Filed 4/24/18 P. v. Gonzalez CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN PETE GONZALEZ,

Defendant and Appellant.

F073128

(Super. Ct. No. BF160385A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Steven Pete Gonzalez was convicted at the conclusion of a jury trial of felony allegations of false imprisonment (Pen. Code, §§ 236, 237, subd. (a); count 1) and making criminal threats (id., § 422; count 3); and misdemeanor allegations of battery on a spouse or cohabitant (id., § 243, subd. (e)(1); count 5) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 6). In a bifurcated proceeding, the trial court found true allegations defendant had two prior serious felony convictions within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and within the meaning of Penal Code section 667, subdivision (a). The court found true enhancement allegations defendant served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
At the sentencing hearing on January 26, 2016, the trial court denied defendant’s request to strike one or both of his prior serious felonies pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced defendant to a term of 25 years to life on count 3, plus 10 years for the two prior serious felony enhancements, and two years for the prior prison term enhancements. The court imposed concurrent sentences of six years on count 1, and one year each on counts 5 and 6.
On appeal, defendant contends the trial court erred in allowing testimony from an expert who was unqualified to explain the neurological effects of trauma on the brain and the subsequent ability of victims to accurately recall and report traumatic events. Defendant argues this testimony was beyond the witness’s expertise and its admission was prejudicial error. Defendant further contends the trial court erroneously sentenced him on counts 1 and 3 in violation of Penal Code section 654 because those allegations were based on the same criminal act. Although there was sentencing error, we otherwise affirm the judgment.
FACTS
Current Offenses
In June of 2015, defendant had been in a romantic relationship with Anita M. for 10 years. They lived together in an apartment with their seven-year-old daughter, five-year-old son, and Anita’s nine-year-old daughter from another relationship. On June 3, 2015, defendant came home early. Anita was upset with defendant because he was supposed to be at work, and they started arguing. Anita asked defendant to leave. Although defendant gathered his belongings to leave, he stayed on into the evening and continued arguing with Anita.
Defendant walked into the girls’ room and became upset because he believed the neighbor was looking through the window at the girls. He was acting paranoid and Anita thought defendant was using drugs. Defendant left the apartment and started fighting with the neighbor. Anita was fearful defendant would take out his anger on her when he returned, so she locked him out of the apartment and called the police. Deputies arrived, released defendant, and he left the apartment. After speaking with the police, Anita fell asleep on the couch with her children.
While Anita and the children were sleeping, defendant entered the apartment with his key and started yelling at Anita because she had called the police. Defendant took Anita’s cell phone and put it on the counter. He told her to go to the bedroom and lie down with him. Anita said she wanted to stay with the children. Defendant grabbed Anita and dragged her by her hair to the bedroom. During the attack, defendant told Anita he would kill her if she called the police again. Anita’s account was corroborated by her older daughter who was nine years old at the time of trial.
In the bedroom, defendant threw Anita onto the bed and told her to lie down. Defendant retrieved a knife from the kitchen and returned before Anita could escape. Defendant held the knife close to Anita’s neck and ordered her to lie down. Anita’s older daughter saw defendant hold the knife to her mother’s throat through the open door.
Defendant reiterated his threat to Anita that he would kill her if she called the police. Anita lay down at the far end of the bed away from the door and remained there all night. Anita knew she would not be able to get up because of defendant’s prior acts of violence towards her. The next morning, Anita’s son asked her if he could go to the bathroom. Anita asked defendant if she could make her son something to eat, and defendant let her leave the bedroom. While she was gone, Anita told the children to quietly put on their clothes and shoes. She used her cell phone to send her sister a message asking her to call the police.
A short time later, Deputy Giovanni Rodriguez and two other deputies of the Kern County Sheriff’s Office arrived and knocked on the door. Anita ran to the door, let them in, and explained what had happened. She told the deputies defendant was sleeping in the bedroom. Rodriguez woke defendant and told him he was being detained. When Rodriguez asked defendant if he had anything illegal, defendant replied he had “speed in his pocket.” Rodriguez searched defendant and found a small white baggie of methamphetamine in his front pocket. Defendant was arrested and advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant admitted he possessed about a gram of methamphetamine.
