People v. Harper CA2/6

Filed 2/23/22 P. v. Harper CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308975
(Super. Ct. No. 18CR02287)
Plaintiff and Respondent, (Santa Barbara County)
v.
RAPHAEL HARPER III,
Defendant and Appellant.
A jury convicted appellant Raphael Harper III of corporal
injury to a “dating partner” (Pen. Code, § 273.51). The court
sentenced him to 120 days in jail, suspended imposition of the
sentence, and granted him three years of probation.
Harper contends the trial court erred by admitting evidence
of past acts of violence against the victim; by allowing improper
expert testimony about domestic violence; by denying his motion
for mistrial following a disruption in court by a mentally ill
All statutory references are to the Penal Code unless
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otherwise stated.
defense sympathizer; and by imposing a three-year probation
term instead of a two-year term.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Santa Barbara police responded to a domestic disturbance
call at the Presidio Apartments on the afternoon of March 12,
2018. The facility’s manager reported a woman arguing loudly
over the phone and throwing things inside a second-floor unit.
Police knocked several times but no one answered. When they
identified themselves as law enforcement she (J.P.) complied.
She appeared to have been crying and her right eye was swollen
and bloodshot. She told police someone hit her but she was
reluctant to identify the assailant. On further questioning, J.P.
said her former boyfriend, appellant Harper, punched her during
an argument in his car a few days earlier.
Harper appeared in the courtyard of the apartment
complex while police were questioning J.P. The officer noticed
J.P. sob harder and begin shaking when Harper began calling her
name from below. She said he had hit her on other occasions and
once choked her. They had quarreled over the phone earlier that
day because she wanted him to leave her alone. He responded “If
I can’t have you nobody can have you.” J.P. believed Harper was
at the door when police first knocked. Despite Harper’s earlier
threats, she asked police not to hurt him and declined an
emergency protective order.
J.P. recanted her account when she testified at Harper’s
preliminary hearing. She confirmed they had since rekindled
their romantic relationship. She explained she “wasn’t feeling
too good” when police arrived on March 12 because she had
recently suffered a seizure and hit her head. This explained the
eye injury observed by officers. She denied arguing with Harper
over the phone and now claimed she had been speaking to a
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female friend. J.P. did not remember telling police Harper
punched her.
At trial, J.P. again denied Harper injured her and altered
other aspects of her testimony. She accused her elderly
roommate, Glen Bennett, of punching her in the eye during a
drunken argument. She also claimed to be so intoxicated while
speaking to Officer Ortega that she could not remember what she
said about Harper. Everything that occurred that day was now a
“blur.” J.P. refused to listen to the audio recordings of her police
interview and repeatedly insisted Harper never hit or choked her.
The building manager who called the police, Miguel
Hernandez, testified he confronted J.P. about who caused her eye
injury because he “wanted to know if it was Glen [Bennett],
because that would have been out of character, in my opinion.”
She told him Harper did. Bennett himself then took the stand
and denied ever striking J.P. He recalled her confiding that
Harper injured her eye and had “roughhoused” her on prior
occasions. Prosecutors elicited expert testimony from a detective
about the “cycle of violence” in abusive relationships and the
tendency of victims to recant allegations of mistreatment.
DISCUSSION
A. Prior Acts of Domestic Violence
Harper contends the trial court erred when it admitted
testimony about him hitting and choking J.P. on prior occasions.
Such evidence is not ordinarily admissible to show a defendant’s
disposition to commit the charged acts. (Evid. Code, § 1101.)
Evidence Code section 1109 creates an exception to this rule in
domestic violence cases. (See People v. Brown (2011) 192
Cal.App.4th 1222, 1232-1233.) Trial courts must still determine
whether such evidence runs afoul of section 352, i.e., whether the
probative value of such evidence “is substantially outweighed by
the probability the evidence will consume an undue amount of
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time or create a substantial danger of undue prejudice, confusing
of issues, or misleading the jury.” (Id. at p. 1233.) We review the
ruling below for abuse of discretion, affirming “except upon a
showing that it was exercised in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage
of justice.” (Ibid., citing People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.)
The trial court did not abuse its discretion; it reasonably
found Harper’s past abuse was probative of his propensity to
engage in domestic violence. The testimony of Officer Ortega,
Hernandez, and Bennett on the subject was no more
inflammatory than the testimony they gave about the charged
offenses. (People v. Tran (2011) 51 Cal.4th 1040, 1047.) Any
prejudice to Harper flowed from the “damage to a defense that
naturally flows from relevant, highly probative evidence.”
