Opinion
E063730
12-11-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. HAYES, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1205953) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn and Charles J. Koosed, Judges. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Gunn denied defendant's motion to dismiss before the first trial and defendant's motion to dismiss before the second trial. (See part II, post.) Judge Koosed presided over the second trial; thus, he denied defendant's motion to dismiss after the second trial and defendant's motion to introduce third-party culpability evidence (see part II, post), and he also made all of the other challenged rulings. (See parts III-V, post.)
In 1972, the dead body of a young woman was found in the desert. In 2012, defendant Michael Jerome Hayes was charged with her murder.
Defendant filed a motion to dismiss, claiming prejudice from the 40-year lapse of time. The trial court granted the motion; however, in a previous appeal, we reversed. On remand, defendant moved to dismiss again, several times, but without success.
Defendant's first trial ended in a hung jury. His second trial ended in a conviction for first degree murder. He was sentenced to life in prison with the possibility of parole.
In this appeal, defendant raises several contentions relating to the denial of his motions to dismiss. He raises additional contentions relating to the evidence and the jury instructions. We find no error; hence, we will affirm.
I
FACTUAL BACKGROUND
The following facts were shown at defendant's second trial.
A. The Discovery of the Body of Mary Costa.
On March 12, 1972, Sheriff's Deputy David DuPree was called out to the area of Cottonwood Drive and Avenue 20, near Desert Hot Springs. At that time, the area was "open desert."
On his arrival, he saw a dead body lying by the side of the road. A row of tamarisk trees was visible in the background.
The deceased was female and "stocky," with long dark hair. She was wearing a dress with a distinctive pattern of red and yellow flowers and ducks on a blue background. She did not have any shoes on, but one white sandal was lying nearby. She was wearing a Marine Corps ring.
The body was face-down. Its condition indicated that it had been in the desert at least two weeks before it was found. Due to animal activity, parts of the upper body and pieces of clothing were missing.
A patch of body fluids a few feet away indicated that the body had been moved. Near the patch of fluids, there was a basketball-sized rock. It had a "discoloration" that appeared to be blood. The police took the rock into evidence. By the time of trial, it could not be located, but a photograph of it was in evidence.
Defendant claims the rock "was last seen holding open a door at the . . . police station." One officer testified that he saw it in the evidence room, behind a door. When asked if it was being used as a door stop, he replied, "It was on the floor." This falls short of showing that it was holding the door open.
The body could be identified, by means of a distinctive tattoo, as that of Mary Elaine Costa. Costa had worked as a prostitute. Her nickname was "Cha Cha." She had been living on Palm Canyon Drive in Palm Springs, with her boyfriend, Max (or Mac) Judulang. Deputy DuPree conducted an investigation, contacting more than 50 people, but after about a year, the case went cold.
B. Testimony of Diana Clark.
Around the time the body was discovered in 1972, Diana Clark was defendant's girlfriend. They lived together at a trailer park in Indio. Throughout the relationship, defendant was "[p]hysically and emotionally abusive." Defendant talked Clark into working as a prostitute, although she stopped when she got pregnant.
Clark testified to an incident that occurred when she was approximately five months pregnant. Her child was born in mid-July 1972, so this would have been around mid-February 1972.
Between 2:00 or 3:00 a.m., Clark was in bed, dozing, when defendant came home. He was "in a very frantic state," eyes wide, and sweating. He was "covered with sand." He said, "You have to get up. I have to take you and show you something." When Clark declined, he grabbed her arm and pulled her out of bed.
Defendant drove them both out into the desert. Clark kept asking him what was going on. Finally, defendant said, "I've killed a woman."
In an undeveloped area, he pulled over and stopped. He pulled Clark out of the car and said, "Come here. I want to show you this." Clark remembered "a big long row of tall trees." In the light from the headlights, she could see the body of a short, thin woman with blond hair, wearing a multicolored outfit.
The body was lying face-down. Near the head, there was a softball-size rock with "some discoloration on it." Defendant said, "Help me move her further away from the road." Clark replied, "I'm not touching her." She went back to the car, where she vomited. A few minutes later, defendant came back to the car.
When the police found Costa's body, they did not note any vomit at the scene.
On the way home, Clark asked defendant "why he did this." He said, "[B]ecause we needed the money." He added, "I only got $7 out of it." He said he picked up the victim off the street in Palm Springs because she was a prostitute, so he thought she would have money. When he tried to take her money, she fought back; that was why he ended up killing her. He hit her in the head with a rock.
Clark testified, "He told me if I ever told anybody about it that he would kill me and he would kill my unborn child." Because of this threat, she did not tell anyone about the murder. She checked the newspapers for several days, looking for news about the body. She remembered seeing one article that said a young woman's body had been found.
Defendant "[o]ften" threatened Clark by saying, "[J]ust remember the woman in the desert."
In December 1972, defendant was arrested for a theft that he had committed with Clark. He insisted that Clark marry him, because he had been told it would help him with his case. Once again, he told her to "remember what he had done to the woman in the desert." She therefore married him. In 1974, however, they separated. The last time she saw him was in 1975. Sometime after 1976, she divorced him.
C. 1976: Clark Comes Forward.
As of 1976, Clark was living with a boyfriend whose father was a government attorney. She told both of them about the body in the desert. She then told some police officers; one of them was Riverside County Sheriff's Detective Ronald Dye.
Clark said she was about six months pregnant when defendant showed her the body. She also said it was sometime after the National Date Festival, in February, but before she moved out of the trailer park, in April or May. She said the victim was wearing a pair of dark shoes. She said that defendant told her that, at the victim's request, he stopped somewhere on Palm Canyon Drive, and the victim went inside briefly.
Detective Dye showed Clark a photo of some fabric from the body, but she did not recognize it. According to Clark (Detective Dye did not recall this), he also showed her a softball-size rock.
Clark described "[t]opographical points" along the road that she had taken to the body. She mentioned seeing tamarisk trees. Detective Dye showed her aerial photos, but she said they "weren't helping her very much." She agreed to try to retrace the route from the trailer park to the body.
