Filed 10/15/14 P. v. Syharath CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048788

         v.                                                            (Super. Ct. No. 11WF1110)

ANTHONY SYHARATH,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
                   Edward J. Haggerty, 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, A.
Natasha Cortina, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and
Respondent.
              Anthony Syharath appeals from a judgment after a jury convicted him of
aggravated assault with a deadly weapon, domestic battery with corporal injury,
dissuading a witness by force or threat, and misdemeanor disobeying a court order, and
found true weapon and use of force enhancements. Syharath argues the following: (1) a
witness improperly testified concerning his failure to testify in violation of the
Fifth Amendment; (2) the trial court erred in admitting prior domestic violence evidence
and the evidence and jury instruction violated his due process and equal protection rights;
(3) the court erred in instructing the jury on consciousness of guilt; and (4) the court erred
in excluding evidence the victim, Bich Tran Huynh, made a prior false claim of domestic
violence. None of his contentions have merit, and we affirm the judgment.
                                           FACTS
              In April 2011, Huynh and Syharath, who had dated for about two years,
lived together in a converted garage in Westminster. On her way home from work one
day, Huynh bought wine coolers to share with Syharath. They drank, and at some point
they argued over domestic issues. Syharath hit Huynh with a closed fist, including one
time on the face. When Huynh tried to leave, Syharath grabbed a knife from a box and
stabbed Huynh four times, once in the hip and three times under the right breast. They
continued to argue as Huynh bled, and Syharath began to cry. Syharath grabbed Huynh’s
keys and drove away in her sports utility vehicle (SUV). Huynh went to the hospital.
              Westminster Police Officer Stewart Dejong interviewed Huynh at the
hospital. Dejong saw scratch marks and redness around Huynh’s neck, and the four
lacerations, which had been sutured. Huynh was uncooperative and hesitant to speak
with Dejong. Huynh told him that she had met an old acquaintance named “Dreamer” in
Mile Square Park and he stabbed her. She refused to answer additional questions. Based
on her statements, Dejong concluded the stabbing occurred outside of the Westminster
Police Department’s jurisdiction.



                                              2
              A few days later, Huynh’s landlord called the Westminster Police
Department because he had previously heard yelling and when he looked into Huynh’s
window, the bedroom was “disheveled.” When Officer Travis Hartman arrived, the
landlord led him to the window where Hartman saw what appeared to be blood stains on
the carpet and mattress. The landlord led Hartman to the front door. When Hartman
knocked, the door opened, but no one answered. Hartman saw more blood stains on the
carpet, blood stains on the bed sheets and mattress, blood stains throughout the bathroom,
and a pair of torn and blood soaked pink underwear next to the closet. Hartman
requested additional officers.
              Detective James Wilson responded to the residence. Wilson saw a lot of
blood throughout the home, including large bloody hand prints on the bed and blood
soaked underwear that appeared to have been cut on the side. Wilson searched for, but
did not find, a knife.
              A couple days later, Detective Michael Nguyen arranged to speak with
Huynh at her residence. When Nguyen and Detective Jeremy Hill arrived, Huynh was
waiting in the driveway. Huynh appeared scared and would only speak with the
detectives if she could sit in their car. Huynh was fairly cooperative in the beginning.
She showed them text messages sent from Syharath’s cell phone earlier that day that
frightened her. One text stated, “‘Mai Le Jewelry Store at Asian Garden Mall,’” which
was where Huynh’s mother worked. The next message read, “‘He gave us your mom’s
address just in case you did call the police on him.’” Additional texts stated, “‘Yes, and
we know where your son lives at’” and “Keep testing us.”
              Huynh stated she and Syharath argued constantly and Syharath hit her, so
she got a knife, handed it to Syharath, and said, “Why don’t you just, you know, fucking
kill me.” Huynh said Syharath stabbed her; she was wearing jeans, a T-shirt, and boots.
However, at some point she also told them she walked into the knife. When Nguyen
asked her how she “walked into four stab wounds,” Huynh was silent. When Nguyen

                                             3
asked her how her underwear had been cut off, Huynh was silent. Huynh was
uncooperative and cantankerous during parts of the interview and said she did not like to
be interrogated. Huynh was also evasive on whether she gave Syharath permission to
take her SUV and stated she was trying to prevent him from getting into trouble. Huynh
did want her SUV back and gave detectives a Long Beach address where they might find
Syharath.
              With the help of the Long Beach Police Department, officers performed a
felony car stop of Syharath, who was still driving Huynh’s SUV. Syharath asked Nguyen
to retrieve his cell phone from the SUV, which he did, and Nguyen took it to the police
station. Officers searched the SUV and found a clothes hamper and boots that appeared
to have blood on them.
              Officers took Syharath to the Westminster Police Department where Hill
and Nguyen interviewed him; the interview was recorded. Syharath admitted he and
Huynh dated and had domestic violence problems in the past. With respect to the day of
the incident, Syharath said he and Huynh argued because he wanted to move to Fallbrook
and Huynh cut herself several times with a knife because she was “nuts.” Syharath
claimed he tried both to call for help and get the landlord but he was unsuccessful.
Syharath said he did not go to the hospital with Huynh but kept in touch via text
messages but he deleted them. Syharath claimed Huynh told him to use her SUV to go to
his brother’s house and gave him her wallet.
              An information charged Syharath with attempted willful, deliberate, and
premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a))1 (count 1),
aggravated assault (§ 245, subd. (a)(1)) (count 2), domestic battery with corporal injury
(§ 273.5, subd. (a)) (count 3), dissuading a witness by force or threat (§ 136.1,


