California Court of Appeal Oct 16, 2013 No. E057365Unpublished
Filed 10/16/13 P. v. Payne CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057365
v. (Super.Ct.No. SWF1100737)
SOMER PAYNE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard Todd Fields,
Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie
H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Somer Payne guilty of (1) forcible
kidnapping (Pen. Code, § 207, subd. (a));1 (2) maliciously or forcibly dissuading a
victim or witness from reporting a crime or testifying (§ 136.1, subds. (b)&(c));
(3) making criminal threats (§ 422); (4) intentionally violating a protective order
(§ 273.6, subd. (a)); and (5) three counts of domestic violence (§ 273.5, subd. (a)). As
directly telling the victim that defendant and/or her friends would set the victim on fire
in the desert. The shower statements concerned an implied threat of gang rape and
death. Given the charged act involved a direct threat, while the uncharged act
concerned an implied threat, the trial court could reasonably conclude the uncharged
threat was not more inflammatory than the charged threat.
2. CUMULATIVE EVIDENCE
We now address defendant’s contention concerning the uncharged act evidence
being cumulative. There is not a “bright-line test” for whether evidence is cumulative.
Determining whether evidence is cumulative involves considering whether “the volume
of evidence extend[s] the trial ‘beyond reasonable limits.’” (People v. Hill (2011) 191
Cal.App.4th 1104, 1139.)
The evidence of the 2009 incident helped to explain when defendant’s and the
victim’s relationship first became violent. Thus, the 2009 evidence gave the jury
context within which to place the charged incidents. As a result, the trial court could
15
reasonably conclude the 2009 evidence was not cumulative because it was not repetitive
of other issues and helped the trier of fact to better understand the charged acts.
The evidence of the uncharged 2011 punch helped the jury understand the
kidnapping incident that occurred the following day. For example, the victim was
punched for leaving her keys in the car, and the following day she argued with
defendant about wanting “to come home and be safe.” The fact that the uncharged
punch took place the day before this conversation helped the jury understand exactly
what sparked the argument that led to the kidnapping. Accordingly, the trial court could
reasonably conclude the 2011 punch evidence was not cumulative because it helped the
jury to better understand the charged kidnapping and related offenses.
The evidence of the 2011 implied shower threat helped explain what happened
after the incident in which defendant kicked the victim so hard that the victim urinated
blood for multiple days. The implied shower threat spurred the victim to try to escape
from defendant, in that the victim ran to a neighbor’s house following the implied
threat. This evidence showed that the continuing pattern of the victim trying to leave
defendant following a particularly brutal incident only to return a short time later. Here,
the shower threat evidence was needed to show what finally caused the victim to try to
leave defendant after the kicking incident. Thus, the trial court could reasonably
conclude the evidence was not cumulative.
3. STRENGTH OF THE EVIDENCE
Defendant contends the prejudicial effect of the uncharged act evidence was
“heightened” by the fact that the uncharged acts were supported by stronger evidence
16
than the charged acts. For example, the victim and the victim’s two friends testified
about the 2009 birthday/dashboard incident, thus providing corroborating testimony
about the uncharged 2009 incident. We have explained ante, that the trial court could
reasonably conclude the uncharged act evidence was not (1) more inflammatory than
the charged acts, and (2) cumulative. The fact that there was corroborating testimonies
for the 2009 incident does not cause us to change our position on these conclusions.
We note that defendant’s argument is similar to an argument for a motion to
sever counts. For example, counts may be severed if a weak case has been joined with a
strong case in order to unfairly alter the outcome on the weaker counts. (People v. Scott
(2011) 52 Cal.4th 452, 470.) To the extent defendant is asserting the 2009 incident
should have been “severed” because it was supported by stronger evidence, we find
such an argument to be unpersuasive. The victim’s first friend testified that all she saw
inside defendant’s car was “a motion,” so she did not know if the victim’s head was
slammed into the dashboard; the victim’s second friend testified that she saw defendant
“reach back,” but she did know if defendant “made contact” with the victim.
Accordingly, while there was some corroborating evidence for the 2009 incident, it was
not overwhelming because the friends were unsure of exactly what they witnessed. As
a result, the trial court acted reasonably in not “severing” the 2009 incident.
B. CROSS-EXAMINATION
1 PROCEDURAL HISTORY
The following questions and answers occurred during the cross-examination of
the victim:
17
“[Defense Counsel]: Now, you have been in I guess—was this your first
committed relationship?
“[The Victim]: No.
“[Defense Counsel]: So prior to you meeting [defendant] you had been in other I
guess long-term or committed relationships?
“[The Victim]: That’s correct.
“[Defense Counsel]: Okay. And had you ever been cheated on before?
“[Prosecutor]: Objection. Relevance.
“The Court: Sustained. And 352.”
As the cross-examination continued, the victim explained that when she and
defendant were living with the victim’s parents, defendant and the victim “were picking
up the pieces” after the victim discovered defendant had been living with her ex-
girlfriend (Nicole). The victim explained she did not like defendant speaking to Nicole
because defendant “cheated on” the victim with Nicole. The following exchange
ensued:
“[Defense Counsel]: But you later found out that even when you were still living
together she was still having ties or communications or was seeing Nicole; correct?
“[The Victim]: Yes.
“[Defense Counsel]: That’s what started the argument?
“[The Victim]: Yes. I felt that was a little insensitive, and I had specifically
asked her to allow me just a little while before she was friends with the individual again.
18
“[Defense Counsel]: Okay. So you didn’t even want her to be friends with
Nicole?
“[Prosecutor]: Objection. Relevance.
“The Court: Sustained. Evidence Code [section] 352 also.