Detective Dye knew where the body had been found, but he let Clark guide him. They made several wrong turns and had to backtrack. At one point, Clark was not sure which way to go, so they started just "crisscrossing roads in the area." At Cottonwood and Avenue 20, Clark pointed to the tamarisk trees and said, "[T]hose are the trees I was talking about." She said to stop the car, adding that that was where she had seen the body.
Back in 1972, local newspapers had run at least 11 articles about the homicide. Two of them were accompanied by photos of the scene; one photo included the body, and another photo included the rock. One article said that the body had been found on Cottonwood.
D. Reopened Investigation.
In 2010, the "cold case team" at the Riverside County Sheriff's Department began reexamining the case.
In 2012, the case was assigned to District Attorney's Investigator Christine Emmens. Defendant had married and divorced two other women, after Clark; Emmens managed to locate them.
The first ex-wife, Ann Bahm, had married defendant in the early 1980s, after living with him for a year and a half. On occasion, he beat her and choked her hard enough to leave fingerprints on her neck.
The night after the wedding, defendant ordered Bahm to "be pimped out by him." He told her that she had to obey because he was her husband. When she refused, he threatened to kill her. He added that "it would not be the first time" because "he had murdered a girl in Riverside, California." He said "he would never be caught because he made it look like a prostitut[e and] John situation gone bad. And then he dumped her body in the desert."
In her statements to Investigator Emmens, Bahm had not mentioned either Riverside or a "John and prostitute scenario."
A month and a half later, Bahm broke up with defendant; eventually they divorced. At the time of trial, however, she was still afraid of him.
The second ex-wife, Denise Minissale, had been married to defendant from 1992 to 1994. Once, during a conversation on the general topic of how he retaliated against people who mistreated him, he "mentioned that he went out in the desert and he said, 'Let's put it this way. Two of us went out and only one came back.'"
II
DEFENDANT'S MOTIONS TO DISMISS
Defendant contends that the trial court erred by denying his motions to dismiss, which were based on the 40-year delay before charges were filed, because he demonstrated substantial prejudice and the prosecution failed to demonstrate sufficient justification. As subsidiary arguments, he also contends that the trial court erred by ruling that our previous opinion was dispositive of the motions to dismiss; and that, if he was not entitled to dismissal, he was at least entitled to introduce otherwise inadmissible evidence of third-party culpability as an alternative remedy.
A. Additional Procedural Background.
In January 2012, the original complaint charging defendant with murder was filed. He filed a motion to dismiss based on precharging delay. While the motion was pending, the prosecution dismissed the case.
In August 2012, a new complaint was filed. Defendant immediately filed a new motion to dismiss. After holding an evidentiary hearing, the trial court (per retired Judge Staley, sitting by assignment) granted the motion.
The People appealed. In 2014, we reversed the dismissal and remanded for further proceedings. (People v. Hayes (Apr. 3, 2014, E057794) 2014 Cal. App. Unpub. LEXIS 2296 [nonpub. opn.].)
With respect to some 13 categories of assertedly missing evidence and witnesses, which the trial court had found were prejudicial, we held that either (1) they were not, in fact, missing, (2) there was insufficient evidence that they would have helped defendant, or (3) they were cumulative to other evidence. (People v. Hayes, supra, at pp. *17-*35.)
With respect to one category, however — evidence of third-party culpability — we held that the trial court could reasonably find prejudice, as follows:
"Defendant . . . argues . . . that he is prejudiced by his inability to conduct a 'meaningful investigation of the multitude of third party suspects . . . .'
"The 1972 investigation . . . did turn up a number of potential suspects:
"1. Costa 'had been involved in a buy program with narcotics dealers and given information against people[.]'
"2. Costa had sustained 'a couple [of] scratches' in a fight with somebody.
"3. On the night before she died, Costa was in an argument with a barmaid named Syd.
"4. Also on the night before she died, Costa was in a 'conversation' (or a 'confront[ation]') with two Filipino men at a Denny's.
"5. Judulang and Guillermo were Costa's boyfriends, and thus, to some extent, suspects a priori. The men at the Denny's could well have been Judulang and/or Guillermo, who were both Filipino. The police searched Judulang's apartment. . . . No evidence incriminating Judulang was found.
"6. An inmate claimed that other inmates admitted beating up one 'Mary Cota' and dumping her in the desert. However, she was deemed unreliable because she was a 'jailhouse snitch' and because the description of the beating victim did not match Costa.
"7. A witness reported hearing that a girl had died from an overdose on February 19 and that her body had been dumped in the desert. However, Costa had been seen alive as late as February 27, and tests of her body for narcotics were negative.
"To summarize: At the time, the police investigated each of these leads, but they were unable to obtain sufficient evidence to justify further investigation, much less prosecution. There is no reason to think that the investigation was cursory or inadequate. '[I]t is well settled that "'"evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." [Citation.] . . .'" [Citation.]' [Citation.] The evidence gathered in 1972 fell short of this standard. Nevertheless, if defendant had been charged in 1976, competent defense counsel would have wanted to do a further investigation in the hope of obtaining additional evidence that would be sufficient to raise a reasonable doubt about whether defendant was the perpetrator.
"Guillermo died in 1973 — before Clark came forward in 1976, and thus before any supposed delay in prosecution. However, the subsequent deaths of Stewart (the witness who saw the two Filipino men at Denny's) and of Judulang did prevent the defense from investigating other possible suspects. The passage of time also made it effectively impossible to investigate the possibility that Costa was killed by someone she had bought drugs from or informed against. We therefore conclude that defendant was prejudiced in this respect. (See People v. Boysen (2007) 165 Cal.App.4th 761, 779-780 [upholding trial court's finding that defendant was prejudiced by inability to conduct further investigation or [sic] evidence of third party culpability].)
"However, this was the only respect in which defendant was prejudiced, and given the implausibility of most of the supposed suspects, the prejudice was attenuated, at best." (People v. Hayes, supra, at pp. *35-*38.)
We then discussed balancing this prejudice against the prosecution's justification for the delay. We found sufficient "justification for the failure to prosecute in 1976, i.e., a deputy district attorney had concluded there was insufficient evidence to file charges." (People v. Hayes, supra, at p. *40.) We likewise found sufficient justification for filing charges in 2012: "[W]hat shifted the balance in favor of prosecution was that two of defendant's ex-wives both independently stated that defendant had admitted killing a girl in the desert." (Id. at p. *41.) "The record shows that '[t]he delay was investigative delay, nothing else.' [Citation.] We therefore conclude that it was more than sufficient to justify the minimal prejudice that defendant was able to show." (Id. at pp. *41-*42.)
