Opinion
D074105
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. JAQUAN DONTE RAMSEY, Defendant and Appellant.
Kurt David Hermansen and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE373939) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Kurt David Hermansen and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Jaquan Donte Ramsey shot his girlfriend during an argument. He was arrested, brought to trial for various crimes, and convicted by a jury of attempted murder (Pen. Code, §§ 187, subd. (a), 664, count 1), assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b), count 2), corporal injury to a spouse (Pen. Code, § 273.5, subd. (a), count 3), and making a criminal threat (Pen. Code, § 422, count 4). With respect to count 1, the jury found true enhancement allegations that Ramsey personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)), personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). The jury also found Ramsey personally used a firearm (Pen. Code, § 12022.5, subd. (a)) with respect to counts 2, 3, and 4 and that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)) with respect to counts 2 and 3. The trial court sentenced Ramsey to a total term of 30 years in prison.
On appeal, Ramsey raises several claims of evidentiary error. First, he asserts that the court improperly admitted two instances of prior domestic violence against the victim, unknown to his counsel prior to trial. Next, he argues the trial court abused its discretion by admitting the victim's testimony that Ramsey had used cocaine in the past. Third, Ramsey argues that the court erroneously allowed two instances of hearsay testimony by the victim to an investigating detective. Last, Ramsey contends that even if these errors individually are not sufficient to overturn the jury's verdict, cumulatively they require reversal. We reject each of these contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case
Ramsey met the victim at a New Year's party at the beginning of 2017 and they began dating two weeks later. They soon considered themselves boyfriend and girlfriend. In April 2017, the victim moved in with Ramsey in his mother's home in Fontana, California. Prior to her relationship with Ramsey, the victim worked as a prostitute. When they met, she was on probation for a prior federal conviction. Ramsey wanted the victim to prostitute to earn money for him, but she did not want to prostitute and be Ramsey's girlfriend. The victim's refusal to prostitute for Ramsey created conflict, and Ramsey had acted violently towards the victim on several occasions during their relationship.
At trial, the victim testified Ramsey had been violent on three occasions before the shooting. About a month after they began dating, the couple was in the car when the victim received a text message from a former john. The message angered Ramsey, and he parked the car, got out, and walked to the rear passenger side where the victim was sitting with the window down. Ramsey then punched the victim in the face.
The next incident occurred a few weeks before the shooting and also began with a dispute between the victim and Ramsey about prostitution. Before the dispute ended, the victim and her mother got into the mother's car to leave the Fontana house while Ramsey yelled and punched the car window. Before the car pulled away, Ramsey went inside, got a gun, and brandished the weapon while the victim and her mother frantically drove away.
The third incident occurred at Ramsey's mother's house just a few days before the shooting. The couple fought, and Ramsey ripped the victim's clothes off of her and choked her with a belt, leaving marks on her chest. The victim stayed in Ramsey's mother's room that night, then spoke with Ramsey's mother and his cousin the next morning about the relationship and resolved to leave Ramsey. Ramsey's mother encouraged her to end the dangerous relationship with her son.
After this incident, on the afternoon of August 28, 2017, Ramsey let the victim use his car. The victim and a friend loaded her belongings into the car and the friend dropped the victim at a hotel room in nearby Riverside where another friend, S., was prostituting. After she arrived, the victim also used the room for prostitution. The friend who drove the victim to the hotel returned Ramsey's car to him. When the victim wasn't with the car, Ramsey became angry and began texting her. The victim texted Ramsey that their relationship was over. Ramsey came to the hotel and continued to text the victim. When he saw S. exit a room, he threatened the victim to come out or he would come in.
Eventually, the victim left the room around midnight when S. wanted to use the room for prostitution again. An altercation occurred at the hotel between Ramsey, the victim's cousin (who was with Ramsey), and the victim's john, which resulted in the police being called. Because the victim was on probation and had an arrest warrant, she got into the car with Ramsey, her cousin, and the cousin's girlfriend. Ramsey drove initially, then pulled off the road and continued to fight with the victim, who wanted to get out of the car. Ramsey then made her get into the drivers' seat and she drove to her aunt's house in Chula Vista.
