Opinion
F071046
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. DANNY PEREZ SALDANA, Defendant and Appellant.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14907497)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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Danny Perez Saldana appeals from a judgment of conviction on counts of burglary, making criminal threats, witness dissuasion, exhibiting a deadly weapon, and vandalism. The issues presented concern the admissibility of hearsay evidence and expert witness testimony on the topic of intimate partner battering syndrome. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2013, Ashley Trepal called 911 to report an incident that had occurred at her mother's apartment in northwest Fresno. Her phone cut out shortly after she informed the call taker, "[M]y mom's ex, um, just broke my window and threatened to kill me with a knife." Two minutes later, Debbie Trepal spoke with a 911 dispatcher and explained the situation: "[M]y ex-boyfriend just charged into my apartment and thrashed my apartment. Broke the window and tried and threated to k[--], kill my daughter with a knife." Debbie identified the perpetrator as a 57-year-old man named Danny Saldana.
For the sake of clarity and convenience, we hereafter refer to Ashley and Debbie Trepal by their first names.
Officer Corey Taylor of the Fresno Police Department arrived at Debbie's apartment within 20 minutes of the first 911 call. A second officer, Michael Pierce, showed up about 10 minutes later. Debbie told Officer Taylor that Saldana had entered the apartment "without warning" and began yelling at her in front of Ashley and Ashley's daughter, i.e., Debbie's granddaughter. Debbie asked Saldana to leave and then retreated to a bedroom with Ashley and the child. Saldana ransacked the kitchen and armed himself with a steak knife before pushing his way into the bedroom. He then confronted the women while holding the knife in his hand and threatened to kill Ashley.
Debbie told Officer Taylor that Saldana's behavior caused her to fear for Ashley's safety. She had stood between them and yelled at Saldana to leave until he finally "stabbed the door" with the knife and exited the apartment. A short while later, the bedroom window shattered.
Officers Taylor and Pierce observed a number of things inside the apartment that were consistent with Debbie's story. The kitchen was in disarray; there were broken dishes and other items "strewn about" the room and food "everywhere, all over the floor." There was a mark on the bedroom door that appeared to have been made with a knife. The officers saw glass on the bed and floor in front of the broken window, which indicated that it had been struck from the outside.
Officer Pierce spoke separately with Ashley. Her statements matched Debbie's version of the events, with the added detail that Saldana had called her a "stupid bitch" before threatening to kill her. Ashley denied being afraid of Saldana, since he had "said and done these type of things to her many times." Her emotional reaction had involved anger rather than fear.
Eight days later, on October 23, 2013, Detective Brent Willey conducted a follow-up interview with Ashley. Among other inquiries, Detective Willey sought clarification regarding her purported lack of fear during the encounter with Saldana. The detective later testified about her responses to his questions: "She corrected me and stated that she was very scared not only for her life but the life of her child. So this created a conflict in her [earlier] statement and so I asked her to explain. She went on to explain that Mr. Saldana is essentially a bully and he enjoys seeing people in fear.... So at that time she thought it would be in her best interest to act big and loud and boisterous and not in fear[,] thinking that that would help subdue him. And when officers had responded to the scene and taken her statement she was kind of still in that mind set of kind of acting tough, if you will."
On February 20, 2014, Saldana was arrested on an outstanding warrant that had issued in relation to the events of October 15, 2013. He called Debbie twice from his holding cell while waiting to be booked into jail. During the first call, Saldana seemed unsure of why he had been arrested and speculated that it had something to do with the incident at the apartment four months earlier. Debbie agreed, saying, "[It's] probably when you broke the window." Later in the conversation, Saldana instructed Debbie to "tell the DA ... that it wasn't me [s]o I can get out of this place." She replied, "Okay." The discussion turned to the topic of bail, at which point Debbie claimed to have insufficient funds and said, "Well, you shouldn't of did it in the first place."
