IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
January 2, 2013
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DARREL MARK ANDERSEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. MCYKCRF 07-001969)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Anderson
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 picture of her injuries, and that was shown to the jury.
On another occasion defendant got upset over a telephone bill and shoved Tina into a closet door. The closet came off its hinges. This left her with a bruise on her breast.
Another time Tina was helping move a set of box springs into the bedroom when defendant ripped them out of her hands, leaving splinters in her hands.
On another occasion the family went to a restaurant with friends. The friends were talking about getting older and losing their hair. One of them said defendant did not look like he would lose his hair. Tina replied that he was going a little bald on top. This angered defendant and he kicked Tina in the shin, causing a large bruise.
On September 3, 2007, when defendant saw his boss at the door he grabbed Tina's arm and asked rudely if she had called the police. He gripped her arm so hard it left a red mark that later turned into a bruise.
The above incidents were the basis of the count two, misdemeanor spousal battery charge.
Count three, dissuading a witness, was based on the following testimony. Bailie and Tina testified that sometime between October 2004 and September 2007, defendant told Tina that if she ever left him or called the police, "you'll be dead before they get here." When Tina threatened to call the police he responded, "I am 911." Defendant constantly threatened to withhold financial support, and told Tina and Bailie that if they left it would be with nothing more than the shirts on their backs.
The basis for the count five misdemeanor battery on Bailie was an incident occurring the week before police officers responded to her home on September 3, 2007. She testified that defendant grabbed her arm hard, left a bruise, and tore her rotator cuff.
Count seven alleged assault with a firearm on Tina. This incident occurred Christmas Eve, 2006. Defendant, Bailie, and Tina were sitting in the same room. Tina asked defendant if he could just be nice and they could have one nice holiday. Defendant left the room and got a gun from under the bed. Bailie and Tina went after defendant. He had the gun in his hand and said he was going to kill himself. It was not the first time defendant had threatened to kill himself with his gun. Then defendant pointed the gun at Tina's stomach with his finger on the trigger. Finally after about 10 minutes, he let go of the gun.
Defendant testified in his own defense that Tina had a lot of mental problems, but that he did not want to leave her because he loved her and he was her sole support. He denied any violence against her or Bailie, saying instead that they were the ones who attacked him.
I Evidence of Tina's Mental Hospital Commitment
During opening statements, defense counsel made the following statement: "When the two kids were two and four years old [i.e., approximately 1992 or 15 years before defendant's arrest], Tina was committed to a mental hospital because of mental issues." The prosecutor objected to the statement as irrelevant and not proper. The trial court asked counsel to approach the bench. The prosecutor stated: "There's no discovery. We don't litigate by ambush." A discussion was held off the record. Afterward, the court ordered the last comment stricken.
The record contains no offer of proof that Tina was ever committed to a mental hospital, and consequently no information as to the nature of any such commitment. Defendant did not make a later motion to admit the evidence or attempt in any way to introduce the evidence. Defendant did not argue in his motion for new trial that the trial court committed an error of law in refusing to admit the evidence.*fn2 (See § 1181 [the court may grant a new trial if it has erred in the decision of any question of law arising during the course of the trial].) Now, however, he argues it was an abuse of discretion and a denial of his right to confront the witnesses against him to exclude evidence of Tina's history of mental treatment, mental disorders, and mental issues.
"[T]he right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 [94 L.Ed.2d 40, 54].) The confrontation clause protects a defendant's right to ask the witness questions pertinent to his or her credibility. (People v. Anderson (2001) 25 Cal.4th 543, 577, fn. 11.) Not every restriction of a defendant's method of cross-examination is a violation of the defendant's right to confrontation. (People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) "Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We do not find the trial court abused its discretion in violation of the Sixth Amendment, because defendant has not shown that a significantly different impression of Tina's credibility would have been produced by the introduction of evidence of Tina's prior commitment to a mental health facility. Defendant is unable to make such a showing because the record contains no indication that Tina actually was committed to a mental health facility, or for what condition any such commitment was made. Only a commitment impacting Tina's credibility and reliability as a witness would have been relevant to impeach her testimony. As Justice Kennard stated in her concurring opinion in People v. Anderson, supra, 25 Cal.4th at page 609, "a mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety." In addition, where, as here, the commitment was remote in time, and there was no testimony that Tina currently suffered from the condition for which she was earlier committed, the court may be justified in disallowing such cross-examination. (Id. at pp. 608-609)
Furthermore, defendant was successful in casting doubt on Tina's credibility. There was evidence that when officers responded to her home on September 3, 2007, she was hysterical, and that she had to be restrained and sedated when she was taken to the hospital. Defendant testified that Tina had "a lot of mental problems," that she was on medications, and that she had seen a lot of therapists and doctors for many years. One of the jury's questions to the court was: "If we can not agree on who to believe what do we do?"
