Filed 8/26/20 P. v. Roark CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                                             F077855
           Plaintiff and Respondent,
                                                                               (Super. Ct. No. BF169385A)
                    v.

 BRANDEN ROARK,                                                                           OPINION
           Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Branden Roark challenges his convictions stemming from two domestic violence
incidents. He raises two claims on appeal.
       First, Roark contends the court erroneously permitted evidence he abused animals
during his relationship with the victim. Second, he argues the prosecutor committed error
by inquiring into the motivation underlying the victim’s testimony. We affirm.
                                     BACKGROUND
Charges
       The Kern County District Attorney charged Roark with committing four crimes:
assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4),
count 1); felony domestic violence (Pen. Code, § 273.5, subd. (a), count 2); battery
resulting in serious bodily injury (Pen. Code, § 243, subd. (d), count 3); and felony
domestic violence (Pen. Code, § 273.5, subd. (a), count 4). As to counts 1 and 2, the
district attorney alleged Roark personally inflicted great bodily injury while committing
domestic violence (Pen. Code, § 12022.7, subd. (e)) and that he suffered a prior strike
conviction (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(j)).
Trial Evidence
       The victim testified at trial to several charged and uncharged incidents of domestic
violence. The evidence relevant to the charged conduct established Roark once
“slammed” the victim onto a couch. The slamming resulted in various bruises to the
victim’s “legs,” “knees,” “chest,” “neck,” and “arms.” On another occasion, he strangled
the victim. The victim testified that, during the strangling, “I was blacking out,” and “I
was unconscious.”
       The evidence of uncharged domestic violence covered general and specific
instances. Two specific instances were featured prominently. In one, Roark punched and
bruised the victim’s arm. In the other, he bit the victim’s wrist leaving “fingernail” and
“teeth marks.”



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       The victim’s neighbor also testified at trial. The victim and neighbor lived in a
duplex sharing a common wall. The neighbor testified she heard “[y]elling,”
“[s]creaming,” and “[b]anging” from within the victim’s residence on an “almost” daily
basis. She also heard Roark hitting the victim through the wall. She “called the police”
“many times” but Roark was never arrested.
Verdict and Sentence
       Roark was convicted as charged. The great bodily injury and prior strike
allegations were found true. He was sentenced to serve 15 years in prison.
                                      DISCUSSION
I.     The Animal Abuse Evidence Was Properly Admitted
       The animal abuse evidence was offered under two theories: Propensity and
intimate partner battering. We find the evidence properly admissible under both theories.
       A.     Additional Background
       Prior to trial, the prosecutor filed a motion seeking to introduce evidence of
“incidents of animal cruelty to multiple dogs,” pursuant to Evidence Code1 section 1109.
During the hearing on the motion, the prosecutor argued the evidence was relevant to
explain intimate partner battering and why domestic violence victims do not immediately
report crimes. At Roark’s request, the court held a section 402 hearing. The court
acknowledged it must conduct a section 352 evaluation prior to ruling on admissibility.2
       Various witnesses, including the victim, the neighbor, and an expert on intimate
partner battering, testified regarding animal abuse. The victim testified Roark abused
three different dogs. One, he would drag the family dog around by the collar. Two, he
killed a dog by twisting its leg until it was bleeding and then stomping on the bloody leg.
On a third incident, a puppy died while the victim was away from the home. Roark later


1      Undesignated statutory references are to the Evidence Code.
2      It appears from the record the court never formally ruled on the motion.


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showed the victim a video of the puppy having a seizure. The victim explained the
puppy’s eyes were bloodied, its mouth was foaming, and there was excrement on the wall
above a closet.
       The victim’s neighbor described a particular incident in which she heard sounds
“[l]ike a dog that’s being tortured whining.” She left her residence because she “couldn’t
take the sounds anymore.” Moments later she saw Roark “holding [a dog] around the
neck and its lifeless body.”
       The expert testified “[t]he cycle of violence is frequently used as a way to explain
how domestic violence incidences occur.” According to the expert, “Studies have shown
that in almost 60 percent of domestic violence relationships, there is both animal and
child abuse happening concomitantly in the home.” Animal abuse fits into the cycle of
violence because it “[m]aintain[s] control and the victim remains in the relationship.”
Animal abuse is typically committed to instill fear. Domestic violence is commonly
unreported due to, amongst other reasons, shame and embarrassment.
       The court read several limiting instructions in relation to the jury throughout the
trial. For example, the court explained that expert “testimony about intimate partner
violence or battery is not evidence that the accused … committed any of the crimes
charged against him. You may consider this evidence only in deciding whether or not
[the victim’s] conduct was not inconsistent with the conduct of someone who has been
abused and in evaluating” the victim’s credibility. (CALCRIM No. 850.) The court
repeated this limitation in its final instructions.
       The court also informed the jury that uncharged domestic violence; “specifically,
biting [the victim’s] wrist” was admissible only to prove Roark was “disposed or inclined
to commit domestic violence.” (CALCRIM No. 852(a).) In its final instructions, the
court modified the instruction by referring instead to uncharged domestic violence
generally.



