Filed 10/1/18 P. v. Foye CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Anthony Alonzo Foye guilty of first degree residential burglary (Pen. Code, § 459)[1] and misdemeanor domestic battery (§ 243, subd. (e)(1)). The trial court sentenced him to four years in prison.

On appeal, defendant contends the trial court prejudicially erred in instructing the jury that he had committed an uncharged act of domestic violence in violation of his federal constitutional rights to a fair trial and due process. He further contends the court abused its discretion in denying his motion for new trial. Finally, he argues the court prejudicially erred in failing to instruct the jury sua sponte with CALCRIM No. 332 (expert witness testimony) and CALCRIM No. 303 (limited purpose evidence in general). Because we find error but no prejudice, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Trial Testimony

In June 2015, A. Doe (the victim) was defendant’s girlfriend. They had been dating for approximately four years but did not live together.

Deputy Daren Allbee of the Sacramento County Sheriff’s Department testified that on June 26, 2015, he was dispatched to an apartment in South Sacramento in response to a report of domestic violence. When he arrived, he noticed that the front window of the apartment was broken, the door was kicked open, and the doorjamb was broken. The deadbolt on the door was in the locked position and glass was on the floor. The victim had a cut on the bottom of her right foot and a cut on her right arm. Photographs of the scene, including a broken door and a broken window, as well as photographs of the victim’s injuries, were admitted into evidence.

The victim told Deputy Allbee what had happened between her and defendant. She explained that during an argument she told defendant to leave her apartment and never come back. Shortly thereafter, he broke the front window and kicked open the door, which was locked with a deadbolt and a chain latch. He then entered the apartment, pushed her down onto the broken glass, and kicked and punched her numerous times.

In explaining what had happened, the victim never mentioned that another woman had been inside her apartment with defendant.

Deputy Brandon Voetsch of the Sacramento County Sheriff’s Department testified that he was also dispatched to the scene. Upon his arrival, he spoke with D.S. D.S. explained that the victim was her aunt, and that she had been staying with her for a few days. She further explained that after hearing yelling and “tussling” from the victim’s bedroom, she threatened to call the police if defendant refused to stop. In response, defendant left the apartment. Shortly thereafter, he broke the front window and kicked open the locked front door. He then punched the victim four times with a closed fist.

In describing the incident, D.S. never mentioned that another woman had been inside the apartment with defendant.

When D.S. was interviewed by Detective Robert Stewart during a followup investigation, she gave a similar description of the incident.

The 911 call was played for the jury. During the call, D.S. said that defendant had beaten the victim. When the 911 operator asked if the victim needed medical assistance, D.S. said, “Yes, she’s bleeding and stuff.”

D.S. testified and acknowledged that an incident had occurred between defendant and the victim that prompted her to call 911, but claimed that she could not remember what had happened and that she did not see anything. However, upon further questioning, she recalled that the victim had sustained injuries, including cuts on her body. She also recalled that domestic violence had occurred, for which defendant was responsible.

Although D.S. claimed that she could not remember making any statements to the officers about the incident, she stated that she did not lie to the officers, and that her memory about the incident was better when she spoke to the officers on the date of the incident. D.S. admitted that she did not want to testify and was angry about being forced to do so.

The victim testified and recanted her claim of abuse. She claimed that she had lied to Deputy Allbee because she was angry and emotional. She explained that she wanted to get defendant in trouble because he had disrespected her by bringing another woman into her apartment.

The victim claimed that she broke the front door after discovering that defendant was inside with another woman. She explained that she opened the deadlock with her key and then broke the chain latch by ramming her shoulder into the door. When confronted with the fact that her story was inconsistent with the physical evidence at the scene, which showed that the entire doorjamb was smashed and wood was scattered throughout the apartment, she claimed that the door was “messed up” prior to the incident. She also claimed that she broke the front window earlier in the day,[2] and that she cut her feet after she kicked off her shoes while “trying to beat that girl’[s] ass.” However, aside from noting that the woman with defendant was “hella ugly,” the victim could not describe her.

The victim admitted that she told D.S. to call 911 but claimed that she did not tell her what to say. The victim acknowledged that she was screaming hysterically in the background during the 911 call but claimed that she was doing so because she was upset about defendant cheating on her. According to the victim, D.S. lied to the responding officers. The victim explained that D.S. had just gone along with her “story.”

The victim admitted that she loved defendant. She also repeatedly stated that she did not want to testify and did not know why the case had not been dropped.

