Opinion
H050451
02-28-2024
THE PEOPLE, Plaintiff and Respondent, v. DENMARK OKEYA COPELAND, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. B2102415)
Greenwood, P. J.
Denmark Okeya Copeland appeals from the judgment entered after a jury convicted him of criminal offenses based on two domestic violence incidents. On appeal, Copeland argues that the trial court abused its discretion by permitting the prosecution to introduce evidence of his prior robbery conviction in its rebuttal case. He additionally contends that the trial court erred when it instructed the jury with CALCRIM No. 850 regarding the use of expert testimony related to intimate partner battering. For the reasons set forth below, we affirm.
I. Background
A. Procedural History
The Santa Clara County District Attorney charged Copeland in a first amended information with two counts of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a) ; counts 1 and 2); one count of battery on a spouse or cohabitant (§ 243, subd. (e)(1); count 3); and one count of malicious destruction of a wireless device (§ 591.5; count 4). The first amended information also alleged that Copeland personally inflicted great bodily injury upon the victim, and that he had suffered a prior strike under section 1170.12, subdivision (b)(1).
Undesignated statutory references are to the Penal Code.
A jury found Copeland guilty of counts 2 and 3, found him not guilty of counts 1 and 4, and found not true the great bodily injury enhancement as to count 2. The court found the section 1170.12 prior strike allegation to be true.
At sentencing, the court granted Copeland's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and struck his prior strike conviction. The court sentenced Copeland to the midterm of three years for the domestic violence conviction (count 2), and a concurrent term of 240 days on the misdemeanor battery of a spouse or cohabitant count (count 3), which the court deemed already served. Copeland filed a timely notice of appeal.
These facts are taken from the trial transcript.
K.W. had been in a dating relationship with Copeland on and off for about three years at the time of trial. They talked about having a future together, getting married, raising K.W.'s children, and having additional children together.
1. The February 15, 2021 Incident
The February 15, 2021 offense conduct was charged in counts 3 and 4 of the first amended information.
On February 15, 2021, K.W. lived in San Jose in an apartment with her two young children. Copeland stayed at the apartment, but his name was not on the lease. That evening at around 11 or 12 p.m., he started an argument with K.W. Copeland told her that he had another woman, and K.W. said, "that's good, you go do that," and pointed to the door.
Copeland responded by getting angry and throwing things and cursing at K.W. He pulled her by the hair, then he took her phone from her. K.W. asked Copeland to give her the phone so she could call her mother, but he would not give it back to her. K.W. would have called the police at this point if she had had access to her phone.
S.D., the apartment manager at the complex, heard people yelling loudly as she walked through the courtyard. She heard a male voice demanding his cell phone. She then heard K.W. say "stop" and "help." Through the window, S.D. saw Copeland throw K.W. against the wall and then hit her. K.W. yelled out to S.D. to call the police.
As S.D. was on the phone with the 911 dispatcher, Copeland and K.W. came out of the apartment, and Copeland continued to yell and scream at K.W. K.W. walked toward S.D., trying to get away from Copeland. Copeland stood in front of S.D. as she tried to speak to the dispatcher. S.D. told Copeland that he needed to leave the property, but he refused to do so. K.W. was extremely upset and shaking.
K.W. walked away and out of the view of S.D. The police arrived as Copeland was exiting the property.
About two weeks after this incident, K.W. and Copeland got back together. K.W. reconciled with Copeland because she still loved him, and because he told her that he had been wrong to put his hands on her.
2. The October 14, 2021 Incident
The October 14, 2021 offense conduct was charged in counts 1 and 2 of the first amended information.
On October 14, 2021, K.W. was living in an apartment in Sunnyvale, and Copeland was spending the night there. Copeland had been out late with friends that night, and came home smelling of alcohol. At about 2:00 a.m., Copeland's phone rang, and K.W. answered it. The call was from a woman that K.W. did not know. She told K.W. that she might be pregnant by Copeland. K.W. asked the woman on the phone if she wanted to speak to Copeland. When the woman said she did, K.W. woke up Copeland and told him that his girlfriend wanted to talk to him. When Copeland said that he did not have a girlfriend, K.W. asked the woman her name, which K.W. then told him.
K.W. then went downstairs. Copeland told her, "Bring me my phone before I start breaking shit." At some point, K.W. got a knife from the kitchen, and held it in her sleeve. She felt that she needed the knife for her safety. K.W. never swung the knife at Copeland or stabbed him with it.
