PEOPLE v. DILLARD (1996)

I. INTRODUCTION

Defendant, Adrian Dillard, appeals his conviction, after a jury trial, for one count of corporal injury to a co-habitant (Pen. Code 1 § 273.5), Stephanie Dillard.²  The jury also found true the allegations defendant had been convicted of two prior felonies within the meaning of section 667, subdivisions (a)(1) and (b) through (i).   Defendant was sentenced to a term of 25 years to life.   Defendant received 388 days of presentence custody credit consisting of 259 days of actual custody and 129 days of conduct credits. (§§ 2900.5, 4019.)   Defendant filed a timely notice of appeal from the judgment.

Defendant contends the trial court violated his state and federal constitutional rights by:  (1) permitting the prosecution to introduce opinion testimony on “battered women's syndrome” (“BWS”);  (2) refusing to provide him with an opinion witness to examine the victim to determine whether she actually suffered from BWS;  (3) directing a verdict on an essential element of the prior felony convictions within the meaning of section 667, subdivisions (b) through (i);  and (4) there was insufficient evidence he committed the prior felonies within the meaning of subdivisions 667, subdivisions (b) through (i).   We address the former two contentions in the published portion of the opinion.   In the unpublished portion of the opinion, we discuss the latter two contentions and defendant's arguments section 667, subdivisions (b) through (i) are not the proper subject for urgency legislation and cannot be applied to him because the prior convictions occurred before March 7, 1994.   Further, in the unpublished portion of the opinion, we discuss the arguments of the Attorney General concerning the jurisdictional error arising from the failure to impose the two section 667, subdivision (c)(1) enhancements as well as defendant's contention he is entitled to resentencing under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13, 53 Cal.Rptr.2d 789, 809, fn. 13, 917 P.2d 628, 648, fn. 13.

II. BACKGROUND

A. Introduction

 As shown below, the evidence in this case is conflicting because, by the time the case was tried, Ms. Dillard had recanted a number of statements she made to several people immediately after the incident occurred.   However, we view the testimony in a light most favorable to the judgment below.   (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908;  People v. Berryman (1993) 6 Cal.4th 1048, 1083, 25 Cal.Rptr.2d 867, 864 P.2d 40.)

B. Prosecution testimony concerning the crime, apart from that of Ms. Dillard

According to several witnesses and the statements made by Ms. Dillard to a number of people immediately after the incident, the jury could reasonably have found the following facts true.   The crime occurred on March 13, 1994.   Defendant and Ms. Dillard were later married on April 12, 1994.   In September 1993, prior to their marriage, Ms. Dillard and her three children moved in with defendant.   Also residing on the premises were defendant's mother and her boyfriend.   On March 13, 1994, Ms. Dillard put the children to bed at 7:30 p.m. and then drank about 40 ounces of Old English beer.   When one of defendant's friends knocked on the door, Ms. Dillard went outside on the porch.   She spoke with defendant's friend.   She told the friend defendant was not home.   She remained outside after defendant's friend left.   She was wearing short pants and a tank-top.   At about 8 p.m., two Hispanic men approached Ms. Dillard and began speaking to her is Spanish.   She did not understand what they were saying to her.   Defendant drove up as one of the men touched her leg.

On March 16, 1994, Ms. Dillard spoke with a friend named Kimberly Frazier.   Ms. Dillard stated that she had been “beat[en] up” by defendant.   Ms. Frazier examined Ms. Dillard and observed two black eyes, a cut lip, a swollen jaw, and two bruises.   On March 16, 1994, Detective Donald Mauk received a telephone call from Ms. Frazier.   Ms. Frazier stated Ms. Dillard had been beaten.   According to Ms. Frazier, the assailant was Ms. Dillard's boyfriend, defendant.   Ms. Frazier also indicated Ms. Dillard needed the services of a battered women's shelter.

Two detectives interviewed Ms. Dillard on March 16, 1994.   Ms. Dillard was reluctant to talk and was afraid defendant would find out she had spoken to the investigators.   Ms. Dillard had two black eyes and a bruise behind one of her ears.   She told them that on March 13, 1994, she had consumed 40 ounces of Old English Beer before defendant came home and observed the Hispanic man touching her leg.   Defendant pulled out a handgun and fired a single shot into the air.   The two men ran away.   Defendant and Ms. Dillard went into the house where she sat on a coffee table.   After they went into the house, defendant fired three more shots into the floor between Ms. Dillard's feet.   After firing the shots, defendant punched her in the mouth, cutting her lip.   Ms. Dillard then left the apartment, walked to Keith Royal's house, and explained to him what had happened.   Mr. Royal was her children's uncle.   According to Mr. Royal, she was crying and smelled of alcohol.   She stated that defendant had hit her for no reason.   After Mr. Royal told her she could stay with him, she went home to get her children.   However, upon returning home, defendant would not let her leave.   Defendant struck her with his fists in the face, head, and upper body.   When he attempted to choke her, she bit him on the arm.   She did not tell the detectives:  she took any medication;  she fell into the broiler;  or she hit herself in the face.

