Opinion
B217161
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. KRIS GANGADEAN, Defendant and Appellant.
Robyn Bramson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson and Idan Ivri, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA056962)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Lippitt, Judge. Affirmed in part; reversed in part.
Robyn Bramson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson and Idan Ivri, Deputies Attorney General, for Plaintiff and Respondent.
Kris Gangadean appeals from a conviction for, among other things, assault by means likely to cause great bodily injury. He contends the trial court abused its discretion by excluding opinion testimony regarding the victim's reputation for untruthfulness, and violated his right to confront adverse witnesses. Gangadean also maintains the trial court improperly imposed criminal conviction assessments under a statute that was not in effect at the time he was convicted. As to the latter point, we agree and will remand the matter with instructions to strike the assessments. On all other points, we affirm.
PROCEDURAL BACKGROUND
An information charged Gangadean with (1) assault by means likely to cause great bodily injury, coupled with an enhancement that he personally inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a); count 1); (2) false imprisonment by violence (§ 236; count 2); and (3) making criminal threats (§ 422; count 3).
All undesignated statutory references are to the Penal Code.
A jury found Gangadean guilty on all counts, and found true the special allegation. Gangadean was sentenced to an aggregate prison term of five years: the low term of two years on count 1, plus three years for the great bodily injury enhancement. Sentences on the other two counts were stayed. (§ 654.) Gangadean was given 185 days of custody credits. The court imposed a $40 court security assessment (§ 1465.8, subd. (a)(1)), and two criminal conviction assessments of $30 each (Gov. Code, § 70373).
FACTUAL BACKGROUND
The prosecution's evidence
Rochelle Swanson-Crausman (Crausman) dated Gangadean intermittently during 2005 and 2006. Crausman and Gangadean had verbal disagreements from time to time. Gangadean was also physically abusive to Crausman. On July 4, 2005, Gangadean punched Crausman and broke her collarbone. She was treated at the hospital for the assault, but did not report Gangadean as her assailant. Crausman stopped dating Gangadean. Eventually he apologized and promised never to harm her again. He did not keep that promise. On July 4, 2006, Gangadean punched Crausman while they sat in a car. Crausman ran away and called a cab. She did not report the assault because she was afraid of Gangadean, whom she continued to date. In mid-November 2006, Gangadean smashed eggs over Crausman's head and injured her face; Crausman fled from the apartment and called the police, who escorted her home.
Crausman and Gangadean spent Thanksgiving (November 24, 2006) at the home of Gangadean's close, long-time friend, Nick Colachis. At about 1:00 a.m. on November 25 Crausman accompanied Gangadean back to his apartment; they began to argue.
After arguing with Crausman for about 30 minutes, Gangadean struck her in the face knocking her to the floor. He grabbed Crausman by the throat, choking her and causing her to lose consciousness. Gangadean hit Crausman repeatedly with a closed fist, primarily on the left side of her face and ear, and put his foot on her head. Gangadean told Crausman she "better not make a sound or [he would] kill" her. "Terrified," Crausman took Gangadean's "threats" seriously.
Gangadean continued to beat Crausman for several hours, and ordered her several times to move between rooms and from the floor to the bed or couch. Crausman's pleas for Gangadean to stop only promoted more beatings. Eventually, Gangadean stopped beating Crausman and told her to go to sleep. Crausman could not sleep. Later that morning, Gangadean apologized to Crausman and expressed remorse for his actions. Fearing for her safety, and afraid to excite him, Crausman reassured Gangadean, told him "everything was going to be okay," and sat with him to watch television. Crausman asked Gangadean to take her to the hospital, but he refused. Gangadean left the apartment several times for no more than 20 minutes at a time. He told Crausman he would "definitely kill [her]" if she "tried to get anywhere near the windows or doors to scream out or [tried] to escape." Gangadean forced Crausman to stay inside his apartment for a week and a half. Eventually, Crausman persuaded Gangadean to let her go down the street to her own apartment for some fresh clothes. Once there, Crausman packed a bag and drove to her parents' home in San Diego.
