On appeal, defendant contends that the trial court prejudicially erred in (1) denying his request to modify CALCRIM No. 2622, the attempted dissuading instruction, to insert language requiring a finding of malice and describing when a presumption that malice was absent would apply, and (2) instructing the jury with CALCRIM No. 850 about expert testimony by a prosecution expert on intimate partner violence. We find that the trial court properly denied the request for modifications to CALCRIM No. 2622 because a violation of section 136.1, subdivision (b), unlike a violation of section 136.1, subdivision (a), does not require malice. We also reject defendant's challenge to CALCRIM No. 850. Accordingly, we affirm the judgment.
I. Prosecution's Case At Trial
Janet Amezcua and defendant had been in a relationship for 10 years and had four children, including Jane Doe. Although Amezcua testified at trial that their "arguments" had never become "physical," the prosecution produced evidence at trial that defendant had repeatedly physically assaulted Amezcua. The charged offenses occurred in August 2014 and January 2015, but evidence of several prior events was also introduced at trial. At trial, Amezcua denied that any domestic violence had occurred, and she claimed that she called the police on numerous occasions only because she was "mad and angry" at defendant.
The charged corporal injury and aggravated assault counts arose from events in August 2014. The police arrived at Amezcua's residence in response to a domestic violence call. Amezcua, who was crying, told the responding officer that she and defendant had argued after she refused to let him use her cell phone. He pushed her onto the couch, got on top of her, and grabbed her throat with his hand. Defendant choked her for a minute. She could not breathe, and she lost consciousness for a few seconds. When she regained consciousness, he told her not to say anything. She pushed him off her and tried to run away, and after a struggle with defendant, she escaped his grasp, left the residence, and called 911. She asked the officer to obtain a protective order for her, and he did so. Amezcua's neck was red and had a small abrasion, and she reported pain in her neck.
Amezcua told the officer that Jane Doe had been present during the incident. Jane told the police that Amezcua and defendant had been "fighting" before the police arrived. She saw defendant push Amezcua down on the couch and begin "twisting her ankle." Then defendant "choked" Amezcua with one hand on her throat. Jane reported that Amezcua "was making like a choking, gagging type of sound and it made her very sad to see that." After a minute, defendant stopped choking Amezcua and "started twisting her ankle again." When Amezcua managed to get up and tried to leave the residence, defendant "grabbed [Amezcua] by the hair and yanked her back into the apartment." Eventually, Amezcua escaped from the apartment and called the police.
In January 2015, the police were dispatched to Amezcua's apartment after a report оf a domestic disturbance. The officer made contact with Amezcua, who reported that defendant had kicked the door and broken it. The officer observed that the door frame was cracked, the locking plate was on the ground, and the door would not close. There was a footprint on the door. Jane was present while the officer was talking to Amezcua. Amezcua told the officer that defendant had been "yelling and screaming" at Jane, causing Jane to cry. Amezcua had told defendant to leave, but he did not. She left the apartment to call 911, and "he chased her." She ran back into her apartment and closed and locked the door. That was when defendant kicked in and broke the door. Defendant fled before the officer arrived.
While the officer was talking to Amezcua, "the cell phone rang and rang and Jane Doe held it up and said, He's calling! He's calling!" The officer looked at the phone and saw from the "caller ID" that defendant was calling. Jane asked the officer if she should answer it, and the officer said "Okay." Jane answered the phone and put it on speaker phone. Jane "said hello," and defendant immediately began screaming loudly. He said: " 'You better not be talking to the fucking police.' " He also said " 'listen' " and " 'don't talk to the fucking police.' " Defendant was "so loud," and "Jane Doe was upset ...." The officer took the phone and identified herself as a police officer. Defendant began screaming at her. He was "[v]ery loud аnd angry." The officer terminated the call, but defendant called back several times. His calls were not answered. Amezcua asked for an emergency protective order, and the officer obtained one for her.
II. Defense Case At Trial
A defense investigator testified that Amezcua had told him during a 2012 telephone interview that the prior incidents did not involve violence by defendant against her. She told him that she had cut herself in October 2011 while chopping vegetables. Amezcua described the April 2012 incident as one
Defendant testified on his own behalf at trial and denied that he had ever been abusive to Amezcua. He insisted that Amezcua was "always accusing me of doing things." "She's always thinking I'm doing something wrong." Defendant testified that he was the victim "because I didn't do nothing," and Amezcua had lied on every occasion. "I'm the one getting attacked and getting the police called." He thought Amezcua was "[d]isrespectful" and "childish" toward him. The only thing he admitted was kicking in the door.