On March 17, Detective Mauk went to Ms. Dillard's home to search for the bullet holes.   She was upset with the detective for arresting defendant.   She attempted to misdirect Detective Mauk about the location of the bullet holes.   However, Detective Mauk found three holes in the carpet between the coffee table and the front door.   They were consistent with bullet holes.

C. Ms. Dillard's trial testimony

At the trial, Ms. Dillard told a significantly different version of the incident from that related by her immediately after the incident.   She testified that defendant arrived home and observed the Hispanic man's hand on her leg.   She stated defendant got out of the car and went inside the house without saying anything to the two men or to her.   She denied telling anyone that defendant pulled out a gun and fired a shot into the air, or that he fired any shots between her legs after she followed defendant into the house.   After she and defendant went into the house, they went upstairs and started arguing.   Defendant was upset because the man touched her leg.   She was upset because she had received a telephone call from defendant's ex-girlfriend, a woman named Jade.   Ms. Dillard testified she jumped up from where she was sitting on the coffee table and, in her words, got “in [defendant's] face.”   Defendant placed the palms of his hands on Ms. Dillard's shoulders to hold her away from him.   Defendant then pushed her and she fell over the coffee table, cutting her lip on a bedpost.

Ms. Dillard then left the apartment and went to Mr. Royal's house.   She told Mr. Royal that she and defendant had been in a fight.   Ms. Dillard testified that she did not tell Mr. Royal defendant had punched her.   Mr. Royal told her to go home, get her children, and come back to his house.   Ms. Dillard stated she left but did not return to Mr. Royal's residence that night.

Ms. Dillard returned home and woke up the children.   When she took out a stroller for the baby, defendant told her that she was not going anywhere with the children.   Ms. Dillard testified she yelled at him and told defendant he could not tell her what to do with her children.   Ms. Dillard stated she then punched him as hard as she could in his eye.   She kicked him in the groin area and tried to run out the back door.   Defendant chased after her and attempted to hold the door closed.   When he asked her to talk to him, Ms. Dillard turned around and bit defendant on the arm.   She then turned around to run, but fell and hit her face on the stove.   When she got up, defendant tried to hug her to calm her down.   She yelled at him and pushed him away from her.   She sat in a chair in the bedroom.   Ms. Dillard testified she then hit herself numerous times in the face with her fists.

According to Ms. Dillard, she had a long history of self-destructive behavior which began when she was approximately 12 years old after her foster parents put her in a mental hospital.   She subsequently injured herself by burning herself with cigarettes and attempting to commit suicide several times.   On the evening in question, she punched herself in the face injuring both her eyes.   She did not remember how she sustained the bruises on her breast and arm, but guessed that they occurred when she fell down when she was drunk.   Ms. Dillard also testified that she had difficulty recalling the events of the evening because she did not drink often and, in addition to drinking 62 ounces of Old English beer, she had taken depression medication, including lithium and wellbutrin.   The medication was prescribed by Dr. Jacqueline Green, who had been treating Ms. Dillard since a suicide attempt in November 1993.   After the argument ended with defendant on March 13, 1994, Ms. Dillard went for a walk to the liquor store.   Defendant came by in a car.   The two of them went for a drive to talk about their problems.   They returned home and had sexual relations before going to sleep.

Ms. Dillard also admitted that she told Detective Mauk:  defendant punched her in the face which caused her to fall and cut her lip;  defendant had pulled a gun on her when they had an argument in November 1993;  and defendant punched and choked her when she returned from Mr. Royal's house.   However, she claimed the statements were lies.   Ms. Dillard testified she was afraid that if Detective Mauk found out she had hit and kicked defendant, she might go to jail.   She also feared she would lose her children because they were already wards of the court at the time.   She also claimed she lied to Ms. Frazier out of a desire for sympathy and would have felt stupid telling her she was drunk and hit herself in the face.

D. The Testimony of Gail Pincus

Prior to trial, defense counsel moved in limine to prohibit the prosecution from introducing opinion testimony concerning BWS.   Defense counsel argued that the testimony was irrelevant to prove defendant committed the crime charged primarily because there was no evidence Ms. Dillard suffered from BWS.   The trial court denied the motion and admitted the evidence.   At the trial, the prosecution called Gail Pincus to testify concerning BWS.

