Opinion
A155212
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. RICKEY JOSEPH ROBERTS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 227657)
A jury convicted defendant Rickey Joseph Roberts of second degree murder (Pen. Code, § 187) and making criminal threats (§ 422, subd. (a)). Sentenced to a term of 18 years to life, defendant appeals. He contends the trial court erred by failing to instruct the jury on the lesser included offense of voluntary manslaughter based on heat of passion, excluding evidence of the victim's mental illness, refusing to answer a jury question about implied malice, admitting the victim's hearsay statements reporting domestic violence, and instructing the jury that it could consider expert testimony on intimate partner battering in evaluating the victim's credibility. We affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with murder (§ 187, subd. (a); count 1) and making criminal threats (§ 422; count 2), following a violent incident which occurred at a senior citizen housing complex in San Francisco where defendant and the victim, O.C., lived in separate apartments.
The Prosecution's Case
i) The December 13, 2015 Assault
Security guard Elamin Clark was working an early morning shift at the housing complex on the day of the incident. O.C. found him in the kitchen by the community room and asked him to call 911. She appeared to be in pain and needed to go to the hospital. Clark noticed a bruise on her forehead. He walked with her to her apartment to get her jacket. The jury watched a video of their interaction.
An audiotape of Clark's 911 call was played in court. Clark told the operator that O.C. reported her head and neck were hurt. He also relayed that she had been abused and had identified defendant as her abuser. O.C. can be heard crying in the background. When police arrived, Clark guided them to defendant's apartment.
Fire department captain Michael Mason testified that he responded by ambulance to O.C.'s apartment building around 6:00 a.m. O.C. walked to the ambulance with a security guard and had a steady gait. She reported that she had been physically assaulted. She said she was struck in the head and lower back multiple times with closed fists and had been choked, after which she fell to the ground and lost consciousness. Mason observed a bruise on the right side of her head, a depression behind her right temple, redness around her neck, and lacerations on her lips. She reported pain on the left side of her head as well as her lower back.
O.C. was alert but slow to respond when asked what year it was. She remained alert en route to the hospital. She was unable to tolerate a cervical spine collar. Mason decided to transport her to a trauma center with lights and sirens because she had a head injury and was on Plavix, a blood thinner. Mason explained that people who take blood thinners are vulnerable to internal bleeding, especially brain bleeding, if they experience any sort of trauma.
Officer Miguel Cortez spoke to O.C. in the back of the ambulance. She reported she had been in an altercation with defendant in her apartment. She was crying, squirming, whimpering, and appeared to be in pain. Cortez noticed cuts on her head and lip and marks on her face and neck. Officer Cortez was admitted into defendant's apartment, where he found defendant lying on a couch asleep. He shook defendant awake and asked what had happened to O.C. Defendant said, "She kept pushing me so I went off." He smelled of alcohol and had bloodshot, watery eyes and slurred speech, but denied he had been drinking. On his back were several evenly spaced scratches that were a bit scabbed over. Defendant said O.C. had scratched him. Cortez arrested defendant.
Officer Anthony Sharron took photographs of O.C. in the back of the ambulance. The photos showed red marks on the right side of her neck, redness and swelling to her lips, bruising to her cheek, and redness to her right ear. Sharron testified that O.C. was crying and her hands were shaking. She was complaining of pain to her head and face and was having difficulty breathing. She told Sharron she was sleeping in her apartment when defendant woke her up by yelling and causing a disturbance. He punched her multiple times in the head and face area with closed fists and then used both hands to choke her neck, stating, "I will fucking kill you." She lost consciousness while being choked. When she woke up she was on the floor. She went to the building lobby to seek help. She said defendant was drunk and they had not argued before the assault occurred.
Sergeant David Almaguer went to the hospital later that morning and saw O.C. in the emergency room, unconscious and unresponsive. Almaguer went to O.C.'s apartment and then to the police station to meet defendant. Defendant had injuries to his left hand and scabbed-over scratches on the lower portion of his back. Almaguer asked defendant about dried blood he had found on the inside of O.C.'s door. Defendant stated it was likely blood from his finger. He denied hitting, choking, or threatening O.C. He acknowledged that he had placed his hands on her neck.
The jury heard an audio recording of a Mirandized interview conducted the day after the incident. Defendant explained he had been sleeping in O.C.'s apartment when she suddenly woke him up and asked him to leave. She then bit his hand. She was hysterical. He rushed to leave but could not find his clothes, putting on O.C.'s pants by mistake. She was blocking his path to the door so he pushed her aside to get out. He denied hitting or choking her, stating that he only grabbed her by the shirt collar to move her out of his way. He did not see her fall. He said she was a delicate bleeder and bruised easily.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant did not know how he got the scratches on his back but said, " 'She must have hit me with something.' " He said his hands were around her neck for less than a minute. He did not intend to hurt her, only to get her to back off so he could leave. He did not want to be around when she was "in that state." When his hands were on her neck, he thought about how much her bite had hurt him and that this was not the first time she had bitten him. But he denied that his temper got the best of him, saying, "I was, like I say, I was still like half-asleep. Okay?" When asked to explain why he told officers that he "just went off," he said, "I just pushed her to get, to move her back from me." O.C. died three days after the assault following a failed surgery to treat an intracranial hemorrhage.
