People v. Brackins, H043584

• Decision Date: 02 July 2019
• Docket Number: H043584
• Citation: 37 Cal.App.5th 56,249 Cal.Rptr.3d 261
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lionel BRACKINS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

37 Cal.App.5th 56

249 Cal.Rptr.3d 261

The PEOPLE, Plaintiff and Respondent,

v.Lionel BRACKINS, Defendant and Appellant.

H043584

Court of Appeal, Sixth District, California.

Filed July 2, 2019

Jill Kent, Under Appointment by the Sixth District Appellate Program, for Defendant and Appellant.

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Elizabeth W. Hereford Deputy Attorney General, for Plaintiff and Respondent.

Mihara, J. Defendant Lionel Brackins was convicted by jury trial of aggravated assault ( Pen. Code § 245, subd. (a)(4) ),¹ inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)), attempting to dissuade a witness (§ 136.1, subd. (b)(1)), and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)).² The court sentenced defendant to four years in prison.³

On appeal, defendant contends that the trial court prejudicially erred in (1) denying his request to modify CALCRIM No. 2622, the attempted dissuading instruction, to insert language requiring a finding of malice and describing when a presumption that malice was absent would apply, and (2) instructing the jury with CALCRIM No. 850 about expert testimony by a prosecution expert on intimate partner violence. We find that the trial court properly denied the request for modifications to CALCRIM No. 2622 because a violation of section 136.1, subdivision (b), unlike a violation of section 136.1, subdivision (a), does not require malice. We also reject defendant's challenge to CALCRIM No. 850. Accordingly, we affirm the judgment.

I. Prosecution's Case At Trial

Janet Amezcua and defendant had been in a relationship for 10 years and had four children, including Jane Doe. Although Amezcua testified at trial that their "arguments" had never become "physical," the prosecution produced evidence at trial that defendant had repeatedly physically assaulted Amezcua. The charged offenses occurred in August 2014 and January 2015, but evidence of several prior events was also introduced at trial. At trial, Amezcua denied that any domestic violence had occurred, and she claimed that she called the police on numerous occasions only because she was "mad and angry" at defendant.

When the police were summoned to Amezcua's residence in February 2008, Amezcua had a bruise on her arm

and swelling on her face. She told the officer that defendant had caused the injury to her arm, though she denied that he had caused the injury to her face. In October 2011, the police arrived at Amezcua's apartment and found her "bleeding pretty heavily" from her right hand and visibly shaking. Amezcua told the officer that she had asked defendant to leave, and he had responded by getting "angry," grabbing her, throwing her down on the couch repeatedly, and then punching her in the arm. "He then got up and went to the kitchen and got a knife and approached her with the knife at which point she thought she was going to be stabbed by him with the knife and she grabbed the knife out of his hand," thereby cutting her hand. At trial, Amezcua admitted that she had told the police that defendant had threatened her with a knife, but she denied that he was responsible for her grabbing the knife and cutting herself. In April 2012, the police arrived at Amezcua's residence and found her with a swollen, lacerated, bloody lip and a loose tooth. She told the officer that defendant had "punched her in the mouth" after she "tried to strike" him. When she tried to leave, he blocked her way and "pushed her down on the couch."

The charged corporal injury and aggravated assault counts arose from events in August 2014. The police arrived at Amezcua's residence in response to a domestic violence call. Amezcua, who was crying, told the responding officer that she and defendant had argued after she refused to let him use her cell phone. He pushed her onto the couch, got on top of her, and grabbed her throat with his hand. Defendant choked her for a minute. She could not breathe, and she lost consciousness for a few seconds. When she regained consciousness, he told her not to say anything. She pushed him off her and tried to run away, and after a struggle with defendant, she escaped his grasp, left the residence, and called 911. She asked the officer to obtain a protective order for her, and he did so. Amezcua's neck was red and had a small abrasion, and she reported pain in her neck.