Ms. Pincus testified that BWS exhibited a “cycle of violence” which consisted of three phases.   The first and longest was called the “tension rising” phase.   The phase was generally characterized by a very intense and romantic “coming together” where the woman was “swept off [her] feet” and became emotionally committed to the man.   Once they start living together, he began with a low level criticism of things such as the way she cooked, dressed, or managed money.   He tried to isolate her from friends and family.   She would become more dependent upon the man both emotionally and in many cases economically.   It was very important to the man that he feel like the “king of the castle.”   Further, according to Ms. Pincus, how obedient the woman would be to him defined how he felt as a man.   As the man gained more control and the woman became increasingly dependent on him and isolated from her family and friends, she would become very depressed.   While the tension increased inside of him, the criticism eventually escalated with calling the woman names.   Sometimes there would be intimidation by the man's size, by screaming, or by kicking objects as the tension continued to build.

At this point the man would be getting close to violence which was described as the second phase.   When he decided to cross the line to violence, it usually began with shoving, slapping, hair pulling, or slamming the woman up against a wall.   The batterer then advanced to kicks, punches with closed fists, actual beatings, multiple blows, threats with knives and guns, and sometimes murder.   After the first incident of violence, the woman was in shock because she could not believe that the man would hurt her.   Once the battering stopped, the tension disappeared and he actually began to feel a sense of relief.   He may also feel powerful.   However, because he feared the consequences, he would tell the woman he cannot believe what he did.

During this third or honeymoon phase, the man would minimize his actions and may even blame the woman and tell her she either caused him to act or contributed to her injuries to some degree.   He would reassure her that he would never hurt her and that he loved her.   The woman would tend to believe him because that is what she wanted to hear.   A battered woman had the propensity to separate each incident and view them as isolated events rather than see them collectively as a pattern of conduct which was dangerous to her.

Ms. Pincus testified that it was very common for a battered woman not to call the police due to the honeymoon cycle.   The victim would tend to leave five to seven times before leaving for good or calling the police.   Many times it was family, friends, or neighbors who would actually call the police.   According to Ms. Pincus, self-blame was very much a part of BWS.   In hoping everything will be better, the battered woman commonly will try to figure out why the man acted the way he did and to blame his background.   She would also develop compassion for him.   When he asked for forgiveness, she would believe his promise that everything was going to be all right and viewed everyone else including the police and prosecutors as the enemy.   It was very common for the a battered woman to recant her allegations of violent conduct by the man.

III. DISCUSSION

A. Opinion Testimony Concerning BWS

 Defendant contends the trial court committed prejudicial error, in violation of federal and state law, by permitting the prosecution to introduce opinion testimony on BWS.³  Generally, a witness may render an opinion based on special skill, training, knowledge, or experience if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact․”  (Evid. Code § 801 ⁴ , subd. (a).)  The trial court's decision to admit opinion testimony “ ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ ”  (People v. McAlpin (1991) 53 Cal.3d 1289, 1299, 283 Cal.Rptr. 382, 812 P.2d 563 quoting People v. Kelly (1976) 17 Cal.3d 24, 39, 130 Cal.Rptr. 144, 549 P.2d 1240.)   As our Supreme Court explained in People v. McAlpin, supra, 53 Cal.3d at pages 1299–1300, 283 Cal.Rptr. 382, 812 P.2d 563:  “ ‘[T]he admissibility of expert opinion is a question of degree.   The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission;  if that were the test, little expert opinion testimony would ever be heard.   Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury.   It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.”  [Citation.]’ ”  For the reasons stated below, we find no abuse of discretion occurred in admitting the evidence under the circumstances of this case.

Our Supreme Court has defined the term BWS as:  “ ‘a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives' ”;  “ ‘ “a pattern of psychological symptoms that develop after somebody has lived in a battering relationship” ’ ”;  or “ ‘a “pattern of responses and perceptions presumed to be characteristic of women who have been subjected to continuous physical abuse by their mates[s].” ’ ”  (People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1, 35 Cal.Rptr.2d 270, 883 P.2d 388.) Limited opinion testimony on BWS evidence is admissible in California by statute which is embodied in Evidence Code section 1107 which provides:  “(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women's syndrome, including the physical, emotional, or mental effects upon 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. [¶] (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness.   Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven. [¶] (c) For purposes of this section, ‘abuse’ is defined in Section 6203 of the Family Code and ‘domestic violence’ is defined in Section 6211 of the Family Code. [¶] (d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.”   There are two clauses in Evidence Code section 1107, subdivision (a), one which provides for the limited admissibility of BWS;  the second clause which prevents the use of such testimony under certain circumstances.   As to the first of the two clauses, opinion testimony is admissible regarding BWS concerning “the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence․”  (Evid. Code, § 1107, subd. (a).)  However, the second clause provides BWS evidence is not admissible “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.”  (Evid. Code, section 1107, subd. (a).)  In the present case, the testimony of Ms. Pincus related to the effects of BWS on women in general, not in connection with Ms. Dillard.   Further, Ms. Pincus offered no opinion concerning Ms. Dillard, defendant, or the charged crime.   Given the express terms of Evidence Code section 1107, subdivision (a), no abuse of discretion occurred.⁵

