Opinion
H044385
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. ROMAN ROSAS CAMACHO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142867A)
Following a jury trial, defendant Roman Rosas Camacho was found guilty of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) (count 1), kidnapping (§ 207, subd. (a)) (count 2), second-degree robbery (§ 211) (count 3), driving without a valid license (Veh. Code, § 12500, subd. (a)) (count 5), and three counts of violating a criminal protective order (§ 166, subd. (c)(1)) (counts 6-8). The jury found defendant not guilty of false imprisonment by violence (§§ 236, 237) (count 4) and the lesser included offense of false imprisonment (§ 236). The trial court sentenced defendant to a total term of imprisonment of six years.
All further statutory references are to the Penal Code unless otherwise provided.
On appeal, defendant challenges the sufficiency of the evidence of robbery and raises claims of instructional error and ineffective assistance of counsel.
I
Evidence
November 1, 2014
At the time of trial, defendant and his wife, the alleged victim of the charged offenses, had been married for 15 years, and they had two children. On November 1, 2014, the family was living in an apartment on South Alta Street in Gonzales. At that time, defendant was working, and she was staying at home with the children. Their son was then 11 or 12 years old, and their daughter was younger.
In November 2014, defendant's wife had a black cell phone. Defendant, defendant's wife, and their son each had a cell phone, all of them purchased on the same day. Defendant's wife's cell phone had a "pass code," and defendant knew the code. Defendant sometimes asked to look at her phone so he could see what was on it. Defendant sometimes asked his wife to tell him to whom she was speaking.
On the afternoon of November 1, 2014, while their children were elsewhere, defendant and his wife got into an argument in their apartment. At that point, defendant was sometimes using her cell phone because his cell phone was broken. Defendant told his wife that, while he was using her cell phone, he had received a telephone call from an unidentified man and learned that she was "going around with a man," in other words, she was being unfaithful to him. The call was from an unidentified number. Defendant was upset, and he wanted to know the identity of the man. His wife did not know about whom defendant was talking. They began arguing as to whether she was having an affair.
Defendant's wife left the apartment and went to her sister's home because she did not want to fight. His wife testified at trial that defendant asked for her cell phone and her debit card, which were in her purse. Contrary to what defendant told police following the incident, at trial his wife claimed that she threw her purse at him and left their apartment without her purse.
Defendant's wife went to her sister's home. She was at her sister's home for no more than five to 15 minutes before defendant arrived. Defendant and his wife continued arguing inside her sister's home. At trial, his wife claimed defendant returned her purse and cell phone to her while they were at her sister's home. Defendant's wife testified that she left her sister's home on foot with her purse and her cell phone. She began walking in the direction of a church.
Defendant followed his wife in his vehicle, a dark blue 2003 TrailBlazer; he caught up with her as she was walking by the church. She did not want to talk to him. Defendant told her to get in and said that he was taking her home. She refused, but he did not leave. Defendant got out of the vehicle and chased her around it. She was trying "to run away from him" because she was mad and scared. She was trying not to get caught because she did not want to go back.
According to his wife's trial testimony, defendant grabbed her hand and said they were going to go home to talk. Although she acknowledged that defendant grabbed her hand and pulled her into the vehicle, she claimed that she wanted to get in because he had said they were going to talk. At trial, she said that she agreed to get in the vehicle and that she got into the backseat.
Instead of driving home, defendant drove another way. He turned onto Gonzales River Road and continued driving.
Defendant's wife told him several times that she wanted to get out of the vehicle. He continued to talk about the cell phone call. She tried to make him stop the vehicle by grabbing him on the neck. When he finally stopped the vehicle, she got out. At that point, she saw two police cars. Defendant's wife spoke with a police officer. She was very upset and crying at the time.
At trial, defendant's wife recalled scratching defendant with her nails, she believed on the neck, while they were in the vehicle. According to her, she told the officer that defendant had not hit her. She recalled that when the officer asked her to explain her red marks, she told the officer that defendant and she had been struggling with each other. At trial, she indicated that, when she had spoken with the officer, she had red marks on her arm and neck.
At trial, defendant's wife claimed that she had taken her cell phone out of her purse while still at her sister's and later, while she was getting out of the vehicle, it had fallen in the vehicle. She acknowledged that the strap of her purse had been torn. But she claimed that happened when she pulled the purse away from defendant as he was returning it to her at her sister's apartment and explained that she pulled it because she was upset and wanted to leave.
At trial, defendant's wife denied that defendant had tried to force her to stay home, had hit her, had grabbed her around the neck in the vehicle, or had grabbed her by the hair or pulled her hair. She conceded that, if defendant had two cell phones on him when he was arrested, she had no explanation. She denied telling the police officer that defendant had chased her around the vehicle, had grabbed her by her hair, had dragged her into the vehicle, and had refused to let her out of the vehicle, or that she had suffered an injury to her lip.
A number of witnesses had seen defendant and his wife during this incident. At approximately 4:15 p.m. on November 1, 2014, Carlos F. was coming out of St. Theodore's church on South Belden Street in Gonzales. Carlos worked as a musician at the church, and he was on his way to his car to retrieve some music.
Carlos saw a woman walking and then "all [of] the sudden" start running. She looked back at a vehicle and appeared frightened. To avoid the vehicle, the woman crossed the street as the vehicle, a dark "Blazer," approached. The vehicle came fast and was driven "into the sidewalk." A man got out. He appeared to be "very angry" and looked "aggressive." The woman seemed "very scared." They were arguing and yelling. She was trying to run away from him. The man grabbed the woman by the neck with a hand, put her in the back of the vehicle, and shut the door. It appeared that she was frightened and "didn't want to do that."
Carlos grabbed his phone and called 911. Other people at the scene were yelling, "Let her go. Let her go." The man got into the driver's seat, quickly reversed, and then drove away. At trial, a 911 call was played for the jury.
At approximately 4:15 p.m. on November 1, 2014, Tamara M., a woman who lived on A Street across from St. Theodore's Church, heard yelling outside and went out to the front of her driveway to see what was happening. Tamara saw a Hispanic man chasing a Hispanic female around a dark SUV. The vehicle had jumped the curb. The man was trying to grab the female. Tamara saw the man grab something out of the female's hands, and throw it into the vehicle. The female appeared to be struggling or trying to get away from the man when he grabbed her. He seemed angry, and she seemed scared. She did not appear to be going into the vehicle willingly. Tamara was yelling, "Somebody help her." Tamara recalled that the man forcefully grabbed the female by her throat and her hair and forced her into the vehicle's back seat. The man shut the door, got into the driver's seat, reversed the vehicle "pretty fast" "all the way to First Street," and then drove off down First Street in the direction of Alta Street. Tamara told an older gentleman in a "dually" truck to follow.
