Opinion
A128844
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAWNIE LYNN BENEDETTI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC069326)
In an information, defendant Shawnie Lynn Benedetti was charged with the felony offenses of child abuse likely to produce great bodily harm or death (Pen. Code, § 273a, subd. (a) ); inflicting on a child cruel or inhuman corporal punishment or injury, resulting in a traumatic condition (§ 273d), and false imprisonment effected by violence, menace, fraud, or deceit (§ 236.) The charges arose out of a physical confrontation between defendant and her daughter on May 28, 2009. After a jury trial held in January and February 2010, defendant was found guilty of the misdemeanor offense of child abuse not likely to cause great bodily injury or death, as a lesser included offense of the felony count (§ 273a, subd. (b)), the felony offense of inflicting on a child cruel or inhuman corporal punishment or injury resulting in a traumatic condition (§ 273d), and the misdemeanor offense of false imprisonment without violence or menace, as a lesser included offense of the felony count (§§ 236, 237, subd. (a)). We conclude that the trial court committed prejudicial error by refusing to instruct the jury on the defense of mistake of fact. Accordingly, we reverse the judgment.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2009, defendant's then 17-year old daughter was having a party at her home with her friends. During the party and continuing after daughter's friends left, defendant (about five feet two inches) and her daughter (about five feet five inches and about 110-115 pounds) got into an argument about defendant's purported failure to pay daughter's cell phone bill. Defendant and her daughter were screaming at each other and at some point the altercation became physical. According to daughter, both she and defendant threw punches at each other. On cross-examination, daughter testified that her mother hit her first and then she hit her back. When defendant hit her again, daughter fell flat on her back and defendant straddled her, putting her full weight on daughter's chest, and then defendant embedded her knees into the daughter's upper arms and pinned her arms on the top of her head. According to the daughter, defendant's friend Aaron Douglas tied the daughter's hands together and legs together with duct tape and plastic zip ties and then later used a rope to restrain daughter.
Daughter claimed that while she was restrained on the floor, defendant gave her "straight face shots for over an hour, hour and a half," held her daughter's neck more than once, pushed in the side of her daughter's cheeks to prevent her daughter from screaming, put a pillow over her daughter's face more than once, and unsuccessfully attempted to close the daughter's mouth with duct tape. Daughter was screaming and unsuccessfully trying to get out from under defendant. At trial daughter did not remember what she was screaming, but probably she was yelling for some one to help her. Daughter did not remember her mother telling her to calm down or that defendant had given her a gift card to pay her cell phone bill. According to daughter, defendant was not really saying that much besides "shut up" and "yelling different things." However, daughter did remember defendant asking her friend Douglas for the number for the psychiatric hospital. Before she was taken to the ground, daughter did not tell her mother that she wanted to kill herself. Daughter did not know how many times she said to her mother "I wish I was dead" while she was on the floor. But daughter denied saying that she just wanted to kill herself. When asked if she wanted to kill herself on May 28, daughter testified that she was having a party with her friends. After daughter was leashed to "a little hope chest," defendant and Douglas went into defendant's bedroom and daughter was left alone.
At about 8:30 p.m., defendant's two male friends arrived at the home and stayed for about twenty minutes to an hour. The men were both surprised and somewhat shocked to see defendant's daughter restrained to a chest, with duct tape and rope around both her wrists and legs. Daughter could not get up from the chest. There was a very strong smell of alcohol around daughter. Daughter was crying and her lips were swollen and red and she had a little lump or bump on her forehead. Daughter was hitting her head against a wooden bar attached to the chest. She was yelling and screaming for probably fifteen minutes and then she was "pretty much quiet." Daughter told the men to leave her alone, and she said "don't worry, you won't see me any more," or "[y]ou're not going to see me anymore for a long time." The men also saw daughter trying to bite the duct tape off her wrists. At some point defendant asked the men to keep an eye on her daughter so that defendant could find a telephone number to call for help. The men watched daughter for about 10 minutes. During that time the daughter was mumbling, but she did not say that anyone had kicked, punched or slapped her. Nor did daughter say that she wanted to kill herself or commit suicide. After watching daughter for a few minutes, the men went into another room in the house. Daughter then freed her hands from the duct tape, and got a knife from a table and cut the duct tape off her legs. She ran out of the house and reported the incident to the police later that evening at 10:30 p.m.
