Opinion
F059812 F059649 Super. Ct. No. F09800479 & F08800999
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. JOE HERNANDEZ LOPEZ, Defendant and Appellant.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Joe Hernandez Lopez appeals from his conviction for kidnapping his ex-girlfriend. (Pen. Code, § 207, subd. (a).) He contends expert testimony presented at trial exceeded the permitted scope of the testimony. He further contends his trial counsel provided ineffective assistance when he failed to object to the impermissible expert testimony. Finally, appellant contends the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of attempted kidnap. For the reasons discussed below, we affirm the judgment in all respects.
The record also references appellant as "Joe Lopez," "Jose Lopez," and "Joe Hernandez-Lopez."
Appellant filed a notice of appeal for Fresno County Superior Court case No. F09800479 (479 case), the kidnapping case, on March 3, 2010, which seems to have been filed by his trial counsel. He then filed a notice of appeal for Fresno County Superior Court case No. F08800999 (999 case) on March 23, 2010, which seems to have been filed by appellant. Since the order in case 999 he appeals from was a plea to a revocation of probation in an earlier case, caused by his conviction in the 479 case, he was required under Penal Code section 1237.5 to obtain a certificate of probable cause from the trial court before an appeal would be taken in this court. His request to the trial court for such certificate was denied. Under California Rules of Court, rule 8.304(b), the trial court clerk should have marked the notice of appeal for case 999 "inoperative." The record fails to indicate this was done. Appellant counsel filed a motion to consolidate the appeals for the 479 case and the 999 case before the initial briefing, asserting that the issues raised in both appeals were identical and concerned the identical relevant record. We granted appellant's motion to consolidate. Because we affirm the judgment in the 479 case, the revocation of probation judgment in the 999 case stands.
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2009, off duty Kingsburg Police Sergeant Kevin Pendley was driving to dinner in Kingsburg with his wife, Wendy, when they observed a car facing northbound in the southbound lane at an intersection. Ms. Pendley observed the victim, J.S., in the driver's seat, with appellant sitting close beside her. He had his left arm and hand around J.S.'s neck, in what appeared to be a "choke hold." Ms. Pendley also observed appellant's right hand on the steering wheel. J.S. "looked scared ... looked like she needed help."
Sgt. Pendley also saw the wayward vehicle, and commented the scene appeared to be a "hostage situation." He observed appellant sitting very close to the victim with his left arm around her neck, and that the victim was crying and appeared scared.
The Pendleys abandoned their dinner plans, called police dispatch, and began following the vehicle. In the course of several minutes, the vehicle executed several U-turns, drove between lanes, and stopped in at least two locations. The first location the vehicle stopped was near a Walgreens. Sgt. Pendley heard J.S. then say "something to the effect of, somebody please help me." The second location the vehicle stopped was a dirt lot, where the events eventually ended. Sgt. Pendley observed that the victim was crying and upset on multiple occasions while following the vehicle.
Kingsburg Police Sergeant Cruz Herrera arrived at the dirt lot while appellant and J.S. were still in the vehicle. He saw that J.S. appeared to be "scared and hysterical," and appellant was "sitting and leaning up against [J.S.]." He also heard J.S. yell, "help me, help me, please help me."
Sgts. Pendley and Herrera, with the assistance of another officer, ordered appellant and J.S. out of the car. J.S. exited first and ran from the car to Sgt. Pendley's personal vehicle. Before reaching the car, Ms. Pendley heard her say, "[o]h my God, he took me. I didn't know what to do. He just got in my car." Ms. Pendley further described J.S. at that point as "[h]ysterical, scared. Very scared. Crying. Upset." J.S. told Ms. Pendley that appellant "took her, got in her car. He took her, she didn't know what to do, she was scared, he threw her phone out . he had a knife, she was ... afraid."
Sgt. Pendley talked to J.S. while she was in his car, immediately after he assisted detaining appellant at the dirt lot. J.S. told him that appellant was her ex-boyfriend and she had a restraining order against him. She also told him that appellant had "kidnapped her in Selma, and was going to kill her." Once Sgt. Pendley learned the altercation began in Selma, he called Selma police to take over the investigation.
