Filed 6/18/24 P. v. Munsey CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. ABATE DOLPHI MUNSEY,

Def endant and Appellant. D081269

(Super. Ct. No. SCE408923)

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed. Justin Behravesh , under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant Attorney General, Charles C. Ragland , Assistant Attorney General, Arlene Sevidal and Arlyn Escalante , Deputy Attorneys General, for Plaintiff and Respondent.2

A jury found Abate Dolphi Munsey guilty of assault with a deadly

weapon (Pen. Code, 1 § 245, subd. (a)(1) (count 1 ) ) ; three counts of corporal injury to his spouse , M.M. ( Pen. Code, § 273.5, subd. (a) (counts 2, 4, 5 ); and one count of making a criminal threat to M.M. ( Pen. Code, § 422 (c ount 3) ). The jury further found that as to count 1, Munsey personally used a deadly and dangerous weapon ( Pen. Code, § 1192.7, subd. (c)(23) ) ; as to counts 1 and 3, that M.M. was a victim of domestic violence ( Fam

. Code , § 6211 ; Pe n. Code , § 1203.097, su bd

. (a) ); as to counts 1 and 2 , that Munsey personally inflicted great bodily injury upon M.M. ( Pen. Code , § 12022.7, subd. (e)); and as to counts 2 and 3, that Munsey personally used a deadly and dangerous weapon ( Pen. Code, § 12022, subd. (b)(1)).
Munse y contends on appeal that the trial court prejudicially erred by excluding testimony regarding M.M.’s immigration status, specifically
references to her K

- 1 visa , 2 under Evidence Code section 352. We conclude that the court did not abuse its discretion, a nd therefore affirm the judgment.

1 Further undesignated statutory references are to the Penal Code.

2 During pre

- trial proceedings, Munsey ’s counsel also argued that evidence regarding “ U visas ” should be admitted. A U visa allows a non

citizen to remain temporarily in the U nited States based on their status as a victim of certain crimes, including domestic violence, if they assist law enforcement with the investigation or prosecution of the offense . ( People v. Cast a neda

- Prado (2023) 94 Cal.App.5th 1260, 1267, fn.1 ( Cast a neda

- Prado ) ; People v. Villa (2020) 55 Cal.App.5th 1042, 1050 ( Villa ) ; s ee 8 U.S.C. § 1101 et seq., as amended by Pub.L. No. 99

- 603 (Nov. 6, 1986) 100 Stat. 3359 ; 8 U.S.C. § 1101(a)(15)(U) .) O n appeal, however, Munsey concedes that the trial court had a valid basis for “exclud[ing] any reference to a U visa ” and states tha t he “ does not challenge that ruling on appeal.” In any event, we note that Munsey offered no concrete evidence that M.M. ever applied for or considered applying for a U visa

— or even knew what one was. Accordingly, we limit our analysis to the issue Muns ey has raised regarding M.M.’s K

- 1 visa.3 FACTUAL AND PROCEDURAL BACKGROUND 3
A. Domestic Abuse Allegations Munsey was born in Ethiopia and moved to the United States (U.S.) at
a young age to live with his adoptive parents

. In 2018 , Munsey went on a church mission tr ip to Ethiopia where he met M.M. After Munsey left Ethiopia and returned to the U.S. , he and M.M

. had a long

- distance romantic relationship for about two years

. D uring that time Munsey sent money to M.M. and her family in Ethiopia , and they talked freque ntly about marriage

. They got engaged in 2019 , M.M. arrived in the U.S. on a K

- 1 visa in May
2021 , and they got married in J uly 2021. Around June 2021, Munsey grabbed M.M. and slapp ed her back and thighs to force her to have anal and vaginal sex with h im against her will. Munsey’s hands left visible bruises and marks on M.M.’s shoulder, arm, and legs

. M.M. recalled that similar incidents happened on multiple occasions

. During an argument i n September 2021 , Munsey put his hands around
M.M. ’s neck, mak ing it difficult for her to breathe

. Munsey eventually let go of her neck , but his hands left visible marks and she felt discomfort in her neck and throat for a few days afterwards. One evening in October 2021, Munsey’s father and his father’s girlfrie nd, A. L ., visited Munsey and M.M.’s apartment to give them mar ital advice

. Shortly b efore his father and A. L

. a rrived, Munsey texted M.M. , threatening to kill her

. At one point in the evening, when A. L

. and M.M. were alone in a separate room away from Mu nsey and his father, M.M. cried and told A. L . that Munsey was controlling.