Amezcua told the officer that Jane Doe had been present during the incident. Jane told the police that Amezcua and defendant had been "fighting" before the police arrived. She saw defendant push Amezcua down on the couch and begin "twisting her ankle." Then defendant "choked" Amezcua with one hand on her throat. Jane reported that Amezcua "was making like a choking, gagging type of sound and it made her very sad to see that." After a minute, defendant stopped choking Amezcua and "started twisting her ankle again." When Amezcua managed to get up and tried to leave the residence, defendant "grabbed [Amezcua] by the hair and yanked her back into the apartment." Eventually, Amezcua escaped from the apartment and called the police.

At trial, Jane was a reluctant witness and claimed to have no memory of most of the events or of talking to the police about them. Amezcua's trial testimony minimized the violence. She admitted that she and defendant had argued about defendant's desire to use her phone and that he had tried to take her phone from her hand. He did not succeed, and he began yelling at her. She told him to leave and called the police when he did not. Amezcua testified at trial both that she did not remember what she had told the police and that she had lied to the police about defendant choking her. She testified that she lied because she was "desperate," "frustrated," and "angry," and she "wanted him to leave." Amezcua claimed that the scratch on her neck was self-inflicted.

In January 2015, the police were dispatched to Amezcua's apartment after a report of a domestic disturbance. The officer made contact with Amezcua, who reported that defendant had kicked the door and broken it. The officer observed that the door frame was cracked, the locking plate was on the ground, and the door would not close. There was a footprint on the door. Jane was present while the officer was talking to Amezcua. Amezcua told the officer that defendant had been "yelling and screaming" at Jane, causing Jane to cry. Amezcua had told defendant to leave, but he did not. She left the apartment to call 911, and "he chased her." She ran back into her apartment and closed and locked the door. That was when defendant kicked in and broke the door. Defendant fled before the officer arrived.

While the officer was talking to Amezcua, "the cell phone rang and rang and Jane Doe held it up and said, He's calling! He's calling!" The officer looked at the phone and saw from the "caller ID" that defendant was calling. Jane asked the officer if she should answer it, and the officer said "Okay." Jane answered the phone and put it on speaker phone. Jane "said hello," and defendant immediately began screaming loudly. He said: " ‘You better not be talking to the fucking police.’ " He also said " ‘listen’ " and " ‘don't talk to the fucking police.’ " Defendant was "so loud," and "Jane Doe was upset ...." The officer took the phone and identified herself as a police officer. Defendant began screaming at her. He was "[v]ery loud and angry." The officer terminated the call, but defendant called back several times. His calls were not answered. Amezcua asked for an emergency protective order, and the officer obtained one for her.

II. Defense Case At Trial

A defense investigator testified that Amezcua had told him during a 2012 telephone interview that the prior incidents did not involve violence by defendant against her. She told him that she had cut herself in October 2011 while chopping vegetables. Amezcua described the April 2012 incident as one in which she hit defendant and he was only trying to defend himself when her lip got cut. Amezcua told the defense investigator that there had been no other incidents of violence between her and defendant. She denied her statements to the police officers on those occasions. Amezcua told the defense investigator that she relied on defendant to help her take care of their children.

Defendant testified on his own behalf at trial and denied that he had ever been abusive to Amezcua. He insisted that Amezcua was "always accusing me of doing things." "She's always thinking I'm doing something wrong." Defendant testified that he was the victim "because I didn't do nothing," and Amezcua had lied on every occasion. "I'm the one getting attacked and getting the police called." He thought Amezcua was "[d]isrespectful" and "childish" toward him. The only thing he admitted was kicking in the door.

Although he admitted that he "plead[ed] to" the February 2008 domestic violence charge, he claimed he "didn't do anything" and had pleaded only "to get out of jail." Defendant testified that Amezcua had been in a fight with her sister, and he had not hit her or even touched her on that occasion.

He also denied responsibility as to Amezcua's October 2011 report of domestic violence. Defendant testified that this event was "[j]ust the same thing" as the others. "I woke up to her bleeding and her with a knife ... acting like she going to poke me ...." No argument had preceded this event; he had simply been sleeping on the couch. Amezcua began yelling at him, telling him to leave, and saying "I'll stick you right now." "She's trying to swing a knife at me, and I just grabbed her hand down, you know, tried to get up out of there to get the knife out of her hand." He was not successful, so he "ran out of the house" with Amezcua "chasing me with the knife." Defendant claimed that "[t]hose charges were dropped" bec...