Filed 12/16/13 P. v. Martinez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E056202

v.                                                                       (Super.Ct.No. INF063996)

RON DWAYNE MARTINEZ,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Affirmed.

         Ellen M. Matsumoto, 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, Meagan J. Beale, and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                             I

                                    INTRODUCTION

       Defendant Ron Dwayne Martinez admitted he killed his girlfriend, Karyn Kleine,

and dumped her body in the desert. A jury found defendant guilty of second-degree

murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to a prison

term of 15 years to life.

       On appeal, defendant challenges the admission of testimony from two of his

former girlfriends; the absence of a limiting instruction about Kleine’s nonhearsay

statements; and the court’s prohibition on the testimony by Kleine’s former boyfriend.

Defendant further asserts cumulative error violated his rights to due process and a fair

trial justifying reversal of his murder conviction. We conclude there was no prejudicial

error and no cumulative error and affirm the judgment.1

                                             II

                                STATEMENT OF FACTS

A. Kleine’s Death

       Defendant and Kleine became involved in 2006. The following events related to

her death occurred in February and March 2007.




       1We decline to make a redetermination of our previous order of November 13,
2012, denying defendant’s request to unseal the victim’s mental health records.

                                             2
        Defendant worked for Budget Rent A Car. On February 22, 2007, he called the

office to say that he would be late because he had just broken up with his girlfriend, who

had thrown him out, leaving him homeless.

        In February, Kleine’s former boyfriend, Patrick Ross, encountered her at the Spa

Resort Casino in Palm Springs. Ross noticed Kleine had a bruised wrist. Kleine said

defendant had grabbed her during a “scuffle” and had broken her purse strap. Kleine

confided in Ross she was afraid of defendant because he was controlling and possessive.

Ross and Kleine began dating again and he spent the night at her apartment on March 7,

2007.

        Sometime in early March, Kleine’s neighbor, Ernest Hendrix, overheard Kleine

and defendant arguing. As defendant was leaving, Hendrix heard defendant say to

Kleine, “Bring it on. I’ll kill you.”

        On March 8, 2007, defendant lost his temper at work. He became upset and threw

a stack of car rental contracts on the floor. At lunchtime on March 9, 2007, when a

customer complained to defendant, he responded angrily, “I don’t need to take your shit,”

and walked off the job.

        The Spa Resort Casino had surveillance video footage of Kleine in the casino on

March 9, 2007, after 11:00 p.m. The video showed her walking through the casino

wearing blue jeans and a light-colored blouse and leaving at 11:30 p.m.

        Ross and Kleine planned to see each other on March 10, 2007, but her car was

missing when he went to pick her up. When Kleine did not respond to his messages,

Ross called the police on March 11, 2007.

                                             3
        On March 16, 2007, defendant returned to Budget to collect his final paycheck.

His supervisor thought defendant seemed jumpy and was wearing a baseball cap to cover

part of his face. On March 16, 2007, defendant cashed his final paycheck at the Cash

Mart in Palm Springs. Defendant obtained an Arizona driver’s license on March 26,

2007.

        On March 17, 2007, the Indio police found Kleine’s car with the keys in the

ignition in the Indio Fashion Mall parking lot.

B. Subsequent Investigation

        According to Department of Motor Vehicles (DMV) records, defendant was 5 feet

10 inches tall and 175 pounds and Kleine was 5 feet 3 inches tall and 122 pounds.

        The parties stipulated that, according to a DNA analysis of bloodstains in Kleine’s

car, defendant was the major contributor and Kleine was a minor contributor of DNA

found on the car key and the steering wheel cover. Kleine’s DNA was also found in

many places of the front passenger area.

        On September 21, 2007, the Palm Springs police found Kleine’s skeletal remains,

partially buried near a creosote bush in a vacant lot across from the Palm Springs DMV.

Nearby were a pair of blue jeans, size 11, and a weathered roll of duct tape.

        The victim’s remains were mostly bones with only a small amount of connective

tissue and no sign of trauma to the bones themselves. Based on the location and

concealment of the remains and other circumstances, the pathologist could not exclude

homicide as the cause of death. The pathologist thought duct tape possibly had been



                                             4
placed over the victim’s nose and mouth, causing death by asphyxiation, although it

could not be determined whether it was placed there before or after she died.