1             All further statutory references are to the Penal Code, unless otherwise
indicated.


                                               4
subd. (c)(1)) (count 4), street terrorism (§ 186.22, subd. (a)) (count 5), and misdemeanor
disobeying a court order (§ 166, subd. (a)(4)) (count 6).2 As to counts 1 and 2, the
information alleged Syharath inflicted great bodily injury (§ 12022.7, subd. (a)), and with
respect to counts 1 and 3, he personally used a deadly weapon (§ 12022, subd. (b)(1)).
The information also alleged he committed count 4 for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)). Finally, the information alleged he suffered two serious
and violent felony convictions (§§ 667, subds. (a)(1), (d) & (e)(2)(A), 1170.12,
subds. (b), (c)(2)(A)), and two prior prison terms (§ 667.5, subd. (b)).
              Before trial, the prosecutor moved to admit evidence of two prior instances
of domestic violence, one on September 17, 2010, and one on January 21, 2011, pursuant
to Evidence Code section 1109. The September 17, 2010, incident involved Syharath
throwing a television set at Huynh and destroying her cell phone so she could not call his
parole officer. Syharath pled guilty to battery (§ 242), and damaging a wireless
communication device (§ 591.5), and this incident was the basis of count 6 in this case,
disobeying a court order. The January 21, 2011, incident involved Huynh being assaulted
and driving herself to the hospital. Although Huynh initially said four Asian females
attacked her, her friend Hue Lam said Huynh admitted it was her boyfriend who beat her
up. Syharath was not charged for this incident. In his motion, the prosecutor argued the
prior domestic violence evidence’s probative value was not outweighed by its undue
prejudice because the evidence was not more inflammatory than the charged offenses,
Syharath was punished for one of the incidents, and admission of the evidence would not
consume an undue amount of time.




2             Before trial, the trial court dismissed count 5 on the prosecutor’s motion,
and count 6, misdemeanor disobeying a court order, was renumbered count 5. Because
the court dismissed count 5, and the jury did not find the gang allegations true, we have
not provided any of the gang evidence in this opinion.

                                              5
              At a pretrial hearing, Syharath objected to admission of the prior domestic
violence evidence pursuant to Evidence Code section 352. Syharath argued the incidents
were too close in time to the charged offense and they were extremely prejudicial.
Syharath added Huynh suffered serious injuries during the January 21, 2011, incident.
The prosecutor acknowledged the evidence was prejudicial but its prejudice did not
outweigh its probative value. The prosecutor argued the circumstances of the charged
offense were more inflammatory than the prior domestic violence evidence. Syharath
responded it was unclear whether he was the perpetrator of the January 21, 2011, attack
on Huynh. The prosecutor responded the evidence would show Syharath was the
perpetrator of that attack. The trial court ruled the prior domestic violence evidence was
probative and the probative value outweighed the danger of any undue prejudice.
              At trial, Officer Tracy Holz testified for the prosecution. Holz went to a
motel on September 17, 2010. Holz approached Syharath and Huynh’s motel room and
heard yelling and smashing sounds; she called for backup. Holz knocked on the door and
identified herself as a police officer. When Huynh opened the door, Holz asked her to
come outside, but she refused. When Syharath put his head out of the bathroom door and
refused to come out, Holz pulled Huynh out of the room. Syharath eventually complied
with Holz’s repeated commands to come out of the bathroom, and he laid face down on
the floor. The room was in disarray. Holz found a cell phone in the toilet and a
television that had been thrown. The parties stipulated Syharath committed a battery on
Huynh and destroyed her cell phone to prevent her from calling law enforcement. A
criminal protective order was issued preventing Syharath from contacting Huynh.
              Hue Kim Lam testified for the prosecution that on January 21, 2011, Huynh
called her and frantically said “she was going to fall asleep[.]” Huynh told Lam she
could not see, her eye was covered in blood, and she was swerving on the road. When
Lam asked her what happened, Huynh said, “‘He fucked me up[.]’” Lam assumed



