Opinion
C082290
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDEN MATTHEW GAGNON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F1938)
A jury credited evidence that defendant Branden Matthew Gagnon staged his longtime partner's attempted "suicide" by hanging, and committed other crimes against her. The jury found him guilty of most of the counts charged against him. The trial court sentenced defendant to prison for 11 years, and defendant timely filed this appeal.
On appeal, defendant contends: (1) count 9 (false imprisonment by violence) was included within count 8 (kidnapping) and must be vacated and dismissed; (2) the jury should have been instructed on false imprisonment as a lesser included offense of the kidnapping charged in count 8; (3) the trial court should not have permitted expert testimony about intimate partner battering; and (4) the trial court should not have imposed consecutive sentences for two counts of domestic violence.
The People concede the first point. We agree with the parties that the conviction on count 9 (false imprisonment) must be vacated and the charge dismissed. (See People v. Chan (2005) 128 Cal.App.4th 408, 421.) We also agree with defendant that the trial court should have instructed the jury on false imprisonment as a lesser included offense to kidnapping (count 8), but the error was not prejudicial for reasons we explain post. We reject defendant's remaining two claims of error.
Because count 9--which we must vacate--was sentenced concurrently to another count that stands, defendant's sentence does not change and there is no reason to remand for a new sentencing hearing. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [the "futility and expense" of a new sentencing hearing where the result is foreordained "militates against it"].) However, the trial court must prepare an amended abstract of judgment reflecting a dismissal of that charge.
BACKGROUND
The People's theory was that after years of abuse, the victim took clear steps to leave defendant, whereupon he dragged her into their duplex, beat her, hung her with wire, cut her down, and then claimed she tried to kill herself. The authorities at first suspected her of self-harm, as defendant had the first chance to tell his version of events, and the victim had left ambiguous voice messages to a friend that were interpreted as indicating she was suicidal. Other evidence showed defendant was a chronic domestic abuser.
The defense theory was that the couple indeed quarreled about claims of infidelity on both sides. After the victim woke up from her failed suicide attempt, her family programmed her into blaming him. The defense emphasized the arguably suicidal message the victim had left for her best friend not long before defendant's 911 call that night. The victim's family, which hated defendant, mounted a campaign against him leading to the present charges (brought more than two years after the crimes).
The first responders and the emergency room physician had all thought the victim attempted suicide. The defense argued that the victim was embarrassed about the attempted suicide, as well as sexual details introduced at trial, and was trying to distance herself from the choices she made by blaming defendant. Although the victim's family had been warned not to suggest to her what had happened, when she first spoke to an officer in the hospital after waking up, she told him that her sister had already told her defendant tried to hang her, thereby beginning the programmed story.
The January 15, 2013, charges on which defendant was convicted are assault with a deadly weapon (count 4, a knife), and criminal threats (count 12). The January 21, 2013, charges on which defendant was convicted are two counts of domestic violence, one with a great bodily injury finding (counts 5 [dragging to house] & 7 [hanging]), kidnapping (count 8), and false imprisonment by violence (count 9). (Pen. Code, §§ 207, subd. (a), 236/237, 245, subd. (a)(1), 273.5, subd. (a), 422, 12022.7, subd. (e).) The People also introduced evidence of prior instances of domestic violence to show defendant's propensity to commit such crimes. (See Evid. Code, § 1109.)
The trial court had dismissed count 2 (domestic violence on or about April 13, 2012) on statute of limitations grounds before trial, and acquitted defendant on count 1 (sodomy by intoxication on or about May 1, 2010) for lack of evidence after the People rested. The jury acquitted defendant of count 3 (sodomy by intoxication on or about June 10, 2012), count 6 (false imprisonment on January 15, 2013), and counts 10 and 11 (second degree robberies on January 21, 2013).
Trial Evidence
The victim and defendant are not married, but had been in a long-term relationship and have a son. The victim was born in 1990 and her son was born in 2008. She testified she met defendant--who is four years older--when she was 16, and their relationship became sexual within a month. They first lived with her parents, but when their son was about six months old they moved to a Redding apartment. Her brother (Peter) lived in another unit, which another of her brothers (Phillippe) later took over. Once when they were arguing there, defendant knocked her to the ground and strangled her. They fought frequently, defendant "would get high and kick [her] out," and she returned to her parents to escape from abuse more than 10 times. She kept returning to defendant, because he said he would change and things would be different, which she believed. She kept going back because she loved him and was "stupid."
The couple moved back in with her parents around July 2010. While there, defendant kicked a laptop that flew up and hit the victim on the chin; she still bears a scar. She had called the police that time. Several of her relatives testified about this incident, and one had taken a photograph of her chin, introduced at trial. Later, defendant smashed that laptop, which was also photographed.
