1 Filed 3/5/14 P. v. Matheson CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)

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THE PEOPLE, Plaintiff and Respondent,

v. TROY MATHESON, Defendant and Appellant. C072351 (Super. Ct. No. NCR82101)

Thirty-one-year-old defendant Troy Math eson was tried for the first degree murder of his thirty-five-year-old brother Ronnie Matheson (Ronnie). A jury found defendant guilty of voluntary manslaughter, after telli ng the court it was having trouble deciding between second degree murder and voluntary manslaughter. The court sentenced him to seven years in prison. Before trial, the court ruled that de fendant could not present expert witness testimony regarding the effects of Ronnie abus ing defendant and their family because the evidence was inadmi ssible under Evidence Code sectio n 1107, which allows for expert2 witness testimony on intimate partner battering. 1 The court expressly stated it was excluding the evidence based on its findi ng that the evidence did not qualify under Evidence Code section 1107. On appeal, defendant contends the trial court violated his constitutional right to present a complete defense when it excluded th is expert testimony regarding the effect of Ronnie’s abuse of defendant and their family and that any error in failing to preserve the issue was ineffective assistance by defense counsel. We hold that defendant forfeited his c onstitutional contention by failing to secure a ruling from the trial court on this theory and another th eory he had raised for the admissibility of this evidence (social fra mework testimony). We further hold that defense counsel was not ineffective for failing to secure these rulings or for failing to seek admission of the testimony on other grou nds. As we explain, defendant was not prejudiced by counsel’s omissions. The eviden ce that Ronnie abused defendant and their family was already before the jury as was th e evidence of the psychological effects of that abuse. Further, the instructions told the jury it could consid er Ronnie’s abuse in deciding whether defendant’s conduct and beliefs were reasonable, which went to whether defendant wa s justified in killing Ronnie. Fina lly, the jury appe ared not to be focused on whether the killing wa s justified but rather on wh ether the killing was murder or manslaughter.