When K.W. returned the phone to Copeland, he started yelling that she was crazy. She told him that he needed to get out of her house. That is when Copeland became violent with her. Copeland grabbed the knife from her and cut himself in the process. He then started beating her up by hitting her on the face, choking her by pulling on the collar of her hooded sweatshirt, and throwing her on the floor. Copeland continued to choke her when she was on the ground. She told him that she could not breathe, and then she passed out.
Afterward, K.W. regained consciousness and called her friend, L.P., who lives in Georgia. K.W. called L.P. rather than the police because Copeland was standing over her. L.P. was on the phone with K.W. for about 20 to 30 minutes. L.P. heard Copeland yelling at K.W., and at one point during the call she heard K.W. say to Copeland that he was choking her and she could not breathe. After this, K.W. got back on the phone and told L.P. that Copeland was strangling her and trying to kill her.
L.P. hung up and called K.W.'s mother, and K.W.'s mother called the police. The police dispatcher called K.W., and in that call K.W. lied to the dispatcher and stated that Copeland had left the apartment and that the argument had not been physical. She did that because he was in the room with her at the time.
When the Sunnyvale police responded to the domestic violence call, K.W. whispered to the officers and she appeared to be frightened. Officer Jin Mo Kim saw blood stains around the rim of K.W.'s hooded sweatshirt and on her sweatpants. He also observed bruising around her neck.
K.W.'s mother visited her daughter the next day and saw that she had a black eye and bruises all around her neck. The jury was shown a photograph of K.W.'s face with the black eye, which K.W. stated lasted for three to four weeks.
An investigator from the District Attorney's office interviewed K.W. on June 1, 2022. K.W. told the investigator that during the October 14 incident she felt like she was going to pass out from being strangled. She said she felt like her feet were shutting down, and she could feel Copeland's body weight on her.
3. Expert Testimony on Intimate Partner Battering
Expert witness Richard Ferry testified for the prosecution on intimate partner violence. Ferry is a licensed marriage and family therapist who works with both perpetrators and victims of intimate partner violence.
Ferry provided "jury education testimony" in this case. He did not interview the alleged victim or the defendant, did not read the police report, and had no knowledge of the facts of the case. He described the purpose of his expert testimony as providing the jury with information about the way people who are touched by domestic violence manage their reactions, emotions, and circumstances.
Ferry stated that victims of domestic violence may react differently depending on the setting and how much time has passed since the abuse. For example, some victims cope by shutting down their reactions, and present themselves with a flat affect. Domestic violence victims may engage in paradoxical behavior, meaning that to the outsider the conduct does not make sense in light of the situation the victim is in. An example of this is when someone who has been assaulted returns to her abuser, or refuses to cooperate with the prosecution. The victim sometimes returns to the abuser because she has a reservoir of tender feelings for him, or because she fears that she cannot support herself and her children without him.
Ferry explained that the term "cycle of violence" refers to the interpersonal atmosphere between the victim and the abuser, composed of three phases: the tension- building phase, the acute violence phase, and the contrition phase. Ferry also testified that strangulation is one of the most effective means of exercising control over a partner.
4. Defense
M.R. had been a close friend of Copeland's for about 10 years. He had been around Copeland's girlfriend in the past few years, but did not know her name. One evening about one to two years before the trial, M.R. was hanging out in downtown Redwood City with Copeland, his girlfriend, and a large group of friends. M.R. saw Copeland's girlfriend tug on his sleeve and collar, scratch him, and slap him. It appeared to M.R. that the girlfriend did this because she was trying to make Copeland go home. Copeland reacted by trying to avoid her and distancing himself from her.
5. Rebuttal
The parties stipulated that on September 6, 2014, Copeland was convicted of robbery (§ 212.5, subd. (c)), in San Mateo County. Under California law, robbery is considered a crime of violence.
II. Analysis
A. Admission of Copeland's Robbery Conviction
Copeland argues that that while the record of his prior robbery conviction was admissible as character evidence under Evidence Code section 1103 to rebut defense evidence as to the violent character of the victim, the trial court erred when it determined, under Evidence Code section 352, that its admission was not more prejudicial than probative. The Attorney General contends that the trial court did not abuse its discretion because the probative value of the prior conviction outweighed any potential prejudice as to its admission.