      On December 20, 2007, Detective Frank Browning telephoned defendant in

Arizona, where he was working for a trucking company. Defendant said he had learned

from his ex-wife that Kleine was missing. He told Browning he had dated Kleine for

about a year and she gambled too much. He broke up with Kleine a month before leaving

California—definitely before Valentine’s Day, February 14, 2007. Defendant claimed

the only time he became physical with Kleine was when he grabbed her by the wrist. He

would never hit a woman because he saw his father abuse his mother. Browning asked if

Kleine might have committed suicide and defendant responded that Kleine had been in a

car accident and required a lot of pain medication. Defendant agreed suicide was a

possibility because Kleine was being treated for anxiety and a panic disorder.

      Defendant was arrested in November 2008 at his new wife’s house in Nevada. In

a telephone call made from jail to his sister, Cynthia Weightman, and a person named

Leroy, defendant said, “It was self-defense all the way and it’s being turned on me.”

Leroy asked “did it happen?” Defendant replied, “It happened in the car.” In additional

phone calls, defendant told Weightman some test results could affect the outcome of his

case and that he was probably going to prison but the goal was to minimize his sentence.

C. Other Prosecution Evidence

      Three witnesses testified about Kleine’s back injury. Ross knew Kleine had back

problems. Kleine’s friend and neighbor, Gail Kibe, testified Kleine needed assistance

lifting things and she helped Kleine carry groceries and bags of dog food.

                                            5
      Kleine’s hairdresser, Jennifer Moreno, testified that Kleine could not sit for a long

time due to a neck and back injury that had required surgery. Kleine had told Moreno

defendant had grabbed her and yelled at her during an argument in November or

December 2006. Kleine also told Moreno that defendant would circle Kleine’s apartment

complex and follow her to the casino.

D. Defendant’s Testimony

      Defendant became involved with Kleine in 2006 and moved into her apartment

when he was working for Budget. Their relationship soured because of arguments about

money and Kleine’s gambling. When defendant tried to leave Kleine after two months,

she threatened him with a knife in the kitchen. She brandished a knife at him again two

months later. Kleine also knocked defendant down two times, once when he was trying

to leave the apartment and again two months later. Defendant never hit Kleine although

she hit him and screamed at him. After moving out of their apartment, he became

homeless and quit his job at Budget.

      On the night that Kleine was killed, defendant went to see her at the Spa Resort

Casino and they decided to get something to eat and talk. Kleine gave him her car keys

and he drove. They began to argue about money and the argument escalated. When

Kleine made a comment about defendant’s children being a mistake, he stopped the car.

They began shouting and he called her a freak. She replied, “You’re the freak. You think

you’re Batman” and “Well, I’m the Joker.” She lunged at him and began choking him.

Defendant was pinned against the car and felt his windpipe begin to close. He felt that



                                            6
his life was threatened. At that point, his “muscle memory took over” and he struck her

about 10 times around the shoulder and head.

       Defendant testified that “Batman” was a protector and a hero to him, part of his

public and private life—the injustices he saw in society and Batman as a shield for

strength and protection. When Kleine began to choke defendant, he became Batman and

she became the Joker. His “primal” instincts kicked in, requiring him to defend himself.

       After he hit Kleine, she became motionless and unresponsive. There was a lot of

blood. She had no heartbeat. After driving aimlessly, he decided to lay her out in the

desert under a bush. He taped her head to cover the blood. He covered the body with dirt

and branches but intentionally left it partly exposed. He parked the car with the keys in

the Indio Fashion Mall. He did not clean up the blood.

E. Defendant’s Abusive Childhood

       Defendant’s sister, Weightman, was one year older than him. Their father was

extremely violent, repeatedly beating defendant, Weightman, and their mother. It seemed

to Weightman that their father beat defendant constantly, leaving bruises and welt marks.

Weightman told Dr. Jones defendant’s mother had sexually abused him. Weightman left

home when she was 16 because she could no longer endure the violence. Defendant

joined the Navy when he turned 18.

F. Defendant’s Marriage to Diana Boone

       Before these events, defendant had been married to Diana Boone, with whom he

had two children. Defendant was possessive and jealous of other men. He threw things

when he was angry. Against defendant’s wishes, they divorced in 2003. Defendant lost

                                             7
his job and had to move into a small apartment. He tried unsuccessfully to date other

women.