The parties also advert to other authority in California which was in effect prior to the adoption of Evidence Code section 1107.   This authority also is supportive of the trial judge's exercise of discretion.   In California, apart from the provisions of Evidence Code section 1107, opinion testimony on BWS has been held to be admissible to rehabilitate a witness' credibility or explain contradictions between testimony and prior statements to the authorities.  (People v. Day (1992) 2 Cal.App.4th 405, 415–420, 2 Cal.Rptr.2d 916.)   Opinion testimony on BWS may play a useful role is disabusing the jury of some widely held misconceptions about batterers and battered women so that the jurors may evaluate the evidence free of the constraints of popular myths.  (Id. at pp. 415–416, 2 Cal.Rptr.2d 916;  see also People v. McAlpin, supra, 53 Cal.3d at pp. 1300–1301, 283 Cal.Rptr. 382, 812 P.2d 563 [opinion testimony on child sexual abuse accommodation syndrome admissible to disabuse jurors of commonly held misconceptions about sexual misconduct directed at children].)   When enacted, the Legislature adopted a statement of legislative intent which noted that Evidence Code section 1107 was not intended to abrogate prior decisional or statutory authority concerning the admissibility of BWS evidence.   Specifically, section 2 of Assembly Bill No. 785 which enacted Evidence Code section 1107 stated, “The Legislature does not intend Section 1107 of the Evidence Code to preclude the admissibility of evidence of battered women's syndrome under other statutory or case law.”  (Stats.1991, ch. 812, No. 8 West's Adv. Legis. Service, p. 3182.)   Other jurisdictions and authority is in accord with California decisional authority.   According to a number of courts, the opinion testimony aids the jury because a battering relationship is a subject beyond the understanding of the average juror.  (Ibn–Tamas v. United States (D.C.1979) 407 A.2d 626, 631–639;  Smith v. State (1981) 247 Ga. 612, 277 S.E.2d 678, 683;  State v. Hodges (1986) 239 Kan. 63, 716 P.2d 563, 567, disapproved on another point in State v. Stewart (1988) 243 Kan. 639, 763 P.2d 572, 579;  State v. Hennum (Minn.1989) 441 N.W.2d 793, 798;  State v. Kelly (1984) 97 N.J. 178, 478 A.2d 364, 369–373;  People v. Torres (1985) 128 Misc.2d 129, 488 N.Y.S.2d 358, 362–363;  see also Annotation, “Admissibility of Expert or Opinion Testimony on Battered Wife or Battered Women Syndrome,” 18 A.L.R.4th 1153 (1982).)   As one court explained:  “Expert testimony on the battered woman syndrome would help dispel the ordinary lay person's perception that a woman in a battering relationship is free to leave at any time.   The expert evidence would counter any ‘common sense’ conclusions by the jury that if the beatings were really that bad the woman would have left her husband much earlier.   Popular misconceptions about battered women would be put to rest, including the beliefs the women are masochistic and enjoy the beatings and that they intentionally provoke their husbands into fits of rage.”  (State v. Hodges, supra, 716 P.2d at p. 567 citing L. Walker, The Battered Woman, 19–31 (1979).)