Sgt. Herrera also talked to J.S. at the dirt lot, and she told him she was in Selma when appellant "jumped in her vehicle and forced her to drive to Kingsburg." She told him appellant ran up to her car while she was at a stop sign in Selma, pulled down the partially-opened front passenger side window, unlocked the door, and climbed into the front passenger seat. She also described how "once she was in the car, that [appellant] pulled out a knife, held her [sic] against her side. They were driving to Kingsburg and they came to some stop, and he took her cellphone away and threw it out the window."
Selma Police Officer Dan Barcellos arrived at the dirt lot and after talking to the Kingsburg officers and collecting physical evidence from the vehicle, went to speak to J.S.. She was still very upset at that time, "crying, afraid." Officer Barcellos testified J.S. told him she was approaching an intersection when appellant ran directly into the path of her vehicle, causing her to stop. The passenger side front window had been cracked open and appellant had forced the window down, reached in and unlocked the door, sat in the front passenger seat and told her to drive. Then, before they left Selma, appellant picked up a knife from the floorboard, reached behind J.S. with his left hand, and held the knife to her throat. He had her drive throughout the city until they got out into the county. She further told Officer Barcellos appellant threw her cell phone out of the car, and put his foot on top of her foot on the accelerator. J.S. also described to Officer Barcellos appellant's alleged sexual assault on her.
The Victim's Trial Testimony and Behavior
Trial began in late November 2009, approximately two and one-half months after the incident. J.S. took the stand, but made it clear she did so reluctantly, testifying that she did not want to be there, that she was only taking the stand because her children asked her to, that she wanted to "move on" with her life, and that she never wanted to see appellant again. She also was reluctant to get into details of the ordeal because she remained traumatized by the experience, and was mentally unprepared to testify about what happened.
Initially, her testimony comprised a few details of her initial encounter with appellant before he got in her car, and then a series of "I don't remember" responses to the prosecutor's questions digging deeper into detail. She stated she was in Kingsburg getting gas, when appellant approached her. They mutually began a casual conversation, but then she said she was pressed for time to pick up her laundry at the Laundromat. Appellant accompanied her to the Laundromat, where they began arguing about their relationship. At one point he reached for her hand. She told him she didn't want him to touch her.
She was unable to remember, however, any further details, such as whether appellant forced his way into her vehicle, how long it had been since she last saw appellant, the sequence of events of that evening, what she told police officers that night, or anything about the knife allegedly used in the offense.
J.S. did, however, repeatedly refer to a written statement she provided Officer Barcellos a day or two after the incident, testifying, "I don't remember at what point, what happened first. Everything, I gave a written statement to look, and the court read it, it will state everything that happened. Officer Barcellos made contact with me and asked me to go to the police station, and I did. Everything that I remember from that day is written down." She testified that what she told both Officer Barcellos and Ms. Pendley the night of the incident was the truth, and that, "[i]f you want to know everything, read the written statement, please."
The prosecutor then had J.S. read her prior written statement aloud to the jury while on the stand:
"I, [J.S.], on September 4, 2009, was going to Selma on Rose Avenue to the storage unit. I saw Joe Lopez walking in the opposite direction. He came up to the front of my car ... then I braked ..... He stopped, as if pretending to push down the passenger window and unlock the door.. He forced me to drive to various Selma and Kingsburg locations.... He reached, at Kingsburg, California, he reached into my pants, after he ripped them, and placed his fingers in me. He also, at some point in the beginning of carjacking, just entering Kingsburg, threw out my cell phone, in between Bethel and Golden State Avenues. I feared for my life and didn't think I would come out of this alive.... ¶] ... [¶] I have two written statements before this." She had signed and dated the statement September 6, 2009.
Reading her prior written statement appeared to refresh J.S.'s memory on the witness stand. She commented that the written statement had a "lot of stuff missing." In attempting to clarify what was missing, including references to the gas station and Laundromat encounters she had testified to earlier, J.S. explained, "he forced himself in the car in Selma, and then I went to, I said I had better put gas, because I had tried everything to get away." After the gas station, they went to the Laundromat, which J.S. testified she tried to use as a means of escaping from appellant, but to no avail. She also testified appellant had his foot on top of hers on the accelerator at times, and also at times was pressing the gas while she tried to brake to avoid hitting other vehicles.