G. Defendant’s Psychological Evidence

      Beginning in 2005, defendant received various psychological diagnoses, including

depression NOS (not otherwise specified); bipolar disorder with an unspecified

personality disorder; suicidal ideation; major depressive and adjustment disorder; and

post-traumatic stress disorder (PTSD). Symptoms of PTSD are anxiety and fear

surrounding the activities that remind the person of the traumatic event. Based on

defendant’s childhood history of being beaten and sexually abused, Dr. William Jones

opined that defendant suffered from PTSD. Dr. Jones also diagnosed appellant as

suffering from depression and a bipolar disorder.

      Other facts pertinent to defendant’s appellate arguments will be discussed below.

                                           III

             ADMISSION OF PRIOR ACTS OF DOMESTIC VIOLENCE

A. Testimony of Patricia Jernigan and Cynthia Wolter

      Patricia Jernigan dated defendant in May and June 2005. Jernigan became

uncomfortable with defendant who intimidated her with his possessiveness. He was

angry that she had pictures of male friends on her computer. On June 28, 2005, he began

harassing her. Once, he seemed to be stalking her in her driveway. He left threatening

messages on her cell phone saying that no woman would ever leave him because he

would end the relationship first. One evening, defendant called her cell phone 35 times.

He beat angrily on her front door. In addition, he came to the restaurant where she

                                            8
worked. Jernigan became so afraid of defendant that she changed cars and stayed with

friends until she could relocate her family.

          Within three weeks after Cynthia Wolter began dating defendant, he gave her a

ring, which made her uncomfortable. He yelled at her because she spoke to other men at

a public performance. Defendant would appear at places uninvited. Wolter was afraid

because she knew defendant was following her. She ended the relationship in December

2005.

          On January 6, 2006, after Wolter found dead flowers on her desk, defendant yelled

at her from outside her real estate office. She locked her office door and went outside.

Defendant continued to scream profanities at her and to call her a whore. She asked him

to calm down and leave because he was scaring her. When he left, he said, “I’ll be back.

It’s not over yet.” Wolter called security and, as she was speaking to an officer,

defendant returned before running away. Eventually defendant was detained and

admitted to the officer that he had cursed at Wolter and called her a whore. He said he

had a problem with women and the way they lied to him. Defendant pleaded guilty to

Penal Code section 148, obstructing or delaying a peace officer in the performance of his

duties.

B. Trial Court’s Ruling

          Defense counsel objected to the admission of Jernigan and Wolter’s testimony on

the grounds that defendant’s prior bad acts were disturbing but not violent. Because

defendant neither hit nor threatened to hit Jernigan or Wolter, his prior bad acts did not

tend to show defendant had a propensity for violence.

                                               9
       The trial court allowed evidence of prior bad acts of domestic violence to show

defendant’s propensity to commit murder and to refute his claim of self-defense. (Evid.

Code, §§ 1103, 1109.) The trial court ruled that the evidence was relevant to show his

history of aggression towards women and was probative to show that he was the

aggressor in the confrontation with Kleine. The trial court further found that the

probative value of this evidence outweighed its prejudicial effect and ruled the evidence

was admissible under Evidence Code section 352.

       The trial court ultimately instructed the jury pursuant to CALCRIM No. 852 on

the appropriate use of the domestic violence evidence as follows:

       “You may consider this evidence only if the People have proved by a

preponderance of the evidence that the defendant in fact committed the uncharged

domestic violence. Proof by a preponderance of the evidence is a different burden of

proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the

evidence if you conclude that it is more likely than not that the fact is true.

       “If the People have not met this burden of proof, you must disregard this evidence

entirely.

       “If you decide that the defendant committed the uncharged domestic violence, you

may, but are not required to, conclude from that evidence that the defendant was disposed

or inclined to commit domestic violence and, based on that decision, also conclude that

the defendant was likely to commit and did commit murder as charged here. If you

conclude that the defendant committed the uncharged domestic violence, that conclusion

is only one factor to consider along with all the other evidence. It is not sufficient by

                                              10
itself to prove that the defendant is guilty of murder. The People must still prove the

charge beyond a reasonable doubt.”

C. Analysis

       On appeal defendant again argues he had not engaged in a pattern of actual

physical violence towards women from which an inference could be made that he had a

propensity to murder. Therefore the admission of Jernigan and Wolter’s testimony,

coupled with CALCRIM No. 852, violated of his right to due process and a fair trial.

