Filed 9/25/15 P. v. De La Rosa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068055
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1203647)
ANGEL JACOB DE LA ROSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Edward D.
Webster, Judge. Affirmed.
Richard Power, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Angel De La Rosa (Angel) guilty of four counts of
intimate partner battery resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)),1 three counts of uttering a criminal threat (§ 422), one count of attempted criminal
threat (§§ 422/664), one count of simple assault (§ 240), and one count of assault with
force likely to cause great bodily injury with a true finding on a great bodily injury
enhancement attached to that count (§§ 245, subd. (a)(4) & 12022.7, subd. (e)). The jury
hung on several other counts. The court sentenced Angel to an aggregate term of nine
years on the counts and allegations as to which the jury had reached verdicts. In
subsequent proceeding, Angel pleaded guilty to two counts on which the jury had hung
and the court sentenced Angel to an aggregate term of two years four months, to run
consecutively to the nine-year term, for a total aggregate term of 11 years four months.
On appeal, Angel claims he was denied his right to present a defense because the
court prevented him from introducing testimony that the victim, Jane Doe (Doe), had a
history of mental health problems, and as a result impaired his ability to argue the injuries
suffered by Doe were self-inflicted. He also asserts the court erred by allowing the
prosecution to call an expert to testify to the "cycle of violence" involved in domestic
violence relationships.
1 All further statutory references are to the Penal Code unless otherwise specified. 2 I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Overview
Angel and Doe began an on-again, off-again dating relationship in late 2010 and
Doe ultimately moved in with him, living with Angel at his family's home for a few
months before she moved back in with her parents in February 2012. However, her
parents disapproved of her relationship with Angel and gave her a choice: live with her
parents at their home, or continue her relationship with Angel, but not both. Doe chose
Angel, and she returned to live with him at his parent's home in May 2012.
On June 27, 2012, Doe left Angel's home permanently and returned to her parents'
home. When Doe arrived, she had numerous physical injuries, and her mother and sisters
began crying. Her oldest sister called the police, who came and photographed the
injuries. Doe was examined by a doctor that day, who determined Doe had suffered
multiple injuries, which were in various stages of healing.
The prosecution theory, supported principally by Doe's testimony, was that Angel
had threatened Doe and physically abused her on numerous occasions in the
approximately one month before Doe finally left him. The defense theory, supported
principally by the testimony of Angel and his family and friends, was that Doe was a
jealous girlfriend who lied about Angel's conduct toward her.
3 Doe's Testimony and Corroborative Evidence
Doe and Angel's on-and-off relationship was marked by constant arguments,
which tended to revolve around Angel's feelings of jealousy. Angel was controlling:
although Doe had a cell phone, Angel placed his own password on it so she could not use
it without his permission, and he also made sure she could not access the land line in his
house without his knowledge. He also would sit next to her when she used the computer.
In early June, Doe went with Angel to a swap meet in his newly acquired BMW.
After they got into his car, Angel accused Doe of "looking at" another man in the parking
lot and, when she denied it, he accused her of lying to him. As Angel drove them to a
place called "the Point," a dead-end street with a view, he back-handed her in the face
and said he would beat her until she told the truth. Angel had a Glock pistol in his car,
and as they approached the Point he pulled it out, aimed it at her, and again accused her
of lying about looking at the other man. He said he was tired of her lying and was going
to kill her, and he had the perfect place. Doe was shaking and spilled some food on the
floor of the car. Angel stopped the car at the Point and told her to clean it up or he would
kill her right there and dump her body over the hill. He also told her to clean the blood
from her nose, and to fix her makeup; he was angry she had got his new car dirty. After
they left the Point, he told her why everything was her fault, and warned her to tell no one
what had happened. She was scared and said nothing to anyone, and instead used
makeup to cover the growing purple bruise under her eye.
4 Several days later, Doe needed to use her phone so Angel unlocked it for her.
Angel spotted some texts from a boy (Torres) to Doe in which Torres referred to Doe as
"doll." Angel became angry, and accused her of having sex with Torres. He used her
phone to call Torres, and forced Doe to ask Torres why he had called her "doll." Torres
explained it was a running joke between them. Angel then got on the phone and told
Torres to stop calling or texting Doe. When Torres began to argue with Angel, he
threatened to go to Torres's house to beat him up.2 After the phone call ended, Angel
demanded Doe tell him where Torres lived, but Doe said she did not know; Angel started
hitting her in the face to extract Torres's address from her. Doe screamed, and Angel's
father came in and told them he would not condone that in his home and to leave. They
walked outside, and Angel pushed Doe into some bushes. They subsequently returned to
the house, assuring Angel's father it was over, and went to Angel's room. However, when
Angel's father and mother left the house, Angel resumed beating Doe, during which time
he slapped her, punched her, choked her unconscious, and struck her with a bat. During
the attack, after Doe said she would do anything to make him stop, Angel sodomized her
twice, and had her perform oral sex on him.