She also testified with more detail about the sexual assault and described other physical attacks appellant had made in the car, including burning her hand and biting her arm.
J.S., however, provided inconsistent statements regarding the knife. Under questioning by the defense counsel, she failed to provide a definitive statement about the knife - whether it belonged to her, or was in her car prior to appellant getting in the car, or whether appellant was carrying it when he approached her. Under questioning later on redirect by the prosecutor, however, while she still was not sure the knife belonged to her, she did describe in detail how appellant pulled the knife out of the band of his shorts.
The prosecution introduced Bob Meade as an expert on intimate partner battering and its effects, with the intent of explaining J.S.'s reluctance to take the stand and other behavior inconsistent with a typical victim.
"Although often referred to as 'battered women's syndrome,' 'intimate partner battering and its effects' is the more accurate and now preferred term. [Citations.]." (In re Walker (2007) 147 Cal.App.4th 533, 536, fn. 1.) We also use the term "domestic abuse" and "domestic violence," as these terms were used by the expert in his testimony.
Defense Case
Appellant testified that both he and J.S. were under the influence of methamphetamines, and were in the car together — having left a motel where they had spent the last three days together — when he suggested they both go to rehab. As his idea of an incentive, appellant suggested to J.S. that if she didn't "get right," he would "go back to my baby's mother," one "Erica," a threat backed up by the fact that he had already left J.S. three times in the past for Erica.
Appellant testified that J.S. was upset by his statements and he was merely attempting to calm her down as they drove through the streets of Kingsburg and ended up in the dirt lot.
Past History with Appellant
J.S. and appellant were together, according to J.S., "about eight months to a year" and had broken up a few months prior to the incident. Appellant testified he and J.S. had been living together for over a year and a half at the time of trial. The parties stipulated to appellant's three prior convictions of misdemeanor domestic violence against J.S..
The specific offenses were two incidents of battery (Pen. Code, § 243, subd. (e)(1)) in August 2008 and April 2009, and one incident of corporal injury (Pen. Code, § 273.5, subd. (a)) in October 2008.
Jury Verdicts
The jury found appellant guilty of kidnapping (Pen. Code, § 207, subd. (a)), but found not true the special allegation he used a knife in the commission of the kidnapping. (Pen. Code, § 12022, subd. (b)(1).) Similarly, they found appellant not guilty of assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1)), but guilty of the lesser included offense of simple assault. Finally, they found him guilty of various misdemeanor offenses (former intimate partner battery, Pen. Code, § 243, subd. (e)(1)), under the influence of a controlled substance (Health & Saf. Code, § 11550), and violating a court order (Pen. Code, § 273.6, subd. (a)). The jury could not reach a unanimous decision on the count of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)), and the court declared a mistrial solely as to that count.
DISCUSSION
Appellant appeals solely from his kidnapping conviction. He contests the conviction on two fronts: 1) inclusion of the expert's testimony relating to the credibility of victims of intimate partner battering, and 2) the lack of jury instruction on the lesser included offense of attempted kidnapping.
I. EXPERT TESTIMONY ON INTIMATE PARTNER BATTERING AND ITS EFFECTS
Appellant raises a number of issues that revolve around Meade's testimony concerning the truthfulness of domestic violence victims, primarily that Meade's testimony impermissibly exceeded the limited scope of testimony the trial court established. Appellant contends the expert's opinion that victims are most truthful immediately after a battering incident effectively usurped the jury's role in determining the credibility of witnesses. Appellant further asserts the prosecution erred in eliciting the objectionable testimony in the first place, and that defense counsel provided ineffective assistance by failing to object to the expert's testimony on this narrow subject. Finally, appellant contends the jury instruction on expert witness testimony should have been augmented. Even assuming there was error, any such error was harmless and in no way prejudicial to appellant given the overwhelming evidence that appellant kidnapped J.S..
