Trial court did not err in instructing the jury with CALCRIM No. 850 on intimate partner battery. Defendant was convicted of multiple crimes against his ex-wife, Jane Doe. During the investigation, Jane initially accused defendant of domestic violence, then recanted, and later went back to her initial allegations. At trial, an expert testified that victims of intimate partner battering may cycle between seeking assistance and supporting their battering partners, including by making false statements to police. On appeal, defendant challenged CALCRIM No. 850, the standard jury instruction regarding testimony by complaining witnesses in cases in which the jury also hears evidence from an expert in intimate partner battering. Held: Reversed in part. CALCRIM No. 850 directs the jury to limit consideration of expert testimony to their evaluation of whether the alleged victim’s conduct was not inconsistent with the conduct of an abused victim. The instruction further directs the jury to consider this analysis “when evaluating the believability of the alleged victim’s testimony,” and plainly states the expert testimony “is not evidence that the defendant committed any of the crimes charged against him.” Sexton argued the instruction suggested to jurors that they could use the expert testimony as evidence that the victim was telling the truth. The court disagreed. The instruction urges the jurors to “evaluate” the believability of the victim’s testimony, “not mechanically transfer their evaluation of the expert to Jane’s statements.” Read in context, reasonable jurors would not interpret the instruction to mean that if they found the characteristics of intimate partner battering were satisfied, then Jane was necessarily telling the truth. CALCRIM No. 850 was not erroneously given and the evidence before the jury rendered any error harmless.
Because Arizona’s robbery statute does not contain all of the same elements as California’s, the true finding on defendant’s Arizona prior conviction must be reversed and the five-year serious felony enhancement stricken. Sexton was sentenced to a five-year term for a prior serious felony enhancement related to a 1997 conviction for robbery in Arizona. For a prior felony conviction from another jurisdiction, such as Arizona, to support a prior serious felony enhancement, the crime “must include all the elements of any serious felony” in California. (Pen. Code, § 667, subd. (a)(1).) Asportation is an element of robbery in California, but not in Arizona. Because the Arizona statute does not require the same elements as the California statute, the enhancement must be stricken.
Consecutive sentences for two offenses arising out of defendant’s choking of the victim violates the dual punishment ban under Penal Code section 654. On July 22, 2014, defendant choked Jane while threatening to kill her, resulting in visible injury to her neck, and leading to convictions for inflicting injury on a spouse (Pen. Code, § 273.5, subd. (a); count 3) and assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 4). The defendant argued that one of the consecutive sentences for counts 3 and 4 had to be stayed under section 654. The appellate court agreed. Under section 654, dual punishment is prohibited, but there are exceptions to the ban. When there is separate punishment for multiple offenses arising out of a single course of conduct, the court reviews whether substantial evidence supports a trial court’s finding that the defendant formed a separate intent and objective for each crime. The testimony regarding the July 22, 2014 incident demonstrated that during the entire course of conduct, defendant threatened and choked Jane, except for a brief period when she managed to get his hands loose. If one’s intent is to inflict harm on an individual who manages to free herself, then a subsidiary goal of the infliction of harm is to regain control of the individual. However, the overarching objective throughout remains inflicting harm on the victim. Substantial evidence did not support an implied finding that any of defendant’s actions during the physical altercation were taken for a purpose other than his principle purpose, the infliction of physical and emotional harm on Jane. Because the consecutive sentences violate the dual punishment ban, the court remanded for the trial court to stay the sentence on count 3 or count 4. [Editor’s Note: The court also remanded for the trial court to consider striking a prior serious felony enhancement (Pen. Code, § 667, subd. (a)(1)) under Senate Bill No. 1393.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D075380.PDF