Our citation to Boysen, although brief, was a pivotal part of our analysis. It must be remembered that defendant was arguing that he had been prejudiced by the loss of some 14 categories of evidence, of which third-party culpability evidence was only one. In hindsight, however, it might have been helpful if we had discussed Boysen in more detail.
In Boysen, the trial court found that a 24-year-long preaccusation delay was prejudicial in multiple respects, including with respect to third-party culpability evidence. The appellate court then held that the finding of prejudice was supported by substantial evidence. (People v. Boysen, supra, 165 Cal.App.4th at pp. 778-780.) It noted that some of the evidence of third-party culpability was "credible and might have been meaningfully investigated by the defense." (Id. at p. 779.) For example, a suspect named Hobbs knew the victims and disliked them; he owned a handgun of the same caliber used in the killings, and he had a history of violence. However, Hobbs had died. (Id. at pp. 766-767, 769-770, 779-780.) The appellate court concluded, "The inability because of the passage of time to explore Hobbs's possible involvement in the murder[s] . . . was prejudicial to the defense." (Id. at p. 780.)
Boysen is the leading case on whether the loss of the ability to investigate third-party culpability evidence due to the passage of time is prejudicial. It could be argued, however, that it was wrongly decided on that point. Prejudice must be proven, not presumed; whether a defense investigation that never took place might have produced admissible exculpatory evidence seems inherently speculative. Nevertheless, we bowed to Boysen's authority and held that the trial court's finding of prejudice was supported by substantial evidence.
Significantly, however: (1) we did not hold that the trial court was required to find prejudice; and (2) we further held that the prejudice was "minimal" and "attenuated" — i.e., that it was not entitled to much weight in the balancing process.
B. Additional Factual Background.
The following evidence was introduced in connection with defendant's first motion to dismiss on remand. (See part II.C, post.)
1. Jailhouse informants' evidence.
On March 26, 1972, a police officer reported that a jail inmate named Barbara Schwartz had information about Costa being killed and "dumped in the desert area." As a result, the police interviewed Schwartz.
Schwartz said she had heard from a friend named Betty Milton that a Mexican girl nicknamed "Pepper" "possibly was intenti[o]nally overdosed[] by Milton's friends" in Lake Elsinore. (Capitalization altered.)
Schwartz asked Juanita Aguirre — a fellow inmate who was also a friend of Milton — about Pepper. Aguirre told her that Pepper was a prostitute. Her real first name was Mary, but she was using the name Elaine. Her real last name was something like Cota, though it was not Cota. She was 21 or 22 years old, with dark hair and a pretty face. Since February 28 or March 1, when one Joe Sanchez brought her from Riverside, she had been "hust[]ling" in bars all over Lake Elsinore.
According to a jail deputy, Schwartz was an established jailhouse informant, and "most" of her information had "turned out to be truthful . . . ."
Schwartz had mentioned that an inmate named Bonnie Duhe "could possibly add more[ ]information." Thus, later that same day, the police also interviewed Duhe. Duhe said she had learned from Milton that both Pepper and one "Larry" had been beaten up, killed, and then dumped along a road to Indio as payback for snitching. Duhe added that Pepper's real name was Mary Elaine something.
On March 27, 1972, the police interviewed Duhe again. This time, she said she heard Aguirre tell Schwartz that her husband got into an argument with Pepper, beat her very badly, and "dumped her body on the side of the road."
On April 3, 1972, the police interviewed Schwartz again. She said Aguirre told her that she once knocked out "Cha Cha" after Cha Cha sat on her husband's lap. Once Cha Cha came to, Aguirre's husband drove her and one "Frank" home. Aguirre's husband was gone for two days; when he got back, he told Aguirre that "he and Frank had finished what [she] started." (Capitalization altered.)
Defendant says that, according to Aguirre, Cha Cha was still unconscious when Aguirre's husband left with her. That is incorrect.
The police attempted to interview Aguirre, but she was not cooperative. They did interview Sanchez, who denied having been to the Palm Springs or Indio area. Duhe died in 2001. As of 2015, Schwartz could not be located.
2. Judulang evidence.
On March 18, 1972, six days after Costa's body was found, the police searched Judulang's apartment. Another Filipino man was living there with him. Judulang told them that Costa had moved out in early February. He said that she had another boyfriend named Tony Guillermo.
The police found photos of Judulang with Costa and several letters addressed to Costa. They also found one or two women's dresses, a pair of women's shoes, and a pair of women's boots, but Judulang explained that "some other girls that lived there . . . left clothes behind when they moved."
At first, Judulang denied knowing anything about the Marine Corps ring found on Costa's body. After the police found a photo of him wearing it, however, he claimed to have borrowed it for purposes of the photo. Finally, he admitted that he gave it to Costa. He explained that he had lied "because he was frightened."
Judulang agreed to take a polygraph examination. The request appeared to make him very nervous. However, he passed the examination.
Judulang died before this case was filed.
3. Douglas evidence.
In 1972, the police interviewed Craig Douglas. He worked at a bar about a block away from Judulang's apartment. He knew Costa as Cha Cha. He said he had heard that there was a "contract" out for her. About a week before her body was found, she told him that "she had just been beaten up by her old man at his house . . . ."
The last time he saw Costa was on February 27, 1972, at a Denny's. At one point, when Costa got up to go to the restroom, a Filipino man came in, looked at her, turned around, left, and got into a car with four or five other Filipino men.
As of November 2014, Douglas had died.
4. Dugenia evidence.
In 1972, the police interviewed Arturo Dugenia at a farm labor camp. He knew Costa as Cha Cha. He met her when she came to the camp. He said that, in February or March, he had dropped Costa off at Judulang's house. "Several days" later, Judulang told him that she had "split." Dugenia still had some of her belongings, including clothing, personal papers, and a purse. Dugenia died in December 2013.
