Stanford Law School - Robert Crown Law Library

Filed 8/2/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S113929
v.
Ct.App. 2/6 B153455
CORNELL COOPER BROWN,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. MA022297

At defendant’s trial on charges relating to domestic violence, the
prosecution offered testimony from an expert witness to explain that domestic
violence1 victims often later deny or minimize the assailant’s conduct. Defendant
objected. He contended such testimony did not fall within the scope of Evidence
Code section 1107,2 which authorizes expert testimony on “battered women’s
syndrome.” He argued the prosecution had failed to show that the victim here was
a battered woman because it offered no proof that defendant had abused her on
more than one occasion. The trial court overruled the objection and admitted the

1
We use the term “domestic violence” to refer to violence between persons
who live together in an intimate relationship. Evidence Code section 1107 uses a
broader definition of “domestic violence” that incorporates Family Code section
6211, which includes violence against children.
2
Unless otherwise noted, statutory citations are to the Evidence Code.

1

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evidence. Defendant was convicted, and the Court of Appeal affirmed the
judgment. We granted defendant’s petition for review.
Two Court of Appeal decisions have addressed the issue whether expert
testimony about the behavior of domestic violence victims is admissible when
only one incident of abuse has occurred: People v. Gomez (1999) 72 Cal.App.4th
405 (Gomez) held it inadmissible; People v. Williams (2000) 78 Cal.App.4th 1118
(Williams) held it admissible. We conclude that in this case the evidence was
admissible under Evidence Code section 801, because it would assist the trier of
fact in evaluating the credibility of the victim’s trial testimony and earlier
statements to the police, by providing relevant information about the tendency of
victims of domestic violence later to recant or minimize their description of that
violence. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) We
therefore do not reach the question whether the expert testimony here was also
admissible under section 1107.
I. FACTS
Defendant and Kimberly Pipes, the victim, had been dating on and off for
about 11 years. On April 17, 2001, they were living together in an apartment with
Pipes’s four children and Carrie Miller, a woman who took care of the children
when Pipes worked.
Pipes rented the apartment from Leland Jordan, defendant’s cousin. At 2
a.m. on April 17, Jordan came to the apartment to demand payment of back rent.
When Pipes refused because Jordan had not fixed the water system, Jordan told
Pipes to vacate the apartment. After Jordan left, Pipes and defendant began
arguing. Pipes was upset because she thought defendant should have taken her
side in the argument with Jordan.
Shortly thereafter, Deputy Sheriff James Wheeler responded to a telephone
call from Pipes and found her with Carrie Miller in a parked car near the
2

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apartment. Pipes told Wheeler she had been assaulted. She said she tried to leave
the apartment after an argument with defendant but he put his arm around her neck
and dragged her to the bedroom. Defendant then went to the living room and
returned to the bedroom with a steak knife and a barbeque fork, telling Pipes he
would kill her if she left. She was afraid. When she said she wanted to leave,
defendant replied, “I don’t want you having my baby,” and punched her in the
stomach.3 Miller told Deputy Wheeler that defendant had threatened to kill both
her and Pipes if they left. He also threatened to have some women come over to
beat up Miller and Pipes. Deputy Wheeler arrested defendant and found the steak
knife where Pipes said it was.
Pipes’s trial testimony differed from what she had told Deputy Wheeler
earlier. At trial she said that when she started to leave the apartment, defendant
took hold of her arm, not her neck, and pulled her back to the bedroom. She lay
down for a while, then when she got up to leave again he slapped her in the
stomach. Defendant had never struck her before. She lay down again for a few
minutes, then she woke up Miller, went with Miller and the children to the car,
drove a short distance, and called the police. Pipes said that defendant never
threatened her.
Pipes testified that when she went into the apartment with the police, the
officers said they did not have “enough to go on.” Pipes then picked up the knife
and fork and said defendant had “poked” them at her. Pipes said she did this so
defendant would get arrested; in fact, he did not threaten her with the knife and
fork. When asked whether defendant was doing anything against her will, Pipes
replied, “not to the full extent, no.”

3
Pipes thought she was pregnant, and she told defendant so. It later turned
out she was not.
3

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Carrie Miller was not available to testify at the trial, so the prosecutor read
to the jury Miller’s testimony from the preliminary hearing. There Miller testified
that she was asleep until Pipes woke her just before they left the apartment, so she
did not know what happened between Pipes and defendant. She denied that
defendant had ever threatened her.
Jeri Darr, Program Manager of the Antelope Valley Domestic Violence
Council, testified as an expert witness for the prosecution. Before permitting the
jury to consider Darr’s testimony, the trial court instructed: “This evidence is not
going to be received and must not be considered by you to prove the occurrence of
the act or acts of abuse which form the basis of the crimes charged.” Darr
testified: Domestic violence victims, after describing the violence to the police,
often later repudiate their description. There is typically “anywhere between 24
and 48 hours where victims will be truthful about what occurred because they’re
still angry, they’re still scared.” But “after they have had time to think about it . . .
it is not uncommon for them to change their mind.” About 80 to 85 percent of
victims “actually recant at some point in the process.” Some victims will say they
lied to the police; almost all will attempt to minimize their experience.
Darr explained why victims of domestic violence may give conflicting
statements: They may be financially dependent on the defendant. They may be
pressured, or even threatened, by the defendant or other family members. They
may still love the defendant and hope that things will get better. Darr stated:
“[T]hey may tell us as advocates the truth but may recant once they realize that
this is not going to be . . . 30 days in county jail or time served and go to
counseling. They don’t realize that oftentimes these types of cases add up and can
compile and you could be looking at prison time.” Darr testified that the tendency
to recant or minimize accounts of violence applies to victims who have only one
4

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incident of abuse. According to Darr, a victim’s attempt to leave “can often
escalate a non-physically abusive relationship . . . into physical abuse.”
Defendant objected to the admission of Darr’s testimony. Citing Gomez,
supra, 72 Cal.App.4th 405, he argued that the evidence lacked a foundation
because the prosecution had failed to present proof of any earlier incident of
abuse. The trial court overruled the objection, relying on Williams, supra, 78
Cal.App.4th 1118.
The jury convicted defendant on three counts: count II – threatening to
commit a crime that would result in death or great bodily injury against Pipes
(Pen. Code, § 422); count III – false imprisonment by violence against Pipes (id.,
§ 236); and count VI – misdemeanor battery against Pipes (id., § 243, subd.
(e)(1)).4 The jury was unable to agree on the charge of assault with a deadly
weapon on Pipes, and on the two charges relating to Miller; these charges were
later dismissed at the prosecutor’s request. The jury found that defendant had four
prior convictions, and in each instance had not remained free from prison custody
for more than five years. One of the prior convictions involved a serious or
violent felony.
The trial court imposed a sentence of three years on count II (false
imprisonment by violence), doubled as a second strike. With additional counts
and enhancements, the sentence totaled 10 years and eight months.
The Court of Appeal affirmed the judgment. Defendant’s petition for
review raised a single issue – whether the expert testimony here was admissible in
the absence of evidence of more than one incident of abuse.