3 Because of the limited scope of the issues on appeal , w e provide an abbreviated summary of the relevant fac ts

.4

After his father and A. L . left, Munsey began questioning M.M. about what she told A.L. Unsatisfied with her answers, Munsey took a small knife from the kitchen and threatened to cut her unless she told him “the truth

. ” M.M. went to the bedroom and texted A.L. for help . Munsey came into the bedroom and dragged the knife across M.M.’s shoulder, chest, and neck, threatening to kill her. He then pierced M.M.’s thigh with the knife, leaving

a two

- inch laceration

. She pushed him away , ran from the apartment , and eventually called 911.
B. Defense Evidence Munsey’s friends and relatives never saw Munsey behav e violently , lose his temper , or act in a controlling manner

. Munsey’s father , who provided counseling to M.M. and Munsey over the course of a few weeks, never heard M.M. mention abuse. He observed that she was sometimes “very sad” and “withdrawn” from Munsey. Munsey ’s
sister also observed that M.M. was “quiet , ” seemed unhappy, a nd did not interact much with Munsey’s family members during gatherings

. M.M. never mentioned abuse to Munsey’s sister. An emergency room physician, testifying as an expert witness, reviewed police reports and photo graph s of M.M.’s injuries from October
2021

. He opined that abrasions on her upper body and the cut on her thigh could have been self

- inflicted , but he also could not rule out assault . The thigh injury was in a location “convenient” for self

- infliction

. Munsey testified in his own defense and denied ever being violent or aggressive towards M.M

. When asked about M.M.’s abuse allegations and photographs of her injuries, Munsey said that any injuries must have been self

- inflicted , including the knife wound

. While their relationship was
smoot h at first a nd Munsey provided for M.M. financially , t hey began5

arguing more and more after they got married and M.M. grew resentful and distant. The night in October 2021 , after Munsey’s father and A.L. left their apartment, M.M. went into the bedroom an d asked Munsey to bring her a knife so she could “fix” one of her bras. A few minutes l ater h e heard a “weird cough” and ran into the bedroom

. M.M. pushed past him and ran out of the apartment , limping

. H e could not find her or reach her by phone, and w hen he noticed the knife had blood on it, he called 911. C. Evidence of M.M.’s Immigration Status The People charged Munsey with one count of assault with a deadly

weapon ( Pen. Code, § 245, subd. (a)(1) (count 1)); three counts of corporal injury to a spous e, M.M. ( Pen. Code, § 273.5, subd. (a) (counts 2, 4, 5); and one count of making a criminal threat to M.M. ( Pen. Code, § 422 (count 3)). The People further alleged as to count 1 that Munsey personally used a deadly and dangerous weapon ( Pen. Code, § 1192. 7, subd. (c)(23)); as to counts 1 and 3, that M.M. was a victim of domestic violence (Fam. Code, § 6211; Pen. Code, § 1203.097, subd. (a)); as to counts 1 and 2, that Munsey personally inflicted great bodily injury upon M.M. ( Pen. Code, § 12022.7, subd. (e )); and as to counts 2 and 3, that Munsey personally used a deadly and dangerous weapon ( Pen. Code, § 12022, subd. (b)(1)). The People filed a motion in limine to exclude any testimony regarding M.M.’s immigration status . The defense argued that such te stimony was relevant to prove its theory that M.M. fabricated the abuse allegations in order to get out of her marriage without jeopardizing her visa status

. At a hearing under Evidence Code section 402 to determine the admissibility of evidence regarding M.M.’s immigration status , M.M. testified
that she entered the U.S. in May 2021 on a K

- 1 or “fiancée” visa. The K

- 1 visa allowed her to enter and stay in the U.S. if she married Munsey within6

90 days. Soon after they married, M.M. applied for a green ca rd. When the October 2021 incident happened , M.M.’s green card application was still pending. After the incident, M.M. applied for employment authorization a nd submitted visa paperwork with some assistance at a women’s shelter

. She

was unsure what the p aperwork was for, however, and thought it had to do with obtaining a work permit. M.M. told someone at the shelter about her “situation” with Munsey and what she had “ endured” in the process of filling out the paperwork. M.M. said she did not know whethe r she would be able to stay in the country if she was no longer married to Munsey. The court found that while potentially relevant, the circumstances surrounding M.M.’s status under either a K

- 1 or U visa were confusing and would result in “a separate mi ni trial to educate the jury on exactly what different visa statuses are.” The court observed that the implications of
various visas w ere confusing even to the court and counsel for the parties , and that allowing testimony about the visas would also be un duly consumptive of time. The court noted there was “no indication from [M.M.] that she even knew” that making false domestic violence accusations would allow her to remain in the country. The court therefore ruled at the end of the hearing that any refe rence to M.M.’s visa status was excluded under Evidence Code section 352, but the court left open the possibility that after hearing M.M.’s testimony, the court might give the defense an opportunity to

cross
- examine M.M. about her K

- 1 visa. After M.M.’s direct examination, the court confirmed it would exclude testimony about M.M.’s visa status because its “probative value is outweighed by the amount of time that would be consumed in trying to insure [ sic ] the jury understood the complexities of visas, wh y they’re obtained, how they’re obtained, [and] when they’re obtained