The above-cited authorities including Day and other cases in California which have considered the issue of admissibility of opinion testimony on BWS have done so in the context of self-defense claims by a woman claiming to be a battered woman.  (See People v. Romero, supra, 8 Cal.4th at p. 735, fn. 1, 35 Cal.Rptr.2d 270, 883 P.2d 388;  Doe v. Superior Court (1995) 39 Cal.App.4th 538, 543, 45 Cal.Rptr.2d 888;  People v. Day, supra, 2 Cal.App.4th at pp. 415–420, 2 Cal.Rptr.2d 916;  People v. Aris (1989) 215 Cal.App.3d 1178, 1185–1190, 264 Cal.Rptr. 167.)   A number of courts in other jurisdictions have considered the issue when prosecutors introduced opinion testimony to explain why the victim either recanted the facts surrounding the abuse, delayed reporting the assault, or remained with the defendant after the commission of the crime.  (E.g. Arcoren v. U.S. (8th Cir.1991) 929 F.2d 1235, 1239–1241 [opinion testimony on BWS provided explanation for jury on why victim recanted accusations of rape and beating by spouse];  State v. Borrelli (1993) 227 Conn. 153, 629 A.2d 1105, 1110–1115 [opinion testimony admissible to explain victim's recantation];  State v. Cababag (1993) 9 Haw.App. 496, 850 P.2d 716, 721–723 [testimony on BWS admissible where victim recanted accusation];  State v. Frost (App.Div.1990) 242 N.J.Super. 601, 577 A.2d 1282, 1286–1288 [evidence of BWS admissible to explain victim's conduct after the assault];  State v. Ciskie (1988) 110 Wash.2d 263, 751 P.2d 1165, 1169–1173 [testimony on BWS admissible to assist jury in understanding victim's delays in reporting rape and continuing relationship with defendant];  State v. Bednarz (App.1993) 179 Wis.2d 460, 507 N.W.2d 168, 170–171 [testimony on BWS properly admitted to provide explanation for victim's recantation of battery complaint];  see also J. Schroeder, “Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer,” 76 Iowa L.Rev. 553 (1991).)

In this case in admitting the evidence, the trial court stated:  “The prosecution has made an offer of proof that the alleged victim in this case has recanted and everybody seems to agree that that's the case that she recanted on her earlier statement.   And the evidence would be admissible to allow the jury to better judge the credibility of the victim and not whether or not the act did or not occur․”  We find no abuse of discretion under such circumstances.   No doubt, Ms. Dillard ultimately recanted her accusation that defendant had caused the numerous injuries she suffered.   However, immediately after the incident, she told several witnesses including two detectives that defendant was the perpetrator.   Furthermore, she married defendant after the incident occurred.   When asked how the injuries occurred, Ms. Dillard claimed she inflicted them on herself.   She even testified she punched herself in the eyes.   Given those circumstances, BWS was relevant to explain why she would recant her accusations against defendant and to rehabilitate the credibility of her initial claims she was assaulted by him.   Moreover, apart from relevancy considerations, as noted earlier, the testimony was admissible given the first clause of Evidence Code section 1107, subdivision (a) which specifically provides for the limited admissibility of opinion testimony concerning BWS.   Thus, the trial court could properly determine that testimony from Ms. Pincus on BWS would assist the jury in evaluating the evidence concerning Ms. Dillard's recantation.

 In addition, the trial court could properly, within the scope of its allowable discretion, reject defense counsel's claim the evidence was inadmissible because there was an insufficient foundation that Ms. Dillard was a battered woman.   As noted above, Evidence Code section 1107, subdivision (b) provides:  “The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness.   Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven.”   Defendant does not question Ms. Pincus's qualifications but contends there was insufficient evidence presented that Ms. Dillard was actually a battered woman.   Defendant reasons there was no evidence that he had ever assaulted his wife before March 13, 1994.   As noted above, the trial court could reasonably determine the opinion testimony on BWS was relevant to explain Ms. Dillard's recantation.   Moreover, rather than being an isolated incident, Ms. Dillard told Detective Mauk defendant pulled a gun on her in November 1993.   Ms. Frazier also testified that prior to the incident while she was talking to Ms. Dillard on the telephone.   Ms. Frazier heard a “slapping” sound and Ms. Dillard's daughter scream, “ ‘I said don't hit my mama.’ ”   Under such circumstances, there was a sufficient foundation to establish the evidence was relevant.⁶

