Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. INF063042 of Riverside County. John G. Evans, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Sammy Lizarraga Labastida appeals after he was convicted of assault with a knife (Pen. Code, § 245, subd. (a)(1)), criminal threats (Pen. Code, § 422), corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), and spousal injury (Pen. Code, § 243, subd. (e)(1)). He contends that the trial court erroneously limited his cross-examination of the victim, thereby undermining his constitutional right to present a defense. After review, we affirm the convictions.
FACTS AND PROCEDURAL HISTORY
Defendant and his wife (the victim) had been in a relationship for over 20 years; they had been married for the most recent 5 years. They had two sons, ages 18 and 15, at the time of trial.
The victim testified about a history of domestic violence in her relationship with defendant. The first 10 years of their relationship were “beautiful,” but there was a lot of mental abuse, which eventually became physical abuse. The victim recounted an uncharged incident that had occurred in 1991. She was in a car with her cousin, and another man briefly got into the car. The victim wanted the man to leave, because she “didn’t want any problems,” i.e., she knew defendant would be upset if he knew another man had been in the car with her. The victim’s brother-in-law told defendant he had seen another man in the car. Defendant took the victim home, followed her into the bedroom and beat her all over her body with a belt. The victim did not press charges, because defendant told her he was sorry and would not do it again. Before the incident in 1991, defendant had hit the victim perhaps two other times, but the 1991 beating was the worst so far.
The last five years of their relationship had become increasingly more abusive.
As to the charged offenses, the victim testified that on the night of July 9, 2007, defendant wanted to have sex, but the victim told him she was tired. She had to get up early the next day to take the children to school, and then go to work. She just wanted to go to sleep. Defendant became upset, called the victim names, and complained, “‘You always do this to me.’” Defendant was not only verbally abusive, but he got physical. He pulled her from the bed by her legs and started trying to hit her. He also grabbed her neck. The victim was fighting back with her hands, trying to stop defendant from hurting her. The boys came into the room to restrain defendant, and the victim ran to the kitchen. Defendant came after her and shoved her against the counter. The boys were then able to restrain defendant from attacking her any further.
The victim recalled that defendant was the one who called police on the night of July 9, 2007. He remarked that it was going to be her turn now, that he would ruin her reputation, and have her arrested, “because he was going to make sure that this time it would be on [her].”
The victim was asked, “after all of this, did you still stay with the defendant?” She replied, “Yes, I did,” but when asked why, she said, “I don’t know. I ask myself that same question.” Nevertheless, she still loved defendant.
On January 19, 2008, a Saturday, the victim had volunteered as she normally did at the snack bar at the soccer fields. At the end of the day, defendant took his son home, but the victim met with other soccer league board members to discuss the day’s events. One board member suggested going to a restaurant to talk over the day. The victim invited defendant to come, but he declined. He was already at home and he did not want to go. The victim could tell from defendant’s speech that he had been drinking.
Sunday, January 20, 2008, the victim had attended her son’s soccer game and came home in the afternoon. She suggested that defendant have something to eat because he had been drinking since the previous day. They took the car to be repaired and went to a restaurant while they waited, but defendant did not eat; instead, he ordered more beer. They picked up the car and went home.
At home, the dog jumped up playfully on defendant; defendant became upset and threw a tall can of beer at the dog. The victim smacked defendant’s shoulder with an open hand, and remonstrated with him: “‘Hey, don’t you be doing that to her. She’s just a dog.’” The victim got the dog, put her in the car, and went for a drive.