(U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art I, § 15; cf., People v. Earle (2009)

172 Cal.App.4th 372, 397-398.)

       Evidence of prior bad acts of a defendant is generally inadmissible to show a

predisposition to commit crimes except for sexual offenses and domestic violence cases.

(Evid. Code, §§ 1101, 1108, and 1109; People v. Brown (2011) 192 Cal.App.4th 1222,

1232-1233.) The reason for admitting other crimes evidence in domestic violence cases

reflects “the difficulties of proof unique to the prosecution of these crimes . . . .” (Id. at p.

1233.) Propensity evidence can be both charged and uncharged offenses and it can be

introduced even if the defendant was acquitted of the acts. (Id. at p. 1233.) Although the

trial court retains broad discretion over the determination of the admission of this

evidence, “the trial court must still determine, pursuant to section 352, whether the

probative value of the evidence is substantially outweighed by the probability the

evidence will consume an undue amount of time or create a substantial danger of undue

prejudice, confusion of issues, or misleading the jury.” (Id. at p. 1233.) The Brown



                                               11
court affirmed the trial court’s ruling that “murder is the ultimate form of domestic

violence.” (Id. at pp. 1225, 1233-1240.)

       Evidence Code section 1109 permits admission of a defendant’s other acts of

domestic violence for the purpose of showing a propensity to commit crimes of domestic

violence. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) It is the relevance of

the prior acts to show a propensity to commit crimes of domestic violence that makes the

evidence in this case admissible, not because it shows a propensity to commit murder.

As the appellate court in Brown held, murder becomes a crime of domestic violence

when the facts show it falling within the statutory definitions, which broadly define

domestic violence to include a wide variety of crimes committed under those

circumstances. (People v. Brown, supra, 192 Cal.App.4th at pp. 1234-1237.)

       As discussed in People v. Hoover, supra, 77 Cal.App.4th at pages 1027-1028, the

legislative findings made in enacting Evidence Code section 1109 recognized that, within

the broad category of domestic violence, there is great likelihood of a larger scheme of

dominance and control that usually escalates in frequency and severity. The broad reach

of the statute is necessary to address effectively the ongoing nature of domestic violence.

The inference of propensity from one act of domestic violence to a different and more

serious and violent act of domestic violence is readily inferable by a jury. The trial court

correctly decided defendant’s prior acts of domestic violence were highly relevant to the

issue of defendant killing Kleine.

       Both the prosecutor and defense counsel characterized defendant’s conduct against

Jernigan and Wolter as stalking. Read together, Family Code sections 6203, 6211, and

                                             12
6320 define “domestic violence” to include abuse such as stalking, threatening, harassing,

or telephoning another person with whom defendant had a dating relationship. Stalking

clearly is domestic violence under Family Code section 6211 and is admissible pursuant

to Evidence Code section 1109 when, as here, the prior stalking behavior occurred within

five years of the charged offense. (People v. Ogle (2010) 185 Cal.App.4th 1138, 1142-

1143.) In addition, based on the evidence of defendant’s relationship with and actions

toward Kleine, the charged murder was also an act of domestic violence. (People v.

Brown, supra, 192 Cal.App.4th at p. 1237.)

       A repetitive and escalating scheme is also evident in this case. In all his

relationships—with his girlfriends and his ex-wife—defendant demonstrated his need for

dominance and control based on how he intimidated the women and made them

uncomfortable with his possessiveness. He refused to accept the end of his marriage and

his brief relationships with Jernigan and Wolter. Not long after starting his relationship

with Kleine, during an argument, defendant bruised her wrist and broke her purse.

Defendant stalked Kleine after they broke up. Her neighbor overheard his threat to kill

her. Defendant’s pattern of behavior against women fully supported the trial court's

finding the Jernigan and Wolter evidence was relevant to show a propensity to commit

domestic violence against Kleine.

       Defendant relies on People v. Earle, supra, 172 Cal.App.4th 372. However, the

Earle case dealt with the admissibility of evidence of a prior uncharged sexual offense

under Evidence Code section 1108. (Earle, at p. 396.) In Earle, the appellate court

considered whether the defendant’s act of indecent exposure was relevant propensity

                                             13
evidence to a rape charge. (Id. at p. 396.) The court was unwilling to find the jury could

conclude that commission of indecent exposure had a tendency to show a propensity to

commit rape, absent some additional foundational support for that conclusion. (Id. at pp.