Factual Background
After J.S. testified, the prosecution moved to call Meade, a Licensed Marriage and Family Therapist, to explain general characteristics and behaviors of intimate partner battering. Defense counsel objected to the expert testifying, arguing that the facts of the case failed to indicate the situation was related to domestic violence. The trial court noted the expert's testimony would be relevant, "to the notion that [victims] are reluctant witnesses and ... she wanted to move on and didn't really want to testify in court, and sometimes they have to be prodded to do that .. ," and allowed Meade to testify on that issue.
After providing a brief overview of the "cycle of abuse" that domestic violence victims suffer, the prosecutor then asked a series of questions, without objection, to gain an explanation of general domestic violence victim behavior. The particular testimony appellant finds prejudicially objectionable, which is beyond what the trial court initially allowed, was as follows:
"[Prosecutor]: Based upon your training and experience, when would you believe that a victim is most often telling the truth?
"[Expert]: I would say right after the incident. Immediately after the incident, in making a police report, the police have been called.
"[Prosecutor]: Why?
"[Expert]: Because it's fresh at that time. And in the time frame afterwards, if she's still dealing with the abuser, and still interacting with the abuser, then the abuser begins using this mental abuse and mental intimidation threats, whether against her, or against family, or the children .... "
Meade also went on to explain, "[i]f it's something that they have left the abuser, and there's been time that's gone on, sometimes they are, I find that what they are describing is very accurate, because a lot of the fear is gone. They are still dealing with the internal thing that I can still hear him everyday, but they are not so much afraid that he's going to get them."
Meade then dispelled a number of other common misconceptions of victim behavior, explaining that it is not uncommon for a domestic violence victim to claim she does not remember an incident, that it is "almost the norm" for domestic violence victims to be reluctant to testify or to be uncooperative with the prosecution, and that it is common for victims of abuse spanning multiple incidents over time to mix up the details of particular incidents.
Both the prosecutor and Meade made clear that he had had no contact with J.S., and had not read any police reports related to this case.
Before closing arguments, the trial court instructed the jury on how to consider Meade's testimony. The court explained, "[y]ou heard testimony from Bob Meade regarding the effect of battered women's syndrome. Mr. Meade's testimony about battered women's syndrome 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 Justina J.S.'s conduct was not inconsistent with the conduct of someone whose [sic] been abused in evaluating the believability of her testimony."
In their closing arguments, both the prosecutor and defense counsel discussed Meade's testimony, and both also argued the case came down to believing J.S.'s story or appellant's story. In discussing J.S.'s story, the prosecution asked of the jury, "when you are thinking about Mrs. J.S. [ sic ], every time you think about her when you are back there deliberating, when you are discussing this case, I want you to think of Bob Meade. I want you to think about the things that he said about her. He didn't know her, but I don't know her, you don't know her, but when she was sitting up there talking, you observed her demeanor, you heard the things that came out of her mouth, and you know about the things that she's done with respect to cooperating with prosecuting this case, you heard that from Officer Barcellos and from J.S. herself. So when you think of her, think of Bob Meade, who didn't know her, but was spot on."
The prosecution went on to recap Meade's testimony: "[h]e described to you some general character traits, or some general behavior of domestic violence victims. And included in those were reluctance to testify, reluctance to cooperate in continuing a case after they make a police report, confusion about different incidents if there's been more than one, and you heard all of the things that he said. So I just want you to think about him. Whenever you see her face, see his face right alongside it."
The prosecution, however, also asserted in closing that, "although [J.S.'s] been reluctant, she has never been inconsistent. Her story has not changed. She did not have time to contrive this story."
Defense counsel, rather than the prosecution, was the first to explicitly raise Meade's reference to victim truthfulness in his closing argument, but did so in the context of arguing there was no domestic violence incident at issue to begin with. He argued, "Mr. Meade also said that people who are in domestic violence relationships will tell the truth immediately after a domestic violence incident. That's still with the assumption that there was a domestic violence incident, the current one she's talking about. If there isn't one, then a person is just lying about something."
Respondent points out appellant's argument is waived for failure to timely object at trial under Evidence Code section 353, which states in pertinent part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
While defense counsel did object at the outset to the expert testifying at all, defense counsel made no objection to the prosecution's line of questioning concerning Meade's testimony as to victim truthfulness immediately after an incident of abuse. This fails to meet the objection requirements described above. (See People v. Demetrulias (2006) 39 Cal.4th 1, 2021.) Since appellant raises the failure to object in an accompanying ineffective assistance of counsel claim, however, we address the claim on its merits for the sake of judicial economy. (See People v. Butler (2003) 31 Cal.4th 1119, 1128.)