The second jail call began with Saldana saying, "Uh, why don't you call the DA's office and see what the hell's going on with that and tell them that you[-] you[-] you know what, that it was [-] I was not there. I wasn't even, I was nowhere inside." Debbie agreed to help him, but added: "I'm mad at you. ... You shouldn't of did what you did. It was bullshit. You took me for granted." After further discussion, Saldana instructed her to "call the DA's office" and say "it wasn't him."
Saldana maintained telephone contact with Debbie from jail throughout 2014. In March, after attending a preliminary hearing, he called to discuss the status of his case. Saldana spoke more cryptically than he had on the day of his arrest, using code words and reminding Debbie to "watch what you say" over the recorded line. Nevertheless, they talked openly of a plan that involved Debbie leaving town during a certain time period. At one point Saldana told her, "[Y]ou just need to stay away till this is uh over ... Do you know what I mean? ... Till this is over with."
Saldana was ultimately charged with first degree burglary of an occupied residence (Pen. Code, §§ 459, 667.5, subd. (c)(21); count 1); making criminal threats against Ashley (Pen. Code, § 422; count 2); misdemeanor exhibiting of a deadly weapon (Pen. Code § 417, subd. (a)(1); count 3); misdemeanor vandalism (Pen. Code, § 594, subd. (a)(2); count 4); and dissuading a witness from assisting in a prosecution during his phone calls with Debbie on February 20, 2014 and March 7, 2014 (Pen. Code, § 136.1, subd. (b)(2); counts 5-7). A weapon enhancement allegation was included in count 2 pursuant to Penal Code section 12022, subdivision (b)(1). Saldana was further alleged to have suffered a prior strike and serious felony conviction (Pen. Code §§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)), and to have served four prior prison terms (id., § 667.5, subd. (b)). The charges were tried before a Fresno County jury in December 2014.
During in limine proceedings, the trial court found that Ashley and Debbie were legally unavailable to testify as a result of wrongdoing by Saldana. The trial court reached this conclusion after listening to audio recordings of multiple jail calls between Debbie and Saldana, and hearing testimony from jail personnel and investigators from the district attorney's office. Pursuant to the finding of unavailability by wrongdoing, the People were permitted to introduce hearsay evidence of Ashley's and Debbie's statements to law enforcement officers. The trial court also ruled to allow expert witness testimony about intimate partner battering syndrome for the purpose of explaining Debbie's refusal to participate in the case. Further background information on these rulings is provided in our Discussion, post.
The People's case-in-chief included testimony from Detective Willey and Officers Pierce and Taylor. The jury heard audio recordings of the 911 calls and of six subsequent telephone conversations between Debbie and Saldana, including the jail calls upon which counts 5-7 were based. Expert testimony regarding intimate partner battering syndrome was provided by a licensed marriage and family therapist named Bob Meade. Investigators from the district attorney's office testified to efforts they had made to procure the trial attendance of Ashley and Debbie. Ashley had reportedly thrown her subpoena into a trash can upon being served, and both women eluded capture after bench warrants were issued for their failure to appear. The defense rested without presenting any evidence.
The jury deliberated for less than two hours before returning guilty verdicts on all counts. Saldana admitted the truth of the allegations concerning his prior convictions and prison terms. The trial court exercised its discretion to strike the prior prison term enhancements. Saldana received a 19-year prison sentence, which was comprised of a 13-year term for count 1 (the middle term of 4 years, doubled to 8 years for the prior strike, plus five years for the prior serious felony conviction), a consecutive two-year term for count 6, and a consecutive four-year term for count seven. He received a concurrent sentence on count 2, a stayed sentenced on count 5, and was credited with time served for the misdemeanors. This timely appeal followed.
DISCUSSION
Admissibility of Hearsay Evidence
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) A trial court's ruling on the admissibility of evidence, including its determination of issues concerning the hearsay rule, is reviewed for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 590; People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) "Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Goldsmith, supra, 59 Cal.4th at p. 266.) Saldana alleges the trial court abused its discretion by admitting hearsay testimony regarding Ashley's statements to Detective Willey. As we will explain, the claim is meritless.