Dr. Amy Hart, a medical examiner and an expert in forensic pathology, conducted O.C.'s autopsy. Dr. Hart identified 19 blunt force injuries to O.C.'s head, neck, torso, and extremities. She stated that O.C.'s brain swelled due to a blunt impact to the right side of the head that damaged the left side of the brain. This kind of injury is referred to as a "contrecoup" or a "rebound" lesion. The injury probably resulted from her head being in motion at the time of impact. This kind of injury is commonly seen when an individual is pushed into an object or is not able to brace themselves from impact when they fall. The injury to the right side of O.C.'s head occurred at the same time as the injury to the left side of the brain. Her cortical ribbon was damaged, which is consistent with an injury to the surface of the brain. The brain hemorrhage was below the membrane, which is usually a marker for trauma.
Dr. Hart concluded the cause of O.C.'s death was blunt trauma with neck compression. The manner of death was homicide, based on the distribution of contemporaneous injuries over multiple planes of O.C.'s body. This pattern of injuries is most consistent with another person having caused the trauma. Dr. Hart stated that the findings of O.C.'s scans, angiogram, and autopsy were not consistent with a hypertensive hemorrhagic stroke. When shown a photograph of the red marks on defendant's back, Dr. Hart stated that it would have taken many hours or days for the scab to have formed.
ii) Evidence of Prior Domestic Violence
Officer Lauren Newhart visited O.C.'s apartment building in November 2014 following a 911 call. O.C. had an egg-sized lump on her upper right shoulder and bruising to her right wrist and under her right eye. O.C. told Newhart she was afraid to call the police because defendant had said that if she did, " 'he would beat me so bad he wouldn't care if he went to jail because I'd be dead.' " She was upset, tearful, crying, and fearful for her life.
O.C. reported that the two had argued in his apartment after she refused to marry him. He became angry and grabbed her right wrist and started punching her in the head and other parts of her body. She was able to get away when his brother called on the phone. O.C. and defendant had been dating for about two and a half years. He had assaulted her before, but she had not reported it to the police. The last time he assaulted her was about four months before when he grabbed her by the neck and threw her down on the ground.
Newhart and other officers went to defendant's apartment but he refused to open the door. They broke down the door and arrested him. Defendant denied striking O.C. He seemed apologetic but calm. He said O.C. was upset and "blew up and got all out of whack you know." He initially denied touching her, saying he "just tried to stay as far away from her, because she goes in her mood swings you know." He later admitted, " 'I just grabbed her and told her to go home.' "
Dr. Sacha Niemi saw O.C. in December 2014. O.C. had significant bruising along her right upper cheek and her entire right arm. Dr. Niemi was concerned for O.C. and gave her information about shelters and other resources. Dr. Niemi saw O.C. again in March 2015 after O.C. fell on a bus. O.C. suffered a stroke in August 2014 and had been recently prescribed blood thinners after a stent was placed in her heart.
During a follow-up visit two months later, O.C.'s phone was incessantly ringing. O.C. said she was ignoring her ex's calls. When she finally answered, Dr. Niemi heard a voice yelling and cursing her. Dr. Niemi got on the phone and was cursed by defendant as well. He was aggressive, belligerent, and irate, and threatened to go to the doctor's office. O.C. informed Dr. Niemi that her ex was stealing her blood thinners and nitroglycerin pills. Defendant only gave her the pills if she did what he wanted. Dr. Niemi called the pharmacy to rush her a new supply of medications. She then called O.C.'s social worker to report what had happened and to see if O.C. could be moved to a safer location. During her next office visit in July 2015, O.C. had new bruising on her right ribcage area. O.C. said she had been attacked by her ex two weeks before, resulting in a broken finger and a broken patella. Dr. Niemi referred her for orthopedic follow up.
Connie Swain worked for an agency that assists domestic violence victims. O.C. came to her in November 2015, saying she thought her partner was getting into her residence. She wanted to change her locks and to be transferred to safer housing. She said that her partner had choked her in the past and she was afraid. Swain helped O.C. fill out a form for an emergency transfer to another public housing unit. Swain submitted the transfer request but O.C. never provided the necessary supporting documents, including a police report and a restraining order.
John McDonald was a social worker who worked at O.C.'s apartment complex and had seen defendant when he was intoxicated. In November 2015, McDonald met with O.C. She said defendant had taken her keys and choked her. He met with O.C. and Swain to discuss getting a restraining order. O.C. later told McDonald she had obtained a restraining order but did not have the funds to have it served on defendant. McDonald advised that there are agencies that help pay to serve restraining orders.
