Filed 1/21/99

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Kenneth Andrew Williams was convicted after a jury trial of one count of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and one count of making a terrorist threat. (§ 422.)

Prior to trial Williams entered a plea of no contest and then withdrew his plea. At trial the prosecution improperly asked questions about the no contest plea. The trial judge instructed the jury not to consider the plea as an admission of guilt. We reverse the judgment because there is a reasonable probability Williams would have obtained a more favorable result absent the improper questions. (People v. Cahill (1993) 5 Cal.4th 478, 509-510.)

FACTS

Williams and Barbara B. lived together in Ventura. On November 30, 1995, they went to a local dance club. When they returned home in the early morning hours of December 1, 1995, they began to argue. Williams believed Barbara had kissed another man at the dance club.

Williams pushed Barbara onto her back on the floor. He straddled her chest and threatened to take her to Ojai and have his friends gang rape her. He ripped her shirt and bit her lower lip, breaking the skin on the inside. The attack lasted 15 to 20 minutes, after which Barbara fell asleep. After she awoke, she went to work.

Later that day, Williams wanted to drive with Barbara to Granada Hills to pick up her son at her ex-husband's home. Barbara agreed because Williams was persistent and had her daughter with him. Barbara's daughter and Williams' son went along on the trip.

During the drive Williams and Barbara began arguing. Barbara said that due to the incident that morning she would have to reconsider their relationship. Williams became angry. He told Barbara he would take her off the freeway and kill her. He left the freeway and began driving on a side street. Barbara believed that Williams would kill her and attempted to leave the van. She got her legs outside the passenger door when Williams grabbed her hair and pulled her back. He slammed her face against the passenger window and the dashboard and hit her in the nose. He put his fingers in her mouth and pulled her head down between the seats. She was bleeding from her nose and mouth. She received a black eye, an injury to her left temple and there was an area on her head from which the hair was missing.

The attack lasted 10 to 15 minutes. Williams stopped when Barbara's daughter began pounding on Williams' shoulder. A resident of the area saw the van and heard children screaming inside. She called 911.

Williams, Barbara and the children continued on their way to pick up Barbara's son. When they returned to Ventura, Barbara attempted to leave their home but Williams prevented her. Barbara called her mother and told her Williams had given her a black eye and a bloody nose. Later a police officer arrived at her home. Williams left by the back window.

[[After the December 1, 1995 incidents, Williams apologized over the telephone. He also sent letters asking her to come back to him. Barbara testified she was sexually intimate with Williams on two occasions after the incidents and visited his home two to five times. She also sent him flowers on his birthday. The last time she saw him was in January of 1996. Barbara had been in a physically abusive relationship with a man prior to living with Williams. She resumed the relationship after Williams left.

Social worker Gail Pincus testified about battered women's syndrome. She said after a man makes a commitment to a woman, he begins exercising control over and intimidating her. Finally there is physical violence followed by reconciliation. The pattern is repeated. Over time the woman begins to believe the abuse is her fault. If a woman does not receive help after an abusive relationship ends, it is common for her to become involved in another abusive relationship. A man who has battered his ex-wife and a woman who was formerly battered may quickly form a live-in relationship.

Williams' former wife testified that he had been physically violent with her on approximately 20 occasions throughout their relationship. They had dated for two years and had been married for two years.]]

Williams testified and said he and Barbara began dating on August 1, 1995, and he moved in with her two months later. They argued but did not have a physical confrontation until December 1, 1995.

Early that morning Williams and Barbara were arguing about the kiss. They smoked some marijuana and argued some more. They began to wrestle but not in anger. Wrestling was something they did all the time. While they were on the floor they had sex. During sex he nibbled on her lip. Williams denied he threatened her.

Later that evening as they were driving to Granada Hills they got into an argument over Barbara's plans for Christmas visitation with her son. He pulled off the freeway because things were becoming too chaotic in the van.

After he pulled off the freeway, Barbara began screaming to her daughter that Williams was going to kill her. She hit him on the side of the head and began kicking at him. The door came open and she tried to get out. They were traveling at approximately 25 miles an hour. He reached over and pulled her in. He did not know where he grabbed her.

Back inside the van she resumed hitting and kicking him. He pushed her away. He did not intentionally push her face into the dashboard. He was driving when he pushed her. He did not know what happened.

[[On cross-examination the prosecutor was allowed to ask Williams about an incident involving his mother that occurred in January of 1994. Williams denied kicking his mother's feet from under her, getting on top of her, putting his forearm on her neck and telling her it was her day to die.]]

Barbara's sister testified that Barbara's behavior at times was explosive. She has seen Barbara engage in physical violence. She described an incident in which Barbara came to her house with a male friend. Barbara and the friend had been arguing. Barbara jumped out of a chair and began choking her friend. Barbara's friend had not struck Barbara. Barbara's sister also recalled seeing a cut on the back of the friend's head after an incident at her grandmother's house.