4
Counts III and VI are supported by both Pipes’s statements to Deputy
Wheeler and her trial testimony. Count II is the only conviction that rests entirely
on Pipes’s statement to Deputy Wheeler.
5

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II. LEGAL ANALYSIS

A. The Nature of Domestic Violence
Domestic violence is a serious social and legal problem in the United
States, occurring in every economic, racial, and ethnic group. (Developments in
the Law – Domestic Violence (1993) 106 Harv. L.Rev. 1499, 1501 (Developments
in the Law); see American Psychological Assn., Violence and the Family (1997)
p. 9 (APA).) It differs from other forms of criminal violence in several ways:
(1) As compared to other crimes, domestic violence is vastly underreported,
and until the last 20 to 30 years was largely hidden from public examination. (See
State v. Kelly (N.J. 1984) 478 A.2d 364, 370; APA, supra, p. 9; Waits, The
Criminal Justice System’s Response to Battering: Understanding the Problem,
Forging the Solutions (1985) 60 Wash. L.Rev. 267, fn. 1 (Waits).)
(2) In most cases, the batterers are male, the victims female.5
(Developments in the Law, supra, 106 Harv. L.Rev. at p. 1501, fn. 1; see Okun,
Woman Abuse: Facts Replacing Myths (1986) pp. 39-40.)
(3) “A fundamental difference between family violence and other forms of
violence (such as street violence) is that family violence occurs within ongoing
relationships that are expected to be protective, supportive, and nurturing. The ties
between victim and victimizer often are the strongest emotional bonds, and
victims frequently feel a sense of loyalty to their abusers. . . . [¶] Consequently,
even a victim who reports an abusive family member to police may later protect
the person by denying, minimizing, or recanting the report.” (APA, supra, p. 5;
see Waits, supra, 60 Wash. L.Rev. at pp. 306-307.) Thus, the prosecution of
domestic violence cases presents particular difficulties. “Unlike conventional

5
The views expressed in this opinion, however, are equally applicable to
cases in which the victim is male.
6

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cases . . . where prosecutors rely on the cooperation and participation of
complaining witnesses to obtain convictions, in domestic violence cases
prosecutors are often faced with exceptional challenges. Such challenges include
victims who refuse to testify, who recant previous statements, or whose credibility
is attacked by defense questions on why they remained in a battering relationship.”
(Rogers, Prosecutorial Use of Expert Testimony in Domestic Violence Cases:
From Recantation to Refusal to Testify (1998) 8 Colum. J. Gender & L. 67, 68
(Rogers); see Schroeder, Using Battered Woman Syndrome Evidence in the
Prosecution of a Batterer (1991) 76 Iowa L.Rev. 553 (Schroeder).)
B. The Battered Woman Syndrome Theory
The theory of the “battered woman syndrome” originated in the works of
psychologist Lenore Walker.6 (Walker, The Battered Woman (1979); Walker,
The Battered Woman Syndrome (1984); Walker, Terrifying Love: Why Battered
Women Kill and How Society Responds (1989).) Dr. Walker relied on the
psychological concept of “learned helplessness,” under which an animal, or
person, repeatedly unable to protect itself against injury, eventually learns that
resistance is useless and becomes passive and despondent. (See People v. Aris
(1989) 215 Cal.App.3d 1178, 1195; Faigman & Wright, The Battered Woman
Syndrome in the Age of Science (1997) 39 Ariz. L.Rev. 67, 71-75 (Faigman);
Griffith, Battered Woman Syndrome: A Tool for Batterers? (1995) 64 Fordham
L.Rev. 141, 163-173.) Thus, to fit under Dr. Walker’s theory as a battered
woman, the victim must go through the battering cycle at least twice, because
under Walker’s theory a woman who is beaten once and takes action against the

6
Originally, Walker used the term “battered woman syndrome.” Over time,
the term has become plural and possessive, as reflected in section 1107, court
decisions, and articles that refer to the “battered women’s syndrome.”
7

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batterer is not suffering from a pathological state of learned helplessness. (See
Walker, The Battered Woman, supra, p. xv.)
Dr. Walker’s “battered woman syndrome” theory has been criticized as
lacking empirical support (Faigman, supra, 39 Ariz. L.Rev. at p. 68), and as
demeaning to women (id. at p. 69). In particular, many critics assert that victims
of domestic violence do not typically suffer from a pathological condition. (See
People v. Humphrey (1996) 13 Cal.4th 1073, 1083-1084, fn. 3 (Humphrey);
Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of
Batterers Through Expert Witness Testimony of the Common Experiences of
Battered Women (1992) 2 So.Cal. Rev.L. & Women’s Stud. 219, 226, fn. 31, and
articles there cited (Bowman); Dutton, Understanding Women’s Responses to
Domestic Violence: A Redefinition of Battered Woman Syndrome (1993) 21
Hofstra L.Rev. 1191, 1200-1201 (Dutton).) Thus, the critics maintain that the
admissibility of expert evidence on the reactions of domestic violence victims
should not depend on proof that the victim falls within Dr. Walker’s description of
a “battered woman.” (See Bowman, supra, 2 So.Cal. Rev.L. & Women’s Stud. at
p. 236; Dutton, supra, 21 Hofstra L.Rev. at pp. 1200-1201.)
C. Evidence Code Sections 801 and 1107
Section 801, subdivision (a), permits the introduction of testimony by a
qualified expert when that testimony may “assist the trier of fact.”
Section 1107, subdivision (a), provides: “In a criminal action, expert
testimony is admissible by either the prosecution or the defense regarding battered
women’s syndrome, including the nature and effect of physical, emotional, or
mental abuse on beliefs, perceptions, or behavior of victims of domestic violence,
except when offered against a criminal defendant to prove the occurrence of the
act or acts of abuse which form the basis of the criminal charge.”
8

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1. Applicability of sections 801 and 1107
The Attorney General contends that the expert testimony of Jeri Darr was
admissible under both sections 801 and 1107. Defendant, however, argues the
Attorney General cannot now rely on section 801 because it was not raised either
at trial or in the Court of Appeal.
If a judgment rests on admissible evidence it will not be reversed because
the trial court admitted that evidence upon a different theory, a mistaken theory, or
one not raised below. (See People v. Mason (1991) 52 Cal.3d 909, 944; see
People v. Smithey (1999) 20 Cal.4th 936, 972.) As we said in People v. Zapien
(1993) 4 Cal.4th 929: “ ‘No rule of decision is better or more firmly established
by authority, nor one resting upon a sounder basis of reason and propriety, than
that a ruling or decision, itself correct in laws, will not be disturbed on appeal
merely because given for the wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion.’ ” (Id. at p. 976, quoting
D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
That principle does not apply, however, when the “new theory was not
supported by the record made at the first hearing and would have necessitated the
taking of considerably more evidence, [or when] the defendant had no notice of
the new theory and thus no opportunity to present evidence in opposition.”
(Green v. Superior Court (1985) 40 Cal.3d 126, 137-138 (lead opn.).)7 That

7
Although Justice Kaus’s opinion in Green was not a majority opinion, its
position has been endorsed in later decisions of this court. (See, e.g., People v.
Robles (2000) 23 Cal.4th 789, 801, fn. 7; People v. Clark (1993) 5 Cal.4th 950,
993, fn. 19; People v. Sims (1993) 5 Cal.4th 405, 450, fn. 9.)
9

