Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR022387, Edward P. Moffat II, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Jaime Anthony Moreno was convicted of one count of felony spousal abuse. On appeal, he contends (1) the trial court erred by admitting hearsay statements under the spontaneous statement exception and (2) the trial court erred by instructing the jury with CALCRIM No. 306 as a sanction for defense counsel’s discovery violation. We will affirm.
PROCEDURAL SUMMARY
On August 11, 2005, the Madera County District Attorney charged defendant with two counts of felony spousal abuse (Pen. Code, § 273.5, subd. (a)), count 1 based on events occurring on or about July 17, 2005, and count 2 based on events occurring on or about July 24, 2005. The information further alleged defendant previously had been convicted of spousal abuse (§ 273.5, subd. (e)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant admitted the special allegations. The jury found him not guilty of count 1, but guilty of count 2. The trial court sentenced him to six years in prison.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
The victim and defendant had three children. Joan R. was the victim’s aunt. She often babysat the children. On Monday, July 25, 2005, Joan went to pick up the children to take them to school. When she arrived at the house, she found the victim sitting on the floor with the three children around her. Defendant was lying on the couch. The victim had two black eyes. When she looked up at Joan, Joan said, “[O]h, hell no.” The victim got up and told Joan she was scared and could not call her. Defendant jumped up and said something to Joan. Joan saw no bruises or scratches on defendant. The victim stood behind Joan. Joan told defendant he had five seconds to leave before she called the police. He asked the victim for the car keys but she refused. He hurriedly left the house.
Everyone else got into Joan’s car. Joan saw defendant getting on a motorbike that belonged to the little boy. She told him she would file charges against him if he took the bike. He got off and Joan told him to start walking. As they conversed, defendant decided the victim could use his cell phone, but Joan told him, “[N]o[,] you wouldn’t let [her] use the phone to call nobody[;] you take the phone and you get out of here now.” Defendant walked down the street.
The children were fearful and “overwhelmed that [Joan] was there.” Joan told them she was taking them to school. Although she asked them no questions, they immediately started telling her what had happened the day before, on Sunday, July 24, 2005. The oldest child told Joan “his dad was hurting his mother.” He said he grabbed the youngest child and took her into the closet. He said the middle child tried to hold the victim as defendant attacked her, dragged her by her hair and then pushed her against the wall. The middle child told Joan she was glad she was there because “her Daddy was hurting her mommy.” The youngest child told Joan that defendant “was hitting mommy.”
Defendant’s factual summary states that “[n]one of the children mentioned any specific dates or when the alleged abuse occurred.” On direct examination, Joan stated the oldest child did not mention a date, Joan could not recall whether the middle child mentioned a date, and the youngest child did not go into further details. On cross-examination, however, defense counsel asked Joan whether she knew when the abuse the children were talking about had happened. She said the children told her it had happened the day before, on Sunday. Defense counsel then summed it up: “Okay. But the day after[,] everyone’s all scared, right? Everyone’s scared and they’re trembling and they’re saying all that, right?” Joan answered, “Yes.”
The victim also made unsolicited statements to Joan. The victim said she was glad Joan was there. She said she could not call Joan because defendant had been hurting her for a whole week. She said he beat her up and physically attacked her. He grabbed her by the hair and dragged her. She tried to get away and to fight back, but she could not because defendant told her he would kill her. She could not call the police because she did not have a telephone. Defendant had a cell phone, but he would not let her use it.
After they dropped the children off at school, Joan and the victim returned to the house and called the police on Joan’s cell phone. The victim showed Joan her other injuries. She had bruises all over her body, including her back, chest, stomach and arms.
On cross-examination, Joan testified the victim was still scared at the time of trial. The victim was scared to testify because she believed something would happen to her if she did.
An officer testified that he arrived at the victim’s house on July 26, 2005, and observed that she had two black eyes and bruises on her arms, shoulders and collarbones. She was “shaken, kind of trembling” and “very scared.” She hesitated to tell the officer what had happened because she was afraid. Based on what the victim told the officer, he felt that defendant had committed a crime. He believed defendant had hit the victim on two separate occasions.
The officer opined that the victim’s black eyes were consistent with a head-butting injury. He believed the victim’s black eyes and bruises to the collarbones occurred at least a week before he observed her. He considered the head-butting injury severe, requiring a great amount of force. When the officer arrested defendant that day, the officer did not notice any bruises or scratches on his head. The officer testified it is possible for only one person to receive injuries during an altercation. The part of the head used to head-butt another person is the hardest part of the head. The officer believed the bruises on the victim’s arms were newer.