In 2011 the couple moved to a duplex off Highway 273. "Star" Vue and his parents lived in the other half. Defendant still abused the victim there, and damaged doors, walls, and a mirror. In December 2012, after a quarrel, defendant threatened to kill himself. About a week before the hanging, he beat the victim and damaged their son's bedroom door. Near that time, he used a knife to destroy the kitchen table. Later he stabbed a wall and said he wanted to kill the victim (count 4, assault with a deadly weapon; count 12, criminal threats).
The victim testified that once while living at the duplex, the couple went to a concert and the victim got "blacked-out drunk;" she woke up in pain to find defendant was sodomizing her. When she told him to stop, he said he had been having intercourse with her, thought she had been enjoying it, and had decided to sodomize her. When they had lived at the apartment he once got into the shower with her, made as if to have intercourse, then "slammed his penis" into her rectum. A similar incident occurred a couple of months later, while they lived at the duplex. Defendant was charged, but not convicted on either of the two sodomy charges.
On January 17, 2013, the victim left their son with her mother. The couple had been fighting all night and all morning; and defendant was suicidal and had tried to jump in front of cars. Defendant had held their son as he ran to the highway, which is why she took their son to her parents' house. When she returned, defendant was screaming and out of control.
On the morning of January 20, defendant was angry because he did not have any pain pills or marijuana. The couple went to the victim's brother Peter's house to get marijuana and "Norcos." When they returned, defendant smoked, drank, and passed out around 8:00 p.m. The victim began filling garbage bags with clothing for herself and her son, so she could leave for good. She had her mother's Durango and telephone because defendant had smashed her telephone, and also one that Phillippe's wife had loaned her. She packed slowly so as not to wake defendant, but he woke up around 10:00 p.m. He confronted her and snatched the keys out of her hand, breaking off the "beeper" part of the keys; they then screamed at each other. She said she wanted to leave for good. He threw a heavy candle at her, breaking the Durango's windshield.
The victim called her longtime friend, Nikki Rosean. Records showed two calls were made to Rosean, at 1:30 and 1:35 a.m. on January 21. (Defendant called 911 at 1:56 a.m., 21 minutes after the last message to Rosean.) The victim testified she left messages stating "I don't know what to do. She's [i.e., the victim's mother who owned the Durango] going to kill me. I might as well be a dead woman." Rosean wrote down what she remembered of the messages. In the second message the victim said: " 'Call me, Nikki, please. I can't take it anymore. I can't do this. I want to die. Please call me, Nikki.' " The victim testified this was not a suicide message, but meant her mother would be angry because the windshield of her Durango had been broken. Rosean testified that she, too, did not interpret the messages to reference suicide, because the victim loved her son and would not want to leave him. Rosean interpreted the messages to mean the victim was scared and fighting with defendant. Rosean had heard the couple quarreling before, and once had seen defendant throw something at the victim.
After the victim called Rosean, defendant snatched the telephone away. The victim went next door to see if Vue would help her get her telephone and keys back. But when Vue saw defendant sitting in the dark staring, Vue retreated to his side of the duplex. The victim opened the Durango, but defendant kicked her on her lower back and she fell to the ground with her hands sliding down the side of the Durango. When she got up, he kicked her down again and pulled her into the house by the hair, dragging her buttocks over the gravel. When they were in the house he beat and kicked her, and threw her against the walls. While she was struggling, she felt something around her neck, and her head hit a woodstove, causing a gash on her temple, and she blacked out.
The victim woke up days later in the hospital. She had not tried to kill herself. She had a black eye, kick marks on her stomach, gravel marks from her buttocks to her legs, and bruises and cuts on her legs. When she was discharged, she went to a domestic violence shelter and sought a restraining order against defendant. She showed the jury the lasting mark around her neck and the scar on her chin from the laptop incident.
After the victim left the hospital, she hired a lawyer to get custody of her son. The lawyer used Tiffany Weichers as an investigator. The victim was also in contact with prosecution investigator Michael Wallace from February 2013 on, but it was not until after several meetings with him that she revealed the sexual abuse by defendant (i.e., the nonconsensual sodomies).
The emergency room doctor testified the victim arrived unresponsive and had to be intubated. He testified that, absent medical care, she probably would have died. He saw no injuries besides a neck ligature, but he was focused on clearing her airway. In his experience, when people are strangled by others, they typically have injuries indicative of a struggle, and he saw no such signs here, although his focus was not on forensics.