Expert testimony on intimate partner battering is explicitly permitted under Evidence Code section 1107, which states in pertinent part: "(a) 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." (§ 1107, subd. (a).)
All further statutory references are to the Evidence Code unless noted otherwise.
Our Supreme Court has also found such testimony admissible under section 801, subdivision (a) which permits expert testimony "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," and be properly founded. (People v. Brown (2004) 33 Cal.4th 892, 905 (Brown).)
Expert testimony on intimate partner battering assists the trier of fact in explaining the counterintuitive behavior of intimate partner battering victims, often in the context of testifying against their abusers. (Brown, supra, 33 Cal.4th at pp. 903, 905; People v. Morgan (1997) 58 Cal.App.4th 1210 (Morgan).) In other words, intimate partner battering victim behavior often does not conform to what a layperson would reasonably associate with typical victim behavior. (Brown, supra, 33 Cal.4th at p. 906.) It is not unusual to find intimate partner battering victims recanting prior statements, minimizing the alleged abuse, refusing to testify, and/or returning to be with the abuser/defendant. (See Morgan, supra, 58 Cal.App.4th at p. 1215.)
Here, however, it is more difficult to characterize J.S.'s behavior as consistent with a victim of intimate partner battering requiring explanation by an expert. She initially began by stating she could not remember the events because she was traumatized and had no desire to try to recall them. Unlike typical intimate partner battering victims, however, she did not outright recant or modify the details to minimize appellant's role or level of abuse, but rather repeatedly referred to her written statement she provided to law enforcement officers shortly after the incident. She also admitted that her memory was better at the time she wrote the statements after the incident than it was in court when she was testifying, and agreed that the verbal statements she made the night of September 4 to Officer Barcellos and Ms. Pendley were the truth.
Furthermore, once her memory was refreshed by reading her prior written statement on the witness stand, she provided more details about the events of the night. These details were largely consistent with the statements she provided to witnesses and law enforcement officers the night of the incident, and aggravated the circumstances of the offense rather than mitigated them, contrary to behavior exhibited by victims of intimate partner battering inconsistent with typical victims.
J.S. did, however, clearly express a strong desire not to participate in the proceedings.
Thus, it is unclear whether there was sufficient basis to call upon Meade to testify as to the general behavior of domestic violence victims where the behavior exhibited by J.S. did not conform to the archetype of a domestic violence victim. Meade's testimony would not clarify for the jury J.S.'s behavior, as it did not match the picture he provided as to general domestic violence victim behavior. The trial court, nonetheless, properly allowed Meade's testimony as relevant to the limited issue of J.S.'s reluctance to testify.
Appellant appears to accept the expert's relevance on its face, and thus we address his main contentions, briefly.
Meade's Testimony Did Not Usurp the Jury's Function
Meade testified explicitly in generic terms as to the behavior of victims of domestic violence. The prosecution made this clear in its questioning, and also in its closing argument. Meade stated he had never met J.S., and had no idea who the victim was in this case. Defense counsel also pointed out in its closing argument that Meade's testimony was generic in nature.
This issue was addressed in Morgan, supra. The Morgan court noted the victim's credibility was at issue in the trial, and concluded "[the expert's] testimony was responsive to the issue of [the victim's] credibility. We do not find it likely that the jury interpreted that testimony as a testimonial to the truth of [the victim's] pretrial statements to officers. [The expert] testified about battered women's syndrome in general. [The expert] expressed no opinion as to [the victim]. In fact, there was no suggestion that [the expert] had ever even spoken with [the victim] or that [the expert] knew any of the facts or allegations surrounding this case." (Morgan, supra, 58 Cal.App.4th at p. 1217.) Similarly, Meade testified only in generic terms and expressed no opinion as to J.S. specifically. The prosecution made clear in its closing argument that Meade did not know J.S. and that the burden remained on the jury to evaluate her demeanor and testimony. Therefore, even though this line of questioning and testimony exceeded the trial court's initial ruling, Meade's testimony on victim credibility did not usurp the jury's function.