. Citing Evidence Code section7

352, t he court also found that presenting such evidence would require expert testimony that would “take a substantial period of time and would result in,

m ore or less, a trial within a trial regarding [M.M.’s] immigration status.” The court noted that there was very little evidence that M.M. “even came close” to obtaining a U visa , and that there had been “no showing of any relevance as to why [M.M.] obtain ing a K1 visa is material to this case [.]”
D. Verdict and Sentencing After several days of trial, the jury found Munsey guilty of each charged offense and found true all special alleged circumstances

. The court sentenced Munsey to a total of eight years in prison. Munsey timely appealed. DISCUSSION Munsey argues on appeal that the trial court prejudicially erred by excluding testimony regarding M.M.’s K

- 1 visa under Evidence Code section
352. We disagree

. “We review claims regarding a trial court’s rulin g on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb [ a ] trial court’s ruling ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Goldsmith (2014) 59 Cal.4th 258, 266; Evid. Code, § 353.)
A party may impeach or discredit a witness during cross

- examination by “ ‘ revealing possible biases, prejudices, or ulterior motives of the witness. ’ [Citation.] ‘ The partiality of a witness is subject to exploration at trial, and is

“ always relevant as discrediting the witness and affecting the weight of his testimony. ” ’ [Citation.] However, the right to cross

- examine a witness

. . . isn ’ t absolute [and] ‘ [a] trial court may restrict defense cross

- examination of8

an adverse witness on the grounds stated in Evidence Code section 352. ’ [Citations.]” ( Villa , supra , 55 Cal.App.5th at p. 1051 .) Evidence Code section 352 gives the trial c ourt discretion to “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.” (Evid. Code, § 352.) Trial courts have broad latitude under Evidence Code section 352 to exclude such impeachment evidence . ( Villa , at p. 1051.) As a threshold matter , the trial court reasonably concluded that M.M.’s
status as a K

- 1 visa holder upon entering the U.S. was of questionable relevance to her credibility

. M.M. testified at the pre

- trial hearing that the
K

- 1 visa allowed her to stay in the U.S. if she married Munsey within 90 days. They got married within the 90

- day per iod, after which M.M. applied for a green car d

. Given t hat M.M. obtained a K

- 1 visa and met the 90

- day marriage requiremen t before allegations of abuse surfaced , and that she applied for a green card shortly after they married, it is unclear how her K

- 1

v isa status was relevant to any potential motive for fabricating the abuse.
Mun sey made no offer of proof as to the expert testimony he wished to present regarding the K

- 1 visa or how it would logically establish any motive for M.M. to make false allegatio ns of abuse. A s the People note, Munsey makes no argument on appeal that the court should have admit ted evidence regarding how the abuse allegations might impact M.M.’s pending green card application. And e ven a ssuming that the excluded evidence would sh ow M.M. c ould be deported if she did not stay married to Munsey unless she proved abuse , the re is no evidence M.M. was aware of that possibility , further
minimiz ing the probative value of such testimony.9

The trial court also acted within the bounds of re ason by concluding that any limited p robative value of testimony about M.M.’s K

- 1 visa status

was substantially outweighed by the significant probability of undue consumption of time

. Defense counsel contend ed that such testimony would onl y consume 20 min utes , but it was neither arbitrary n or patently absurd for the court to reject that contention. In addition to expert testimony , M.M. likely would have been called back to repeat her testimony from the Evidence Code section 402 hearing for the jury . T he parties’ attorneys would also potentially have had to address any prior preliminary hearing testimony on the subject . (See Villa, supra , 55 Cal.App.5th at p

. 1053 [trial court’s concerns about admitting U visa evidence were “well founded” for similar

reas ons having to do with undue time consumption].) Furthermore, t he parties may have decided to put on additional witnesses to testify about
whether M.M. knew about the specific implications of the abuse allegations on her status . (See ibid. ) Weighed again st the questionable relevance of the evidence, t he court was therefore justifiably concerned that admitting evidence of M.M.’s visa status would be unduly time

- consuming.
Moreover , as the court noted, the nature, requirements, and limitations of the K

- 1 v isa were confusing even to the parties’ attorneys and the court. To properly evaluate whether the K

- 1 visa requirements gave M.M. a compelling enough reason to lie about the abuse, the parties would have had to educate the jurors about conditions for obta ining and maintaining a K

- 1 visa, the process of applying for a green card after marriage , the likelihood of obtaining a green card after entering on a K