Defendant has not shown there would have been a significantly different impression of Tina's credibility had evidence of her commitment for an unspecified mental illness been allowed. Accordingly, we cannot say the trial court abused its discretion in violation of defendant's confrontation rights.
II Lack of Notice Argument Forfeited
Defendant argues his conviction for dissuading a witness (count three) must be reversed because the time frame alleged in that count was a period of three years, and he had no reasonable notice of what conduct was alleged as the basis of that count. The amended information alleged that defendant: "on or about October 1, 2004 through September 3, 2007, did willfully, unlawfully, knowingly and maliciously do an act described in subdivisions (a) and (b) and such act was accompanied by force and an express and implied threat of force and violence upon T.M.A., d.o.b. 1-21-59 and a third person and the property of a victim, witness and third person, in violation of Section 136.1(c)(1) of the California Penal Code, a felony."
Defendant did not object to lack of notice of the charges against him below. An objection to lack of notice of the charges must be raised in the trial court and cannot be raised for the first time on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 641.) Furthermore, defendant waived a preliminary hearing. "[H]aving foregone the use of a preliminary hearing--'the touchstone of due process notice to a defendant' [citation]--defendant has forfeited his right to complain on appeal that he was provided with insufficient notice of the charges against him." (People v. Butte (2004) 117 Cal.App.4th 956, 959.) It is too late for defendant to assert this objection for the first time on appeal.
III Instructional Error
Defendant claims four of the standard instructions given were in error.
A. Obtaining False Testimony
First, defendant claims the standard instruction given on obtaining false testimony was error because there was no evidence in the record to support it. The instruction given was as follows:
"If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
It is error to give an instruction which has no application to the facts, even if the instruction correctly states a principle of law. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) In this case, however, there were facts to which the instruction was applicable.
Bailie testified that defendant told Beau he would "buy him a new car and take him out places and stuff." She said Beau told her defendant was going to get him a new car after the trial, and that Beau kept asking her to take her restraining order off of her father so her father could get his job back and give Beau a car.
When Beau was asked about this, he said his dad never said he would buy him a car. He said his father's family was going to try to help him with transportation. Either way, there was "some evidence in the record which, if believed by the jury, [would] sufficiently support the suggested inference." (People v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on another ground by People v. Martinez (2000) 22 Cal.4th 750, 762-763.) Thus, there was no error in giving the instruction.
B. False Statement as Consciousness of Guilt
Second, defendant argues the trial court erred in giving the following instruction:
"If the defendant made a false or misleading statement related to the charged crime knowing the statement was false, or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it's up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant claims the instruction was erroneous because the instruction must refer to a false statement to police prior to trial, not to a defendant's trial testimony.*fn3 Defendant cites the decision in People v. Beyah (2009) 170 Cal.App.4th 1241, 1248-1249 (Beyah), in which the court stated its "doubt that the CALCRIM Committee intended CALCRIM No. 362 to be used as it was here: to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant's trial testimony."
However, Beyah concluded that the defendant "suffered no prejudice, because California law makes clear that a defendant's false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt." (Beyah, supra, 170 Cal.App.4th at p. 1249.) The court explained that "CALCRIM No. 362 did nothing more than state this principle, i.e., that if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference--along with other evidence--in determining defendant's guilt. And although it might be said that the instruction singles out a defendant's testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant's choice to testify or resulted in any improper inference of guilt based on the jury's evaluation of his testimony." (People v. Beyah, supra, 170 Cal.App.4th at p. 1250, fn. omitted.)