The group stayed at the aunt's house through the next morning, then Ramsey, the victim, and the victim's sister, who had just been released from jail, left to go to an apartment complex in nearby Spring Valley so that Ramsey could shower. Ramsey drove and the couple argued about whether the victim would prostitute more in San Diego. Before they reached the apartment complex, Ramsey parked the car in a cul-de-sac. Ramsey continued to argue with the victim about her prostituting for Ramsey. The victim got out of the car and began to run away down the street. Ramsey chased the victim and then forced her back into the front passenger seat of the car. He pushed her into the driver's seat with her back facing the driver's side window.
Ramsey then pulled the same gun he had brandished a few days before from under the driver's seat. He pointed the gun at the victim's head as she tried to push him away. The couple continued arguing, and Ramsey told the victim she needed to prostitute to get money for him. The commotion caught the attention of construction workers nearby, one of whom saw Ramsey "being extremely violent" with the victim and "jerking her around" by her arm. The couple continued to argue and Ramsey said something like, "bitch, I'm going to kill you." The victim fought to get the gun away from her head, but Ramsey returned it to that position twice. The victim then heard a loud ringing sound and realized she had been shot. The bullet went through her right hand, grazed her breast, and then entered her left arm.
After the gun fired, the victim heard Ramsey yell, "Oh, shit." He pulled her out of the car and wrapped something around her arm. The victim started feeling weak and lay down on the ground. Three workers from the nearby construction site came running over to help as Ramsey was frantically trying to clean up the victim's blood. Ramsey appeared scared and asked the construction workers for help. One of the workers saw Ramsey conceal the gun in a white rag held down by his side, then walk around the corner and return without the gun. Ramsey did not stop at the car, but kept walking past and away from the scene.
One of the workers from the construction site and the victim's sister called 911. One of the first law enforcement officers to arrive on the scene testified that the victim appeared to be in shock. She told the officer that Ramsey had shot her. By the time the paramedics arrived, the victim had lost consciousness. She recalled waking up in the ambulance. The brachial artery in the victim's left arm was disrupted, interfering with blood flow to the rest of her arm and hand, and requiring her to stay in the hospital for over two months and endure three surgeries. She recovered mobility in her left hand but by the time of trial the hand remained very weak and had no feeling.
Ramsey was located about an hour after the shooting in a nearby apartment complex and arrested. Officers found the gun and a magazine in trees near where the shooting occurred. A gun holster was discovered in the trunk of Ramsey's car, ammunition was found in the center console, and an expended shell casing was on the passenger's side dashboard. The bullet that was fired was located inside the driver's side door. The gun itself had four safety features to prevent accidental firing: a manual safety, a "grip safety," an internal firing pin block, and a lock on the back of the hammer. The minimum weight required to fire the gun was four and a half pounds. The jury was provided with the opportunity to handle the weapon to feel how much pressure was required to fire it. B. The Defense Case
Ramsey did not deny he shot the victim, but contended the shooting was accidental. The only witness for the defense was Ramsey's aunt, who lived in the Fontana home with Ramsey, his mother, and the aunt's two daughters. The aunt testified that the victim had not been at the home since July 2017. The aunt also testified that she had never witnessed any domestic violence between Ramsey and the victim.
DISCUSSION
I
Prior Acts of Domestic Violence and Prostitution
Ramsey raises two related claims that he frames as errors under Evidence Code sections 1101 and 1109. He asserts that two prior acts of domestic violence against the victim were admitted in violation of section 1109 because they were not disclosed to the defense in discovery and were also unduly prejudicial. Ramsey also contends evidence concerning the victim's prostitution for him was improperly admitted under section 1109.
All further undesignated statutory references are to the Evidence Code.
A
1. Relevant Pretrial Proceedings
Before trial, the prosecution moved to admit testimony concerning prior acts of domestic violence committed by Ramsey against the victim and against his ex-wife. The district attorney's trial brief explained that the victim had "described prior incidents where [Ramsey had] punched and hit her all over her body and left marks" and that "much of it was done in front of his mother, who would intervene on her behalf." The brief stated the prosecution sought to admit "[e]vidence of prior violence upon [the victim] . . . through her live testimony and the testimony of [the victim's mother.]" The brief also set forth summaries of six instances of domestic violence against Ramsey's ex-wife—four reported to the police and two additional unreported instances.