A peace officer testified that after the victim regained consciousness, he went to the hospital to interview her. A recording of the interview was played at trial. The victim said she woke up in the hospital to see her mother, but at first did not remember anything after giving birth to her son. She knew Rosean, but did not remember calling her. She did not remember planning to leave defendant, but when asked if they were having trouble replied "[s]omewhat." She asked whether defendant was in trouble if he did it. She accused her mother of "making it look like it's his fault." When an officer told her the "rumor mill" was that defendant tried to hang her, she replied: "That's what my sister said." (However, an officer had told the victim's family not to tell her what they thought happened, so as not to "contaminate" the victim's version.)
The record contains several transcripts of recordings used by the jury as aids at trial. Although these transcripts were not introduced as evidence, because the parties do not contest their accuracy on appeal, we reference them for convenience.
When told there had been no evidence to support that theory she replied, "Except this," apparently referencing her neck, because she added, "Why would I do this to myself?" and that she had a baby boy. An officer told her she had made telephone calls stating she wanted to die, and that she threw a candle breaking a windshield. She had no memory of having her mother's car. She did not remember a stool, and repeated she would not kill herself. She said she and defendant fought constantly and each had cheated. Again she said: "I'm not going to kill myself. I have a five year old baby boy."
Members of the victim's family arrived at the hospital to find defendant sleeping in a waiting room. When asked what happened, defendant swore and told them to leave him alone; eventually the victim's brothers got into an argument with him and security guards intervened. The victim's sister testified he told her "to leave him the F alone. He didn't care. [The victim] is fine. He was just drunk. He didn't give me any explanation for what happened or what was going on or anything." She spoke with him for about 20 minutes, and at some point he said the victim became angry and tried to kill herself. He also said they had been fighting and he had been trying to calm her down. Defendant did not show any sympathy toward the victim.
A guard returned the Durango's keys to the victim's mother, who saw that the key ring was broken, as was the windshield. On the passenger side she saw two hand marks trailing the length of the passenger door, "Like if somebody was up against it and drug their hands all the way down it." Others saw the broken windshield, and saw that the Durango was filled with bags of clothing. The house was "thrashed" with holes in various places. There was wire from the rafters by the kitchen, wire on the floor, and a spool of the same wire in a bedroom, near some wire cutters.
At some point defendant told Phillippe: " 'I went for a walk, and I came back to the house and that's where she was.' " At one time in the past Phillippe had lived in an apartment next to defendant and the victim for about six months, and he would often hear defendant yelling at the victim.
A case manager at the domestic violence shelter testified that on January 25, she saw the victim's black eye, a cut on her head, a red mark around her neck oozing blood, and bruises on her abdomen; she photographed these injuries.
Vue testified he lived with his parents on the other side of the duplex. It was well off of the highway, with no other houses nearby. At around 9 or 10 p.m. on the night of January 20-21, 2013, he helped the victim unload wood from a Durango, then returned to his side to watch television. After about five minutes, the victim knocked, wanting to use a telephone to call and find her telephone, then she left. She asked Vue to go into her house to get her keys, but he declined; he considered the couple friends and he did not want to get between them. In the five months the couple had lived next door, Vue had heard them arguing 20 or more times. He had seen defendant strike the victim 20 or 25 times, "and then she [would] swing back."
Later, that night Vue heard a commotion and "stomping," and the victim again came to his mother's house, asking to use the telephone, then again returned to her side of the duplex. Vue then heard "[s]creaming with the rumbling sound" but was not impressed as he often heard the couple fight. He could hear both the victim's voice and defendant's voice, coming from the front porch. He looked out and saw the victim try to get into the Durango, but defendant "snatched the keys away" and Vue heard "a loud noise . . . like a window was broken." He saw the window was "smashed, he was trying to pull her out." He saw defendant throw something at the window, "Like a big, heavy glass candle," and telling the victim " 'Give me the fucking keys.' " Defendant then opened a door and pulled the victim out. She resisted and said she wanted to leave. After she walked away, with defendant pulling her back, they both returned to the duplex. They were still arguing over the keys, and Vue heard defendant say if the victim came inside he would give her the keys and her telephone. Then the couple seemed to calm down. Around 12:30 a.m. Vue went to bed, but he did not sleep. After about 15 minutes, he heard "a heavy foot stomp" that continued intermittently for about 10 minutes, until first responders arrived.
Deputy David McFadden, who testified that the duplex was difficult to locate due to its remoteness, heard defendant calling out, panicked, and saw him holding the victim, who was gasping. Deputy Steven South found defendant crying over the victim, who was on the ground, barely breathing. A length of wire was on the floor near her head, with a loop in it, and more (matching) wire that had been cut "was through some wooden slats . . . above the door frame" to the kitchen. There was a stool on its side nearby. It appeared the wire had borne weight, because it was embedded in the wood. South had thought the scene reflected an attempted suicide. McFadden, too, had seen no signs of "foul play." After the ambulance left with the victim, defendant told McFadden he saw the victim hanging, " 'cut her down and then called you guys.' " Defendant said they were having marital difficulties and the victim had been upset.