After giving defendant 40 to 45 minutes to cool down, the victim returned. Defendant demanded that she go buy more beer. She refused. “[I]t started escalating from there.” Defendant became angry, cussed and called the victim names. The victim went to the living room to sit down. Defendant tried to get to the victim’s neck, “to make a hickey,” but she rebuffed him. Then, defendant “went crazy.” Defendant cursed even more, and put his hands up. The victim feared he would hit her. Defendant went into the kitchen, and came back with a knife. The victim asked what he was doing, and defendant said, “‘I’m gonna kill you.’” Defendant pushed her down onto the sofa and came at her with the knife, but he stabbed the sofa instead. When defendant came back up, the victim kicked the knife out of his hands and ran to her bedroom. Defendant caught the victim by her hair and dragged her back to the living room. He knocked her to the floor and choked her with both hands. The victim fought back with her hands, and also bit defendant on the arm. She was able to get away and get outside, where she ran across the street.
Defendant’s knife thrust at the couch left a small tear; the blade did not go all the way in. The victim called her mother on her cell phone, and her mother in turn called her sister-in-law. The sister-in-law, who lived close by, came over to be with the victim. Defendant had left on a bicycle. The victim found the knife on a chair in the living room when she went back inside. The sister-in-law called police; the victim was afraid to call the police herself for fear her children would be taken away.
An officer came and took a report. The responding officer, Deputy Russell, then saw defendant walking his bicycle nearby, and stopped to talk to defendant. Defendant denied that there had been any argument, denied threatening to kill his wife, and denied trying to stab her with a knife. Deputy Russell noticed some cuts and scratches on defendant’s hands, arms and body; defendant said he had no idea how he had sustained those injuries. Deputy Russell arrested defendant and transported him to the jail.
At the jail, defendant telephoned home, asking the victim to arrange bail. She declined. Eventually, defendant was able to arrange bail and he was released in the early morning hours. At approximately 5:30 a.m., defendant returned home and tried to get in through his son’s bedroom window. The victim called the police again. The officer returned, and found defendant hiding in the back yard. Defendant was arrested a second time.
Defendant’s theory at trial was that his wife was lying, and that instead he was the victim of domestic violence at her hands. He denied beating his wife with a belt in 1991, and denied hitting her at any time before then. He agreed that he had a drinking problem, however. As to the incident in July 2007, defendant stated that the victim had been the aggressor, and he denied hitting her. After the incident in July, the victim had obtained a restraining order against defendant, but they talked and resolved their problems, and she dismissed it. In January 2008, both parties had been drinking. Defendant denied attacking the victim with the knife, and denied hitting or choking her. After the January incident, defendant and the victim spent Valentine’s Day together having drinks.
The jury convicted defendant of one count of assault with a knife, one count of criminal threats, one count of corporal injury on a spouse (all arising from the incident of January 2008), and one count of spousal injury (based on the incident of July 2007). Defendant was charged with, but found not guilty of, one count of child endangerment. The court sentenced defendant to the low term of two years on count 1, and a concurrent term of 16 months on count 2. Counts 3 and 4, misdemeanors, resulted in concurrent jail terms of 180 days. The court suspended execution of sentence and placed defendant on three years’ formal probation.
Defendant filed a timely notice of appeal.
ANALYSIS
I. Standard of Review
Defendant urges that the trial court erred prejudicially when it limited cross-examination of the victim. More specifically, defendant contends that he should have been allowed to inquire more fully into the time period between the incident in July 2007 and January 2008, to show that he and his wife had reconciled, and that she had resumed living with him. Defense counsel also sought to introduce evidence about several times after the incident in January 2008, when defendant and his wife met socially and drank together. It was important to the defense to impeach the victim’s credibility, inasmuch as the entire defense consisted of defendant’s denial that the alleged offenses had taken place.
The trial court excluded the proffered incidents as unduly time consuming and confusing to the jury.
The appellate court reviews the trial court’s rulings on the inclusion and exclusion of evidence under the abuse of discretion standard of review. (People v. Mendoza (2007) 42 Cal.4th 686, 699.)