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exception does not apply here because the evidence as to admissibility was fully
developed in the trial court. (See Green, at p. 138.)
Defendant argues that the testimony of expert witness Jeri Darr, the
prosecutor’s closing argument to the jury, and the jury instructions were based on
the premise that Darr’s testimony was offered under section 1107; if the evidence
had been offered under section 801, he says, he could have raised appropriate
objections.
With respect to expert witness Jeri Darr, neither she nor the prosecutor
mentioned the term “battered women’s syndrome” during the prosecutor’s direct
examination of her; the term was mentioned only in questions to Darr by defense
counsel on cross-examination and by the trial court, and a brief reference to it
occurred on the prosecutor’s redirect examination of Darr in response to defense
counsel’s questions.8 As to the prosecutor’s closing argument, it was based on
Darr’s testimony that when domestic violence victims testify they tend to retract or
minimize the violence that occurred. The prosecutor did not claim that defendant
had beaten the victim before or that defendant fit the profile of a batterer. Thus,
neither Darr’s testimony nor the prosecutor’s argument were premised on the
admissibility of her testimony under section 1107. Defendant, of course, was free
to raise at trial the asserted lack of admissibility under section 801. Moreover, in
this court, defendant has had a chance to present his arguments on the testimony’s
admissibility under that section. Therefore, defendant cannot complain that the

8
The record thus refutes the dissent’s statement that expert witness Darr
“testified at length as to the general causes and effects” of battered women’s
syndrome. (Dis. opn., post, at p. 3.)

10

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prosecutor’s failure to mention section 801 as a basis for admitting the expert
evidence deprived him of the opportunity to object to its admissibility.
The instruction in question, CALJIC No. 9.35.1, advised the jury:
“Battered women’s syndrome research . . . begins with the assumption that
physical abuse has occurred, and seeks to describe and explain the common
reactions of women to that experience. As distinguished from that research
approach, you are to presume the defendant innocent. . . .” Defendant argues that
by stating that research begins with the assumption that physical abuse has
occurred, CALJIC No. 9.35.1 implicitly assumes the defendant is guilty. We
disagree; the instruction expressly says that the jury is not to assume guilt, but “to
presume the defendant innocent.” (See CALJIC No. 10.69 [instructions on rape
trauma syndrome and child abuse accommodation syndrome]; People v. Gilbert
(1992) 5 Cal.App.4th 1372, 1386-1387.)
2. California cases applying sections 801 and 1107
The first California case to address the admissibility of expert evidence on
domestic violence was People v. Aris, supra, 215 Cal.App.3d 1178 (Aris), which
the Court of Appeal decided in 1989 before the Legislature enacted section 1107.
In Aris, the trial court relied on section 80l to uphold the trial court’s admission of
Dr. Walker’s testimony for the purpose of disabusing the jury of common
misconceptions concerning the behavior of victims. (Aris, at pp. 1193-1194.) The
Court of Appeal held that expert testimony was also admissible to explain how the
victim’s experiences as a battered woman affected her perceptions of danger, its
imminence, and what actions were necessary to protect herself. (Id. at p. 1198.)
Notwithstanding Aris, trial courts often continued to exclude such expert
evidence. (See Assem. Com. on Public Safety, Rep. on Assem. Bill No. 785
(1991-1992 Reg. Sess.) p. 2 (Assembly Committee).) Consequently, the
Legislature in 1991 enacted section 1107 to ensure the admissibility of expert
11

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evidence on domestic violence for both the prosecution and the defense. (See Cal.
Sen. Com. on Judiciary, Battered Woman Syndrome: Expert Testimony (1991) p.
3 (Senate Committee).)
After the Legislature’s enactment of section 1107, the defendant in People
v. Romero (1994) 8 Cal.4th 728 contended that her trial attorney incompetently
failed to investigate a defense based on the battered women’s syndrome. In
addressing that contention, we explained in a footnote: “Battered women’s
syndrome has been defined as ‘a series of common characteristics that appear in
women who are abused physically and psychologically over an extended period of
time by the dominant male figure in their lives.’ ” (Id., at p. 735, fn. 1, citing State
v. Kelly, supra, 478 A.2d 364, 371.) Romero involved procedural requirements in
habeas corpus proceedings, and thus did not discuss the admissibility of expert
testimony on domestic violence. Two years later, that issue was presented in
Humphrey, supra, 13 Cal.4th 1073.
Humphrey involved the admissibility of expert evidence on domestic
violence under sections 1107 and 801. We began our discussion of that issue by
quoting the description of battered women’s syndrome in People v. Romero,
supra, 8 Cal.4th at page 735, footnote 1. (Humphrey, supra, 13 Cal.4th at p.
1084.) Humphrey noted that according to amici curiae California Alliance
Against Domestic Violence et al., “the preferred term among many experts today
is ‘expert testimony on battering and its effects’ or ‘expert testimony on battered
women’s experience,’ ” because, among other things, it avoids characterizing
victims of domestic violence as mentally ill. (Humphrey, supra, 13 Cal.4th at pp.
1083-1084, fn. 3.)
After concluding that the expert testimony was relevant to whether the
victim acted reasonably, Humphrey went on to hold that the expert evidence was
also relevant to the victim’s credibility, because it would assist the jury “by
dispelling many of the commonly held misconceptions about battered women.”
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(Humphrey, supra, 13 Cal.4th at p. 1087, quoting People v. Day (1992) 2
Cal.App.4th 405, 416.) We noted that McAlpin, supra, 53 Cal.3d 1289, held that
expert testimony regarding parental reluctance to report child molestation was
admissible under section 801 to bolster a witness’s credibility. Citing McAlpin,
we concluded: “[T]he expert testimony in this case was ‘needed to disabuse jurors
of commonly held misconceptions.’ . . . Thus, it was admissible under Evidence
Code sections 801 and 1107.” (Humphrey, supra, 13 Cal.4th at p. 1088.)
This court in Humphrey, supra, 13 Cal.4th 1073, did not decide the
admissibility of expert testimony on domestic violence in a case involving only
one incident of abuse. That issue first came before the Court of Appeal in 1999 in
Gomez, supra, 72 Cal.App.4th 405. In that case, prosecution expert Gail Pincus
testified at trial: “[A]bout 80 percent of the time a woman who has been ‘initially
assaulted’ by a boyfriend, husband, or lover will recant, change, or minimize her
story. This recanting does not happen only after there has been a continuing
pattern of abuse. In fact, depending on the severity of the incident, it is more
likely to occur after a first incident.” (Id. at p. 411.) The Gomez court, however,
considered itself bound by this court’s description of the battered women’s
syndrome as applicable only to women “who are abused physically and
psychologically over an extended period of time.” (People v. Romero, supra, 8
Cal.4th 728, 735, fn. 1, italics added, quoted in Humphrey, supra, 13 Cal.4th at
pp. 1083-1084.) Gomez therefore concluded that Pincus’s testimony was
inadmissible because a “single violent incident, without evidence of other physical
or psychological abuse, is not sufficient to establish that a woman suffers from
battered women’s syndrome.” (Gomez, supra, 72 Cal.App.4th at p. 417.)
The next year, the Court of Appeal in Williams, supra, 78 Cal.App.4th
1118, considered expert testimony from Jeri Darr, the same expert who testified
here. In Williams, as in this case, Darr explained that after the initial incident of
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abuse there was a window of about 24 to 48 hours during which the domestic
violence victim was likely to tell the truth, but that thereafter the victim was likely
to deny or minimize the incident. Disagreeing with Gomez, supra, 72 Cal.App.4th
405, the Williams court held the expert testimony admissible even though the
victim had described only one incident of abuse. Williams explained: “There is
nothing in Evidence Code section 1107 to suggest that the Legislature intended
that a batterer get one free episode of domestic violence before admission of
evidence to explain why a victim of domestic violence may make inconsistent
statements about what occurred and why such a victim may return to the
perpetrator.” (Williams, supra, at p. 1129.)9
3. Admissibility of the expert evidence in this case
In attempting to resolve the issue here by construing section 1107 we
confront a conundrum. On the one hand, section 1107 speaks of expert testimony
“regarding battered women’s syndrome”; that syndrome, as set out by Dr. Lenore
Walker and as described by the Court of Appeal in Aris, supra, 215 Cal.App.3d
1178, and by this court in People v. Romero, supra, 8 Cal.4th 728, and Humphrey,
supra, 13 Cal.4th 1073, pertains to women who have been subjected to an
extended period of abuse. On the other hand, section 1107 authorizes the expert to
testify regarding “the nature and effect of physical, emotional, and mental abuse
on the beliefs, perceptions, or behavior of victims of domestic violence.” Persons
who have only been assaulted once are still “victims of domestic violence.”10