Wallace, the prosecutor's investigator, worked mostly in domestic violence cases. He found many police logs of disturbance or suicidal reports regarding the couple. He saw the Durango with the broken window and streaks along one side and took photographs. His (female) partner photographed the victim's buttocks and legs, which also showed injuries. These photographs were introduced at trial. He took or obtained photographs showing the duplex and surrounding area. A map showed the duplex at the end of a road off Highway 273, behind a car lot; it appears to be quite secluded.
Wallace testified about a stool the victim gave him, and about measurements he took of it, which suggest the victim could not easily have passed the wire through the slats.
A friend of the victim's saw the couple argue a lot at both the apartment and duplex. Defendant also "used to put a lot of holes in the wall, stuff like that." Late in 2012 she went with her boyfriend, the victim, and Phillippe, to help the victim retrieve her belongings; when they arrived, defendant was screaming and throwing the victim's things off the porch. The victim stayed with this friend for about a week, then returned to defendant.
The victim's brother-in-law testified that a day or two before the hanging defendant told him that he (defendant) did not want to live anymore, and defendant described walking out into highway traffic. He testified the couple often had verbal arguments and he had heard defendant threaten to hit the victim different times.
Wallace was recalled as an expert witness on domestic abuse and testified about the "cycle of violence," as we describe in Part III, post.
Sergeant MacGregor interviewed defendant on February 11, 2013, and defendant said that in November 2012 he had learned the victim was in another relationship, and tried to kill himself by walking into highway traffic.
Sergeant Randall testified that during a telephone call with defendant, defendant explained how he had kicked a laptop that accidentally hit the victim, injuring her lip. Randall later recorded an interview with defendant on February 15, 2013, at the station. Defendant admitted there had been a struggle by the car because he did not want the victim to leave, and that he pushed her, she fell down, and he dragged her toward the house although she resisted him. He was mad because she seemed interested in another man, which is why he thought she was packing the car. He cut some rope and told her he was going to kill himself. The victim threw the candle that broke the car's windshield. She begged him not to leave. He walked to the end of the driveway, smoked a cigarette, and returned after about 15 to 20 minutes to find her hanging, whereupon he broke the wire, tried to rouse her, then called for help. Randall testified Vue had told him it was too dark to see who had thrown the candle.
Defendant testified he was 27 at the time of the hanging. He claimed he did not have sex with the victim until after she turned 17. When she became pregnant at aged 17 and a half, her father and brothers confronted him. Her father hit him with a baseball bat and her brothers punched him. Other members of her family were also violent towards him.
Defendant testified the laptop incident was an accident, and he was not angry, he was just trying to close the laptop with his foot. The couple frequently had loud arguments. Defendant denied sodomizing the victim after the concert. In November 2012, the victim learned defendant had cheated on her in 2009. Although she left the house for a while, she came back. They fought over both his past infidelity, and the fact the victim cheated on defendant in retaliation, but they spent Thanksgiving and Christmas 2012 together.
Defendant admitted he punched holes in the walls and threw things. He never used a knife to stab a wall and did not threaten the victim on January 15, 2013, although he had slammed a door several times and had punched a hole in it. He did not strangle her. He admitted that he tried to kill himself in November 2012 by running in front of a truck on the highway.
Defendant testified that on January 20, the victim brought alcohol and "Norcos"--for which defendant did not have a prescription--and he drank and took two pills. Defendant checked Facebook and formed the belief the victim was having sexual conversations with another man. He denied seeing the Durango loaded with her belongings. Eventually he told her he was going to kill himself and he cut some rope and walked toward the highway. He knew telling her this would make her upset, and he had threatened to kill himself before. The victim had a broken candle, and said, " 'Look what you made me do. I broke my mom's window. She's going to kill me. I can never go to my mom's house again.' And she was, like, pulling out her hair and freaking out." He thought he told her she was stupid for throwing the candle and breaking the window.
He went to the end of the street and smoked a cigarette, and after maybe 15 or 20 minutes returned to the duplex to find the victim hanging from the door frame to the kitchen, with the small stool underneath her; the tips of her shoes were touching the stool. He grabbed the wire and used his weight to snap it. He laid her on the floor, removed the wire, tried to perform CPR, and slapped her, as she was not breathing. Once she started breathing he found a telephone and called 911. He fell asleep in a hospital waiting room, and the victim's sister woke him up, yelling at him, asking what he had done to the victim. Then her brothers approached him and said they were going to kill him; hospital security guards interposed themselves between the men. The next day defendant filed papers for custody of his son, and sought restraining orders against the victim's siblings.
