Filed 2/2/21 P. v. Waltz CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B295624
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074139)
v.
DANIEL PAUL WALTZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David Hizami, Judge. Affirmed in part,
reversed, and remanded with directions.
Alan E. Spears under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Noah P. Hill, Acting
Supervising Deputy Attorney General, Steven E. Mercer, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
INTRODUCTION
Daniel Paul Waltz was convicted after a jury trial of
willfully inflicting corporal injury resulting in a traumatic
condition upon his girlfriend, Tracy B.,1 (Pen. Code, § 273.5, subd.
(a)), disobeying a domestic violence restraining order (§ 166,
subd. (c)(4)), and misdemeanor contempt of court for violating a
protective order (§ 166, subd. (c)(1)).2
Waltz contends on appeal the trial court improperly
admitted lay witness testimony from law enforcement officers
about their personal experiences with bruises, improperly
admitted as impeachment evidence Waltz’s prior convictions for
contempt of court and spousal battery, and improperly excluded
character evidence about Tracy. He also claims the court
improperly imposed a $500 domestic violence fee, and restitution
fines and court fees should be stricken for lack of evidence of his
ability to pay them.
As the prosecution concedes, the $500 domestic violence fee
should be stricken because Waltz was not granted probation. We
also conclude Waltz is entitled to a hearing on his ability to pay
the court assessments and restitution fines. In all other respects,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Charges
In an amended information, the Los Angeles County
District Attorney charged Waltz with felony injury to a spouse,
1 To protect her privacy rights, we use the victim’s first name
and last initial. (See Cal. Rules of Court, rule 8.90(b)(4).)
2 Undesignated statutory references are to the Penal Code.
2
cohabitant, fiancée, boyfriend, girlfriend, or child’s parent
(§ 273.5, subd. (a), count 1); felony violation of a domestic violence
court order with a prior conviction (§§ 166, subd. (c)(4), 667.5,
subd. (b), count 2); and misdemeanor contempt of court for
violation of a protective order and stay away order (§ 166, subd.
(c)(1), count 3).
Waltz pleaded not guilty to each count and denied all
special allegations.
The case proceeded to a jury trial in November 2018.
B. The Prosecution’s Case
Tracy and Waltz dated on and off for about 10 years
and have two children together. Tracy had restraining orders
issued against Waltz in 2014, 2016, and 2018 based on his violent
behavior toward her. Tracy and investigating law enforcement
officers from the Los Angeles County Sheriff’s Department
testified in the People’s case-in-chief concerning several incidents
of domestic violence involving her and Waltz.
1. Prior domestic violence incidents involving
Tracy and Waltz
a. The September 2013 incident
In September 2013, the police were called to Tracy’s
apartment. She and Waltz had been drinking alcohol and got
into a loud argument that involved “a lot of yelling and
screaming.” Waltz grabbed Tracy by her upper arms and was
“shaking [her] against the kitchen counter.”
3
When Detective Patrick Reader responded to the call to
Tracy’s apartment, Waltz told Tracy not to open the door.3 She
was afraid Waltz would hurt her even more. Therefore, Tracy
told Reader she and Waltz only had a verbal argument, and
Waltz had not physically touched her.
The next day, Tracy went to the sheriff’s station to report
Waltz’s actions. She told Reader what had actually happened
and stated she was afraid of Waltz and wanted him out of her
house. When Reader took Tracy’s report, he observed bruises on
her arms. He had also observed the day before that Tracy was
intoxicated.
b. The December 2014 incident
In December 2014, a restraining order had been issued
against Waltz with Tracy as the protected individual. When
Tracy arrived home one day in December 2014, Waltz was there.
He chased Tracy upstairs toward her front door; Tracy could not
close the door fast enough, and Waltz “slammed” her into the wall
next to the front door, causing a bruise on her side. Tracy fell to
the floor and Waltz began hitting her until a passerby came up
the stairs, grabbed Waltz, and pulled him out of Tracy’s
apartment, allowing Tracy to escape inside the apartment and
lock the door.
Deputy Joshua Myatt responded to Tracy’s apartment and
observed Tracy had a half inch red mark under her right eye.
Waltz was outside the apartment complex and appeared upset
and angry. Myatt did not see that Waltz had any injuries.
3 All law enforcement deputies involved in the relevant
incidents were from the Los Angeles County Sheriff’s
Department.
4
c. The September 2016 incident
In September 2016, Tracy had a restraining order against
Waltz, but she allowed him to spend the night with her. Tracy
and Waltz drank alcohol and had sexual intercourse, during
which Waltz punched Tracy in the face and head, called her
names, told her she disgusted him, and accused her of cheating
on him.
Tracy called the police, and Deputy James Chow
responded. He observed that Tracy was intoxicated and had
redness and swelling on the right side of her face. Chow found
Waltz in bed under a blanket. When Chow lifted the blanket,
Waltz said, “I did not touch her.” Tracy obtained a new
restraining order against Waltz on December 14, 2016.
d. The March 2018 incident
In March 2018, although Tracy had a restraining order
against Waltz, she allowed him to spend the night with her and
agreed to give him a haircut. Waltz grew angry about how Tracy
was cutting his hair and became “very loud and aggressive,”
screaming at her that she was doing it wrong. He pinned Tracy
against a counter while squeezing her face and “screaming nose
to nose.” Tracy called the police, and Deputy Cody Larocco
arrived. Waltz waived his Miranda rights and acknowledged he
knew that Tracy had a restraining order against him. Tracy
obtained another restraining order against Waltz on March 29,
2018.
2. Tracy’s April 2016 fight with a different
romantic partner
In April 2016, Tracy fought and argued with Adrian Adler,
whom she had briefly dated after breaking up with Waltz. After
5
Tracy and Adler had split up, Adler chased Tracy when she was
walking home past his house and grabbed her arm. Tracy
screamed “rape” a few times to scare Adler into letting her go.
