P. v. Notis

Filed 3/2/07 P. v. Notis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Spiro Notis of inflicting corporal injury upon his then live-in girlfriend, now wife (Pen. Code, 273.5, subd. (a)).^[1] In a separate bench trial, the court found true that defendant had a prior conviction for second degree robbery ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to six years in prison. In his appeal, defendant claims the trial court erred in admitting certain portions of the experts testimony on the battered womens syndrome. Defendant also claims the court erred in denying his request for a jury instruction on the lesser-included offense of battery upon a spouse or cohabitant. We reject these claims and affirm the judgment.

1. Facts

Maria Vasquez had been living with defendant for several years. The couple had problems with domestic violence. On May 23, 2003, Vasquez requested a temporary restraining order against defendant for threatening her and her children and committing various acts of violence against her, including slapping her, pulling her hair, twisting her arm, throwing chairs at her, hitting her with his hands and fists, spitting on her face, and raping her. On May 27, 2003, Vasquez went to the police substation in the mall where she worked as a hairdresser and reported to Officer Matthew Cash that defendant had stolen her car after physically and sexually abusing her. According to the manager of the hair salon, Vasquez sometimes came to work with a bruise on her arm and, on one occasion, with a fat lip.

On September 13, 2003, Vasquezs 16-year-old daughter, Jessica, heard her mother and defendant fighting and called the police. The 911 tape records that Jessica apologized, said that she would call back, and then hung up. Police Officer Carl Turner responded to the call at 12:30 a.m. Vasquezs 12-year-old son, Alberto, let Officer Turner inside and informed him that his mother and defendant were arguing in the bedroom.

After contacting Vasquez and defendant, Officer Turner interviewed Vasquez separately. Vasquez, who appeared upset, explained that the two were having problems and that defendant may have been cheating on her. She said that the argument started in the kitchen at 9:30 in the evening and then moved to the bedroom. According to Vasquez, defendant grabbed her and threw her on the bed. He ripped off her black spandex pants. He then got on top of her and started to choke her. Turner noticed that Vasquez had a small cut inside her lower lip. Vasquez also had a bruise on her upper left arm and redness on the left side of her neck.

After the September 13, 2003 incident, and before the trial, defendant and Vasquez were married. Vasquez was about eight months pregnant at the time of the trial. Vasquez denied the incidents of domestic violence. Although she admitted that she and defendant argued over money, she dismissed her prior statements as exaggerations. When confronted with photographs of her injuries from the September 13, 2003 incident, she testified that she had a fever blister on her lip, a rash on her neck from an allergic reaction to some skin cream, and a bruise from an injury at the gym.

2. Issues and Discussion

a. Expert Testimony on the Battered Womens Syndrome

Defendant claims the trial court erred in admitting the experts responses to the prosecutors questions because the testimony exceeded the scope of proper opinion testimony on the battered womens syndrome. During the trial, Detective Richard Wheeler discussed the power and control wheel, which included the typical factors involved in a domestic violence case. As argued below, defendant specifically contends that Detective Wheelers testimony constituted inadmissible profile evidence under People v. Robbie (2001) 92 Cal.App.4th 1075 (Robbie).

Profile evidence is a type of character evidence that can be described as expert testimony that (1) identifies a person who commits a certain crime as having particular characteristics or behaving in a certain way, which also may be true of a person who is not engaged in illegal conduct, and (2) allows the jury to draw an impermissible inference that the defendant is guilty solely because he matches the profile. (See People v. Smith (2005) 35 Cal.4th 334, 358; Robbie, supra, 92 Cal.App.4th at p. 1084.) Courts have excluded this type of evidence in cases where the expert attempted to provide a profile of a rapist (Robbie, supra, at pp. 1085-1088), a drug dealer (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072), a truck thief (People v. Martinez (1992) 10 Cal.App.4th 1001, 1006), and a drug courier (U.S. v. Beltran-Rios (9th Cir. 1989) 878 F.2d 1208, 1210). Profile evidence is inadmissible, not because of its content alone, but because of its potential effect. It encourages a guilty verdict based solely on an impermissible inference. (Robbie, supra, at p. 1085; see also People v. Erving (1998) 63 Cal.App.4th 652, 663-664.)

In evaluating a claim that the evidence constitutes inadmissible profile evidence, we recognize that profile evidence does not provide a separate ground for excluding evidence. Instead, the evidence is inadmissible if it is irrelevant, lacks foundation, or if its prejudicial effect outweighs its probative value. (People v. Smith, supra, 35 Cal.4th at p. 357.) We will, therefore, review the courts ruling according to the normal rules of evidence.