After the attack ended, Angel told her it was her fault for making him so angry
that he had to hit her. When Angel's parents returned to the house, Angel told her to stay
out of sight, but Angel's mother saw the aftermath and yelled at Angel, but then switched
to telling Doe she must have been asking for it. Doe told Angel's parents she wanted to
2 Torres confirmed he was on the receiving end of the phone call and that Angel threatened to come to his house to fight him. 5 go home, but they didn't want Doe's parents to see her condition. Doe also told Angel she
wanted to leave, but he became angry and stomped on her phone (shattering it) and said
the only way she would leave was in a body bag. However, he later was very remorseful,
telling her he loved her and it wouldn't happen again.
The next day, Angel's sisters saw Doe's injuries. Arguments ensued among those
present, and the group agreed Angel would stay with his sister for a few days while Doe
remained at Angel's house to heal, after which Doe would return to her parents' home.
Angel left his home for a few days but Doe stayed at Angel's home after he returned.
In mid-June, Angel's parents left them alone at their house. Angel and Doe argued
and Angel slapped Doe, causing her nose to bleed. He continued hitting her, then choked
her into unconsciousness. When she regained consciousness, he again choked her. When
she tried to escape, he bit her hand and, at some point during the assaults, threatened her
with a butterfly knife he always kept around, and choked her into unconsciousness again.
When she again regained consciousness, Angel told her to clean herself up and to act as if
nothing had happened.
On June 27, Doe finally left Angel's home after another attack. That day, Angel
(angry at Doe because of her refusal to perform oral sex on him the previous day)
demanded that Doe accompany him to pick up his sister at an animal shelter. While en
route, he mentioned a friend was coming over to "smoke" (presumably marijuana) with
Angel. He asked Doe whether she knew his friend and then accused her of having sex
with him. He back-handed her in the face, and then pulled out a Glock and pointed at her
6 knees when she kept denying his accusations. Doe told Angel they were running late to
pick up his sister and people might think something was wrong, so Angel drove to the
animal shelter. He had Doe sit in the back seat (to prevent his sister from seeing Doe's
injured lip) and told Doe to say nothing, and Doe complied. When they arrived at
Angel's house, Angel dropped Doe off and departed. Doe went to Angel's father and said
Angel had pointed a gun at her and she wanted to go home. When Angel returned, he
and his father began fighting, and Angel's mother subsequently took Doe to Doe's
parents' house. Doe left everything behind at Angel's house. When Doe arrived home,
her mother saw her and burst into tears, and someone called police, who responded to the
call and photographed Doe's injuries.
A district attorney investigator testified that bruises around the neck are often
indicators of manual strangulation, and that certain marks on Doe's back were consistent
with bite marks. The treating physician testified the injuries on Doe were in various
stages of healing, including a scabbed-over bite mark.
Police went to Angel's house on the evening of June 27 and arrested Angel.
However, his BMW was not there when they arrested Angel. Police were unable to
search the BMW until July 19, around three weeks after the arrest, and Doe's blood was
found in Angel's car. Police never found the Glock but did find, secreted in a speaker in
Angel's parents' bedroom, a loaded Glock magazine. During the same search police
found a butterfly knife hidden in Angel's parents' bedroom.
7 Defense Evidence
Angel's family and a friend denied ever seeing any injuries to Doe, and Angel
claimed he was not violent toward Doe except when he acted to defend himself from her
assaults on him. However, the jury was provided with the transcript of a jailhouse phone
conversation between Angel and his family members during which they discussed the
importance that "our stories gotta match."
II
ANALYSIS
A. The Excluded Evidence Claim
Angel argues the court erroneously prevented him from questioning Doe about her
history of mental health problems and therefore interfered with his ability to bolster his
defense that the injuries Doe suffered were self-inflicted.