She swung her purse at Adler and hit his car, and she may have
ripped his shirt. The police arrived and arrested Tracy.4
3. The June 2018 incident upon which the charges
against Waltz were based
On June 24, 2018, Waltz arrived at Tracy’s apartment
around 10:00 a.m. and pounded on her door. Tracy had a
restraining order against Waltz at the time. She had not invited
Waltz to come over to her apartment. Tracy had used
methamphetamine the day before and could not remember
whether she had also drunk alcohol that day.
When Tracy opened the door, Waltz was yelling and
screaming at her about a cell phone he thought she had, and he
seemed to be “a little out of control.” He refused to leave when
Tracy asked him to do so. Waltz shoved Tracy to the floor after
she called him a name. Her arm hit a doorknob when she fell.
Waltz then kicked and stomped on her legs, arms, and hands.
Tracy tried to kick Waltz once or twice to defend herself, as he
continued to yell and kick her.
Waltz then grabbed Tracy by her arms, pulled her down the
hallway, and “propped” her up with pillows in a cubbyhole in the
hallway. Waltz said, “Why did you make me do that? I’m not
going back to jail.” Tracy was crying, and she was “terrified.”
4 After Waltz had testified, and before the defense rested, the
jury was informed that the prosecutor and defense counsel
stipulated that, as a result of the April 2016 incident, Tracy was
convicted of misdemeanor domestic violence battery against
Adler.
6
She asked Waltz to let her call an ambulance because she
thought her legs could be broken. Waltz paced back and forth
with a bandana in his hand and mumbled incoherently. Waltz
left to take a shower, but then returned, knelt next to Tracy and
said, “Sorry, but I have to do this. I’m not going back to jail.” He
then placed the bandana around Tracy’s neck and started pulling
on it, squeezing the front of Tracy’s neck. Tracy tried to yell, but
she was not able to breathe and felt her voice was hoarse. Waltz
then stopped pulling on the bandana and told Tracy to stay
where she was. Tracy took Waltz’s backpack and dumped the
items in it onto the floor to find the cell phone he had been
screaming about, but Waltz said the phone in his backpack
wasn’t the right one. After Waltz repacked the backpack, Tracy
threw it out the front door and tried to shut the door after Waltz
went to retrieve the backpack. When Waltz returned to the
apartment, Tracy managed to get out of the apartment while
Waltz remained inside.
Eventually, Waltz left the apartment, and Tracy returned
to it, cried for a while, then found her cellphone and called 911.
In 911 calls that were played for the jury, Tracy described what
had happened and stated that she had a restraining order
against Waltz.
Police officers responded to Tracy’s apartment and found
her leaning against the door to hold herself up. Deputy Thomas
Maxwell, one of the responding officers, testified Tracy’s voice
was very hoarse and she had difficulty speaking; and she did not
appear intoxicated. Maxwell did not notice visible injuries to
Tracy’s neck or body although she complained of pain. The
officers interviewed Tracy and photographed her neck, arms, and
7
legs. The photographs taken at that time showed Tracy had
sustained bruises on her arms and legs.
The officers called an ambulance, and Tracy was taken to a
hospital. Photographs taken at the hospital showed marks on
her neck and marks and bruises on her arms and legs.
After Tracy returned to her apartment from the hospital
around midnight, Waltz came back to the apartment and
pounded on the door while yelling her name. He sounded angry,
so Tracy called 911 without answering the door.
Deputy Travis Fridenstine responded and found Waltz
outside the apartment banging on Tracy’s door and yelling for her
to let him in. Fridenstine observed and photographed bruising in
three areas on Tracy’s left arm, but he did not notice any marks
on Tracy’s neck. Fridenstine testified Tracy did not show signs of
alcohol or methamphetamine impairment. He also took a
photograph of a bandana under the apartment’s balcony.
Waltz was detained, and he waived his Miranda rights.
Waltz acknowledged that Tracy had a restraining order against
him and admitted he had argued with her at the apartment
earlier that evening, but he denied he had assaulted Tracy.
Waltz had no visible injuries and did not claim that Tracy had
assaulted or hit him.
C. The Defense Case
Waltz testified that Tracy began drinking heavily a few
years into their relationship. He described her behavior when
drinking as “angry,” “controlling,” “loose, immoral, violent, [and]
overbearing.” Waltz expressed anger towards Tracy “a few
times,” “by yelling.”
Waltz acknowledged that he violated orders to stay away
from Tracy “a couple times,” but “not like the way [the prosecutor
8
was] saying it.” Waltz stated he violated the orders because he
wanted to see Tracy and “wanted to make sure that she was
okay.” Tracy would also call him, and Waltz would come over,
although he knew a court order was in place.
Waltz acknowledged five prior convictions for (1)
misdemeanor spousal battery (§ 243, subd. (e)(1)) on
December 23, 2014; (2) felony contempt of court (§ 166, subd.
(a)(4)) on December 23, 2014; (3) misdemeanor contempt of court
for violation of a domestic violence protective order (§ 166, subd.
(c)(1)) on July 14, 2015; (4) misdemeanor contempt of court for
violation of a domestic violence protective order (§ 166, subd.
(c)(1)) on August 16, 2016; and (5) felony violation of a domestic
violence protective order (§ 166, subd. (c)(4)) on December 14,
2016. Waltz testified that in each of the instances he was
convicted of contempt for violation of a protective order Tracy had
invited him to come to see her. Waltz acknowledged that he got
angry when men called Tracy because he assumed she was
cheating on him.
Waltz denied grabbing Tracy by the forearms in 2013 and
causing her to experience pain and to sustain bruises.
Waltz testified that in August 2014, Tracy invited him to
her home, but when he arrived, she asked him to leave and called
the police. According to Waltz, Tracy wanted to “get drugs.” He
did not want to leave because he felt Tracy was “not acting right,”
and “something was amiss.” Waltz explained that he got upset
with Tracy but in a “concerned manner,” not a “mean manner.”
Waltz denied pushing Tracy into a wall in December 2014.
According to him, Tracy opened the door and was “out of control”
when a neighbor walked in and pulled Waltz out of the house.