At about 4:15 p.m. on November 1, 2014, Norman N., a physician, was driving south on Belden Street in his dually truck near St. Theodore's Church in the City of Gonzales. Dr. N. saw a man chasing a woman around a vehicle. He was trying to grab her, and it appeared that "she did not want to be caught."
Dr. N. stopped near the church, and he saw the man physically grab the woman and force her into the back seat of the vehicle. The woman did not appear to want to get into the vehicle. Within a minute or less, the vehicle began to move; it made a "brisk departure" and turned onto another street.
Dr. N. lost sight of the vehicle. He drove south on A Street toward Alta Street. After turning onto Alta Street, Dr. N. spotted what appeared to be the same vehicle ahead of him, turning right onto Gonzales River Road.
Dr. N. called 911. A 911 call was played for the jury. Dr. N.'s vehicle got stuck in the mud on the side of Gonzales River Road, but he could still see the vehicle. While talking with the 911 dispatcher, Dr. N. described the vehicle making a number of U-turns and driving back and forth along Gonzales River Road. Dr. N. saw both the man and the woman exit the vehicle. At the end of the 911 call, Dr. N. observed police cars in his rear-view mirror approaching the vehicle.
At approximately 4:12 p.m. on November 1, 2014, Brian Solis, a Gonzales police officer, responded to a report of a possible kidnapping that had taken place near the Catholic church on "the 100 block of South Belden Street" in the City of Gonzales in Monterey County. Witnesses had identified the suspect vehicle as a black Chevrolet SUV. Dispatch had informed him that the vehicle was presently parked on Gonzales River Road. As he was driving in a marked patrol vehicle, Officer Solis located a vehicle matching the description parked along Gonzales River Road, pointed toward Gonzales. He saw an adult female get out of the passenger side of the vehicle and walk away at "a fast pace." A few seconds later, he saw defendant exit the vehicle and try "to catch up to her." When defendant saw the officer, defendant got back in the vehicle's driver's seat.
Defendant began driving toward the City of Gonzales. Meanwhile, Officer Solis, a fluent Spanish speaker, spoke to defendant's wife in Spanish at the side of the road. "She was hysterical and crying uncontrollably." She told the officer that defendant had grabbed her by her hair and forced her into his vehicle. She complained of pain at the back of her head. Officer Solis observed that the back of her upper, left arm was red and that the upper left corner of her lip was red and swollen. She indicated that defendant had caused those marks and that they were defensive injuries.
Defendant's wife told Officer Solis that the incident had begun at their apartment in Gonzales. She told the officer that "they began to argue because she no longer wanted to be with him" and that she had "decided to leave to prevent any further incidents." The officer learned from her that defendant had followed her in his vehicle to the Catholic church, where defendant got out and told her to get in. She did not want to get in, and defendant chased her around the vehicle until he caught up to her, "grabbed her by the back of her hair," and forced her into the vehicle. She did not tell the officer that she had changed her mind and had willingly gotten into the vehicle. Defendant's wife reported to the officer that she told defendant "to let her out" of the vehicle "several times." She reported that, when defendant pulled over on the side of Gonzales River Road, she got out of the vehicle.
Officer Solis photographed defendant's wife's purse because a strap was "torn and busted." After taking photographs and documenting what she had told him, the officer gave her a ride to her sister's apartment.
At approximately 4:12 p.m. on November 1, 2014, Santiago Melgoza, a police corporal employed by the City of Gonzales, responded to a report of a possible kidnapping on South Belden at First Street in the city. While on route to that location, Corporal Melgoza received updated information that the suspect vehicle, a black Chevrolet SUV, was traveling westbound on Gonzales River Road. He altered course and attempted to intercept the vehicle.
Corporal Melgoza spotted a black Chevrolet TrailBlazer driving away from Officer Solis and traveling eastbound on Gonzales River Road toward Gonzales. The corporal followed the vehicle; it stopped on the right-hand shoulder. The driver, identified in court as defendant, exited the vehicle. The corporal, a fluent Spanish speaker and certified translator, directed defendant to get back into his vehicle. After defendant had returned to the driver's seat, Corporal Melgoza questioned him.
Defendant told Corporal Melgoza that he had not recognized a phone number on his cell phone statement, he had called the number, a male had answered, and defendant had questioned the man about the man's relationship with his wife. After the male did not say anything to defendant, defendant confronted his wife at their apartment on South Alta Street.
Defendant told Corporal Melgoza that his wife had denied speaking with any male on the cell phone. Defendant had demanded that his wife give her debit card and cell phone to him. He reported that his wife had given her debit card to him but not the cell phone. Defendant told the corporal that he had grabbed his wife by her hair and had forcibly taken the cell phone away from her. He claimed that the cell phone was his. He said that his wife had taken off on foot and that he had driven around looking for her in his Chevrolet TrailBlazer.
Over the radio, Corporal Melgoza received information from Officer Solis that defendant had forced his wife into the vehicle and hit her. When the corporal asked why he had forced his wife into his vehicle, defendant explained that he wanted to talk to her and that he did not want her to walk away. Corporal Melgoza placed defendant under arrest. Two cell phones were found on defendant, and a cell phone was found in defendant's vehicle. When the corporal ran a records check on defendant, he discovered that defendant had not been issued a California driver's license.
At the scene, Corporal Melgoza attempted to speak to defendant's wife, who had already spoken to Officer Solis. She was crying hysterically and did not answer any of the corporal's questions about what had happened.
Corporal Melgoza transported defendant to the police department, where he was booked. The corporal advised defendant of his Miranda rights in Spanish and interviewed him again.
During that interview, defendant indicated that, at approximately 9:00 a.m., he had retrieved his cell phone statement from his mailbox at the Gonzales post office. In the statement, defendant had seen a number that he did not recognize that was associated with his wife's cell phone. Defendant had called that unfamiliar number, and a male had answered. Defendant had questioned that male about talking to his wife, but the male had not responded. That afternoon, defendant had confronted his wife in their apartment on South Alta Street. His wife had denied speaking with any male over the phone. His wife had wanted to leave the apartment. Defendant had demanded her debit card and cell phone. According to defendant, his wife had given him the debit card but not the cell phone. Defendant disclosed that he had grabbed his wife by the hair and had taken the cell phone away from her. Defendant told Corporal Melgoza that he had the right to take the cell phone away from his wife because he paid the bill and it was his phone.
Defendant told Corporal Melgoza that his wife had left their apartment and had gone to her sister's apartment down the street on South Alta Street. Defendant had followed her there. According to defendant, while he was in the bathroom, his wife had left her sister's apartment with their son's cell phone. Defendant reported that he had left the apartment and had driven around looking for his wife. He had found her on the 100 block of South Belden Street near First Street. Defendant had told his wife to get in the vehicle, but she had refused. Defendant reported that his wife had not wanted to go with him. Defendant had grabbed her and "made her get in" the vehicle by pushing her inside.