Both the prosecution and defense presented witnesses who described daughter's appearance and conduct shortly after the incident, and the jury was shown photographs of daughter that were taken by the police and hospital personnel. There was conflicting evidence as to the cause of daughter's injuries. The nurse practitioner, who examined daughter on the afternoon on May 29, testified that daughter's eye injuries were consistent with strangulation and the other visible traumatic injuries were consistent with the history that daughter gave as to how she got the injuries. A defense medical expert testified that in his opinion daughter's injuries could have been caused by an individual attempting to restrain a vigorously struggling person on the floor. The witness further testified that daughter's eye injuries did not necessarily equate with an attempt to strangle her and could have been caused by other circumstances having nothing to do with strangulation.
Because daughter did not return home after the incident, defendant went to the police on the evening of May 30, 2010, to report her daughter missing. Defendant waived her Miranda rights and was interviewed on videotape by the police at that time. The jury was given a transcript of the interview and the video tape was played in open court. During the interview, defendant explained the circumstances leading to the physical confrontation, which could have lasted "15 minutes" but "felt like an hour." Defendant told her daughter she was acting way out of control and needed to stop. When her daughter yelled at her and pushed her against the wall, defendant grabbed her daughter and, using a karate move, defendant put her leg behind her daughter's leg and just threw, tossed, or put her daughter on the floor. Defendant then sat on top of her daughter, pinning her arms and hands, because her daughter was "going insane," she was "saying, mean, nasty," and "crazy" things, and "screaming and kicking . . . ." Defendant put some soap and water in her daughter's mouth because she was saying mean things. Defendant repeatedly said that if her daughter would calm down, defendant would release her. Daughter tried to get away by biting and scratching defendant. Defendant used her hands and tape to close her daughter's mouth so that her daughter would stop screaming. Daughter was able to remove the tape from her mouth after just a couple of minutes. While defendant was struggling with her daughter, defendant asked Douglas to call two other family friends to help control her daughter. Before the friends came to the house, defendant used some tape to tie her daughter's wrists and feet and rope to restrain her daughter to a chest so that defendant could get to a telephone and call a hospital for assistance. Defendant told her daughter that she was being taped so that defendant could get to a telephone. Defendant did not call the police because she did not want her daughter to get in trouble as she had been recently placed on juvenile probation. Defendant was afraid to leave her daughter unrestrained because her daughter was repeatedly saying that she was going to kill herself. Defendant did not positively know if her daughter would really act on the threat but her daughter made defendant believe that she would act on the threat. On a previous occasion defendant had to put her daughter in a hospital because her daughter threatened to kill herself. Defendant believed that her daughter was "going crazy" and she thought she needed "to go in a psych hold." After she restrained her daughter, defendant went to another room to get a telephone number for the hospital. Her daughter was able to get out of the restraints and she ran away. Defendant denied that any similar incident had ever happened before between herself and her daughter. Defendant also denied that she choked, hit, punched, slapped or kicked her daughter. Defendant also denied that she put a pillow over her daughter's face or put her hands on her daughter's neck.
Defendant's 21 -year old son and daughter's brother testified that defendant never hit, beat, or slapped her children. Defendant disciplined her children by yelling at them and telling them to go to their rooms, or taking away radio and television privileges. Daughter reacted to the discipline by slamming doors, cussing at defendant, and throwing tantrums. "The biggest thing, she'll run to her room, slam her door, tell everyone she's going to kill herself." The brother heard his sister say she would kill herself "[o]ver 100 times easy," when she wanted attention and did not want to do her chores. No one really believed daughter would act on the threat to harm herself and no one called the police. However, on one occasion when daughter threatened to take a bunch of pills, defendant reported the matter to the school, and "they had [daughter] go to [an] insane asylum."