The People moved in limine to admit evidence of Ashley's and Debbie's statements to law enforcement officers pursuant to Evidence Code section 1390, which codifies a hearsay exception based on the doctrine of forfeiture by wrongdoing. Section 1390 provides, in relevant part: "(a) Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. [¶] (b)(1) The party seeking to introduce a statement pursuant to subdivision (a) shall establish, by a preponderance of the evidence, that the elements of subdivision (a) have been met at a foundational hearing."
Except where otherwise specified, all further statutory references are to the Evidence Code.
The trial court conducted a foundational hearing in accordance with section 1390, subdivision (b). After listening to the recorded jail calls and learning that Ashley and Debbie had both visited Saldana in jail, the court accepted the People's argument that Saldana had used Debbie "as a conduit" for his efforts to dissuade Ashley from testifying at trial. Ashley's statements to Officer Pierce and Detective Willey were thus deemed admissible under section 1390.
Inexplicably, Saldana fails to address, or even cite, section 1390 in his briefs. He does not challenge the trial court's reasoning or the factual basis for its ruling. We are instead presented with a non sequitur argument regarding the trial court's failure to determine whether Ashley's statements to Detective Willey were "trustworthy within the meaning of section 1252," which is a provision that applies to an entirely different hearsay exception.
California's statutory exceptions to the hearsay rule are found in articles 1 through 17 of chapter 2 of division 10 of the Evidence Code. Article 5 contains section 1250, commonly known as the state of mind exception, and section 1252, which establishes "a backstop test for trustworthiness as a prerequisite to limited purpose admission of hearsay under Evidence Code section 1250, subdivision (a)(1)." (People v. Romeo (2015) 240 Cal.App.4th 931, 947.) Section 1252 provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." (Italics added.)
Section 1390 is contained in article 17 of chapter 2 of division 10 of the Evidence Code, and thus operates as a stand-alone exception to the hearsay rule. Unlike section 1250, which is subject to an indicia of reliability requirement, section 1390 states that "[i]n deciding whether or not to admit the statement, the judge may take into account whether it is trustworthy and reliable." (§ 1390, subd. (b)(4), italics added.) The provision means just what it says; in exercising its discretion to admit hearsay under the exception provided in section 1390, subdivision (a), the trial court may consider the reliability of the hearsay but is under no obligation to determine if the evidence is, in fact, trustworthy. (See People v. Standish (2006) 38 Cal.4th 858, 869 [" 'the presumption [is] that the word "shall" in a statute is ordinarily deemed mandatory and "may" permissive.' "].)
Saldana's arguments reference the common law doctrine of forfeiture by wrongdoing, which overrides a defendant's constitutional right to confront adverse witnesses. He purports to rely on People v. Giles (2007) 40 Cal.4th 833 (Giles), which explains that "even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witness's prior hearsay statement falls within a recognized hearsay exception...." (Id. at p. 854.) The Giles opinion does not assist Saldana because the trial court below admitted the challenged evidence pursuant to a recognized hearsay exception, i.e., section 1390. We note further that Giles was published several years prior to the enactment of section 1390. (Stats. 2010, ch. 537, § 2; see § 1390, subd. (c) ["This section shall apply to any civil, criminal, or juvenile case or proceeding initiated or pending as of January 1, 2011."].)
"[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system." (Davis v. Washington (2006) 547 U.S. 813, 833.) Accordingly, " 'the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.' " (Ibid., quoting Crawford v. Washington (2004) 541 U.S. 36, 62.)
Overruled in Giles v. California (2008) 554 U.S. 353 as to the California Supreme Court's conclusion that the doctrine could be invoked outside the context of deliberate witness tampering.
In summary, Saldana claims the trial court abused its discretion by failing to determine the trustworthiness of Ashley's statements to Detective Willey in accordance with section 1252. However, the evidence in question was admitted pursuant to section 1390. Since admissibility of hearsay under section 1390 is not conditioned upon findings of reliability or trustworthiness, no abuse of discretion has been shown.