9
Waltz testified that with respect to the incident in August
2016, Tracy had been drinking heavily and “acting odd” when
they argued. Tracy was “up to her old ways,” which Waltz
described as “doing drugs, having men call her all the time on her
phone, not acting trustworthy.” Waltz denied hitting Tracy or
having any physical contact with her that day.
Waltz denied that he hit Tracy while they were having sex
in September 2016 and that he hid under a blanket afterwards.
Waltz claimed he was either sleeping or in the bathroom when
the police arrived, and he was not trying to conceal himself.
Waltz testified he was the victim in the June 2018 incident,
and he was not violent toward Tracy in any way. Tracy called
him and asked him to “keep her company” and to protect her in
case a man named “Peshi,” who was staying with Tracy at the
time, became violent. Waltz arrived at Tracy’s apartment after
midnight, and he knew he was violating a restraining order.
Waltz was heartbroken “about what [Tracy] had been doing.”
Tracy was alone, and Waltz knew she had been drinking because
she was “violent” and “moody.” Waltz did not see Tracy use drugs
or drink alcohol that day, although she showed him a drug pipe
made from a light bulb that had residue in it.
Waltz testified Tracy “could not handle the guilt” related to
his heartbreak over her behavior, so she “attacked” him and got
“progressively more mean, more worse about it.” Waltz claimed
Tracy kicked him, lost her balance when he blocked her kick with
his leg, fell into the closet doorjamb, and “blacked out.” When she
regained consciousness, Tracy’s eyes would not focus, and she
said, “You broke my leg.” Waltz testified he did not stomp on
Tracy’s leg, and Tracy was hallucinating. He felt “pretty sure
that I had consoled her, made her content.”
10
Waltz picked up Tracy, pulled her to a bedroom door to “sit
and just be comfortable,” and brought her cushions and a cold
drink. At that point, Tracy stated she was going to call the
police, and Waltz replied, “You shouldn’t do that because you
attacked me. I didn’t attack you.”
While Waltz was taking a shower, Tracy dumped his
belongings on the floor and told him she had called the police.
Waltz left the apartment because Tracy was “running around the
apartment trying to keep me from getting my things,” and she
was “erratic” and “violent.” He “wanted to get away from her as
soon as possible” and felt leaving “would be the best thing due to
her behavior.”
Waltz denied choking Tracy with a bandana or stomping on
her legs. Although Tracy was hitting and kicking him, Waltz
testified he never fought back or forcibly touched her in any way.
Waltz subsequently returned to Tracy’s apartment to
retrieve his cell phone and a Star Wars movie. Tracy did not
respond to his loud knocking and ringing of the doorbell, so he
left and then returned a third time before 2:00 a.m.
D. The Jury Verdict and Sentencing
In a bifurcated proceeding out of the jury’s presence on
November 20, 2018, Waltz admitted to: (1) a prior misdemeanor
conviction for willfully violating a court order (§ 166, subd. (a)(1));
(2) a prior felony conviction for violating a court order within
seven years of a previous violation that involved violence or a
“credible threat” of violence (§ 166, subd. (c)(4)); and (3) a prior
prison term within the meaning of section 667.5.
On November 21, 2018, the jury found Waltz guilty on all
three counts.
11
On December 20, 2018, the trial court denied probation and
sentenced Waltz to five years, eight months in state prison,
consisting of the upper term of four years on count 1 (§ 273.5,
subd. (a)) plus a one-year enhancement for a prior prison term
(§ 667.5, subd. (b)), eight months on count 2 (§ 166, subd. (c)(4)) to
run consecutively with count 1, and 364 days on count 3 (§166,
subd. (c)(1)) to run concurrently with count 1, with 360 days of
custody and conduct credits.
The trial court imposed a $1,500 restitution fine (§ 1202.4,
subd. (b)); a $120 court operations assessment (§ 1465.8, subd.
(a)(1)), a $90 criminal conviction assessment (Gov. Code, § 70373,
subd. (A)), a $1,500 parole revocation fine that it stayed. The
trial court also imposed a $500 domestic violence fund fee
pursuant to section 1203.097, subdivision (a)(5). Waltz was
served with a new 10-year domestic violence criminal protective
order barring him from any contact with Tracy.
Waltz timely appealed the judgment.
DISCUSSION
A. Standard of Review
“A trial court’s ruling on the admission or exclusion of
evidence is reviewed for abuse of discretion.” (People v. DeHoyos
(2013) 57 Cal.4th 79, 130-131; accord People v. Cowan (2010) 50
Cal.4th 401, 462.) “A trial court’s exercise of discretion will not
be disturbed unless it appears that the resulting injury is
sufficiently grave to manifest a miscarriage of justice. [Citation.]
In other words, discretion is abused only if the court exceeds the
bounds of reason, all of the circumstances being considered.
[Citation].” (People v. Stewart (1985) 171 Cal.App.3d 59, 65;
accord People v. Lewis (2009) 46 Cal.4th 1255, 1286 [“A reviewing
12
court will disturb the trial court’s determination on the
admissibility of evidence only if it “‘“exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.” [Citation.]’”].)
We review questions of law and constitutional claims on
undisputed facts de novo. (People v. Frazier (2020) 55
Cal.App.5th 858.)
B. Any Error in the Admission of Lay Testimony from
Reader and Chow Was Harmless
Waltz contends the trial court erred in admitting, over his
counsel’s objection, testimony from Reader and Chow concerning
their personal experiences with bruises. We conclude the
admission of this testimony was improper but that any error was
harmless.
1. Reader’s and Chow’s testimony regarding their
experience with bruises
After Reader testified about the 2013 incident, the
prosecutor asked him the following series of questions over
defense counsel’s repeated objections on relevance and foundation
grounds (omitted here):
“Q: Okay. Now, detective, have you ever in your life gotten
a bruise before?
A: Yes.
Q: Now, when you’ve gotten bruises before, are they visible
bruises?
A: Yes.