A.C., O.C.'s older sister, testified that two weeks before the assault, O.C. mentioned that defendant had threatened to kill her because she would not have sex with him. O.C. said defendant had beaten and choked her, and A.C. observed bruises on her neck. The parties stipulated that A.C. never witnessed defendant assaulting O.C. Several phone messages left by defendant on O.C.'s cell phone in September and November 2015 were played for the jury. In many messages, defendant cursed repeatedly and threatened to beat and kill O.C. or have her killed by others.
iii) Expert Testimony on Intimate Partner Battering
Nancy Lemon, an expert witness in domestic violence and intimate partner battering, testified generally about the patterns and cycles of domestic violence. Lemon testified without knowledge of the specific facts of the present case. Lemon described the cycle of violence as a progression of abusive behavior. The cycle has three phases, the romantic "hearts-and-flowers" stage, the "tension-building" stage, and finally the "explosive release of tension." Such explosions will become increasingly violent over time. After an explosion, the relationship will go back to the romantic stage with the abuser apologizing. The cycle may repeat. If the victim tries to leave, the abuser can feel rejected and try to exert control again. Lower-income people can have a harder time leaving an abusive relationship because it is hard to find alternative shelter. A person living in the same building as an abuser who felt unable to leave, "would just try to placate the other person to try to keep them from getting violent."
Lemon also described different ways that abusers attempt to exert their power and control over a partner, including coercion, threats, and isolation. Threats to kill the victim can be very effective if there has been prior physical or sexual violence. The prosecutor posed a hypothetical to Lemon involving a victim in a doctor's office receiving an abusive phone call. In this hypothetical, "the female victim tells the doctor that the individual had been taking her medication[,] nitro, for her heart and blood thinners" in order to get her to do what he wants. Lemon responded that the behavior sounded extremely dangerous for the victim, and that it seemed "like another example of extremely controlling behavior where the abusive party is using whatever means they can think of in that particular relationship to intimidate, threaten, and control their partner."
Lemon said it is common for victims to stay in abusive relationships. They may do so out of fear, shame, financial dependence, love, immigration status, religious pressure, or the hope that the person will change. If a party cannot separate from the abuser, he or she might be reluctant to participate in a criminal prosecution. It also is not unusual for a person to have been abused for a long time before filing a report. Abusers will commonly try to discourage victims from reporting abuse. Abusers commonly minimize inflicted bruises by saying that the victim bruises easily. Lemon also stated that while mutual domestic violence occurs, it is very rare.
Defendant's Case
Dr. Richard Medoff treated O.C. on two separate occasions in the emergency room. In March 2015, she fell backward on a bus and sustained a bruise on the back of her head. She reported some neck pain. Because she was on blood thinners, she received a head scan to make sure there was no bleeding in the brain. O.C. received another brain scan after a fall in September 2015, in which the results came back negative. Neither of the two injuries appeared to be consistent with a punch. When shown a postmortem photograph of the back of O.C.'s head, Dr. Medoff opined that such an injury could cause fatal intracranial bleeding in a person on blood thinning medication.
Sergeant Esther Gonzalez investigated the November 2014 incident. During the interview, O.C. told her she had been hit on the head and choked. She had difficulty recalling the series of events and how they transpired. She initially described falling asleep and waking up to defendant manipulating her feet. An audio recording of this interview was played for the jury. O.C. stated she and defendant had been arguing about sex, not marriage, but she did not disclose this initially because she believed the male officers were laughing at her. She also said defendant had mental health issues and was on medication. She did not know if he was schizophrenic or bipolar. She did not know how she got her shoulder bruise but said she had been hit in the head, even though she had reported a shoulder injury.
Defendant's older brother H.R. testified that he often stayed at defendant's apartment. Defendant would spend the night at O.C.'s apartment on those occasions. H.R. was staying in defendant's apartment at the time of the assault. H.R. left for work around 4:00 p.m. and returned at about 10:00 p.m. O.C. and defendant were in the apartment watching television. They later went up to her apartment and H.R. went to sleep on the couch. He was awakened by O.C. pounding on the patio glass door at around 5:00 a.m. She asked H.R. to come up to her apartment and get his brother and then left. She looked angry and unhappy. He did not notice any physical signs of struggle or trauma. Shortly thereafter, defendant arrived, wearing only a pair of jeans that were too small for him. He and defendant went back to sleep. About an hour later, the police came to the door.
H.R. did not see any injuries to defendant's hands or back. Defendant did not say that he had been in a fight or that he had acted in self-defense. H.R. said defendant uses a lot of foul language and gets loud and angry when he is drinking. H.R. was aware that O.C. had filed a restraining order against defendant in November 2015. O.C. never complained to H.R. about defendant hitting her. After defendant's arrest, he asked H.R. to get rid of medications that were in the apartment. None of the medications had O.C.'s name on them. Recordings of two jailhouse phone calls with defendant were played for the jury.