Admissibility of Expert Witness Testimony
Saldana assigns error to the trial court's admission of expert witness testimony on the subject of intimate partner battering syndrome. He claims the evidence had no relevance and should have been excluded pursuant to section 352. We do not reach the merits of these arguments because both claims fail for lack of prejudice. Saldana additionally contends, unpersuasively, that the "overwhelmingly prejudicial impact" of the expert's testimony infringed upon his constitutional due process rights.
The Evidence Code uses the phrase "intimate partner battering and its effects" to refer to what was formerly known as "battered women's syndrome." (§ 1107, subd. (f).) "Intimate partner battering syndrome" is the terminology used in the proceedings below and in the parties' briefs.
Background
The People moved in limine to call therapist Bob Meade as an expert witness pursuant to section 1107, which authorizes expert testimony "regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence...." (Id., subd. (a).) The People argued that Mr. Meade's testimony would be relevant to explaining why Debbie had refused to participate in the case despite initially reporting Saldana's crimes to police. The foundational evidence of intimate partner battering was said to be Saldana's act of threating to kill Ashley in Debbie's presence.
Saldana's trial counsel disputed the characterization of his threats against Ashley as intimate partner battering. The trial court sided with the People, noting that section 1107, subdivision (c) incorporates the definitions of "abuse" and "domestic violence" found in Family Code sections 6203 and 6211, respectively, both of which include the act of placing a person "in reasonable apprehension of imminent serious bodily injury to that person or to another." (Fam. Code, § 6203, subd. (a)(3), italics added.) Section 1107 also states that "abuse" and "domestic violence" may include acts defined in Penal Code section 422, i.e., making criminal threats. (§ 1107, subd. (c).) The defense objected to Mr. Meade's testimony on relevance grounds and pursuant to section 352, but the objections were overruled.
In his testimony before the jury, Mr. Meade described intimate partner battering syndrome as a condition of "learned helplessness" experienced by someone who has endured physical and/or verbal abuse from an intimate partner. Generally speaking, it is the mindset "that it doesn't matter what I do, I'm never going to get out of this relationship, he is never going to stop, he is never going to change, and really a sense of giving up." The abuser, on the other hand, thrives on having power and control over the victim.
The expert identified and discussed three stages common to all intimate partner relationships: the honeymoon phase, where everything is wonderful; the tension phase, where "things aren't quite so good and you're upset with each other;" and the confrontation phase, which, in healthy relationships, is where couples "talk it out" and resolve issues that are causing tension. In an abusive relationship, however, the third stage involves physical and/or verbal abuse. Victims of such abuse eventually find themselves stuck in the second and third stages of the cycle, and may refrain from ending the relationship or reporting the abuse because they are afraid of their partner and/or hope that the honeymoon phase can be reached once again. In Mr. Meade's experience, it is not unusual for sufferers of intimate partner battering syndrome to (1) lie in order to protect their partner, (2) visit the partner in jail when he or she is facing prosecution, and/or (3) fail to appear in court to testify about the abuse.
Mr. Meade denied knowing the parties involved this case or having any familiarity with the underlying facts. He was not asked to provide any opinions on the matters in dispute. The jury was instructed on the limited purpose of his testimony in accordance with CALCRIM No. 850.
The instruction was as follows: "You have heard testimony from Bob Meade regarding the effect of intimate partner battering. Bob Meade's testimony about intimate partner battering is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in considering whether or not Debbie Trepal's conduct was not inconsistent with the conduct of someone who has been abused and in evaluating the believability of her testimony." --------
Analysis
In terms of the threshold for admissibility, section 1107 provides: "The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness." (§ 1107, subd. (b).) In People v. Gomez (1999) 72 Cal.App.4th 405 (Gomez), Division Three of the Second District Court of Appeal held that expert testimony about intimate partner battering and its effects (referred to there as battered women's syndrome) is not relevant in a case where the evidence of abuse is limited to a single instance of misconduct. The appellate panel reasoned that a "single violent incident, without evidence of other physical or psychological abuse, is not sufficient to establish that a woman suffers from battered women's syndrome." (Id. at p. 417.) Saldana relies on Gomez to argue that the People failed to satisfy the foundational requirements of section 1107.