Sunday, July 17, 2005, the approximate date charged in count 1, was nine days before the officer observed the victim’s injuries.
The officer testified that domestic violence victims almost never want to testify because they fear retaliation or possibly because they have reconciled with their abuser. Domestic violence victims also often delay in reporting incidents of violence. He believed the victim in this case was apprehensive to call the police and report these incidents because she was afraid for her safety.
Defense Evidence
Defendant’s mother testified that defendant and Joan did not get along because Joan interfered with the relationship between defendant and the victim. Defendant’s mother said Joan was not the children’s babysitter and she did not take the children to school on Mondays. Defendant’s mother said she was the one who cared for the children Friday through Monday, Monday night, Wednesday night and Thursday night. Defendant’s mother said the victim still had contact with defendant; she visited him once or twice a week. The victim never told defendant’s mother she did not want to testify because she was afraid of defendant.
Defendant’s stepfather testified that the victim told him defendant had not caused her injuries. She told him she wanted to be in a relationship with defendant. She visited him in jail about twice a week. The children had never told defendant’s stepfather they were afraid of defendant. The victim told defendant’s stepfather she had been untruthful about the events preceding defendant’s arrest. According to defendant’s stepfather, Joan was a busybody and she hurt the relationship between defendant and the victim.
Joan was called by the defense. She testified she was present during part of the police interview of the victim. Joan heard the victim tell the officer that defendant had attacked and hit her, and that he had head-butted her a few days earlier. Joan did not use this information when she testified for the prosecution.
The defense investigator testified he spoke to the victim on April 24, 2006, about the incidents that led to defendant’s arrest. The victim mentioned two separate incidents. She told the investigator she had made up the story about defendant. She was angry with him because she had seen him with another woman, Annette. The victim’s cousin gave her the idea to make up the story. The victim told the investigator her injuries were from a physical fight she had gotten into with Annette about two weeks before defendant was arrested. The victim told the investigator she was reluctant to testify because she was afraid to get caught lying. She thought defendant would “get off quick” and “this had gone too far.” She had been seeing defendant again since November 2005. The children missed him and loved him. The victim had facilitated contact between defendant and the children.
DISCUSSION
I. Spontaneous Declarations
Defendant contends the trial court erred by admitting Joan’s testimony of the hearsay statements made by the victim and the children. Defendant argues the statements did not qualify as spontaneous statements under the hearsay exception because too much time had elapsed between the abuse and the statements, and there was no evidence the declarants remained in a mental state that would have inhibited reflection or deliberation.
The court limited the hearsay statements to those concerning the second (most recent) incident.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Generally, hearsay evidence is inadmissible unless the law provides an exception for its admission. (Evid. Code, § 1200, subd. (b).) Evidence Code section 1240 codifies the common law exception to the hearsay rule for spontaneous declarations. It provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
“‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318.)
A spontaneous declaration is one made without deliberation or reflection. (People v. Raley (1992) 2 Cal.4th 870, 892.) A spontaneous declaration is deemed sufficiently trustworthy to be presented to the jury because it is an “unreflecting and sincere expression of one’s actual impressions and belief” made under the stress of excitement from the occurrence to which it relates. (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468; People v. Poggi, supra, 45 Cal.3d at p. 318.) Thus, the “‘crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is ... the mental state of the speaker. The nature of the utterance -- how long it was made after the startling incident and whether the speaker blurted it out, for example -- may be important, but solely as an indicator of the mental state of the declarant.’” (People v. Raley, supra, at pp. 892-893.)
“‘[N]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ [Citation.]” (People v. Raley, supra, 2 Cal.4th at p. 893.) Thus, “[t]he requirement is for a spontaneous declaration, not an instantaneous one.” (People v. Riva (2003) 112 Cal.App.4th 981, 995.) Cases applying these principles have upheld the admission of spontaneous statements despite a lapse of time between the event and the declarant’s statement. (See People v. Brown (2003) 31 Cal.4th 518, 541 [two and one-half hours]; People v. Raley, supra, at pp. 893-894 [18 hours]; People v. Smith (2005) 135 Cal.App.4th 914, 923 [three to six hours]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one to two days]; People v. Trimble (1992) 5 Cal.App.4th 1225, 1235 [two days].) In Trimble, statements made to a babysitter by a toddler about two days after the child’s father murdered the mother were found to be sufficiently spontaneous for admission, considering the child’s shock from witnessing the event, and the fact the father kept the child with him until that time. (People v. Trimble, supra, at pp. 1229-1230, 1235.)
