P. v. Beltran

Filed 3/2/06 P. v. Beltran CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant and appellant, Oscar Beltran, appeals from his conviction of one count of infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))^[1] and one count of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) He argues that the court erred in denying his motion for a mistrial after he learned that the victim would testify. He also contends the trial court abused its discretion in admitting evidence of prior acts of domestic violence under Evidence Code section 1109. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The events in this case occurred on December 26, 2003, the day after Christmas. Between 8:30 and 9:00 p.m. on that day, defendant, his wife (the victim), and their four young children, visited Nicole F., a friend of the victim. Nicole F. testified that the children ate pizza and watched movies in the living room of her house while she, defendant and the victim went into the kitchen and drank shots of tequila. The victim and Nicole F. drank about four shots of tequila; defendant six to eight shots. The trio stayed in the kitchen for hours, talking and laughing.

At around 3:00 a.m., the defendant and his family prepared to leave. While Nicole F. helped the other children get in the car, the victim and her youngest child went into the bathroom. When Nicole F. returned, she discovered that the victim was unable to get out of the bathroom and defendant was outside the door, yelling at his wife. Nicole F. testified that the doors in her house are old and sometimes got stuck. Nicole F. tried to get the door open, was unable to and left to check on the other three children who, by this time, were all in the car. Defendant was becoming angry, banging on the door and kicking it.

When Nicole F. returned from checking on the children, she saw defendant run out of the door to the house, followed by the victim and their youngest child. The victim had a towel on her mouth and Nicole F. noticed her mouth was bleeding. The victim told Nicole F. she did not want to go with defendant. Nicole F. testified that defendant then hit the victim in the mouth and chin with his closed fist and threw her down a flight of eight or nine stairs. The victim fell to the landing. Nicole F. did not see her move or speak and went to the landing to check on her. Defendant also approached the victim. He straddled her and head butted her, despite Nicole F.'s attempt to get him to leave her alone. Defendant then dragged the victim down the remaining stairs by her hair while Nicole F. tried to stop him. Defendant pushed and hit Nicole F., who pushed him back. Defendant started to drive away with the children. Nicole F., concerned that he was driving with the children while drunk, pulled his oldest daughter out of the car before he drove off.

Defendant's oldest daughter dialed 911 for Nicole F. Nicole F. told the dispatcher what had happened. The victim was taken to the hospital by paramedics and police officers. The next morning, when Nicole F. visited the victim in the hospital, the victim's face was swollen, she had a cut on her lip and scratches and bruises on her legs and back.

The victim testified that she had been in a relationship with defendant for 11 years and had three children with him. Her daughter, who was thirteen at the time of the incident, also lived with them. The victim's testimony regarding the events of December 26 was almost identical to that of Nicole F.

The victim also testified that in December 2000, when she was pregnant, defendant slapped her during an argument. He also slapped her three times during an argument in October 2003. She did not have many friends, did not go out a lot and sometimes was afraid of defendant.

The police officer who responded to the scene testified that Nicole F. did not appear to be under the influence of alcohol. When the victim was interviewed at the hospital, she did not appear to be under the influence of alcohol. A paramedic who responded to the scene did notice a heavy odor of alcohol around the victim, however.

Joseph McFadden, an expert in domestic violence, testified that, in general, several unreported incidents of domestic violence frequently precede a reported case. It is not unusual for a victim not to tell family and friends about domestic violence and to stay in a relationship with a batterer when children are involved, in an effort to protect the children from the batterer.

Defendant testified on his own behalf. He stated that he did not know how many drinks he had that night, but he felt the effects of the alcohol. Late in the evening while visiting Nicole F., he noticed that his wife was absent. Nicole F. told him she had gone to the bathroom. When he knocked on the door, his wife did not answer. He left and returned a short time later and knocked again. His wife told him she could not open the door. He was worried because his wife was not used to drinking strong alcohol. When Nicole F. was unable to open the door and he heard his son crying inside the bathroom, he forced the door open by pushing his body against it. When he did so, he accidentally hit his wife with the door. He saw that she was drunk and that she had blood on her mouth. He gave her a towel for her mouth and took his son to the car.

When defendant returned to help his wife to the car, he encountered Nicole F., who accused him of hitting his wife. Defendant testified that Nicole F. was furious with them for leaving her house. Nicole F. blocked his path and, when he tried to get his wife down the stairs, Nicole F. pulled on him and hit him. During the struggle, he let go of his wife, who fell down the stairs. He ran down the stairs to help. His wife was crying and did not respond. He could not pick her up. Nicole F. was hysterical and accused him of pushing his wife; she said she was going to call the police. Defendant got in the car and drove to his mother-in-law's house to ask for help. Before he could leave her house, he was arrested.

Defendant testified that he did not hit or punch his wife in any way and did not push or drag her down the stairs. He hit her with the bathroom door by accident. He did not slap his wife when she was pregnant in 2000 and did not slap her in October 2003.

The jury convicted defendant of one count of infliction of corporal injury on a spouse and one count of assault by means of force likely to produce great bodily injury. The court suspended imposition of a three-year sentence on count one and placed defendant on probation for three years. The court stayed probation on the second count under section 654.

This timely appeal followed.

III. DISCUSSION

A. Defendant's Motion for a Mistrial

The victim was named on the People's list of witnesses who would testify at trial. Shortly before trial, the People informed the court and the defense that the victim would not testify. As a result, the court ruled that motions in limine pertaining to any statements by the victim and prior evidence of domestic violence were moot. Voir dire was then conducted and the trial began. However, on the morning of the first day of testimony, the victim informed the People that she wished to testify. After the People informed the court of this fact, defendant moved for a mistrial. The court denied this motion.^[2]

Defendant now contends the court abused its discretion in denying his motion. He argues that his ability to mount a defense was prejudiced because he did not ask potential jurors questions regarding prior domestic violence, an issue that would arise under Evidence Code section 1109 when the victim testified. The People, on the other hand, respond that the subject of prior domestic abuse was adequately explored during voir dire and permitting the victim to testify was not incurably prejudicial. We agree.

We review the question of whether the court erred in denying a motion for mistrial under the abuse of discretion standard. As one court put it, â€