398-399.) As already noted, Evidence Code section 1109 does not apply to a specific and

narrow type of crime, but applies broadly to crimes committed under particular

circumstances. (People v. Brown, supra, 192 Cal.App.4th at pp. 1234-1237.)

       Additionally, there was little basis for prejudice under Evidence Code section 352.

In assessing other crimes evidence, a trial judge must consider such factors as its nature,

relevance, and possible remoteness; the degree of certainty of its commission and the

likelihood of confusing, misleading, or distracting the jurors from their main inquiry; its

similarity to the charged offense; its likely prejudicial impact on the jurors; the burden on

the defendant in defending against the uncharged offense; and the availability of less

prejudicial alternatives to its outright admission, such as admitting some but not all of the

defendant’s other offenses, or excluding irrelevant though inflammatory details

surrounding the offense. (People v. Falsetta (1999) 21 Cal.4th 903, 916 [discussing

prejudice analysis under Evid. Code, §§ 352, 1108].)

       In this case, defendant’s acts of domestic violence against Jernigan and Wolter

were not physically violent although he made threats of violence. Defendant’s conduct

was highly relevant to the issue of who was the aggressor in Kleine’s death; none of the

acts were remote; defendant admitted some of his acts to law enforcement; and it was

unlikely that the jurors would be confused, misled, or distracted by the prior acts and

independent witnesses. Although the prior acts reflected badly on defendant, they were

                                             14
not particularly inflammatory in light of the evidence of the charged murder. The jury

was cautioned it should not convict defendant because he stalked Jernigan and Wolter. If

the prior act evidence made defendant seem “scary,” it was because it showed him to be

aggressive, controlling, demanding, and punitive toward women. In other words, it

showed his propensity to commit acts of domestic violence and murder. Therefore, the

trial court did not abuse its discretion and did not violate defendant’s due process right to

a fair trial by admitting evidence of his prior acts of domestic violence. For the same

reasons, any error was harmless.

                                             IV

                      KLEINE’S NONHEARSAY STATEMENTS

       Several of Kleine’s hearsay statements were admitted in order to establish that she

was fearful of defendant and would not have gone with him voluntarily the night she was

killed. (Evid. Code, § 1250.) Ross testified that Kleine told him defendant bruised her

wrist and broke her purse strap when he struggled with her. Kleine also told Ross she

was afraid of defendant because he was controlling and possessive. Moreno testified that

Kleine told her defendant grabbed her during an argument, yelled at her, and stalked her

at home and the casino. The trial court ruled that all of Kleine’s hearsay statements were

admissible under Evidence Code section 1250. At trial, when defendant testified, he

admitted grabbing Kleine’s wrist. He also admitted following women and spying on

them and following Kleine to the casino.

       In People v. Riccardi (2012) 54 Cal.4th 758, 800-825, the California Supreme

Court indicated that state-of-mind evidence includes two categories with different

                                             15
theories of admissibility. (Id. at p. 822.) On the one hand are the statements of the victim

that she is afraid of the defendant which are admissible under Evidence Code section

1250 as exceptions to the hearsay rule. (Ibid.) On the other hand are nonhearsay

statements. “In the nonhearsay category of statements were [the victim’s] indirect

declarations of her state of mind, because they contained descriptions or assessments of

defendant’s conduct that engendered [her] fear or altered her conduct—e.g., ‘[Defendant]

kidnapped me at gunpoint.’ These statements were not hearsay to the extent they were

admitted to prove circumstantially [her] state of mind or conduct, and not to prove the

truth of the matters asserted regarding defendant’s conduct. [Citations.] This nonhearsay

category of statements presents an elevated danger of prejudice if the jury is unable to

distinguish between the truth of the matters asserted and the inferences concerning the

declarant’s state of mind. [Citation.]” (Id. at p. 823.)

       Defendant argues the court should have given a limiting instruction to prevent the

jury from considering the nonhearsay evidence as evidence of defendant’s conduct.

(People v. Kovacich (2011) 201 Cal.App.4th 863, 889-890.) The trial court, however,

had no duty, absent a request, to give a limiting instruction. (People v. Riccardi, supra,

54 Cal.4th at pp. 824-825.) We reject defendant’s suggestion that his failure should be

excused because any request for a limiting instruction would have been futile. The

limited admissibility of the mixed statements was not raised when the evidence was

discussed. The fact the trial court ruled the mixed statements were admissible did not

relieve defense counsel of the obligation to request a limiting instruction for the portions

of the statements which also described defendant’s conduct. (Riccardi, at p. 825.)