Generally, the testimony of an expert is admissible if his opinion is related to a subject that is sufficiently beyond common experience and the opinion would assist the trier of fact. (Evid. Code, 801, subd. (a); In re Nourn (2006) 145 Cal.App.4th 820, 835.) Specifically, as to expert testimony on domestic violence, Evidence Code section 1107, subdivision (a), provides: 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. Under this and other provisions of the Evidence Code, expert testimony on domestic violence and, particularly testimony on the battered womens syndrome, is admissible if relevant to prove a disputed fact. (See also Evid. Code, 210, 351; People v. Gadlin (2000) 78 Cal.App.4th 587, 592.)

Battered womens syndrome is a series of characteristics that are common among women who are subjected to long-term physical and psychological abuse by a dominant male figure in their lives. (People v. Brown (2004) 33 Cal.4th 892, 903, citing People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1.) Expert testimony on the battered womens syndrome usually involves a description of a cycle of violence that may begin with tension in the relationship and escalate into physical abuse. As a result of the abusers behavior or the victims dependency, the victim may succumb to the abusers psychological control. Often the victim recants or changes her mind about prosecuting the abuser. (See Brown, supra, at p. 907.)

Evidence on the battered womens syndrome is relevant if (1) substantial evidence shows that the victim exhibited some of the characteristics common among battered women and (2) the evidence on battered womens syndrome is probative of a contested issue of fact. (People v. Gadlin, supra, 78 Cal.App.4th at p. 592.) As to the first test for relevance, there was ample evidence in this case to support the Peoples contention that the victim fit the description of a battered woman. Interestingly, evidence on the battered womens syndrome does not provide a profile of the abuser, but instead provides a profile of the victim. Although such evidence may describe various dynamics involved in these relationships, including the abusers behavior, the focus clearly is on the victim. As noted above, profile evidence is not objectionable because of its content alone, but because of its effect. Otherwise some clearly admissible evidence also would be excluded (e.g., evidence of modus operandi). Here, the evidence on the battered womens syndrome does not allow the impermissible inference that an abuser acts in a certain way, defendant acted in that way, and, therefore, the defendant is an abuser. (See Robbie, supra, 92 Cal.App.4th at p. 1085.) The evidence is offered not to prove the allegations of abuse, but to explain the victims behavior.

In regards to the second test for relevance, the evidence was probative to the contested issue of the victims credibility. Although evidence on the battered womens syndrome is inadmissible to establish that the allegations described by the victim are true, it is relevant and admissible to explain the victims recantation and thereby reconciles inconsistencies between her initial report and her trial testimony. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1214-1215; see also People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (on child abuse).) Again, the focus is on the victims behavior and, specifically, in this case, the victims recantation.

Despite its relevance, defendant objects to Detective Wheelers testimony on the ground that it exceeded the scope of proper expert testimony when he responded to the prosecutors hypothetical questions. The prosecutor followed up the experts general descriptions of each factor of the power and control wheel by asking hypothetical questions based on the specific facts in this case, including: on the use of coercion, an abusers threats to kill the victim and her children; on the use of intimidation, the abusers claim that the police would not arrest him because he knew the chief; on the factor of emotional abuse, the constant barrage of disparaging comments; on the factor of isolation, whether the same would apply to a working woman; and, on the involvement of children, the effect of the victims pregnancy on her behavior.

While it is true that an expert cannot offer testimony on the battered womens syndrome to prove the occurrence of the acts of abuse (Evid. Code, 1107, subd. (a)), the testimony can be offered to explain the victims behavior. (People v. Gadlin, supra, 78 Cal.App.4th at p. 595.) When [battered womens syndrome] testimony is properly admitted, testimony about the hypothetical abuser and hypothetical victim is needed for [battered womens syndrome] to be understood. To the extent that the expert testimony suggests hypothetical abuse that is worse than the case at trial, it may even work to the defendants advantage. In any event, limiting the testimony to the victims state of mind without some explanation of the types of behaviors that trigger [battered womens syndrome] could easily defeat the purpose for which the expert is called, which is to explain the victims actions in light of the abusive conduct. (Ibid.)

Wheeler did not interview the victim or have prior knowledge concerning the facts in this case. During his testimony, he described some common patterns in domestic violence cases beginning with a hit, an apology, another hit, another apology, and the victims sense of isolation, dependence, guilt, and helplessness. He specifically identified and described the factors of the power and control wheel. He discussed circumstances based on his experience of working on over 1,500 cases of domestic violence. When asked about a specific circumstance in this case, Detective Wheelers responses focused on how the circumstance would affect a victims behavior.