1. The Trial Court's Ruling
In 2014, Copeland was convicted of robbery (§ 212.5, subd. (c)) in San Mateo County. Copeland put the barrel of a realistic-looking BB gun against a victim's head, ordered the victims out of the car, and took their cell phones. He received a six-year prison sentence for that offense, and he was on parole at the time of the offense conduct in this case.
During pre-trial proceedings, the prosecutor stated that she would seek to introduce evidence of Copeland's prior robbery conviction both in the event he testified and under Evidence Code section 1103 if Copeland put on a self-defense claim in which the defense offered evidence of K.W.'s past violence. Copeland asked that the prior robbery be excluded for purposes of impeachment of his potential testimony under Evidence Code section 352, on the basis that it would be more prejudicial than probative. As to admitting the prior conviction as rebuttal to defense evidence offered on K.W.'s violent acts, defense counsel at the pre-trial hearing asked that the evidence of the prior conviction be sanitized and that the underlying facts of the offense not be presented to the jury.
Copeland did not specifically object under Evidence Code section 352 to the admission of evidence of his prior robbery conviction as rebuttal to defense evidence offered on K.W.'s violent acts. He asserts that trial counsel's objection to the admission of the robbery evidence for impeachment purposes was adequate to preserve the argument he makes on appeal, and we agree. The Attorney General does not assert forfeiture as to this issue. Accordingly, we do not address Copeland's alternative argument that he received ineffective assistance of counsel if we were to determine that the argument was forfeited.
The court stated that it would admit the prior robbery for purposes of impeachment, adding that the robbery conviction was a crime of moral turpitude, and that while the conviction was eight years old, "that is not terribly remote." The court also noted that the prior conviction was not similar to the present case, and it stated that it would give appropriate instructions to the jurors as to how they could use evidence of the prior conviction. The court ruled that if Copeland were to testify and sought to admit evidence of K.W.'s violent conduct, then the prosecutor would be able to question him as to the underlying facts of the robbery, including that he used a BB gun. The court said with respect to Evidence Code section 352 and impeachment, that "to sanitize [the facts of the prior conviction] would do an injustice to the state of the situation with either party's act of violence." The prosecutor then stated that if Copeland did not testify, she would move to introduce solely the certified record of the robbery as rebuttal evidence. The court stated that this would be acceptable.
At trial, Copeland did not testify, but the defense presented evidence about the incident in which K.W. allegedly hit Copeland and acted physically aggressive towards him. In rebuttal, the district attorney presented the stipulation that on September 6, 2014, Copeland was convicted of robbery, and that under California law, that conviction was considered a crime of violence.
In her closing argument, defense counsel argued that K.W. may have been the aggressor in the October 14, 2021 incident, and that Copeland had been acting in selfdefense when he struck K.W.
2. Applicable Legal Principles
Evidence Code section 1101, subdivision (a) provides that "evidence of a person's character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1103 sets forth an exception to this general rule. It states, in relevant part: "[i]n a criminal action, evidence of the character or a trait of character . . . of the victim of the crime for which defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: (1) offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a).) Under this provision, in a prosecution for homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim had a violent character and was the aggressor in the offense. (People v. Wright (1985) 39 Cal.3d 576, 587 (Wright); People v. Shoemaker (1982) 135 Cal.App.3d 442, 446.)
Under Evidence Code section 1103, subdivision (b), when a court admits evidence of a victim's character for violence, the prosecutor may in turn offer evidence of the defendant's character for violence. As stated in that provision, "In a criminal action, evidence of the defendant's character for violence or trait of character for violence . . . is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (Evid. Code, § 1103, subd. (2)(b).) "In other words, if . . . a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence demonstrating that . . . the defendant was a violent person, from which the jury might infer it was the defendant who acted violently." (People v. Fuiava (2012) 53 Cal.4th 622, 696 (Fuiava).)
"The admission of such character evidence, however, is not without bounds, but is subject to the dictates of Evidence Code section 352." (Wright, supra, 39 Cal.3d at p. 587.) A trial court "may exclude otherwise admissible evidence pursuant to Evidence Code section 352 if admitting the evidence would have confused the issues at trial, unduly consumed time, or been more prejudicial than probative." (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828 (Gutierrez).)
"A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 374.) Under the abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Wilson (2021) 11 Cal.5th 259, 304.)