Defendant explained to Corporal Melgoza that he had driven with his wife onto Gonzales River Road, where ultimately, he had dropped her off. The corporal observed scratches on defendant, and defendant disclosed that his wife had scratched him. She had scratched him on the head, nose, wrist, arms, and chest. Defendant admitted that he had been hitting his wife while driving. Defendant told the corporal that "his wife had taken his son's cell phone" and he had taken it back from his wife.
Corporal Melgoza interviewed a number of witness on the day of the incident. At approximately 6:30 p.m., Corporal Melgoza went to the location where the alleged kidnapping had occurred in front of the church. He photographed the tire marks left on the curb, dirt, and grass.
On January 9, 2015, Peter Austen, an investigator with the Monterey County District Attorney's Office, went to the neighborhood of St. Theodore's Church to conduct a follow-up investigation in the case. He spoke with a woman with the assistance of her sons, who translated their conversation. The woman recalled that when she was walking across the street to her residence, she saw a female running up the street toward the church and a vehicle following her. The female was crossing the street onto church property. A man forced her into the vehicle.
Deborah Jacroux, a licensed marriage and family therapist, testified as an expert in domestic violence and spoke about domestic violence "generically." She testified about the cycle of violence that may occur to domestic violence victims. A "tension-building" phase involves abuse, verbal and/or physical, that culminates in an outburst. After the outburst, the abuser may apologize for or rationalize the behavior and a honeymoon phase occurs during which the abuser and the victim are "somewhat getting along okay." According to Jacroux, the cycle of violence then repeats.
Jacroux indicated that abusers may minimize their abuse and wear down victims' self-esteem by making derogatory comments. Abusers may control victims by isolating them and taking away financial resources and family support. The abusers may behave jealously, check the victims' cell phones and mail, and limit the victims' ability to socialize with friends. The most dangerous time for domestic violence victims is when they try to leave, and on occasion a victim dies during that time.
Jacroux explained that victims of cyclical violence may lose their sense of self and identity, they may believe they are at fault and feel guilty, and they may even minimize, deny, or normalize the violence. When a new cycle of violence begins, the victims commonly try to placate their abusers.
Victims of abuse may stay with their abusers for a variety of reasons, including, for example, a lack of financial means to support themselves due to insufficient education or work experience, fears of retribution or deportation, concerns about their children's care or losing them, feeling they are at fault or to blame, guilt about harming their abusers, or emotional bonding to the abusers even though the relationships are unhealthy. When there are criminal prosecutions or investigations of abusers, oftentimes victims recant their reports of abuse.
When a traumatic incident of abuse occurs, the victim may be in shock and have difficulty recalling when it happened. Over time, the victims' recollections may become much clearer. About 85 percent of Jacroux's patients who were abuse victims displayed a "PTSD-type of demeanor" when speaking about their abuse. The traumatization might manifest as nervousness, anger, crying, shaking, speaking in a rushed manner, or hypervigilance.
Jacroux did not know either party in this case, she had not spoken to them, and she knew nothing about their relationship or backgrounds. She had not reviewed the police reports in this case. She testified as to the fees charged for her services as an expert. She also testified that she would be earning more money if she were counseling a patient instead of testifying at court.
Subsequent Violations of Criminal Protective Orders
Following the November 1, 2014 incident, two orders, entitled "Criminal Protective Orders—Domestic Violence," were issued under section 136.2. They prohibited defendant from, among other things, coming within 100 yards of his wife. The first order was issued November 18, 2014 and expired on November 18, 2015. The second order was issued on October 27, 2015 and expired on October 27, 2016.
A police officer informed defendant's wife that the court had issued a protective order. Three or four months after defendant was released from jail, defendant moved back into his wife's apartment despite the protective order.
At about 12:06 a.m. on March 22, 2015, Cesar Castillo, a Gonzales police officer, responded to a report made by neighbors regarding a disturbance at the apartment. Defendant's wife answered the door, and Officer Castillo, a fluent Spanish speaker and a certified translator, spoke to her in Spanish. Defendant's wife told the officer that her two children and she were the only ones in the house. After she allowed the officer inside, Officer Castillo located defendant under the bed in their daughter's bedroom. At that time, defendant was within 100 yards of his wife.
Officer Castillo detained defendant. Defendant's wife was not cooperative. She had a small red mark on her knee. She said she had slipped and fallen. Through Monterey County dispatch, Officer Castillo learned that there was a protective order against defendant. The officer arrested defendant. At trial, defendant's wife denied that she told the officer that defendant was not there and that only her children and she were inside.
At approximately 9:59 a.m. on March 6, 2016, Officer Castillo was again dispatched to the apartment on Alta Street after the neighbors reported "some sort of disturbance." The officer saw defendant's wife outside her apartment arguing with someone inside the apartment and he heard a male voice. The officer asked her to move away and, as he approached the door, he observed defendant in the apartment's living room. Defendant was within 100 yards of his wife. Officer Castillo detained defendant at Tazer point, and verified that there was a protective order in effect. Defendant was arrested for violating the protective order. Defendant's wife told Officer Castillo that defendant had keys to the apartment and they were arguing over how to split up their property.
Defendant moved out of the apartment. On September 19, 2016, defendant began arguing with his wife outside her apartment. Defendant called his wife "bad words," including "whore." She went inside her apartment, and defendant left. She called 911 and told the operator that there was a restraining order because her husband had hit her.
At approximately 8:49 p.m. on September 19, 2016, Jessica Mora, a Gonzales police officer, went to an apartment on South Alta Street in response to a call from a woman stating that her husband was violating a restraining order. She arrived within approximately five minutes, but defendant was no longer present. Officer Mora, a fluent Spanish speaker, spoke with defendant's wife.
Defendant's wife told Officer Mora that defendant had been calling her derogatory names, including the word "puta" and "per[r]a," a word that essentially meant "bitch." Defendant's wife showed a copy of the order to the officer. Defendant's wife reported that he had continued name-calling even after she went inside her home and closed the door.
Officer Mora made contact with defendant, who was sitting in his SUV in front of his apartment, which was only about a block down the street from his wife's apartment. Defendant's appearance matched the description that the officer had received from dispatch. The officer asked defendant to step out of his vehicle, pat searched him for weapons, and arrested him for violation of the protective order. Defendant indicated that he had taken his daughter home to his wife's apartment and dropped her off at the apartment's stairs. He later claimed to have dropped his daughter farther away from the apartment.
II
Discussion
A. Proof of the Corpus Delicti of Robbery and Sufficiency of the Evidence
1. Elements of Robbery
"Robbery involves a taking by means of force or fear." (People v. Gonzales (2017) 2 Cal.5th 858, 872.) Robbery is statutorily defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "[R]obbery includes all of the elements of theft, with the additional element of a taking by force or fear. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) If the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. [Citations.]" (People v. Davis (2005) 36 Cal.4th 510, 562.)