 Prior to trial, defendant sought the appointment of a psychiatrist and a psychopharmacologist.   Defendant sought to have the psychiatrist testify as to whether Ms. Dillard was actually under the influence of BWS.   The court granted the request to compensate a witness, Ms. Dillard's psychiatrist, Dr. Jacqueline Green.   The sole issue raised by defendant is that Dr. Green was not appointed to determine whether Ms. Dillard was not suffering from BWS.   As in the earlier contexts concerning BWS, defendant raises federal constitutional contentions concerning the trial judge's rulings.   Those federal constitutional contentions were not raised in the trial court.   Hence, they have been waived and are the subject of a procedural default.  (People v. Rodrigues, supra, 8 Cal.4th at p. 1119, fn. 22, 36 Cal.Rptr.2d 235, 885 P.2d 1;  People v. Garceau, supra, 6 Cal.4th at pp. 173–175, 24 Cal.Rptr.2d 664, 862 P.2d 664.)   During a pre-trial hearing on the defendant's request to have a psychiatrist appointed, the prosecutor, Diana Teran, objected to the appointment of a psychiatrist to determine if, in fact, Ms. Dillard suffered from BWS.   Ms. Teran premised her argument on the theory that pursuant to Evidence Code section 1107, a witness could not testify on whether the victim actually was a battered woman but could only offer an opinion concerning the syndrome.   The following colloquy then occurred:  “The Court:  The syndrome is admissible but not the particulars.   He would have to have some expert on the point.  [¶] Ms. Teran:  We are introducing an expert to testify as to the battered women syndrome.   My understanding of counsel's experts, he wanted to have [the] victim interviewed to rebut that evidence and say she is not a battered woman.  [¶] My feeling [is] he can have another expert testify that my expert erred in her assessment of what the battered syndrome is but not to interview the victim to say she is not a battered woman.  [¶] The Court:  Anything in response?  [¶] David Mann [defense counsel]:  Confusing a woman who has been battered with a woman who has battered woman's syndrome.   The fact that a woman has been battered does not mean she has battered woman's syndrome.  [¶] It is incredible to believe that an expert can get up and testify as to the nature of battered woman's syndrome, but nobody can testify as to whether or not it applies in this particular case.  [¶] There will be an issue in the trial court at a 402 whether the People's expert can testify as to the syndrome without showing a relationship to this particular case.  [¶] The cases cited by counsel have allowed general testimony, but in all of those cases, the person claiming battered woman's syndrome was the defendant who is putting on his or her own expert․  [¶] In other words, someone who has access to the person who purportedly has battered woman's syndrome and can interview them and determine.   It was never an issue in the other cases because the roles are here reversed where we have somebody here who otherwise may not be interviewable.  [¶] Those cases only say that it is admissible generally, and that at least under those fact situations, it is not necessary that it first be proven that this particular person had battered woman's syndrome.  [¶] These were experts put on the defense claiming the defendant had battered woman's syndrome.   None of them dealt with a situation where the expert was going to testify as to the facts that whether or not this person had battered woman's syndrome.  [¶] No court has ever said that expert cannot testify.   What could be more relevant is to determine if this syndrome we are talking about applies to anybody in the case.  [¶] Otherwise, I might also ask for an expert on post traumatic stress syndrome.   Otherwise, about if the law were otherwise, I could certainly demand that the court allow me an expert on post-traumatic stress syndrome since if my client were to have such a syndrome, it would be relevant in a case such as this where he exhibited violent behavior.  [¶] Since I am guaranteed the prosecution cannot put on any experts or ask for any test to defeat the claim that my client has it, if we can't inquire there, then I will put on every expert who can testify as to a mental condition or syndrome which may be of interest to a jury under this fact situation without regard to whether anybody or not has such a syndrome or mental or emotional condition.”   Soon thereafter, the trial court granted defendant's request for the appointment of Dr. Green.   Defendant had previously abandoned his request for the appointment of Ronald Seigal, a psychopharmacologist.

 At the trial, during the hearing on defendant's in limine motion to exclude the testimony of Ms. Pincus, in reply to the trial court's inquiry about calling Dr. Green to testify, defense counsel stated:  “If battered women syndrome evidence is put on then, yes, we will have to call Dr. Green as to her opinion as to whether or not Ms. Dillard [ ] suffers from this condition.”   Defense counsel had previously advised the trial court that Dr. Green had “interviewed the victim, had counseled the victim and had given the opinion [Ms. Dillard] does not suffer from battered women syndrome.”   Thus, defense counsel indicated Dr. Green was prepared to offer opinion testimony concerning BWS.   Dr. Green was the witness who was appointed and offered extensive testimony during the trial.   Dr. Green testified that Ms. Dillard was taking lithium and wellbutrin to treat depression and mood swings.   According to Dr. Green, if Ms. Dillard took the medication with alcohol she would more than likely stumble around and suffer blackouts.   Dr. Green believed Ms. Dillard when she told her defendant did not beat her.   However, Dr. Green admitted she had not had any BWS training and had only dealt with a few women who were suffering from the syndrome.   The fact that Dr. Green was not a highly experienced professional in the field of BWS is not evidence of any abuse of discretion by the trial court.   There is nothing in the record to suggest defendant ever requested the appointment of any witness other than Dr. Green to offer BWS testimony.   The record simply does not support defendant's claim the trial court refused to appoint a witness to offer evidence on BWS and it, in fact, demonstrates the contrary.