Defendant cites In re Cheryl H. (1984) 153 Cal.App.3d 1098, but the Supreme Court has expressly disagreed with its suggestion that a lapse of time alone deprives a statement of spontaneity, as follows: “Contrary to the suggestion of the court in In re Cheryl H., supra, 153 Cal.App.3d 1098, 1130, that a statement cannot be considered spontaneous if more than a few minutes have elapsed, ‘[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ [Citation.]” (People v. Raley, supra, 2 Cal.4th at p. 893.)
Whether a statement satisfies the requirements of the spontaneous declaration exception is generally a question of fact for the trial court. (People v. Poggi, supra, 45 Cal.3d at p. 318.) We apply the abuse of discretion standard in reviewing the trial court’s ruling on the admissibility of a hearsay statement. (People v. Waidla (2000) 22 Cal.4th 690, 725.) That standard also applies to questions about the existence of the foundational facts necessary to satisfy a hearsay exception, such as the Evidence Code section 1240 exception. (People v. Brown, supra, 31 Cal.4th at p. 541.)
In this case, we conclude the evidence established that the children and the victim were still under the stress and anxiety of the abuse that occurred the day before (on July 24, 2005) and that their statements were made without deliberation or reflection. The victim had been beaten, dragged and threatened in front of her children. The children had witnessed their father beat their mother, had unsuccessfully tried to help her, and were so fearful they hid in a closet. Although Joan arrived the following morning, the children and the victim had not had an opportunity to escape defendant’s presence or to tell anyone what had happened. Defendant had even prevented the victim from using a telephone. The victim was still afraid when Joan arrived. She was sitting on the floor and the children were gathered around her. She immediately told Joan she was afraid and had not been able to call her. She stood up and hid behind Joan as Joan confronted defendant. The children were also scared, fearful and “overwhelmed” when Joan arrived. As soon as they got in the car away from defendant, the children and the victim began telling Joan what had happened the day before. Their comments were unsolicited and immediate. The trial court did not abuse its discretion by admitting the statements.
The officer testified that even the next day the victim was trembling and very scared.
We note that even if the victim’s statements fell outside the exception, the remaining evidence, including the three children’s statements, was ample to support the conviction on count 2. That evidence included the fearful behavior of the victim and the children upon Joan’s arrival at the house, the children’s statements to Joan that clearly described the abuse they witnessed the day before, and the victim’s recent injuries observed by Joan and the officer. Thus, even if admission of the victim’s statements was error, the error was harmless because it is not reasonably probable that the jury would have reached a result more favorable to defendant in the absence of the error (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris (2005) 37 Cal.4th 310, 336).
II. Late Discovery
Defendant also contends the trial court erred by finding the defense violated the discovery statutes and by thereafter instructing the jury with CALCRIM No. 306. Defendant argues that as soon as defense counsel decided to call the defense investigator, he disclosed his intention to do so. Defense counsel could not determine whether he was likely to call the defense investigator until it became apparent that his testimony was necessary to impeach Joan’s testimony regarding the victim’s hearsay statements. We agree the instruction was error, but conclude it was harmless.
A. Facts
On May 15, 2006, at the trial confirmation hearing, defense counsel stated that the witnesses he might call were defendant’s mother and stepfather, the victim, and the parole officer.
The next morning, on the first day of trial, the prosecutor advised the court that she believed her witness, the victim, would not show up. On the prosecutor’s request, the court issued a body attachment for the victim. The defense’s witness list dated that same day identified the defense witnesses as defendant’s mother and stepfather, Joan, and the defense investigator. As predicted, the victim did not appear to testify.
The next morning, the victim had still not been located. The following discussion occurred outside the presence of the jury:
“[PROSECUTOR]: The issue of [defense counsel] calling his investigator. If he’s saying that investigator went out and talked to the victim, … just seems like it’s hearsay testimony to me. [Defense counsel] stated that investigator went out there two weeks ago. Clearly [the victim’s] not going to have any injuries from this incident that the investigator could testify to. Not to mention there [are] discovery issues because I was just informed of this witness yesterday.