Background
Prior to trial, the prosecutor moved to exclude references to Doe's prior mental
health difficulties. About six months before the attacks, Doe was hospitalized and
received medication for some undisclosed mental issue, but was not under treatment at
the time of the attacks. The defense claimed the evidence was relevant to provide
"background" for why Doe was living with Angel and did not want to return home. The
defense suggested that, when and if the defense wished to delve into Doe's mental health
issues, it would make an offer of proof and have the court rule on admission of that
evidence at that time. The court agreed to exclude mention of her mental health but
8 noted the ruling was without prejudice to revisiting the issue at such time as its relevance
became pertinent.
During Angel's cross-examination of Doe, after she stated Angel's father saw her
wiping her bloody nose and that the father suggested she was just trying to get attention
for herself, the court sustained objections to several questions by defense counsel that
suddenly began asking about whether Angel's father was aware of Doe's purported
mental health issues. The court ruled the questions were irrelevant and violated its in
limine ruling. In a subsequent hearing outside the presence of the jury, the court clarified
that Angel was not entirely barred from questioning Doe about mental health issues, but
instead needed to demonstrate the relevance of the evidence. The defense later stated it
had information Doe was a "cutter," and noted the location of some of the bite marks (the
ones on her hands) were consistent with self-infliction. The court, although observing
other injuries (bite marks and bruises on her back) were inconsistent with self-infliction
and the bite marks on her hands were equally consistent with Angel inflicting those
injuries, ultimately ruled Angel could introduce evidence Doe had bitten herself (or hit or
cut herself) in the past and the defense subsequently elicited her admission she had a
history of cutting herself. The court also inquired about a prior suicide attempt by Doe,
and learned that she had been in the eighth grade and had watched as her grandfather had
died, and she had tried to commit suicide by cutting herself; the court ruled the attempted
suicide attempt was not itself relevant. The defense never made any further proffer it had
9 evidence concerning Doe's mental health history, much less a proffer accompanied by an
explanation of how the evidence would be relevant.
Angel asserts he was improperly prevented from introducing evidence of Doe's
previous suicide attempt, and other evidence of her more recent mental health issues
(including her hospitalization and her psychotropic medication regimen), in violation of
his constitutional rights to present probative evidence pertinent to his defense (People v.
Reeder (1978) 82 Cal.App.3d 543, 553; Crane v. Kentucky (1986) 476 U.S. 683, 691),
and to cross-examine his accuser (Davis v. Alaska (1974) 415 U.S. 308, 316). However,
the right to present a defense does not allow a defendant to present irrelevant evidence,
and a trial court has discretion to determine whether to exclude evidence as irrelevant.
(People v. Thornton (2007) 41 Cal.4th 391, 444-445.) Our Supreme Court has repeatedly
explained that "[a] trial court's decision to admit or exclude evidence is reviewable for
abuse of discretion" (People v. Vieira (2005) 35 Cal.4th 264, 292) and trial judges "retain
'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant.' [Citations.] A trial court's ruling to admit or
exclude evidence offered for impeachment is reviewed for abuse of discretion and will be
upheld unless the trial court 'exercised its discretion in an arbitrary, capricious, or
10 patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v.
Ledesma (2006) 39 Cal.4th 641, 705.)
Angel cannot demonstrate that the trial court's refusal to allow him to delve into
Doe's previous suicide attempt or the other purported evidence of her more recent mental
health issues was an abuse of discretion because Angel never made an offer of proof.
Angel never showed what evidence he actually sought to introduce or, more importantly,
how that undisclosed evidence might be relevant to his claim the injuries Doe claimed
were inflicted by Angel were in fact self-inflicted. "When a trial court denies a
defendant's request to produce evidence, the defendant must make an offer of proof in
order to preserve the issue for consideration on appeal." (People v. Foss (2007) 155
Cal.App.4th 113, 126; People v. Lucas (2014) 60 Cal.4th 153, 232-233 [defendant
forfeits claim where he does not make offer of proof tendering contemplated witnesses or
evidence for purposes of challenging the credibility of a witness], disapproved on other
grounds by People v. Romero (Aug. 27, 2015, S055856) ___ Cal.4th ___ [2015 WL
5047523 at p. 32, fn. 19].) " ' "Before an appellate court can knowledgeably rule upon an
evidentiary issue presented, it must have an adequate record before it to determine if an
error was made." [Citation.]' [Citation.] 'The offer of proof exists for the benefit of the
appellate court. The offer of proof serves to inform the appellate court of the nature of
the evidence that the trial court refused to receive in evidence. . . . The function of an
offer of proof is to lay an adequate record for appellate review. . . .' " (Nienhouse v.