3. Analysis
Copeland acknowledges that the prosecutor's evidence of his prior act of violence was admissible under Evidence Code section 1103, subdivision (b) because the defense opened the door for the prosecution to present evidence of his violent character by presenting prior acts of violence by K.W. (See Fuiava, supra, 53 Cal.4th at p. 694.) He contends, however, that the court abused its discretion in applying Evidence Code section 352 because the evidence was highly prejudicial and had little probative value. We conclude that evidence of Copeland's prior conviction for robbery was highly relevant to rebut his self-defense theory that K.W. was the aggressor in the domestic violence incidents, and that the probative value of this evidence outweighed any prejudice from its admission.
Copeland contends that evidence of his prior conviction was not adequately probative of his character for violence because the robbery was not similar to the offense conduct that he was accused of committing in this case. But there is no requirement in Evidence Code section 1103 that the evidence of the defendant's character for violence be similar to the charged act for it to be admissible. (Evid. Code, § 1103, subd. (b).) Evidence Code section 1103, subdivision (b) explicitly states that evidence of a defendant's character for violence is not made inadmissible by Evidence Code section 1101 when, as here, the conditions set forth in that subdivision are met.
Copeland's reliance on People v. Wright for the assertion that similarity between the underlying crime and the evidence offered under Evidence Code section 1103, subdivision (b) is a factor in measuring the probative value of the evidence under Evidence Code section 352 is misplaced. In Wright, the trial court allowed the defendant, who was presenting a self-defense case in his murder trial, to present evidence that the victim had violently resisted arrest two years earlier, but the court did not allow any reference to the fact that the victim had been using heroin at the time of this incident. (Wright, supra, 39 Cal.3d at pp. 586-587.) Wright contended on appeal that the court erred in excluding additional evidence that the victim was under the influence of heroin during the resisting arrest offense. (Id. at p. 586.) In affirming the trial court's ruling, the Supreme Court noted that the victim's behavior when resisting arrest could be explained by circumstances other than being under the influence of heroin, and that the circumstances of his arrest and his death in the case at hand were almost entirely lacking in similarity. (Id. at p. 587.) While the court agreed with defendant that the victim's violent behavior at his prior arrest was probative of his character for violence, the fact that the victim was under the influence of heroin did not tend to prove that defendant acted in self-defense. (Ibid. ["the victim's condition at the time of the 1979 arrest was of little if any probative value in supporting the claim of self-defense"].) We thus do not read Wright as requiring a close degree of similarity between the offense conduct being tried and the prior incident offered under Evidence Code section 1103; rather, the determination of probative value under Evidence Code section 352 turns on whether the proffered evidence tends to prove the defendant's character for violence.
Copeland additionally argues that his prior burglary conviction is not probative of his character for violence because robbery can be committed by fear and without force. Well-established law holds otherwise. "Robbery is defined in section 211 as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' Robbery is a crime of violence committed against a person." (People v. Scott (2009) 45 Cal.4th 743, 749.) Section 212 defines the term "fear" as used in section 211: "The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.) Robbery committed by fear incorporates the threat of force and injury, and evidence of a conviction for robbery is therefore probative of a character for violence and physical aggression.
The robbery conviction's probative value here was not substantially outweighed by any potentially prejudicial effect of its admission. Evidence is prejudicial within the meaning of Evidence Code section 352 if it" 'uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues.'" (Wright, supra, 39 Cal.3d at p. 585, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) "Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant." (People v. Doolin (2009) 45 Cal.4th 390, 438.)
Here, Copeland makes assertions about the generally prejudicial nature of evidence of other crimes without explaining why the evidence of his prior conviction is particularly prejudicial here. We agree with the Attorney General that the evidence of the prior conviction as submitted to the jury here was not inflammatory, in that it was sanitized such that it did not include the details of the offense, including the fact that Copeland held a realistic-looking BB gun to the head of a victim. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [the potential for prejudice is decreased where evidence of the uncharged act is less inflammatory than that of the charged offenses].) The evidence of the prior conviction here was not unduly prejudicial.
For these reasons, we conclude that the trial court did not abuse its discretion in admitting the evidence of the prior robbery as rebuttal character evidence under Evidence Code section 1103.
B. Instruction on Use of Expert Testimony in Intimate Partner Battering
Copeland argues that the court prejudicially erred in instructing the jury with CALCRIM No. 850 because that instruction conflicted with the requirements of Evidence Code section 1107 and lowered the prosecution's burden of proof. The Attorney General contends that CALCRIM No. 850 does not permit the jury to forego a determination of the victim's truthfulness by relying on the expert's testimony, and therefore the court did not err in giving this instruction.