Defendant had not pushed the victim down, kicked her, or dragged her, despite what he had told Sergeant Randall. He had lied because he thought he was going to be charged with attempted murder, and Randall said he could prove defendant was not in the house when he called 911, and that he had witnesses who saw defendant push the victim and drag her into the house. Defendant denied hanging the victim, trying to kill her, or staging a suicide attempt.
DISCUSSION
I
False Imprisonment (Count 9)
Count 8 charged kidnapping, and count 9 charged false imprisonment by violence, both on the same day, pertaining to events before the hanging.
The Attorney General concedes the People's theory in closing argument conflated the two charges, arguing defendant dragged the victim into the house (kidnapping) and kept her there (false imprisonment) as part of one criminal act. The Attorney General concedes the false imprisonment charge is necessarily included within kidnapping, and therefore defendant cannot be convicted of both charges. We agree, as that position is consistent with precedent. (See People v. Chacon (1995) 37 Cal.App.4th 52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.)
The "correct course of action is to reverse the conviction for the included offense and direct the entry of a dismissal of the less serious crime." (People v. Chan, supra, 128 Cal.App.4th at p. 421.) Accordingly, we vacate the conviction for false imprisonment, and direct the trial court to dismiss that count and prepare an amended abstract of judgment reflecting this change.
II
Kidnapping (Count 8)
Defendant next contends that the jury should have been instructed on false imprisonment as a lesser included offense of kidnapping.
The difference between the two crimes is asportation. (See People v. Reed (2000) 78 Cal.App.4th 274, 284.) That element requires proof the defendant moved the victim a "substantial distance," a question not limited to mere physical distance, but that includes movement changing the circumstances so as to expose the victim to greater harm, shield the defendant from exposure or apprehension, and so forth. (See People v. Martinez (1999) 20 Cal.4th 225, 232-237; People v. Williams (2017) 7 Cal.App.5th 644, 671-672.)
We agree with defendant there was enough evidence, considering "its bare legal sufficiency, not its weight" (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman)), from which a reasonable jury could have found defendant falsely imprisoned the victim but did not kidnap her. The victim was dragged a very short distance from the Durango into the duplex, and although she was moved from outside to inside the duplex, a map in evidence and connected testimony showed the duplex was isolated. Although there was a family living in the other side, Vue had already declined to help the victim earlier. In such circumstances, it is possible that a jury could find that there was nobody around either to help the victim or deter defendant's actions, and therefore could decline to find the movement of the victim was "substantial" enough to satisfy the element of asportation.
Therefore, the trial court had a duty to instruct on the lesser offense of false imprisonment, regardless of any request, and regardless of the defense contention that defendant did not commit either crime. (See People v. Smith (2013) 57 Cal.4th 232, 239-240; Breverman, supra, 19 Cal.4th at pp. 148-149.) The rule protects against the possibility the jury will be forced to make an " 'all or nothing' " choice (Smith, at p. 239), that is, feel pressured to convict of a greater offense than warranted, lest the criminal go free because no lesser offenses are on the table. Because this error is procedural, reversal is not warranted unless it appears " 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred. [Citation.]" (Breverman, supra, 19 Cal.4th at p. 149.)
Defendant contends the error is one of federal constitutional dimension but our Supreme Court has held otherwise, in noncapital cases not involving complete deprivation of a defense. (See People v. Rogers (2006) 39 Cal.4th 826, 867-868 & fn. 16; Breverman, supra, 19 Cal.4th at pp. 165-172.) We are bound by precedent on this point. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accepting defendant's view that the trial court should have instructed on the lesser included offense of false imprisonment by violence, we see no prejudice, a critical issue discussed only cursorily in defendant's opening brief. The facts regarding asportation are strong and are not ambiguous (see People v. Castro (2006) 138 Cal.App.4th 137, 144) in this case. Defendant pulled the victim out of the Durango and dragged her by the hair into the duplex, from which location he had the ability to harm her further, and from which he actually did harm her further, by hanging her with wire.
Moreover, although the false imprisonment count must be vacated (see Part I, ante), the fact remains that the jury convicted defendant of that offense and kidnapping. Because the jury convicted defendant on both charges, we know it found asportation to be true. As the Attorney General points out, the jury was not forced into an all-or-nothing choice (People v. Smith, supra, 57 Cal.4th at pp. 239-240), because it was in fact instructed on both offenses as charged--albeit incorrectly--in separate counts. Further, this jury acquitted defendant of four other counts, showing that it was not a runaway jury. (See fn. 1, ante.)