DISCUSSION
I. Trial Court's Refusal to Instruct on Mistake of Fact Was Prejudicial Error
Defendant's trial counsel asked the court to instruct the jury, in pertinent part, using language in CALCRIM Nos. 3403 [Necessity], 3405 [Parental Right to Punish a Child], and 3406 [Mistake of Fact]. After a jury instruction conference, the trial court ruled that it would instruct the jury on the specific defenses of necessity and parental right to punish a child, but refused to instruct the jury on the general defense of mistake of fact. Objecting to the trial court's ruling, defense counsel argued that a mistake of fact instruction was warranted on the theory that defendant had restrained her daughter because defendant believed her daughter was about to injure herself, or worse, kill herself. Defense counsel noted that throughout the course of the trial the prosecutor had endeavored to show that daughter was not in a suicidal state on May 28, 2009. So, if, in fact, defendant was mistaken about that fact, then an instruction on mistake of fact should be given. In response, the prosecutor argued that a mistake of fact instruction would transform what were general intent crimes into specific intent crimes. The prosecutor believed that the instructions on the element of the charged and lesser included offenses, and the affirmative defenses, included the proper standard by which the elements were to be proven by the prosecution, and "it would actually be an error of law" to give a mistake of fact instruction. The trial court refused to change its ruling without further comment. We conclude that the trial court's refusal to give the mistake of fact instruction was prejudicial error.
Even though the charged and lesser included offenses in this case were general intent crimes, "an act committed under a mistake of fact which disproves any criminal intent is not a crime." (People v. Rivera (1984) 157 Cal.App.3d 736, 742; see People v. Hernandez (1964) 61 Cal.2d 529, 534-536 [a reasonable mistake of fact may be raised to defend against a general intent crime]; see § 26, subd. (3) ; CALCRIM No. 3406.) Thus, contrary to the trial prosecutor's argument, an instruction on the concept of mistake of fact would not have transformed the charged and lesser included general intent crimes into specific intent crimes.
Section 26 reads, in pertinent part: "All persons are capable of committing crimes except those belonging to the following classes: . . . [¶] Three - Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent."
The mistake of fact defense is outlined in CALCRIM No. 3406, which provides, in pertinent part: "The defendant is not guilty of ____ < insert crime[s] > if (he/she) did not have the . . . mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ____ < insert crime[s] >. [¶] If you find that the defendant believed that ____ < insert alleged mistaken fact[s] > [and if you find that belief was reasonable], (he/she) did not have the . . . mental state required for ____ < insert crime[s] >. [¶] If you have a reasonable doubt about whether the defendant had the . . . mental state required for ____ < insert crime[s] >, you must find (him/her) not guilty of (that crime/those crimes)." The bench notes to CALCRIM No. 3406 (2011 ed.) pp. 1008-1009, indicate that "[i]f the defendant is charged with a general intent crime," as in this case, "the trial court must instruct with the bracketed language requiring that defendant's belief be both actual and reasonable."
We also reject the Attorney General's contention that there was no substantial evidence to support a mistake of fact instruction. "To determine whether a mistake of fact applies we must assume the facts were as the defendant perceived them. [Citations.] If under this assumed state of facts the defendant's actions would not have constituted a crime, the defense applies. [Citations.] Conversely, if under this assumed state of facts the defendant's actions would still have been unlawful, the defense does not apply. [Citation.]" (People v. Watkins (1992) 2 Cal.App.4th 589, 594.) Here, the Attorney General does not argue that defendant's conduct would have still been unlawful even if the assumed state of facts were as defendant perceived them (that the daughter intended to act on her threats to harm or kill herself if not restrained). Instead, the Attorney General argues only that "[t]here essentially was no independent evidence, despite [defendant's] self-serving statement, that [her daughter] repeatedly threatened to kill herself during their argument, requiring [defendant] to restrain [her daughter] to stop her from hurting or killing herself." However, " ' "[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citations.]" [Citation.]' [Citation.]" (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Thus, even if uncorroborated, defendant's statement was sufficient to constitute substantial evidence to instruct on the mistake of fact defense. (See Ibid. [defendant's own testimony sufficient to constitute substantial evidence to instruct on claim-of-right defense].)
Because an instruction on the mistake of fact defense was requested in this case, "we rely on the general principles that the trial court had a duty to instruct on all material issues presented by the evidence and that '. . . the jury must be allowed to "consider the full range of possible verdicts - not limited by the strategy, ignorance, or mistakes of the parties," so as to "ensure that the verdict is no harsher or more lenient than the evidence merits." ' [Citation.]" (People v. Elize (1999) 71 Cal.App.4th 605, 616 (Elize).) Consequently, the trial court was required to give a mistake of fact instruction that was supported by substantial evidence, even if, as the Attorney General suggests, defendant did not rely on the mistake of fact defense and such a defense was inconsistent with her theory of the case. (See Id. at pp. 611-612, 616.)