Q: Okay. And do they always occur immediately after you
injure yourself?
A: Can you restate the question?
13
Q: Sure. Let’s say you were walking down the street and
walked into a doorway, just didn’t see it. Would you always get a
bruise immediately after walking into that doorway?
The Court: Did the bruise appear immediately?
The Witness: No.
[Prosecutor]: Approximately–just for you personally, how
long did it usually take for an actual visible bruise to appear after
hitting a portion of your body?
The Court: . . . For you how long did that take?
The Witness: For myself, one to two hours.
[Prosecutor]: Okay. And is that consistent every single
time you hurt yourself?
The Witness: No.”
After Chow testified about the 2016 incident, the
prosecutor asked him similar questions about his personal
experience with bruises, again over defense counsel’s repeated
objections:
“Q: Now, deputy Chow, have you ever knocked your knee
into a table and gotten a bruise?
The Witness: Yes.
Q: And approximately how many times your lifetime have
you gotten a bruise?
A: A lot.
Q: Okay. Would you say that the–would you get a bruise
immediately after hitting your body on something hard?
A: No.
Q: Approximately how long would it average take [sic] for a
bruise to form after you hit yourself?
The Court: And this is just on your body that we’re talking
about; right?
14
The Witness: Yes, sir.
The Court: “Okay, go ahead. You can answer. Over the
defendant’s objection, I’ll allow it.
The Witness: I would say about an hour.
[Prosecutor]: And is it the same every time?
Witness: Approximately.”
After the prosecution rested, defense counsel stated outside
the jury’s presence: “My objection was it’s not relevant because,
first off, there was no indication that she had bruising on her
knees, and they testified that–all her questions regarded bruising
on her knees. They’re not, obviously medical doctors. They don’t
have the knowledge or expertise to assist the jury in something
that’s beyond their scope of expertise themselves. In other words,
they don’t know more than the jurors would know about bruising,
so it doesn’t assist the jurors in any fact in issue in this case. I
would object to relevance and ask the court to strike the
testimony concerning bruising.”
The trial court reiterated that it overruled the objection,
explaining: “I did believe that the evidence is not outside the
scope of a lay witness, that when they get―walk into a table or
something like that, sometimes the bruise does not automatically
immediately manifest itself. Sometimes it takes some time,
maybe an hour, maybe a day, depending on the nature of the
injury. It’s common for people to have that, and I overruled your
objection based on that ground.”
In closing arguments, the prosecutor stated in relevant
part: “So Deputy Maxwell testified they did not see any injuries
when he first showed up, okay. But we also talked about the fact,
again, that everybody’s different, that two different deputies
came up here and told you that they bruise differently within
15
themselves. Sometimes it takes an hour, sometimes two hours,
but never the same.”
In his closing statement, defense counsel stated, in turn:
“While we’re on the subject of medical diagnoses, let’s talk about
the deputies’ testimony concerning the bruising. If that’s
the―hopefully you’re not going to hang your hat on that for any
sort of conviction because that was ridiculous testimony. Who
cares that they had bruises on their knees? Who cares? We all
are different people, yes, but they are not medically trained to
give you an opinion as to how bruising can occur, how fast it can
occur, and where it can occur and how it occurs. They can’t do
that. They have no more medical expertise than anybody else
does.”
In rebuttal, the prosecutor argued: “And the deputies that
testified to the bruising, no, they’re not experts in bruising. The
point that I was making with the deputies testifying to the
bruising is the snowflake. Right? We’re all different. We all
bruise differently. It takes a different time. And I don’t think
any of you actually need expert testimony in how―where a bruise
comes from. Okay? We walk into doors. We walk into tables.
We get hit, stomped on, and bruises form. Pretty self-
explanatory. So, no, they don’t need to be experts.”
2. Legal Principles
Under Evidence Code section 800, “[i]f a witness is not
testifying as an expert, his testimony in the form of an opinion is
limited to such an opinion as is permitted by law, including but
not limited to an opinion that is: [¶] (a) Rationally based on the
perception of the witness; and [¶] (b) Helpful to a clear
understanding of his testimony.” “Matters that go beyond
common experience and require particular scientific knowledge
16
may not properly be the subject of lay opinion testimony.”
(People v. DeHoyos, supra, 57 Cal.4th at p. 131.) “‘“Lay opinion
testimony is admissible where no particular scientific knowledge
is required, or as ‘a matter of practical necessity when the
matters . . . . observed are too complex or too subtle to enable [the
witness] accurately to convey them to court or jury in any other
manner.’”’” (People v. Chapple (2006) 138 Cal.App.4th 540, 547.)
“‘No evidence is admissible except relevant evidence.’
(Evid. Code, § 350.) ‘Relevant evidence is evidence “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.”’ (People v.
Scott (2011) 52 Cal.4th 452, 490, quoting Evid. Code, § 210.) ‘The
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (People v. Hardy (2018) 5 Cal.5th 56, 87,
quoting Evid. Code, § 352.)
Reader’s and Chow’s testimony regarding their personal
experience with bruises is certainly rationally based on their own
perception, and “lay witnesses are generally competent to testify
as to their own knowledge of their diseases, injuries, or physical
condition. [Citation].” (Behr v. Redmond (2011) 193 Cal.App.4th
517, 528). Such testimony is also arguably relevant to prove that
Tracy could have suffered injuries, even if they were not visible
as bruises when Maxwell observed her.