"[T]heft by larceny requires the intent to permanently deprive the owner of possession of the property. (People v. Brown (1894) 105 Cal. 66.)" (People v. Avery (2002) 27 Cal.4th 49, 54 (Avery).) This specific intent requirement is "satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (Id. at p. 58.)
In Avery, the Supreme Court quoted a respected treatise as to the defense of intent to return property: " 'An intent to return the property taken, in order to qualify as a defense to larceny, must be an intent to return within a reasonable time. [Fn. omitted.] In determining what is a reasonable time, much depends upon the nature of the property and its expected useful life, for to deprive the owner of the property for so long a time that he has lost a "major portion of the economic value" [fn. omitted] is to deprive him for an unreasonable time. It is one thing to take another's fresh strawberries with intent to return them two weeks later, another thing to take his diamond ring with a like intention.' ([2 LaFave & Scott, Substantive Criminal Law (1986) Crimes Relating to Property,] § 8.5(b), p. 361.)" (Avery, supra, 27 Cal.4th at p. 56.) Defendant did not claim that he took his wife's cell phone but intended to return it within a reasonable time.
2. The Corpus Delicti Rule
Relying upon the corpus delicti rule, defendant argues that there was insufficient proof of robbery because there was no evidence that he robbed his wife of her cell phone aside from his statements to police that he had grabbed his wife by her hair and had forcibly taken her cell phone away from her.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) "The principal purpose of the corpus delicti rule is to ensure that a defendant is not convicted of a crime that never occurred. [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 721 (Ledesma).)
"In June 1982 the voters, by adopting Proposition 8, added section 28, subdivision (d) [now subd. (f)(2)], the 'Right to Truth-in-Evidence' provision, to article I of the California Constitution." (Alvarez, supra, 27 Cal.4th at p. 1165.) The Supreme Court concluded that the "Right to Truth-in-Evidence" provision abrogated the corpus delicti rule insofar as it limited the admissibility of a defendant's extrajudicial statements but that the provision "did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed." (Ibid.) Thus, "[t]he corpus delicti rule requires some evidence that a crime occurred, independent of the defendant's own statements. (People v. Alvarez (2002) 27 Cal.4th 1161,1181.)" (Ledesma, supra, 39 Cal.4th at p. 721.)
Prior to passage of the Truth-in-Evidence provision, the California Supreme Court had recognized that the corpus delicti rule was a rule "governing the admissibility of evidence [citations]" (Alvarez, supra, 27 Cal.4th at p. 1170) and a "defendant's extrajudicial statements ha[d] been deemed inadmissible [at trial] over a corpus delicti objection absent some independent evidence of the crime to which the statements relate[d] [citations]." (Ibid.) We are not persuaded by the People's argument that defendant forfeited his corpus delicti contention by failing to object to the admission of evidence at trial on corpus delicti grounds since such an objection would have been meritless. (See People v. Davis (2008) 168 Cal.App.4th 617, 634; Alvarez, supra, at p. 1165.)
The California Supreme Court has "never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary." (People v. Jones (1998) 17 Cal.4th 279, 303 (Jones).) "The People need make only a prima facie showing ' "permitting the reasonable inference that a crime was committed." ' [Citation.] The inference need not be 'the only, or even the most compelling, one . . . [but need only be] a reasonable one . . . .' [Citation.]" (Id. at pp. 301-302.)
The "quantum of evidence" required to establish the corpus delicti of a crime independent of a defendant's extrajudicial statements is "not great." (Ledesma, supra, 39 Cal.4th at p. 722.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1171; see id. at p. 1181.)
"This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is 'to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.' [Citation.] . . . 'Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.' [Citation.]" (People v. Jennings (1991) 53 Cal.3d 334, 368 (Jennings).)
In Jennings, the "[d]efendant challenge[d] several of his convictions on the dual grounds that admission of his extrajudicial statements violated the corpus delicti rule and that there was insufficient evidence to convict." (Jennings, supra, 53 Cal.3d at p. 363.) Those challenges included the robbery of Olga Cannon. "The evidence show[ed] that the nude body of Olga Cannon was found in an irrigation canal. Although the cause of death could not be determined because of the advanced state of decomposition, the coroner determined that she had a fractured jaw. She was last seen the night of August 14, 1984, with defendant. A few days later, [the woman with whom defendant was living] found Cannon's purse in defendant's car. When [she] asked whether she could have the purse, defendant behaved in a suspicious manner." (Id. at p. 365; see id. at p. 351.)
The Supreme Court determined in Jennings that, from the evidence of the defendant's suspicious behavior, "the jury could have reasonably concluded defendant had knowledge of crimes against Cannon." (Jennings, supra, 53 Cal.3d at p. 365.) The court concluded that the evidence satisfied the corpus delicti as to the robbery of Cannon. (Ibid.) It reasoned: "The missing purse provided evidence of the loss or harm. The condition of the body, coupled with defendant's suspicious behavior when [the woman with whom he was living] discovered the purse, establishes a prima facie showing of the existence of a criminal agency. We may further infer from this evidence that the purse was taken from the victim by force or fear with the intent to permanently deprive her of it." (Ibid.; id. at p. 351.)
In Ledesma, the defendant contended, among other things, that a robbery conviction had to be reversed because the prosecution had failed to establish the corpus delicti of robbery without his extrajudicial statements. (Ledesma, supra, 39 Cal.4th at p. 722.) At trial, a gas station manager testified that the alleged robbery victim, a man who had worked at the gas station but was later murdered, had called the manager "at home and reported that he had just been robbed" (id. at p. 656) and he "had obtained the license number of the motorcycle used by the robbers." (Ibid.) The California Supreme Court concluded that testimony, which it found admissible, was "sufficient to establish the corpus delicti of robbery." (Id. at p. 722.)
In People v. Valencia (2008) 43 Cal.4th 268, the defendant argued that, without the improperly-admitted, hearsay statement of the victim, there was no evidence to establish the corpus delicti of an unadjudicated robbery offered in aggravation at the penalty phase of a capital trial. (Id. at p. 295.) The California Supreme Court concluded that evidence that an "apartment door had been broken open" and "one of the persons inside was bleeding from a recent head injury" was sufficient to permit a reasonable inference of robbery for purposes of the corpus delicti rule. (Id. at p. 297.)
In this case, the corpus delicti of robbery was adequately established by the evidence, independent of defendant's statements, that defendant and his wife were arguing about whether she was having an affair with an unknown male who had supposedly called her cell phone, that defendant demanded his wife's cell phone, that the strap of her purse was torn, that defendant chased his wife, grabbed her, and forced her into his vehicle near St. Theodore's Church, that defendant's wife told an officer that he had grabbed her by the hair and complained of pain at the back of her head, that multiple cell phones were found in defendant's possession when he was arrested on November 1, 2014, and that defendant's wife conceded at trial that, if defendant had two phones on him at the time of his arrest, she was unable to explain it.