1 Evidence Code section 1107, subdivision (a) provides as follows: “In a criminal action, expert testimony is admissible by eith er the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, pe rceptions, 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 th e basis of the criminal charge.”3 FACTUAL AND PROCEDUR AL BACKGROUND A The Prosecution’s Case On July 3, 2011, a group of defend ant’s family members had gone to the fairgrounds to watch firewo rks in Anderson. The group included defendant; his girlfriend; his daughter; Ronnie; one of th eir sisters, Ronnda Wooden (Ronnda); and Ronnda’s husband, George Samuel Wooden (Sam). They were all having a good time, and some were drinking alcohol. After the fireworks, defendant drove his girlfriend and daughter back to the Live Oak Road home that he shared on weeken ds with Ronnie. De fendant cooked his girlfriend and daughter something to eat, and th en the three of them went to sleep in one of the bedrooms. Ronnda and Sam then drove a “very intoxi cated” Ronnie back to the same house. Upon seeing the kitchen, Ronnie became angry that there was a “big mess” and said that “[defendant] needed to clean it up.” Ronnie awoke a sleepi ng defendant in the bedroom, swore at him, and told him he was disrespe cting him and needed to clean up the mess. Ronnie and defendant began fist fighting. Ronnda made defendant’s girlfriend and daughter leave the room and th en Ronnda and Sam separated the brothers. Sam followed defendant into the kitchen wh ile Ronnda tried to help Ronnie to his bedroom. Defendant got a knife from the kitchen an d walked back down the hallway to the bedrooms, saying he “was protec ting his family.” Sam tried to hold defendant back with his hands, but defendant pushed Sam out of th e way and said, “ ‘get the fuck out of my way or I’ll kill you too.’ ” Ronnda, who was still in the process of escorting Ronnie to his bedroom, noticed something in defendan t’s hand, so she crouched down. Defendant then stabbed Ronnie twice, once on his arm and once on his back. Ronnda did not see Ronnie trying to hit defendant when the sta bbing occurred. Ronnie stumbled back and told Ronnda to call 911, which she did.4 Ronnda tended to Ronnie’s wounds in the entryway while she and Ronnie waited for the ambulance. Defendant then charged at Ronnie, knocking him to the ground. Defendant told him, “ ‘I’m goi ng to kill you’ ” and “ ‘fuckin g die, you worthless piece of shit.’ ” Ronnie was “knocked out” and “maki ng this . . . gurgling noise.” Ronnda got between the brothers and told defenda nt to leave, which he did. Police took Ronnie to the hospital where he died from blood loss caused by the stab wound to his back that ha d punctured his lung and the pe ricardium around the heart. Police stopped defendant as he was drivin g away from the house. Defendant said he had been awakened by his brother punchin g him. He fought back, then retrieved a knife, stabbed his brother in the shoulder, and then “punched him on e more time in the face” because “he was pissed off at all of th e times his brother picked on him.” The following morning, poli ce took defendant to the po lice station to interview him. Defendant said he grabbed the knife to go in the bedroom and get his daughter and when he did, Ronnie was “acting up again rea dy to swing on [him] a nd that’s when [he] stabbed [Ronnie.]” When defendant went to retrieve the knife, he thought his girlfriend was not in the room and he was not sure if his daughter was. Defendant “was pissed at [Ronnie for] being so fucking ph ysical.” Defendant went back and hit Ronnie because of “childhood . . . memories” that included Ro nnie punching him without provocation. B The Defense Defendant lived in the Live Oak Road home with Ronnie on the weekends and with a roommate in a different house on th e weekdays, but defendant was planning on moving out altogether because he and R onnie had “got[ten] into numerous heated altercations” and defendant “f igured [he] needed to sepa rate from [Ronnie] . . . so it didn’t come to violence.” On the night defendant killed Ronnie, Ro nnie came into defe ndant’s be droom and yelled at him about leaving the eggs out. De fendant got out of bed, approached Ronnie,5 and said, “ ‘Seriously?’ ” Ronnie responded that he was sick of defendant disrespecting him and then hit defendant. The brothers started fist fighting and defendant told his girlfriend to grab his daughter. Defendant then grabbed Ronnie and asked Ronnie why he was doing this. Ronnie gave him “the angry face,” the one showing he was mad at defendant. Ronnie broke free of defendant and then punched defendant in the temple. Reeling from the punch, defendant ran into Sam, who was now in the bedroom, and defendant ran out. Defendant looked around for his daughter but could not see her. He began to panic, thinking she might still be in the room, so he “grabbed the knife for protection.” He “fear[ed] that [Ronnie] would grab [defendant’s daughter] in order to get to [defendant].” When defendant went back into the bedroom, he “pushed on Sam’s left shoulder to locat e [his] daughter in the room [and] was hit by Ronnie.” 2 Defendant reacted by stabbing Ronnie in the shoulder. Wh en Ronnie was on the front porch being aided by Ronnda, defendant hit Ronnie two more times “because of childhood memories” that included Ronnie repeated ly sucker punching him. Defendant also presented detailed test imony from his mother, his sister Jolene Matheson (Jolene), and himself about the abus e Ronnie had perpetrated on the family and the effects of that abuse. 3