5. Mock evidence.
In July 2012, a defense investigator interviewed Deborah Mock. Mock knew Costa as "Cha Cha." One day, a couple of detectives told Mock that Costa had been "found out in the desert dead . . . ."
About two weeks before that, Mock had answered a knock on her door. When she opened it, she saw Costa, accompanied by four male Filipinos. Costa said she was moving to Indio and just wanted to say goodbye. Mock went to hug Costa, but one of the Filipino men stopped her. Costa said she would phone Mock. Mock thought that was strange because, as Costa knew, Mock did not have a phone. Based on this incident, Mock believed Costa was killed by the "Philippine Mafia."
In December 2012, Mock died.
C. The Trial Court's Rulings.
1. First motion to dismiss before Judge Gunn.
On remand, defendant filed a new motion to dismiss, once again based on precharging delay. The trial court (per Judge Gunn) held an evidentiary hearing on the motion. We have already summarized the evidence presented in part II.B, ante.
At the end of the hearing, the trial court denied the motion. After discussing our opinion, it ruled: "[I]t seems to me that they are saying any investigative delay, and they characterize this as investigative delay, would have to be met by . . . substantial prejudice to the defense. They didn't find that, and I don't find enough in the new record to quarrel with that decision."
2. Second motion to dismiss before Judge Gunn.
After a trial, the jury was unable to reach a verdict, so the trial court declared a mistrial.
Defendant then renewed his motion to dismiss. He did not introduce any new evidence, but he did ask the trial court, "after having heard the evidence at trial, . . . to weigh the problematic evidence of guilt against the actual prejudice suffered." After hearing argument, the trial court (again per Judge Gunn) denied the motion. It stated: "[T]he due process issues . . . have been litigated, and I can consider them. I also recognize that I do have the discretion. I choose not to exercise that discretion at this time."
3. Motion to admit third-party culpability evidence before Judge Koosed.
Before the second trial, the People filed a motion in limine to exclude third-party culpability evidence. (The evidence specified in the motion was basically the same as the evidence at the hearing on the motion to dismiss before Judge Gunn, as summarized in part II.B, ante.)
The trial court (per Judge Koosed) noted that it had reviewed our opinion. It commented, "I think I still have to make an independent judgment. I can't just say [the] Court of Appeal says there isn't enough evidence, so there isn't enough evidence." Defense counsel conceded that there was a "problem" with the admissibility of the evidence but argued that it had to be admitted to protect defendant's "rights to due process and a fair trial." The trial court then excluded the evidence. It commented, "I'm not going to throw the Evidence Code out the window [just] because there's no other plausible way to get it in."
4. Motion to dismiss before Judge Koosed.
During the second trial, after both sides rested, defendant once again renewed his motion to dismiss.
The trial court (again per Judge Koosed) denied the motion. It stated: "Whether I agree or disagree with the decision the Court of Appeal came down with is neither here nor there. They've spoken on the issue. I don't think anything new has changed even since they came down with their decision that would cause me to change my ruling.
"I think I said . . . I can't just rely on the Court of Appeal's decision, tell me what you've got. And even if there were new individuals who you want to point the finger at, I'll hear them all out. . . . I just . . . don't see anything in here causing me to change my mind, so the motion will continue to be denied."
D. General Legal Principles.
Precharging delay — delay between the time of a crime and the time a defendant is arrested or charged — can never violate the right to a speedy trial, as such. (People v. Cordova (2015) 62 Cal.4th 104, 119.) However, it can potentially violate the defendant's due process right to a fair trial. (Ibid.)
"A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. [Citation.] Prejudice to a defendant from precharging delay is not presumed. [Citations.] . . . If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.]" (People v. Abel (2012) 53 Cal.4th 891, 908-909, fn. omitted.)
"'We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation].' [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 922.) "'Under the abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (Id. at p. 924.)
E. The Trial Court's Reliance on Our Previous Opinion.
Preliminarily, defendant contends that the trial court erroneously considered itself bound by our opinion in the first appeal.
"Under the law of the case doctrine, when an appellate court '"states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ."' [Citation.] Absent an applicable exception, the doctrine ' requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 246.)
"[T]he law of the case doctrine is subject to an important limitation: it 'applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact,' and 'does not embrace the facts themselves . . . .' [Citation.] In other words, although an appellate court's legal determination constitutes the law of the case, 'upon a retrial . . . that law must be applied by the trial court to the evidence presented upon the second trial.' [Citation.] Thus, during subsequent proceedings in the same case, an appellate court's binding legal determination 'controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]' [Citation.] Where, on remand, 'there is a substantial difference in the evidence to which the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.' [Citation.]" (People v. Barragan, supra, 32 Cal.4th at pp. 246-247.)
Defendant argues that he introduced new evidence, and therefore the trial court erred by concluding that nothing had changed. His evidence would call for a different outcome, however, only if it was "substantially" different (People v. Barragan, supra, 32 Cal.4th at p. 246) — i.e., different in a relevant and material respect. Thus, the trial court had to consider whether, under the principles stated in our previous opinion, defendant's new evidence showed either prejudice that was not shown before or an absence of prosecutorial justification that was not shown before. Defendant has not established that the trial court misunderstood or misapplied the law.
By the very act of holding an evidentiary hearing, Judge Gunn demonstrated that he did not consider our opinion dispositive. He explained, "To the extent that [defense counsel] believes there are certain matters that were outside the Court of Appeal record, certain matters that weren't considered, I think . . . it is better for both sides to have this hearing." However, he also recognized that he was required to follow the legal reasoning in our previous opinion; he could "quarrel" with our decision if, and only if, he "f[ou]nd enough in the new record . . . ." He concluded that he did not. We can and will review that decision on the merits. However, he correctly (if telegraphically) summarized the principles of law of the case.
Likewise, Judge Koosed recognized that he had to exercise his "independent judgment." He also stated, "I can't just rely on the Court of Appeal's decision, tell me what you've got. And even if there were new individuals who you want to point the finger at, I'll hear them all out." Ultimately, he concluded: "I don't think anything new has changed even since they came down with their decision that would cause me to change my ruling." Once again, we can and will review that ruling, but his comments, taken as a whole, were consistent with the doctrine of the law of the case.
F. Prejudice from the Delay.
We turn, then, to whether defendant showed prejudice.