Barbara's ex-husband testified that Barbara hit and kicked him on two occasions during their marriage.

DISCUSSION

I

Williams contends the trial court erred in admitting evidence that he had pled guilty or no contest.

Williams called probation officer, Diane Hubbard. Hubbard testified she interviewed Barbara. Barbara told her she had not seen Williams since December 1, 1995. At trial Barbara admitted she had seen Williams on a number of occasions after that date.

The following occurred during the prosecutor's cross-examination of Hubbard: "[PROSECUTOR]: Miss Hubbard, you spoke with [Barbara] on October 21st, 1996. Why were you speaking with her? [¶] [DEFENSE COUNSEL]: Objection, relevance. [¶] [THE COURT]: Overruled. [¶] [THE WITNESS]: Mr. Williams had been referred to the Probation Department following a conviction of a battery against the victim, and I was preparing a probation report instructed by the Court, and in the course of my investigation I contacted the victim to get a statement from her. [¶] [PROSECUTOR]: And this was regarding an incident from December 1st, 1995, correct? [¶] [THE WITNESS]: Yes. [¶] [THE PROSECUTOR]: And you said that the defendant had been convicted. Hadn't he in fact pled guilty to the charge? [¶] [THE WITNESS]: Correct, he had pled guilty. [¶] [THE PROSECUTOR]: Do you know if he ever changed that plea after your report? [¶] [THE WITNESS]: Yes. [¶] [THE PROSECUTOR]: Do you know how long after your report he changed his plea? [¶] [THE WITNESS]: Um, I'm going to say two to three months, perhaps. [¶] [THE PROSECUTOR]: And you were preparing a report which included a sentencing recommendation for the defendant, correct? [¶] [THE WITNESS]: Yes."

The prosecutor raised the matter again on cross-examination of Williams: "[THE PROSECUTOR]: Finally, I want to raise the issue with you. Your attorney clarified that in fact you had not pled guilty in this case approximately a year ago. You had pled no contest, correct? [¶] [WILLIAMS]: Yes. . . . [¶] [THE PROSECUTOR]: Isn't it true that you had been informed by both your attorney and the judge that a no contest plea would result in a finding of guilt and a conviction in a criminal case, and that the only difference between a no contest plea and a guilty plea would be if there were later a civil suit?" The trial court sustained defense counsel's relevance objection.

Two court days after Hubbard's testimony, the prosecutor requested and the trial court gave the following limiting instruction: "[THE COURT]: During the testimony of Diane Hubbard and then again through the testimony of the defendant, you heard evidence that over one year ago the defendant pled no contest in regard to this case and that he later withdrew his plea. [¶] The evidence was received for the limited purpose of explaining why Miss Hubbard was preparing a report and interviewing Barbara []. [¶] It should not be considered by you for any other purpose, and I now admonish you that you may not consider [it] for any other purpose except for the purpose which I just indicated it was received."

The Attorney General concedes, as he must, that evidence of Williams' withdrawn plea was inadmissible. (§ 1192.4; Evid. Code, § 1153.) The Attorney General argues, however, that Williams waived the issue by failing to raise the proper ground for objection. Williams objected to the questions as irrelevant.

If, in fact, the evidence was offered to explain why Barbara was being interviewed, it had no relevance. The defense's point on direct examination was to show that Barbara had lied to Hubbard about not having seen Williams after December 1, 1995. Why Barbara was being interviewed had nothing to do with it. That Williams had pled guilty or no contest had even less to do with it. A proper objection was raised. The only question is whether the error was harmless.

Williams likens evidence of a guilty plea to evidence of a confession. In People v. Cahill, supra, 5 Cal.4th 478, 503, our Supreme Court recognized that "'the confession operates as a kind of evidentiary bombshell which shatters the defense.'" Thus it is more likely than other kinds of evidence to be prejudicial. Nevertheless, where as here no federal constitutional question arises, the Watson test is appropriate for measuring prejudice. (Id., at pp. 509-510.) Under that test the burden is on Williams to show it is reasonably probable he would have obtained a better result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Here there was evidence that both Williams and Barbara had a propensity toward unprovoked violence. Although Barbara's daughter supported Barbara's version of the events, the daughter's young age and her bias may well have led the jury to discount her testimony. The trial was essentially a credibility battle between Williams and Barbara. Evidence that Williams had pled guilty or no contest to the charges had the effect of disarming Williams in the middle of the battle.

Generally the jury is presumed to follow the trial court's instructions. (People v. Ryan (1981) 116 Cal.App.3d 168, 179.) This rule is not absolute. Here the jury was instructed not to take Williams' plea for what it was: an admission of guilt. It would be extremely difficult for the jury to disregard Williams' judicial confession that he had battered Barbara.

There is a reasonable probability Williams would have obtained a more favorable result in the absence of the error.