9
The decisions of other states on the admissibility of expert testimony after a
single incident of abuse are also in conflict. (Compare State v. Niemeyer (Conn.
1999) 740 A.2d 416, 420 [admissible] with State v. Stringer (Mont. 1995) 897
P.2d 1063, 1070 [inadmissible].)
10
One commentator asserts: “In an effort to increase the knowledge available
to the jury, the section [§ 1107] does not limit the evidence to . . . the effects of
(Footnote continued on next page.)
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Here, however, the admission of expert testimony does not depend on
fitting it under section 1107. As we noted earlier, under subdivision (a) of section
801, expert testimony is admissible on any subject “sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” Before the
Legislature’s enactment of section 1107, the Court of Appeal in Aris, supra, 215
Cal.App.3d 1178, upheld the admissibility of expert testimony on the behavior of
victims of domestic violence. In People v. Day, supra, 2 Cal.App.4th 405, 415-
417, the Court of Appeal held that in a trial before the enactment of section 1107
defense counsel was incompetent for not presenting expert testimony on the
behavior of victims of domestic violence. Day relied on McAlpin, supra, 53
Cal.3d 1289, which this court decided under section 801. And in Humphrey,
supra, 13 Cal.4th 1073, 1088, we upheld the admission of expert testimony under
both sections 1107 and 801.
The Legislature, courts, and legal commentators have noted the close
analogy between use of expert testimony to explain the behavior of domestic
violence victims, and expert testimony concerning victims of rape or child abuse.
(See Sen. Com., supra, p. 4; Aris, supra, 215 Cal.App.3d at p. 1193; People v.
Day, supra, 2 Cal.App.4th at p. 415; Schroeder, supra, 76 Iowa L.Rev. at p. 570.)
In People v. Bledsoe (1984) 36 Cal.3d 236, we held expert testimony concerning
rape victims – the rape trauma syndrome – to be admissible under section 801 to
dispel common misconceptions about how such victims behave (Bledsoe, at

(Footnote continued from previous page.)

repeated (at least two incidents) and severe violence over a substantial period of
time . . . . Instead, the statute is intended to permit all relevant evidence of the
effects of abuse, including a single incident of violence in a relationship . . . .”
(Bowman, supra, 2 So.Cal. Rev.L. & Women’s Stud., at p. 237.)
15

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pp. 242-243), but not to prove that the victim had actually been raped (id. at p.
251). And in People v. Bowker (1988) 203 Cal.App.3d 385, the Court of Appeal
said that when an allegedly abused child “recants his story in whole or in part, a
psychologist could testify on the basis of past research that such behavior is not an
uncommon response for an abused child.” (Id. at p. 394.) Although the expert in
Bowker had referred to the “child abuse accommodation syndrome,” the Court of
Appeal observed: “[A]n expert has little need to refer to the syndrome in order to
testify that a particular type of behavior is not inconsistent with a child having
been abused.” (Id. at p. 392.)
Thereafter, in McAlpin, supra, 53 Cal.3d 1289, we made it clear that
admissibility of expert testimony does not depend on a showing based on a
recognized “syndrome.” That case concerned expert testimony about the behavior
of parents of abused children. We first explained the admissibility of evidence
about the behavior of the children themselves: “[E]xpert testimony on the
common reactions of child molestation victims is not admissible to prove that the
complaining witness has in fact been sexually abused; it is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the child’s
conduct after the incident – e.g., a delay in reporting – is inconsistent with his or
her testimony claiming molestation. ‘Such expert testimony is needed to disabuse
jurors of commonly held misconceptions about child sexual abuse, and to explain
the emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (Id. at pp. 1300-1301.)
We then addressed the admissibility of evidence relating to the credibility
of the mother of an abused child. Notwithstanding the absence of a “parents of
abused children syndrome” encompassing such evidence, McAlpin held it
admissible, explaining: “It is reasonable to conclude that on the basis of their
intuition alone many jurors would tend to believe that a parent of a molested child
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. . . would promptly report the crime to the authorities. . . . Yet here the
prosecution had evidence to the contrary – the expert opinion of Officer Miller
that in fact it is not at all unusual for a parent to refrain from reporting a known
child molestation, for a number of reasons. Such evidence would therefore ‘assist
the trier of fact’ (Evid. Code, § 801, subd. (a)) by giving the jurors information
they needed to objectively evaluate [the mother’s] credibility.” (McAlpin, supra,
53 Cal.3d at p. 1302; see also People v. Housley (1992) 6 Cal.App.4th 947, 955-
956 [expert testimony admissible to explain why child recanted her claim that the
defendant molested her].)
Similar reasoning supports admissibility of the expert testimony here.
When the trial testimony of an alleged victim of domestic violence is inconsistent
with what the victim had earlier told the police, the jurors may well assume that
the victim is an untruthful or unreliable witness. (See Arcoren v. United States
(8th Cir. 1991) 929 F.2d 1235, 1239; State v. Stringer, supra, 977 P.2d at pp.
1068-1069; Schroeder, supra, 76 Iowa L.Rev. at p. 573.) And when the victim’s
trial testimony supports the defendant or minimizes the violence of his actions, the
jurors may assume that if there really had been abusive behavior, the victim would
not be testifying in the defendant’s favor. (See Humphrey, supra, 13 Cal.4th at
p. 1087; People v. Day, supra, 2 Cal.App.4th at p. 415; Commonwealth v.
Goetzendanner (Mass.App.Ct. 1997) 679 N.E.2d 234, 243-245; State v. Ciskie
(Wash. 1988) 751 P.2d 1165, 1169-1170; Rogers, supra, 8 Colum. J. Gender & L.
at p. 78.) These are common notions about domestic violence victims akin to
those notions about rape and child abuse victims that this court discussed in
People v. Bledsoe, supra, 36 Cal.3d 236, and McAlpin, supra, 53 Cal.3d 1289, and
that the Court of Appeal discussed in People v. Housley, supra, 6 Cal.App.4th at
pages 955-956.
17