Ramsey's trial brief contained a corresponding motion to exclude evidence of prior acts of domestic violence, asserting that "no discovery has been provided as to specific instances of conduct" by Ramsey against the victim. With respect to prior acts of violence involving his ex-wife, Ramsey argued the prejudice, time consumption and irrelevance of those events required exclusion under section 352.
At the hearing on the motions, the prosecutor provided additional information about the uncharged domestic violence against the victim. She explained that the victim's mother gave a statement to the district attorney's investigator about the incident in which Ramsey pulled the gun on the victim and her mother a few weeks before the shooting. The prosecutor also stated she intended to seek testimony from the victim that Ramsey was trying to force her to prostitute for him. Before Ramsey's defense attorney could respond, the court interjected that its "inclination [was] to allow [the jury] to have all of the information with regard to the relationship between [Ramsey and the victim], including information with regard to prostitution, including prior acts between them, and including the brandishing incident [the victim's mother] is alleged to have seen, if that's going to be confirmed or denied by [the victim]." The court noted the jury was entitled "to understand the relationship in its entirety between" Ramsey and the victim because of its relevance to whether or not Ramsey intended to fire the gun. The court added that it was not inclined to admit any evidence of the prior acts concerning Ramsey's ex-wife, which it viewed as highly prejudicial and properly excluded under section 352.
Ramsey's attorney responded that he had not seen anything in the discovery to suggest that the shooting was related in any way to Ramsey wanting the victim to prostitute for him, and her refusing to do so. The prosecutor immediately refuted the assertion, noting that "[b]y the victim's own words at the preliminary hearing, in the vehicle the argument was over her working" as a prostitute and that Ramsey "forced her" to work for him. The prosecutor emphasized the importance of the dispute to her ability to show that Ramsey intended to shoot the victim.
Ramsey's defense attorney maintained that any prostitution was entirely irrelevant to the case and that the victim's testimony at the preliminary hearing was that the argument was about a cigarette lighter and lack of sleep. The defense attorney suggested a section 402 hearing would be appropriate to determine what the victim meant in her preliminary hearing testimony.
The court rejected the defense position, allowing evidence that the victim's refusal to work for Ramsey was the basis for the argument that precipitated the shooting. The court further ruled that a hearing under section 402 was not necessary because if the victim denied the argument was about Ramsey forcing her to prostitute, the prosecution would have to live with that answer. The court continued that with regard to the relationship between Ramsey and the victim, "I will not allow . . . this [jury] to get a half-baked version of the relationship; and so if the People believe that the prostitution aspect is a large component in the relationship, then they, likewise, have to suffer whatever prejudicial consequence may be from her extensive cross with regard to [the victim's felony] history as well on that issue."
With respect to the prior brandishing of the crime weapon, Ramsey's defense attorney argued the incident was made up, and asserted that allowing the testimony was highly prejudicial. The prosecutor explained that the incident came to light when her investigators were trying to locate the victim's sister, who had been in the car at the time of the shooting. They found the victim's mother at the last known address for the sister, and the mother volunteered the details of the argument that occurred in front of her before the shooting. The prosecutor noted that the victim had testified at the preliminary hearing that she had seen Ramsey with a firearm before, but that she had not been able to question the victim about the incident further after the hearing because the victim was in federal custody. The prosecutor also argued the evidence was highly probative of Ramsey's intention to kill the victim on the day of the shooting and that it should be left to the jury to judge the credibility of the victim and her mother about the brandishing incident.
The court found the probative value of the evidence concerning this brandishing incident outweighed any prejudice and allowed it to be admitted through the testimony of the victim's mother. The court, however, ruled both parties were precluded from mentioning the incident in opening statements or asking the victim about the incident prior to it being admitted through the testimony of her mother. 2. Trial Testimony
At trial, on direct examination the prosecutor asked the victim if Ramsey had been physically violent with her prior to the shooting. She responded that a month into their relationship, they were driving together somewhere and Ramsey stopped the car, "got out, walked to the passenger side of the backseat -- because that's where I was sitting at the time -- and he punched me in my eye." Ramsey's attorney then asked for a sidebar, and a discussion was held off the record. When the examination resumed, the victim testified she never reported the incident or told anyone about it. She could not remember exactly what started the altercation, but thought it was triggered by a john texting her.
