:12 p.m. on a Thursday, after the jury had been deliberating for five or six hours and had reached verdicts on all the counts and enhancements except count 3, the jury sent the trial court the following note: What do we do if we cant come to a unanimous decision on one of the charges? Assembling with the jury back in the courtroom, the foreperson responded, Yes, when the trial court asked if the jurors were deadlocked on one count. When the court asked if it could answer any questions or provide other assistance in making a verdict on the remaining count reasonably probable, the foreperson responded, I dont believe so.

The foreperson disclosed, however, that the jury had moved, over the course of deliberations and multiple ballots, from a 6-6 split, to 9-3, to its present 10-2 division. (See People v. Proctor (1992) 4 Cal.4th 499, 539 [court may inquire into numerical division of jury but not attempt to ascertain whether minority is for conviction or acquittal].) Juror No. 5 also stated a read back of testimony might potentially help, while the other jurors concluded this or other means of court assistance were not an avenue to unanimity.

Over defendants request for a mistrial, the court decided to allow the jury to deliberate further. The jury returned to deliberations at 4:12 p.m., but almost immediately sent the trial court another note at 4:20 p.m., stating, We have a juror that can not be here next Monday or Tuesday because of school. They start school and he will be dropped if not there the 1st day. Calling the jury back into the courtroom, the trial court alerted the jurors that although normally we would not deliberate on Fridays, the court was able to clear my calendar to permit you to deliberate tomorrow if you wish to do so . . . . The foreperson responded that deliberating on Friday made reaching a verdict [a] possibility, adding, But I dont know.

The trial court asked if it could assist the jury by ordering the reading of testimony, or whether there was anything else the court can do. The foreperson indicated a possibility but then hesitated. The court suggested: Let me ask you to go back into the jury room, talk it over with your fellow jurors, and let me know your position, if you would like to come back and deliberate tomorrow; thats fine, you can do so. And you can deliberate Monday and Tuesday as well, if you need to. The court added, And whoever the student is with respect to not being able to deliberate Monday or Tuesday, the court will certainly assist that individual in talking with the proper administrative officials. They cant drop the school cant drop somebody for serving on jury duty. Okay. And we also have avenues that can be explored. [] Why dont you go back and talk to [your] fellow jurors, and buzz us when you have an answer or response, what you would like to do; okay? Defendant moved for a mistrial again, to no avail. The jurors returned to the jury room at 4:30 p.m., deliberated further, took two additional ballots, and informed the bailiff at 4:50 p.m. that they had reached a verdict.

Defendant argues the timing of the jurys verdict shortly after it appeared deadlocked on a final count raises an inference of coercion which requires reversal. But while defendant characterizes the jury as having emphatically expressed it was deadlocked, both Juror No. 5 and the foreperson had stated there remained a possibility the jury could reach a verdict. The jurors ballot history revealed they were a fluid group, unwed to fixed conclusions and capable of changing each others minds with further discussion.

According to defendant, the jury must have felt they would never be permitted to leave until they reached a verdict. But the trial court made no threats in advising the jury the courtroom was available for deliberation on the next day and the week after, if needed. And unlike cases cited by defendant (see, e.g., United States v. Burgos (4th Cir. 1995) 55 F.3d 993, 939), the trial court made no comments singling out minority jurors or otherwise exerting pressure on them. In People v. Sandoval (1992) 4 Cal.4th 155, 194-195, and People v. Breaux (1992) 1 Cal.4th 281, 317-320, our Supreme Court found no coercion where the trial court ordered the jury to return for further deliberations even though each of the jurors had stated further deliberations would not be helpful. The matter is committed to the trial courts sound discretion and, here, we cannot say the court abused its discretion when two of the jurors agreed further deliberations might prove helpful.

E. No Cumulative Error

Finally, because admission of McClungs two responses discussed in Part II.C.2, ante, was harmless and constitutes the only conceivable error in the trial, defendants cumulative error argument fails. Simply put, absent pervasive errors to cumulate, the cumulative error doctrine does not apply. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [litmus test of cumulative error analysis is whether defendant received due process and a fair trial].) Given defendants inability to demonstrate error, we are confident he received a fair trial. (People v. Gordon (1990) 50 Cal.3d 1223, 1278 [a defendant is entitled to a fair trial, not a perfect one], overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.)

III
DISPOSITION

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] All further unlabeled section references are to the Evidence Code.

[2] Subdivision (e) specifies that acts of domestic violence occurring 10 or more years earlier are generally inadmissible and subdivision (f) provides that the findings in some health care regulatory proceedings are also inadmissible.

[3] Indeed, an earlier jury hung on criminal charges against the deputy.