All of defendant's evidence was basically evidence of third-party culpability. "'To be admissible, [such] third-party [culpability] evidence . . . need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 860.)
1. Jailhouse informants' evidence.
Our previous opinion mentioned the jailhouse informants' evidence, albeit briefly; we lumped it in with the other third-party culpability evidence, which we concluded was prejudicial, although only minimally so. (People v. Hayes, supra, at p. *36.) On remand, defendant developed this evidence in vastly more detail. Nevertheless, the trial court could reasonably find that the loss of this evidence was not prejudicial at all.
The statements of the informants (Schwartz and Duhe) were based on inadmissible hearsay (from Aguirre and Milton). Defendant argues that Aguirre's statements would have been admissible as declarations against penal interest. (Evid. Code, § 1230.) However, they were to the effect that her husband killed Costa; she did not implicate herself in the killing, as either a perpetrator or an aider and abettor. Moreover, her statements that her husband killed Costa were based on her husband's own statements; the latter were not only hearsay, but most likely inadmissible under the confidential spousal communication privilege. (Evid. Code, §§ 916, 980.)
In addition, the informants did not describe Costa accurately and did not accurately describe how she died. They gave contradictory statements. As we noted in our previous opinion, the police investigated the informants' statements, but they were unable to obtain any additional evidence. Aguirre, one of the sources of their information, did not cooperate. The notion that, if the defense had been able to contact Schwartz, Duhe, Milton, or Aguirre, it would have been able to develop admissible evidence of third-party culpability was speculative.
2. Judulang evidence.
The evidence showed that Judulang lied about giving Costa the Marine Corps ring. Moreover, in defendant's view, it suggested that Judulang may have lied about whether Costa was still living with him when she disappeared. Finally, it showed that Judulang was nervous about taking a polygraph. None of this linked Judulang to the actual perpetration of the crime. (See People v. Lucas (2014) 60 Cal.4th 153, 280-281, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
We accept this claim for purposes of argument; however, we do not agree.
Defendant states, "Judulang claimed Costa had moved out in December 1971, approximately three months earlier." He adds that this "is inconsistent with Costa leaving her clothing, boots and shoes at Judulang's house."
Actually, Judulang told police that Costa moved in in December 1971 and moved out "just prior to the National Date Festival" — i.e., in the first half of February, two or three weeks before she died. Thus, his statement to the police was consistent with his statement to Dugenia that Costa had "split." It was also consistent with Costa's own statement to Mock that she was moving to Indio.
In any event, the clothing did not show she was still living there. It consisted of one or two dresses and two pairs of footwear; this was hardly a complete wardrobe. There is no indication that the police found any underwear, cosmetics, or other personal items. Costa similarly left some of her clothing, a purse, and paperwork with Dugenia.
Defendant claims that he was prejudiced because Judulang died before this case was filed. This assumes that, if only the defense could have interviewed Judulang, he would have provided exculpatory information. This was speculative, not least because it would have required Judulang to incriminate himself.
Defendant claims that the very fact that the police searched Judulang's apartment pursuant to a warrant means that they "had . . . developed probable cause to believe Judulang was a suspect." Not so. It simply means they had developed a fair probability that the apartment contained evidence of a crime. (People v. Richardson (2008) 43 Cal.4th 959, 989.) They believed that Costa was still living in the apartment when she died, so it was a logical place to look for evidence, regardless of whether Judulang was also living there.
3. Douglas evidence.
Douglas could have testified that, the last time he saw Costa, at a Denny's, a Filipino man came in, looked at her, then left with other Filipino men. This was not relevant at all.
This conclusion may seem contrary to our previous opinion. There, we discussed the statement that one Steve Stewart gave to police. Like Douglas, he said he was at a Denny's with Costa shortly before she died, and he saw two Filipino men talking to her. (People v. Hayes, supra, at p. *5.) Later, Stewart died. (Id. at p. *12.) We lumped this in with the other third-party culpability evidence, the loss of which, we held, the trial court could find to be prejudicial. (Id. at pp. *37-*38.) However, this does not mean the loss of the Stewart evidence, by itself, was prejudicial. It was not.
Douglas could also have testified that Costa told him that her "old man" (presumably Judulang) had beaten her up. However, this was inadmissible hearsay. Moreover, it seems unlikely that Judulang, even if he were alive, would confirm it, especially as he could claim the privilege against self-incrimination. Even aside from the hearsay problem, this would be inadmissible propensity evidence. (Evid. Code, § 1101, subd. (a); People v. Elliott (2012) 53 Cal.4th 535, 580-581.) It would not be admissible under the exception set forth in Evidence Code section 1109, because Judulang was not the defendant. (Cf. People v. Pescador (2004) 119 Cal.App.4th 252, 258-262 [jury was properly instructed to consider defendant's prior acts of domestic violence as propensity evidence].)
Finally, Douglas could have testified that he had heard that there was a "contract" out for Costa. Again, this was inadmissible hearsay. The possibility that the defense could have found nonhearsay evidence of such a "contract" was purely speculative; hence, defendant could not show prejudice.
4. Dugenia evidence.
All Dugenia could say was that in February or March 1972, several days after he last saw Costa, Judulang told him that she had "split." However, until her body was found, it would have appeared that she had, in fact, split. Thus, this was not even particularly relevant, much less exculpatory.
5. Mock evidence.
Mock was still alive when this case was filed; a defense investigator interviewed her. It would be purely speculative to suppose that, if she had been interviewed earlier, she would have been able to provide any more information.
Mock did die before trial; thus, the defense was not able to call her to testify. However, her tale of seeing Costa with four male Filipinos, while intriguing, would not have been admissible as third-party culpability evidence. Her belief that Costa was killed by the "Philippine Mafia" was an improper and inadmissible lay opinion. (Evid. Code, § 800.) Her death therefore did not prejudice the defense in any way.
G. Justification for the Delay.
In part II.F, ante, we held that the trial court could properly find that defendant did not show prejudice. In the absence of prejudice, there was no need to show that the delay was justified. (People v. Jones, supra, 57 Cal.4th at p. 924; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506-507.)
Alternatively, however, even assuming some showing of justification was necessary, we conclude that there was a sufficient showing.