On December 5, 2006, Crausman sought medical treatment from Dr. Dennis Nigro, a plastic surgeon whom she had known since 1998, when she saw him for some elective surgery. Dr. Nigro was an expert in facial reconstruction and treated victims of domestic violence. Crausman told Dr. Nigro she had been beaten by her boyfriend who had held her hostage, and that the boyfriend had also beaten her in the past. Crausman told Dr. Nigro she was afraid the violence would continue.
During his examination of Crausman, Dr. Nigro noted the height of her pupils were not aligned—a symptom called "Enopthalmous." This suggested Crausman may have suffered a facial fracture. Crausman also lacked feeling on the left side of her upper lip, suggesting bleeding and/or nerve damage. A CAT scan of Crausman revealed fractures to her cheekbone and orbital floor. According to Dr. Nigro, the orbital floor injury occurred when a significant amount of force struck below Crausman's eye, forcing the eyeball through the floor of the eye socket. Crausman had multiple fractures on the left side of her cheek and sinus area. The doctor also noted the existence of some older fractures on the right side of Crausman's face.
Dr. Nigro opined that it was "extremely unlikely to the point of almost impossible" that Crausman's recent injuries had been caused by falling down, particularly because Crausman lacked the hand, knee or elbow abrasions that typically accompanied a fall. In addition, the pattern of the fractures suffered by Crausman were inconsistent with a vector force caused by falling. Dr. Nigro testified that Crausman's injuries were consistent with her explanation of how they occurred. Based on his observation of the swelling and bruising on Crausman's body and his training and experience, Dr. Nigro opined that Crausman's injuries were inflicted more than two days but fewer than two weeks before he examined her.
Dr. Nigro also referred Crausman to a neurologist because she had "Anosmia" (an inability to smell) and suffered from dizziness, symptoms consistent with a concussion or a contusion type injuries to the brain. These symptoms persisted for several months. A neurologist confirmed that Crausman had suffered a contusion type brain injury.
Dr. Nigro referred Crausman to a local center for victims of violent crimes/domestic violence. Thomas Collins, a volunteer registered nurse at the domestic violence center interviewed Crausman, documented and photographed her injuries and prepared a "suspicious injury report." Collins documented 17 separate injuries or marks on Crausman.
Crausman told Collins her ex-boyfriend had knocked on her door on Thanksgiving falsely claiming to be an officer with the Los Angeles Police Department (LAPD). When she opened the door, he punched and slapped her in the face, pushed her to the floor, stomped on the left side of her face and tried to strangle her. Crausman refused to identify her assailant. According to Collins, Crausman told him about the Thanksgiving dinner incident; Crausman testified she told Collins about that incident, as well as the prior incident during which her ex-boyfriend falsely claimed to be a member of the LAPD.
Collins observed bruising on the front of Crausman's neck consistent with her report of attempted strangulation. Collins helped Crausman obtain funds for crime victims so she could have surgery to repair the damage to her face. Collins reported the domestic assault incident to the LAPD.
An LAPD detective obtained information from Crausman during several telephonic conversations, and prepared a crime report. He noted Crausman had difficulty recalling the events, so he asked her to send him a written statement. Crausman told the detective that at Thanksgiving, a man claiming to be an LAPD officer came to her door. When she opened the door, the man she identified as Gangadean pushed her to the ground and accused her of being homosexual. He punched her several times and kicked her in the head. Crausman said she lost consciousness, and awoke covered in blood. She recalled that Gangadean would not let her leave his apartment until her facial injuries healed. Crausman said her mother came the next day to help her move. Crausman later sent the detective a written statement. Crausman also told the detective about earlier assaults, one of which involved Gangadean smashing eggs over her head and the other, in July 2005, when he punched her in the face.
