Opinion
A148390
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. HERNAN A. REYES -HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 225116)
Hernan A. Reyes-Hernandez appeals from a judgment of conviction and sentence imposed after a jury found him guilty of attempting to make a criminal threat, disobeying a restraining order, and vandalism. He contends the court erred in allowing the prosecutor to elicit an opinion from an expert witness that the victim was involved in a cycle of violence, claiming that his defense counsel had not opened the door to the testimony by asking the expert whether he had formed such an opinion. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged appellant with making criminal threats (Pen. Code, § 422; count 1), disobeying a restraining order (§ 273.6, subd. (a); counts 2 and 5), abusing or endangering the health of a child (§ 273a, subd. (b); count 3), battery on a co-parent (§ 243, subd. (e)(1); count 4), and vandalism (§ 594, subd. (b)(2)(A); count 6). The matter proceeded to a jury trial.
Except where otherwise indicated, all statutory references are to the Penal Code. --------
A. Trial
Appellant started dating Veronica Godoy in about 2010. In 2011, their daughter was born. According to Godoy, in 2014 and 2015 appellant committed a number of uncharged acts of domestic violence, including grabbing her and breaking her phone, grabbing her and yelling at her, and pulling her hair and threatening to "blow out" her brains. In December 2014, Godoy obtained a protective order forbidding appellant from contacting her, although they continued to see each other.
The charged acts occurred in June 2015 and November 2015. Godoy testified that on June 28, 2015, they argued outside her home on 24th Street in San Francisco and appellant grabbed her hair. After appellant left, Godoy discovered that her car windshield had been smashed.
On November 26, 2015, appellant went to Godoy's home, banged on the mailbox and gate to her apartment building, and yelled that if she did not come out, he would "put a couple of bullets" in her. He also yelled: "Come outside because you know what I'm capable of. You know the police won't do anything to me; so I will stay here and I won't go until you come out." Police arrived, Godoy showed them the protective order, and appellant was arrested.
B. Verdict and Sentence
The jury acquitted appellant on count 1 (making a criminal threat), but found him guilty of the lesser charge of an attempted criminal threat. The jury also found him guilty on count 2 (disobeying a restraining order), count 5 (same), and count 6 (vandalism), and found him not guilty on counts 3 and 4.
On count 1, the court suspended imposition of sentence and granted appellant probation for three years on numerous terms and conditions, including the condition that he serve one year in county jail. The court also ordered a concurrent term of one year in jail on count 2, a stayed term of one year in jail on count 5, and a term of 154 days in jail on count 6. Appellant was granted credit for time served.
This appeal followed.
II. DISCUSSION
Appellant's sole contention is that the trial court erred by permitting a prosecution expert witness, Inspector John Keane of the San Francisco Police Department, to testify on redirect examination that appellant and Godoy had been in a "cycle of violence." We review for an abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586; People v. Rowland (1992) 4 Cal.4th 238, 264.)
A. Keane's Testimony
Inspector Keane testified for the prosecution as an expert in domestic violence. On direct examination, he explained that abusive domestic relationships often include a cycle of violence, in which the abuser perpetrates violence against the victim, the abuser apologizes and they reconcile, tensions build and violence occurs again, and the cycle continues potentially for years. Keane opined that abused partners often find reasons to remain in these relationships, and it is common for victims to give contradicting accounts of an abusive event, and recant or minimize their reports of abuse, once the immediate crisis has passed. Keane did not offer an opinion as to whether this particular case involved a cycle of violence.
On cross-examination, Inspector Keane acknowledged that, to form an opinion as to whether Godoy was in a cycle of violence relationship, it would be ideal to have assurances that Godoy's statements about the relationship were true. Defense counsel then inquired further about Keane's ability to form such an opinion and whether he had reached an opinion in the case: "Q. Can you form an opinion regarding an alleged victim['s] participation in a cycle of violence, based on statements that you have not determined to be true? [¶] A. If I believe them to be true, yes. But I haven't been asked to form an opinion in regards to that. [¶] Q. What have you been asked to form an opinion on? [¶] A. I believe we all heard the questioning and the testimony yesterday. [¶] Q. So as you sit here today, you have not formed an opinion on whether or not Veronica Godoy, the alleged victim in this matter, was a participant in this cycle of violence that you testified about. [¶] A. That's not what I said. [¶] Q. Have you formed an opinion regarding whether or not Ms. Godoy is a participant in the cycle of violence? [¶] A. Yes." (Italics added.) Defense counsel proceeded to ask questions about Keane's basis for that opinion. Keane reiterated that he had not been asked to form an opinion as to whether the cycle of violence existed in this particular case.