Sergeant Dennis Prizmich of the Sacramento County Sheriff’s Department testified as an expert in the field of domestic violence. He explained that in spousal abuse cases there is a “cycle of violence, power and control.” A relationship starts out loving but tension builds until an event triggers a violent incident. After the incident, the parties separate for a period of time and then come back together and the cycle starts over again. Prizmich opined that it is very common in domestic violence cases for victims to exhibit counterintuitive behavior. He explained that in the typical case, after the offender and victim have made up, the victim does not want the offender to be prosecuted. The victims will often recant their claim of abuse, change their story, minimize the offender’s culpability, and blame themselves or another person. The victims exhibit this type of behavior for a number of reasons, including kids, fear, intimidation, money, influence of family members, and love for the offender. Based on his experience, Prizmich opined that counterintuitive behavior is exhibited by victims in 80 to 85 percent of domestic violence cases, with many victims returning to their abuser. Prizmich noted that it is common for victims to claim they cannot remember the abuse.

The People also introduced evidence that between August 4, 2016, and October 12, 2016, defendant made 97 phone calls from jail to the victim. A phone call placed on August 13, 2016, was played for the jury. During the call, the victim stated: “You got yourself into this situation.” In response, defendant said: “Alright man I did. Even though (inaudible) the Benz . . . because I did.”

The parties stipulated that, if called, Doreen Evans would testify, in part, as follows: She was an investigator from the Sacramento County Public Defender’s Office. On October 4, 2016, she spoke with the victim. During their conversation, the victim stated that defendant was her ex-boyfriend, she did not want to participate in the case, and wanted the charges dropped. She claimed that she could not remember anything about the incident in question and could not remember what she had told the police about the incident. However, she noted that she had been “semi-truthful” when she spoke with the police. She explained that she had caught defendant cheating on her. According to the victim, defendant did not “put his hands on [her]” or break the front window; it was broken a couple of days earlier during a “wild night.” Although she admitted that she told D.S. to call 911, she claimed she did not tell D.S. what to say and did not know what D.S. said.

Procedural History

Defendant was charged by an information with willful infliction of corporal injury resulting in a traumatic condition upon a person with whom he had, or previously had, a dating relationship (§ 273.5, subd. (a)) and first degree residential burglary (§ 459). He was found not guilty by jury of the corporal injury offense but guilty of the lesser included offense of misdemeanor battery against a person with whom he currently had, or previously had, a dating relationship. (§ 243, subd. (e)(1).) The jury also found him guilty of first degree residential burglary. (§ 459.) The trial court sentenced him to four years in prison. This timely appeal followed.

DISCUSSION

I

Alleged Instructional Error Regarding Uncharged Act of Domestic Violence

Defendant contends the trial court prejudicially erred in instructing the jury that he had committed an uncharged act of domestic violence in violation of his federal constitutional rights to a fair trial and due process. Although there was no uncharged act evidence presented, the error was harmless, as we explain.

A. Background

While the trial court was orally instructing the jury at the close of trial, the following exchange took place:

“THE COURT: [¶] . . . [¶] The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a person who dated or is dating the defendant. [¶] Abuse means-- [¶] . . . [¶]

“[PROSECUTOR]: Your Honor, that instruction should be removed.

“THE COURT: All right, [CALCRIM No.] 852 is withdrawn. [¶] Let me just ask you, ladies and gentlemen, to disregard what I just read previously. There has been

no evidence that the defendant committed domestic violence that is not charged in this case. So just disregard the Court’s previous statement, that is in error.”

B. Analysis

“Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not constitute ground for reversal.” ’ [Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 67.) Such error does not implicate the defendant’s constitutional rights and is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818, 837. (People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247; see People v. Guiton (1993) 4 Cal.4th 1116, 1129 [inapplicable jury instruction is error, but subject to harmless error analysis standard set forth in Watson].) Under the Watson standard, reversal is only required if it is reasonably probable defendant would have obtained a more favorable result had the instruction not been given. (People v. Gamache (2010) 48 Cal.4th 347, 376.)