Although he admitted that he "plead[ed] to" the February 2008 domestic violence charge, he claimed he "didn't do anything" and had pleaded only "to get out of jail." Defеndant testified that Amezcua had been in a fight with her sister, and he had not hit her or even touched her on that occasion.
He also denied responsibility as to Amezcua's October 2011 report of domestic violence. Defendant testified that this event was "[j]ust the same thing" as the others. "I woke up to her bleeding and her with a knife ... acting like she going to poke me ...." No argument had preceded
Defendant denied that he had been responsible for any domestic violence in April 2012. He claimed that Amezcua got mad at him and started hitting him. "I'm just protecting myself, not hitting her ...." After Amezcua inflicted "a gash" to his head and "busted" his lip and one of her blows "dazed" him, he "grabbed her" and "started pushing" her to get her to stop. Although he might have hurt her in the course of defending himself, he claimed "it wasn't intentionally." Amezcua said she was going to call the police and told him to leave, but he refused to leave. He did not tell the police that Amezcua was the aggressor because "they never listen to the guy," and he knew that he was "going to jail anyway" for the prior "incident where I was falsely accused."
Defendant testified that the January 2015 incident was instigated by Amezcua because she "had an attitude" and was "treating me, like, I don't know, disrespectful ...." She "was trying to pick a fight with me," so he went to sleep. He said he had left the residence after Amezcua attacked him and threatened to call the police, and he "was just frustrated so I just kicked the door and left." While he minimized the damage he had caused to the door, he admitted that he had kicked the door one time and broken it. Once the door broke open, he left.
Defendant admitted that he had called Jane on the phone soon after he left, but he provided a different narrative of what he had said. He claimed that he had told the officer not tо "play with" Jane and to "[l]et me talk to my daughter." He admitted that it was "possible" that he had told Jane not to talk to the police because "I don't like my daughter talking to no police." He testified: "I always teach all my kids that. Don't talk to nobody, no strangers, no police unless there's an adult around." He said that the purpose of his call was "[j]ust to tell her, ... if the police come here, tell them the truth ... that Mommy's hitting Daddy." "I'm telling her, Don't talk to the fucking police. I told the police don't talk to my fucking daughter."
III. Discussion
A. Dissuading Instruction
1. Background
The prosecution requested CALCRIM No. 2622 on the section 136.1, subdivision
The court denied the defense request. "I [am] denying the request to add that language for two reasons. Number one, it is not part of the jury instruction 2622 as contained in the CalCrim instructions. And, number two, ... [i]t indicates that evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption the act was without malice. [¶] I found that, in spite of [defendant's] testimony that he was only making those comments yelling on the phone because he advises his children not to talk to strangers, including the police, to be not credible. And it's my job to instruct the jury based upon what I think is the appropriate evidence. And I know defense counsel objects to that[,] feeling that it's the jury's job to determine that. And I disagree. So I feel that the comments made on the speaker phone was on that angry voice and clearly directed at this daughter, 'don't you talk to the fucking police' was not something that was said to protect his daughter. And that's the other reason, the second reason, why I'm not giving that part of the instruction."
The court instructed the jury with an unmodified version of CALCRIM No. 2622 : "The defendant is charged in Count 3 with intimidating a witness in violation of Penal Code section 136.1. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant tried to prevent or discourage Jane Doe from making a report that someone else was a victim of a crime to the police. [¶] AND [¶] 2. The defendant knew he was trying to prevent or discourage Jane Doe from talking to police about what happened and intended to do so. [¶] As used here, witness means someone [¶] Who knows about the existence or nonexistence of facts relating to a crime. [¶] It is not a defense that the defendant was not successful in preventing or discouraging the witness."
2. Analysis
The attempted dissuading сount charged a violation of section 136.1, subdivision (b)(1) . Defendant's request for modification was based on the malice element of a section 136.1, subdivision (a) violation and the requirements for the presumption of the absence of malice set forth in subdivision (a).