Crausman initially spoke to another LAPD officer. She said that, because she had suffered neurological problems from the beatings she did not feel comfortable talking to the officer and had not told him everything that happened. But, when Crausman later spoke with the LAPD detective, she told him what happened with Gangadean. The detective read Crausman the initial police report. She noted numerous errors in the report, and offered to send him an accurate written summary to clarify the details.
Dr. Nigro performed a series of reconstructive surgeries on Crausman after December 2006, all of which were paid for by a state agency. He performed surgeries on the orbital floor, repositioned muscle tissue to repair the anterior wall of Crausman's cheek, and performed surgery to reconstruct her left ear. Crausman had an injury which was over a year old to her ear; that injury had been exacerbated by the recent injuries.Dr. Nigro testified that Crausman's ear was so damaged he was unable to restore its previous appearance without performing extremely invasive surgeries involving grafting rib cartilage to her scalp. Even after the ear surgery, Crausman's ear looked like she was a "wrestler" with "cauliflower ear."
Gangadean claimed Crausman asked his father for money to pay for her plastic surgery; Crausman denied doing so. She testified that Gangadean's father offered to send her to a plastic surgeon, but never intended to pay for any surgery because he believed that was Gangadean's responsibility.
Crausman said the prior ear injury occurred when Gangadean came to her apartment impersonating a police officer. When she opened the door, he knocked her down and stomped on her ear with his foot.
The defense's evidence
Colachis had known Gangadean for about 18 years and was his "very close friend[]." Colachis also knew Crausman and saw her and Gangadean together "quite often." Colachis had seen Crausman intoxicated two or three times before Thanksgiving 2006, and had seen her fall several times while intoxicated. Twice when Colachis saw Crausman fall, she was not hurt badly and just skinned a knee or elbow. Another time, Crausman fell and was dragged by her dog which weighed 35 to 40 pounds. After that fall, Crausman's face had been marked up—her lips had been swollen, her left cheek scratched and there had been dried blood on her left ear.
Crausman came with Gangadean to Colachis's house for a Thanksgiving dinner party on November 24, 2006. As the evening wore on Crausman became increasingly intoxicated. Gangadean drank that evening too. Gangadean and Crausman left Colachis's house at about 2:00 a.m. Crausman had not needed assistance to walk out of Colachis's house.
Gangadean's father, Krishna Gangadean, met Crausman when she was dating his son. Krishna Gangadean spoke with Crausman several times after December 2006. Crausman told Krishna Gangadean his son had beaten her and someone needed to pay her medical expenses. Gangadean's father refused to pay for anything and his son had no money. Crausman sent photographs of her injuries to Gangadean and his father, and told Gangadean's father if he did not pay her $20,000 Gangadean would go to jail. Gangadean's father still refused to pay Crausman any money. Gangadean's father testified that during 2005 Crausman made numerous late night calls to his home during which she had been "incoherent," and he believed drinking was a problem in the relationship between Crausman and Gangadean. He also said Crausman never complained that Gangadean was physically abusive.
DISCUSSION
1. Exclusion of opinion testimony re Crausman's reputation for truthfulness
Gangadean argues the trial court in refusing to permit him to elicit testimony from Colachis regarding his opinion about Crausman's reputation for truthfulness.
At trial, Gangadean sought to elicit testimony from Colachis regarding his opinion of Crausman's truthfulness and her reputation among people he knew for truthfulness. The trial court sustained relevance objections to both inquiries. Gangadean's counsel did not make an offer of proof as to what Colachis would say, nor did he make any effort to persuade the court its ruling was wrong.
Each of the questions at issue ("What's your opinion about her truthfulness?" and "Do you know her reputation . . . for truthfulness?") was couched in language consistent with Evidence Code section 1103.
"Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witness's testimony." (People v. Humiston (1993) 20 Cal.App.4th 460, 479; Evid. Code, § 780.) The opinion of a lay witness concerning the character of another witness for honesty is admissible if the lay witness opinion is based on the personal observation and knowledge of the witness offering it. (Evid. Code, §§ 702, 780, 800, 1103; People v. McAlpin (1991) 53 Cal.3d 1289, 1305-1306.) A witness who has known a person for a reasonable length of time may be qualified to render an opinion if it is based on personal observation and knowledge. (People v. Sergill (1982) 138 Cal.App.3d 34, 39; McAlpin, at pp. 1305-1306.)
Testimony about a person's general reputation in the community must be based on knowledge of what members of the community think about the person, and not on what the particular character witness thinks. (See People v. Cobb (1955) 45 Cal.2d 158, 163-164; People v. Neal (1948) 85 Cal.App.2d 765, 771.) Because "general reputation consists of the estimation in which one is held in the community in which he resides, it can only properly and safely be testified to by a member of the community; it is the opinion of a member of a community as to the estimation in which another who moves in it is held generally by that community. Such member has the means of knowing what that general reputation is and can properly speak of it." (Tingley v. Times Mirror Co. (1907) 151 Cal. 1, 27.)
Colachis has known Gangadean for many years and they are close friends, and testified that he was "familiar" with Crausman, having seen her with Gangadean "quite often." The degree of personal knowledge Colachis may have had regarding Crausman's truthfulness or the source of that knowledge was unknown and undeveloped. No testimony was adduced to permit the court to assess whether Colachis had sufficient knowledge of Crausman's reputation in the community. Colachis did not testify that he and Crausman shared mutual friends or that he had spoken with others who had opinions as to Crausman's truthfulness. "'Reputation is not what a character witness may know about [an individual]. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of [her] either by the witness or others.' [Citation.]" (McAlpin, supra, 53 Cal.3d at p. 1311, italics omitted.)
Nevertheless, assuming reputation evidence was erroneously excluded, on this record it cannot be said that exclusion constituted a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354; People v. Breverman (1998) 19 Cal.4th 142, 173.) Additional testimony by Colachis would not have made a significant difference in the outcome of the trial. The jury heard evidence about (and was shown photographs depicting) Crausman's medical condition, heard Dr. Nigro's expert opinion regarding the nature and extent of her injuries, and witnessed Crausman's impeachment on several points.
The jury learned Crausman suffered multiple facial fractures to her cheek area and orbital floor that caused the pupil in her left eye to drop. Crausman also suffered a loss of feeling in her upper lip, reflective of nerve damage and suffered a contusion-type brain injury. Dr. Nigro, opined that it was "extremely unlikely to the point of almost impossible" Crausman's injuries were caused by falling. Multiple surgeries were required to repair the damage to Crausman's face and head.
Crausman was also impeached with inconsistent statements she made to Dr. Nigro, Collins, and members of the LAPD about the Thanksgiving 2006 incident, that she had made numerous late-night, incoherent calls to Gangadean's father from whom she attempted to extort $20,000, that she had fallen and injured herself several times when intoxicated, and once sustained injuries in some of the same facial areas impacted by the assaults at issue here, after being dragged by her dog, and that she had left angry messages on Gangadean's phone.
Crausman left several angry voice mail messages for Gangadean in 2005 after he sent a woman to threaten her.
There was ample evidence with which to impeach Crausman, even without the reputation evidence. The jury obviously rejected the impeachment evidence and found the physical and medical evidence compelling. Additional impeachment with unspecified testimony from Colachis concerning Crausman's reputation for untruthfulness would likely have made little difference given the substantial evidence of Crausman's injuries. As such, any error was harmless.
2. Right of confrontation
Gangadean contends the trial court erred when it refused to permit him to cross-examine Crausman regarding her professional fight experience and past athletic activities listed on her resume. He argues the evidence was relevant as it would disprove he inflicted great bodily injury on Crausman because the injuries she suffered could have resulted from her involvement in other activities, rather than an assault by him. We disagree.
At trial, Gangadean sought to examine Crausman as to a portion of her resume stating she had fight experience training. He asserted the examination was relevant "to show what [Crausman] was physically capable of . . . ." The court refused to permit the examination, unless Gangadean offered an affirmative defense that he hit Crausman in self-defense.