We need not address the People’s forfeiture argument because, even assuming defendant’s claim is cognizable, he has failed to show reversible error. The record reflects that the trial court erroneously instructed the jury with a small portion of CALCRIM No. 852 (evidence of uncharged domestic violence). However, when the prosecutor interrupted the partial reading of the instruction and informed the court that this instruction was inapplicable, the court immediately told the jury that it had made an error when it stated defendant had committed an act of domestic violence that was not charged in this case. The jurors were specifically admonished to disregard the statement. The court told the jury that there was no evidence defendant had committed an uncharged act of domestic violence. The written instruction was not provided to the jury. Further, the jury was properly instructed, pursuant to CALCRIM No. 200, that it was up to them to decide what the facts were (i.e., what happened in this case) based only on the evidence presented at trial. CALCRIM No. 200 also instructed the jury that “[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give you a particular instruction that I’m suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”

On this record, we cannot say that the erroneous but brief oral statement made by the trial court contributed in any way to the guilty verdicts. Because jurors are presumed to understand and follow the court’s instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852), it is reasonably likely that the jury disregarded the court’s misstatement and focused on whether defendant committed the charged crimes based on the evidence presented at trial and the written instructions. (See People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113 [where there is a discrepancy between the oral instructions and written instructions, we presume the jury followed the written instructions].) During closing argument, there was no mention of an uncharged act of domestic violence. Instead, the prosecutor and defense counsel argued about defendant’s guilt based on the evidence presented at trial. The jury found defendant guilty of first degree burglary and the lesser included offense of the corporal injury offense, indicating that it did not believe the victim’s recantation. The evidence adduced at trial supporting defendant’s guilt was significant and strong compared to the evidence supporting a different outcome. Under these circumstances, we are convinced that there is no reasonable probability the asserted error affected the result.

II

Denial of Motion for New Trial

After the jury returned its guilty verdicts, defendant filed a motion for new trial. He argued that a new trial was warranted because (1) the trial court erroneously instructed the jury with a portion of CALCRIM No. 852 without any curative instruction, and (2) the verdict was contrary to the evidence. The court denied the motion. Defendant now contends the denial was an abuse of discretion. We disagree.

A. Legal Principles

A court may grant a new trial based on instructional error. (People v. Ault (2004) 33 Cal.4th 1250, 1260; § 1181, subd. 5 [court may grant a new trial when it “has misdirected the jury in a matter of law”].) A court may also grant a new trial when the verdict is contrary to the evidence. (§ 1181, subd. 6.) “The court extends no evidentiary deference in ruling on a section 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.]” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)

“In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524.)

B. Analysis

1. Alleged Instructional Error

Defendant contends the trial court erred in denying his motion for new trial based on instructional error. According to defendant, while the court admitted it had misdirected the jury by orally instructing it with a portion of CALCRIM No. 852, it failed to consider the prejudicial effect of its error. We disagree.

At the hearing on the motion for new trial, the trial court recounted the circumstances of the instructional error. The court acknowledged that the jury was erroneously instructed with a portion of CALCRIM No. 852 but noted that the jury was admonished to disregard it. The jury was specifically told that there was no evidence that defendant engaged in uncharged conduct. The court also noted that CALCRIM No. 852 was removed from the packet of written jury instructions provided to the jury. In response, defendant argued that the prejudice caused by the court’s error could not be cured by telling the jury to disregard it, particularly since there was contradictory evidence presented at trial.

In denying defendant’s motion, the court reasoned as follows: “The jury was cautioned in other instructions, and during voir dire, that they are only to consider evidence that is on the record in this trial. And there was no evidence of any other misconduct. It was not referred to at any time during the trial. It was not insinuated. And the Court told the jury at the time that it was an error and to disregard it. So I don’t believe that that rose to the level of depriving the defendant of a fair trial, and the motion is denied.”

We discern no abuse of discretion. The record reflects that the trial court considered and rejected defendant’s argument that a new trial was warranted based on instructional error. The court properly denied defendant’s motion because, as discussed ante, the instructional error was harmless. While the court did not expressly state that the instructional error was harmless, it is clear from the court’s explanation above that it was making such a finding.[3]

2. Sufficiency of the Evidence

Defendant next argues that the trial court abused its discretion by failing to independently weigh the evidence in determining whether the verdict was contrary to the evidence.

In denying defendant’s motion, the court acknowledged that there was contradictory evidence presented at trial in that the victim recanted her claim of abuse. However, the court found that there was sufficient evidence in the record to support the jury’s verdict. In so finding, the court noted that there was evidence showing that it is not unusual for domestic violence victims to recant a claim of abuse.

Although the trial court did not expressly state it had independently examined the evidence and found it sufficiently credible to prove each element of the offenses beyond a reasonable doubt, we read the trial court’s comments to mean exactly that. In this context, a reasonable interpretation of the court’s finding is that the court was expressing its own independent view that the evidence established each element of the offenses.