The prosecutor next asked if there were other incidents of physical violence. The victim responded there had been three incidents, and she had not reported any of them to police. The prosecutor asked if the victim recalled showing the detective who interviewed her in the hospital "marks on [her] chest" caused by Ramsey. The victim recalled the marks were caused after an argument with Ramsey in Fontana, and that Ramsey "was like being very pushy and he ripped my clothes off me and stuff" and the marks were caused by Ramsey grabbing her. The victim then said she had wanted to leave the relationship, but that he threatened to beat her up when she brought up leaving.
The victim next testified about the brandishing incident. She stated that two weeks before the shooting, her mother came to Ramsey's mother's house in need of a ride. While the victim and her mother were in the car, the victim and Ramsey were arguing. Ramsey was yelling and hitting the car, and before the victim and her mother could leave, he grabbed a weapon from inside the house and sat on the front porch with the gun as they drove away.
The victim also testified about an ongoing argument that she had with Ramsey about whether she would prostitute for him. The victim did not want to prostitute to earn money for Ramsey; she just wanted to be his girlfriend. She then gave additional testimony about the physical altercation that occurred two days before the shooting. She stated that Ramsey hit her in front of his mother and his mother was telling Ramsey to stop. She said Ramsey "ripped my clothes off me, [and] choked me with the belt . . . ."
At the next break outside of the jury's presence, the court recounted the events that occurred off the record, noting that when the victim stated she had been punched by Ramsey, Ramsey's counsel objected and at the sidebar conference he asserted the defense had not been provided discovery of this punching incident. The court had then stated it would hear argument on the objection outside the presence of the jury and allowed the examination to continue. At the break, Ramsey's counsel raised his objection to the introduction of the evidence about Ramsey punching the victim in the face and the subsequent testimony concerning the incident two days before the shooting, which he described as "a much more inflammatory allegation that Mr. Ramsey tore off [the victim's] clothes and choked her out with a belt." He argued that he was never made aware of these incidents or provided discovery that he was entitled to under Penal Code section 1054.7 and Evidence Code section 1109.
The court asked "if there is no report specifically as to what took place, what is [the prosecutor's] obligation or that of the detectives? To keep questioning this witness until they produce some type of discoverable report for the defense? I don't think that's an obligation." The prosecutor noted the victim had not been forthcoming with details and that the prosecution provided the defense with all of the information it had in discovery. Ramsey's attorney then repeated his objection and also asked for a mistrial. The court denied the request and found "there was no affirmative obligation on the People to continue examining [the] witness to see if they could get even more detail than they had already received" and that the People had not intentionally withheld any information. The court also found no additional hearing or admonition to the jury was required and overruled Ramsey's objection to the evidence.
B
Evidence of a person's character or predisposition to act in a certain way is generally inadmissible to prove conduct in conformance with that character trait on a given occasion. (§ 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, section 1109 creates an exception to this general rule, providing that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a)(1).) The statute defines domestic violence as abuse committed against an "adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).)
" '[T]he legislative history of [section 1109] recognizes the special nature of domestic violence crime, as follows: "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all." (Assem. Com.[] on Public Safety[, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996,] pp. 3-4.)' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1235-1236, italics omitted.)
"[B]efore admitting evidence under section 1109, the trial court must exercise its discretion to determine whether the probative value of the evidence is 'substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (§ 352.)" (People v. Kerley (2018) 23 Cal.App.5th 513, 532.) While the record must affirmatively show the court conducted the requisite weighing, the court is not required to expressly do so, or to expressly state it has done so. (People v. Clair (1992) 2 Cal.4th 629, 660; People v. Mickey (1991) 54 Cal.3d 612, 656.)