2 Defendant’s daughter had already come out of the room, but defendant did not know that at the time.

3 We explain this testimony in de tail in part II of the discussion.6 DISCUSSION I Defendant Has Forfeited His Contention Rela ting To The Admissibility Of The Expert Testimony By Failing To Secure A Ruling From The Trial Court On The Theories He Advan ces In The Appellate Court Defendant contends the court violated his constitutional right to present a complete defense when it excluded the expert testimony. He argues that the expert testimony was admissible to assist the jury in evaluating the facts from defendant’s perspective. Defendant has forfeited this ar gument by not raising it in the trial court. A Facts Leading Up To The Trial Court’s Ruling Excluding The Expert Testimony And The Trial Court’s Ruling In seeking to introduce the expert test imony, defense counsel filed a two-page “offer of proof regarding testim ony of defense expert.” (Cap italization omitted.) In it, he argued “[d]efendants are entitled to present a defense to the char ges against them at trial,” this includes affirmative defens es, and “without the assistan ce and testimony of his expert witness,” defendant “will have no means of es tablishing his affirmative defenses,” which here included lawful self-def ense and defense of others. Defense counsel referred to the expert witness’s family violence assessment for defendant. The assessment was based on a review of the murder, intervie ws with defendant and his family members, and the expert’s re counting of the effects of domestic violence on children and families and the coercive c ontrol an abuser has on the abused. The assessment also contained a discussion of Evidence Code section 1107 regarding the admissibility of expert evidence regarding intimate partner batte ring and why Ronnie’s abuse of defendant qualified as intimate partner battering. Thereafter, the prosecutor filed an in limine motion to exclude the expert testimony, arguing that it did not qualify as intimate partner battering and in any event it7 was excludable under Evidence Code sec tion 352 because there was no evidence to support a theory that defendant killed Ronnie in self-defense or defense of others. The prosecutor further argued that if the court did allow the testimony, the expert could not give her opinion about defendant’s actual state of mind, could not testify defendant’s actions were reasonable, and could not testify about inadmissible hearsay. After reviewing these pleadings, the cour t ordered the parties to file further pleadings on whether the expert testimony fit within Evidence Code section 1107. In response, the prosecutor filed a short brief arguing a “brotherly re lationship” did not qualify. Defense counsel filed a brief arguing that it did, and that if it did not then the evidence was admissible under the category of “ ‘social frame work [ sic ] testimony.’ ” Defense counsel further argued that so long as there was eviden ce from which a jury could infer that the lesser included offe nse of voluntary mansla ughter was committed, whether based on heat of passion or imperfect self-defense, the court had to instruct on voluntary manslaughter. The court then held a hear ing on the admissibility of the expert testimony and had a lengthy discussion with the parties on Eviden ce Code section 1107. The court prefaced its ruling by stating, “[t]he sole question before me is, does [section] 1107 allow the brother of the victim to present the intimat e partner battering defe nse identified by that section?” The court then ruled it “does no t believe that Evidence Code section 1107 applies to a brother” and the expert testim ony could not “be used by the defendant under the authority of Evidence Code section 1107.” B Defendant Has Forfeited His Issues Relating To The Admissibility Of The Ex pert Witness Testimony On appeal, defendant does not contend that the expert testimony was admissible under Evidence Code section 1107. Rather, he argues the expert witness testimony was admissible to assist th e jury in evaluating the facts from his perspective, which he raised8 in his “supplemental briefing” to the trial court as “ ‘social frame work [ sic ] testimony.’ ” Defendant has forfeited this contention and his constitutiona l contention by failing to secure a ruling on them from the trial court. When a defendant raises an issue in the trial court, but the trial court does not rule on the issue, it is the defendant’s obligation “to press for such a ruling and to object . . . until he obtain[s] one.” ( People v. Morris (1991) 53 Cal.3d 152, 195, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) When a defendant fails to press for such a ruling, he “depriv[es] the trial court of the opportun ity to correct potential error.” ( Morris , at p. 195.) That is what happened here. In his firs t motion, defense coun sel raised the issue of defendant’s right to present a defense through the testimony of the expert, arguing “[d]efendants are entitled to present a defense to the charges against them at trial,” and “without the assistance and testimony of hi s expert witness,” defendant “will have no means of establishing his affirmative defenses ,” which here included lawful self-defense and defense of others. In his supplemental briefing, defendant added the argument that the expert testimony was admissible under the category of “ ‘social frame work [ sic ] testimony.’ ” However, when it came time fo r the hearing on thes e matters, the court stated the sole question before it was whether the evidence was admissible under Evidence Code section 1107 re garding intimate partner batte ring and then proceeded to exclude the evidence after considering that co de section only. At no point did defense counsel mention that he had raised an alte rnative theory of admissibility (the social framework theory) or that the court’s ruling excluding the evid ence deprived defendant of his constitutional right to present a defense. In failing to do so, defense counsel forfeited these arguments on appeal. ( People v. Morris , supra , 53 Cal.3d at p. 195; In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1 [“correct term is ‘forfeiture’ rath er than ‘waiver’ ”].)9 II Defense Counsel Was Not Ineffective Defendant contends his tria l counsel was ineffective for failing to press for rulings on the admissibility of the expert witness te stimony under the social framework theory and a constitutional theory and for failing to seek admission of this testimony under Evidence Code section 801, which pertains to the admissibility of expert testimony. As we explain, we disagree that trial counsel was ineffective because his conduct did not prejudice defendant. (See People v. Waidla (2000) 22 Cal.4th 690, 718 [deficient performance is the first prong of an ineffe ctive assistance of counsel analysis and prejudice is the second].) 4 The evidence that Ronnie abused defenda nt and their family and the evidence of the psychological effects of that abuse was alr eady before the jury, the instructions told the jury it could co nsider Ronnie’s abuse in deciding whether defendant’s conduct and beliefs were reasonable, and the jury appeared not to be focused on whether the killing was jus tified but rather on whether the killing was murder or manslaughter. In defense counsel’s initial motion to th e court, he stated that “without the assistance and testimony of his expert w itness,” defendant “will have no means of establishing his affirmative defenses,” whic h here included lawful self-defense and defense of others. This turned out not to be true. At trial, defendant was able to present testimony through his mother, his sister Jole ne, and himself that Ronnie engaged in a pattern of physical abuse against defendant and other family members that started when the boys were young. Their mother testified th at when her husband left th e family, Ronnie became the father figure and would “hit [defendant] for no reason.” Ronnie wanted to “put down his