 Nonetheless, defendant erroneously asserts he was entitled to have a medical professional appointed to examine Ms. Dillard and to testify about whether she was in fact a battered woman.   Our Supreme Court has established the following general rule concerning the scope of opinion testimony by a properly qualified professional:  “[W]here the sole purpose of the psychiatric examination and testimony relates to the credibility of a witness, the psychiatrist may not testify to the ultimate question of whether the witness is telling the truth on a particular occasion.”  (People v. Ainsworth (1988) 45 Cal.3d 984, 1012, 248 Cal.Rptr. 568, 755 P.2d 1017;  People v. Castro (1994) 30 Cal.App.4th 390, 396, 35 Cal.Rptr.2d 839, overruled on another point in People v. Martinez (1995) 11 Cal.4th 434, 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037.)   The trial court could reasonably refuse to appoint a properly qualified professional solely to testify Ms. Dillard was not a battered woman because to do so the witness would, in essence, have been testifying about whether the recantation was truthful.

By analogy in People v. Bledsoe (1984) 36 Cal.3d 236, 247–251, 203 Cal.Rptr. 450, 681 P.2d 291, the California Supreme Court determined that while opinion testimony on rape trauma syndrome was admissible to support the credibility of a witness, it was inadmissible to prove that the alleged victim was, in fact, raped.   In People v. McAlpin, supra, 53 Cal.3d at pages 1300–1301, 283 Cal.Rptr. 382, 812 P.2d 563, a child sexual abuse case, our Supreme Court reiterated the Bledsoe rule by holding opinion testimony on child sexual abuse accommodation syndrome was admissible to rehabilitate a witness' credibility but was inadmissible to prove the complaining witness was in fact sexually abused.  (Accord People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097–1100, 215 Cal.Rptr. 45.)   As the Court of Appeal in People v. Roscoe, supra, 168 Cal.App.3d at pages 1099–1100, 215 Cal.Rptr. 45, so aptly explained:  “Bledsoe, ․ allows expert testimony for certain purposes other than to establish defendant's guilt, such as to support the victim's credibility.   But should we read Bledsoe to mean that in support of credibility a psychologist may testify in detail about the specific facts in the case at hand, informing the jury of his diagnosis that the complainant was the victim of a sexual assault?   To answer this, we look first to the exact language of the decision.   The Bledsoe court would permit the expert to tell the jury about ‘recent findings of professional research on the subject of a victim's reaction to sexual assault’ to rehabilitate the complaining witness.  [Citation.]  The language suggests—although it does not explicitly require—that the opinion testimony must be based upon the literature in the field and the general professional experience of the witness rather than upon an analysis and diagnosis based upon a review and evaluation of the facts in the case at hand.   Thus, for example, a victim whose credibility is attacked for initially denying that he had been molested could be rehabilitated by expert testimony that such denials are more likely than not than in molestation cases.   The testimony would not be that this particular child was a victim of molestation, causing him to react in a certain way, but rather that as a class of victims of molestation typically make poor witnesses, and are reluctant to disclose or discuss the sordid episodes.  [¶] Since the language used by the court does not clearly proscribe testimony in support of credibility based upon a diagnosis of the victim, we must consider Bledsoe further.  [¶] Credibility questions arise whenever the defendant denies the victim's story, explicitly or implicitly suggesting misrecollection or fabrication.   If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest victim (or rape victim, or whatever), then the protection against misuse of psychologists' testimony erected by Bledsoe would be largely dismantled.   [¶] Where the expert refers to specific events, people, and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred.   The jury in effect is being asked to believe the diagnosis, to agree that the doctor's analysis is correct and that the defendant is guilty.   Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe.   It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant's credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand.”  (Original italics, fns. omitted.)

 Likewise, in this case, the only logical recourse is to extend the Bledsoe rule to encompass opinion testimony on BWS.   In other words, the discussion by the properly qualified witness on BWS must be limited to a class, supported by the usual references to literature and experience, and should not extend to discussions or diagnosis of the particular victim and ultimately a conclusion as to whether the assault occurred.  (People v. McAlpin, supra, 53 Cal.3d at pp. 1300–1301, 283 Cal.Rptr. 382, 812 P.2d 563;  People v. Bledsoe, supra, 36 Cal.3d at pp. 247–251, 203 Cal.Rptr. 450, 681 P.2d 291;  People v. Roscoe, supra, 168 Cal.App.3d at pp. 1099–1100, 215 Cal.Rptr. 45;  see also State v. Schaller (App.1995) 199 Wis.2d 23, 544 N.W.2d 247, 250–253 [trial court acted within its discretion in refusing defense request for expert on BWS to examine victim who recanted].)