The evidence adduced at trial, exclusive of defendant's out-of-court statements, was sufficient to establish the corpus delicti of the crime of robbery. The robbery conviction stands against defendant's claim that the trial record lacks independent evidence of the corpus delicti.
The trial court gave the jury a corpus delicti instruction (See CALCRIM No. 359).
3. Sufficiency of the Evidence
Defendant also contends that the evidence was insufficient to prove robbery and that, therefore, his conviction violates due process and that retrial is barred by the prohibitions against double jeopardy in the federal and state constitutions. An insufficiency of the evidence claim is distinct from a contention that independent proof requirement of the corpus delicti rule was not satisfied.
"[T]he corpus delicti rule is neither a rule of constitutional magnitude nor statutorily mandated. It is a common law rule of evidence the purpose of which is to 'ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.' (People v. Alvarez, supra, 27 Cal.4th at p. 1169.)" (People v. Jablonski (2006) 37 Cal.4th 774, 826-827.) But, as indicated, "the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great." (Alvarez, supra, at p. 1181.)
In contrast, "[a] person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the Due Process Clause of the Fourteenth Amendment. [Citations.]" (Manuel v. City of Joliet, Ill. (2017) 580 U.S. ___, ___ fn. 8 [137 S.Ct. 911, 920, fn. 8]; see Jackson v. Virginia (1979) 443 U.S. 307, 316 [In re Winship (1970) 397 U.S. 358 (Winship) "presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense"], 318, fn. omitted, ["After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . [is] whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."]; Winship, supra, at p. 364 ["the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"].) "[W]hen a reversal rests upon the ground that the prosecution has failed to produce [constitutionally] sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction." (Tibbs v. Florida (1982) 457 U.S. 31, 42.)
An insufficiency of the evidence claim is reviewed under the same standard under the due process clauses of the state and federal constitutions. (People v. Thompson (2010) 49 Cal.4th 79, 113 (Thompson).) "In resolving claims involving the sufficiency of evidence, a reviewing court must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in original; People v. Rowland (1992) 4 Cal.4th 238, 269; People v. Johnson (1980) 26 Cal.3d 557, 578.)" (People v. Marshall (1997) 15 Cal.4th 1, 34.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, supra, at p. 578.)
Apart from the corpus delicti claim, defendant makes only a general and perfunctory assertion that the evidence was insufficient to support a robbery conviction. We deem the contention forfeited. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 793.) B. Instruction on Community Property
1. Background
In this case, defense counsel requested a claim-of-right instruction as to the charge of robbery (CALCRIM No. 1863). The prosecutor requested a pinpoint robbery instruction regarding community property and the presumption that property acquired during marriage is community property.
The trial court indicated that it had looked at People v. Aguilera (2016) 244 Cal.App.4th 489 (Aguilera) and determined that the requested instruction correctly stated the law. The court indicated that it did not know whether the pinpoint instruction was needed under Aguilera. Defense counsel said that he did not know either, but he agreed that it was a correct statement of the law. The prosecutor wanted the pinpoint instruction because, even if defense counsel did not argue that one spouse could not rob the other spouse of community property, jurors might be confused because the robbery instruction requires proof that the defendant took property that was not his own. The trial court agreed there might "be a question in the jury's mind" based on the evidence, and it did not see "any harm in giving" the requested pinpoint instruction. After defense counsel indicated that he had no further objection that he wished to put on the record, the trial court said that it would give the prosecution's pinpoint instruction.
In addition to robbery instructions, the trial court gave the following pinpoint instruction: "Under California law, there is a rebuttable presumption that property acquired during a marriage is community property in which each spouse has a present and equal interest and an equal right to management and control. [¶] A spouse may be convicted of robbery of community property if he or she takes a community asset with the intent to temporarily deprive the other spouse of a major portion of the value and enjoyment of that asset." The trial court also gave the standard instruction on the claim-of-right defense. (See CALCRIM No. 1863.)
2. Forfeiture Rule
Defendant maintains that, despite the lack of objection below, he may challenge the pinpoint instruction because the instruction affected his substantial rights. Defendant alternatively contends that, if his challenge to the instruction was forfeited by defense counsel's failure to object below, he received ineffective assistance of counsel. The People assert that, by failing to object below, defendant forfeited any challenge to the pinpoint instruction.
On appeal, the People have not invoked invited error doctrine based on defense counsel's acquiescence and failure to object to the pinpoint instruction. (See People v. Souza (2012) 54 Cal.4th 90, 114 ["Invited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction. [Citations.]"]; People v. Moon (2005) 37 Cal.4th 1, 29, fn. 4 [finding no invited error where "defense counsel merely acquiesced to the instruction, and the record does not show whether counsel's decision was a tactical one"]; see also People v. Cooper (1991) 53 Cal.3d 771, 831 ["Error is invited if counsel made a conscious tactical choice"].)
As the People assert, " '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citations.]" (People v. Landry (2016) 2 Cal.5th 52, 99-100 (Landry).) But "[a] reviewing court may review an instruction even absent an objection 'if the substantial rights of the defendant were affected thereby.' (§ 1259.)" (People v. Hardy (2018) 5 Cal.5th 56, 91.)
Here, defendant is not complaining the pinpoint instruction was correct in law but was too general or incomplete and needed clarification. Rather, he is arguing that the instruction was not supported by Aguilera, and that giving it constituted error because it was argumentative and lessened the People's burden of proof. If defendant's contentions are correct, the alleged instructional error affected his substantial rights and no objection was required to challenge the instruction on appeal. (§ 1259; see People v. Benavides (2005) 35 Cal.4th 69, 99-100.) We resolve the merits of defendant's claim of instructional error, which makes it unnecessary to reach defendant's alternative claim of ineffective assistance of counsel.
3. Analysis
Defendant argues that the trial court prejudicially erred by giving the prosecution's pinpoint instruction on community property. He first points out that Aguilera determined that a jury instruction on community property should not be given and that it did not decide the propriety of a request for a pinpoint instruction on community property.
In Aguilera, the defendant was convicted of second degree robbery based on his taking of his wife's cell phone. (Aguilera, supra, 244 Cal.App.4th at p. 492.) Similar to this case, the evidence showed that the defendant bought his and his wife's cell phones during their marriage, and he paid the phone bill. (Id. at p. 495.) Defendant Aguilera contended on appeal that "when a robbery involves the taking of community property, the charged spouse cannot be guilty if the taking was committed with the intent only to temporarily, as opposed to permanently, deprive the other spouse of the property, because in such circumstances the charged spouse has not taken property not his or her own" (id. at p. 493) and that, since the evidence did not show that he intended to permanently deprive his wife of the phone taken, the evidence was insufficient to support his robbery conviction. (Id. at p. 496.) The defendant also argued that "the trial court erred by failing to instruct on principles of separate and community property as relevant to the requirement of robbery that a defendant take property not his own." (Ibid.)