Concededly, any error in failing to give a requested defense instruction is "at most, an error of California law alone, and is thus subject only to state standards of reversibility. . . . [I]n line with recent authority, . . . such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability the error affected the outcome. (Cal. Const., art. VI, § 13; [People v.] Watson [(1956)] 46 Cal.2d 818, 836 [(Watson]).)" (People v. Breverman (1998) 19 Cal.4th 142, 165-166 [applying Watson standard to court's failure to give sua sponte instruction on uncharged lesser included offense]; see People v. Villanueva (2008) 169 Cal.App.4th 41, 52 [applying Watson standard to court's refusal to give requested self-defense instruction]; Eliza, supra, 71 Cal.App.4th at p. 616 [applying Watson standard to court's refusal to give requested self-defense instruction].) In this case, we conclude that the failure to give the mistake of fact instruction was not harmless. As conceded by the trial prosecutor, defendant's anticipated defense and "a crucial fact" to be resolved by the jury was whether defendant acted because she believed her daughter "was suicidal," she was "a threat to herself," and "she was about to take her own life." The instructions on the elements of the charged and lesser included offenses, including the required mental states, and the specific defenses of necessity and parental right to discipline a child, did not advise the jury that defendant's criminal intent could be negated if the jury found that she actually and reasonably (but mistakenly) believed her daughter intended to act on her suicidal threats. The requested mistake of fact instruction "would have drawn the jury's attention to facts that could raise a reasonable doubt about defendant's guilt" (People v. Russell (2006) 144 Cal.App.4th 1415, 1433), thereby ensuring " ' "that the verdict [was] no harsher or more lenient than the evidence merit[ed]" ' " (Elize, supra, 71 Cal.App.4th at p. 616). "Examining the entire record of this case leaves one with the distinct impression that it is reasonably possible that defendant would have obtained a more favorable outcome" (ibid.)had the trial court instructed the jury to consider the concept of mistake of fact as requested by defense counsel. Accordingly, we are compelled to reverse the judgment.
Using language in CALCRIM No. 3403, the jury was told: "The defendant is not guilty of any crime if she acted because of legal necessity. [¶] In order to establish this defense, the defendant must prove that; one, she acted in an emergency to prevent a significant bodily harm or evil to herself or someone else; two, she had no adequate legal alternative; three, the defendant's act did not create a greater danger than the one avoided; four, when the defendant acted, she actually believed that the act was necessary to prevent the threatened harm or evil; five, a reasonable person would also have believed that the act was necessary under the circumstances; and six, the defendant did not substantially contribute to the emergency. [¶] The defendant has the burden of proving this defense by a preponderance of evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of evidence, the defendant must prove it is more likely than not that each of the six listed items is true."
Using language in CALCRIM No. 3405, the jury was told: "A parent is not guilty of Counts 1, 2, 3 or any lesser included offense if she used justifiable physical force to discipline a child. [¶] Physical force is justifiable if a reasonable person would find that punishment was necessary under the circumstances, and that physical force was reasonable. [¶] The People must prove beyond a reasonable doubt that the force used was not justifiable. If the [P]eople have not met this burden, you must find the defendant not guilty of Counts 1, 2 or 3 or any lesser included offense."
In light of our determination, we do not need to address and express no opinion on defendant's other claims. We note that before trial the court denied, without prejudice, defendant's motion for disclosure of daughter's psychiatric records regarding a 2007 placement in a hospital for a 72-hour hold for evaluation and treatment pursuant to Welfare and Institutions Code section 5150. Contrary to defendant's contention, the record does not show that the motion was ever renewed during the trial. If a new trial is held defendant may consider renewing her motion regarding the discoverability of that evidence and the trial court may reconsider its ruling on the admissibility of that evidence.
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DISPOSITION
The judgment of conviction is reversed.
Jenkins, J.
We concur:
McGuiness, P. J.
Pollak, J.