[[We discuss other issues raised by Williams to guide the parties and the court in the event of a retrial.

II

Williams contends the trial court erred in allowing the prosecutor to introduce evidence of violence toward his mother after the prosecutor rested her case-in-chief. Williams does not contend evidence of violence against his mother was inadmissible. He only questions allowing the prosecutor to cross-examine him on the matter after the prosecution rested its case.

Williams had presented during his defense case evidence of instances of violence committed by Barbara. The prosecutor justified her cross-examination of Williams on acts of violence against his mother under Evidence Code section 1103, subdivision (b). That subdivision provides in part: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence . . . is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant . . . ."

Evidence of Williams' act of violence against his mother could not have been admitted under Evidence Code section 1103, subdivision (b) during the prosecution's case-in-chief. The evidence may be admitted under subdivision (b) only after the defendant adduces evidence of the victim's character for violence.

Williams argues that the evidence could have been admitted during the prosecution's case-in-chief under some other code section. But he cites no authority requiring the prosecutor to seek admission under some other code section.

Williams suggests that the prosecution was "sandbagging" by not presenting the evidence during its case. But there was no surprise. Defense counsel admitted he had received discovery on the matter and that he had "a feeling this was going to happen." Nor did the defense request a continuance on the basis of surprise.

III

Williams contends evidence of prior violent acts against his former wife should have been excluded under Evidence Code section 352.

The trial court has broad discretion in assessing whether the probative value of particular evidence is outweighed by undue prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The trial court's exercise of that discretion will not be disturbed on appeal absent a showing the trial court acted in an arbitrary, capricious or patently absurd manner. (Ibid.)

Williams argues that evidence of prior domestic violence is of limited probative value whether he committed violent acts on this occasion. We disagree. Such evidence is highly probative. Fortunately, the vast majority of people are able to refrain from physically abusing their domestic partners. That Williams has physically abused a domestic partner in the past shows he is capable of doing it again.

Williams also argues the prior acts of domestic violence were so cruel as to be disturbing to the conscience. The evidence showed that on one occasion he hit the mother of his newly born child because she could not give enough breast milk. In another instance he called upon his wife's child of a former marriage to witness the beating while blaming the child for creating domestic discontent.

Indeed such acts are cruel and disturbing. Nevertheless, we cannot conclude the trial court acted in an arbitrary, capricious or patently absurd manner in admitting the evidence.

Williams argues the record does not reflect that the trial court weighed prejudice against probative value. But the trial court stated on the record that it performed the balancing test required by Evidence Code section 352. That is sufficient.

IV

Williams contends the trial court erred in admitting expert testimony on battered women's syndrome. He claims the evidence improperly led the jury to believe that he is a batterer.

Evidence Code section 1107, subdivision (a) provides: "In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women's syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge."

Williams is particularly concerned about the expert's testimony that a man who has battered his ex-wife and a woman who was formerly battered may quickly form a live-in relationship. He is also concerned about the expert's testimony that a woman who has not received a lot of help may get out of one abusive relationship and enter another. Williams points out the jury was informed that his relationship with Barbara had been short and that Barbara had been in a prior abusive relationship. He believes the expert's testimony violates Evidence Code section 1107 in that it tends to show the occurrence of the acts which form the basis of the criminal charge.

But the jury was instructed in part as follows: "Evidence has been presented to you concerning the battered woman's syndrome. This evidence is not received and must not be considered by you to prove the occurrence of the act or acts of abuse which forms the basis of the crimes charged. . . .  You should consider this evidence for certain limited purposes only. Namely, that the alleged victim's reactions as demonstrated by the evidence are not inconsistent with having been physically abused or the beliefs or perception or behavior of victims of domestic violence, period."

We must presume the jury followed those instructions. (People v. Ryan, supra, 116 Cal.App.3d 168, 179.)

Williams argues the trial court abused its discretion under Evidence Code section 352. The expert testimony was admissible not to show that Williams was a batterer, but to show that Barbara suffered from battered women's syndrome. It was important to show that Barbara suffered from the syndrome in order to explain such actions as her failure to report the battery to the police and her relationship with Williams after December 1. In admitting the evidence along with the limiting jury instruction, the trial court did not abuse its discretion.

Williams argues the record does not affirmatively show that the trial court weighed the probative value of the evidence against its prejudicial effect. But the record shows the question was briefed and raised in oral argument prior to the trial court's decision to allow the expert's testimony. That is a sufficient affirmative showing that the trial court weighed the probative value of the evidence against its prejudicial effect.]]

The judgment is reversed.

CERTIFIED FOR PARTIAL PUBLICATION.

GILBERT, Acting P.J.

We concur:

STONE, J.*

YEGAN, J.

Allan L. Steele, Judge

Superior Court County of Ventura

______________________________

Alexander Lambrous, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.