II. The Trial Court Did Not Abuse Its Discretion in Excluding the Proffered Evidence
The People made a motion in limine to preclude the defense from presenting evidence that defendant and the victim had attended a social function together some time after the incident in January 2008, and that the victim had also spent a night in a hotel with defendant. The People argued that the incidents of socializing, which occurred well after the alleged offenses had been completed, were irrelevant to the issue whether the victim had been in sustained fear of defendant, for purposes of the criminal threats charge: “[T]he evidence [the] defense intends to introduce encompass[es] failed attempts on the part of the defendant and [the victim] at reconciliation long after the crime of criminal threats had already been completed. Some of the events... occurred literally months after the incident in question. [¶] There is no relevance, no probative value for the introduction of such evidence... [as it] will allow the defense to argue that there was no sustained fear based largely on a... misconception that Penal Code section 422 requires some artificial and specific time frame.”
At the hearing on the motion in limine, defense counsel indicated that he would not argue against the element of sustained fear. Rather, he sought to use the incidents of socializing solely to impeach the victim’s credibility as to any and all of her accusations against defendant. The defense wanted to make reference to at least one instance between July 2007 and January 2008: when defendant and his wife went to court together and she dismissed her restraining order proceeding against him. “I have my client by way of offer of proof. Of course they’re going to say that they were together many times. They actually got together after [the July 2007] incident, and that’s why together they went and had the TRO dismissed, because that was part of the deal. They were going to live together but get the TRO dismissed. I don’t have every incident because we’re talking about living together every single day.... [¶]... [¶] [F]or an offer of proof, my client would probably represent that within a month of having the TRO dismissed, which was on 8/10/07, they began to live together again.”
Otherwise, with respect to the January 2008 incident, the defense wanted to present evidence of numerous instances, beginning in February 2008, when defendant and his wife renewed contact. “[T]he first incident would have been February... when she called and they talked on the phone for one and a half hours and reached some sort of understanding about their relationship. And the following week on Valentine’s Day, that’s when they went on a date and went to the restaurant and then to a burger place and had some beers. Then two days later they met at a casino where there was some drinking. And then later that day she went to spend the night with [defendant]. [¶] Then [a] couple of weeks after that they went to a hotel in Mexicali. That was on March 17th. Spent the night over there. Three days later she went to his place and spent the night over there. [¶] March 22nd, they went to [a hotel] here. She got a room and they spent the night together. [¶] March 22nd, she went and joined him for Easter and they partied together. [¶] March 27th, they went down to [defendant’s] parents’ place in Salton Sea. She bought some beer and she spent the night there with him. [¶] April 10th, they went to Longs Drugs and bought beer twice and partied. [¶] April 11th, she went over to where he lived with his sister and they barbecued together and drank. They had a party. [¶] I mean, they’re just numerous, but those are some of the incidents I would suggest to the Court are relevant and inconsistent with someone who under penalty of perjury... says something along the lines that, you know, ‘I fear for my life. He wanted to kill me. I thought I was going to die. Had it not been for God’s intervention, I wouldn’t be here.’” Counsel complained that the victim’s preliminary hearing testimony in April 2008, was inconsistent with her acts of socializing with defendant: “And she starts breaking down like, you know, she’s afraid of this guy, this guy’s going to kill me, yet everything she did right before that is totally inconsistent with that kind of attitude and behavior.... So it is relevant.” Defense counsel urged that he did not intend to use the evidence to negate the element of sustained fear: “My argument is obviously that it never happened in the first place.... I’m just saying he didn’t say it [i.e., threaten to kill the victim], and that’s why all her actions are inconsistent with what she’s saying. Because he did not say it and because it didn’t happen, that’s why she acted the way she did. That is consistent with someone who was not threatened, someone that was not assaulted with a knife.... [¶]... [¶]... He never made the threat, that’s correct; never attacked her with the knife. So therefore someone who was not attacked with a knife, someone that was not threatened would do what she did, which was meet up with him, go eat, socialize.... [T]hat conduct is consistent with someone who was not threatened, someone who under the circumstances was not attacked with a knife.”