Defense Expert Testimony
Dr. Judy Melinek testified as an expert witness in forensic pathology, wound interpretation, and neuropathology. Dr. Melinek agreed with Dr. Hart that the manner of death was homicide but disagreed as to the cause of death. In her opinion, death was caused by blunt trauma to the head exacerbated by the presence of high blood pressure and the use of the blood thinner Plavix. The actual trauma was not significant, and for a person not on Plavix the injury was probably survivable.
Dr. Melinek did not believe there was enough evidence to conclude O.C. had been strangled or that there had been neck compression. It did not appear that defendant had slammed O.C. against a wall because there were no lacerations to the scalp and no skull fractures underneath the head contusion. Bleeding was not indicative of a contrecoup injury, but rather of a hypertensive bleed, caused when a spike in blood pressure leads to bleeding in the brain. The CT scans showed the initial impact was not forceful enough to cause immediate bleeding into the brain. That the brain injury was delayed was supported by the fact that O.C. could walk and talk right after the injury occurred. Dr. Melinek concluded O.C. died of a stroke, though the underlying cause of death was the injury to the right side of her head from blunt force trauma at the hands of another.
Dr. Melinek further explained that O.C.'s blunt force trauma injuries were consistent with having been pushed on her collarbone area and falling on an uneven surface. The stroke exacerbated the head injury and was an indirect complication of the blunt trauma. As to the scratches on defendant's back, Dr. Melinek thought the injuries were made by a tool or weapon, not fingernails. The abrasions looked fresh to her. She agreed the injuries on defendant's hand could have been defensive fingernail marks inflicted during a strangulation.
Verdicts and Motion for New Trial
The jury found defendant guilty of second degree murder and guilty of making criminal threats. Prior to sentencing, the trial court denied defendant's motion for a new trial based on the failure to sua sponte instruct on the heat of passion theory for voluntary manslaughter. The court sentenced defendant to the aggravated term of three years on count 2 and 15 years to life on the murder count to be served after completion of the sentence for count 2. This appeal followed.
DISCUSSION
I. Failure to Instruct on Heat of Passion
Defendant first contends he was deprived of due process and a fair trial because the trial court refused to instruct the jury on voluntary manslaughter based on the theory of sudden quarrel and heat of passion. The court instructed on voluntary manslaughter in connection with the theory of imperfect or unreasonable self-defense (CALCRIM No. 571), but found insubstantial evidence to instruct on sudden quarrel/heat of passion. (E.g., CALCRIM No. 570.) We find no error.
A. Relevant Law
" '[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.' [Citation.] Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) " 'This substantial evidence requirement is not satisfied by " 'any evidence . . . no matter how weak,' " but rather by evidence from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed." [Citation.] "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." ' " (People v. Souza (2012) 54 Cal.4th 90, 116.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Manslaughter is the unlawful killing of a human being without malice." (§ 192, subd. (a).) Manslaughter is a lesser included offense of murder, and a defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter.
"Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (People v. Nelson (2016) 1 Cal.5th 513, 538.) "A heat of passion theory of manslaughter has both an objective and a subjective component." (People v. Moye (2009) 47 Cal.4th 537, 549.) To satisfy the objective component, the defendant must have reacted to provocation " 'that would cause an emotion so intense that an ordinary person would simply react, without reflection.' " (People v. Rangel (2016) 62 Cal.4th 1192, 1225, quoting People v. Beltran (2013) 56 Cal.4th 935, 949 (Beltran).) To satisfy the subjective component, the defendant must have experienced emotion " 'so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.' " (Rangel, at p. 1225.) Heat of passion is inapplicable absent evidence that " 'the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' " (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).)
B. Analysis
Defendant contends there was substantial evidence to instruct on a heat of passion defense. He argues he was provoked by O.C. waking him up, biting his finger hard enough to draw blood, and inflicting scratches on his back. O.C.'s actions caused him to became "enraged," and he "probably feared that she would continue biting him unless he did something to stop her." Defendant also notes he told the police that he "went off" on O.C. after she bit him, and asserts these facts are more compelling than the facts in Barton. We disagree.
The defendant in Barton was convicted of voluntary manslaughter. (Barton, supra, 12 Cal.4th at p. 190.) On appeal he argued that the trial court erred by giving a heat of passion instruction over his objection. (Id. at p. 194.) The Supreme Court disagreed, finding sufficient evidence of provocation to support a heat of passion instruction. The victim in Barton tried to run the defendant's daughter's car off the road and spat on the window of her car. When confronted by the defendant, the victim acted " 'berserk,' " taunted the defendant, and assumed a fighting stance. The argument escalated, with the defendant screaming and swearing at the victim and ordering him to " 'drop the knife' " before shooting the victim. (Id. at pp. 201-202.) Barton bears no similarity to the present case. There was substantial evidence from which a reasonable jury could find that the defendant feared for his life and was so enraged over the treatment of his daughter that that he lost the ability to process the situation rationally. (Ibid.)