However, Reader’s and Chow’s personal experience
regarding bruising was not helpful to a clear understanding of
the testimony they gave, which exclusively pertained to the
incidents they responded to in September 2013 (Reader) and
17
September 2016 (Chow). Rather, the prosecutor elicited
testimony concerning bruises they experienced for the sole reason
of supporting the proposition that injuries to Tracy may not yet
have been evident to Maxwell when he responded to the scene of
the June 2018 incident—for which neither Reader nor Chow was
present and to which neither of them specifically testified—and
to bolster Fridenstine’s observation of Tracy’s bruises six or so
hours later. Neither Reader nor Chow observed Tracy after the
2018 incident or connected their own experience of bruising to
any opinion on the appearance of bruises on Tracy as it related to
her claimed injuries in June 2018. The deputies’ personal
experiences with bruising were far too attenuated to be relevant
to any issue at the trial. Thus, by admitting such testimony from
Reader and Chow, the court abused its discretion because the
testimony was not helpful to the jury’s clear understanding of
their own testimony. (See People v. Miron (1989) 210 Cal.App.3d
580, 583 [“a lay witness’s opinion is not generally admissible
unless it is rationally based on the witness’s perception and
helpful to a clear understanding of his or her testimony”].)
Although the court erred in admitting Reader’s and Chow’s
testimony in this regard, such error was harmless because it is
not “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) The
evidence of Waltz’s guilt was strong, and there was little
likelihood that Reader’s and Chow’s testimony regarding their
personal experiences with bruises affected the jury’s decision.
As Waltz concedes, photographs of Tracy at the hospital—
taken soon after Maxwell had observed her—depicted marks on
her neck and bruising on her arms and legs, and Fridenstine
18
observed bruises on Tracy’s arm after she had returned from the
hospital. Waltz also had a long, well-documented history of being
violent with Tracy, even when restraining orders had been issued
based on his prior behavior. It is not reasonably probable the
jury would have reached a different result if Reader’s and Chow’s
testimony concerning their personal experiences with bruises had
been excluded.5
C. Admission of Waltz’s Past Convictions of Spousal
Battery and Felony Contempt of Court for
Impeachment Purposes
Waltz contends the trial court erred in admitting his past
misdemeanor spousal battery and felony contempt of court
convictions as impeachment evidence because the crimes did not
involve “moral turpitude.”6 A witness may be impeached with
5 The People note that Waltz did not invoke Evidence Code
section 352 at the trial and object to the admission of Reader’s
and Chow’s testimony concerning bruising because the probative
value of such testimony was outweighed by the probability that
its admission would create substantial danger of undue prejudice.
As we have found the court erred in admitting the testimony
because it was not relevant, we need not address the People’s
contention that Waltz’s failure to object to such testimony at trial
on Evidence Code section 352 grounds amounted to a forfeiture.
6 Over defense counsel’s objection, the trial court ruled Waltz
could be impeached with several of his prior convictions,
including one for felony contempt of court (§ 166, subd. (c)(4)),
three for misdemeanor contempts of court (§ 166, subds. (a)(4) &
(c)(1)), and one for misdemeanor spousal battery (§ 243, subd.
(e)(1)). In so doing, the trial court stated that, because the
contempt of court convictions involved violations of underlying
19
prior convictions involving “moral turpitude,” subject to the trial
court’s exercise of discretion under Evidence Code section 352 to
exclude evidence of prior convictions, if the prejudicial impact of
the evidence does not outweigh its probative value. (People v.
Clark (2011) 52 Cal.4th 856, 931-933 (Clark); People v. Castro
(1985) 38 Cal.3d 301, 306 (Castro).) “Moral turpitude” is defined
as a ‘“general readiness to do evil,”’ from which a readiness to lie
can be inferred. (Castro, supra, 38 Cal. 3d at p. 315.) In
determining whether a crime involves “moral turpitude,” the trial
court looks to the statutory definition of the particular crime to
determine whether “the least adjudicated elements of the
conviction necessarily involve moral turpitude,” that is, whether
the elements of the crime, without reference to the specific
circumstances of the conviction at issue “necessarily evince any
character trait which can reasonably be characterized as
‘immoral.’” (Id. at p. 317, fn. 13.)
In exercising its discretion under Evidence Code section
352 when determining whether to admit a prior conviction for
impeachment purposes, the trial court should consider “‘(1)
whether the prior conviction reflects adversely on an individual’s
honesty or veracity; (2) the nearness or remoteness in time of a
prior conviction; (3) whether the prior conviction is for the same
or substantially similar conduct to the charged offense; and (4)
what the effect will be if the defendant does not testify out of fear
of being prejudiced because of impeachment by prior convictions.
[Citation].’” (People v. Green (1995) 34 Cal.App.4th 165, 182,
quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 644;
Clark, supra, 52 Cal.4th at pp. 931-932.) The trial court’s
domestic violence protective orders, it believed that was sufficient
to constitute a crime of moral turpitude.
20
discretion to admit or exclude impeachment evidence is broad,
and a reviewing court ordinarily will uphold the trial court’s
exercise of that discretion. (People v. Collins (1986) 42 Cal.3d
378, 389.) The “systematic occurrence” of similar priors over a
period of time may “create a pattern that is relevant to [the
witnesses’s] credibility. (Muldrow, at p. 648.)
1. Misdemeanor spousal battery is a crime involving
moral turpitude
Waltz cites no case law on point concerning whether the
specific misdemeanor spousal battery conviction at issue
constitutes moral turpitude. However, as the People note, courts
have held that domestic violence convictions pursuant to section
273.5 necessarily involve moral turpitude and are thus
admissible for impeachment purposes because of the special
relationship between the perpetrator and the victim. (People v.
Burton (2015) 243 Cal.App.4th 129, 136; People v. Rodriguez
(1992) 5 Cal.App.4th 1398, 1402 (Rodriguez); see also Donley v.
Davi (2009) 180 Cal.App.4th 447, 461 [a misdemeanor violation of
“section 273.5 is a crime of moral turpitude as a matter of law”].)
The Rodriguez court explained: “To violate Penal Code
section 273.5 the assailant must, at the very least, have set out,
successfully, to injure a person of the opposite sex in a special
relationship for which society rationally demands, and the victim
may reasonably expect, stability and safety, and in which the
victim, for these reasons among others, may be especially
vulnerable. To have joined in, and thus necessarily to be aware
of, that special relationship, and then to violate it willfully and
with intent to injure, necessarily connotes the general readiness
21
to do evil that has been held to define moral turpitude.”7
(Rodriguez, supra, 5 Cal.App.4th at p. 1402.)