Expert Testimony
Nada Yorke, a licensed clinical social worker who runs a consulting business, testified for the prosecution as an expert on domestic violence. Yorke has a bachelor’s degree in psychology with a criminology minor and a master’s degree in social work. Yorke had been a licensed clinical social worker for seven years. Prior to that, she had 25 years of experience as a probation officer. For three and a half years of her work as a probation officer, Yorke was a victim/witness advocate and specialized in the area of domestic violence. As part of her licensing requirement, Yorke completed 3,200 clinical hours of group and one-on-one psychotherapy.
In 2010, Yorke completed a study, which was later published, to develop a scale to measure domestic violence perpetrators’ acceptance of personal responsibility for their acts of violence. Yorke spent an additional 1,200 clinical hours conducting the study. Over the course of her training, Yorke spoke with thousands of victims and offenders of domestic violence. Yorke had been part of the Domestic Violence Advisory Council of Kern since 1999. Yorke was president of that organization at different times between 2000 and 2006. She also attends and presents at conferences on working with perpetrators and understanding the dynamics of family structure and domestic violence. As part of Yorke’s presentations on these issues, she keeps informed of new articles and studies on domestic violence. She is a member of two online professional networks, one specific to domestic violence and one for expert witnesses, where she and her colleagues share information about new research and articles. Yorke had testified as an expert more than 15 times.
Yorke was not provided with information about the current case, but instead testified about the general dynamics of domestic violence. Yorke explained that in her experience, domestic violence tends to escalate. The first instance is not always severely physical, and victims often believe it is an isolated event. This is why victims who are abused over a long period of time fail to report the first instance of domestic violence. It is also common for a third party to initially report domestic violence and for the victim to tell authorities nothing happened but have an explanation for injuries.
Yorke also explained people often wonder why victims of domestic violence do not leave their abusers. Yorke said research shows when the victim leaves, domestic violence often gets worse instead of stopping. The public also has the perception domestic violence is obvious when it is often hidden from people outside the home. Yorke explained the cycles of violence and battered woman’s syndrome. After experiencing repeated domestic abuse, victims experience a psychological condition of learned helplessness where they believe they can do nothing to protect themselves or to stop the violence. This causes victims to stay in abusive relationships because they do not believe they can do anything to protect themselves.
Yorke explained perpetrators of domestic violence often use various means of coercion to control their victims. This includes intimidation based on past acts of violence, verbal abuse, use of children, and isolation. Intimidation tactics influence the way victims think and react and often prevent victims from contacting law enforcement. Yorke described victims’ thought processes when they report acts of domestic violence and how law enforcement is now being trained to question domestic violence victims.
When Yorke was asked, based on her training and experience, if victims of violence recall incidents in a straightforward manner or if their reporting was more muddled, defense counsel objected that the question called for an improper opinion. The court asked if Yorke was familiar with this area. Yorke replied she taught forensic experiential interviewing, and the court overruled the objection.
Yorke explained law enforcement officers and the military were being taught “Forensic Experiential Trauma Interview” (FETI) techniques. FETI is about the effects of trauma on the brain. Faced with trauma, victims go into survival mode and other parts of the brain shut down. Normal questioning is linear and works on the cognitive part of the brain and is based on cause and effect from the beginning of an event to the end. When somebody has been traumatized, a FETI focuses instead on the senses. Questions to the victim begin with what the victim smelled, saw, heard, and felt because this is where the brain is storing memory. Unfortunately, when memory is stored in that way, it is being stored in a fragmented fashion. It is common for a victim to take time to piece together the events. An initial statement can therefore be fragmented and a victim will fill in the blanks later.
Yorke explained that until the last 10 years, law enforcement officers were taught to believe a victim giving a fragmented initial account must be lying. Brain science has shown that, in fact, a fragmented account is an indicator trauma has taken place. Someone who has not been traumatized can give an account of events from beginning to end in a linear fashion. Trauma victims will sometimes give a disjointed account of what happened. The victim may be very agitated when law enforcement arrives, acting in an agitated manner with rapid, high-pitched speech, and flailing arms. The victim can act aggressively, which can cause the officer to suspect the victim was actually the perpetrator. Other victims can disassociate, causing them to blank out and show no emotion. Some domestic violence victims can freeze and have an irrational fear of their abuser.