“THE COURT: [Defense counsel], what do you want to do about that?
“[DEFENSE COUNSEL]: Judge, the investigator spoke with the victim. I don’t know if it was two weeks ago. I don’t know when the exact date the investigator spoke to her. She recanted. I anticipate[d] her being called and subpoenaed to testify and with that in mind I imagine[d] that she was to testify or recant her story as she told it to my investigator. Since she’s not here and the evidence was proffered of her apparent statements or whatever, it’s offered for both as a prior inconsistent statement and also as an impeachment of the witness who got to testify through the exception of hearsay spontaneous statement. And it’s rebuttal. All together.
“THE COURT: Okay. I have no problem about making a determination that if in fact you want to call the person, the person could testify that as to inconsistent statements to the statements that were admitted into evidence under the spontaneous statement. There is no question about that. That’s a different issue. But the other issue we have is the fact that this wasn’t disclosed until prior to things. That’s a [section] 1054 issue that we have to deal with. Which I have no problem dealing with that as well because I have many different remedies. And I’m supposed to go down the various list of the remedies, determine which is appropriate. Which includes imposing sanctions, you know, disallowing the testimony, giving the jury instruction and all that type of stuff.
“So what do you want to tell me about the fact this wasn’t disclosed prior to trial? [¶] … [¶]
“[DEFENSE COUNSEL]: Okay. At the time I sent the investigator to get the statement I was only -- my intentions were only to call the investigator if somehow per chance this situation came up. I anticipated [the victim] testifying and corroborating the recant, her recantation to the investigator. Now, that didn’t occur. So this was a place -- and as far as the final [trial confirmation], I mentioned [defendant’s] parents as possible witnesses and the parole officer. And, to be honest, Judge, I simply forgot to say it.
“THE COURT: Well, the Court’s going to allow the testimony, but I’m going to give the jury instruction about the late disclosure. That’s the way I’m going to do it. That goes down the line. Again, remember that testimony is limited only to the spontaneous statements that were admitted into evidence and not for any other purpose. And the jury will be admonished to that.
“[PROSECUTOR]: Your Honor, I’d also just like an offer of proof of what the investigator -- I have no information whatsoever of what --
“THE COURT: I think he just told us.
“[PROSECUTOR]: Just she recanted. But recanted to what? I have no idea.
“THE COURT: That the guy abused her in any way. We all know, let’s be realistic about it. [T]he jury is going to believe the investigator that she said that, but the jury is not going to believe the fact that what she said was true. Let’s be realistic about it. Like she walked into a fence post or something and that caused the injuries. You know, I don’t know. You are both on these cases, you know where the victim’s not showing up and when also with this statement about recanting. Those are double edged [s]words and you both could die on them. Those are the Court’s rulings.”
The jury returned to the courtroom and the judge addressed the jury as follows:
“Anyway, what happens is in this case, the victim has been subpoenaed and hasn’t shown up. And they’ve made efforts to locate her and she’s not around. I don’t know if she’s hiding or what, but she’s not around. And so we have to deal with that issue and all.
“What we’ve done is there is a stipulation that the victim has been subpoenaed in this case and has voluntarily absented herself from these proceedings and yesterday morning before even the trial started I issued a -- issue[d] a warrant[;] for victims, you issue body attachments. How is that? Body attachment. It[’s] another one of those unique words. They attempted to serve her. She’s unavailable. So I just want you to realize that. [¶] … [¶] So the parties stipulate that the victim was subpoenaed and efforts were made to locate her and she is no longer available. She is not available for trial.”
After the defense case, ending with the defense investigator’s testimony, both sides rested and the court stated the following to the jury:
“ … I have to create one more jury instruction as a result of what took place. It relates to -- I’ll just address this at this time.
“The last witness is the defense witness[. He] wasn’t known to the prosecution until during the trial or just at the commencement of the trial. As a result of that[, the prosecution is] entitled to a jury instruction and because the defense is required to disclose evidence that they are going to give prior to the trial. In this case that wasn’t done, so you will get a jury instruction that relates to that.”
During the jury instruction conference, outside the jury’s presence, the court stated:
“[T]he only additional instruction I’m going to give is the [CALCRIM No.] 306, which is to do -- the defense failed to disclose evidence that their investigator contacted the victim who recanted her testimony.”