The instruction given used permissive, rather than mandatory language. A trier of fact may properly infer consciousness of guilt from a defendant's false trial testimony. (People v. Showers (1968) 68 Cal.2d 639, 643; Beyah, supra, at pp. 1249-1250.) Furthermore, by cautioning the jury that "evidence that the defendant made such a [false or misleading] statement cannot prove guilt by itself," the instruction precluded any harm. We presume the jury understood and followed the instruction given. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) The trial court did not prejudicially err in giving the instruction.
C. Flight as Awareness of Guilt
Third, defendant argues the trial court erred by giving the standard instruction that flight may show an awareness of guilt. The court gave the following instruction:
"If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Defendant argues there was no evidence in the record to support this instruction. He claims that the instruction had to refer to his leaving the house when his supervisor, Barlow, came to the house to check on Tina. Defendant testified at trial that he did not answer the door when Barlow knocked because he had been crying and was embarrassed, and because he did not have a key to the deadbolt. Contrary to Bailie's testimony that he forbade her to open the door, he claimed he told Tina to have Bailie to open the door.
Defendant argues the circumstances did not suggest that his leaving the house was motivated by a consciousness of guilt. He notes that he reported for work the next morning in a normal fashion.
"A flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene or his usual environs, or of his escape from custody after arrest, logically permits an inference that his movement was motivated by guilty knowledge." (People v. Turner (1990) 50 Cal.3d 668, 694.) The prosecution is not required to prove that the defendant departed the scene in order to avoid arrest. (People v. Bonilla (2007) 41 Cal.4th 313, 328.) The prosecution is entitled to the instruction if a jury could find that the defendant fled the scene and could permissibly infer a consciousness of guilt from the evidence. (Ibid.)
The inference that defendant was conscious of his guilt was permissible from the fact that he left his house immediately after law enforcement officers knocked on the door. That other inferences were also permissible is not determinative. It was not error to give the flight instruction.
D. Mutual Combat
Fourth, defendant argues the trial court erred by reading the standard instruction on mutual combat. The instruction was as follows:
"A person who engages in mutual combat or who is the initial aggressor, has a right to self defense only if he actually and in good faith tries to stop fighting, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he stopped fighting and he gives his opponent a chance to stop fighting.
"If a person meets these requirements, he has a right to self defense if the opponent continues to fight. A fight is a mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claimed self defense arose. The right to use force in self defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
The instruction was apparently given because of defendant's claim that he never hit, punched, kicked, or choked Tina, although he may have hurt her when he grabbed her in self-defense. Defendant argues the mutual combat instruction (CALCRIM No. 3471) is to be given only for cases of true mutual combat, such as a duel or other mutually arranged combat. He relies principally on People v. Ross (2007) 155 Cal.App.4th 1033, in which the court held that "mutual combat" means an express or implied agreement to fight, and that the instruction should not be given unless there is evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose. (Id. at pp. 1046-1047, 1052.)
We find no error because the instruction is correctly given where, as here, there is evidence defendant was the aggressor. Bailie testified she never saw her mother be the aggressor against defendant.
Furthermore, any error in giving the instruction on mutual combat was technical error only. "[G]iving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) When the court gives a correct instruction that has no application to the facts of the case, the error "does not appear to be of federal constitutional dimension. . . . [¶] The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836) applicable to such error. . . . Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.]" (People v. Guiton, supra, 4 Cal.4th 1116, 1129-1130.)
Unlike the instruction in People v. Ross, supra, 155 Cal.App.4th at page 1043, footnote 9, upon which defendant relies, the instruction here contained the legal definition of the term "mutual combat." The jury was instructed that, "[a] fight is a mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claimed self defense arose." The jury would not have believed that the mutual combat portion of the instruction applied to the incidents described by Bailie and Tina. Neither would the jury have believed the instruction applicable to defendant's version of events. He largely denied the specific incidents to which Tina and Bailie testified. To the extent he claimed self-defense, it was when Tina or his daughter hit him, and he grabbed them to keep them from hitting him.*fn4
The judgment is affirmed.
We concur: HULL , J. HOCH , J.