Superior Court (1996) 42 Cal.App.4th 83, 93-94.) "An offer of proof should give the
11 trial court an opportunity to change or clarify its ruling and in the event of appeal would
provide the reviewing court with the means of determining error and assessing prejudice.
[Citation.] To accomplish these purposes an offer of proof must be specific. It must set
forth the actual evidence to be produced and not merely the facts or issues to be
addressed and argued." (People v. Schmies (1996) 44 Cal.App.4th 38, 53.)
Here, Angel did not give a specific offer of proof of the evidence to be produced,
and his only proffered relevance for the evidence was that Doe's mental history would (1)
provide some "background" for why she was living with Angel and did not wish to return
home, and (2) show she had a history of self-harm. The court permitted Angel to produce
any evidence he had concerning her history of self-harm. Angel made no showing that
any other evidence of her generic mental health concerns had any relevance to the issues
in the case. On this record Angel cannot show that exclusion of the evidence of Doe's
previous suicide attempt, and other evidence of her more recent hospitalization or her
medication regimen, was an abuse of discretion.
B. The Expert Testimony Claim
Angel argues the court erred by allowing the prosecution to call an expert to testify
to the so-called "battered woman syndrome" (BWS) involved in domestic violence
relationships because (1) there was an inadequate foundation Doe had endured an
extended period of physical violence necessary for the creation of BWS, and (2) there
was no foundation that the type of intermittent relationship between Doe and Angel as
existed here could provide the milieu from which BWS can emerge.
12 Background
Prior to trial, the defense moved in limine to preclude the prosecution from calling
an expert to testify about domestic violence and why a victim would remain with an
abusive partner instead of reporting the abuse. The defense argued the length of their
relationship was inadequate to show Doe was enmeshed in the cycle of violence typically
present in BWS cases. The court concluded the length of the relationship, even though it
was an on-again, off-again relationship, was adequate to provide a foundation for the
expert's opinions, and the defense could cross-examine the expert on length of the
relationship to undermine the expert's opinions.
Angel asserts that it was error to permit the expert to testify about BWS because
the court in People v. Gomez (1999) 72 Cal.App.4th 405 held that evidence of a single
violent incident without evidence of other abuse was insufficient to establish that a
woman suffered from BWS, and therefore held it was reversible error to admit expert
testimony regarding BWS. (Id. at pp. 417-419.) However, the People assert the Supreme
Court in People v. Brown (2004) 33 Cal.4th 892 concluded expert testimony concerning
the behavior of victims of domestic violence was admissible under Evidence Code
section 801 (admissibility of expert opinion testimony) even though the evidence showed
only one violent incident because the "evidence presented at trial suggested the
possibility that defendant and [his live-in girlfriend] were in a 'cycle of violence' of the
type described by [the] expert" on the evening of the assault (Brown, at p. 907), and
13 explicitly disapproved "any language" in Gomez contrary to its conclusion. (Brown, at
p. 908.) However, the Brown court explicitly stated it was not reaching the question of
whether the expert testimony was also admissible under Evidence Code section 1107.
(Brown, at p. 896.)
We are convinced the expert's testimony was admissible under the rationale of
Brown. Although Angel correctly notes Brown explicitly declined to reach the issue of
whether a single act of violence was adequate to permit admission of expert testimony of
BWS under Evidence Code section 1107, we are unpersuaded by Angel's effort to
explain why Brown's explicit approval of the admission of such evidence under the
alternative basis of Evidence Code section 801 would not support the trial court's ruling
here. Brown noted that "under subdivision (a) of section 801, expert testimony is
admissible on any subject 'sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.' " (People v. Brown, supra, 33 Cal.4th at p. 905.)
Brown, after noting "the close analogy between use of expert testimony to explain the
behavior of domestic violence victims, and expert testimony concerning victims of rape
or child abuse" (ibid.), explained the Supreme Court has held "expert testimony
concerning rape victims—the rape trauma syndrome—to be admissible under section 801
to dispel common misconceptions about how such victims behave [citation] . . . ." (Ibid.)
That was the purpose for which the expert testimony was proffered here: to dispel the
common misperception that, if a person had in fact suffered violence at the hands of her
partner, the victim would have immediately reported it or left the relationship. Because
14 Brown concluded testimony of an expert is admissible under Evidence Code section 801
to dispel common misconceptions about how victims might behave—even when there
was only evidence of a single violent event, the fact that Doe had only endured beatings
over a one-month period did not require the court to exclude the expert testimony about
BWS.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.