(Super. Ct. No. MCYKCRF 07-001969)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court granted probation to defendant Darrel Mark Andersen following his convictions for dissuading a witness by force or threat (Pen. Code, § 136.1), assault with a firearm (Pen. Code, § 245, subd. (a)(2)), misdemeanor spousal battery (Pen. Code, § 243, subd. (e)(1)), and misdemeanor battery (Pen. Code, § 242).*fn1 The jury found defendant not guilty of spousal rape, corporal injury to a spouse, criminal threats, corporal injury to a child, false imprisonment by violence, and cruelty to an animal. The two misdemeanor battery convictions were lesser included offenses to the charged offenses of corporal injury to a spouse and corporal injury to a child.
The victims were defendant's wife, Tina, and daughter, Bailie. Defendant's son Beau no longer lived at home. Defendant was a Highway Patrol officer.
Defendant argues the trial court erred when it excluded evidence that Tina had been in a mental hospital 15 years earlier, and that he was not sufficiently informed of the charges against him with respect to the crime of dissuading a witness. We shall conclude defendant has not shown a violation of his right of confrontation because the record does not support his claim that Tina was in a mental hospital, or if she was hospitalized, the record does not indicate the nature of such hospitalization. We shall further conclude that defendant forfeited his claim that he did not receive notice of the charges against him when he did not raise the issue below.
Defendant also makes several claims of instructional error, all of which we shall conclude are without merit. We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Between 2003 and 2006, Tina Anderson called the Siskiyou County District Attorney's Office twice and spoke to a victim witness advocate. Tina said she was a victim of domestic violence and asked what the office could do for her. When the advocate asked whether she had reported the violence to law enforcement, Tina said no, "because he is law enforcement." Tina told the advocate she could not leave and go to a shelter because she could not leave her children, she had no job, she had no way to support herself, and she had no friends.
On November 15, 2005, police were dispatched to defendant's house. Sergeant Raymond Boutin, then Officer Boutin, testified that he could tell by the face of defendant's children that both had been crying before the officers arrived. Tina told Boutin that she had been abused by defendant. He asked whether she had any injuries, and she replied that she did not have any that he could see. She later explained she had injuries, but she was afraid to show the officer because defendant was there, and he might have "gone berserk and killed all of you." She was mistrustful of the police because defendant was in law enforcement. Defendant was not arrested.
On September 3, 2007, Sergeant Shelley Barlow, defendant's supervisor, went to defendant's house to do a welfare check. Barlow had received a call from Tina's father, Richard Gervassio. Gervassio relayed that defendant called him and told him Tina was in the hospital dying, then hung up. Gervassio requested Barlow go to the house to check on Tina.
Barlow and some other officers went to defendant's house and knocked. No one answered the door. Defendant's daughter, Bailie, testified defendant was at home when Barlow knocked on the door, and instructed them not to answer. Barlow left, but returned shortly thereafter, when she confirmed through Gervassio that Tina was in the house. By this time defendant had left the house.
Bailie opened the door to the officers. They found the house completely dark. Barlow went to the back bedroom, following the sound of a woman crying and ranting hysterically. The room was completely dark, with blinds that were covered with dark curtains. Barlow opened some curtains and saw Tina, dressed all in black, lying on the bed. She was hysterical, screaming and crying, and there were many used tissues beside her. When she saw Barlow, she started screaming at Barlow to help her.
Tina told Barlow that defendant had been abusing her for 24 years, and that Barlow did not "know who you're dealing with." Tina did not appear injured. Tina insisted she was not crazy, and that she had books and pictures to prove that she had been abused. Tina then passed out, possibly from hyperventilation. Barlow saw a small bruise on Bailie's arm, which Bailie said was from a prior altercation with her father.
When the medics came and asked Tina what medication she was taking, she named heart medication and some mental health medications. She said, "I wasn't like this before. Mark did this to me." Tina was taken to the hospital and sedated.
Bailie told officers that her father had physically and mentally abused her mother, and that they were held hostage by money and threats of being homeless. Bailie relayed one incident when her father had rubbed her mother's face in the carpet because she had not properly vacuumed it.
Lieutenant David Gamache, then Sergeant Gamache, interviewed Tina at the hospital. She told Gamache that she had been physically and mentally abused, and forcibly raped 50 times over the past 24 years. She said defendant had also physically abused Bailie. Bailie admitted having injuries that were inflicted during a family dispute. Bailie showed Gamache a light bruise approximately the size of a dime on Bailie's arm.
Barlow had her department look for defendant. The police put out a county-wide BOLO (be on the lookout). Defendant was not found that night, but he reported for work the next morning, at which time he was arrested.
Boutin conducted videotaped interviews of Tina, Bailie, and Beau. The recorded interviews were played for the jury. They recalled an incident in which Tina was cooking for Easter. She had some meat in the oven and some more defrosting in the kitchen sink. She forgot to turn off the sink, and the water spilled over. Defendant started screaming at her and shoved her across the kitchen floor. She hit her head on the refrigerator.
Tina testified at trial about another occasion when defendant hit her with a drill when she damaged the wall while installing a cable line. He hit the top of her foot and punched her in the arm. Tina took a ...