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At trial, expert witness Jeri Darr described the tendency of domestic
violence victims to recant previous allegations of abuse as part of the particular
behavior patterns commonly observed in abusive relationships. The “cycle of
violence” in an abusive domestic relationship, she explained, does not necessarily
begin with physical abuse. Most abusive relationships begin with a struggle for
power and control between the abuser and the victim that later escalates to
physical abuse. The initial “tension building stage” of the cycle can appear in
deceptively mundane ways, such as complaints about the cleanliness of the house.
Often the abuser uses psychological, emotional, or verbal abuse to control the
victim. When the victim tries to leave or to assert control over the situation, the
abuser may turn to violence as an attempt to maintain control. Later, even if there
has been no other episode of violence, the victim may change her mind about
prosecuting the abuser and may recant her previous statements.
Here, there was an adequate foundation for that expert testimony, because
evidence presented at trial suggested the possibility that defendant and Kimberly
Pipes were in a “cycle of violence” of the type described by expert Jeri Darr.
Pipes told Deputy Wheeler that defendant had complained about the cleanliness of
the apartment on the evening of the assault. There was also evidence that Pipes
and defendant also argued that evening about defendant’s failure to take her side
in an argument with his cousin (their landlord) regarding the rent, that defendant
told Pipes that if she did not pay the rent she would have to move out, and that he
later threatened to kill her if she did leave. Finally, there was evidence that when
Pipes actually tried to leave the apartment, defendant assaulted her. To assist the
jury in evaluating this evidence, the trial court properly admitted the expert
testimony by Darr.
Defendant argues that a trial court should not admit evidence on domestic
violence under section 801 unless it first determines that the evidence is
18

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admissible under section 1107. He maintains that section 1107 is a special statute
that takes precedence over the more general terms of section 801. (See Code Civ.
Proc., § 1859.) The Legislature, however, was aware that evidence on domestic
violence had been held admissible under section 801 (See Assem. Com., supra, p.
1; Sen. Com., supra, p. 3), and in enacting section 1107, it stated expressly: “The
Legislature does not intend Section 1107 of the Evidence Code to preclude the
admissibility of evidence of battered women’s syndrome under other statutory or
case law.” (Stats. 1991, ch. 812, § 2, p. 3612.)
Finally, defendant contends that the argument for admitting expert testimony
after a single incident of violence is circular, because the jury must first find the
preliminary fact of abuse to be true before it may consider the expert evidence. We
do not share that view. The argument that evidence relating to credibility cannot be
admitted until the underlying charge has been found true was rejected by the Court
of Appeal in People v. Morgan (1998) 58 Cal.App.4th 1210, 1215-1216, a domestic
violence case, and in People v. Housley, supra, 6 Cal.App.4th 947, a child
molestation case. To be sure, this kind of evidence cannot be admitted to prove the
occurrence of the charged crimes. (See § 1107; People v. Bledsoe, supra, 36 Cal.3d
at p. 251; People v. Bowker, supra, 203 Cal.App.3d at p. 394; Humphrey, supra, 13
Cal.4th at p. 1088, fn. 5.) There must be independent evidence of domestic violence
– otherwise the expert testimony about how victims of domestic violence behave
would lack foundation. Here such evidence was supplied by both Pipes’s trial
testimony in court and by her earlier statement to Deputy Wheeler.
Once there is evidence from which the trier of fact could find the charges
true, evidence relating to the credibility of the witnesses becomes relevant and
admissible. There is no rule requiring a preliminary finding that the charged act of
abuse occurred before the jury can consider the evidence relating to credibility. In
rape and child abuse cases, we do not require either the trial judge or the jury to
19

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determine that the victim was raped or abused before the trial court admits expert
testimony on credibility. The same principle applies to admission of expert
testimony on domestic violence.
We therefore conclude that the Court of Appeal did not err in upholding the
trial court’s admission of expert testimony concerning the behavior of victims of
domestic violence even though the evidence showed only one violent incident. Any
language in People v. Gomez, supra, 72 Cal.App.4th 405, contrary to this conclusion,
is disapproved.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
20

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DISSENTING OPINION BY BROWN, J.
We granted review in this case to resolve a conflict in the Courts of Appeal
concerning the admissibility of battered women’s syndrome (BWS) testimony
pursuant to Evidence Code section 11071 in the absence of evidence of a prior
incident of domestic violence. (Compare People v. Williams (2000) 78
Cal.App.4th 1118, with People v. Gomez (1999) 72 Cal.App.4th 405.) Rather
than confront this question directly, the majority holds that the testimony in this
case was, in any event, admissible under the more general provisions of section
801 concerning expert witnesses. In reaching this conclusion, the majority not
only evades determining the proper application of section 1107 and our
responsibility to “secure uniformity of decision” (Cal. Rules of Court, rule
28(b)(1)), but disregards settled principles governing expert testimony. Because I
find the evidence regarding BWS was not relevant to any disputed fact—and its
admission prejudiced defendant—I dissent.
I
In determining the admissibility of any expert witness testimony, the
threshold question is not simply whether the subject “is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact
. . . .” (§ 801, subd. (a).) Rather, as with all evidence, the first inquiry is whether
the testimony is relevant, i.e., whether it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the

1
All undesignated statutory references are to the Evidence Code.
1

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action,” including the credibility of a witness. (§ 210.) Unless and until the
proponent demonstrates that an expert’s testimony has the requisite relationship to
a disputed fact, it is irrelevant and cannot assist the trier of fact.
“Battered women’s syndrome ‘has been defined as “a series of common
characteristics that appear in women who are abused physically and
psychologically over an extended period of time by the dominant male figure in
their lives.” [Citations.]’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th
1073, 1083-1084 (Humphrey); People v. Erickson (1997) 57 Cal.App.4th 1391,
1399.) Accordingly, the overwhelming majority of courts considering the
question have concluded that the relevance of expert testimony regarding BWS
depends upon its proponent establishing “some evidentiary foundation that a party
or witness to the case is a battered woman, and that party or witness has behaved
in such a manner that the jury would be aided by expert testimony providing an
explanation for the behavior. [Citation.]” (State v. Borrelli (1993) 227 Conn. 153,
172, fn. 15 [629 A.2d 1105, 1115]; Fennell v. Goolsby (E.D.Pa. 1985) 630
F.Supp. 451, 459; see State v. Niemeyer (1999) 55 Conn.App. 447, 452 [740 A.2d
416, 419-420]; State v. Stringer (1995) 271 Mont. 367, 378 [897 P.2d 1063,
1070]; State v. Koss (1990) 49 Ohio St.3d 213, 218 [551 N.E.2d 970, 974-975];
Bechtel v. State (Okla.Crim.Ct.App. 1992) 840 P.2d 1, 9; State v. Ogden (2000)
168 Or.App. 249, 257 [6 P.3d 1110, 1114]; see also State v. Kelly (1984) 97 N.J.
178, 200-201 [478 A.2d 364, 375].)
Here, the record contained no evidence Kimberly Pipes suffered from
BWS. Not only had there been no pattern of physical or psychological abuse in
her relationship with defendant, she flatly denied he had ever hit her in the past.
Nor were there any of the substantive characteristics—dependency, control,
isolation—that mark BWS. Nevertheless, and contrary to the majority’s reading
of the record (see maj. opn., ante, at p. 10), expert witness Jeri Darr testified at
2

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length as to general causes and effects of BWS as well as anecdotal BWS
experiences she had observed in the course of her work with domestic violence
victims.2 She described in considerable detail the cycle of tension-building,
explosion of violence, and contrition that typifies the battering relationship, and
the factors that contribute to its perpetuation, such as the victim’s dependence on
the abuser; the abuser’s desire for power and control, his isolation of the victim,
and his threats of harm to the victim and/or other family members; the victim’s
passivity, fear, and lack of self-esteem. Darr also explained the common reactions
of women in these abusive relationships: denial or minimizing of physical injury,
self-blame, reconciliation and reunion with the abuser, learned helplessness, and
recantation.