The appellate court in Aguilera observed that "under California law there is a rebuttable presumption that property acquired during a marriage is community property in which each spouse has a present and equal interest, and an equal right to management and control (see Fam. Code, §§ 760, 751, 1100, subds. (a), (c))." (Aguilera, supra, 244 Cal.App.4th at p. 496.) Although "testimony raised the question whether the [cell phone at issue] was community property" (id. at p. 497), "the question whether the phone was community property was not raised below" (ibid.) and "the jury was not instructed on the presumption of community property or on rebuttal of the presumption." (Ibid.)
The appellate court in Aguilera understood People v. Llamas (1997) 51 Cal.App.4th 1729 as holding that "a spouse may be convicted of a theft of community property, which requires an intent to permanently deprive the other spouse of the property, because such an intent exceeds the taking spouse's rights to the property, and thus constitutes a taking of property not owned by the taking spouse." (Aguilera, supra, 244 Cal.App.4th at p. 497.) The Aguilera court determined that "a spouse can be convicted of robbery for a temporary taking of community property, so long as the mens rea requirement is proven." (Id. at p. 501.) It recognized that the California Supreme Court had held in Avery that " 'the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of [the property's] value or enjoyment' (Avery, supra, 27 Cal.4th] at p. 58) is ' "equivalent to the intent to permanently deprive an owner of property" ' (id. at p. 57)." (Aguilera, supra, at p. 501.) The appellate court concluded that "a spouse can be convicted of robbery for the forcible taking of community property from the other spouse on a temporary taking theory" and that such conclusion "largely dispose[d] of [the] defendant's contention that the evidence was insufficient to support his robbery conviction." (Ibid.)
The appellate court also believed that instructions on separate and community property principles were unnecessary and inappropriate: "[T]he question whether a spouse has exceeded his or her rights to a community asset, and thus taken property not his or her own, depends on the intent with which that spouse does the taking. Because the defendant spouse's intent is determinative, informing the jury of principles of separate and community property is superfluous. If the prosecution proves the mens rea element of robbery, it also proves that the defendant spouse took property not his or her own." (Aguilera, supra, 244 Cal.App.4th at p. 502.) The court concluded that, regardless, the court had no duty to instruct sua sponte on separate and community property principles because such instruction is a pinpoint instruction, which a party must request. (Ibid., fn. 6.)
In this case, unlike Aguilera, the prosecutor did request a pinpoint instruction on community property. Also, unlike Aguilera, the defendant requested an instruction on a claim-of-right defense. The implicit purpose of the requested pinpoint instruction on community property was to disabuse the jury from any misconception that, as a matter of law, a spouse cannot be guilty of stealing community property from the other spouse who is in possession of it.
Under the statutory definition of robbery, the crime requires proof of a "felonious taking of personal property in the possession of another . . . ." (§ 211, italics added.) The claim-of-right defense was incorporated into the statutory definition of robbery because "one cannot feloniously intend to steal one's own property." (People v. Tufunga (1999) 21 Cal.4th 935, 953, fn. 5 (Tufunga).) "The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (Id. at p. 938.) "Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. [Citation.]" (People v. Butler (1967) 65 Cal.2d 569, 573, fn. omitted (Butler), overruled on another ground by Tufunga, supra, at p. 956 [overruling Butler to the extent that it "extended the claim-of-right defense to robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated—as opposed to forcible takings intended to recover specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title"].)
"Robbery is a crime of violence committed against a person. (People v. Ramos (1982) 30 Cal.3d 553, 589 (Ramos).)" (People v. Scott (2009) 45 Cal.4th 743, 749.) A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property. 'It has been settled law for nearly a century that an essential element of the crime of robbery is that property be taken from the possession of the victim.' (People v. Nguyen (2000) 24 Cal.4th 756, 762 (Nguyen).)" (Ibid.) "A person who owns property or who exercises direct physical control over it has possession of it . . . ." (Id. at p. 749, fn. omitted.)
While instructions on community property principles may not be necessary on a charge of interspousal robbery since the jury will be instructed on the elements of robbery, including intent, a pinpoint instruction on community property principles may nevertheless be warranted under certain circumstances, such as the circumstances of this case. Here, there was evidence that defendant worked, his wife was a stay-at-home mother, and defendant told a police officer that he had the right to take his wife's cell phone from her because he paid the bill and it was his phone. We disagree with Aguilera, to the extent that it can be read as holding that a pinpoint robbery instruction on community property principles is never justified.
Defendant does not claim that the pinpoint instruction given to the jury misstated the law, but he points out courts have warned that correct statements of law found in judicial opinions do not always provide a sound basis for jury instruction. As indicated, defendant attacks the pinpoint instruction on community property on the grounds that it was argumentative and impermissibly lessened the burden of proof.
The Supreme Court has long recognized that "it is dangerous to frame an instruction upon isolated extracts from the opinions of the court. [Citations.]" (Francis v. City & County of San Francisco (1955) 44 Cal.2d 335, 341.) "The discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind." (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13, superseded by statute on another point as indicated in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4.)
" 'An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.' [Citations.]" (People v. Wright (1988) 45 Cal.3d 1126, 1135.) "A jury instruction is improperly argumentative if 'it would invite the jury to draw inferences favorable to the defendant [(or the prosecution)] from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.' [Citations.] 'In a proper instruction, "[what] is pinpointed is not specific evidence as such, but the theory of the defendant's [(or the prosecution's)] case." ' (People v. Wright, supra, 45 Cal.3d at p. 1137." (People v. Santana (2013) 56 Cal.4th 999, 1012.) A trial court must refuse to give "an argumentative instruction, that is, an instruction 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 437.) The challenged pinpoint instruction concerned community property or assets, and it did not specifically mention cell phones. Thus, the instruction did not pinpoint specific evidence or invite the jury to draw inferences favorable to the prosecution from such evidence.
Defendant further suggests that the court erred in giving the challenged pinpoint instruction because "it lowered the prosecution's burden of proving [him] guilty beyond a reasonable doubt." He directs us to his statements to police admitting that he took his wife's cell phone, and he argues that the instruction undermined and nullified a claim-of-right defense "by telling the jury [that] someone who takes community property with the intent to temporarily deprive a spouse of the enjoyment of that property can be convicted of robbery."
In considering a claim of instructional error, "[t]he relevant inquiry . . . is whether, 'in the context of the instructions as a whole and the trial record, there is a reasonable likelihood that the jury was misled to defendant's prejudice.' (People v. Pollock (2004) 32 Cal.4th 1153, 1189.)" (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) "Also, ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" ' (People v. Castaneda (2011) 51 Cal.4th 1292, 1321.)" (Ibid.)