Defense counsel did not object to the prosecutor's request for CALCRIM No. 850, or seek a modification of the instruction. The court gave the instruction as follows:
The Attorney General does not raise forfeiture of this issue in his brief.
"You have heard testimony from Richard Ferry regarding the effect of intimate partner battery. Mr. Ferry's testimony about intimate partner violence is not evidence that the defendant committed any of the crimes charged against the defendant. You may consider this evidence only in deciding whether or not [K.W.'s] conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony."
This court reviews a claim of instructional error de novo. (People v. Sexton (2019) 37 Cal.App.5th 457, 466 (Sexton).) In assessing the propriety of instructions, "[w]e look to the instructions as a whole and the entire record of trial, including the arguments of counsel." People v. Quinonez (2020) 46 Cal.App.5th 457, 465.) Generally, an instruction may not be challenged on appeal unless the party made an appropriate objection at trial. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) "But a challenge may be raised where the claim, like [appellant's] here, alleges that the instruction was not correct in law or affected the defendant's substantial rights." (Sexton, at p. 466.)
Section 1107 of the Evidence Code addresses the admissibility of expert testimony related to intimate partner battering and its effects. Subdivision (a) of that section states: "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 acts or acts of abuse which form the basis of the criminal charge." (Evid. Code, § 1107, subd. (a), italics added.)
Copeland's contentions regarding CALCRIM No. 850 have been squarely addressed and rejected by this and other courts. In People v. Brackins (2019) 37 Cal.App.5th 56, 70 (Brackins), the defendant on appeal claimed that the court erred in giving the instruction because it told the jury that it could use the testimony of the expert on intimate partner violence to evaluate the believability of the victim's testimony. Defendant argued that the use of the expert's testimony to evaluate the victim's believability amounted to using the testimony to prove the occurrence of the offense conduct, in violation of Evidence Code section 1107. (Brackins, at p. 71.) We rejected this premise. "If the expert testimony was not related in some way to whether the abuse occurred, it would be irrelevant. Expert testimony may not be improperly used to directly determine whether the abuse occurred. But like much of the other evidence that comes in at a trial, it may be used indirectly to assist the jury in evaluating whether the alleged victim's statements are believable." (Ibid.)
Similarly, in Sexton, the defendant argued that the language in the last line of CALCRIM No. 850, which told the jury to consider the expert testimony in "evaluating the believability of [the alleged victim's] testimony," would cause the jury to infer that because the expert had described behaviors that matched those of the victim, the victim "must have been telling the truth when she testified to the abuse and lying when she denied it." (Sexton, supra, 37 Cal.App.5th at p. 467.) The court in Sexton rejected this assertion, and determined that the instruction told the jury to use the expert testimony "to help ground its analysis of the consistency of the complaining witness's conduct," and then use this "consistency" analysis in its general analysis of the believability of the complaining witness's testimony. (Ibid.) The court concluded that "[r]easonable jurors would not understand the instruction to mean that if they find the characteristics of intimate partner battering to be satisfied, this indicates that [the victim] was necessarily telling the truth." (Id. at p. 468.)
Copeland acknowledges that Brackins and Sexton have rejected the same challenges he makes to CALCRIM No. 850, but he asserts that the two cases were wrongly decided. In support, he cites People v. Housley (1992) 6 Cal.App.4th 947 (Housley). But in Housley the court held that a sua sponte limiting instruction containing language similar to that in CALCRIM No. 850 was required when offering expert testimony that victims of child sexual abuse commonly and falsely recant their stories of abuse. (Id. at pp. 958-959.) The Housley decision does not support Copeland's contention that the court erred in giving CALCRIM No. 850 to the jury in this case.
We agree with the analysis of Brackins and Sexton and see no reason to depart from the holdings in those cases. We therefore determine that the trial court's use of CALCRIM No. 850 neither ran afoul of Evidence Code section 1107's proscription against offering expert testimony to prove the occurrence of intimate partner violence, nor impermissibly lowered the prosecution's burden of proof.
Because we find no error as to the admission of the robbery conviction or the court's use of CALCRIM No. 850, we need not reach Copeland's contention that cumulative error from the trial warrants reversal.
III. Disposition The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, J.