The Jury Instructions as to the Expert Were Proper
Appellant asserts the error in admitting Meade's testimony was prejudicial error because the trial court failed to, sua sponte, augment the jury instructions on evaluating the expert's testimony. Appellant suggests, "[t]he jury should have been instructed sua sponte that (1) such evidence as admitted here is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with a diagnosis of [intimate partner battering and its effects], and (2) the expert's testimony is not intended and should not be used to determine whether the victim's claims are true," and that second prong was not met here. Two problems arise with this assertion.
First, the instructions given at trial in fact addressed both prongs of instructions appellant raises. Similar to the jury instructions provided in Morgan, supra, 58 Cal.App.4th 1210, the jury here was instructed both that they "may consider [Meade's testimony] only in deciding whether or not Justina J.S.'s conduct was not inconsistent with the conduct of someone whose [sic] been abused in evaluating the believability of her testimony," addressing the first prong, and also that "Meade's testimony about battered women's syndrome is not evidence that the defendant committed any of the crimes charged against him," which addresses the second prong, albeit in principle and not in the specific language appellant suggests.
Second, neither objection nor request for augmentation of the jury instructions was made at trial. The claim is therefore waived. (People v. Guiuan (1998) 18 Cal.4th 558, 570 ["'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.' [Citation.]].")
Harmless Error
Even assuming inclusion of the expert's testimony as to a victim's truthfulness was inappropriate, given the trial court's ruling that Meade's testimony be limited to victims of domestic violence reluctance to testify, any such error was harmless under any standard.
Appellant contends the jury's varying verdicts demonstrate the weakness of the prosecution's case and bolsters appellant's assertion that without the improper support of Meade's testimony as to victims' truthfulness, the jury would have returned a different verdict. We disagree. Meade's testimony did not corroborate J.S.'s testimony about the events of the night so much as provide an explanation as to why she might be providing inconsistent statements, as discussed above.
The jury hung on count 3, found appellant had not used a knife during the kidnapping, and was guilty of the lesser included offense of simple assault, rather than assault with a deadly weapon.
As we read the record, the verdicts and non-verdicts the jury reached demonstrate the jury placed greater weight on the written statement J.S. provided than on the statements she gave the witnesses immediately after the incident, contrary to Meade's testimony to which appellant objects so vehemently. The jury determined the prosecutor failed to prove that appellant used a knife in the course of the offense. The evidence presented at trial was inconsistent as to the use of the knife. Three of the four witnesses who testified about talking to J.S. immediately after the incident on the night of September 4, 2009, said J.S. had told each of them appellant had a knife during the commission of the offense. A knife was found in the car. J.S. testified that the knife might have been hers, but then also that she saw appellant take it out of the waistband of his shorts. She testified he held it against the back of her neck and brandished it across her torso. However, she made no mention of the knife in her written statement drafted two days after the incident, and which she said included everything about the incident. She also initially could not remember any details about the knife when testifying in front of the jury. Finally, J.S.'s description of appellant's use of the knife - held against the back of her neck, or against her throat - was inconsistent with Ms. Pendley's description of appellant having his arm around J.S., and seeing her in a "choke hold" with his left hand while he held on to the steering wheel with his right hand. The Pendleys testified they each saw something in appellant's hand but could not identify it as a knife, much less a butcher knife. The evidence of appellant's use of the knife came down purely to J.S.'s word - whether to witnesses the night of the incident, or on the stand. Since the jury failed to find this allegation true, it demonstrates that the jury disregarded J.S.'s statements about appellant's use of the knife that she made the night of the offense. That is, they found some of her statements to other witnesses on the night of the offense not credible. This flies directly in the face of Meade's testimony that victims of domestic violence tend to be more truthful immediately after an incident of abuse - the testimony appellant challenges before us. The jury clearly did not place great weight on Meade's testimony to this effect.