(People v. Karis (1988) 46 Cal.3d 612, 638, citing People v. Yu
(1983) 143 Cal.App.3d 358, 377.) In addition, Officer Ortega’s
and Bennett’s testimony impeached J.P.’s emphatic and
unqualified denials on direct and cross-examination that Harper
had not acted violently toward her in the past. Any error in
admitting evidence of the uncharged prior incidents was
harmless under any standard of prejudice. (People v. Johnson
(2010) 185 Cal.App.4th 520, 541, citing People v. Watson (1956)
46 Cal.2d 818, 836, and Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705].)
B. Expert Testimony About Domestic Violence
Harper contends the People’s expert, Detective Megan
Harrison, was not qualified to testify about the “wheel of control”2
2Testimony that an abuser often “uses psychological,
emotional, or verbal abuse to control the victim” is admissible in
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and other patterns of abuse in domestic violence cases. He
contends her lack of formal training and purported bias in favor
of law enforcement precluded her from offering expert testimony.
We are not persuaded. Detective Harrison’s experience
investigating approximately 375 domestic violence cases in Santa
Barbara County over the past decade qualifies her as an expert
on the subject. (Evid. Code, § 720, subd. (a) [an expert is
permitted to rely on background and experience].) Her training
and biases go to the weight of her opinion and not admissibility.
(See Brown v. Colm (1974) 11 Cal. 3d 639, 643 [“if a witness has
disclosed sufficient knowledge of the subject to entitle his opinion
to go to the jury, the question of the degree of his knowledge goes
to the weight of his testimony rather than to its admissibility”];
People v. Barney (1992) 8 Cal.App.4th 798, 812 [FBI experts’ self-
interest in testifying about DNA analysis performed at their
agency “went to the weight to be attributed to the testimony
rather than its admissibility”].) The trial court properly admitted
the expert testimony to assist the jury in evaluating the evidence.
(People v. Brown, supra, 33 Cal.4th at p. 907.)
C. Motion for Mistrial
Defense counsel moved for a mistrial after a spectator
broke into applause and began lauding defense counsel when the
court adjourned on a Friday afternoon. Jurors were filing out of
the courtroom when the bailiff, then the court, directed the
spectator to be quiet and to leave. He continued speaking
however, stating the proceedings were “unfair” and that he would
“talk to the jurors outside about how evil our system is, that
people are innocent.” Harper contends the court erred when it
denied the motion instead choosing to admonish the jury to
this context to assist the jury in assessing the victim’s credibility.
(People v. Brown (2004) 33 Cal.4th 892, 906-907.)
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disregard the outburst. (See People v. Lucero (1988) 44 Cal.3d
1006, 1022 [“Misconduct on the part of a spectator is a ground for
mistrial if the misconduct is of such a character as to prejudice
the defendant or influence the verdict”].)
The court was well within its discretion when it denied the
motion for mistrial. “‘Trials are dynamic processes and not every
aspect is predictable or perfectly orchestrated.’” (People v.
Melendez (2016) 2 Cal. 5th 1, 33.) Disruptions by spectators,
though rare, are concomitant with our system of open and
transparent criminal proceedings. A trial court exercises broad
discretion in deciding whether a particular disruption is
prejudicial. (People v. Lucero, supra, 44 Cal.3d at p. 1024.) It
may deny a motion for mistrial where it is “satisfied that no
injustice has resulted or will result from the events of which the
complaint ensues.” (People v. Slocum (1975) 52 Cal.App.3d 867,
884.) Here, the outburst occurred on the record in open court.
The judicial officer observed the incident and noted only two
jurors were still present. They left before the judge began his
colloquy with the spectator. When trial reconvened the next
week, it instructed all jurors to disregard the incident and to
notify the court if they felt their ability to remain fair and
impartial had been compromised. The court emphasized the
spectator suffered from mental health issues and lacked any
connection with the case’s participants.
The spectator’s breach of decorum favored neither side.
None of the jurors contacted the court about bias or impartiality.
The timing and substance of the court’s prophylactic instruction,
we conclude, mitigated any prejudice the outburst may have
caused to either side of the case. (See People v. Ervine (2009) 47
Cal.4th 745, 776, citing People v. Mendoza (2007) 42 Cal.4th 686,
699 [reviewing courts “presume the jury faithfully followed the
[trial] court’s limiting instruction”].)
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D. Three-Year Probation Term
Harper argues Assembly Bill No. 1950, which became
effective on January 1, 2021, requires reducing his three-year
probation term to two years. (§ 1203.1; People v. Sims (2021) 59
Cal.App.5th 943, 958-964.) It does not. The bill’s two-year
probation limit does not apply to an offense that “includes specific
probation lengths within its provisions.” (§ 1203.1, sub. (l)(1).)
Harper’s conviction for inflicting corporal injury on a dating
partner required the court to impose probation “consistent with
the provisions of Section 1203.097.” (§ 273.5, subd. (g).) In turn,
section 1203.097, subdivision (a) specifies a minimum probation
period of 36 months if the victim of the defendant’s abuse is a
dating partner or former dating partner. (Family Code, § 6211,
subd. (c).) Harper’s three-year term falls within this exception to
the new law.
DISPOSITION
Judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Thomas R. Adams, Judge
Superior Court County of Santa Barbara
______________________________
Nancy Wechsler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Viet H. Nguyen, Deputy Attorney General,
for Plaintiff and Respondent.
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