In the previous appeal, we held that the prosecution showed justification for the failure to prosecute in 1976 — namely that a deputy district attorney concluded that there was insufficient evidence. (People v. Hayes, supra, at pp. *40-*41.) Delay is justified when the prosecution is not "satisfied [it] will be able to establish the suspect's guilt beyond a reasonable doubt." (United States v. Lovasco (1977) 431 U.S. 783, 791.)
We also held that the prosecution showed that "what shifted the balance in favor of prosecution was that two of defendant's ex-wives both independently stated that defendant had admitted killing a girl in the desert. This evidence did not exist in 1976 . . . ." (People v. Hayes, supra, at p. *41.) On remand, Investigator Emmens testified that she did not interview defendant's ex-wives until September 2012 and October 2012, respectively. In opposition to defendant's original motion to dismiss (the motion that was at issue in the first appeal), she had submitted a declaration stating that she had interviewed one of the ex-wives in 2011, but "[t]hat was a typo."
Defendant therefore argues that the prosecution failed to show justification for the delay because it failed to show why it filed this case in January 2012, which was before his ex-wives were interviewed in September and October 2012. But this argument is upside-down and backwards. Basically, it is an argument that the prosecution filed the case too soon, before it was really ripe. As we held in the previous appeal, the interviews with the ex-wives were sufficient to tip the balance in favor of prosecution. Without them, it was defendant's word against Clark's, and she could be disregarded as a disgruntled ex-wife who got her facts from the newspaper articles. With them, however, Clark was corroborated by two independent witnesses, using words out of defendant's own mouth. But even assuming the prosecution jumped the gun, by filing the case before it had yet developed this evidence, we cannot see how this violated defendant's right against prejudicial delay.
As the People state, "[T]he record shows that in 1976, the People declined to prosecute appellant and that in 2012 a prosecutor disagreed with that assessment and believed there was sufficient evidence to bring charges." Defendant concurs; as he puts it, "The delay in this case was attributed to no more than a different . . . prosecutor . . . taking a different view of the same evidence." The California Supreme Court, however, has instructed us that: "A court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. 'The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment . . . . Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt . . . ." (People v. Nelson (2008) 43 Cal.4th 1242, 1256.) In any event, even if the second prosecutor's opinion was not a sufficient justification, the decision to file charges was promptly validated by the interviews with defendant's ex-wives.
H. Admission of Otherwise Inadmissible Evidence as an Alternative Remedy.
Defendant also contends that, even assuming he was not entitled to dismissal, he was entitled to introduce otherwise inadmissible evidence of third-party culpability as an alternative remedy for the precharging delay.
"If the trial court concludes [a] delay denied the defendant due process or his constitutional speedy trial rights, the remedy is generally dismissal of the charge. [Citations.] 'A trial court has discretion[, however,] to fashion a remedy [other than dismissal] when the prosecutor's conduct has resulted in [an identifiable] loss of evidence favorable to the defense. [Citations.]' [Citation.]" (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.) Such alternative remedies may include a jury instruction that a fact is true (People v. Conrad (2006) 145 Cal.App.4th 1175, 1186) or an order suppressing prosecution evidence (People v. Price (1985) 165 Cal.App.3d 536, 545).
For the reasons stated in part II.E and F, ante, there was no due process violation. It follows that defendant was not entitled to an alternative remedy for such a violation.
In any event, we have not found any case holding that trial court has the authority to allow the introduction of otherwise inadmissible evidence as a remedy for a speedy trial violation. Certainly defendant has not cited one. The trial court cannot just ignore the Evidence Code. We recognize that a state rule of evidence must give way when it conflicts with a provision of the federal constitution, such as the right to present defense witnesses (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303) or the right to testify in one's own defense (Rock v. Arkansas (1987) 483 U.S. 44, 53-56). However, there is no need to sacrifice the hearsay rule on the altar of due process when a defendant already has an adequate remedy — namely, dismissal.
Indeed, ordinarily, only the People can argue, and then only in an appeal from a dismissal, that the trial court erred by failing to use an alternative remedy (see, e.g., People v. Conrad, supra, 145 Cal.App.4th at p. 1184) — i.e., that the trial court "us[ed] a meat ax when a scalpel will do." (People v. Price, supra, 165 Cal.App.3d at p. 545.) If the trial court erroneously fails to dismiss the case, the defendant can appeal on that ground. However, what gores the defendant's ox is the failure to dismiss, not the failure to grant an alternative remedy.
Defendant complains that in 2012, when he first moved to dismiss, the prosecution indicated that it would be willing to stipulate to the admission of the evidence, if necessary to avoid dismissal. Significantly, however, this implied that the evidence would be inadmissible without such a stipulation. The prosecution never conceded that the trial court would have the power to admit otherwise inadmissible evidence without its consent.
Defendant did not ask the trial court to remedy the asserted due process violation by giving jury instructions. For example, he could have requested an instruction that Judulang initially denied knowing anything about the Marine Corps ring, yet later admitted giving it to Costa. We therefore express no opinion on whether the trial court could or should have granted a request for such instructions.
III
EXCLUSION OF DEFENDANT'S STATEMENTS IN THE PRETEXT CALL
Defendant contends that the trial court erred by excluding the statements that he made, in response to pretext calls from Clark, denying any knowledge of the murder.
A. Additional Factual and Procedural Background.
According to Clark's testimony at an Evidence Code section 402 hearing, the police had her make two pretext phone calls to defendant, one in 1976 and one in 1977. She told him that the police suspected her of the murder. He responded, "I don't know what you're talking about."
The People moved in limine to exclude defendant's statements during the pretext calls as inadmissible hearsay. Defense counsel argued that defendant's statements were admissible (1) under the excited utterance exception (Evid. Code, § 1240), (2) under the state of mind exception (Evid. Code, § 1250), and (3) to impeach Clark's testimony.
The trial court excluded the evidence.
B. Discussion.
Defendant now argues that his statements in the pretext call were admissible under Evidence Code section 1202 to impeach his own hearsay statements admitting guilt.
Clark ultimately testified to defendant's hearsay statements to her, admitting that he killed the woman in the desert. Evidence Code section 1202, as relevant here, provides: "Evidence of a statement . . . by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant . . . ."