Defendant contends that because of the short distance the victim was moved, about 10 feet, there was evidence from which a jury "could conclude" or "could have" or "may have" found him guilty of the lesser included offense of false imprisonment but rejected the greater offense of kidnapping.
However, that is not the test. When faced with a state-law error, it is the defendant's burden to show prejudice (see, e.g., People v. Hernandez (2011) 51 Cal.4th 733, 746). And to carry his burden, defendant must show it is " 'reasonably probable' [he] would have achieved a more favorable result had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 149, italics added.)
Thus, the law imposes a substantively greater burden than defendant is willing to assume by claiming that he need only show a jury "could have" or "may have" found in his favor on the disputed point. (See also People v. Watson (1956) 46 Cal.2d 818, 837 ["the test . . . must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated"].) Defendant's briefing in effect casts the burden on the People to explain why the error was harmless, but it is his burden to show it is prejudicial, and merely pointing to the very evidence that creates the error does not satisfy that burden. Our Supreme Court has explained that "evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given." (People v. Banks (2014) 59 Cal.4th 1113, 1161, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) Thus, defendant's musings about what the jury "could have" or "may have" found do not constitute a sufficient prejudice argument. "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956, some italics added.)
Defendant emphasizes that the victim was not moved very far, only about 10 feet. But as the jury was instructed (CALCRIM No. 1215):
"Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors, such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or [decreased] the likelihood of detection."
The People argued, consistent with the instruction, that although the distance was only about 10 to 12 feet, asportation was proven because defendant moved the victim from outside where she could get help to inside where she was trapped. "There[] [are] more weapons available. It's an enclosed space. He can control her more easily." "She couldn't escape. . . . If he was in there with her, he was able to hold her more carefully, more closely. Did it give the attacker greater opportunity to commit additional crimes? It did, and he did. He was in the house with weapons available to him. He used a wire to strangle her in the house. It gave him that opportunity that he didn't have outdoors in the open where she could get away, where she could escape." (Italics added.) "He can control [her] whether or not he's detected by [passers-by], by police, by neighbors, by witnesses. That's all under his control."
Our Supreme Court has explained that although the arguments of counsel are not a substitute for correct instructions, they can be considered both to determine whether the instructions were understood and to assess whether an instructional error was prejudicial. (See People v. Rogers, supra, 39 Cal.4th at pp. 869-870; People v. Beeler (1995) 9 Cal.4th 953, 983-984; People v. Brown (1988) 45 Cal.3d 1247, 1256.)
Even movement of a victim for a short distance is asportation if it changes the environment so to increase the risk of harm or to embolden a defendant by decreasing the risk of detection. (See, e.g., People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [15 feet to inside of an apartment both increased the victim's risk of harm and made detection less likely]; People v. Shadden (2001) 93 Cal.App.4th 164, 167-170 [nine feet from front counter to a back room, decreasing possible detection and increasing risk to the victim]; People v. Salazar (1995) 33 Cal.App.4th 341, 346 ["29 feet from the motel hallway through the motel room and into the motel bathroom"]; id. at p. 348 ["Salazar further secluded Maria by dragging her into the bathroom and shutting the door. This provided additional sound insulation and subjected Maria to still greater risk of harm"].)
Of course, it is up to a jury to decide what is a substantial distance in any given case, considering all the circumstances. Although it is certainly possible that a jury could have found the circumstances here did not amount to a substantial distance, it cannot be said that it is "reasonably probable" this jury, on this record, would have so found. Although the duplex was secluded, and Vue had declined to intervene before, by dragging the victim into the duplex, defendant necessarily made the victim's predicament far more dangerous. Recall that defendant admitted to an officer that he dragged the victim into the duplex, and there were visible drag marks down the side of the Durango that corroborated her testimony that she was trying to resist defendant, showing her desperation to remain outside the duplex. And once inside the duplex, defendant beat and kicked her, threw her against walls and into a stove, and then availed himself of her helplessness by wrapping a wire around her neck and hanging her from a doorframe, an act which very nearly killed her. He thus availed himself of the opportunity he had created by secluding the victim, to perpetrate even more violence against her, with apparent impunity.
In summary, given that this was not a true "all-or-nothing" situation, and given the extremely strong and clear evidence of asportation, defendant has not shown it is reasonably probable that this jury would have rejected the element of asportation. Viewing the case through the appropriate prism, we find defendant has not carried his burden to show it is reasonably probable that he would have been convicted of false imprisonment, and not kidnapping, given these facts. Accordingly, the failure to instruct on the lesser included offense of false imprisonment as to the kidnapping count was not prejudicial to the defendant in this case.
III
Intimate Partner Battering
Evidence Code section 1107, subdivision (a) provides:
"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."