Yorke was asked hypothetically, based on Anita M.’s behavior during defendant’s abuse, if such a victim’s behavior was consistent with someone who was either in the cycle of violence or had been abused for a long time. Yorke replied, “Absolutely.” In 2010, she was assigned to investigate an alleged incident of corporal injury occurring between Anita M. and defendant. Wood talked to Anita two or three times. When Wood asked Anita about drug use, Anita said she had not used drugs since her younger daughter was born. During a second conversation, Anita told Wood she had a new phone number and defendant did not know the number. But Wood discovered from jail records defendant had called Anita’s new phone number.
Defendant called Deputy Roger Dixon. Dixon investigated a 2008 incident of domestic violence between defendant and Anita M. Dixon was dispatched to two different locations but found Anita at a third location. When Dixon first questioned Anita, she began to cry. Anita told Dixon defendant had put a gun to her head. When Dixon asked why Anita did not run, she laughed. Although Anita cried at the beginning of Dixon’s questioning, she then started to laugh throughout the rest of their discussion. Anita said she was not able to run from defendant because he punched her in the face. Dixon did not observe any injuries to her face. Anita also said defendant struck her with a flashlight the night before while she was walking upstairs. When asked if he observed injuries consistent with falling down stairs, Dixon replied Anita had bruises on her arm, one of her legs, and lower back.
Dixon contacted defendant at his residence. Defendant was cooperative with Dixon and was not arrested. Deputies searched the residence but did not find a firearm.
DISCUSSION
I. Foundation of Expert’s Testimony
Defendant contends Yorke was unqualified to testify concerning the neurological effects of traumatic events on victims because human neurology was beyond Yorke’s expertise. Defendant argues Yorke’s testimony on this topic lacked any foundation and the testimony was prejudicial error because Yorke’s testimony was central to the People’s case. We find no error in the trial court’s order overruling defense counsel’s objection to Yorke’s testimony.
Evidence of domestic violence, or intimate partner battering, and its effects has been found admissible by the California Supreme Court pursuant to Evidence Code section 801. (People v. Brown (2004) 33 Cal.4th 892; see § 1107.) Evidence of intimate partner violence is also admissible pursuant to section 1107 to explain it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand. (People v. Riggs (2008) 44 Cal.4th 248, 293.) It is not unusual for intimate partner battering victims to recant prior statements, minimalize the alleged abuse, refuse to testify, or, as is relevant here, to return to the abuser. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1215.) Expert testimony on this topic assists the trier of fact in explaining the victim’s counterintuitive reactions and state of mind. (People v. Brown, supra, at p. 913; People v. Morgan, supra, at p. 1215.)
Section 720, subdivision (a) provides one may testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. (People v. Bolin (1998) 18 Cal.4th 297, 321.) The trial court’s determination of one’s qualification as an expert is governed by the deferential abuse of discretion standard and will not be disturbed on appeal absent a showing of manifest abuse. Error regarding whether one is qualified to be an expert is found only if the evidence shows the witness clearly lacks qualification as an expert. Complaints about the expert’s qualifications that go only to the weight of the expert’s testimony and not its admissibility do not constitute error. (People v. Panah (2005) 35 Cal.4th 395, 478; People v. Bolin, supra, at pp. 321–322.)
Although Nada Yorke’s testimony was not particularly relevant to any inconsistencies or memory gaps in Anita M.’s recounting of the events surrounding defendant’s abuse, Yorke’s testimony was directly relevant to why Anita stayed with defendant after prior acts of domestic violence and to whether she was in a cycle of violence that was difficult to escape. There was an adequate foundation laid at trial establishing Yorke’s expertise in victim and family dynamics in homes where domestic violence is a regular occurrence. Yorke spoke with thousands of victims and offenders of domestic violence. Yorke had been part of the Domestic Violence Advisory Council of Kern since 1999. Yorke was president of that organization at different times between 2000 and 2006. She also attends and presents at conferences on working with perpetrators and understanding the dynamics of family structure and domestic violence.
As part of Yorke’s presentations on these issues, she keeps informed of new articles and studies on domestic violence. She is a member of two online professional networks, one specific to domestic violence and one for expert witnesses, where she and her colleagues share information about new research and articles. Yorke had been a probation officer for many years prior to obtaining her master’s degree as a licensed clinical social worker.