In this case, while there was evidence O.C. woke the defendant up and drew blood when she bit his hand and scratched his back, there was no evidence that defendant was so overcome with emotion that his judgment was obscured. On the contrary, defendant told police officers that after O.C. bit him, he hurriedly tried to find his clothing so that he could leave her apartment. He denied hitting or choking her, stating that he merely pushed her away from the door so that he could exit. Defendant also denied that he was angry with her, telling police, "I was still like half-asleep. Okay?" His brother H.R. also testified that defendant returned to his apartment and immediately fell asleep, giving no indication that he was upset.
Defendant's statement to police that he "went off" is too vague and insubstantial to form the evidentiary basis for a heat of passion instruction. "[C]ase law and the relevant jury instructions make clear the extreme intensity of the heat of passion required to reduce a murder to manslaughter." (Beltran, supra, 56 Cal.4th at p. 950, italics added.) Defendant never clarified what he meant by the phrase "went off." When pressed by the officer, he said he was not angry and used only minimal force to move O.C. from the door.
The more apt comparison is to People v. Gutierrez (2009) 45 Cal.4th 789. In Gutierrez, the "[d]efendant . . . testified that [the victim] scratched his chest, he kicked her, she kicked him in the leg and grabbed his shirt, and he pulled away. . . . [R]ather than causing defendant to become enraged, defendant testified that he simply walked away." (Id. at p. 827.) The appellate court concluded that a voluntary manslaughter instruction was not required under the circumstances because "[s]imple assault, such as the tussle defendant described, also does not rise to the level of provocation necessary to support a voluntary manslaughter instruction." (Ibid.) We conclude the trial court did not err in refusing the requested instruction.
II. Exclusion of Evidence of O.C.'s Mental Health
Defendant next argues that the trial court abused its discretion when it excluded evidence that O.C. suffered from schizophrenia. He contends the exclusion undercut his ability to challenge her credibility as a trustworthy reporter of his prior wrongful conduct. This matter was first raised in the People's motion in limine No. 36 requesting the exclusion of testimony of "Bonnie Jo Bell, RN, regarding [O.C.'s] medical condition unrelated to her demise." There is no briefing associated with this motion and no factual predicate for defendant's contention. The motion, along with others relating to medical witnesses, was discussed in chambers in an unreported exchange. Defendant's counsel did not state on the record any objection to the court's ruling on this motion. We question whether defendant has presented an adequate record from which to review his claim of error. At any rate, we find that the trial court did not abuse its discretion in excluding such evidence.
"[T]he mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness's ability to perceive, recall or describe the events in question." (People v. Gurule (2002) 28 Cal.4th 557, 591-592.) A defendant may challenge the credibility of a declarant on the same bases as the credibility of a witness. (People v. Blacksher (2011) 52 Cal.4th 769, 806 (Blacksher).) The trial court has "broad discretion" to determine whether to admit such evidence. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072.) "On appeal, a trial court's decision to admit or not admit evidence . . . is reviewed only for abuse of discretion." (People v. Williams (1997) 16 Cal.4th 153, 196-197.)
At trial, defense counsel suggested that aspects of O.C.'s behavior "would be relevant in terms of [an Evidence Code section] 780-type of credibility analysis." Counsel indicated that one of O.C.'s daughters "would describe the behaviors of [O.C.] expressing that things are being moved, and that might be associated with her schizophrenia and that she—that [O.C.] is schizophrenic, but does not take her medications." Counsel also discussed calling Nurse Bell to describe "erratic behavior on [a hospital] campus and associated this with possible mental instability." The trial court responded: "I had made clear from the beginning that the issue of the diagnosis of [O.C.] as schizophrenic, or the fact that she was prescribed medication related to that, that those issues were off limits in this trial, and that no one would be allowed to testify as to those issues." The court then ruled that O.C.'s daughter could be questioned about her mother's conduct if she testified, but the nurse would not be allowed to testify. O.C.'s daughter did not testify at trial. Later, the court denied a motion for mistrial following testimony from Dr. Niemi that O.C. stated defendant had been stealing her medications and her keys.
Evidence Code section 780 provides that in determining the credibility of a witness, the trier of fact may consider any matter that has any tendency in reason to prove or disprove the truthfulness of the witness's testimony, including, but not limited to, demeanor while testifying, and the extent of his or her capacity to perceive, recollect, or communicate. (See People v. Cooks (1983) 141 Cal.App.3d 224, 302.)