2
Contrary to the majority’s statement that “neither Darr’s testimony nor the
prosecutor’s argument [to the jury] were premised on the admissibility of her
testimony under section 1107” (maj. opn., ante, at p. 10), the record is replete with
references to “battered women’s syndrome” and by implication section 1107. At
the hearing on the motion in limine to exclude Darr’s evidence, the court referred
to “testimony about battered women’s syndrome”; and the prosecutor and defense
counsel argued its admissibility or inadmissibility, respectively, under People
v. Williams, supra, 78 Cal.App.4th 1118 and People v. Gomez, supra, 72
Cal.App.4th 405, both premised on section 1107. At the close of the hearing, the
prosecutor specifically stated, “As Williams indicates, there’s no limitation in . . .
Evidence Code [section] 1107, that there be prior incidents, and that’s why the
Williams case allowed it in.” In discussing the evidence during closing argument,
the prosecutor asked the jury, “How did we know it [the incident] happened? . . .
[¶] First of all, the victim made the statement to the deputy shortly after the
incident. . . . And we also heard from Jeri Darr, domestic violence expert who
spoke about the battered women’s syndrome.” The trial court twice instructed the
jury on the matter: immediately prior to Darr’s testimony—“Evidence may be
presented to you concerning battered women’s syndrome”—and at the conclusion
of the evidence—“Evidence has been presented to you concerning battered
women’s syndrome.” Finally, defendant appealed his conviction on the ground
the evidence had been improperly admitted under section 1107, and the Court of
Appeal ruled on that basis, adopting the reasoning of People v. Williams.
3

---

As the majority acknowledges, “[t]he prosecutor did not claim that defendant
had beaten the victim before, or that defendant fit the profile of a batterer” (maj.
opn., ante, at p. 10), or that Pipes suffered BWS. Thus, general BWS evidence was
plainly irrelevant to any disputed issues. (See, e.g., State v. Ogden, supra, 168
Or.App. at p. 257 [6 P.3d at p. 1114].) To paraphrase the court in Ogden, “at trial,
the state failed to establish a critical link between the expert’s testimony about why
a battered woman might [recant her earlier claim of abuse] and why this
complainant did so. Specifically, the state did not establish that complainant suffers
from BWS. If complainant does not suffer from BWS, then testimony about that
subject seemingly has no bearing on the complainant’s behavior.” (Id. at p. 256
[6 P.3d at p. 1114].) Thus, in the absence of evidence Pipes exhibited BWS, a
substantial portion of Darr’s testimony was irrelevant and should not have been
admitted whether the evidentiary basis was section 1107 or section 801.
II
The majority concludes expert evidence was nevertheless relevant to
counter certain misconceptions lay jurors may have about the behavior of victims
of generic domestic violence. At the hearing on defendant’s motion in limine, the
prosecutor indicated she intended to introduce Darr’s testimony “to explain why
[Pipes] recanted at the preliminary hearing, and I anticipate that she will recant at
the trial and why she gave the inconsistent statements and why, frankly, she went
back to him.” Even if the testimony had been restricted to the recantation and
reconciliation aspects of violent domestic situations,3 I would still take issue with
its relevance. The majority’s analysis is equally untenable even on this more
limited question.

3
In the course of 21 pages of reporter’s transcript, the prosecutor asked only
three or four questions concerning recantation and reconciliation.
4

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According to some experts, including Darr, even first time victims of
domestic violence are likely in certain circumstances to recant their initial claims
of abuse or threats of harm. From this premise, the argument goes that since Pipes
recanted some of her original statements to the police and since she was a victim
of domestic violence, her recantation was likely false. The syllogism is faulty in
several respects. It assumes that generic “domestic violence”—like BWS—
describes a pattern of behavior that includes certain reactions to incidents of abuse.
In reality, “domestic violence” is neither cause nor effect; it is simply a label, now
codified (see Fam. Code, § 6211),4 for abuse occurring in statutorily specified
relationships. Moreover, the argument essentially works backward from effect to
posit cause: That is, even in the absence of any history of abuse between
defendant and Pipes, the fact of their domestic relationship coupled with her denial
at trial of any assault or threat of harm made the substance of her recantation more

4
Family Code section 6211 provides in part:
“ ‘Domestic violence’ is abuse perpetrated against any of the following
persons:

“(a) A spouse or former spouse.
“(b) A cohabitant or former cohabitant, as defined in Section 6209.
“(c) A person with whom the respondent is having or has had a dating or
engagement relationship.

“(d) A person with whom the respondent has had a child . . . .
“(e) Child of a party or a child who is the subject of an action under the
Uniform Parentage Act . . . .

“(f) Any other person related by consanguinity or affinity within the
second degree.”

For purposes of section 6211, “abuse” is defined as “intentionally or
recklessly to cause or attempt to cause bodily injury, or sexual assault, or to place
a person in reasonable apprehension of imminent serious bodily injury to that
person or to another.” (Fam. Code, § 6203.)

“ ‘Cohabitant’ means a person who regularly resides in the household.
‘Former cohabitant’ means a person who formerly regularly resided in the
household.” (Fam. Code, § 6209.)
5

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likely false. Without, however, some evidence Pipes came within Darr’s
“domestic violence victim” construct, testimony as to the significance of Pipes’s
recantation had no evidentiary foundation. (See State v. Ogden, supra, 168
Or.App. at p. 256 [6 P.3d at p. 1114].) It does not, as the prosecutor asserted it
would, explain “why.” Recantation is not a predicate of abuse but the other way
around. Only when a woman is in a relationship exhibiting characteristics of
domestic violence can expert evidence elucidate its effects on her behavior and the
reasons she may be more likely to recant an initial claim of assault.
In sum, as defense counsel explained at oral argument, the problem with the
majority’s reasoning is that under section 801, admissibility depends upon having
some evidence in the record consistent with the subject matter of the expert’s
testimony other than the underlying incident. (Cf. Humphrey, supra, 13 Cal.4th
1073, at pp. 1096, 1098-1100 (conc. opn. of Brown, J.).) In this context, the
foundational facts must consist of the substance, not the manifestation, of an
abusive domestic relationship as described by the expert, and not simply as a
matter of statutory definition. No such evidence appears here.5 Although

5
The majority implies the evidence conforms to Darr’s domestic violence
paradigm because “Pipes told Deputy Wheeler that defendant had complained
about the cleanliness of the apartment on the evening of the assault.” (Maj. opn.,
ante, at p. 18.) Even assuming this scant evidence, in the abstract, would suffice
as tension-building, the majority’s reliance is completely out of context. Pipes
testified—and was not contradicted on this record—that she and defendant argued
principally over her refusal to pay full rent due to the “unlivable” condition of the
house and defendant’s cousin’s failure to make repairs. When, earlier on the night
of the incident, the cousin had come to demand payment, Pipes became angry
when defendant did not take her side in the dispute. The reference to cleanliness
arose in the context of this disagreement. Apparently, defendant had agreed to
make some repairs, but complained that he was unable to because the house was
too much of a mess. On cross-examination, Pipes agreed with defense counsel
that the situation “wasn’t much of an argument, a couple of minutes of getting it
(Footnote continued on next page.)
6