Although Rodriguez specifically declined to analogize
section 273.5 to any of the battery statutes (Rodriguez, supra, 5
Cal.App.4th at p. 1402), the Court of Appeal’s holding in that
case applies with equal force to the crime of spousal battery.
Spousal battery under section 243, subdivision (e)(1), identifies a
specific victim defined by a special relationship to the
perpetrator—“a spouse, a person with whom the defendant is
cohabiting, a person who is the parent of the defendant’s child,
former spouse, fiancé or fiancée, or a person with whom the
defendant currently has, or has previously had, a dating or
engagement relationship.”8 As such, the crime of misdemeanor
spousal battery adds to the crime of simple battery the
requirement it be committed against a victim who has a kind of
7 The version of section 273.5 examined in Rodriguez
provided that “‘(a) Any person who willfully inflicts upon his or
her spouse, or any person who willfully inflicts upon any person
of the opposite sex with whom he or she is cohabiting, or any
person who willfully inflicts upon any person who is the mother
or father of his or her child, corporal injury resulting in a
traumatic condition, is guilty of a felony. . . .’” (Rodriguez, supra,
5 Cal.App.4th at p. 1401.)
8 Courts have held that certain other battery convictions do
reflect moral turpitude as well. (See, e.g., People v. Chavez (2000)
84 Cal.App.4th 25, 30 [holding that misdemeanor sexual battery
under § 243.4, subd. (d), is a crime of moral turpitude because
“the degrading use of another, against her will, for one’s own
sexual arousal is deserving of moral condemnation”]; People v.
Lindsay (1989) 209 Cal.App.3d 849, 858 [battery on a police
officer under § 243, subd. (c), involves moral turpitude].)
22
special relationship with the perpetrator that makes the victim
especially vulnerable, and that evinces a readiness to do evil so as
to constitute a crime of moral turpitude.
The trial court had broad latitude under Evidence Code
section 352 to admit prior conviction evidence. (Clark, supra, 52
Cal.4th at pp. 931-932; People v. Wheeler (1992) 4 Cal.4th 284,
296, superseded by statute on other grounds as stated in People
v. Duran (2002) 97 Cal.App.4th 1448, 1460.) In this case, Waltz’s
convictions in 2014 through 2018 that were admitted into
evidence were not remote; there is no indication their admission
affected his decision to testify; and the past conduct was not more
inflammatory than the underlying charges. That the prior
convictions and charged offenses involved similar conduct was
not a dispositive reason to exclude the conduct. (Clark, supra, 52
Cal.4th at p. 932.)
Accordingly, we conclude that under the circumstances of
this case, in admitting the spousal battery conviction for
impeachment purposes, the trial court properly exercised its
discretion and did not act in an arbitrary, capricious, or patently
absurd manner that resulted in a miscarriage of justice. (People
v. Lewis, supra, 46 Cal.4th at p. 1286.)9
9 Moreover, Waltz concedes the spousal battery conviction
was also admitted under Evidence Code section 1109 as proof of
Waltz’s propensity to commit that offense. In fact, Tracy testified
about a domestic violence incident in December 2014, which
presumably led to the spousal battery conviction, and incidents in
September 2016 and March 2018 that led to convictions for
violating protective orders. Also, limited time was taken to admit
evidence of the convictions; at the time the convictions were
admitted, no underlying facts of the crimes were elicited, just the
23
2. Admission of the felony contempt of court
conviction was harmless error
Section 166, subdivision (c)(1), provides, in relevant part, “a
willful and knowing violation of a protective order or stay-away
court order . . . shall constitute contempt of court.” (§ 166, subd.
(c)(1).) Unlike a conviction for misdemeanor spousal battery
under section 243, subdivision (e)(1), we cannot say, as a matter
of law, violation of a domestic violence protective order is a crime
of moral turpitude because, under Castro’s “least adjudicated
elements” test, a perpetrator can violate a protective order by
simply coming into friendly contact with the protected individual,
and that would not “evince any character trait which can
reasonably be characterized as ‘immoral.’” (Castro, supra, 38
Cal.3d at p. 317.)
However, even if we were to assume the court erred in
admitting evidence of Waltz’s prior conviction for felony contempt
of court, we conclude the error was harmless. (Watson, supra, 46
Cal.2d at p. 836.) As explained above, there was ample evidence
of Waltz’s guilt regarding the June 2018 incident, including the
deputies’ observations of bruisings on Tracy’s body and the
photographs of marks on her neck, arm, and leg that were taken
the night of the incident. Additionally, the jury heard testimony
that Waltz had come to Tracy’s apartment and contacted her
fact the crimes took place; the court gave proper jury instructions
concerning the limited purpose for which the convictions were
admitted; and we must presume the jury followed the court’s
limiting instructions (People v. Ervine (2009) 47 Cal.4th 745,
776). Therefore, it would not be reasonably probable the
admission of evidence of the spousal battery conviction affected
the trial’s outcome.
24
even though Tracy had obtained restraining orders preventing
him from doing so. Therefore, it is not reasonably probable the
jury would have reached a different verdict if evidence of Waltz’s
prior convictions concerning violations of protective orders had
been excluded.
D. The Trial Court Did Not Abuse Its Discretion By
Excluding Evidence of Tracy’s Behavior While
Drinking
After Tracy had testified, defense counsel specifically
sought to have Waltz’s father testify that he had seen Tracy
become violent with Waltz and act “out of control” in other ways
while intoxicated, including dangerously “squeezing” a dog and
jumping from a moving car. The prosecutor objected that the
incidents were prejudicial and not relevant. The trial court noted
the declaration describing Waltz’s father’s testimony had been
provided to the prosecution one court day before, and the
proposed testimony amounted more to character evidence rather
than impeachment. The court acknowledged that such character
evidence might be relevant to a claim of self-defense, but that “so
far, I have not heard evidence to support that claim.” Ultimately,
the trial court sustained the prosecutor’s objection and request to
preclude the testimony.