In this case, the trial court fully instructed the jury regarding the presumption of innocence, the People's burden to prove defendant guilty beyond a reasonable doubt, and the definition of proof beyond a reasonable doubt. It also told the jury that if two or more reasonable conclusions can be drawn from circumstantial evidence "and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state, and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence."
The trial court also fully instructed the jury as to robbery, including the requirement of proving the requisite specific intent. The jury was told that to prove robbery, the People were required to prove, inter alia, that "when the defendant used force or fear to take the property, he intended to deprive the owner of [the property] permanently, or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."
The jury was also instructed on a claim-of-right defense: "If the defendant obtained property under a claim of right, he did not have the intent required for the crime of robbery. The defendant obtained property under a claim of right if he believed in good faith that he had a right to this specific property . . . and he openly took it." The jurors were instructed: "The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith." In addition, as part of the claim-of-right instruction, the jurors were instructed to find defendant not guilty of robbery if they had a reasonable doubt about whether he had the intent required for robbery.
In the context of the instructions as a whole, it is not reasonably likely that the jurors misunderstood the challenged community property instruction to mean that defendant was guilty of robbery if he temporarily took an item of community property (namely his wife's cell phone), even if defendant had openly taken it with an honest, good faith belief in his right to do so. The challenged community property instruction considered in the context of the instructions as a whole did not negate or impermissibly impair a claim-of-right defense. Consequently, we reject defendant's contention that it impermissibly lowered the prosecution's burden of proof. C. Failure to Object to Testimony of the Prosecution's Domestic Violence Expert
We also note that, although the court gave the claim of right instruction as the defense requested, defense counsel argued in closing argument (which came after the court's instructions) that no robbery occurred because defendant's wife had thrown her purse containing her cell phone at defendant during a heated argument, not because defendant had taken the cell phone under a good faith claim of right.
Defendant contends that defense counsel provided ineffective assistance when he failed to object to the portions of the testimony of the prosecution's domestic violence expert that exceeded the limited purpose of her testimony.
1. Background
The prosecution moved in limine for "[a]n order permitting Deborah Jacroux to testify as an expert witness on the subject of intimate partner battering and its effects, pursuant to Evidence Code section 1107." The prosecution contended that "the jury may require the assistance of an expert to comprehend the dynamics of a relationship such as the one between the Defendant and Jane Doe [the alleged victim], including why Jane Doe remained in a relationship with Defendant following the initial act of domestic violence, declined a protective order when offered one, permitted him to return to the home in violation of the restraining order, and why she is uncooperative with prosecution." The prosecution further explained that its expert could "explain the social, economic, and psychological variables that can affect a woman's actions in an abusive relationship and the reasons why she may deny, minimize, recant or delay reporting of the abuse she has suffered."
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."
Defense counsel merely suggested tabling the motion until the alleged victim testified. The prosecutor responded that, even if the victim completely cooperated with the prosecution and she testified consistently with her initial statements, the jury might still have questions about her later conduct, such as allowing defendant back into her home in violation of the protective order and falsely telling police that defendant was not in the home when he was hiding under a bed.
The trial court noted that it was uncontested that defendant was in his wife's home after a protective order had been issued. It determined that the expert's testimony would be allowed, stating that it was "beyond the common experience of a lawperson" "to understand why someone who had been allegedly battered would allow the person back in the house." Thus, the court implicitly concluded that such expert testimony would "assist the trier of fact" (Evid. Code, § 801, subd. (a)) by providing information that the jurors needed to objectively evaluate the alleged victim's credibility.
Evidence Code section 801 "sets the standard for admissibility of [expert] testimony." (Cal. Law Revision Com. com., 29B pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 801, p. 25.) Even if a party satisfies the threshold requirements for the admission of expert testimony, that does not mean that anything the expert says will be relevant and admissible at trial. (See Evid. Code, §§ 210, 351.) --------
2. Defendant's Ineffective Assistance of Counsel Claim
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
3. Analysis
Defendant contends that the testimony of the prosecution's domestic violence expert went beyond the topic endorsed by the court and beyond describing the common reactions of abuse victims and disabusing the jury of misconceptions about domestic violence. He maintains that much of the expert's testimony was irrelevant or inadmissible. He points to the expert's testimony regarding the normalization of violence in abusive relationships, the percentage of her patients who were domestic violence victims and displayed PTSD-like demeanor, the various means by which abusers maintain control over victims (including by instilling guilt, minimizing the abuse, isolating and demeaning the victims, removing financial resources, and monitoring cell phones, mail, and relationships) and the dangerous, possibly deadly, situation created if a victim attempts to leave her abuser. He argues that there was no possible tactical reason for his counsel's failure to object to such evidence.
We disagree. First, in ruling that the prosecution's expert would be permitted to testify at trial, the trial court implicitly determined the foundational requirements for admission of such expert testimony had been met. (See Evid. Code, §§ 801, 1107, subd. (b).) Contrary to defendant's assertion, the court did not restrict the scope of the expert's testimony. The court merely expressed a reason for granting the prosecution's in limine motion for an order permitting Jacroux to testify as an expert witness on intimate partner battering and its effects pursuant to Evidence Code section 1107. Defendant has not demonstrated that the expert's testimony was elicited in violation of the trial court's in limine ruling.
Second, the expert's testimony was relevant and admissible insofar as it conveyed reasons that abuse victims act as they do, including why they may not break off an abusive relationship or may change their stories. Those insights were aimed at debunking misconceptions about domestic violence and assisting jurors in evaluating the credibility of defendant's wife, whose testimony was not entirely inconsistent with her original statements to police and other witnesses' observations of the November 2014 incident and who subsequently allowed defendant back into her home.
In People v. Brown (2004) 33 Cal.4th 892 (Brown), the Supreme Court held that expert testimony about the behavior of domestic violence victims is admissible under Evidence Code section 801 if such evidence will "assist the trier of fact in evaluating the credibility of the victim's trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence. [Citation.]" (Brown, supra, at pp. 895-896.) It stated: "Once there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible," including expert testimony on domestic violence. (Id. at p. 908.)
Defendant fails to persuade us that any portion of the prosecution expert's testimony was irrelevant and inadmissible. " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Courts are "vested with wide discretion in determining relevance under this standard. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 523; see People v. McAlpin (1991) 53 Cal.3d 1289, 1303 (McAlpin).) "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.)
The expert's testimony was relevant and admissible to explain why domestic violence victims may allow abusive relationships to continue or resume, permit abusers to return home despite a protective order or past abuse, recant previous reports of abuse, protect an abuser, or deny, rationalize, or down play an abuser's acts of domestic violence. Defense counsel does not render ineffective assistance by not interjecting futile, frivolous, or meritless objections. (See Thompson, supra, 49 Cal.4th at p. 122; People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Ochoa (1998) 19 Cal.4th 353, 463; Jones, supra, 17 Cal.4th at p. 309.)