                                             6
Huynh was referring to Syharath. When Lam finally met Huynh at the hospital, Huynh
was sitting in a wheelchair distorted with her hair disheveled and clotted with blood.
              Huynh testified over the course of three days. Huynh began by stating she
did not want to testify, and she was not the model witness to say the least. During the
morning session of her first day of testimony, Huynh admitted she was in custody and
awaiting trial for possession of a controlled substance for sale, possession of an assault
rifle, commercial burglary, and possession of stolen property. As detailed above, Huynh
stated Syharath stabbed her four times. During her testimony, she repeatedly nodded
instead of answering the questions verbally, and she requested a break soon after
beginning. At the afternoon session, Huynh could not continue because she requested a
public defender, although she was represented by retained counsel. When the prosecutor
indicated he could not contact retained counsel, the trial court ordered the jurors back the
next morning. When direct examination resumed the next morning, Huynh continued to
nod instead of answering, could not remember answers to questions she answered the
prior day, and requested a break. The trial court went to great pains to try to
accommodate Huynh and asked her to answer the questions as best she could. Huynh
finally admitted it was Syharath who assaulted her on January 21, 2011.
              Huynh’s testimony on cross-examination was more of the same. She
nodded, could not remember, and needed numerous breaks, and again the trial court did
its best to accommodate her even when Huynh put her fingers in her ears and sat silent in
what appeared to be a catatonic state. Huynh acknowledged telling officers that Dreamer
stabbed her in Mile Square Park, but she said it was not true. Initially, she could not
remember telling Nguyen she handed the knife to Syharath and told him to kill her. She
did remember though telling Nguyen that she walked into the knife but that was a lie.
Later, she remembered telling Nguyen she handed the knife to Syharath and told him to
kill her. She also acknowledged she told Michelle Goodwin, an Orange County Sheriff’s
Investigator, that she walked into the knife and that was the truth. When defense counsel

                                              7
asked Huynh why they argued, she answered she did everything and Syharath did not
help. When counsel inquired whether Syharath did not do anything, Huynh replied
“[e]xcept beat me,” “hurt me, and stab me.” Huynh stated she still cared about Syharath.
She visited him in jail, wrote him letters, gave him money, bought him clothes, and got a
tattoo of Syharath’s name.
              When defense counsel asked Huynh to tell the truth and give her version of
the circumstances that led to Syharath stabbing her, Huynh replied numerous times,
“Why don’t he tell the story . . . ,” “Why don’t you ask [Syharath],” “Ask [Syharath],” or
something similar. Huynh answered in that manner on at least 12 occasions without
defense counsel objecting.
              Defense counsel asked Huynh whether she knew Derick Stoelting, and
Huynh replied she did not remember. Counsel asked whether she was involved in a
domestic violence incident with Stoelting where she threw picture frames against the wall
causing the glass to break. The trial court sustained the prosecutor’s lack of foundation
and improper impeachment objections. Counsel asked whether she swallowed broken
glass. The court sustained the prosecutor’s relevance and improper impeachment
objections. Counsel requested a sidebar discussion. At sidebar, after the court
questioned the relevance of evidence Huynh swallowed glass, counsel indicated the
defense investigator interviewed Stoelting’s father who said Huynh accused Stoelting of
domestic violence after she threw picture frames against the wall and cut herself and
swallowed glass. Counsel said court records establish Stoelting “was sent to prison on
domestic violence on July 24, 2012.” When counsel spoke with him in prison, Stoelting
said he and Huynh argued and fought and she threw a picture frame against the wall.
Stoelting did not see Huynh eat glass, but she told him that she did, and he wanted to take
her to the hospital, but she refused. Stoelting became more circumspect when he realized
he might have to testify. Counsel argued evidence Huynh instigated domestic violence
and self-inflicted injuries was relevant to her credibility. Counsel could not provide the

                                             8
court with the date of the incident. The prosecutor responded that although he was
“vaguely aware of this[,]” counsel should have presented this in an in limine motion and
called a witness to present the evidence. The prosecutor added he did not know counsel
was going to question Huynh about Stoelting. Counsel answered he did communicate
with the prosecutor about this issue but when Stoelting became uncooperative “it didn’t
quite turn out as [he] . . . ha[d] hoped.” The prosecutor responded that pursuant to
Evidence Code section 352 the testimony was confusing and unreliable because Stoelting
was convicted of domestic violence. The prosecutor added counsel was asking Huynh to
incriminate herself.
              The trial court stated Stoelting had to testify to properly explore the issue.
The court added the issue could be relevant if counsel laid the proper foundation. The
court concluded, “It is improper impeachment because if she denies all this, says ‘no’,
what are you going to do with all that? And you are making an insinuation that you are
never going to be able to backup.” The court sustained the prosecutor’s objection to
defense counsel’s inquiry.
              Syharath’s defense was Huynh was “nuts” and although he hit her in the
past, Huynh stabbed herself. Jaime Barba, the defense investigator, testified he
interviewed Huynh in an unrecorded telephone conversation and Huynh said she stabbed
herself. When he tried to clarify, Huynh became confrontational and said, “‘That’s all
you need to know.’” Huynh resisted Barba’s subsequent attempts to speak with her.
Barba acknowledged domestic violence victims often change their stories.
              Michelle Goodwin, Orange County Sheriff’s Investigator, testified she
interviewed Huynh at the hospital following the stabbing. Huynh told her Dreamer
wanted to have sex with her but she refused and he stabbed her before she could escape.
Huynh could not remember what happened to her underwear but thought it might have
been cut off because she was cut there as well. Huynh was extremely uncooperative and