In applying section 352, the trial court enjoys " 'broad discretion,' " and " '[a] trial court's discretionary ruling under . . . section 352 will not be disturbed on appeal absent an abuse of discretion.' " (People v. Clark (2016) 63 Cal.4th 522, 586.) Discretion is abused where the trial court acts " 'in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) " ' " ' "The 'prejudice' referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' . . . [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction." [Citation.]' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 491.)
When deciding whether evidence of a defendant's prior acts of domestic violence should be excluded under section 352, the court "must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . . ." (People v. Falsetta (1999) 21 Cal.4th 903, 917 [discussing the application of § 352 in the equivalent situation of the admission of prior sexual offenses under § 1108].) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119; see also People v. Ewoldt (1994) 7 Cal.4th 380, 405 [prejudice of uncharged acts lessened because they were "no more inflammatory" than the charged offenses].)
C
Ramsey argues the trial court erred by admitting the victim's testimony under section 1109 concerning two prior acts of domestic violence: (1) When he punched her through the car window and (2) when he tore her clothes and choked her with a belt in front of his mother. Specifically, he contends this evidence was improperly admitted because the precise details of the incidents were not disclosed to his counsel before trial. To support this contention, Ramsey points to section 1109, subdivision (b), which states that, "In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code." Ramsey also argues the court's pretrial order permitting the prosecution to examine the victim about the entire nature of her relationship with Ramsey was a violation of section 1109's disclosure requirement.
Penal Code section 1054.7, which governs discovery in criminal proceedings, states: "The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement."
The Attorney General responds that the prosecutor did not run afoul of the pretrial disclosure requirement set forth in section 1109, subdivision (b) because by its terms, and common sense, the statute is limited to evidence " 'that is expected to be offered . . . .' " We agree. The record before this court supports the trial court's finding that the prosecutor disclosed all of the information she had about the prior acts of domestic violence against the victim.
Further, the disclosure requirement contained in section 1109 is "designed to 'protect the defendant from unfair surprise and provide adequate time for preparation of a defense.' " (People v. Soto (1998) 64 Cal.App.4th 966, 980 (Soto).) Here, there was no unfair advantage created by the new testimony. Both sides were required to adjust to the new information and Ramsey's counsel appropriately objected and sought a ruling from the court under sections 1109 and 352. As the law requires, the court then considered the highly relevant testimony and determined it was not unfairly prejudicial. Ramsey's prior acts of domestic violence were not more inflammatory than the charged offense of shooting the victim. The prior acts and the charged offense were also sufficiently distinct to preclude the possibility the jury would confuse them.
Further, and importantly, as the Attorney General also points out, the prosecutor's discovery obligations under section 1109 and Penal Code section 1054.7 do not require detailed statements of expected testimony or the exact testimony a witness is expected to provide. Rather, the provision "simply requires the prosecution to disclose the 'statements of witnesses or a summary of the substance of any testimony that is expected to be offered.' " (Soto, supra, 64 Cal.App.4th at p. 981.) That is what occurred in this case with respect to both incidents at issue—the victim testified that Ramsey "ripped my clothes off me, [and] choked me with the belt" in front of Ramsey's mother and that Ramsey punched her through a car window. The district attorney's motion in limine seeking to admit prior acts of domestic violence stated that the victim had "described prior incidents where [Ramsey had] punched and hit her all over her body and left marks" and that "much of it was done in front of his mother, who would intervene on her behalf." This disclosure was sufficient to encompass both of these prior incidents. The court's pretrial ruling allowing the testimony under sections 1109 and 352 was not an abuse of discretion.
D
Ramsey also contends that the admission of the victim's statements that he wanted her to prostitute for him was an abdication of the court's responsibility to conduct a hearing under section 402, and an abuse of discretion under sections 1109 and 352. The record before this court, however, makes clear that the trial court did not abdicate its responsibility to consider whether the probative value of this evidence was substantially outweighed by its unduly prejudicial nature. 1. Background
Prior to trial, during the argument on in limine motions, the prosecution sought to introduce through the victim's testimony "the history between [the victim] and Mr. Ramsey, specifically including the fact that [the victim] says he was acting as her pimp and forcing her into prostitution on the day prior to this incident, which is the entire nexus of why this incident occurred. [¶] When they were in the car, they were arguing first over a cigarette and then her prostituting for him; and the context was her being a bad mom for being a prostitute. But the only reason she was prostituting, according to her, is because he was forcing her into that situation based on the prior violence." These facts were intertwined with the prior acts of domestic violence.