The prosecutor argued that many of the events the defense sought to introduce “happened literally weeks after the incident in question,” and they were not relevant to a crime that was completed in January 2008. Defense counsel argued that the victim had declared under penalty of perjury in her application for a restraining order that, “‘I have not been able to sleep for a month because I’m afraid of this guy. He has previously threatened to kill me with [a] knife.’ Those are the kinds of statements that she made. And then she turns around and says, ‘I don’t want the restraining order, and I want to live with this guy.’ [¶] So why can’t I bring up the fact that after the alleged incident she then turns around and says, ‘Dismiss the restraining order and I want to live with this guy and let’s go party together’? Does that not go to her credibility? How is that not relevant?”
The court opined that it did not go to the victim’s credibility “because there is typically a cycle in domestic-abuse-type cases where the spouse is willing to go back to a prior spouse who has inflicted injury upon that spouse. I think it’s a regular thing that we see.”
Defense counsel urged that the jury should be permitted to decide the question, but the court ruled that the evidence would not be admitted. First, the victim’s actions some days, weeks or months after an incident would not negate the element of sustained fear. In addition, “if you are able to bring all those instances in, Number 1, the probative value is substantially outweighed by the probability that its admission would necessitate an undue consumption of time. And I believe that would also create a substantial danger of confusing the issues or misleading the jury.”
On appeal, defense counsel specifically argues that he was improperly prevented from asking the victim whether she had requested the court to dismiss her restraining order proceedings against defendant, and whether, between the July 2007 and January 2008 incidents, she had gone out with defendant and resumed living with him again. Appellate counsel maintains that, “[h]ad defense counsel been permitted to ask [the victim] the questions, her answers would have been the same [as defendant’s testimony, i.e.,]: In August 2007, [the victim] dismissed the temporary restraining order, and she and [defendant] subsequently resumed living together and going out together. The testimony would have undermined [the victim’s] credibility and would have bolstered [defendant’s] defense.”
As appellate counsel’s argument indicates, however, the specific evidence which he now argues should have been admitted was already presented to the jury via defendant’s own testimony. Defendant testified both that the victim had dismissed the restraining order proceedings, and that they had resumed their relationship in between the two incidents. Moreover, the victim’s own testimony confirmed both points. She acknowledged that she had begun restraining order proceedings, but she resumed living with defendant. She also testified that, approximately one week after the January 2008 incident, she got together with defendant to discuss their bills; she was no longer in fear of him at that time. She was asked more than once why she had returned to resume her relationship with defendant, and acknowledged that she had done so multiple times. She could not explain why, except to say that she loved him. She did not remember whether she and defendant had gone out on Valentine’s Day after the January 2008 incident, but stated that they “could have.” There was no necessary inconsistency between her testimony and defendant’s on the point, and it was not a contested issue.
The evidence indicating that the victim had dismissed the restraining order proceedings against defendant, that she had resumed her relationship with him and that she and defendant had socialized on multiple occasions after the incidents in question, was presented to the jury and remained uncontradicted. The victim herself acknowledged virtually all the points defendant sought to raise. Defense counsel was fully able to argue the victim’s credibility, based on those events, to the jury.
While both the state and federal Constitutions guarantee criminal defendants the right to confront the witnesses against them (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), the right of confrontation is not absolute. (People v. Stritzinger (1983) 34 Cal.3d 505, 515.) The trial court retains considerable discretion to regulate and impose reasonable limits on cross-examination in the interests of orderly procedure, and preventing harassment, prejudice or confusion of the issues. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 89 L.Ed.2d 674]; People v. Brown (2003) 31 Cal.4th 518, 545; People v. Babbitt (1988) 45 Cal.3d 660, 683; People v. Sims (1970) 8 Cal.App.3d 599, 602.)
Here, the court did not abuse its discretion. It was not required to permit defendant to inquire without limitation into matters which were already before the jury. Defendant cannot show that the additional inquiries would have resulted in a significantly different impression of the witness’s credibility, inasmuch as the same matters had already been elicited. (People v. Brown, supra, 31 Cal.4th at pp. 545-546.)
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.