                                              9
evasive and said she did not want to prosecute her attacker. She denied Syharath would
attack her.
              Finally, Amy Holmdohl, who was in custody, testified she was Huynh’s
best friend and a co-defendant in Huynh’s pending case. Additionally, she had numerous
felony convictions 2005, 2006, 2010, 2011, and 2012. Holmdohl met Huynh after the
stabbing. She said Huynh told her that Syharath had beat her and that she had stabbed
herself but told the police it was Syharath. Holmdohl said that while they were both
incarcerated she sent Syharath a letter offering to testify for him and they became pen
pals. Holmdohl said she did not contact the police because other inmates frown upon
that.
              As relevant here, the trial court instructed the jury Syharath was presumed
innocent and the prosecution had to prove his guilt beyond a reasonable doubt
(CALCRIM No. 220). The court also instructed the jury with CALCRIM No. 355,
“Defendant’s Right not to Testify,” which stated: “A defendant has an absolute
constitutional right not to testify. He or she may rely on the state of the evidence and
argue that the People have failed to prove the charges beyond a reasonable doubt.
Do not consider, for any reason at all, the fact that the defendant did not testify. Do not
discuss that fact during your deliberations or let it influence your decision in any way.”
              The jury convicted Syharath of counts 2 through 4, and found true he
committed count 3 with a deadly weapon and count 4 maliciously or with force. The jury
found the other allegations attached to counts 2 and 4 not true. The jury acquitted
Syharath of count 1 and its lesser necessarily included offense attempted voluntary
manslaughter. At a bifurcated bench trial, the trial court found true all Syharath’s prior
convictions and prison terms.
              Before sentencing, Syharath filed a motion to dismiss his prior felony
convictions pursuant to section 1385. At the sentencing hearing, the trial court struck one
of the strikes and both prior prison terms and sentenced Syharath to prison for 21 years as

                                             10
follows: the upper term of four years doubled to eight years under the Three Strikes law
plus one year for the weapon use enhancement on count 3; one-third the middle term of
three years doubled to two years on count 4; and two five-year terms for the prior serious
felony convictions.
                                        DISCUSSION
I. Griffin Error
              Acknowledging defense counsel did not object, Syharath argues there was
Griffin3 error when during cross-examination, Huynh repeatedly answered defense
counsel should “ask [Syharath].” He also argues the trial court erred in failing to
admonish Huynh to cease answering in that manner and erred in failing to admonish the
jury to disregard those responses. Finally, he argues counsel was ineffective for failing to
object. The Attorney General contends the issue is forfeited because defense counsel did
not object, the trial court did not have a sua sponte duty to admonish Huynh, the claim is
meritless because there is no California authority extending Griffin error to witness
testimony, and counsel was therefore not ineffective.
              We conclude Syharath forfeited appellate review of this issue because he
did not object to any of the alleged instances of Griffin error (People v. Lancaster (2007)
41 Cal.4th 50, 84 [defense’s failure to object waives Griffin error]), but because he claims
his counsel was ineffective, we will address the merits of his claim.
              In Griffin, supra, 380 U.S. at page 615, the Supreme Court of the United
States opined, “We take that in its literal sense and hold that the Fifth Amendment, in its
direct application to the Federal Government, and in its bearing on the States by reason of
the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt.” (Fn. omitted.)
“‘“Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is


3             Griffin v. California (1965) 380 U.S. 609 (Griffin).

                                              11
uncontradicted or unrefuted when that evidence could not be contradicted or refuted by
anyone other than the defendant testifying on his or her own behalf.” [Citation.] We also
have said “it is error for the prosecution to refer to the absence of evidence that only the
defendant’s testimony could provide.” [Citations.]” (People v. Carter (2005) 36 Cal.4th
1215, 1266.)
               Syharath concedes there is no California authority supporting the assertion
a witness’s testimony concerning a defendant testifying implicates Griffin. Instead,
Syharath cites to three Fifth Circuit Court of Appeals decisions to support his claim a
witness’s testimony on a defendant’s failure to testify constitutes Griffin error. (U.S. v.
Lampton (5th Cir. 1998) 158 F.3d 251, 260 [“well-settled that ‘[t]he Fifth Amendment
prohibits a trial judge, a prosecutor, or a witness from commenting upon a defendant’s
failure to testify in a criminal trial’”]; U.S. v. Sylvester (5th Cir. 1998) 143 F.3d 923, 929
[“Fifth Amendment prohibits a witness from commenting on a defendant’s failure to
testify in a criminal trial”]; U.S. v. Rocha (5th Cir. 1990) 916 F.2d 219, 232
[“Fifth Amendment prohibits a trial judge, a prosecutor or a witness from commenting
upon a defendant’s failure to testify in a criminal trial”].) Lower federal court decisions
on federal questions are persuasive authority, but they are not binding on California
Courts of Appeal. (People v. Zapien (1993) 4 Cal.4th 929, 989; Credit Managers Assn.
of California v. Countrywide Home Loans, Inc. (2006) 144 Cal.App.4th 590, 598.)
               Because there is no California authority supporting the broad reading of
Griffin that Syharath advances here, we reject his claim. (See People v. Carter (2005)
36 Cal.4th 1114, 1191-1192 [decisions finding Griffin error have not extended to
situation of defendant who asserts own attorney invited jury to draw adverse inference
from defendant’s failure to testify].) And we are not persuaded by the Fifth Circuit Court
of Appeals jurisprudence Syharath relies on. Those cases are premised on a case where a
defendant called co-defendant as a witness knowing co-defendant would not testify and
co-defendant’s refusal to testify was commented on in the jury’s presence. (U.S. v.