For instance, during Wheelers testimony on the factor of intimidation, the prosecutor asked how the victim might respond if the abuser were to say, I know the chief of police, which is something that defendant allegedly said to Vasquez. Detective Wheeler responded, . . . if the victim feels that they want to report -- its time to stop the violence thats taking place and they want to come forward -- the agency that they are most likely going to be involved with will be law enforcement, and if they feel that that agency is going to be biased in the investigation toward the abuser, they figure, Whats the point? Why should I say anything to anyone, because this person controls not only me and the household but also the police? They have that type of influence. Absolutely I would see that making a victim feel theres no one out there to help her or him. This testimony was not directed at establishing defendants guilt, but at explaining a victims reluctance or delay in reporting the crime. Such testimony is admissible under Evidence Code section 1107.

In discussing the factor of emotional abuse, the prosecutor asked, [b]ased on your training and experience, would telling somebody that, you know, Youre a whore, nobody wants you, youre over the hill -- is that a form of emotional abuse? Wheeler answered, If it was a case I was investigating, I could see that as being part of it, yes. It would be one of those things where the victim would begin to feel that the abuser is right. Nobody is going to want me. Im married. I might have kids. Maybe I am over the hill. Maybe Im overweight, where really they are not. [] That constant barrage of this is your identity as I see it; therefore, thats your identity -- after a while they begin to believe that. After a while they feel like that person is correct, I dont have any other options. In this instance, although the prosecutor specifically asked whether a particular type of conduct constituted abuse, it did not exceed the proper scope of opinion testimony for a few reasons. First, the acts of abuse under the statute refer to acts that constitute the crime of domestic violence. (See 1107, subd. (a).) The prosecutions question concerned emotional abuse, which is not the conduct that formed the basis of the charge, but is a common factor in domestic violence situations. Second, the disparaging comments mentioned by the prosecutor were typical kinds of insults that any abuser might use. Lastly, although Wheeler answered affirmatively, his comments did not address the question of whether certain conduct constitutes abuse, but instead discussed how the insults would affect the victims reasoning process in weighing her options.

During another instance involving a hypothetical question based upon the facts in the case, the prosecutor asked whether the victims pregnancy would affect her behavior in a domestic violence situation. Wheeler answered: It definitely could. If youve got a female victim thats being abused, the last thing in the world they want to have happen is some type of abuse that causes them to lose their child. And I could see a victim doing anything and everything possible to try and dampen or soften the impact of this domestic violence for their unborn child. So they may agree to do whatever the abuser wants them to do. They may absorb pain and suffering to try to make sure that their child is going to be safe, maybe taking punches in areas of their body that wont affect the child. When the prosecutor further inquired how the victim would perceive her options, Wheeler added, I can see that as being a feeling she has less options from the standpoint that if they were to leave the abuser during this relationship and they dont have any means of taking care of themselves -- maybe they are on the abusers medical program . . . . So I could see them taking that into consideration for the future of the child, that maybe its better to stay what [sic] Im at, deal with the abuse the best I can rather than suffer the consequences, . . .

As with the other responses, this testimony had nothing to do with whether defendant committed the acts of domestic violence. Instead, it explained the victims behavior. Wheelers testimony explains what motivations a pregnant victim might have had for remaining in an abusive relationship.

After discussing the power and control wheel, Wheeler also described the cycle of violence. At this point in the examination, the prosecutor asked, In your training and experience, would you sometimes go out to a domestic violence incident and get a statement where the victim is actually implicating the man she loves in the crime -- for example, he grabbed me by the throat, he punched me in the lips, grabbed me by the arms? Although defendant argues that this question was an inappropriate effort to elicit the opinion that defendants behavior was abusive, the context of this question shows that the prosecutor was inquiring about whether it was common for a victim to report the crime and later recant. The point of the question was not the specific allegations, but the victims coming forward to make a statement implicating the abuser. The prosecutor next asked, . . . Do you then have situations where that victim now recants and says, you know, that never happened? I never told the police that, or I dont remember telling them that. This line of questioning and the responses were admissible to assist the jury in weighing the inconsistencies in the victims statements.

In sum, Wheelers responses to the prosecutors questions demonstrated that he did not have knowledge of the particular facts in this case. He indiscriminately discussed a wide variety of circumstances, including those from his own experience and those mentioned by the prosecutor, and a victims typical responses in such circumstances. It is apparent that the expert understood the parameters of proper opinion testimony on the battered womens syndrome. We conclude that the trial court properly admitted Wheelers testimony.

b. Lesser-Included Offense of Battery

Defendant argues that the trial court erred in denying his request to instruct the jury on the lesser-included offense of battery upon a spouse or cohabitant. ( 243, subd. (e)(1).) Defendant specifically argues that, because the victim claimed that her injuries came from other sources, substantial evidence supported the lesser offense.

