Trial court properly denied defendant’s request to insert language requiring a finding of malice into the jury instruction for attempting to dissuade a witness. Over the course of several years, Janet A. called the police multiple times to report instances of domestic violence against her by her partner, defendant. On one occasion Jane Doe (Janet and defendant’s daughter) witnessed the alleged violence. While a police officer was speaking to Janet, defendant called. Jane answered on speakerphone, and defendant yelled that she better not be talking to police. Defendant was charged with attempting to dissuade a witness (Pen. Code, § 136.1, subd. (b)(1)) and other offenses, and found guilty by a jury. He appealed, arguing the trial court erred in refusing to modify the attempted dissuading jury instruction (CALCRIM No. 2622) to include a malice element. Held: Affirmed. Penal Code section 136.1, subdivision (a) prohibits “knowingly and maliciously” preventing or dissuading a witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. Under subdivision (a)(3), there is a presumption that a family member who intercedes in an effort to protect a victim or witness acted without malice. Defendant was convicted under subdivision (b), which contains no express malice requirement. Applying principles of statutory construction, the court concluded subdivision (b) should not be construed to require malice. Subdivision (b), which prohibits attempting to prevent or dissuade a victim or witness from reporting a crime to police, is a more narrow offense. The Legislature could reasonably conclude that while it would be reasonable for a family member to try to protect a victim or witness from the trauma of attending a proceeding, it would be unreasonable to prevent someone from reporting a crime. Because subdivision (b) does not have a malice element, the trial court did not err in refusing defendant’s request for a malice instruction.
The trial court did not err in instructing the jury with CALCRIM No. 850 regarding testimony by a prosecution expert on intimate partner violence. Both the defense and prosecution sought an in limine ruling on the admissibility of testimony by prosecution expert R. Ferry on intimate partner violence (formerly, battered women’s syndrome). Ferry had not read any of the reports or interviewed Janet, but testified regarding the cycle of violence and the reasons a victim might stay in a relationship with the batterer and be hostile to prosecution of the batterer. Defendant argued the trial court erred in instructing the jury that it could use Ferry’s testimony to evaluate the believability of Janet’s testimony, which defendant regarded as an instruction that Ferry’s testimony could be used to resolve the ultimate issue of whether the charged acts happened. While expert testimony may not be used to directly determine whether the abused occurred, it may be used indirectly to assist the jury in evaluating whether the victim’s alleged statements are believable. Here, Ferry explained how victims of abuse often recant and minimize the abuse, even when the abuse had actually occurred. This information could properly be used to evaluate whether Janet’s recantations and minimization of the abuse were a result of the abuse she suffered, or were related to her having lied about the alleged abuse in the first place. There was no error.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H043584.PDF