The court observed: "The only relevance I see is if your defendant takes the stand and asserts an affirmative defense; otherwise, whether this is an alleged movie choreography fighting experience or she's a tae kwon do black belt, it only becomes relevant if he gets on the stand and says he punched her in the face in self-defense. Okay. So that's not coming in."
We agree with the Attorney General that, to the extent Gangadean argues for the first time on appeal that the evidence was relevant to suggest Crausman's injuries were caused by theatrical fighting or "other athletic activities," the argument is forfeited. At trial, Gangadean sought only to cross-examine Crausman regarding her fight experience "to show what she was physically capable of—suggesting either that he was defending himself or that Crausman could have defended herself against an attacker. Gangadean did not take issue with the trial court's understanding that the evidence was intended to suggest an affirmative defense. An appellate argument that seeks to change the factual interpretation of the evidence is forfeited for failing to argue the theory of admissibility below. (See People v. Geier (2007) 41 Cal.4th 555, 608-609 [objections must be specific to be preserved on appeal].)
In addition, even if the theory were preserved for appeal, the trial court would not have abused its discretion by excluding the evidence as speculative. There was no suggestion, let alone actual evidence, that Crausman's injuries were the result of any theatrical fighting or sports activity. The Sixth Amendment provides a defendant the right to confront witnesses against him and to cross-examine his accusers. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [106 S.Ct. 1431, 89 L.Ed.2d 674].) But, "trial judges [have] wide latitude [under] the Confrontation Clause . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues . . ., or interrogation that is . . . only marginally relevant." (Id. at p. 679.) "'[T]he Confrontation Clause guarantees an opportunity for effective cross examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" (Ibid.) The preferred evidence must bear more than a "'slight-relevancy' to the issues presented." (People v. Northrop (1982) 132 Cal.App.3d 1027, 1042, disapproved on another ground by People v. Smith (1984) 35 Cal.3d 798, 808.)
The court's limitation on cross-examination did not deny Gangadean a fair opportunity to present his defense. Gangadean cross-examined Crausman extensively as to her prior inconsistent statements about the assault, and her demand for money from his father. He argued, based on some medical evidence, that Crausman had preexisting injuries and sought additional plastic surgery. Gangadean was entitled to elicit evidence favorable to his defense, but not to engage in a fishing expedition based on a speculative showing such evidence might exist. (See People v. Gallego (1990) 52 Cal.3d 115, 197 [no discretion is abused by disallowing fishing expedition in attempt to discover good cause if there is no independent basis to believe good cause exists].) There is no abuse of discretion if the line of inquiry foreclosed is not likely to produce evidence relevant to the matters in issue. (See People v. Dyer (1998) 45 Cal.3d 26, 50.) Thus, the trial court properly excluded this line of inquiry because Gangadean failed to make a colorable showing that such cross-examination was likely to produce evidence from which the jury could find that Crausman's injuries were connected to the activities listed on her resume. Without that additional evidence, the proposed line of questioning amounted to nothing more than sheer speculation, and did not impinge on Gangadean's right of confrontation. (See People v. Mendoza (2000) 24 Cal.4th 130, 174 [rejecting argument based on speculation].)
3. The conviction assessments must be stricken
Gangadean argues, and the Attorney General agrees, that Government Code section 70373, under which the trial court imposed a $30 fee for each of his convictions in counts 1 and 2, does not apply to him because that statute was not in effect at the time of his convictions in November 2008. They are correct and the judgment must be modified to strike those conviction fees. (See People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 [when, as here, there is a lack of "'civil disability,'" Gov. Code, § 70373 applies only to convictions occurring after its effective date].)
DISPOSITION
The matter is remanded with instructions to modify the judgment by striking the $30 criminal conviction fees assessed against counts 1 and 2 under Government Code section 70373. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
CHANEY, J.