During defense counsel’s closing argument, he explained his failure to disclose, as follows:
“ … I’m going to explain to you why things like that occur. [¶] Okay. The investigator spoke with [the victim]. She said, ‘I made the whole thing up.’ I imagined since she was the People’s witness she was going to come testify. She didn’t show up. I thought that if she testified she would tell the same thing that she had told the investigator. She didn’t show up. That put me in a bind. That’s what happened.”
Later, the trial court instructed the jurors with CALCRIM No. 306, as follows:
“Both the People and the defense must disclose their evidence to the other side before trial within the time limit set by law. Failure to follow this rule may deny … the other side the chance to produce all relevant evidence to counter opposing evidence, or to receive a fair trial. [¶] The attorney for the defense failed to disclose evidence of the investigation where the [victim] recanted her testimony prior to trial and this was not disclosed within the time limit. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of the late disclosure. [¶] However, the fact that the defendant’s attorney failed to disclose evidence within the legal time period is not evidence that the defendant committed the crime.”
B. Analysis
The reciprocal discovery statutes were adopted by the voters as part of Proposition 115 in the 1990 general election. (People v. Tillis (1998) 18 Cal.4th 284, 286-287.) “In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by -- and is barred except as provided by -- the discovery chapter …. [Citations.]” (In re Littlefield (1993) 5 Cal.4th 122, 129, fn. omitted; see also Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1167 (Hubbard).)
Under these discovery provisions, the defense must disclose to the prosecution the names and addresses of persons it intends to call as witnesses at trial and any reports they made. (§ 1054.3, subd. (a).) The Supreme Court has defined the phrase “intends to call” to mean persons the party reasonably anticipates it is likely to call at trial. (In re Littlefield, supra, 5 Cal.4th at p. 130.) The disclosure must be made 30 days before trial or, if counsel becomes aware of a witness after that time, immediately. (§ 1054.7.) If disclosure is not timely made as to any particular witness, the trial court may inform the jury of the failure to disclose. (§ 1054.5, subd. (b).) The Supreme Court has explained, however, that “the defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution’s case during cross-examination.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn.14.)
In Hubbard, the appellate court further addressed the defense’s discovery obligations. In that case, the prosecution “[took] the position that there is no limitation on discovery where the defense indicates an intention to cross-examine a prosecution witness with prior inconsistent statements because, in doing so, the defense will later call one of its own witnesses to impeach the prosecution witness. Citing Izazaga, the prosecution argue[d] that the discovery of impeachment material is required because it is ‘reasonably likely’ that the defense investigator will be called to the stand.” (Hubbard, supra, 66 Cal.App.4th at p. 1168.) The prosecution further asserted that, “once its witness denies having made the pretrial statement to the defense investigator (as apparently was the case here), the defense will call its investigator to impeach the prosecution witness.” (Id. at p. 1170.)
On appeal, the Hubbard court stated: “This assertion evidences a misunderstanding of a fundamental premise of criminal law: ‘[T]he determination whether to call a witness is peculiarly within the discretion of counsel.’ [Citation.] There is no rule of law that would require the defense to disclose evidence gathered by an investigator who may tentatively be called by the defense for impeachment purposes.” (Hubbard, supra, 66 Cal.App.4th at p. 1170.) “The statutory language of Penal Code section 1054.3, subdivision (a) is straightforward: The defense is required to disclose the ‘names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial.’ The language of this section contains nothing that would authorize the discovery of statements from witnesses whom the accused does not intend to call at trial. Izazaga reiterates this point five times. [Citations.]” (Id. at pp. 1169-1170.) The Hubbard court concluded that “[t]he defense [is] not required to disclose any written statement recorded by its investigator prior to cross-examination of a prosecution witness.” (Id. at pp. 1170-1171.) Accordingly, “the prosecutor is not entitled to discover notes prepared by a defense investigator that relate to an interview of a ‘prosecution’ witness unless and until the defense announces an intent to call the defense investigator as a witness.” (Id. at p. 1165.)
In the present case, the defense expected the prosecution to call the victim. If she testified that defendant abused her, the defense expected to cross-examine her, attempting to refute and impeach her testimony with inconsistent statements she made to the defense investigator -- statements to the effect that she had made up the story and defendant had not actually abused her. As soon as it became apparent that the victim was not going to appear and the defense had lost its prospect of cross-examining her, defense counsel informed the prosecution that it intended to call the defense investigator to refute the hearsay statements testified to by Joan.