                                              12
Kaplan (5th Cir. 1978) 576 F.2d 598, 600.) That is not the situation we have here. We
decline Syharath’s invitation to extend Griffin beyond its plain language to include a
witness’s testimony.
              Assuming for the sake of argument there was Griffin error, Syharath was
not prejudiced because there was not a reasonable likelihood Huynh’s statements caused
the jury to misconstrue or misapply the law. (People v. Roybal (1998) 19 Cal.4th 481,
514 [reasonable likelihood standard for Griffin error].) Based on a complete reading of
Huynh’s testimony, we do not view her suggestions to “ask [Syharath]” as a comment on
Syharath’s refusal to testify. Instead, Huynh’s statements must be considered in
conjunction with her obvious displeasure with having to testify, as illustrated by her
non-responsiveness, numerous requests for breaks, and generally immature demeanor on
the witness stand. Second, the trial court instructed the jury it could not consider the fact
Syharath did not testify during its deliberations. (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1220 [we presume jurors are intelligent and capable of understanding
instructions and applying them to facts of case].) Thus, we conclude Huynh’s testimony
did not implicate Griffin, and assuming it did, Syharath was not prejudiced.
              In a related claim, Syharath contends the trial court denied him his right to
a fair trial because the court failed to admonish Huynh, instruct the jury to disregard
Huynh’s statements, and instruct the jury he had a constitutional right to not testify. We
agree with Syharath that the trial court has the inherent and statutory discretion to control
proceedings to ensure justice is administered. (People v. Gonzalez (2006) 38 Cal.4th
932, 951; § 1044; Evid. Code, § 765.) We also agree the trial court has a duty to ensure a
defendant receives a fair trial. (People v. Shambatuyev (1996) 50 Cal.App.4th 267, 271.)
However, the trial court certainly does not have a duty to make objections on the
defendant’s behalf. Additionally, the trial court does not have a duty to admonish a
witness for a statement that, like here, is not prohibited by law. Syharath concedes there
is no California authority to support the proposition Griffin extends to a witness’s

                                             13
testimony on the defendant’s failure to testify. On what legal basis would the court rely
on in admonishing Huynh?
              Finally, given Huynh’s demeanor and manner of testifying, it would be
reasonable for defense counsel to refrain from objecting to allow Huynh to further
discredit herself before the jury. Thus, defense counsel was not ineffective for failing to
object. (People v. Lancaster (2007) 41 Cal.4th 50, 82 [tactical decision such as failing to
object rarely establishes ineffective assistance].) Therefore, the trial court did not err in
failing to admonish Huynh when an admonishment would not have been supported by
existing California law.
II. Prior Domestic Violence
              Syharath raises numerous claims with respect to admission of evidence of
prior acts of domestic violence. We will address each in turn.
A. Admission of Evidence
              Syharath asserts the trial court erred in admitting the prior domestic
violence because although the evidence “had some relevance,” it was unduly prejudicial,
vague, and confusing. Not so.
              Evidence Code section 1101, subdivision (a), prohibits the use of
disposition or propensity evidence to prove a defendant’s conduct on a specific occasion.
(People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, Evidence Code
section 1109, subdivision (a)(1), provides, “[I]n a criminal action in which the defendant
is accused of an offense involving domestic violence, evidence of the defendant’s
commission of other domestic violence is not made inadmissible by [Evidence Code]
[s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code]
[s]ection 352.”
              Evidence Code section 352, however, authorizes a trial court to exclude
relevant evidence. “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate

                                              14
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of
Evidence Code section 352, prejudice means “‘evidence that uniquely tends to evoke an
emotional bias against a party as an individual, while having only slight probative value
with regard to the issues. [Citation.]’” (People v. Heard (2003) 31 Cal.4th 946, 976.)
We review a trial court’s evidentiary rulings for an abuse of discretion. (People v. Davis
(2009) 46 Cal.4th 539, 602.) “A trial court abuses its discretion when its ruling ‘fall[s]
“outside the bounds of reason.”’ [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690,
714.)
              People v. Jennings (2000) 81 Cal.App.4th 1301 (Jennings), is instructive.
In that case, defendant was convicted of felony assault and aggravated assault by means
of force likely to produce great bodily injury and other crimes against his girlfriend.
(Id. at p. 1305.) The trial court admitted evidence of three prior incidents of domestic
violence. In the first, defendant hit the victim three or four times and then kicked in her
apartment door. In the second, defendant slapped the victim in a jealous rage. In the
third, when the victim refused to drop the domestic violence charges pending as a result
of the earlier incidents, defendant straddled the victim in bed, stuck his finger in her eye,
hit her on the leg, and choked her. (Id. at p. 1307.) The Jennings court rejected
defendant’s contention the trial court erred in not excluding this evidence under
Evidence Code section 352, reasoning the prior incidents of domestic abuse “were no
more egregious than the charged offense, and posed no danger of confusing the jury. Nor
do we believe that any inclination to punish appellant for his prior offenses was a
significant factor in this case.” (Jennings, supra, 81 Cal.App.4th at p. 1315.)
              Similar to Jennings, here evidence Syharath committed two incidents of
domestic violence against Huynh less than one year before the charged offenses was
relevant to whether he committed domestic violence here. Syharath concedes the
evidence was relevant. And he also concedes the prior domestic violence evidence was