Defendant contends the refusal to allow him to present evidence of O.C.'s schizophrenia violated his constitutional rights. He asserts the omitted evidence would have undercut her accusations that defendant stole her medicines (and her keys), and would have suggested her claims that defendant had choked her in the past were "at least exaggerated, if not totally false." We disagree.
It is "a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. 'A person's credibility is not in question merely because he or she is receiving [or has received] treatment for a mental health problem.' " (People v. Anderson (2001) 25 Cal.4th 543, 579.) In determining whether to allow mental health evidence, a court should consider " 'the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify.' [Citation.] For example, a mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety. [Citations.] And a trial court generally may preclude cross-examination about psychiatric treatment occurring many years before the trial or hearing at which the witness testifies and long before the events to which the witness testifies." (Id. at pp. 608-609 (conc. opn. of Kennard, J.).)
Notably, the record is silent as to when Nurse Bell observed O.C.'s erratic behavior, and the trial court indicated that this information was stale. Moreover, defendant does not indicate that he was prepared to establish a medical foundation for O.C.'s alleged condition. Apart from Nurse Bell's observations and the statements that O.C.'s daughter would have made had she testified, defendant does not specify any evidence that he sought to admit regarding any diagnoses or medications for O.C.'s supposed psychiatric illness, much less how the illness affected her ability to accurately recall and describe her interactions with defendant during the relevant time frame. The trial court was well within its discretion to exclude testimony of questionable value.
III. Jury Questions Regarding Implied Malice
Defendant contends the trial court violated its statutory duty under section 1138 by giving an inadequate response to a jury question. We review for an abuse of discretion any error under section 1138. (People v. Waidla (2000) 22 Cal.4th 690, 745-746 (Waidla).)
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
The jury was given CALCRIM No. 520, which defines one of the elements for implied malice as "[t]he natural and probable consequences [of the defendant's act] were dangerous to human life." During deliberations, the jury asked if this element stated a standard that was "higher, lower, or comparable" to "potentially fatal" and requested further clarification of the phrase "dangerous to human life." The court referred the jurors back to the instruction and stated no further description or explanation would be provided. The People contend that defendant forfeited his claim by failing to object or ask the trial court to modify or clarify CALCRIM No. 520. We agree.
" 'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' " (People v. Boyce (2014) 59 Cal.4th 672, 699.) When a defendant approves of the trial court's response to a jury question during deliberations, any claim of error with respect to that response is forfeited. (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see People v. Loza (2012) 207 Cal.App.4th 332, 350.) While defendant asserts the record fails to show that the trial court offered counsel the opportunity to comment on either the jury's question or the trial court's answer, the minutes reflect that the court and counsel discussed questions from the jury in chambers. Counsel thereafter did not make any record of any objection to the court's response to the jury.
In any event, defendant's contention fails on its merits. Contrary to defendant's suggestion, the trial court did not "throw up its hands" or tell the jury that it could not respond to its question. "[T]he trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.' " (People v. Lua (2017) 10 Cal.App.5th 1004, 1017.) "Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law" (People v. Smithey (1999) 20 Cal.4th 936, 985), but "[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
CALCRIM No. 520 is a correct statement of the law. (See People v. Dellinger (1989) 49 Cal.3d 1212, 1222 (upholding CALJIC No. 8.11, the analogue to CALCRIM No. 520; see also People v. Knoller (2007) 41 Cal.4th 139, 152.) We also reject defendant's contention that the court allowed the jury to convict him on the basis that his actions created a mere possibility of death rather than a high probability of death. It is settled that an act that is " dangerous to human life" is equivalent to an act that has a "high probability" of death. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 111.) We presume jurors are capable of understanding jury instructions and applying them to the evidence, and that this jury followed the court's instruction to reread CALCRIM No. 520 and applied the appropriate elements. (People v. Carey (2007) 41 Cal.4th 109, 130.)
IV. Hearsay Testimony of Prior Domestic Violence
Defendant next challenges the admission of O.C.'s reports of prior abuse that were presented through four prosecution witnesses: O.C.'s daughter C.H., Swain, A.C., and McDonald. He contends this evidence was impermissible hearsay and was not relevant. Even if the statements were admissible, he claims they should have been subject to a limiting jury instruction.
Prior to jury selection, defendant filed a motion in limine objecting to the admission of statements O.C. made regarding prior uncharged acts under both state hearsay rules and under the Sixth Amendment of the United States Constitution and Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and People v. Livingston (2012) 53 Cal.4th 1145. In opposition, the prosecutor argued the evidence was admissible to counter defendant's story that the parties had reconciled. The trial court denied the motion, finding the statements were admissible under the hearsay exception for evidence of a declarant's state of mind to show O.C.'s mental state of fear and revulsion toward defendant. On appeal, defendant argues that her fear was irrelevant to the central issue whether he acted with malice, and asserts the prosecutor only introduced the statements to smear him in front of the jury. The argument is not well taken.