In People v. Williams (2000) 78 Cal.App.4th 1118 (Williams), Division Four of the Second District disagreed with the Gomez holding and concluded "[t]here is nothing in Evidence Code section 1107 to suggest that the Legislature intended that a batterer get one free episode of domestic violence before admission of evidence to explain why a victim of domestic violence may make inconsistent statements about what occurred and why such a victim may return to the perpetrator." (Williams, supra, 78 Cal.App.4th 1129.) The California Supreme Court discussed the split of authority on this issue in People v. Brown (2004) 33 Cal.4th 892 (Brown), a case which involved the admission of expert testimony under section 1107 based on the trial court's adherence to the view espoused in Williams. (Brown, supra, 33 Cal.4th at pp. 895-897.) The high court declined to resolve the split, concluding the challenged evidence was admissible under the more general provisions of Evidence Code section 801, which permits expert testimony related to a subject that is sufficiently beyond common experience if such testimony might assist the trier of fact. (Brown, supra, 33 Cal.4th at p. 905.) On that basis, the expert's testimony was held to be admissible "even though the evidence showed only one violent incident," and the court stated that "[a]ny language in People v. Gomez, supra, 72 Cal.App.4th 405, contrary to this conclusion, is disapproved." (Brown, supra, 33 Cal.4th at p. 908.)
Saldana acknowledges Brown, but argues the present case is factually distinguishable. As a fallback position, he asserts that even if Mr. Meade's testimony was admissible under sections 801 or 1107, the trial court abused its discretion by failing to exclude it pursuant to section 352. Were we inclined to accept any of these arguments, we would nevertheless affirm the judgment for lack of prejudice.
The erroneous admission of evidence is tested for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Richardson (2008) 43 Cal.4th 959, 1001.) The question is whether there is a reasonable probability the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.) "In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
The expert testimony was a small component of the People's case and each conviction could have easily been secured without it. There was compelling evidence of Saldana's guilt in the 911 calls, the testimony of the investigating officers, and the incriminating telephone conversations between him and Debbie. In contrast, the defense offered a relatively weak hypothesis that Ashley and Debbie had avoided coming to court because they did not want to admit they had falsely accused Saldana in their initial reporting of the crimes. We are convinced the outcome would have been the same with or without the testimony of Bob Meade.
Saldana further contends that admission of the expert testimony violated his constitutional due process rights. Although defense counsel failed to raise any due process concerns below, the general rule of forfeiture does not apply to " 'a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved....' " (People v. Partida (2005) 37 Cal.4th 428, 436.) Where, as here, the contention is that the overruling of a section 352 objection had the additional consequence of violating due process, the claim is reviewable to the extent it relies on the same theory of exclusion that was presented to the trial court. (Id. at pp. 437-438.) "But the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test...." (Id. at p. 439, original italics.)
Saldana argues that the limiting instruction given pursuant to CALCRIM No. 850 did not prevent or cure the "inflammatory emotional impact" of Mr. Meade's testimony, which is described as "so greatly disproportionate to the evidence of the charged crime[s] that appellant's Fourteenth Amendment right to due process and a fair trial was violated." The contention on appeal rests on the same theory advanced at trial, i.e., that introducing the concept of intimate partner battering syndrome necessarily implied that Saldana had subjected Debbie to domestic violence on prior occasions. The argument is valid with regard to the potential for prejudice, but that does not mean the trial proceedings were fundamentally unfair. Given all of the circumstances discussed, we cannot conceive of a scenario in which the verdicts would have been different but for the admission of the expert witness testimony. (See People v. Rivas (2013) 214 Cal.App.4th 1410, 1422-1423 [discussing various interpretations and examples of the "fundamental unfairness" standard].)
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.