                                             15
no more egregious than the charged offenses. The evidence was not likely to confuse the
jury because it involved two isolated incidents and did not consume undue time because
Holz’s and Lam’s testimony was relatively brief.
              Syharath’s chief complaint is the jury was likely to punish him for prior
domestic violence incidents because it was unclear whether he was charged and
convicted for those incidents. First, Evidence Code section 1109 does not require the
prior domestic violence incident result in a conviction. (See People v. Escobar (2000)
82 Cal.App.4th 1085, 1096 (Escobar).) Second, the jury could certainly infer Syharath
suffered a conviction for the September 17, 2010, incident because the parties stipulated
he committed a battery and destroyed her cell phone with the intent to prevent her from
calling law enforcement, and a criminal protective order was issued prohibiting Syharath
from contacting Huynh. It is true there was no evidence he was punished for the January
21, 2011, incident but this was a factor to consider and was not in itself justification to
compel exclusion of the prior domestic violence evidence. Syharath’s claim the
testimony concerning the January 21, 2011, incident was vague went to its weight and not
its admissibility, and was an issue for the jury to decide. (Ibid. [whether prior domestic
violence occurred straightforward issue of credibility].)
              Syharath relies on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), a
case involving Evidence Code section 1108, Evidence Code section 1109’s parallel
statute authorizing admission of prior sexual offense evidence. Harris is inapposite.
              In Harris, supra, 60 Cal.App.4th at pages 731-732, defendant was charged
with molesting two adult patients at the mental health facility where he worked.
Defendant undressed the victims, touched and licked their private parts, and digitally
penetrated them. (Ibid.) The trial court allowed the prosecution to offer evidence that
23 years before the charged offenses, a jury found defendant guilty of residential burglary
after entering an apartment at night and brutally beating, sexually assaulting, and stabbing
the victim with an ice pick while she was sleeping. (Id. at pp. 733-734.) The Harris

                                              16
court reversed defendant’s conviction, reasoning the trial court erred by admitting this
evidence under Evidence Code sections 1108 and 352 because the prior sexual offense
evidence was remote, was extremely inflammatory, and would confuse the jury by
leading it to believe defendant had escaped all but burglary charges. (Harris, supra,
60 Cal.App.4th at pp. 738-739.) The court also concluded the prior sexual offense
evidence was not probative because the charged and uncharged offenses were largely
dissimilar. (Id. at p. 740.)
              As we explain above, the prior domestic violence evidence was not more
inflammatory than the charged offenses, it was not remote as the incidents occurred less
than one year before the charged offenses, it was unlikely the jury would confuse the
issues, and it was unlikely the jury would punish Syharath for the prior domestic violence
incidents as he had been punished for one of them. Thus, the trial court properly
admitted the prior domestic violence evidence pursuant to Evidence Code section 1109.
B. Constitutionality of Evidence Code Section 1109
              In a related argument, Syharath contends Evidence Code section 1109 is
unconstitutional in violation of the due process and equal protection clauses. He
acknowledges that in Falsetta, supra, 21 Cal.4th at pages 912-913, the California
Supreme Court rejected a due process challenge to Evidence Code section 1108, a related
statute. He also acknowledges California appellate courts have rejected challenges to
Evidence Code section 1109 based on both due process and equal protection. (People v.
Brown (2011) 192 Cal.App.4th 1222, 1233, fn. 14 [due process and equal protection];
People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 [due process]; People v. Rucker
(2005) 126 Cal.App.4th 1107, 1120 [due process]; People v. Price (2004)
120 Cal.App.4th 224, 240 [due process and equal protection]; Escobar, supra,
82 Cal.App.4th at pp. 1095-1096 [due process]; Jennings, supra, 81 Cal.App.4th at
pp. 1309-1313 [due process and equal protection]; People v. Brown (2000)



                                            17
77 Cal.App.4th 1324, 1332-1334 [due process]; People v. Hoover (2000) 77 Cal.App.4th
1020, 1028-1029 [due process]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420
[due process].) We find these opinions well reasoned, and we are persuaded to follow
them.
              Syharath argues, however, that Falsetta must be reconsidered in light of the
Ninth Circuit’s decision in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769
(Garceau). To the extent that Falsetta and Garceau are in conflict, we must follow
Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455
(Auto Equity Sales) [California appellate court is bound by California Supreme Court
decisions]; Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782 [California appellate court is
not bound by Ninth Circuit decisions].) Moreover, even after Garceau, our Supreme
Court has expressly refused to reconsider Falsetta. (People v. Lewis (2009) 46 Cal.4th
1255, 1288-1289.) We also note that, as Syharath concedes, a different panel of the
Ninth Circuit reached a conclusion contrary to Garceau; it upheld a federal rule of
evidence that was analogous to Evidence Code section 1109. (United States v. LeMay
(9th Cir. 2001) 260 F.3d 1018, 1022, 1031.) Therefore, we conclude Evidence Code
section 1109 does not violate the due process and equal protection clauses, but we
recognize Syharath raises this issue in part to preserve it for federal review.
C. CALCRIM No. 852
              Syharath contends that CALCRIM No. 852, “Evidence of Uncharged
Domestic Violence,” which instructs the jury on the various purposes for which the jury
may consider evidence of prior acts of domestic violence, interferes with the presumption
of innocence and the burden of proving defendant’s guilt beyond a reasonable doubt. He
acknowledges that in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, our high
court addressed and rejected the precise claims he raises in this appeal. We are bound by
decisions of our state Supreme Court, as he also acknowledges. (Auto Equity Sales,
supra, 57 Cal.2d at p. 456.) California Courts of Appeal have also rejected the identical