Ramsey's counsel objected, arguing that the prostitution element of the argument was not relevant to the shooting, and was highly prejudicial because there were no charges against Ramsey related to prostitution. The defense's theory was that the fight leading to the shooting was about a cigarette lighter and the victim wanting to leave Ramsey, but not about her working for him as a prostitute. The court rejected this argument, finding the jury was entitled "to understand the relationship in its entirety between" Ramsey and the victim, including any prostitution, because of its high degree of relevance to whether or not Ramsey intended to fire the gun.
After the unfavorable ruling, Ramsey's attorney suggested a hearing under section 402 was needed to clarify the factual issue of whether the victim would testify that she and Ramsey were arguing about prostitution immediately before the shooting. The court rejected the request, repeating its ruling that evidence that the victim's prostitution was the basis for the argument was highly probative of Ramsey's motive, and was admissible. As discussed, the court also ruled that an additional hearing under section 402 was not necessary because if the victim denied the argument was about Ramsey forcing her to prostitute, the prosecution would have to live with that answer.
Section 402, titled "Procedure for determining foundational and other preliminary facts" provides: "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
At trial, the victim testified that Ramsey tried to force her to prostitute for him, and that when she refused he was violent with her. She also claimed that although Ramsey tried to force her to work for him, she never actually did. Ramsey's counsel impeached this testimony with a prior statement she made to the police in a recorded interview the day after the shooting that she had worked for Ramsey as a prostitute a few times in the past. With respect to the fight just before Ramsey pulled the trigger, the victim testified they were arguing because Ramsey wanted her to prostitute to earn money for him and she did not want to because she was a mother and was worried about getting arrested. 2. Analysis
Ramsey's first argument with respect to this evidence, that the trial court failed to act as an informed gatekeeper, is belied by the record. The court considered the evidence at issue and carefully weighed its probative value against the prejudicial effect it would have on the jury. The fact that the parties and court were not sure whether the victim would testify, as she had during the preliminary hearing, that she and Ramsey were arguing over prostitution did not prevent the court from conducting the requisite analysis. As the trial court stated, the prosecution would have to suffer the consequences of any changed testimony.
Ramsey's second argument, that the testimony is propensity evidence that should have been excluded under section 1101, is also not persuasive. He asserts prostitution is not "domestic violence" that can be admitted under section 1109. This argument mischaracterizes the testimony at issue. As noted, at trial the victim testified that she had never prostituted for Ramsey. Instead, she said that he had repeatedly tried to force her to prostitute for his benefit, and that this issue had led to Ramsey's violence in the past. The victim's statements to police officers that she had prostituted for Ramsey a few times was solicited by Ramsey's attorney during his cross-examination of the victim to impeach her. Ramsey's own introduction of this evidence waives his challenge here. (See People v. Williams (1988) 44 Cal.3d 883, 912 ["It is axiomatic that a party who himself offers inadmissible evidence is estopped to assert error in regard thereto."].)
Further, the conflicting evidence about whether or not Ramsey was ever the victim's pimp is not accurately characterized as prior bad act, propensity evidence. Instead, the evidence concerned the relationship between Ramsey and the victim, and the ongoing dispute between them that led to the shooting. The restriction imposed by section 1101 and the exception created by section 1109 do not govern the admissibility of the victim's testimony on this topic. This evidence, as the trial court found, was directly relevant to whether or not Ramsey intended to shoot the victim and its admission was not an abuse of discretion.
II
Admission of the Victim's Statement That Ramsey Used Cocaine
Ramsey next argues that the victim's single statement at trial that Ramsey used cocaine requires reversal of the conviction. The statement at issue was made after the prosecutor asked the victim if she was using drugs over the period of time in which she and Ramsey were together. The prosecutor asked her if she was using "any drugs during this period," and she responded that she used meth. The prosecutor then asked, "What about Mr. Ramsey? Was he using anything?" Ramsey's attorney objected, and the court asked the prosecutor to restate the question. The prosecutor then asked, "Would Mr. Ramsey also use meth with you?" Ramsey's attorney again objected based on relevance and improper character evidence. The court overruled the objection, and the victim answered: "No. He would use coke." The prosecutor asked, "So would the two of you use drugs together?" to which the victim responded, "Yes."