The People moved in limine to be allowed to introduce testimony by prosecution investigator Wallace as an expert witness on intimate partner battering, first referred to by the parties and trial court by its older term, "battered women's syndrome." (See Evid. Code, § 1107, subd. (f) [referencing the change in terminology effective Jan. 1, 2005].) Defendant moved in limine to exclude this evidence, or delay its introduction until shown to be relevant. The People's motion in part detailed many instances of domestic abuse by defendant against the victim stretching back many years, instances that the trial court ruled would be admissible as uncharged-act propensity evidence. (See Evid. Code, § 1109.)
We note that "Even before the enactment of [Evidence Code] section 1109, the case law held that an uncharged act of domestic violence committed by the same perpetrator against the same victim is admissible." (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027; see People v. Fruits (2016) 247 Cal.App.4th 188, 203-204 [motive and intent].)
Later at the in limine hearing, the People conceded the victim had not recanted, and was cooperative regarding the charges, but argued the many years of abuse she endured without reporting it to the authorities would make the jury doubt her credibility absent expert testimony about how chronic abuse can muzzle victims. Defense counsel argued such testimony was inappropriate unless counsel first attacked the victim's credibility on grounds that touched on common myths or misconceptions about domestic violence, otherwise the evidence would improperly influence the jury to presuppose the truth of the predicate fact that prior abuse had occurred. The People then explained they planned to call Wallace after the victim, whose testimony would provide the factual basis undergirding the expert's testimony. The trial court ruled the evidence was admissible to explain why the numerous prior incidents of domestic violence went unreported.
At trial Wallace first testified before the victim, but only about matters falling within his purview as an investigator; later--after the victim testified--he was recalled and testified as an expert witness.
Wallace testified as an expert only for about 20 pages of transcript. He described his training and experience investigating domestic violence cases, and testified he had qualified as an expert in the field before. He discussed the myths and misconceptions regarding domestic violence, beginning with the "Why does she stay?" question. The answer is that victims of abuse may be embarrassed, ashamed, or afraid to talk to law enforcement, particularly in cases involving sexual violence.
Wallace described the "cycle of violence" and how, over time, the abuse may seem normal or acceptable to the victim, so that even when she does speak to law enforcement, she may not report everything that happened to her. He described a "Power and Control Wheel," where the spokes represent control techniques, such as looks, gestures, destroying property, displaying a weapon, using children to engender guilt, threatening suicide, verbal abuse, isolation, jealousy, male privilege, economic abuse, and so forth. He had found the wheel to be consistent with his experience in the field. Sometimes victims will report abuse to law enforcement, but then recant their stories, avoid subpoenas, or not show up to court. Sometimes victims have real difficulty remembering or relating what happened to them.
Use of this image is widespread. (See State v. Spaulding (2016) 151 Ohio St.3d 378, 407 ; Borchgrevink v. Borchgrevink (Alaska 1997) 941 P.2d 132, 135, 139; State v. Maelega (1995) 80 Hawai'i 172, 180 .) --------
Defense counsel did not cross-examine Wallace on this testimony.
The jury was instructed (CALCRIM No. 850) that Wallace's testimony was not evidence that the defendant committed any charged crimes and could be used "only in deciding whether or not [the victim]'s conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony." Defendant did not object to the adequacy of this instruction in the trial court, and on appeal does not contend the instruction was inadequate.
During argument, the People briefly referenced Wallace's testimony about "power and control type behavior" and argued the other evidence showed that was what was happening within this relationship. The People spent more time arguing that the prior acts showed defendant's propensity to commit domestic abuse. Near the end of the argument, the People emphasized defendant "has been physically violent against" the victim, and the evidence and "the prior acts show this is a relationship that is filled with domestic violence, it is a relationship in which the defendant continuously has tried to exercise power and control."
The defense cautioned the jury about Wallace's testimony, arguing it presented a cure-all theory to fill gaps in the People's case. After conceding such evidence might be appropriate at times, defense counsel argued: "This is not a case in which that is appropriate because the evidentiary gaps in this case are so large and so failing to meet the standard of proof required . . . ."
On appeal, defendant acknowledges, as he must, that we review the trial court's ruling admitting Wallace's expert testimony for an abuse of discretion. (See People v. Riggs (2008) 44 Cal.4th 248, 294.) He reiterates the points made by defense counsel at trial: the victim had not recanted and was generally cooperative with the authorities, and therefore presented no myths or misperceptions to the jury requiring explanation by an expert witness. In particular, he claims the victim's credibility was not contested "on any basis that had to do with the alleged misperceptions that section 1107 was meant to address." We disagree with this characterization of the case.