Under Izazaga, the defense was not required to disclose any statements it obtained from the victim that it might have used to refute the prosecution’s case during cross-examination. (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 377, fn.14.) Furthermore, as Hubbard clarified, the tentative possibility that the defense would call the defense investigator for impeachment purposes did not constitute an intent to call him within the meaning of the discovery statutes. (Hubbard, supra, 66 Cal.App.4that p. 1170.) Defense counsel therefore originally had no duty to disclose the defense investigator as a witness it intended to call, or to disclose the statements the victim made to the defense investigator. That duty arose when defense counsel decided to call the defense investigator. At that time, defense counsel did inform the prosecution as required. Because defense counsel did not commit a discovery violation in this case, the trial court abused its discretion when it sanctioned defense counsel by instructing the jury with CALCRIM No. 306. (People v. Ayala (2000) 23 Cal.4th 225, 299 [trial court’s ruling on discovery matters is reviewed for abuse of discretion].) The issue we address next is whether that error was prejudicial.
C. Prejudice
Defendant contends the error was prejudicial because the evidence against him was far from overwhelming. He argues the strongest evidence against him was the evidence impeached by the defense investigator’s testimony, and that testimony was negatively affected by the instruction on late disclosure.
The erroneous giving of CALCRIM No. 306 is analyzed under the standard of People v. Watson, supra, 46 Cal.2d 818: If it is reasonably probable the jury would have reached a result more favorable to defendant had the incorrect instruction not been given, the instruction was prejudicial and the judgment must be reversed. (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7 [Watson standard applies to harmless error in instructing with CALJIC No. 2.28, the predecessor of CALCRIM No. 306].)
We begin our analysis by looking at the evidence. Evidence that defendant physically abused the victim on about Sunday July 17, 2005, included Joan’s and the officer’s observations of the victim’s injuries, the victim’s statements to Joan and to the officer, and the officer’s opinion that the victim had been injured on two separate occasions, one at least a week earlier, and that her black eyes were the result of the earlier abuse. Evidence that defendant physically abused the victim a week later on about Sunday, July 24, 2005, included Joan’s and the officer’s observations of the victim’s injuries, and the victim’s and the children’s statements to Joan. In addition, the officer testified that the victim was reluctant to report the abuse because she was afraid for her safety; victims rarely want to testify because they fear retaliation or they have reconciled with their abuser.
The defense presented testimony that the victim told defendant’s parents that defendant had not caused her injuries, that she had lied about the abuse and she still wanted a relationship with him. The defense also presented the defense investigator’s testimony that the victim told him she had lied about the abuse and that her injuries were actually from a fight she had gotten into about two weeks before the officer came to the house. The victim told him she thought defendant would get off quickly and the case had gone too far. She was seeing defendant again and had brought the children to him.
In light of the entire record, we conclude defendant’s outcome would have been no better had the trial court not instructed the jurors with CALCRIM No. 306. Despite the instruction, the jurors apparently believed some parts and rejected other parts of the defense investigator’s testimony, as they did with the testimony of the other defense witnesses and the prosecution witnesses. The verdicts demonstrate that the jurors rejected the victim’s general claims that she had fabricated defendant’s abuse. These claims were recounted by both defendant’s stepfather and the defense investigator, and the jurors rejected the testimony of both. Instead, the jurors believed the overwhelming evidence that defendant abused the victim in the second incident, which was witnessed by all three children. On the other hand, the verdicts also suggest the jurors accepted the defense investigator’s testimony that the victim received her earlier injuries not from defendant but in a fight with a romantic rival, Annette, despite the prosecution’s evidence that defendant had abused the victim at that time.
In sum, we see no indication that the jurors discredited the defense investigator’s testimony due to the erroneous instruction. Indeed, the jurors likely relied on it to absolve defendant of count 1. Therefore, we conclude it is not reasonably probable the jury would have reached a result more favorable to defendant had the instruction not been given. (People v. Watson, supra, 46 Cal.2d at p. 836.) In short, the error was harmless.
The defense investigator’s testimony provided no evidence that defendant did not commit count 2, other than the victim’s general claim that she fabricated the abuse, which, as we noted, the jurors rejected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J. Dawson, J.