4 Here, we do not need to analyze whether defense counsel’s performance was deficient, because it was not prejudicial.10 rules and his regulations as to how [to] run a family and . . . it woul d be done his way.” “[H]e had like this bipolar grandi osity, this anger issue, and he tried to self medicate it with marijuana and alcohol.” “He has always threatened somebody, depend[ing] on what kind of mood he is in.” “Som etimes he can be the sweetest person in the world . . . . But if things go the wrong way on hi m, he can get very violent and very angry and relentless until he gets his answer or whatever he is tr ying to prove he wants. . . .” Once, Ronnie threw hot vegetables at her because “they we re cooked wrong.” Ab out one month before defendant killed Ronnie, Ronnie was physica lly violent with her. Ronnie asked their mother how to spell red and instead (as a joke ) she spelled blue. Ronnie came at her with a chair, grabbed her glasses from her face, a nd when defendant tried to protect their mother, Ronnie said, “ ‘Fuck that, I am going to kill her’ ” and came at her again with the chair until defendant was able to help their mother get away. Their sister Jolene, who was three years younger than defendant, knew Ronnie to be “very hot tempered.” When they were young, Ronnie would “raise his fist first” at defendant, but defendant would walk away from it. “Ronnie’s thing” when the brothers were fighting was “chok[ing] pe ople out.” She had seen Ronnie “choke [defendant] out a few times.” Defendant was afraid of his brother becau se he had done “bad” things to him and “even worse” things to others. As a child, defendant “got a lot of abuse from him.” Ronnie would trip defendant , causing him to fall on his face. Ronnie would kick defendant in the shin with a steel-toed boot. As an adult, once Ronnie “busted out the back window” of a car where defendant was sitting. He had move d to the Live Oak home with Ronnie because he lo ved his brother and wanted to give him more chances. Based partly on this evidence, the court instructed the jury th at the homicide was justified if done for either self-defense or defense of another. Defendant had to reasonably believe that the immediate use of deadly force was necessary to defend against the imminent danger of being killed or suffering gr eat bodily in jury or the11 imminent “danger of being physically accost ed or injured.” “If you find that Ronnie Matheson threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant ’s conduct and beliefs were reasonable.” “Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self[-]defe nse measures against that person.” What the expert witness testimony would have addressed (as reflected in the assessment) was the psychological explanation of the effects of Ronnie’s behavior on his victims, i.e., that Ronnie had “achieved domin ance through his bullying tactics,” that all of the incidents of abuse Ronnie perpetrated we re a “pattern of coercive control,” and that victims such as defendant exhibit a “ ‘parad oxical attachment’ ” to their abuser. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1086 [an expert witness can testify as to the effects of the batterer’s behavior on the victim].) But the jury had already heard similar testimony. As to achieving dominance through bullying tactics and the pattern of control, Ronnie b ecame the father figure of the household and wanted to “put down his rules and his re gulations as to how [to] run a family and . . . it would be done his wa y.” “He has always threatened somebody, depend[ing] on what kind of mood he is in.” As to the paradoxical attachment, defendant testified he had moved to th e Live Oak Road home with Ronnie because he loved his brother and wanted to give him more chance s. Defendant provides us no reason to believe that the jury would have viewed th e evidence of the psychological effects of Ronnie’s behavior differently had it come from the expert. Finally, and importantly, it appears the jury was not focused on acquittal as a realistic possibility. When the jury was having difficulty r eaching a verdict, it told the court it was split between second degree murder and voluntary manslaughter. Defendant’s reasonable belief in the need to de fend himself or his daughter, which is at what the expert’s testimony woul d have been directed, was relevant to determine whether the killing was justified, not as a distinguishing factor betw een murder and manslaughter.12 For these reasons, defendant was not prej udiced by defense counsel’s failing to press for rulings on the admissi bility of the expert witne ss testimony under the social framework theory and a constitu tional theory and for failing to seek admission of this testimony under Evidence Code section 801 pertaining to expert testimony. DISPOSITION The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

BUTZ , J.

MAURO , J.