                                             18
claim. (People v. Johnson (2008) 164 Cal.App.4th 731, 738-740 [rejecting due process
challenge to CALCRIM No. 852]; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253
[same].) Therefore, Syharath’s claim, which again he raises primarily to preserve the
issue for federal review, is meritless.
III. Consciousness of Guilt Jury Instructions
              Syharath claims CALCRIM Nos. 371 and 372 created impermissible
inferences of guilt in violation of his due process rights. We disagree.
              The trial court instructed the jury with CALCRIM No. 371, “Consciousness
of Guilt: Suppression and Fabrication of Evidence” as follows: “If the defendant tried to
hide evidence or discourage someone from testifying against him, that conduct may show
that he was aware of his guilt. If you conclude that the defendant made such an attempt,
it is up to you to decide its meaning and importance. However, evidence of such an
attempt cannot prove guilt by itself.” The court also instructed the jury with
CALCRIM No. 372, “Defendant’s Flight” as follows: “If the defendant fled immediately
after the crime was committed that conduct may show that he was aware of his guilt. If
you conclude that the defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the defendant fled cannot prove guilt
by itself.”
              Similar CALJIC instructions—2.06 and 2.52—have been approved by the
California Supreme Court. (People v. Morgan (2007) 42 Cal.4th 593, 621 [rejecting that
CALJIC Nos. 2.03, 2.04, and 2.52 violates due process]People v. Mendoza (2000) 24
Cal.4th 130, 179-180 [rejecting that CALJIC No. 2.52 violates due process]; People v.
Smithey (1999) 20 Cal.4th 936, 983 [same]; People v. Jackson (1996) 13 Cal.4th 1164,
1223-1224 [rejecting that CALJIC No. 2.06 violates due process].) However, Syharath
argues the phrase “aware of his guilt” in CALCRIM Nos. 371 and 372, instead of the
phrase “a consciousness of guilt” that appears in CALJIC Nos. 2.06 and 2.52, and was
approved by the California Supreme Court, changed the meaning so that these

                                            19
CALCRIM instructions now impermissibly presume the existence of guilt and lower the
prosecution’s burden of proof.
              In People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159, the
court of appeal rejected the identical argument as it pertained to CALCRIM No. 372. We
adopt the reasoning in that case, which equally applies to both CALCRIM Nos. 371 and
372. Thus, Syharath’s claims are meritless.
IV. Huynh’s Prior Alleged False Claim of Domestic Violence
              Syharath claims the trial court erred in excluding “evidence” Huynh made a
prior false claim of domestic violence and denied him his due process and confrontation
rights. We will address each contention in turn.
A. Exclusion of Evidence
               Evidence Code section 1103, subdivision (a), provides in relevant part: “In
a criminal action, evidence of the character or a trait of character (in the form of an
opinion, evidence of reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made inadmissible
by [Evidence Code] [s]ection 1101 if the evidence is: [¶] (1) Offered by the defendant to
prove conduct of the victim in conformity with the character or trait of character.
[¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under
paragraph (1).”
              Evidence of a prior false accusation of sexual molestation or rape is
relevant on the issue of the victim’s credibility and is admissible pursuant to Evidence
Code section 1103. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456-1457
(Tidwell).) The admission of the victim’s character evidence pursuant to Evidence Code
section 1103 is subject to evidentiary rules of relevance (Evid. Code, §§ 210, 350, 351),
and prejudice (Evid. Code, § 352). (People v. Wright (1985) 39 Cal.3d 576, 587-588.)
The trial court is vested with wide discretion in determining the admissibility of evidence



                                              20
and we will reverse only when the court has abused that discretion. (People v. Jones
(2011) 51 Cal.4th 346, 375-376.)
              Relying on Tidwell, Syharath asserts evidence of a prior false accusation of
domestic violence is relevant on the issue of the victim’s credibility and is admissible
pursuant to Evidence Code section 1103, despite the fact he found no published cases in
the domestic violence context. The Attorney General concedes the relevancy of such
testimony but asserts Huynh’s alleged false accusation of domestic violence was
“unsubstantiated, unreliable, and without any evidentiary support[.]” We agree with the
Attorney General.
              “An offer of proof must consist of material that is admissible, and it must
be specific in indicating the name of the witness and the purpose and content of the
testimony to be elicited. [Citation.] ‘“The substance of evidence to be set forth in a valid
offer of proof means the testimony of specific witnesses, writings, material objects, or
other things presented to the senses, to be introduced to prove the existence or
nonexistence of a fact in issue.”’ (People v. Rodrigues (1994) 8 Cal.4th 1060,
1176-1177.)
              Here, the trial court properly excluded Huynh’s testimony concerning an
alleged false report of domestic violence involving Stoelting because Syharath failed to
lay a proper foundation. Defense counsel failed to identify the actual evidence to be
produced but instead identified an issue he hoped to explore. Counsel intended to have
Stoelting testify, but when counsel was unsuccessful, he tried to confront Huynh with the
unsubstantiated claim she falsely accused Stoelting of domestic violence, despite the fact
Stoelting was incarcerated for domestic violence.
              Additionally, the line of questioning would have been unduly prejudicial
because it would have allowed the jury to infer Huynh made a false claim of domestic
violence without any evidence she had done so. The line of questioning would have
confused the jury. It would have distracted the jury with an issue that because it was

