Filed 6/4/13 P. v. Valle CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B239524
                                                                             (Super. Ct. No. 1368264)
     Plaintiff and Respondent,                                                (Santa Barbara County)

v.

KAREN VALLE,

     Defendant and Appellant.



                   Karen Valle (Valle) appeals her felony conviction for attempted
dissuasion of a witness by force or threat. We reject her challenges to the
sufficiency of the evidence and to the trial court's instructional and evidentiary
rulings. We affirm.
                               FACTS AND PROCEDURAL HISTORY
                   In 2010, Valle's husband, from whom she had separated for a time,
was charged with falsely imprisoning, forcibly raping and sexually penetrating
Tamara N. (Tamara). Nine days after her husband's preliminary hearing was
rescheduled, Valle went to the grocery store where Tamara worked as a checker.
Valle waited patiently to get to the front of Tamara's check-out line. Once there,
Valle leaned in close and called Tamara a "sick bitch" and a "fucking bitch." She
also told her, "You're going to die" and "I'm going to kill you." Tamara believed
that Valle had a knife, but gave different accounts of how Valle held it and no knife
could be seen in the store's video.
               The People charged Valle with attempting to dissuade a witness by
force or threat (in violation of Pen. Code, § 136.1, subd. (c)(1))1 and making a
criminal threat (in violation of § 422). The People also alleged that Valle
personally used a dangerous or deadly weapon (in violation of former § 12022,
subd. (b)(1)). The jury found Valle guilty of attempted dissuasion of a witness, but
found the weapon enhancement not true. The jury hung on the criminal threat
counts. The trial court placed Valle on three years' formal probation, including 120
days of county jail.
                                      DISCUSSION
                               I. Sufficiency of the Evidence
               Valle argues that her conviction must be overturned because there is
insufficient evidence to support the jury's finding that she intended to dissuade
Tamara not to testify at the upcoming preliminary hearing. Valle contends that her
threats were generic and reflect, at worst, a "strong" and "manic" "dislike" of
Tamara that pre-dated (and thus had nothing to do with) the charges against Valle's
husband.
               Our review is limited to whether the jury's verdict is supported by
"'. . . substantial evidence . . . from which a reasonable trier of fact could conclude
that the prosecution sustained its burden of proof beyond a reasonable doubt. . . .'"
(People v. Assad (2010) 189 Cal.App.4th 187, 194.) We review the evidence in the
light most favorable to the verdict and assess solely whether the supporting
evidence is "'. . . reasonable, inherently credible, and of solid value . . . .'" (Ibid.)
               There is substantial evidence that Valle intended to dissuade Tamara
from testifying against Valle's husband. Valle knew about the prosecution of her


               1
                   All statutory references are to the Penal Code unless otherwise
stated.


                                             2
husband and thought it was "very awful" and "very horrible"; knew Tamara was the
key witness; and knew about the upcoming preliminary hearing. Valle went to a
grocery store she rarely used, and waited in Tamara's check-out line although other
checkers were available in order to tell Tamara—just nine days after the preliminary
hearing date had been rescheduled—that she was a "sick," "fucking bitch" who was
"going to die." Given this evidence, it is of no moment that Valle's threat did not
explicitly reference her husband's ongoing prosecution or the upcoming preliminary
hearing. (Accord, People v. Ford (1983) 145 Cal.App.3d 984, 988-990 [threat
"'You punk motherfucker, we'll get you, you've got kids'" sufficient to sustain
conviction for dissuading a witness].) It is also of no consequence that Valle
offered a different, innocent version of events. The jury could reasonably reject
Valle's competing account and conclude beyond a reasonable doubt that she spoke
with the intent to dissuade Tamara from testifying.
                             II. Evidentiary Challenges
A. Details of Crimes Charged Against Husband
              Valle argues that the trial court erred in allowing the prosecutor to
introduce some of the factual details of her husband's alleged sexual crimes.
Through a series of leading questions, the prosecutor elicited that Valle's husband
used his body weight to hold down Tamara and thereafter non-consensually
penetrated her with his penis and his fingers. Valle asserts that the details of these
offenses are irrelevant and substantially outweighed by the danger of creating undue
prejudice through engendering sympathy for Tamara. We review the trial court's
evidentiary rulings for an abuse of discretion. (E.g., People v. Lightsey (2012) 54
Cal.4th 668, 714.)
              The trial court did not abuse its discretion in concluding that the
"nature of the charges" against Valle's husband was "probative" of Valle's motive
because she would have greater incentive to derail serious charges than less
significant charges.
              The trial court also did not abuse its discretion in weighing the