In her closing argument, the prosecutor referenced the colloquy once. In explaining the bad choices the victim made to bring her to this point and asking the jury not to punish her for those choices, the prosecutor stated that the victim "found herself in a relationship with this guy. He's carrying a loaded gun, and they are doing drugs and prostituting." (Italics added.) The prosecutor did not rely on the evidence or relate it to Ramsey's crimes.
The evidence of Ramsey's guilt was overwhelming. Even if it was error for the court to allow the victim's statement that Ramsey used cocaine while the victim used methamphetamines, there is no reasonable probability that a different verdict would have been reached in the absence of the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) The admission of the statement was not unfairly prejudicial.
Ramsey's reliance on People v. Davis (1965) 233 Cal.App.2d 156 to support his claimed error is misplaced. In Davis, the Court of Appeal reversed a robbery conviction based on the prosecution's introduction of the testimony of the arresting officer, who believed the defendant was under the influence of narcotics at the time of arrest. (Id. at pp. 160-161.) The officer's testimony was introduced after the testifying defendant denied using drugs. (Id. at p. 160.) The court concluded that the inference drawn from the officer's testimony by the prosecution that the defendant was a habitual drug user, who needed to commit robbery to support his habit, was not supported by any other evidence and unduly prejudicial. (Id. at pp. 160-161.) Davis is entirely distinguishable from this case, in which the prosecutor drew no line between Ramsey's use of cocaine and the crimes at issue.
III
Hearsay Evidence
Ramsey's final contention concerns the admission of the victim's statement to police that she had been told to leave Ramsey because if she didn't, he would kill her.
A
The victim was interviewed in the hospital by two detectives the day after she was shot. The interview was recorded. During the interview, as the detectives asked the victim to recount the details of the shooting, she stated she wanted to "leave 'cause everybody kept saying the[y] felt like either he was gonna kill me or something bad was gonna happen because of him." The detectives then steered the conversation back to the shooting. At trial, the prosecutor asked one of the interviewing detectives, Guadalupe Catano, if during that hospital interview the victim told her "about a prior incident where [Ramsey] had beat [the victim] up in front of his mom?" Catano responded that "[the victim] told me that he had beat her in front of his mom; and his mom, I guess -- his mom must have felt really bad. Mr. Ramsey's mom told her that she should leave him because if not, he was going to kill her." Ramsey's attorney did not object to the testimony.
When Ramsey's attorney cross-examined Catano, he impeached Catano with the transcript of the recorded interview, which showed that the victim had not said that Ramsey's mother had warned her to leave because if she didn't, Ramsey would kill her. Rather, the transcript showed that the victim reported that Ramsey had beaten her in front of his mother, and Ramsey's mother told the victim only that she should leave. Catano then testified that she thought there was another place in the transcript where the victim said the "the mom and her family members were telling her to leave him or he was going to kill her."
At the beginning of the next trial day, the prosecution moved to admit into evidence the recorded interview of the victim. The defense objected, arguing that playing the interview was cumulative to the victim's and Catano's testimony, which included much of the same information. Ramsey's attorney also asserted that some statements in the interview were inadmissible hearsay, specifically pointing to the victim's statement that other people told her Ramsey was going to kill her. The court expressed concern about that statement, but allowed the transcript of the interview to be admitted and found that the statement was admissible for the nonhearsay purpose of showing the victim's state of mind. The court also ruled it would provide a limiting instruction to the jury and ordered the parties to highlight for the jury all of the statements in the transcript that were not being admitted for the truth of the matter asserted therein.
Before playing the recorded interview for the jury and providing them the highlighted transcript, the court instructed that the highlighted portions were not admitted "for the truth of the matter asserted" and that the jury could "consider the highlighted statements for [their] effect on [the victim] and how you evaluate what she did or what she said during the course of the action" the day of the shooting. The court continued, "So again, you cannot consider the highlighted statements for the truth of the matter asserted in the statement, only as it might affect her in what she did or said in conjunction with our case." The recording of the interview was played for the jury and the jury was provided the transcript with the victim's statement that "everybody kept saying the[y] felt like . . . he was gonna kill me" highlighted.