                                             21
without evidentiary support did not speak to Huynh’s credibility. Tidwell and People v.
Miranda (2011) 199 Cal.App.4th 1403 (Miranda), are instructive.
              In Tidwell, the court of appeal affirmed the trial court’s decision under
Evidence Code section 352 to exclude evidence showing a rape victim possibly
fabricated two prior rape accusations. (Tidwell, supra, 163 Cal.App.4th at
pp. 1457-1458.) The court explained that although the rape victim made inconsistent
statements, she did not recant and there was no conclusive evidence she made false rape
complaints. (Id. at p. 1458.) The court added the evidence was weak because the defense
did not obtain statements from the alleged perpetrators. The court concluded admission
of the evidence would have required an undue consumption of time because the defense
would have tried to strengthen its position and the prosecutor would have introduced
evidence the perpetrator raped another woman. (Ibid.)
              In Miranda, the court of appeal affirmed the trial court’s exclusion of
evidence showing a sexual assault victim had made a prior false accusation of assault.
(Miranda, supra, 199 Cal.App.4th at p. 1426.) The court explained the probative value
of the evidence was slight and there was no clear showing the report, if made by the
victim, was false. (Id. at p. 1425.) The court added that not only was the evidence weak,
“delving into the issue had the potential for confusing the jury and consuming an undue
amount of time.” (Id. at pp. 1425-1426.) Like Tidwell and Miranda, evidence Huynh
falsely accused Stoelting of domestic violence was without evidentiary support and the
issue would have consumed an undue amount of time and confused the jury.
              Syharath’s claim the trial court failed to engage in the required Evidence
Code section 352 weighing of probative value against prejudice is belied by the record.
The court stated whether Huynh made a false accusation of domestic violence could be
relevant had defense counsel laid the proper foundation, i.e., had Stoelting been available
to testify. The court considered the evidence was of no probative value because if Huynh
denied she made a false accusation of domestic violence against Stoelting, which was

                                            22
likely, defense counsel could not impeach her as Stoelting would not testify. (People v.
Bittaker (1989) 48 Cal.3d 1046, 1097 [probative value of impeachment evidence depends
upon proof prior accusation was false], overruled on other grounds in People v. Black
(2014) 58 Cal.4th 912, 920.)
              Syharath also complains the trial court did not afford him an Evidence
Code section 402 evidentiary hearing. For what? Stoelting would not testify. An
Evidence Code section 402 hearing would have provided little if any guidance on this
issue, and more importantly defense counsel did not request one. We agree with
Syharath the central issue in this case was Huynh’s allegations against him, but defense
counsel’s inquiry concerning an unsubstantiated false accusation of domestic violence
would not have assisted the jury in deciding that question. Finally, the cases Syharath
relies on to argue the trial court erred all involve substantiated false accusations. (People
v. Franklin (1994) 25 Cal.App.4th 328, 335; People v. Adams (1988) 198 Cal.App.3d 10,
16; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 597-598; People v. Wall (1979)
95 Cal.App.3d 978, 986.) Thus, the trial court properly excluded Huynh’s testimony
concerning an alleged false report of domestic violence involving Stoelting.
B. Confrontation Clause
              A trial court may restrict cross-examination of an adverse witness pursuant
to Evidence Code section 352 despite the strictures of the confrontation clause. (People
v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain).) “[T]he ordinary rules of
evidence do not infringe on a defendant’s right to present a defense. [Citation.] Trial
courts possess the ‘traditional and intrinsic power to exercise discretion to control the
admission of evidence in the interests of orderly procedure and the avoidance of
prejudice.’ [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 945 (Frye), disapproved
on another point by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v.
Hawthorne (1992) 4 Cal.4th 43, 57-58.) A trial court’s limitation on cross-examination
regarding the credibility of a witness does not violate the confrontation clause unless a

                                             23
reasonable jury might have received a significantly different impression of the witness’s
credibility had the excluded cross-examination been permitted. (Frye, supra, 18 Cal.4th
at p. 946; Quartermain, supra, 16 Cal.4th at pp. 623-624.)
             As we explain above, the trial court properly ruled inadmissible Huynh’s
testimony concerning an alleged false report of domestic violence involving Stoelting.
The court’s exclusion of evidence on this minor point did not deny Syharath the right to
present a defense. (People v. Cunningham (2001) 25 Cal.4th 926, 999 [defense evidence
on minor point does not implicate due process clause].) Additionally, as Syharath
concedes his defense counsel “engaged in effective cross-examination of Huynh,” and the
jury would not have received a significantly different impression of Huynh’s credibility
because the alleged false accusation was unsubstantiated, unreliable, and without any
evidentiary support. Therefore, Syharath’s constitutional rights were not infringed.
                                     DISPOSITION
             The judgment is affirmed.




                                                 O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



IKOLA, J.




                                            24