On redirect, the prosecution elicited Inspector Keane's opinion, over defense counsel's objection, that Godoy was indeed involved in a cycle of violence. "Q. Inspector, now that you've been asked on cross if you had an opinion about whether your review of the police reports has allowed you to render an opinion as to whether the victim or alleged victim in this case was in the cycle of violence as you understand it, can you please share that opinion. [¶] [DEFENSE COUNSEL]: Objection. He testified on cross that he hadn't rendered an opinion. [¶] [PROSECUTOR]: No. He said he had. [¶] THE COURT: The objection is overruled. You can answer the question. [¶] THE WITNESS: I believe that she is." Defense counsel followed up with additional questions on re-cross examination.
In closing argument, defense counsel asserted that Godoy exaggerated or fabricated much of her testimony to get revenge on appellant, and since she exaggerated his misbehavior to "get him put away" rather than minimizing it to keep him out of trouble, the case did not involve the cycle of violence Inspector Keane had described. The prosecutor argued in rebuttal that the evidence showed "the cycle of violence [Keane] talked about."
B. Appellant Forfeited His Claim on Appeal
A judgment will not be reversed based on the erroneous admission of evidence unless "[t]here appears of record an objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection." (Evid. Code, § 353.)
Here, defense counsel objected to the prosecutor's question that asked Keane to share his opinion as to whether Godoy was in the cycle of violence, but not on the ground he now asserts in this appeal. At trial, counsel objected that, contrary to the prosecutor's assertion, Keane "testified on cross that he hadn't rendered an opinion." (Italics added.) The court properly overruled the objection because, in fact, Keane testified that he had formed an opinion in that regard (although the prosecutor had not asked him to give it). Because the defense did not object on the ground that the question called for testimony outside the scope of cross-examination, he cannot now obtain reversal on that ground. (See People v. Visciotti (1992) 2 Cal.4th 1, 51-52 [defense objection that questions were not relevant and assumed facts not in evidence did not constitute an objection that the cross-examination exceeded the scope of direct examination]; People v. Eisenberg (1968) 266 Cal.App.2d 606, 614-615 [objection that question was irrelevant and immaterial did not preserve claim that redirect examination exceeded the scope of cross-examination].)
C. Appellant Fails To Demonstrate An Abuse of Discretion
Even if, as appellant asserts, the issue was not waived and the trial court "implicitly" found the opinion was properly elicited as within the scope of cross-examination, appellant fails to establish an abuse of its discretion. Defense counsel asked Inspector Keane on cross-examination if he had formed an opinion as to whether Godoy was in a cycle of violence, and Keane answered he had. It was not an abuse of discretion to conclude that the prosecutor's question on redirect—asking Keane to share that opinion—was within the scope of the defense cross-examination. (See Evid. Code, § 762; People v. Hamilton (2009) 45 Cal.4th 863, 921 [witness may be examined on redirect on matters elicited during cross, and extent of redirect is largely a matter of the court's discretion].)
Appellant argues: "Because the prosecutor did not object to the cross-examination that purportedly led Inspector Keane to state that he had an opinion on this issue, she did not gain the right to explore the question further on re-direct." (Italics added.) The cases on which he relies for that proposition are inapposite.
In People v. Gambos (1970) 5 Cal.App.3d 187, the prosecutor had opted not to object to defense counsel's introduction of inadmissible hearsay during the cross-examination of a police officer. The prosecutor then attempted on redirect to introduce different inadmissible hearsay statements through the same witness. On appeal, the court ruled that the testimony on redirect should not have been allowed. The hearsay testimony on redirect was inadmissible, and the mere fact that the prosecutor had allowed objectionable evidence to be admitted on cross-examination did not entitle the prosecutor to the admission of other objectionable evidence on redirect. In addition, the court noted, Evidence Code section 356 (the rule of completion) allows further inquiry into inadmissible matter only if it is relevant to the matter already in evidence, and the conversation elicited by the prosecutor on redirect in Gambos was not relevant to the different conversation admitted into evidence on cross-examination. (Id. at pp. 192-193.)