                                             16
       Defendant also proposes his trial counsel’s failure to request a limiting instruction

amounted to ineffective assistance of counsel (IAC). However, the decision to seek a

limiting instruction carries with it the assessment of whether “the risk of such an

instruction highlighting the defendant’s conduct outweighs any benefit the instruction

may provide.” (People v. Riccardi, supra, 54 Cal.4th at p. 825.) Because defense

counsel was not asked to explain but there could be a satisfactory explanation for the lack

of a request, deficient performance cannot be found on this record. (People v. Mendoza

Tello (1997) 15 Cal.4th 264, 266.) Furthermore, as defendant concedes, a more favorable

result is not reasonably probable if a limiting instruction had been given. Because

defendant admitted the acts related in the nonhearsay statements, there could be no

prejudice. (Riccardi, at p. 828.) In the absence of deficient performance or prejudice, the

IAC claim lacks merit.

                                             V

         CHRISTIE’S TESTIMONY ABOUT KLEINE’S VIOLENT NATURE

       Kleine’s ex-boyfriend, Patrick Christie, testified she was a violent person who

would get physical and punch him. She hit him more than a few times. When Christie

tried to leave the apartment after an argument, Kleine pushed him, grabbed him in a bear

hug, and choked him. The incident left black and blue marks on Christie’s neck. Most of

the time, they argued about money. During an argument, Christie saw Kleine strike her

handicapped brother on the side of his head. After that incident, Christie broke up with

Kleine and moved out.



                                             17
       On a later occasion, Christie met Kleine at a party and went to a convenience store

where they engaged in a shouting match about whether to go to a casino. The store clerk

called the police and Christie was arrested for disturbing the peace.

       In a Evidence Code section 402 hearing, the prosecution asked the trial court to

exclude additional evidence that Kleine would become violent specifically when she and

Christie argued about money. The prosecutor contended that this was character evidence,

not relevant to anything in the trial. Defense counsel argued the evidence was relevant to

explain why defendant’s arguments over money with Kleine would also become violent.

The trial court ruled Christie’s arguments with Kleine about money should be excluded

as irrelevant to any issue in the trial.

       In spite of the trial court’s ruling, the record reflects that defense counsel

successfully elicited from Christie that Kleine became violent when they argued about

money and they also argued about gambling. Since the evidence was presented,

defendant was not prejudiced by the ruling.

       Additionally, while Kleine’s gambling may have been a reason she argued about

money with both men, Kleine purportedly became violent towards defendant for other

reasons. According to defendant, Kleine did not begin choking him until she criticized

his children and defendant mocked her about gambling and called her the Joker. Thus,

there was neither error in the trial court’s ruling nor any prejudice to defendant.




                                              18
                                             VI

            CHRISTIE’S TESTIMONY ABOUT KLEINE’S BACK INJURY

       Defendant finally contends the trial court erred in preventing Christie from

testifying to his opinion that Kleine exaggerated her back injury. Three prosecution

witnesses testified that Kleine had some physical limitations arising out of problems with

her back. Defendant himself admitted her back problems required pain medication.

During cross-examination, Christie admitted knowing about Kleine’s back surgery but

the court would not allow Christie to say he believed Kleine exaggerated her back

problems.

       Evidence Code section 800 governs the admissibility of lay opinion. As the trial

court observed, there was no showing that Christie had any basis for his opinion about

Kleine’s disability. Exclusion of the evidence was appropriate for lack of personal

knowledge. (Evid. Code, § 702.) Furthermore, there was no factual foundation for

Christie knowing how Kleine acted when she was with other people. The only other

basis for his opinion was Kleine’s character or character trait for exaggerating her

disabilities. While opinion evidence is an admissible form of evidence to prove character

(Evid. Code, § 1100), “evidence of a person’s character or a trait of his or her character

(whether in the form of an opinion, evidence of reputation, or evidence of specific

instances of his or her conduct) is inadmissible when offered to prove his or her conduct

on a specified occasion.” (Evid. Code, § 1101, subd. (a).)

       Because there was no error or prejudice, Christie’s opinion was properly excluded.



                                             19
                                            VII

                                     DISPOSITION

       None of defendant’s claims of error have merit and there is no cumulative or

prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.)

       We affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  CODRINGTON
                                                                                      J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




                                            20