Defense counsel forfeited this theory of admissibility by failing to raise it below. (Evid. Code, § 354, subd. (a); People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10.) Defendant contends, however, that this constituted ineffective assistance.
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance '"'"fell below an objective standard of reasonableness . . . under prevailing professional norms.'"'" [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citations.]" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
"[W]e begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] . . . [D]efendant's burden [i]s 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission. [Citation.]" (People v. Mickel, supra, 2 Cal.5th at p. 198.)
Clearly, defense counsel wanted to introduce the evidence; assuming that this theory required its admission, we cannot imagine any rational tactical purpose for failing to raise it. Accordingly, we must consider this contention, albeit under the rubric of ineffective assistance.
In People v. Baldwin (2010) 189 Cal.App.4th 991, the court held that, when the prosecution has introduced a defendant's hearsay statements admitting guilt, the defendant's hearsay statements denying guilt are admissible under Evidence Code section 1202. (Baldwin, supra, at pp. 1002-1007.) It added: "We recognize that as applied to a case such as this, the statutory language creates what is, at first blush, an odd result: the language permits a criminal defendant to attack his own credibility as a hearsay declarant . . . by offering evidence of an inconsistent statement . . . , even though the defendant is available to testify for the defense but cannot be called by the prosecution to be examined about the inconsistent statement." (Id. at p. 1004.) It even "urge[d] the Legislature to examine whether the rule of section 1202 should be amended to exclude criminal defendants seeking to attack their own credibility as declarants." (Id. at p. 1005, fn. 11.) It concluded, however, that the statute was "unambiguous." (Id. at p. 1004)
Finally, the court stated: "We emphasize, however, that section 1202 does not give the defendant carte blanche to introduce any and all statements purportedly inconsistent with the party admissions used by the prosecution. The trial court retains discretion under section 352 to regulate the introduction of such evidence. [Citation.] It must be remembered that such evidence has limited probative value: it is admissible solely to attack the credibility of the defendant as a declarant in the party admissions used against him. When, under the circumstances of the particular case, such probative value is 'substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time or . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury" [citation], the court may exercise its discretion to limit the evidence, or, if the circumstances so justify, exclude it altogether." (People v. Baldwin, supra, 189 Cal.App.4th at p. 1005.)
Here, the evidence was really relevant to impeach Clark, not defendant. Defense counsel hoped the jury would conclude, not that defendant was lying when he admitted killing the victim, but that Clark was lying when she claimed that defendant admitted killing the victim. As defendant himself argues, "[T]he pretext calls cast doubt on the veracity of Clark's testimony regarding appellant's statements and knowledge of Costa's murder." (Italics added.) When offered for this purpose, however, the evidence was inadmissible hearsay.
The evidence was not particularly relevant to impeach defendant. If Clark was not lying, then defendant did wake her up at 2:00 or 3:00 in the morning, did drive her to see the dead body of a woman in the desert, did say that the woman had been a prostitute, and did admit killing her with a rock. In that event, defendant's admissions were demonstrably true, as shown by the presence of the dead body and the rock, as well as by his knowledge of the victim's profession. By contrast, his denials in the pretext phone call were demonstrably self-serving and false. As the People aptly put it, "[N]o reasonable juror would have been surprised that appellant disclaimed any knowledge of the murder when Clark suddenly called him years later and told him the police were asking her questions."
Because defense counsel did not argue that the evidence was admissible under Evidence Code section 1202, the trial court never actually considered whether to exclude it under Evidence Code section 352. Nevertheless, it seems most likely that the trial court would have excluded it under Evidence Code section 352, because it was only minimally relevant to impeach defendant, and because it fairly begged the jury to use it for the inappropriate purpose of impeaching Clark. Indeed, it is arguable that it would have been an abuse of discretion not to exclude the evidence under Evidence Code section 352.
For these reasons, competent defense counsel could have concluded that it was pointless to argue that the evidence was admissible under Evidence Code section 1202.
Separately and alternatively, defendant cannot show that the failure to argue this theory of admissibility was prejudicial. As already discussed, the trial court most likely would have excluded the evidence in any event. And even if admitted for its sole permissible purpose — impeaching defendant — it was too weak to raise a reasonable doubt.
IV
ADMISSION OF EXPERT TESTIMONY THAT DOMESTIC VIOLENCE VICTIMS
MAY FAIL TO REPORT THE PERPETRATOR'S CRIMES AGAINST OTHERS
Defendant contends that the trial court erred by allowing an expert to testify about why a domestic violence victim might not report crimes by the perpetrator against others.
A. Additional Factual and Procedural Background.
Detective Richard Wheeler testified for the prosecution as an expert on domestic violence. He gave his opinion that victims of domestic violence commonly do not report the abuse to the police, due to shame, fear of retaliation, and economic dependency. He was then asked:
"Q. Is it . . . common for the victims of domestic violence to not report crimes committed by the abuser against other people, not against themselves?
"A. Yes, I have had that happen before.
"Q. Why is that?"
Defense counsel objected "[f]oundation" and "[i]mproper expert opinion." He argued that the question called for information outside the scope of the witness's expertise. The trial court overruled the objection.
Detective Wheeler then testified that a victim of domestic violence has the same reasons for not reporting crimes against others as for not reporting crimes against him or herself — i.e., fear of retaliation and economic dependency.
B. Discussion.
Defendant argues: "There is no need for an expert to tell the jury that a person who is being violently abused will be afraid of retaliation from the abuser if they report the abuser's commission of a crime against another. This is a conclusion that jurors can draw on their own, without the aid of a domestic violence expert."
"An expert may give opinion testimony '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' [Citation.] 'That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] . . . Rather, expert opinion testimony "'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [those with] ordinary education could reach a conclusion as intelligently as the witness"' [citation]." [Citation.]' [Citation.]" (People v. Brown (2014) 59 Cal.4th 86, 101.)
"'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.' [Citation.]" (People v. Brown, supra, 59 Cal.4th at p. 101.)