The jury's actions with regard to count 3, which they could not reach a decision on, present a slightly different picture. While we could infer the jury again failed to believe J.S.'s statements - both at the time of the incident and at trial - that appellant put his fingers in her, it could be more likely the jury struggled with the intent requirement of Penal Code section 289, rather than the physical requirements for the offense. J.S.'s statements consistently described appellant's actions as those of a jealous man, as defense counsel put it, "investigating" J.S.'s fidelity, rather than acting in a way to gain his own sexual gratification, as required by the statute. Regardless, the result again supports the conclusion the jury disregarded Meade's testimony as to the truthfulness of victims, further supporting our conclusion that any error in introducing such testimony was harmless.
Moreover, overwhelming evidence supported the kidnapping conviction. Penal Code section 207, subdivision (a) provides: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." Broken down into its elements, "[g]enerally, to prove the crime of kidnapping, the prosecution must prove ... (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance. [Citation.]." (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted; see also People v. Burney (2009) 47 Cal.4th 203, 232.)
Here, multiple witnesses described J.S. as crying, upset, scared, and yelling for help. The Pendleys observed appellant with his arm around J.S.'s neck, in a "choke hold" and in a "hostage situation." The Pendleys observed the vehicle travel a substantial distance in an erratic manner surrounding the intersection where they made the initial observation. Even if we assume J.S. and appellant both entered the car freely and with the consent of the other, the jury could have reasonably inferred J.S. withdrew her consent at some point, based on her behavior the Pendleys and law enforcement officers observed.
Had the trial court excluded Meade's testimony that victims tend to be most truthful immediately after an incident, it is beyond a reasonable doubt the jury would have reached the same conclusion on the kidnapping charge given that J.S.'s trial testimony was largely consistent with her statements made the night of the offense in relation to the kidnapping offense. (Chapman v. California (1967) 386 U.S. 18, 24.)
Because we find harmless error under Chapman, we also conclude appellant suffered no violations of his constitutional rights raised by appellant in his briefing.
II. NO INEFFECTIVE ASSISTANCE OF COUNSEL
"We apply settled standards: 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
As discussed, ante, we find no prejudice resulting from the inclusion of the expert's opinion on the truthfulness of intimate partner battering victims and thus appellant fails to make an adequate showing of inadequate assistance of counsel.
III. JURY INSTRUCTIONS ON ATTEMPTED KIDNAP NOT REQUIRED
A trial court's obligation to instruct on lesser included offenses extends even where a defendant objects to the giving of such instructions. "California decisions have held for decades that even absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 118.) In other words, if the evidence raises a question as to whether all of the elements of the charged offense were present, the trial court must instruct on the relevant lesser included offenses. (People v. Sedeno (1974) 10 Cal.3d 703, 715 (Sedeno), overruled on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).) Such sua sponte instruction requirement "prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict ... no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation.]." (Breverman, supra, 19 Cal.4th at p. 155, italics omitted.)
A trial court, however, has no obligation to instruct on a lesser included offense unsupported by substantial evidence. (People v. Hawkins (1995) 10 Cal.4th 920, 954, abrogated on other grounds by People v. Lasko (2000) 23 Cal.4th 101.) As described above, overwhelming evidence supported the completed kidnapping and there was little evidence, if any, presented to support an attempted kidnapping, i.e., a failed kidnapping. (Pen. Code, § 21a ["An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission."].) The trial court made no error in omitting a jury instruction on attempted kidnapping.
As respondent points out, the underlying reason for imposing a duty on the trial court to instruct on lesser included offenses supported by substantial evidence is to avoid the "classic 'all-or-nothing' choice of acquittal or conviction of the greater charge." (People v. Matian (1995) 35 Cal.App.4th 480, 484.) Here, the jury was instructed as to two lesser included offenses: felony and misdemeanor false imprisonment.
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IV. NO CUMULATIVE ERROR
Appellant finally contends that the cumulative effect of the asserted errors requires reversal of his conviction. We conclude that any errors or assumed errors were nonprejudicial, whether reviewed separately or cumulatively, and thus reject the contention. (See People v. Gonzales (2011) 52 Cal.4th 254, 308.)
DISPOSITION
The judgment is affirmed.
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Franson, J.
WE CONCUR:
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Gomes, Acting P.J.
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Poochigian, J.