- 1 visa, the effect s M.M.’s change
in marital status would have had on her immigration status , and the distinction between different types of visas

. ( See Villa , supra , 55 Cal.App.5th at p. 1053 [ concluding that “the trial judge rightly recognized ” introducing10

evidence on the U visa program “ would have created a substantial risk of distracting and confusing the jury” ] .) The trial court did not abuse its discretion in finding that the jury would be unduly distracted or confused by these collateral issues involving federal immigration law

. The court’s decision in Villa , which address ed the admissibility of U visa evidence , support s our conclusion. In Villa , the defendant a rgued that the trial court erred by excluding evidence that the domestic abuse victim had applied for a U visa after testifying at the preliminary hearing . ( Villa,

supra , 55 Cal.App.5th a t p p

. 1044 , 1048 .) T he victim in Villa learned about the U visa program at a shelter, went to the prosecutor’s office to inquire about the process of obtaining a U visa , and understood that to qualify for the visa , she had to be considered a victim of dom estic violence . ( Id. at p. 1048.) The Court of Appeal concluded that al though the evidence was relevant for impeachment , the trial court did not abuse its discretion because the minimal probative value of the evidence was “easily outweighed by the potent ial for wasted time and jury confusion.” ( Id. at pp. 1044

– 1045.) Munsey argues that Villa is distinguishable because it involved a
U visa and not a K

- 1 visa. But if anything, the facts surrounding M.M.’s K

- 1 visa present an even less compelling case fo r admi tting visa status evidence than the circumstances in Villa

. In Villa , the victim’s ability to obtain a
U visa was dependent on her status as a victim of domestic violence. ( Villa,

supra , 55 Cal.App.5th at p. 1048.) Here, M.M. entered the country o n a K

- 1 visa, and there is no evidence how that visa was still tied

— if at all

— to her ability to stay in the country at the time she notified law enforcement about the abuse

. Importantly, in Villa , the victim testified that she was at least

aware of the co nnection between the abuse allegations and her U visa application ( ibid. ) , whereas here, M.M. expressed no knowledge of how her11

allegations might impact her status. Therefore, the reasoning in Villa applies with equal, if not greater , force to the facts i n this case. Our conclusion is also consistent with Castaneda

- Prado . In that case, the defendant was convicted of sexual ly molest ing two minor victims. ( Castaneda

- Prado , supra , 94 Cal.App.5th at p. 1266.) Citing Villa , t he trial
court in Castaneda

- Prado excluded one victim’s preliminary hearing testimony that she filed a declaration accusing the defendant of sexual abuse to assist her mother in obtaining a U visa

. ( Id. at p p . 1271 , 1275 .) The court also declined to hold an Evidence Code section 402 hea ring. ( Id. at p. 1275 .)
It reasoned that while the U visa evidence was relevant , admitting it would risk confusing the jury , would cause undue prejudice, and would be unduly time consuming. ( I

bid .) In Castaneda

- Prado , t here was no evidence that a
U vis a application had been submitted. ( Id. at p. 1274.) The Court of Appeal reverse d the defendant’s conviction , relying on the fact that the victim admitted she was motivated by potential U visa benefits when she first gave a sworn statement accusing the def endant of abuse. ( Castaneda

- Prado , supra , 94 Cal.App.5th at p p . 1286 , 1288 .) The court observed that b ecause of that admission, there was less risk of undue consumption of time because no inquiry into U visa procedures was even
necessary

— “[w]hat mattered most was that [the victim] apparently believed she was furthering her mother’s interest in obtaining a U visa by giving damaging testimony” about the defendant. ( Id. at p. 1288.) The court also noted that the prosecution’s case turned almost entirely on the victim’s credibility given the lack of corroborating evidence, and that the victim’s testimony had grown more detailed and more incriminating over time. ( Id. at pp. 1287

– 1288.)12

Here, unlike in Castaneda

- Prado , there is no evidence that M.M. was
mot ivated by K

- 1 visa benefits , real or otherwise

. And as the Court of Appeal
in Castaneda

- Prado recognized, absent evidence that the victim knew about potential visa benefits, “there would have been an inevitable contest over whether, in [the victim’s] mind , the [] visa process could possibly have influenced her testimony and to what extent. ” ( Castaneda

- Prado , supra , 94 Cal.App.5th at p. 1288 .) Moreover, unlike in Castaneda

- Prado , the case against Munsey included additional corroborating evidence in the fo rm of a text message, photographs of M.M.’s injuries, 911 call recordings, and testimony from witnesses who observed M.M. before and after the October
2021 incident

. For these reasons, we conclude that the trial court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner when it excluded testimony about M.M.’s K

- 1 visa. DISPOSITION The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P. J.

DO, J.