In explaining FETI examination techniques to the jury, Yorke relied on literature in her field, which is the type of matter an expert may reasonably rely on to form an opinion. (People v. Bui (2001) 86 Cal.App.4th 1187, 1196.) Yorke was familiar with FETI and employed it in her own work. She explained to the jury it was a newer examination technique corresponding more accurately to how a trauma victim perceives a frightening event than the standard questioning process used in cases where the victim can recall what happened in a cogent, linear fashion. Yorke did not have to be a psychiatrist or neurologist to understand how trauma victims react. Yorke could reasonably rely on scientific literature in her field without having a medical degree or a doctorate in science.
Finally, even if we were to find Yorke’s testimony concerning the perceptions of trauma victims lacked a proper foundation, any error in admitting her testimony was harmless under the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. A defendant must show a more favorable result would have been reached in the absence of the alleged error. (People v. Pearson (2013) 56 Cal.4th 393, 446.) Anita M. proved herself to be a generally reliable witness who did not substantially change her account of defendant’s conduct in committing the charged offenses. She did not recant her story, and her description of events was largely corroborated by her eldest daughter.
Contrary to defendant’s assertion on appeal, Yorke’s testimony concerning FETI and the neurological impact of abuse was not a substantial lynchpin to the People’s case but rather an interesting footnote more germane to why Anita M. stayed with defendant after prior incidents of domestic violence. The trial court did not err in permitting Yorke to testify as an expert, and her testimony did not go beyond her qualifications as an expert.
II. Penal Code Section 654
Defendant argues his threat to kill Anita M. was effectuated by the same act, falsely imprisoning her in their bedroom. The trial court construed the conviction in count 3 as the criminal threat made in the bedroom during the false imprisonment. The trial court, therefore, should have stayed defendant’s sentence on count 1 pursuant to Penal Code section 654.
Penal Code section 654 prohibits multiple punishment for a single act violating different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 358; People v. Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even if defendant harbored multiple criminal objectives].) What is determinative is the singleness of the act and not the offense. The act, for instance, of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Where only a single act is charged as the basis for the conviction, however, the defendant can be punished only once. (People v. Mitchell (2016) 4 Cal.App.5th 349, 352–353.)
Defendant argues the trial court erred in imposing concurrent sentences for his convictions for false imprisonment and making a criminal threat rather than staying the sentences under section 654, which bars multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311.) As defendant contends, it is error for a trial court to impose a concurrent sentence if Penal Code section 654 applies. (People v. Jones, supra, 54 Cal.4th at p. 353.) The proper procedure, if the statute applies, is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.)
The statutory purpose underlying Penal Code section 654 is to ensure a defendant’s punishment is commensurate with his or her culpability. (People v. Correa (2012) 54 Cal.4th 331, 341.) To accomplish this policy, the statute prohibits courts from imposing multiple punishment for the same act or omission. However, as the California Supreme Court recently observed, the application of section 654 can leave courts with more questions than answers. (People v. Corpening, supra, 2 Cal.5th at p. 312.) This is because “[n]either the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an ‘act.’” (Ibid.)
As the court explained in Corpening, determining whether a defendant can be subjected to multiple punishment under Penal Code section 654 requires a two-step inquiry because the statutory reference to an “act or omission” may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. (People v. Corpening, supra, 2 Cal.5th at p. 311.) “We first consider if the different crimes were completed by a ‘single physical act.’ If so, the defendant may not be punished more than once for that act.” (Ibid.) Only if a court concludes the case involves a course of conduct do courts then consider whether that course of conduct reflects a single “intent and objective” or multiple intents and objectives. (Ibid.)
In analyzing defendant’s criminal threat and his false imprisonment of Anita M., it is impossible to distinguish two separate acts because they happened simultaneously. Defendant told Anita M. not to leave the bedroom or he would kill her. This was essentially one act. Given defendant’s past abuse of Anita, she was undoubtedly aware this threat to kill her was credible. The trial court erred in failing to stay count 1 pursuant to Penal Code section 654.
DISPOSITION
The court’s sentence on count 1 is ordered stayed pursuant to Penal Code section 654. The case is remanded for the trial court to prepare an amended abstract of judgment reflecting the change and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.


PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



SMITH, J.