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defendant and Pipes had known each other and dated off and on for 11 years and
had been living together intermittently at the time of the incident, defendant had
never abused or threatened Pipes or her children. Nor does the record establish
that Pipes was in any respect dependent on defendant emotionally or financially,
that he exerted control over her, or that he kept her isolated from family and
friends. Pipes does not appear to be a passive personality and was unequivocal at
trial that she reacted out of anger, and not fear, when she initially accused
defendant.
On these facts, nothing in the majority’s analysis distinguishes a first time
or single-incident assault committed in a domestic relationship from one
committed in a nondomestic relationship. Recantation is hardly unique to
domestic situations (see, e.g., People v. Sam (1969) 71 Cal.2d 194; People
v. Anthony O. (1992) 5 Cal.App.4th 428; People v. Plasencia (1985) 168
Cal.App.3d 546; see also People v. Odom (1969) 71 Cal.2d 709; People v. Loyd
(1977) 71 Cal.App.3d Supp. 1); and the majority fails to identify what
misconceptions lay jurors may harbor in these circumstances that require expert
testimony to correct. (Cf. People v. Bothuel (1988) 205 Cal.App.3d 581, 587,
disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 348.)
The attempt to analogize to expert testimony concerning rape trauma
syndrome (RTS) or child sexual abuse accommodation syndrome (CSAAS) is
unpersuasive. (See People v. Bledsoe (1984) 36 Cal.3d 236, 247-248; People v.
Sanchez (1989) 208 Cal.App.3d 721, 735; cf. People v. McAlpin (1991) 53 Cal.3d

(Footnote continued from previous page.)

off his chest, you getting your complaints off your chest.” Nothing in Pipes’s
initial statements to the deputy substantiates a different characterization or
reasonably foreshadows an impending cycle of violence.
7

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1289, 1300-1302.) The principal distinction is that misconceptions about the
reactions of rape or child molestation victims are much more likely to arise from
an initial or single incident; and neither rape nor molestation depends upon the
nature of the relationship between the defendant and the victim or particular
characteristics of that relationship. The same cannot be said regarding an initial
incident of generic domestic violence. “Any woman may find herself in an
abusive relationship with a man once.” (Walker, The Battered Woman Syndrome
(1979) p. XV; cf. People v. Gomez, supra, 72 Cal.App.4th at pp. 416-417.)
Misconceptions arise when the woman seemingly allows the relationship to
continue despite repeated abuse, since uninformed jurors may assume she would
leave when the opportunity presented itself. (See, e.g., Humphrey, supra, 13
Cal.4th at p. 1087; State v. Kelly, supra, 478 A.2d at p. 370.) In other words, in
situations of domestic violence, it is the repetitive aspect of the abusive behavior
that becomes relevant in terms of the victim’s counterintuitive state of mind and
reactions. With RTS and CSAAS, the initial sexual assault or molestation is
sufficient to trigger the reactions—such as delayed reporting—about which the
expert enlightens the jury.
Moreover,
in
McAlpin, Bledsoe, and other cases involving rape and child
molestation, the expert testimony was in virtually all cases admitted to explain
counterintuitive out-of-court conduct, not to attack the credibility of a victim’s
sworn trial testimony. (Cf. People v. Morgan (1997) 58 Cal.App.4th 1210, 1216;
but see People v. Housley (1992) 6 Cal.App.4th 947, 955-956.) In the former
situation, no rules of evidence are available to rebut misconceptions without
expert testimony. In the latter, section 780 and, in particular, section 1235 provide
evidentiary bases both to challenge the victim’s credibility and to proffer her
out-of-court statements as substantive evidence.
8

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III
Contrary to the majority’s implication, excluding expert testimony on these
facts does not somehow allow a batterer to act with impunity. (Maj. opn., ante, at
p. 14, quoting People v. Williams, supra, 78 Cal.App.4th at p. 1129.) It simply
means the prosecutor may not use expert testimony to attack the credibility of the
victim’s sworn testimony or to bolster the credibility of her hearsay reports to law
enforcement or others. Nonetheless, her prior inconsistent statements are
admissible as substantive evidence (see § 1235; People v. Chavez (1980) 26
Cal.3d 334, 354-361); and she may be impeached on a wide variety of bases,
including her demeanor; bias, interest, or other motive; prior inconsistent
statements; and attitude toward the proceedings (see generally § 780, subds. (a),
(f), (h), (j)). The majority offers no rationale for concluding the prosecutor should
not be restricted to these standard rules of evidence in single-incident domestic
assault cases just the same as in nondomestic assault cases. Clearly, in the latter
circumstance, the prosecution would not be entitled to invoke expert testimony to
“explain” why the victim’s testimony under oath should be discounted in favor of
her statement to the police at the time of the alleged act. Furthermore, at least with
respect to an initial or single assault, nothing in this record establishes that lay
jurors are any less able in the absence of expert testimony to understand why a
victim might falsely recant in the former as in the latter. That being the case,
admission of expert testimony runs a substantial risk of invading the exclusive
factfinding province of the jury (cf. Humphrey, supra, 13 Cal.4th 1073, at pp.
1099-1100 (conc. opn. of Brown, J.)) and undermining the trial court’s gatekeeper
function in exercising discretion to exclude such evidence for that reason. (§ 352;
see, e.g., People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100.)
The majority’s holding creates a special rule for the admission of expert
testimony when the defendant and alleged victim of an assault have or have had a
9

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personal relationship that comes within the definition of “domestic violence” set
forth in Family Code section 6211—a “domestic situation” exception to the usual
relevancy requirement.
Among the problems with such an exception, it effectively evades
application of section 1107 and, in particular, the express limitation on the use of
BWS evidence “against a criminal defendant to prove the occurrence of the act or
acts of abuse which form the basis of the criminal charge.” (§ 1107, subd. (a);
cf. People v. Bledsoe, supra, 36 Cal.3d at p. 251 [RTS evidence not admissible to
prove victim was raped].) As defense counsel explained at oral argument, the
expert’s testimony on the question of recantation is relevant only if Pipes were a
victim of domestic violence so that her experience was consistent with Darr’s
expertise regarding such circumstances. But the only incident of domestic violence
was the underlying charge. Therefore, the jury must assume the truth of the
criminal allegation to accept Darr’s testimony as to the significance of Pipes’s
recantation. Absent enforcement of the statutory restriction, section 1107 is
rendered nugatory.
The majority’s holding may also become an unwieldy double-edged sword
that invites a host of unintended consequences. Section 1107 permits introduction
of expert testimony regarding BWS for both the prosecution and defense. Nothing
in the majority’s reasoning suggests any basis for a different standard of
admissibility for defense expert testimony under section 801 or limits the defense
from similarly introducing non-BWS domestic violence evidence based on only a
single battering incident. Nor would such evidence be restricted to testimony
about recantation or reconciliation as in this case. Moreover, Family Code section
6211 broadly defines “ ‘[d]omestic violence’ ” to include a wide range of
individuals and relationships. The majority’s same reasoning may well be asserted
in seeking to introduce new strains of expert evidence with respect to these as well
as the more common situation at issue here. Such a result would bring expert
10