Evidence Code section 1250 "provides an exception [to the hearsay rule] for 'evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health).' In order for this exception to apply, the statement must not have been made under circumstances indicating a 'lack of trustworthiness' [citation], and must be offered either 'to prove the declarant's state of mind, emotion, or physical sensation,' or 'to prove or explain acts or conduct of the declarant.' [Citation.] A prerequisite to this exception is that the declarant's mental state or conduct be placed in issue. [Citation.] 'Evidence of the murder victim's fear of the defendant is admissible when the victim's state of mind is relevant to an element of the offense. [Citation.] Such evidence is also admissible when the defendant claims that the victim has behaved in a manner inconsistent with that fear." (People v. Kovacich (2011) 201 Cal.App.4th 863, 884-885.)
Case law makes clear that a self-defense claim to a murder charge can open the door for the prosecution to introduce evidence demonstrating that the victim's state of mind was inconsistent with conduct attributed to him or her by the defendant. (People v. Spencer (1969) 71 Cal.2d 933, 945 [self-defense claim to manslaughter charge opened door for prosecution to introduce evidence that defendant was the aggressor, including a statement the victim made to a friend expressing her fear that the defendant would become violent and kill her once she broke up with the defendant]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1090, 1092 [trial court did not abuse its "broad discretion" by allowing rebuttal witness to testify that a few weeks before the shooting, the victim told her that she wanted to divorce the defendant but was afraid of him because he had told her that if she left him he was going to kill her]; see Waidla, supra, 22 Cal.4th at pp. 708-710, 723 [murder victim's statements two months before her death that she feared the defendant were admissible under state of mind exception to show she did not consent to defendant's presence in her house].)
In the trial proceedings below, C.H., testified that in 2012, O.C. said defendant had struck and abused her. A.C. testified that two weeks before the murder, O.C. stated that defendant had beaten and choked her and threatened to kill her because she would not have sex with him. Swain testified that defendant was entering O.C.'s apartment without her permission, that he choked her and she was afraid for her life, and that she wanted to change the locks on her doors. McDonald similarly testified that according to O.C., defendant had stolen her keys, choked her, and had abused her in the past. As the trial court found, these statements were probative of O.C.'s state of mind at the time of the murder and were introduced to rebut defendant's contentions that the two had reconciled and that O.C. had been the aggressor who assaulted defendant. O.C.'s fear that defendant might kill her and that he was gaining access to her apartment without her consent were clearly relevant to the matters at hand and admissible under Evidence Code section 1250.
Defendant's reliance on People v. Noguera (1992) 4 Cal.4th 599, is misplaced. In Noguera, our Supreme Court held that the hearsay statements of a victim's fear of the defendant, "when offered to prove the conduct of the accused, are not within the exception to the hearsay rule embodied in Evidence Code section 1250." (Noguera, at p. 622.) The victim's state of mind was not at issue in that case because the prosecution focused solely on the identity of the killer. (Ibid.) Here, O.C.'s state of mind was placed at issue by defendant's defense at trial. We find no abuse of discretion.
Defendant alternatively argues that the trial court erred by refusing to give his proposed limiting instruction. Defendant's proposed instruction would have specifically identified claims of prior abuse that O.C. made to Swain, McDonald, and A.C., and told the jury that these statements were not offered as proof of the underlying facts. Instead, the court told the jury: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." Defendant claims the standard instruction was insufficient because the court never told the jury that the statements recounted by Swain and A.C. were for O.C.'s state of mind and not for their truth.
The fault lies with defendant, however. At the outset of McDonald's testimony, defense counsel objected that the evidence should be limited to state of mind. After a sidebar, the trial court told the jury: "The questions that are being asked of Mr. McDonald, . . . to the extent he is describing conversations with [O.C.], the statements that [O.C.] has made to him are offered for the truth as it relates to [O.C.'s] state of mind. [¶] They are not offered for the truth as to whether the statements that [O.C.] makes about other people's conduct are true. [¶] It's just as to her state of mind." Defendant did not similarly object to the testimony of Swain and A.C. and the court did not issue any advisory to the jury. Defendant forfeited the claim by failing to object below to the other witnesses or to seek a pinpoint limiting instruction.
Even if his claim had not been forfeited, we would conclude that any error in the failure to provide a modified limiting instruction is harmless. Significant testimony was adduced at trial concerning O.C.'s statements to medical personnel, police officers, and other witnesses which detailed a long history of physical abuse by defendant and O.C.'s fear of him and efforts to get away. The challenged statements by these four witnesses is largely cumulative of other, properly admitted evidence. Accordingly, it is not reasonably probable that the jury's verdicts would have been different had it been given the requested limiting instruction. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
V. Admission of 911 Call
Defendant next claims the trial court erred in admitting the 911 call in which Clark relayed that O.C. told him defendant had choked and abused her. The trial court overruled a defense objection and admitted the call under Evidence Code section 1240, the hearsay exception for spontaneous utterances. On appeal, defendant asserts the hearsay exception does not apply and that the admission of the 911 call violated his confrontation rights under Crawford. We are not persuaded.