Section 136.1 provides: "(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall
Defendant acknowledges that the malice element and presumption do not appear in section 136.1, subdivision (b). Nevertheless, he argues that it defies "common sense" and "[t]here is no logic" to the Legislature's omission of a malice element from subdivision (b). He argues that the Legislature must have intended that "the family member presumption applies to all subdivisions of the section" because the subdivision (a) absence-of-malice presumption states that it applies "[f]or purposes of this section." He reasons that "[t]he presumption сould not logically apply to subdivision (b) offenses if that subdivision were read to exclude a malice element," so "there is an implicit requirement that the prosecution prove appellant acted with malice as to the subdivision (b) offenses." Defendant fails to engage in the application of the rules of statutory construction to explain why we should construe section 136.1 to add a malice element to subdivision (b) that the Legislature omitted.
We exercise de novo review when we engage in statutory construction. ( People v. Brewer (2011)
Here, the language of the statute is clear and unambiguous. Section 136.1 expressly sets forth a malice element as part of a subdivision (a) violation and as part of a subdivision (c) violation, but the plain language of subdivision (b) contains no
Section 136.1 was enacted in 1980, and it has always contained a malice requirement for subdivision (a) and subdivision (c) offenses and omitted such a requirement for subdivision (b) offenses. (Stats. 1980, ch. 686, § 2.1.) Section 136, which was enacted as part of the same act as section 136.1, contains a special malice definition that applies to section 136.1. (Stats. 1980, ch. 686, § 2.) "As used in this chapter: [¶] (1) 'Malice' means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice." (§ 136, subd. (1).) Section 136.1 does not present a situation where a malice requirement must be implied because otherwise the statute would impose strict liability. Specific intent is required for all violations of section 136.1. ( People v. Young (2005)
The Legislature's decision to omit a malice requirement from section 136.1, subdivision (b) while including it in subdivision (a) was not, as
The presumption was also reasonably limited to subdivision (a) and subdivision (c) offenses. The Legislature added the presumption to section 136.1 in 1997. (Stats. 1997, ch. 500, § 1.) The only two legislative analyses addressing the presumption confirmed that the presumption was not intended to apply to subdivision (b) offenses.
B. CALCRIM No. 850 : Instruction on Expert Testimony Regarding Intimate Partner Violence
1. Background
Both the defense and the prosecution sought an in limine ruling on the admissibility of testimony by prosecution expert Richard Ferry on intimate partner violence. The court ruled that Ferry's testimony was admissible. Ferry, a psychotherapist, had not interviewed Amezcua or read any of the police reports in this case. He testified about "Intimate Partner Violence," which he explained had replaced the prior term, "Battered Women's Syndrome."
Ferry described the "three-stage cycle" of violence. The first stage was " 'tension building.' " The second stage was " 'acute violence.' " And the third stage was "loving contrition or remorse." During the tension stage, a victim might do something provocative because the tension is "unbearable" and the victim wants to "get it over with." Victims stay in these relationships because they blame themselves and are taken in by the third stage of love and contrition. The cycle repeats itself, and increases its frequency, and the third stage becomes shorter and shorter and may disappear entirely. The victim often feels fеarful, thinks that she is to blame, and hopes that things will get better if she changes her behavior. These feelings cause her to stay with the abuser. She also may stay with the abuser because she feels dependent on him or because she fears increased violence if she leaves.
Battered women commonly recant their allegations of abuse. This occurs in "75 to 80 percent of prosecutions in domestic violence cases nationwide." While doing so may appear self-destructive from the outside, the battered woman may see recantation as a way to "reduce his anger" and avoid further violence. She may also feel that she "cannot survive on her own," and she may still "be attached and in love with him." Recantation has several stаges. During the first stage, "the two parties are really mad at each other." In the second stage, the batterer portrays himself as a victim and "plays for sympathy." During the third stage, he offers an alternative narrative in which she is to blame. The fourth stage involves nostalgia for the
Battered women often are hostile to the prosecution of the batterer, deny the statements that they have made to the police, and minimize the violence.
On cross, Ferry testified that he had observed situations where one intimate partner told lies about the other in order to get that person in trouble and also situations where the lies were told by one partner to get the other out of trouble. Blame shifting was not unusual in domestic violence situations. Ferry testified: "I'm only here to talk about the phenomenon surrounding domestic violence and the common experiences of battered people. If the jury heard my comments as proving this or proving that, that would be inappropriate."
The prosecution requested CALCRIM No. 850 on expert testimony about intimate partner violence. The defense did not object to the instruction or request that it be modified. The court instructed the jury with CALCRIM No. 850.