Moreover, "[t]he decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel. [Citation.]" (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.) Counsel may decide to forego a valid evidentiary objection to avoid highlighting the testimony. (See People v. Catlin (2001) 26 Cal.4th 81, 165.)
"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Contrary to defendant's claim, the record does not affirmatively disclose that defense counsel had no rational tactical purpose for not objecting to the testimony of the prosecution's domestic violence expert. Defendant has not established that defense counsel acted deficiently by not objecting to her testimony, which is fatal to his ineffective assistance of counsel claim on appeal. (See Strickland, supra, 466 U.S. at p. 700.) D. CALCRIM No. 850
1. Background
The trial court instructed the jury pursuant to CALCRIM No. 850: "You have heard the testimony from Deborah Jacroux regarding the effect of domestic violence. Deborah Jacroux's testimony about domestic violence is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not Jane Doe's conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony."
2. Analysis
Defendant complains that "CALCRIM No. 850 advises the jury to use expert testimony about domestic violence in evaluating the credibility of the alleged victim's testimony, which is the same as telling the jury to use the evidence to determine whether the claims of abuse were true." Defendant maintains that evidence of battered women's syndrome, which is now characterized by statute as " 'intimate partner battering and its effects' " (§ 1107, subd. (f)), is "meant to disabuse jurors of erroneous myths about how domestic abuse victims should react" but that it is not meant to be used "to determine [that] the alleged victim is telling the truth."
We disagree with defendant's premise that permitting jurors to consider the expert's testimony to assess an alleged victim's credibility was "the same" as allowing jurors to use it as substantive evidence of abuse. An expert's testimony on domestic violence is relevant to the jury's assessment of an alleged victim's credibility because it serves to disabuse jurors of misconceptions about such abusive relationships and to possibly explain the ostensibly self-impeaching behavior of an alleged victim. Such testimony suggests that jurors should not dismiss out of hand evidence of domestic violence or abuse because an abuse victim later repudiates reports of abuse, remains in or resumes a relationship with her alleged abuser, or denies, rationalizes, or minimizes acts of violence or intimidation allegedly perpetrated by him.
Analogies may be drawn between the common reactions of rape victims ("rape trauma syndrome"), the common behavior of child victims of sexual abuse ("child sexual abuse accommodation syndrome" [CSAAS]), common parental responses to a child's reported molestation, and common characteristics of domestic violence relationships (previously called "battered woman syndrome" or "battered women's syndrome"). (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; Brown, supra, 33 Cal.4th at p. 905; McAlpin, supra, 53 Cal.3d at p. 1300.) In those contexts, the expert's testimony may be relevant and admissible to the jury's evaluation of a witness's credibility. (See e.g. Brown, supra, at p. 908 [In a domestic violence case, "[o]nce there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible," including expert testimony on domestic violence.]; People v. Humphrey (1996) 13 Cal.4th 1073, 1087 (Humphrey) [Evidence of battered woman's syndrome was relevant to female defendant's credibility because "[i]t 'would have assisted the jury in objectively analyzing [defendant's] claim of self-defense by dispelling many of the commonly held misconceptions about battered women.' [Citation.]"]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745, fn. omitted, [Although CSAAS testimony is inadmissible to prove that a molestation occurred, it is admissible "if the victim's credibility is placed in issue due to the paradoxical behavior, [such as] a delay in reporting a molestation. [Citations.]"]; McAlpin, supra, at p. 1302 [expert testimony that it was "not at all unusual for a parent to refrain from reporting a known child molestation" assisted trier of fact "by giving the jurors information they needed to objectively evaluate [mother's] credibility."]; People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker) [where an allegedly abused child delays reporting abuse or recants in part or whole, an expert can testify that such behavior is not an uncommon response of abused children]; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 (Bledsoe) ["expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths"].) But such expert testimony "cannot be admitted to prove the occurrence of the charged crimes. (See § 1107; People v. Bledsoe, supra, 36 Cal.3d at p. 251; People v. Bowker, supra, 203 Cal.App.3d at p. 394; Humphrey, supra, 13 Cal.4th at p. 1088, fn. 5.)" (People v. Brown, supra, at p. 908.)
As indicated, pursuant to CALCRIM No. 850, the trial court expressly informed the jury that the expert's "testimony about domestic violence is not evidence that the defendant committed any of the crimes charged against him," which meant that the jury could not consider the testimony as substantive evidence of any charged crime. Defendant now asserts that the challenged instruction invites the jury to misuse the testimony to determine whether the victim's abuse claim is true. We see a clear distinction between the jury's consideration of such expert testimony in evaluating a victim's credibility and the jury's consideration of such expert testimony as substantive proof that a particular claim of abuse is true. If defense counsel thought the challenged instruction required further explication to prevent the jury from misusing the expert's testimony as substantive evidence of abuse, defendant was required to request a clarifying or amplifying instruction. (See Landry, supra, 2 Cal.5th at p. 121.)
Citing Bowker, defendant further argues that the challenged instruction impermissibly "lightened the prosecutor's burden of proof by permitting the jury to make a general credibility finding concerning the key prosecution witness, and thus a finding of guilt, on testimony that assumed the abuse had happened." Bowker recognized that CSAAS "assumes the child is a 'legitimate victim' of sexual abuse; its purpose is to explain why such victims exhibit certain types of behavior so as to assist psychology professionals in providing therapy and treatment. [Citation.]" (Bowker, supra, 203 Cal.App.3d at p. 392, fn. 8.) Bowker stated: "[T]he jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Id. at p. 394.)
Since the jury was expressly told that such expert testimony was "not evidence that the defendant committed any of the crimes charged against him," we will not presume that the jurors misused it as substantive evidence that defendant did in fact commit a charged offense—i.e., that a claim of abuse was true. "Jurors are routinely instructed to make . . . fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions. [Citation.]" (People v. Yeoman (2003) 31 Cal.4th 93, 139.) The challenged instruction did not lessen the prosecution's burden of proof.
The California Supreme Court has recognized: "When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness. [Citations.] And when the victim's trial testimony supports the defendant or minimizes the violence of his actions, the jurors may assume that if there really had been abusive behavior, the victim would not be testifying in the defendant's favor. [Citations.]" (Brown, supra, 33 Cal.4th at p. 906.) We reiterate that "[o]nce there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible," including expert testimony on domestic violence. (Id. at p. 908.)
We conclude that the challenged instruction was correct, including insofar as it permitted jurors to consider the testimony of the prosecution's domestic violence expert in evaluating the believability of defendant's wife's testimony. Of course, the trial court also instructed the jury on the myriad of other relevant factors that jurors may consider in assessing credibility.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.