Under Evidence Code section 1240, "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." " '[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.' " (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) In a multiple, nested hearsay situation, the multiple hearsay is admissible only "if each hearsay layer separately meets the requirements of a hearsay exception." (People v. Arias (1996) 13 Cal.4th 92, 149.) The decision to admit evidence under Evidence Code section 1240 is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
Although Clark was not a percipient witness to defendant's assault on O.C., he observed her injuries and witnessed O.C.'s emotional recounting of defendant's violent actions. While defendant suggests Clark, as a security guard, would not find the situation emotionally charged or stressful, a violent crime had just occurred and Clark knew defendant had not been detained and could be nearby. Under the circumstances, we cannot conclude that the trial court abused its discretion in determining that both levels of hearsay qualified as spontaneous utterances. (See People v. Roldan (2005) 35 Cal.4th 646, 713-714 (Roldan), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We also find no confrontation clause issues are present because the statements at issue were not testimonial. While the Crawford opinion does not provide a definition of testimonial statements, "in Davis v. Washington (2006) 547 U.S. 813, the high court gave this explanation: 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' " (People v. Romero (2008) 44 Cal.4th 386, 421.) The California Supreme Court has added that "statements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements. Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator." (Id. at p. 422.) Here, the manifest purpose of the 911 call was to deal with an ongoing emergency only.
Further, any possible confrontation problem was avoided when Clark testified at trial and was available for cross-examination. (Roldan, supra, 35 Cal.4th at p. 714, fn. 26.) In sum, Clark's 911 call was not made and received "primarily" to "establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, italics omitted.) Because his statements were not testimonial, they were properly admitted over defendant's confrontation clause objection. (People v. Banos (2009) 178 Cal.App.4th 483, 494.)
VI. The Intimate Partner Battery Jury Instruction Was Not Erroneous
Defendant next contends the trial court erred in instructing the jury that it could consider Lemon's expert testimony on intimate partner battering in evaluating O.C.'s credibility. The contention lacks merit.
The jury was instructed per CALCRIM No. 850 that Lemon's testimony about intimate partner battery "is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [O.C.'s] conduct was not inconsistent with the conduct of someone who has been abused and in evaluating the believability of her testimony." The jury also was instructed that it could disregard any opinion, including an expert witness's opinion that it found unbelievable, unreasonable, or unsupported by the evidence.
Defendant observes the phrasing of the instruction is technically incorrect since O.C. did not testify. As we have already noted, a defendant may challenge the credibility of a statement by a declarant in the same way that he challenges the credibility of a witness. (Evid. Code, § 1202; Blacksher, supra, 52 Cal.4th at p. 806.)
Evidence of intimate partner battering is admissible to explain "a behavior pattern that might otherwise appear unreasonable to the average person." (People v. Day (1992) 2 Cal.App.4th 405, 419, disapproved on another issue in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) "Because juries may accord undue weight to an expert's opinion, special care must be taken to insure the jury understands its duty to independently assess the expert opinion along with and in light of all other relevant evidence." (People v. Housley (1992) 6 Cal.App.4th 947, 957.) Defendant relies on People v. Bledsoe (1984) 36 Cal.3d 236, 247-248, a case involving expert testimony of rape trauma syndrome, in which the Supreme Court determined that expert testimony could not be used to prove a rape actually occurred. Our high court reasoned that " '[p]ermitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness.' " (Id. at p. 251.)
CALCRIM No. 850 properly cautioned the jury to use Lemon's testimony for the limited purpose of evaluating O.C.'s statements. It did not suggest that O.C. was telling the truth or that the battering had, in fact, occurred. It specifically admonished the jurors they could not consider the evidence as proof that the act actually occurred. As such, the instruction properly advised the jury of the importance of intimate partner battering evidence and also its limitations. Bledsoe is therefore inapposite.
Defendant also complains that allowing the expert to testify on the basis of hypothetical questions patterned after the facts of this case was error. This claim has been rejected by our Supreme Court. (People v. Vang (2011) 52 Cal.4th 1038, 1051 ["it was not a legitimate objection that the prosecutor failed to disguise the fact he was asking about an assault based on the one that the evidence showed the defendants committed"].) In light of our conclusion, we do not address defendant's prejudice contentions.
VII. Cumulative Prejudice
As we have found no prejudicial error in this case, defendant's claim of cumulative error necessarily fails. (People v. Hensley (2014) 59 Cal.4th 788, 818; People v. Griffin (2004) 33 Cal.4th 536, 600 [when there are no errors "to 'cumulate,' " a defendant's assertion of cumulative error "is clearly without merit"].)
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Banke, J.