There was evidence--including some of defendant's own testimony--showing that defendant had attempted suicide or threatened suicide, knowing it would upset the victim, physically and sexually abused her, punched holes in walls, and secluded the victim by smashing and confiscating telephones, which prevented the victim from calling for help. These techniques matched some of those commonly used by abusers to control victims, as described by Wallace.
Wallace also described how the "cycle of violence" can impair a victim's ability to remember or relate abuse, particularly about sexual abuse. It took several meetings before the victim revealed the charged (and acquitted) sexual abuse, and Wallace's testimony could help the jury understand this delay. She also repeatedly left defendant to live elsewhere, yet she kept returning to defendant. Defendant emphasizes on appeal that trial counsel did not press the victim on cross-examination about returning to defendant. But the very fact the victim kept returning to her abuser would naturally raise the "Why does she stay?" question in the minds of the jurors. Wallace's expert testimony would help the jury understand that issue, as well. (See People v. Riggs, supra, 44 Cal.4th at p. 294 ["Without expert testimony explaining that an abused person's . . . failure to leave the perpetrator . . . is consistent with a psychological syndrome caused by the abuse, the jury might have mistakenly believed the only reasonable explanation for Hilda's failure to do these things was that defendant's statements to the police and his defense at trial were true"]; People v. Gadlin (2000) 78 Cal.App.4th 587, 594 [evidence may be admissible to explain a victim's "reunion" with her abuser, despite her "cooperation with the prosecution at the trial"].)
Accordingly, we cannot say the trial court abused its discretion in allowing Wallace to testify as an expert about intimate partner battering in this case.
IV
Consecutive or Concurrent Sentencing (Counts 5 & 7)
Defendant contends the trial court should have imposed concurrent rather than consecutive sentences on the two domestic violence counts, one based on pushing the victim to the ground and dragging her into the duplex (count 5), and the other based on hanging her (count 7). He contends there was "a seamless act of domestic violence against a single victim consuming a total duration of ten to perhaps twelve minutes. Further . . . this single act took place in one location, at the victim's and appellant's home." He also contends both were committed with the same intent, given Wallace's testimony about the power syndrome and cycle of violence within the relationship.
Our Supreme Court has said that "in the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary determination to impose consecutive sentences ought not be set aside on review." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. [Citations.] If it has faithfully applied the sentencing rules, the only other question is whether, all circumstances considered, the trial court's decision exceeds the bounds of reason." (People v. Reeder (1984) 152 Cal.App.3d 900, 923.)
In making its decision, a trial court should consider: "Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).)
The trial court first articulated a tentative sentence as follows: Count 7 (the hanging, charged as domestic violence) was designated as the principal base term, which merited the upper term of four years, plus five years for the great bodily injury enhancement; the assault with a deadly weapon (count 4, the January 15 knife incident) and the other domestic violence charge (count 5, occurring outside by the vehicle before the victim was taken into the house) merited one-third consecutive sentences of one year each. As pertinent to the argument now pressed on appeal, as to count 5, the trial court tentatively indicated its view that "That's clearly a separate act of violence [i.e., from the hanging]. You don't get a volume discount for engaging in more than one act of violence." Counts 8 (kidnapping), 9 (false imprisonment), and 12 (criminal threats) would be run concurrently.
After hearing from the victim, both counsel, and defendant's grandmother, the trial court imposed the tentative sentence. The trial court found count 5 merited consecutive sentencing because it was "a separate incident detached from" other counts, "both in terms of time and location and intent, for example, cooling-off period that would have enabled the defendant to have engaged in detached reflection before engaging in the conduct which supports Count 7 [the hanging]."
This reasoning is both supported by the evidence at trial and comports with the normative rules set forth by the California Rules of Court, quoted earlier. Each violent crime may be punished separately in an appropriate case. (See People v. Harrison (1989) 48 Cal.3d 321, 338 ["defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior"]; People v. Gaio (2000) 81 Cal.App.4th 919, 935 [multiple punishment permitted "where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken"]; People v. Calderon (1993) 20 Cal.App.4th 82, 87 ["when violent crimes against the same victim on one occasion have separate motives . . . consecutive sentencing is proper"]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [two shots within one minute; consecutive sentencing upheld, "Defendant's conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk"].)
The trial court could rationally find that defendant's act of pushing the victim down and dragging her into the house was an effort to keep her from leaving; thereafter, he formed the intent either to kill her or at least severely injure her by hanging her by the neck. That was a separate assaultive act meriting separate punishment.
Defendant does not show an abuse of discretion at sentencing on this record.
DISPOSITION
The conviction for false imprisonment is vacated and count 9 is dismissed. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment consistent herewith and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Murray, J.