Gambos is readily distinguished from the case at hand. Here, appellant does not establish that the testimony elicited by the prosecutor on redirect was in itself inadmissible—he argues only that it was not within the scope of cross-examination. Moreover, in this case the opinion that the prosecutor elicited from Inspector Keane on redirect was relevant to what the defense raised on cross-examination concerning the formation of that opinion.
Appellant's reliance on part of a concurring opinion in People v. Steele (2002) 27 Cal.4th 1230 (Steele) is also misplaced. In Steele, a prosecution expert did not opine on direct examination as to the defendant's mental state in perpetrating two killings. (Id. at p. 1246.) On cross-examination, however, he testified that the victim of one of the killings might have been killed in a " 'rage.' " (Id. at p. 1247.) Then on redirect, the prosecutor elicited the opinion that the killing could also have been " 'methodical.' " (Ibid.) On appeal, the defense argued that the expert should not have been allowed to testify on redirect that the killing was premeditated, because the opinion was not the proper subject of expert witness testimony under Evidence Code section 801. (Ibid.) Our Supreme Court held that the redirect testimony was admissible in response to the cross-examination: once the defense elicited the opinion that the killing might have been done in a rage, the prosecution was entitled to elicit on redirect the opinion that it might have been methodical. (Ibid.) Chief Justice George wrote a concurring opinion, in which he disagreed with the majority's implication that the expert's testimony on redirect was admissible simply because the defense had elicited similar testimony on cross without objection, but agreed with the affirmance of the conviction because, contrary to appellant's argument, the redirect testimony was within the scope of permissible expert witness opinion. (Id. at pp. 1274-1276.)
Nothing in Steele suggests the trial court erred in this case. The majority in Steele affirmed the admission of the expert witness's opinion testimony on redirect. The concurring opinion is not binding on this court, and to the extent it may be instructive, it actually informs us that the conviction in this case should be affirmed: like appellant in Steele, appellant here fails to establish that the opinion the prosecutor elicited on redirect was not an admissible opinion.
In his appellate reply brief, appellant argues that defense counsel merely tried to establish on cross-examination that Inspector Keane had formed an opinion, not to establish what opinion he had formed, so on redirect the prosecutor could only ask Keane to explain how he formed his opinion, his qualifications to do so, and the information he used to form it. But even if this were a valid distinction between what the defense elicited on cross-examination and what the prosecutor elicited on redirect, appellant still fails to show that the court abused its discretion in allowing the testimony. Under Evidence Code section 772, subdivision (c), the court has discretion to allow a party to "interrupt his . . . redirect examination . . . in order to examine the witness upon a matter not within the scope of a previous examination of the witness."
D. The Claimed Error Was Harmless
Finally, even if appellant could demonstrate trial court error, it would be harmless error under the applicable "reasonable probability" standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Marks (2003) 31 Cal.4th 197, 226-227.) While appellant contends Inspector Keane's opinion that Godoy was in a cycle of violence "blunted the impact" of the defense's attacks on Godoy's credibility, it appears the defense's attacks on her credibility were actually successful: the jury must not have credited all of Godoy's testimony, since it acquitted appellant on the charges of physical violence, making criminal threats against her, and abusing or endangering their child. Moreover, there is no reasonable probability that appellant would have obtained a more favorable result on the remaining counts for which he was convicted—violating the restraining order, attempting to make criminal threats, and vandalizing Godoy's car—in the absence of Keane's opinion. Appellant admitted that he had contact with Godoy that was prohibited by the restraining order, and the only disputed issue was his understanding of the restraining order, which did not turn on Godoy's credibility or whether she was involved in a cycle of violence. Appellant's attempt to criminally threaten Godoy were independently established by (1) the testimony of Godoy's neighbor, who witnessed the threat and described it in a 911 call heard by the jury, and (2) a telephone call appellant placed from jail, which the jury also heard. And as to the vandalism conviction, the police documented Godoy's broken windshield.
Appellant fails to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.