III

Alleged Instructional Errors Regarding Expert Testimony

Sergeant Prizmich testified as an expert in the field of domestic violence. Defendant contends the trial court prejudicially erred in failing to instruct the jury sua sponte regarding expert witness testimony (CALCRIM No. 332) and limited purpose evidence (CALCRIM No. 303). We find the error harmless.

A. CALCRIM No. 332

When expert testimony is received at trial, the court must instruct the jury sua sponte on evaluating the expert’s testimony. (§ 1127b; People v. Reeder (1976) 65 Cal.App.3d 235, 241.) We will not reverse for a failure to instruct on expert testimony unless it appears reasonably probable that, had an instruction been given, the jury would have rendered a verdict more favorable to the appellant. (People v. Williams (1988) 45 Cal.3d 1268, 1320.)

Although the court instructed the jury under CALCRIM No. 333 on evaluating opinion testimony of lay witnesses, it did not give CALCRIM No. 332 on evaluating opinion testimony by expert witnesses.[4] The instructions are strikingly similar. The main difference between the two instructions is that CALCRIM No. 332 directs the jury to consider the expert’s formal background. As relevant here, CALCRIM No. 332 instructs the jury to evaluate expert opinion, considering “the expert’s knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.” By contrast, CALCRIM No. 333 instructs the jury to evaluate lay witness opinion testimony, considering “the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion.”

In addition to instructing the jury with CALCRIM No. 333, the court instructed the jury under CALCRIM No. 226 that “[y]ou alone, must judge the credibility or believability of the witnesses. In deciding whether the testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have.” The court also instructed under CALCRIM No. 226 that “[y]ou may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.” (Italics added.) That instruction also provided various factors for the jury to consider in evaluating any witness’s testimony.

The court also instructed the jury with CALCRIM No. 200, which informed the jurors that they were the exclusive judge of the facts, and that it was up to them, and them alone, to decide what happened, based only on the evidence that had been presented at trial. CALCRIM No. 200 also instructed the jury to consider all of the jury instructions together, and to consider them equally.

We presume the jury understood and followed the instructions the court gave under CALCRIM Nos. 200, 226, and 333. (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9; People v. Gray (2005) 37 Cal.4th 168, 217.)

In view of the instructions given and the evidence presented at trial, we find no prejudicial error in the trial court’s failure to give CALCRIM No. 332. It is not reasonably probable the jury would have reached a verdict more favorable to defendant had CALCRIM No. 332 been given. The jury in this case was instructed to consider and weigh the testimony of each witness, including Sergeant Prizmich. The jury was told that it was up to them to decide whether they believed all or part of the testimony of each witness. By following the court’s instructions under CALCRIM Nos. 200, 226, and 333, the jury was sufficiently equipped to evaluate Prizmich’s testimony. Together, these instructions adequately covered the concepts under CALCRIM No. 332. Moreover, as discussed ante, the evidence adduced at trial supporting guilt was strong. The case turned on whether the jury believed the victim’s recantation of her claim of abuse in the face of significant and compelling evidence of defendant’s guilt.

B. CALCRIM No. 303

The trial court instructed the jury with CALCRIM No. 850 (testimony on intimate partner battering and its effects: credibility of complaining witness) as follows: “You have heard testimony from Detective Dennis Prizmich regarding the effects of intimate partner battering. Detective Prizmich’s testimony about intimate partner battering 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 [the victim’s] conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony.”

When, as here, CALCRIM No. 850 is given, the bench notes following CALCRIM No. 850 state that the court should also give CALCRIM No. 303 (limited purpose evidence in general). CALCRIM No. 303 would have advised the jury: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”

Although the trial court did not instruct the jury with CALCRIM No. 303, it was not required to do so sua sponte (People v. Simms (1970) 10 Cal.App.3d 299, 311) and defendant never requested the instruction. Thus, defendant’s claim of instructional error is forfeited. In any event, any error in failing to give the instruction was harmless. CALCRIM No. 850 expressly instructed the jury regarding the limited purpose for which it could consider Prizmich’s testimony on intimate battering. Moreover, as previously noted, the evidence supporting defendant’s convictions was strong compared with the evidence supporting a different outcome. Accordingly, we cannot conclude that it is reasonably probable that the jury would have rendered a more favorable outcome if the court had separately instructed the jury with CALCRIM No. 303.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Butz, J.