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       In closing argument, the prosecutor stated, “The defendant used [the] animals to
terrorize” the victim, including “[t]orturing innocent and helpless puppies.” The
prosecutor, while referring to domestic violence propensity, listed several examples of
uncharged domestic violence from the trial but did not include animal abuse in the list.
The prosecutor concluded the evidence, including “abusing animals,” presented the
“typical domestic violence cycle of violence.” No photographs or videos depicting
animal abuse were presented to the jury.
       B.     Analysis
       “Ordinarily, evidence of prior criminal acts is inadmissible to show a defendant’s
disposition to commit such acts. (§ 1101, subd. (a).) An exception to this rule exists for
cases involving domestic violence. (§ 1109, subd. (a)(1).) In enacting section 1109, the
Legislature ‘considered the difficulties of proof unique to the prosecution of [domestic
violence cases] when compared with other crimes where propensity evidence may be
probative but has been historically prohibited.’” (People v. Megown (2018) 28
Cal.App.5th 157, 163-164 (Megown).) Animal abuse may constitute domestic violence
under section 1109.3 (People v. Kovacich, supra, 201 Cal.App.4th at p. 895.)
       “Evidence admissible under section 1101[, subsection] (b) or section 1109 is
subject to exclusion under section 352 if the probative value of the evidence is
outweighed by a danger of undue prejudice.” (Megown, supra, 28 Cal.App.5th at p.
164.) “The record must affirmatively show that the trial judge did in fact weigh prejudice
against probative value, but no more is required.” (Ibid.) “We review the trial court’s
exercise of discretion in admitting evidence under section 352 for abuse and will not
disturb the court’s ruling ‘except on a showing the trial court exercised its discretion in an



3     Under current law, as interpreted in People v. Kovacich (2011) 201 Cal.App.4th
863 (Kovacich), animal abuse only constitutes domestic violence “if the act occurred no
more than five years before the charged offense.” (§ 1109, subd. (d)(3).)


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arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.’” (Ibid.)
       Prior acts of domestic violence are also admissible to substantiate “intimate
partner battering and its effects, including the nature and effect of physical, emotional, or
mental abuse on 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.” (§ 1107, subd. (a).) Such
evidence is admissible “to disabuse jurors of commonly held misconceptions about
victims of domestic violence.” (Kovacich, supra, 201 Cal.App.4th at p. 902.)
       The evidence here was admissible both to prove propensity and explain intimate
partner battering. The court acknowledged it must weigh the probative versus prejudicial
value before permitting the evidence to prove propensity. Although the court did not
explicitly state its reasoning, no more is required. (Megown, supra, 28 Cal.App.5th at p.
164.) “‘[W]e are willing to infer an implicit weighing by the trial court on the basis of
record indications well short of an express statement.’” (People v. Villatoro (2012) 54
Cal.4th 1152, 1168.)
       We cannot conclude the court abused its discretion on this record. No graphic
photos or videos were presented in conjunction with the animal abuse testimony. The
evidence was appropriately limited with sufficient jury instructions. In these
circumstances, particularly the fact the evidence was admissible both as propensity and
intimate partner battering, we find no error with its admission.
       Even were we to assume the court erred, we see no prejudice. Ultimately, even
though the animal abuse evidence was admissible to prove domestic violence propensity,
the record discloses it was neither presented nor utilized in that manner. Neither the
arguments nor the court’s instructions directly linked animal abuse to propensity
evidence. Instead, it was utilized to bolster the victim’s credibility which is specifically
permitted by section 1107. The neighbor’s testimony provided compelling and credible

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corroboration to both the animal abuse and the physical violence. We deny Roark’s
abuse of discretion claim.
II.    The Prosecutor Did Not Err
       Roark contends the prosecutor erred by asking two questions to elicit the
motivations underlying the victim’s testimony. We discern no error.
       A.     Additional Background
       The two questions and answers at issue follow. At the end of the victim’s direct
examination, the prosecutor asked, “[W]hy are you here today?” The victim replied, “I
want justice.” At the end of the victim’s redirect examination, the prosecutor asked,
“[A]re you getting anything out of coming here and testifying before us?” The victim
replied, “Inner peace.”
       B.     Analysis
       “‘[A] prosecutor’s conduct violates the federal Constitution when it infects the
trial with such unfairness as to make the resulting conviction a denial of due process.
Conduct by a prosecutor that does not rise to this level nevertheless violates California
law if it involves the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’” (People v. Capers (2019) 7 Cal.5th 989, 1012.)
       “At the outset, we question whether this issue is properly considered one of
misconduct. ‘Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony [citation], merely eliciting evidence is not misconduct. [It
appears Roark’s] real argument is that the evidence was inadmissible.’ [Citation.]
Although the prosecutor in this case certainly asked the questions intentionally, nothing
in the record suggests” an intent to present inadmissible evidence. (People v.
Chatman (2006) 38 Cal.4th 344, 379-380.)
       Nonetheless, we conclude both the question and answer were permissible. Either
party may attack or support the credibility of any witness. (§ 785.) “[I]n determining the
credibility of a witness” a “jury may consider … any matter that has any tendency in

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reason to prove or disprove the truthfulness of … testimony.” (§ 780.) Any matter
includes but is not limited to “[t]he existence or nonexistence of a bias, interest, or other
motive.” (§ 780, subd. (f).)
       The question here was designed to uncover the victim’s motivation, if any, in
testifying. The Evidence Code permits such an inquiry. Roark had an equal opportunity
to inquire into victim’s motivation, reveal concurrent motives, or undermine the
expressed motive. Accordingly, we find neither prosecutorial nor evidentiary error. (See
People v. Cunningham (2001) 25 Cal.4th 926, 1022 [“prosecutor elicit[ing] testimony
from” witness that “he feared retaliation” from defendant was admissible “to demonstrate
that the witness was credible”].)
                                      DISPOSITION
       The judgment is affirmed.




                                                                                   SMITH, J.
WE CONCUR:



DETJEN, Acting P.J.



MEEHAN, J.




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