Waltz contends the trial court abused its discretion by
excluding the testimony Waltz’s father was prepared to give
concerning Tracy. He claims the testimony should have been
admitted for impeachment purposes and to prove Tracy had a
propensity for violence.
We conclude the trial court did not abuse its discretion in
excluding the testimony. Evidence Code section 1103 authorizes
a defendant in a criminal case to offer evidence regarding a
25
victim’s character: “(a) 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 Section 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.”
(Evid. Code, § 1103, subd. (a)(1).)
If a defendant claims self-defense, evidence of the victim’s
violent character is admissible under Evidence Code section 1103
to show the victim was the aggressor. (People v. Minifie (1996) 13
Cal.4th 1055, 1070.) However, a trial court has broad discretion
to exclude such evidence under Evidence Code section 352 “if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352; People
v. Gutierrez (2009) 45 Cal.4th 789, 827-828.)
The trial court acted within its broad discretion in declining
to admit the testimony from Waltz’s father. The proffered
testimony that Tracy previously was “out of control” when
intoxicated had little, if any, relevance to show (1) that Tracy
actually has a trait or reputation for violence; (2) that she acted
in conformity with that trait or reputation on June 24, 2018; or
(3) that she was the initial aggressor in the incident for which
Waltz was charged. In fact, no evidence was presented that
Tracy had consumed alcohol on the day of the charged incident,
and Waltz himself testified he did not see Tracy drink that day,
he just presumed she did based on her mood.
26
Even if the defense could prove Tracy’s propensity to be
violent when intoxicated, such evidence could not justify Waltz’s
conduct under his own version of the facts. Waltz admitted he
repeatedly violated court orders by showing up at Tracy’s
apartment, including on three separate occasions on June 24,
2018. Nor did Waltz claim his conduct with Tracy was driven out
of fear that she would harm him. In other words, there was no
self-defense theory of injury or reasonable fear of harm. “For self-
defense, the defendant must actually and reasonably believe in
the need to defend, the belief must be objectively reasonable, and
the fear must be of imminent danger to life or great bodily injury.
[Citation].” (People v. Lee (2005) 131 Cal.App.4th 1413, 1427.)
Rather, Waltz testified Tracy hit and kicked him, but he never
fought back or forcibly touched her at all.
Also, even if Waltz’s testimony that he blocked Tracy’s kick
with his leg before she fell could be construed as self-defense, any
probative value of the evidence Waltz offered of Tracy’s
propensity for violence when she was intoxicated was
substantially outweighed by the potential of undue prejudice and
consumption of time, misleading the jury, or confusion of the
issues. The parties agreed that introducing the character
evidence would require a continuance so that the prosecution
could interview Waltz’s father and investigate potential character
evidence pertaining to the defense witnesses. Given these
circumstances, the trial court’s decision to exclude the proffered
testimony of Waltz’s father was not “arbitrary, capricious, or
patently absurd.” (People v. Lewis, supra, 46 Cal.4th at p. 1286;
see People v. Jones (2003) 30 Cal.4th 1084, 1108-1109 [proper to
exclude evidence that was “not particularly probative” and
27
“would have required evidence of the details of an otherwise
unrelated crime”].)
Moreover, any error in excluding Waltz’s father’s testimony
about Tracy’s behavior while drinking was harmless. Evidence of
Tracy’s drinking and her behavior was elicited from Tracy when
she testified about the incident with Adler, for which she was
convicted of misdemeanor assault. In his direct and cross
examination, Waltz also extensively testified about Tracy’s
erratic conduct while drinking alcohol during several incidents;
and defense counsel in his closing argument stressed Tracy’s
behavior when she was intoxicated. The jury, accordingly, had
other sources of evidence supporting the defense argument
regarding Tracy’s propensity for violent behavior while drinking,
and it is not reasonably probable that additional testimony along
those lines would have led them to reach a different result in
light of the significant evidence of Waltz’s guilt.
E. Waltz Does Not Meet His Burden of Demonstrating
His Counsel Rendered Ineffective Assistance
We also reject Waltz’s related argument that defense
counsel rendered ineffective assistance because he did not, after
Waltz had testified, renew the request for Waltz’s father to
testify. “‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel's representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 694 [ ]; People v. Ledesma (1987) 43 Cal.3d
171, 217 [ ].) A reviewing court will indulge in a presumption
that counsel's performance fell within the wide range of
28
professional competence and that counsel's actions and inactions
can be explained as a matter of sound trial strategy. Defendant
thus bears the burden of establishing constitutionally inadequate
assistance of counsel. (Strickland, at p. 687 [ ]; In re Andrews
(2002) 28 Cal.4th 1234, 1253 [ ].) If the record on appeal sheds no
light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266
[ ].) Otherwise, the claim is more appropriately raised in a
petition for writ of habeas corpus.’” (People v. Gray (2005) 37
Cal.4th 168, 206–207, quoting People v. Carter (2003) 30 Cal.4th
1166, 1211.)
We are not aware of the reason why counsel did not revive
his request that the court allow Waltz’s father to testify
concerning his observations of Tracy’s conduct when she was
intoxicated. It is plausible counsel concluded a renewal of the
request would be futile, based on the court’s earlier denial.
Additionally, counsel may have determined there already was
sufficient evidence of Tracy’s character through testimony elicited
from Tracy concerning the incident involving Adler and from
Waltz himself when he gave his version of Tracy’s behavior
during the incidents at issue. Therefore, defense counsel may
have perceived there was no possibility the trial court would
exercise its discretion and apply Evidence Code section 352 in
such a manner to find the additional evidence was necessary and
not cumulative.10 Also, as discussed above, the defense did not
10 During argument regarding motions in limine, when the
issue of possibly eliciting testimony from Tracy concerning her
29
establish Waltz’s acts resulted from a reasonable belief of self-
defense so that evidence of Tracy’s conduct when she was
intoxicated was relevant to such a defense.
Waltz does not present “affirmative evidence that counsel
could have had ‘no rational tactical purpose’ for these decisions.”