For example, in People v. Edwards (2013) 57 Cal.4th 658, the defendant was prosecuted for, among other things, first degree murder on a torture-murder theory with a torture-murder special circumstance. (Id. at pp. 669, 715.) A pathologist testified that the deceased victim's injuries, which included bruising, tearing, and lacerations to the vagina and anus as well as torn ear drums and ligature strangulation, would have been extremely painful. (Id. at pp. 671-673.) The Supreme Court rejected the argument that "the jury could draw its own conclusions about the painfulness of [the] injuries . . . ." (Id. at p. 709.) It concluded that the pathologist's "medical expertise provided additional insight above and beyond the jury's general knowledge in the area[] of whether the genital injuries . . . and other injuries were painful." (Ibid.)
Evidence Code section 1107, subdivision (a), as relevant here, provides: "In a criminal action, expert testimony is admissible . . . 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." Such testimony "is relevant to explain that 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. [Citation.]" (People v. Riggs (2008) 44 Cal.4th 248, 293.)
Specifically, an expert can testify that victims of domestic violence tend to minimize the abuse, rather than leave the relationship; such testimony helps "to disabuse jurors of commonly held misconceptions about victims of domestic violence, and to explain the psychological reasons for such a victim's seemingly self-impeaching behavior. [Citation.]" (People v. Kovacich (2011) 201 Cal.App.4th 863, 902.) If lay jurors need to be told that domestic violence victims sometimes fail to protect themselves, then a fortiori they need to be told that domestic violence victims sometimes fail to protect others.
Here, some jurors might have expected Clark, if she was telling the truth, to report the murder to the police — to get back at defendant for abusing her, to get him out of her life, or simply because it was the right thing to do. In the absence of Detective Wheeler's expert testimony, these jurors would have been unduly likely to jump to the conclusion that Clark was lying. Even assuming that some jurors would have understood the impact of domestic violence without expert testimony, the expert testimony was reasonably necessary to ensure that this was made clear to all jurors, especially in light of the prosecution's burden of proving its case beyond a reasonable doubt.
Separately and alternatively, we also conclude that the asserted error was harmless. The applicable harmless error test is whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; e.g., People v. Leonard (2014) 228 Cal.App.4th 465, 493 [erroneous admission of expert testimony that defendant was guilty].) Defendant's whole argument is that the jury would have come to the same conclusion as the expert, even in the absence of the expert's testimony. It necessarily follows that the expert's testimony did not affect the outcome.
Defendant argues that the admission of the challenged testimony violated due process. If true, this would call for the application of a more stringent harmless error test. However, under the very authority that defendant cites, "a state evidentiary error rise[s] to a federal constitutional error" only "[v]ery rarely," and then only when it makes the trial "fundamentally unfair." (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 739.) Here, if, as argued, the jury would have come to the same conclusion as the expert, the admission of the expert's conclusion did not make the trial fundamentally unfair.
V
FAILURE TO INSTRUCT ON THE LIMITED USE OF EXPERT TESTIMONY
Defendant contends that the trial court erred by not instructing the jury sua sponte on the limits on its consideration of the expert testimony.
A. Additional Factual and Procedural Background.
CALCRIM No. 850, if given in this case, would have stated:
"You have heard testimony from Detective Richard Wheeler regarding the effect of domestic violence.
"Detective Wheeler's testimony about domestic violence is not evidence that the defendant committed any of the crimes charged against him.
"You may consider this evidence only in deciding whether or not Diana Clark's conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony." (CALCRIM No. 850 with case-specific insertions.)
Defense counsel made a written request for CALCRIM No. 850. However, after an off-the-record instructions conference, the parties and the trial court agreed on a set of instructions that did not include CALCRIM No. 850. Accordingly, the trial court did not give CALCRIM No. 850 or any similar instruction.
B. Discussion.
"' . . . Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, [it] "is admissible to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident — e.g., a delay in reporting — is inconsistent with his or her testimony claiming molestation. [Citations.]"' [Citations.]" (People v. Perez (2010) 182 Cal.App.4th 231, 245.)
People v. Housley (1992) 6 Cal.App.4th 947 held that, when an expert testifies about the common reactions of a child molestation victim, the trial court must give a limiting instruction sua sponte "that (1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Id. at p. 959.)
The court explained: "[T]his type of testimony may be unusually susceptible of being misunderstood and misapplied by a jury, perhaps because the expert commonly is asked to offer an opinion on whether the victim's behavior was typical of abuse victims, an issue closely related to the ultimate question of whether abuse actually occurred. [Citations.] Such testimony, especially from one recognized as an expert in the field of child abuse, easily could be misconstrued by the jury as corroboration for the victim's claims; where the case boils down to the victim's word against the word of the accused, such evidence could unfairly tip the balance in favor of the prosecution." (People v. Housley, supra, 6 Cal.App.4th at p. 958; but see People v. Mateo (2016) 243 Cal.App.4th 1063, 1073-1074 [no sua sponte duty to give limiting instruction on expert testimony on child sexual abuse accommodation syndrome].)
Similarly, expert testimony on the common reactions of a victim of domestic violence is not admissible to prove that alleged domestic violence actually occurred; however, it is admissible if it is relevant to some other contested issue. (People v. Gadlin (2000) 78 Cal.App.4th 587, 592.) Accordingly, Housley applies, by analogy, to such expert testimony.
Here, however, defendant was not charged with domestic violence against Clark. He was charged with the murder of Costa; there was no suggestion that he had any kind of romantic relationship with Costa. Thus, in this case, unlike in Housley, the expert testimony was not "closely related to the ultimate question" of guilt and thus was not "unusually susceptible of being misunderstood and misapplied by a jury."
CALCRIM No. 850 is drafted so as to apply only to cases in which the defendant is charged with some form of domestic violence. It cautions that the expert testimony regarding domestic violence "is not evidence that the defendant committed any of the crimes charged against him." Thus, it is consistent with our view that, under the reasoning of Housley, such an instruction is necessary only when the defendant is charged with domestic violence.
Defendant argues that "[t]he jury may have used the [expert] testimony improperly, to determine that appellant's ex-wives' claims of abuse were true." Detective Wheeler conceded, however, that "some people make up abuse allegations" and that he "couldn't opine whether someone was or was not abused . . . ." In light of these concessions, and in light of the fact that defendant was not charged with domestic violence, the need for a limiting instruction that Housley perceived simply did not exist.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.