 The opposite is likewise correct.   Like as the prosecution, a defendant may offer opinion testimony on disputed issues concerning BWS.   However, a defendant may not present opinion testimony that a victim does not suffer from BWS, any more than the prosecution may offer testimony that the victim suffered from BWS.   Here, the prosecution's witness was not a psychiatrist or psychologist and she did not examine Ms. Dillard.   Ms. Pincus testified that based on her experience with cases of domestic abuse it was common for women in battering relationships to recant accusations of battery by their spouses.   Thus, Ms. Pincus did not offer evidence that Ms. Dillard suffered from BWS.   Ms. Pincus did not offer any observations of Ms. Dillard that were consistent with the behavior of women with BWS. Resolution of this issue was quite properly left with the jury.   Furthermore, both the trial court and the prosecutor accurately pointed out to defense counsel that defendant was entitled to have his own witness present evidence on BWS to counter the prosecution's evidence on the victims of the syndrome as a class.   As noted above, defendant advised the trial court he intended to have Dr. Green present that BWS evidence.   Therefore, defendant has not established the trial court abused its discretion in any way.⁷

Apart from the non-existent abuse of discretion issue in connection with the appointment of Dr. Green, we wish to emphasize another question which this case does not present.   At no time in the trial court did defendant attempt to introduce evidence he was not a person possessing the character or psychological traits of an aggressor in the BWS scenario.   In other words, no request was made for the appointment of a professional to testify defendant was not a batterer, if such a psychological profile exists.   No doubt, a court in exercise of its discretion may permit the introduction of such evidence under appropriate circumstances.  (People v. McAlpin, supra, 53 Cal.3d at pp. 1307–1310, 283 Cal.Rptr. 382, 812 P.2d 563;  People v. Stoll (1989) 49 Cal.3d 1136, 1152–1155, 265 Cal.Rptr. 111, 783 P.2d 698.)   However, no such request was made in this case and it is not an issue raised in this appeal.

III(B)-III(F)***

IV. DISPOSITION

The judgment of conviction is affirmed. The sentence is reversed. The cause is remanded for resentencing as discussed in the unpublished portion of this opinion.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   The victim was known as Stephanie Rick at the time of the crime.   By the time of the trial she and defendant had married.

3.   To the extent that defendant infers federal constitutional error may have occurred, his claims have been waived by his failure to raise the issues in the trial court.  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1119, fn. 22, 36 Cal.Rptr.2d 235, 885 P.2d 1;  People v. Garceau (1993) 6 Cal.4th 140, 173–175, 24 Cal.Rptr.2d 664, 862 P.2d 664.)   Defendant is procedurally defaulted from raising all of his federal constitutional contentions.

4.   Evidence Code section 801 provides:  “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

5.   Both Assembly and Senate Legislative committee reports indicated that Evidence Code section 1107 was intended to permit opinion testimony from a properly qualified witness concerning BWS generally, but not “to prove the occurrence of the act or acts of abuse where such act or acts form the basis of the criminal charge.”  (See, report prepared for Assem. Com. on Public Safety (Assem. Bill No. 785) April 9, 1991, p. 1;  report prepared for third reading by Office of Sen. Floor Analyses, Sen. Rules Com. (Assem. Bill No. 785) Aug. 30, 1991, p. 2.)

6.   A report prepared for the Assembly Committee on Public Safety indicated one of the uses of BWS opinion testimony contemplated by Evidence Code section 1107 was to explain why a spousal abuse victim would recant a prior complaint or refuse to attend a trial.  (See report prepared for Assem. Com. on Public Safety (Assem. Bill No. 785) April 9, 1991, p. 2.)

7.   Furthermore, we disagree with defendant that People v. Aris, supra, 215 Cal.App.3d at pages 1198–1199, 264 Cal.Rptr. 167, requires a different result because it concluded that BWS testimony is admissible, both in general and as it applies to a specific defendant.  Aris did not consider nor decide the precise issue in this case which was whether a trial court should appoint an properly qualified witness solely to determine and testify whether a witness actually has been battered when her credibility has been explicitly or implicitly questioned.   Such a determination would conflict with the Supreme Court's holding in People v. Ainsworth, supra, 45 Cal.3d at page 1012, 248 Cal.Rptr. 568, 755 P.2d 1017.   It should also be noted that in stating a witness could testify the defendant was a battered woman, Aris did not cite any authority to support the proposition nor did the opinion discuss the Bledsoe rule.

FOOTNOTE.   See footnote *, ante.

TURNER, Presiding Justice.