B
As an exception to the hearsay rule, evidence of a declarant's then-existing state of mind is admissible when offered to prove the declarant's state of mind or to explain the declarant's conduct, unless the statement was made under untrustworthy circumstances. (§§ 1250, 1252.) To admit a statement consisting of multiple levels of hearsay, each level must satisfy a hearsay exception. (§ 1201.)
Section 1250 states: "(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind . . . when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
Section 1252 states "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
We review a trial court's admission of evidence under a hearsay exception for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725.) Under this 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.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
C
Ramsey contends the victim's statements that other people told her to leave Ramsey because if she didn't he would kill her was improperly admitted both through (1) Catano's testimony and (2) the recorded interview itself. As to Catano's testimony, Ramsey's counsel did not object to this double-hearsay statement. Instead, the defense attorney made the tactical decision to impeach detective Catano with the transcript, which did not contain any statement that Ramsey's mother told the victim Ramsey was going to kill her. This cross-examination testimony showed that Catano was misremembering the exact contents of the interview and called her credibility into doubt.
The first level of hearsay is the victim's statement to the detectives, and the second is the alleged statement by Ramsey's mother (or others) to the victim.
Ramsey's attorney's failure to object to this testimony, and instead use it to his advantage, forfeited this claimed error for purposes of appeal. (People v. Clark (2016) 63 Cal.4th 522, 574.) Further, the attorney's decision not to object does not support a claim for ineffective assistance of counsel because it was a strategic litigation decision. (See People v. Maury (2003) 30 Cal.4th 342, 419 ["[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance."].)
With respect to the interview recording played for the jury, the trial court did not err by admitting the challenged statement, this time over Ramsey's attorney's objection. The victim told the detectives that "everybody kept saying the[y] felt like either he was gonna kill me or something bad was gonna happen because of him." The court admitted the hearsay statement by "everybody" for the nonhearsay purpose of the effect of the statement on the victim. The prosecution was required to prove that she was in fear for her life to support the charged offense of criminal threat under Penal Code section 422. (See People v. Toledo (2001) 26 Cal.4th 221, 227-228 [To prove criminal threat, the prosecution must establish "that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' " and "that the threatened person's fear was 'reasonabl[e]' under the circumstances."]) The fact that the victim was told Ramsey would kill her, regardless of the truth of that statement, supported the inference that she feared for her safety on the day of the shooting.
The statement was also relevant to show that the victim was fearful to rebut Ramsey's theory that the shooting was accidental. (See People v. Riccardi (2012) 54 Cal.4th 758, 816 [noting out-of-court statements concerning declarant's fear are admissible "when the victim's fearful state of mind rebutted the defendant's claims that the victim's death was accidental"], abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Regardless of whether or not others actually believed that Ramsey was going to hurt or kill the victim (the truth of the matter asserted), the fact that she heard the statement supported an inference that she feared he would. Further, the court gave a limiting instruction that the jury should not consider the statement for its truth, i.e., that others believed Ramsey would kill the victim. This instruction mitigated the risk the jury would improperly consider the statement for its truth. (§ 355 [When evidence is admissible for one purpose and not another, the court "shall restrict the evidence to its proper scope and instruct the jury accordingly."].)
Finally, even if we were to find error in the admission of this evidence, it would not support reversal of the verdict. The victim testified that Ramsey physically abused her, that she was scared of him, and that she made the decision to leave Ramsey in the days before the shooting after he beat her in front of his mother. In addition, she testified that Ramsey's mother and cousin counseled her to leave him after that beating. This evidence left no question that the victim feared what Ramsey would do to her if she stayed in the relationship with him. The admission of the hearsay statement that others had told her the same does not support Ramsey's contention that the verdict would have been different in the absence of this evidence.
Having concluded there was no prejudicial error as to any of the issues raised by Ramsey, we do not reach his claim of cumulative error. (People v. Richardson (2008) 43 Cal.4th 959, 1036.) --------
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.