The prosecutor discussed Ferry's testimony in her opening argument to the jury. "And we also know from Richard Ferry who talked to us about intimate [partner] battering and violence that the best time when a person's going to be most honest about what happened is immediately after, before they have а chance for the abuser, the perpetrator, to come back in to start working on those stages of recantation to make up a story together." "What do you also know from Richard Ferry? Children involved in the intimate [partner] violence relationship? That, when it comes to the same gender,
The defense responded in its closing argument: "And Richard Ferry painted a picture of [defendant] as an abuser. But Richard Ferry also has to concede that this constellation of control and constellation of abuse in between partners is a little bit bigger than just the possibility of one person hitting another. Richard Ferry agreed that it includes character assassinations. That came out when I talked to him on cross examination. [¶] It's a method to control one's partner. They tell lies to the police which Richard Ferry told you about. And he's even seen it in his settings. He's seen it where folks will use the justice system to control and influence their partner. That's what's really happening here."
2. Analysis
Defendant contends that the trial court prejudicially erred in instructing the jury with CALCRIM No. 850 because the instruction told the jury that it could use Ferry's testimony "in evaluating the believability of [Amezcua's] testimony" and did not address Ferry's testimony about children.
Defendant claims that "this instruction advised the jury to presume Amezcua had been battered at some point to determine whether her testimony at trial denying the abuse and the truth of the police reports was a falsehood, and thus whether the abuse occurred." In his view, "[t]he jurors had two and
"In a criminal action, expert testimony is admissible by either 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, 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." ( Evid. Code, § 1107, subd. (a).)
Defendant's argument is premised on his claim that the use of Ferry's testimony to evaluate Amezcua's "believability" amounted to the use of his testimony to "prove the occurrence" of the abuse. We
For instance, when an expert testifies about some abstract proposition, such as how long it would take for strangulation to produce unconsciousness, that testimony may be used indirectly to evaluate testimony by an alleged victim about the length of time she was strangled before she was rendered unconscious. If the expert's testimony is inconsistent with the alleged victim's testimony, the jury may use the expert's testimony to determine that the victim is not believable. If the expert's testimony is consistent with the alleged victim's testimony, the jury may use the expert's testimony to support a decision that the alleged victim's testimony is believable. The expert, who knows nothing about the facts of the case, is not giving testimony about whether the strangulation occurred. But his or her testimony is properly used to evaluate the believability of the alleged victim's testimony
The same is true here. Ferry, who knew nothing about the facts of this case, testified about abstract propositions. He explained how abuse victims often recant or minimize the abuse even when the abuse has in fact occurred. This information could properly be used by the jury to evaluate whether
Defendant also contends, in a subsection of his argument that the court prejudicially erred in giving CALCRIM No. 850, that the court prejudicially erred in failing to give a "limiting instruction" that applied to Ferry's testimony about child witnesses. His argument lacks a focal point. CALCRIM No. 850 specifically told the jury: "Richard Ferry's testimony about battered women's syndrome and cycle of violence is not evidence that the defendant committed any of the crimes charged against him." By generally precluding the jury from using Ferry's testimony as proof that defendant committеd "any of the crimes charged," CALCRIM No. 850 served as a limiting instruction not only as to adult victim-witnesses but also as to child victims and child witnesses. The final sentence of the instruction, which is the one to which defendant objects, was limited to Amezcua: "You may consider this evidence only in deciding whether or not Janet Amezcua's conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony." (Italics added.) This sentence told the jury that Ferry's testimony
IV. Disposition
The judgment is affirmed.
WE CONCUR:
Greenwood, P. J.
Elia, J.
Notes
Subsequent statutory references are to the Penal Code unless otherwise specified.
Although the court found true allegations that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) that was also a prior serious felony conviction (§ 667, subd. (a)) and had served prison terms for two prior felony convictions (§ 667.5, subd. (b)), the prosecutor subsequently conceded that the prior conviction was neither a strike nor a serious felony, and the court struck the punishment for the prison priors.
The court imposed a four-year upper term for the aggravated assault count. It imposed an upper term for the other counts also, but it stayed the corporal injury count under section 654 and imposed a concurrent term for the dissuading count.
The presumption was added to the legislation very late in the legislative process.
It also gave the jury CALCRIM No. 332, the standard instruction on expert witness testimony.