(People v. Mickel (2016) 2 Cal.5th 181, 200.) “Under those
circumstances, a reviewing court has no basis on which to
determine whether counsel had a legitimate reason for making a
particular decision, or whether counsel’s actions or failure to take
certain actions were objectively unreasonable.” (Id. at p. 198) As
a consequence, Waltz’s ineffective assistance of counsel claim is
more appropriately decided in a habeas corpus proceeding. (See
People v. Gray, supra, 37 Cal.4th at p. 207 [ineffective assistance
of counsel claim rejected because it “is more appropriately raised
in a petition for a writ of habeas corpus”]; People v. Jones (2003)
29 Cal.4th 1229, 1263 [issues requiring review of matters outside
the record are better raised on habeus corpus rather than on
direct appeal]; People v. Mendoza Tello, supra, 15 Cal.4th at pp.
266-267 [ineffective assistance of counsel claim “is more
appropriately decided in a habeus corpus proceeding”].)
Even if Waltz could establish his trial counsel’s
performance was deficient, Waltz is unable to satisfy the second
prong of the test for ineffective assistance of counsel—that he
suffered prejudice to a reasonable probability. (People v. Johnson
alcohol and drug use was raised, the prosecutor indicated such
testimony could open the door to Tracy having to explain she
drank alcohol to deal with the stress of Waltz’s “continuing
course of violence.” Therefore, defense counsel may have
tactically decided not to resurrect his request to have Waltz’s
father testify out of concern about rebuttal testimony of this
nature possibly being elicited from Tracy.
30
(2016) 62 Cal.4th 600, 653.) When the claim of ineffective
assistance of counsel is based on defense counsel’s failure to make
a motion, as is the case in the instant matter, defendant must
demonstrate the motion would have been meritorious, and it is
reasonably probable that absent the omission a determination
more favorable to him would have resulted. (People v. Mattson
(1990 50 Cal.3d 826, 876-877; People v. Gonzalez (1998) 64
Cal.App.4th 432, 438.) As discussed above, there was ample
testimony concerning Tracy’s behavior when she was intoxicated,
thus Waltz cannot satisfy his burden of demonstrating prejudice
by his counsel’s failure to renew a request that Waltz’s father be
permitted to testify.
F. The $500 Domestic Violence Fee Under Section
1203.097 Is Inapplicable Because the Trial Court Did
Not Grant Probation
Waltz contends—and the People concede—the trial court
erred in imposing a $500 domestic violence fund fee under section
1203.097 because that section only applies when a defendant is
granted probation. We agree. Section 1203.097 provides that “(a)
If a person is granted probation for a crime in which the victim is
a person defined in Section 6211 of the Family Code, the terms of
probation shall include . . . (5)(A) A minimum payment by the
defendant of a fee of five hundred ($500) . . . .” (§ 1203.097, subd.
(a)(5)(A) (emphasis added).) By its plain language, this section
only applies when the trial court grants probation. (People v.
Kirvin (2014) 231 Cal.App.4th 1507, 1520.) Because the trial
court did not grant probation in this case, this fee should be
stricken.
31
G. Waltz Is Entitled to a Hearing on His Ability To Pay
the Court Assessments and Restitution Fines Under
People v. Dueñas
Waltz contends the trial court violated his constitutional
due process and equal protection rights by failing to determine
whether he had the present ability to pay before imposing court
assessments and restitution fines, citing this court’s opinion in
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In
Dueñas, this court held due process “requires the trial court to
conduct an ability to pay hearing and ascertain a defendant's
present ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and
Government Code section 70373,” and it requires the trial court
to stay execution of any restitution fine “unless and until the trial
court holds an ability to pay hearing and concludes that the
defendant has the present ability to pay the restitution fine.”
(Id. at p. 1164.)
The People contend Waltz forfeited this argument because
he failed to object at sentencing to the assessments and
restitution fine. However, at the time Waltz was sentenced in
December 2018, Dueñas had not yet been decided. As this court
previously explained in rejecting this argument, “‘[N]o California
court prior to Dueñas had held it was unconstitutional to impose
fines, fees or assessments without a determination of the
defendant’s ability to pay. . . . When, as here, the defendant’s
challenge on direct appeal is based on a newly announced
constitutional principle that could not reasonably have been
anticipated at the time of trial, reviewing courts have declined to
find forfeiture.’ [Citations].” (People v. Belloso (2019) 42
32
Cal.App.5th 647, 662 (Belloso), review granted March 11, 2020,
S259755, quoting People v. Castellano (2019) 33 Cal.App.5th 485,
489 (Castellano).) As in Castellano and Belloso, we decline to find
Waltz forfeited his constitutional challenge to the imposition of
the assessments and restitution fines.
Because Waltz was not aware of his ability to challenge the
assessments and fines on due process and equal protection
grounds, he should have that opportunity to do so on remand.
(Belloso, supra, 42 Cal.App.5th at pp. 662-663.) Accordingly, we
remand for the trial court to allow Waltz to request a hearing and
present evidence demonstrating his inability to pay the
assessments and fines imposed by the trial court.
We reject the People’s additional contention that any due
process violation was harmless. As this court explained in
Castellano and Belloso, “the defendant need not present evidence
of potential adverse consequences beyond the fee or assessment
itself, as the imposition of a fine on a defendant unable to pay it
is sufficient detriment to trigger due process protections.”
(Castellano, supra, 33 Cal.App.5th at p. 490; Belloso, supra, 42
Cal.App.5th at p. 663 [same].)
33
DISPOSITION
The trial court’s imposition of the $500 domestic violence
fee is reversed, and the matter is remanded with instructions to
strike the fee from the judgment and to allow Waltz to request an
ability-to-pay hearing and present evidence demonstrating his
inability to pay the assessments and fines the court imposes. If
Waltz demonstrates his inability to pay the assessments and
fines, the trial court must strike them. In all other respects, the
judgment is affirmed.
RICHARDSON, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
34