“[Defense Counsel]: Was it your idea to move in with your parents?
“[The Victim]: Yes.
“[Defense Counsel]: And when you brought this up to [defendant], what did she
say about that idea?
“[Prosecutor]: Objection. Relevance.
“The Court: Sustained.”
The victim explained that, after some time apart due to the Nicole situation,
defendant invited the victim to live with defendant at defendant’s parents’ house. The
following exchange took place:
“[Defense Counsel]: Then you agreed to go live with her at her parents’ house
knowing that she still had ties or communications with Nicole?
“[The Victim]: Yes.
“[Defense Counsel]: That’s the time you told her that you agreed to be the other
woman?
“[The Victim]: I never agreed to be the other woman.
“[Defense Counsel]: Do you remember talking about that?
“[Prosecutor]: Objection. Relevance.
“The Court: Sustained.
19
“[The Victim]: I just—
“The Court: No. I sustained the objection.
“[The Victim]: Sorry.
“[Defense Counsel]: So you never agreed to be the other woman?
“[Prosecutor]: Objection—
“The Court: I just sustained the objection. Don’t ask the same question, please.
And 352.”
At a sidebar conference following the foregoing exchange, the trial court made
the following comments: “[Defense counsel], I’m sustaining that objection. I know
that you are asking questions to show if she has a bias. I’ve given great leeway to allow
you to ask did you have an argument? Did you start it? Was she seeing someone else?
Did that upset you? Because those things tend to show that maybe she has motive to lie.
But start talking about third party relationships and the other woman, and I—I think that
the probative value is substantially outweighed by the undue consumption of time.
“You have spent a substantial amount of time, and we really haven’t discussed
anything related to the actual charges at all. Whether something tends to prove or
disprove a charge as far as—because much of this is really extraneous, but it’s very
relevant to the fact of if they had arguments, the fact that the complaining witness may
have been upset with the defendant so that would give her a reason to lie potentially. I
have allowed those questions. I have overruled objections on that.
“But I think we’re . . . getting really far afield, and we need to move on because
I’ve allowed you to ask the questions about the fact that they argued, that she was upset
20
and the fact that—she said it really three times. The People objected. But it was cross.
I allowed it. She said she was disappointed. You asked her another time and another
time. [¶] So at this point I think you need to move on.”
Defense counsel said he planned to move on with his examination and question
the victim about “the next area.” The trial court said, “I just felt like if we were going to
stay in that area about this third party—you had asked a question about the complaining
witness’s prior relationship. I didn’t see the relevance. I could see a lot of things that
didn’t seem to the Court to tend to prove or disprove any disputed issue in question
here. So that’s why I was waiting to see. [¶] If you’re saying you’re moving on, I
think we’re fine.”
2. DISCUSSION
Defendant contends the trial court erred by sustaining the objections set forth
ante, because the court “prevented [defendant] from conducting a meaningful cross-
examination of the alleged victim.” For example, defendant asserts evidence pertaining
to the victim’s reactions to defendant’s infidelity could have shown the victim was
biased against defendant or had a reason to retaliate against defendant. Defendant’s
arguments are focused upon Evidence Code sections 352 and 780, as opposed to a
constitutional right to present a defense. As a result, we focus our discussion on
defendant’s evidentiary concerns.2
2 Defendant mentions her constitutional rights to confront and cross-examine witnesses in her harmless error argument; however, the constitutional issues do not form the substance of his assertion of error.
21
Evidence Code section 780, subdivision (f), allows a jury to consider the
existence of a witness’s “bias, interest, or other motive” for testifying untruthfully.
Evidence Code section 352 authorizes a trial court to “exclude evidence if its probative
value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” A trial court’s Evidence
Code section 352 ruling is reviewed for an abuse of discretion. (People v. Linton (2013)
56 Cal.4th 1146, 1181.)
The trial court permitted the victim to answer questions concerning her feelings
toward defendant after she learned of defendant’s relationship with Nicole. The victim
said she felt distrustful of defendant, “disappointed,” “hurt,” and “didn’t appreciate”
defendant’s infidelity. The trial court excluded testimony about (1) the victim ever
having been “cheated on” in a different relationship; (2) whether the victim wanted
defendant to stop being friends with Nicole; (3) defendant’s comments about the victim
wanting to live with the victim’s parents; and (4) whether the victim agreed to be the
“other woman” in defendant’s relationship with Nicole.
The record reflects the trial court permitted defendant to elicit testimony that
reflected a possible bias or motive on the part of the victim, i.e., her hurt feelings about
defendant’s infidelity. The evidence the trial court excluded concerned extraneous
matters, such as the victim’s previous romantic relationship(s) and conversations about
possibly moving residences. None of the questions the trial court excluded would have
provided further insight into the victim’s possible reasons for testifying dishonestly.
22
For example, the pertinent issue was not whether the victim wanted defendant to stop
being friends with Nicole, the issue was how the victim felt about defendant’s
relationship with Nicole, and the trial court allowed the evidence about the victim’s
feelings to be presented because that helped to show the victim’s state of mind and
possible bias. In sum, we conclude the trial court did not err because it permitted
defendant to question the victim about her possible bias.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
RICHLI J.
23
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in admitting evidence of uncharged domestic violence incidents under Evidence Code section 1109, as the evidence was neither more inflammatory than the charged offenses nor cumulative.
Issues
Whether the trial court erred by admitting evidence of uncharged domestic violence incidents under Evidence Code section 1109.
Whether the trial court erred by limiting the cross-examination of the victim.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court could reasonably conclude the evidence concerning this incident was not more inflammatory than the charged offenses”