At trial, along with a request for instructions on self-defense, defendants trial counsel also requested instructions on the lesser-included offense of battery upon a spouse or cohabitant. The trial court denied the request because the evidence showed that either defendant grabbed Vasquez, inflicting corporal injury or, as Vasquez testified, he simply held her to calm her down. The court noted that there was no evidence of some other unlawful use of force.

Well-settled rules guide our review of the courts ruling. A trial court has a duty to instruct on all general principles of law relevant to the issues as presented by the evidence in the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) This duty includes the requirement to instruct on a lesser-included offense, even without a request, if there is substantial evidence to support the instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Substantial evidence is evidence that a reasonable jury could find persuasive. (Ibid.)

Defendant was convicted of inflicting a corporal injury resulting in a traumatic condition upon a spouse or cohabitant. ( 273.5.) A traumatic condition is defined as a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force. ( 273.5, subd. (c).)

Defendant sought an instruction on the lesser-included offense of battery of a spouse or cohabitant. ( 243, subd. (e)(1).) Battery is defined as any willful and unlawful use of force or violence upon the person of another. ( 242.) While a battery always involves a touching of the victim (People v. Marshall (1997) 15 Cal.4th 1, 38-39), it does not necessarily require that the touching result in bodily injury (see People v. Myers (1998) 61 Cal.App.4th 328, 335).

Battery is a lesser-included offense of inflicting corporal injury upon a spouse or cohabitant. (See People v. Jackson (2000) 77 Cal.App.4th 574, 578; People v. Stewart (1961) 188 Cal.App.2d 88, 80.) The additional requirement of injury resulting in a traumatic condition is what differentiates the greater offense from the lesser offense. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)

The question, in this case, is whether there was substantial evidence that defendant unlawfully used force upon Vasquez without inflicting bodily injury. As noted by the trial court, the record contains Vasquezs prior statement to the police that defendant grabbed her, threw her on the bed, ripped off her pants, and started to choke her. As established by the photographs and Officer Turners testimony, these acts resulted in a cut on Vasquezs lower lip, a bruise on her upper-left arm, and redness on the left side of her neck.

The record also contains Vasquezs trial testimony, which provided an entirely different account of the incident. Vasquez testified that the two were arguing about money. Vasquez was upset and, at some point during their argument, she pushed him. Defendant simply responded by holding her to calm her down. She denied that defendant had ever been physically violent with her. She provided other unrelated explanations for the injuries depicted in the photographs.

Neither of these statements provides evidence of the lesser offense. Vasquezs prior statement provides evidence supporting only the greater offense. As noted by the trial court, Vasquezs trial testimony does not provide evidence of the lesser offense, i.e., it does not show an unlawful use of force. Based on this evidence, defendant may argue, as he did, that Vasquezs prior statement contained false allegations and, therefore, there was no physical violence.

Relying on People v. Elize (1999) 71 Cal.App.4th 605, defendant now argues that the jury could have believed parts of Vasquezs statements supported the lesser offense. In Elize, the defendants two girlfriends confronted him in a violent altercation, during which the defendant claimed he accidentally fired his gun. Despite the defendants claim that the shooting was accidental, the record also contained evidence (i.e., the use of force by the two women) to support the defendants request for instructions on self-defense. (See Elize, supra, at p. 616.)

In this case, however, the only evidence of an unlawful use of force or violence was Vasquezs prior statement to the police. Vasquezs prior description of defendants violent conduct cannot be severed from her description of the resulting harm. The evidence of injury naturally follows from the evidence of violence. Although there may be some dispute as to the severity of the injury, there was no question, based on Vasquezs prior statement, that the altercation involved injuries.

We conclude that the record does not contain substantial evidence to support the lesser offense. (See People v. Holt (1997) 15 Cal.4th 619, 675.) The trial court, therefore, properly denied defendants request for the battery instruction.

Furthermore, even if the trial court should have granted the request, the error would have been harmless based on the record in this case. (See People v. Guerra (2006) 37 Cal.4th 1067, 1148.) As discussed above, the defense theory was that Vasquez simply fabricated allegations of domestic violence when she was upset at defendant. The jury clearly found that the allegations were not mere fabrications. Because there was no evidence of an unlawful use of force that did not result in injury and because defendant relied solely on a theory that there was no physical violence in the first instance, we conclude that the omitted instruction had no effect on defendants trial.

2. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/Richli

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise stated.