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probative value of this evidence against its potential for undue prejudice. The court
was careful to admit only the "nature of the charges" and to exclude "the details of
the incident." Valle argues that the prosecutor transgressed these limits, but the
testimony elicited covers no more than the basic elements of the offenses with
which Valle's husband was charged. The jury consequently heard the evidence
pertinent to Valle's motive, but not the more salacious details that might have been
unduly prejudicial. Valle contends that the court could have permissibly limited the
prosecutor only to eliciting that Valle's husband was charged with a serious felony
with significant jail time, but the viability of this alternative does not undermine the
legality of what the trial court actually did.
              Because we conclude there was no error, we have no occasion to
consider Valle's further argument that evidentiary error violated her due process
rights. (People v. Partida (2005) 37 Cal.4th 428, 435-436.)
B. Expert Testimony
              Valle next contends that the trial court erred in allowing the
investigating officer to offer expert testimony that victims of violent crimes (such as
sexual assault) sometimes take longer to clearly recount the crime than the victims
of other crimes. She claims that this testimony is improper expert testimony and
irrelevant.
              Valle has forfeited her objection to this testimony as improper expert
testimony because she only objected to its relevance. (People v. Ward (2005) 36
Cal.4th 186, 211.) The investigator's testimony was not improper expert testimony
in any event. The speed with which crime victims are able to provide a more
detailed reconstruction of the victimizing incident is "sufficiently beyond common
experience" that expert testimony "would assist the trier of fact . . . ." (Evid. Code,
§ 801, subd. (a).) Valle argues that the investigator's opinion impermissibly told
jurors to believe Tamara over Valle, but it did no such thing. (Cf. People v.
Coffman & Marlow (2004) 34 Cal.4th 1, 82 & fn. 26 [expert opined that particular
witness was telling the truth].) Valle also contends that this expert opinion should


                                            4
have been excluded because the trial court did not permit her to elicit an expert
opinion regarding whether people sometimes exaggerate. Even if we accept Valle's
dubious premise that the erroneous exclusion of some evidence warrants the
exclusion of other, otherwise admissible evidence, the opinion Valle sought to elicit
regarding whether people sometimes exaggerate was properly excluded because it is
not "sufficiently beyond" the "common experience" of jurors. (Evid. Code, § 801,
subd. (a).)
               The investigator's testimony was also relevant. Indeed, it was elicited
in response to questioning by Valle regarding whether a witness's memory generally
improves or degrades over time. Valle's questions made it relevant to inquire
whether the memories of crime victims, particularly victims of violent crime, work
differently.
                              III. Instructional Challenge
               Valle asserts that the trial court erred in instructing the jury that it
could "consider her failure to explain or deny" evidence against her. (Jury
Instruction No. 361.) Valle contends that she explained or denied all evidence
against her when she testified, rendering this instruction improper. We need not
consider the propriety of this instruction because any error was harmless. By its
plain terms, the instruction only came into play if the jury determined Valle failed
to explain or deny evidence. Because this instruction only became relevant if the
jury found these factual predicates and would not apply if the jury did not (as Valle
claims is the correct conclusion), the instruction did not prejudice Valle. (People v.
Ballard (1991) 1 Cal.App.4th 752, 756-757.)
                                 IV. Cumulative Error
               Because we conclude that the trial court committed no prejudicial
error, there is no error to cumulate. (People v. Carpenter (1999) 21 Cal.4th 1016,
1064.)




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                                 DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         HOFFSTADT, J.*


We concur:



             GILBERT, P. J.



             PERREN, J.




              * (Judge of the Superior Court of Los Angeles County, assigned by
the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)



                                         6
                             Jean M. Dandona, Judge

                     Superior Court County of Santa Barbara

                       ______________________________


             The Law Office of John Derrick, John Derrick, under appointment by
the Court of Appeal, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.