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testimony far afield from the BWS evidence admissible under section 1107,
particularly given the consensus that the counterintuitive behavior of battered
victims follows from the repeated cycle of violence they learn to accommodate.
(See Humphrey, supra, 13 Cal.4th 1073, 1096 (conc. opn. of Brown, J.); People v.
Gomez, supra, 72 Cal.App.4th at pp. 416-417; State v. Ogden, supra, 168 Or.App.
at p. 257 [6 P.3d at p. 1114]; Ibn-Tamas v. United States (D.C.Ct.App. 1979) 407
A.2d 626, 634.)
IV
Since I conclude the trial court should have excluded Darr’s testimony in its
entirety, the question remains whether its admission resulted in a miscarriage of
justice. (People v. Watson (1956) 46 Cal.2d. 818, 835.)
Although this is a close case, I would find prejudice for the following
combination of reasons: The charge of making terrorist threats against Pipes (Pen.
Code, § 422)—and arguably the false imprisonment charge involving her (id.,
§ 236)—rested solely on Pipes’s statements to law enforcement. Darr testified
extensively regarding BWS, well beyond the limited purpose of explaining
recantation or reconciliation. In her closing argument, the prosecutor similarly did
not restrict herself to the proffered justification, but heavily adverted to the whole
of Darr’s testimony. The trial court likewise did not admonish the jury to confine
its consideration of the evidence to these factors. The jury failed to return verdicts
on similar charges involving Carrie Miller, who also recanted, but whose
out-of-court statements did not have the benefit of any BWS or domestic violence
credibility enhancement. Finally, courts have long recognized the powerful
impact of expert testimony in jury deliberations, for the very reason that such
evidence relates to matters outside the layperson’s ken. (See, e.g., People
v. Gomez, supra, 72 Cal.App.4th at p. 418; see also People v. Axell (1991) 235
Cal.App.3d 836, 862.)
11

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In light of the foregoing, I would reverse the judgment at least as to the
violation of Penal Code section 422.
BROWN, J.
12

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Brown
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 1/29/03 - 2d Dist., Div. 6
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S113929
Date Filed: August 2, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Pamela R. Rogers

__________________________________________________________________________________

Attorneys for Appellant:

William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Margaret E. Maxwell, Donald E. De Nicola, Victoria B.
Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

Emberly Cross for California Alliance Against Domestic Violence, California National Organization for
Women, California Women’s Law Center, Minnesota Program Development, Inc., NOW Legal Defense
and Education Fund, Nancy K. D. Lemon, Erin C. Smith and Jim Fahey as Amici Curiae on behalf of
Plaintiff and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

William D. Farber
P.O. Box 2026
San Rafael, CA 94912
(415) 472-7279

John Yang
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2038
2

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Opinion Information

Date:	Docket Number:
Mon, 08/02/2004	S113929

Disposition
Aug 2 2004	Opinion: Affirmed

Dockets
Mar 3 2003	Petition for review filed   By counsel for appellant {Cornell Cooper Brown}.
Mar 3 2003	Record requested
Mar 3 2003	Received Court of Appeal record   one doghouse
Apr 9 2003	Petition for Review Granted (criminal case)   Votes: George, CJ., Kennard, Werdegar, Brown and Moreno, JJ.
Apr 25 2003	Counsel appointment order filed   William D. Farber appointed to represent aplt. The opening brief on the merits shall be served and filed on or before 30 days from the date of this order.
May 23 2003	Request for extension of time filed   for aplt to file the opening brief on the merits, to 6/26.
May 29 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is extended to and including June 26, 2003.
Jun 24 2003	Request for extension of time filed   for aplt to file the opening brief on the merits, to 7-28
Jun 26 2003	Extension of time granted   to 7-28-03 for aplt to file the opening brief on the merits.
Jul 11 2003	Opening brief on the merits filed   by aplt
Jul 30 2003	Compensation awarded counsel   Atty Farber
Aug 7 2003	Request for extension of time filed   answer brief/merits to 9-9-03>>respondent People
Aug 19 2003	Extension of time granted   to 9-9-03 for resp to file the answer brief on the merits
Sep 8 2003	Request for extension of time filed   respondent's answer brief/merits asking to 9-23-03.
Sep 11 2003	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is extended to and including September 23, 2003.
Sep 23 2003	Answer brief on the merits filed   respondent's The People.
Oct 8 2003	Request for extension of time filed   by appellant's for a 30-day e.o.t. to 11-12-2003 to file the reply brief on the merits.
Oct 15 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and fle appellant's reply brief on the merits is extended to and including November 12, 2003.
Nov 10 2003	Request for extension of time filed   for aplt to file the reply brief on the merits, to 12/12/03.
Nov 13 2003	Extension of time granted   to 12-12-03 for aplt to file the reply brief on the merits.
Dec 4 2003	Reply brief filed (case fully briefed)   by aplt
Jan 5 2004	Received application to file amicus curiae brief; with brief   by Calif. Alliance Against Domestic Violence, et al in support of resp
Jan 7 2004	Permission to file amicus curiae brief granted   for California Alliance Against Domestic Violence et al to file A/C brief in support of resp. Answers may be filed w/in 20 days.
Jan 7 2004	Amicus curiae brief filed   by Calif. Alliance Against Domestic Violence in support of resp.
Jan 26 2004	Request for extension of time filed   by appellant to 2-26-2004, to file answer to amicus curiae brief
Jan 30 2004	Extension of time granted   Appellant to 2-26-2004, to file Response to the Amicus Curiae Brief filed by California Alliance Against Domestic Violence et al. in support of respondent.
Feb 25 2004	Response to amicus curiae brief filed   by appellant to Amicus Curiae Brief of California Alliance Against Domestic Violence et al.
Apr 6 2004	Case ordered on calendar   5-5-04, 9am, S.F.
Apr 14 2004	Compensation awarded counsel   Atty Farber
May 5 2004	Cause argued and submitted
May 14 2004	Order filed   The court requests that the Attorney General submit a letter brief on the following matters: (1) Was the admissibility of Jeri Darr's testimony under Evidence Code section 801 raised in the trial court? (2) If not, may the trial court's admission of the evidence nonetheless be upheld on appeal if the testimony was admissible under section 801? The letter brief is to be filed no later than May 24, 2004. Defendant may file a letter brief in reply by June 1, 2004.
May 24 2004	Letter brief filed   by respondent per court's request of 5/14/04
Jun 2 2004	Filed:   aplt's reply to resp's additional briefing (40k)
Aug 2 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Kennard, J. --------------joined by George, C.J., Baxter, Werdegar, Chin, Moreno, JJ. Dissenting opinion by Brown, J.
Aug 25 2004	Compensation awarded counsel   Atty Farber
Sep 16 2004	Remittitur issued (criminal case)

Briefs
Jul 11 2003	Opening brief on the merits filed
Sep 23 2003	Answer brief on the merits filed
Dec 4 2003	Reply brief filed (case fully briefed)
Jan 7 2004	Amicus curiae brief filed
Feb 25 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website