Opinion
C079128
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. TONY MARSHALL COX, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F7559)
Defendant Tony Marshall Cox appeals from multiple criminal convictions arising out of confrontations with his former wife and her boyfriend. He contends (1) insufficient evidence supports his conviction for robbing his former wife's cell phone; (2) the jury instruction for robbery erroneously described the crime's elements, and his counsel rendered ineffective assistance for not objecting to the instruction; and (3) the trial court prejudicially erred by not instructing sua sponte on expert witness opinion. We affirm the judgment with directions to prepare a corrected abstract of judgment.
FACTS
Defendant and his ex-wife (hereafter referred to as mother) were married for approximately seven years before divorcing in 2005. They had two children together, a daughter and a son. Defendant physically abused mother and daughter towards the end of the marriage.
Defendant harassed mother long after the divorce. Violating numerous restraining orders, he would discover where she and the family lived, show up uninvited, and refuse to leave when asked. On 20 to 30 occasions, he attempted to enter mother's home forcefully. For example, when mother lived in Utah, defendant showed up and threatened her then-boyfriend. In 2011, defendant visited daughter at work and assaulted a man in the bathroom, costing daughter her job. He also threatened daughter's boyfriend. Defendant parked outside mother's apartment in a minivan. She hid inside her apartment for three days. In 2013, he forced himself into mother's home, picked her up with one arm, and threw her down. In August 2014, he followed mother and her boyfriend, Jerry, into a parking lot and punched Jerry once or twice in the face. Whenever he found the family, they would move. They moved 14 times in three states over 11 years.
In 2014, mother lived in Redding. In April of that year, the Shasta County Superior Court issued a restraining order against defendant, requiring him not to have any personal, electronic, telephonic, or written contact with mother or to come within 100 yards of her. The order was valid for three years. However, on August 10, 2014, defendant appeared at mother's home and ordered her to open the door. She refused. Mother called 911 and told the dispatcher that defendant was trying to enter her home through a bedroom window. Police arrested defendant, and he later pleaded no contest to one count of stalking. (Pen. Code, § 646.9, subd. (a).)
Defendant did not appeal from this conviction (case No. 14F4883).
Undesignated references to sections are to the Penal Code.
The current offenses occurred between December 3 and 10, 2014. When mother returned home on December 3, 2014, she found defendant inside the house sleeping on her couch. She contacted police, and they arrested him.
Defendant appeared at mother's home on December 6. Mother told him to leave or she would call the police. He refused, so she grabbed her phone to call and began to dial 911. He grabbed the phone away from her hand. He told her she "wasn't getting the phone back." He told her, "You realize I have to kill you. It's Christmas. Everything is your fault. I haven't hurt you in a while." Defendant stayed at the house until evening and then left.
Defendant returned later around 11:00 p.m. He told mother he would give her back her phone if she would talk with him. She told him to leave the phone there and go, but he persisted. She let him in to get her phone.
Around 2:00 a.m. on December 7, Jerry, mother's boyfriend, arrived at mother's house. From the driveway, he heard defendant and mother arguing. He called the police. As he opened a gate in front of the house, defendant came "flying out the door." Jerry closed the gate, but defendant came over it. Jerry grabbed a metal breaker bar from his toolbox and swung it at defendant. They wrestled until defendant got on top of Jerry, pinned his arms down, and punched him in the face several times. Defendant also attempted to strangle Jerry, and he pushed his fingers into Jerry's left eye.
Mother ran out the door screaming. She grabbed defendant by the neck and pulled him off. Jerry grabbed a large knife, kneeled over defendant, and placed the knife next to defendant's genitals. Defendant said if Jerry stuck around, he would kill him. Jerry told defendant he would do the same. Defendant got up and ran away.
Jerry went to the hospital by ambulance. His nose was pointed to the right side of his face, his left eye was significantly swollen, and his face was bloodied.
Defendant returned to mother's house on December 10. He told mother, "You realize I have to kill you now; right?" Mother believed defendant would kill her. When he went into the bathroom, she called 911. Multiple officers responded to the scene. At the bathroom door, they ordered defendant to surrender numerous times. When defendant continued to refuse, officers broke down the door and ordered him to the ground. Defendant refused to go to the ground. The officers used force to take him down, and again had to use force to handcuff him.
PROCEDURAL HISTORY
A jury found defendant guilty of assault likely to cause great bodily injury (§ 245, subd. (a)(4)); first degree robbery (§ 211); two counts of first degree burglary (§ 459); two counts of criminal threats (§ 422); one count of stalking (§ 646.9, subd. (b)); and numerous misdemeanors. (§§ 148, subd. (a)(1), 273.6, subd. (a), 602.5.) The jury also found true for purposes of the assault count that defendant personally inflicted great bodily injury. (§ 12022.7.)
The trial court sentenced defendant in this case and in case No. 14F4883 to incarceration for a term totaling 10 years, calculated as follows: the middle term of three years for the assault plus an additional three years for the enhancement; one year four months for the robbery (one-third the midterm), one year four months for one of the burglary counts (one-third the midterm), eight months for one of the criminal threats counts (one-third the midterm), and eight months for stalking in case No. 14F4883, all terms to be served consecutively. The court imposed and stayed sentencing under section 654 on the second burglary count, the second criminal threats count, and the second stalking count.
DISCUSSION
I
Sufficiency of Evidence of Robbery
Defendant contends insufficient evidence supports his conviction of robbing mother of her cell phone on December 6, 2014. He asserts the evidence is insufficient to prove he intended to deprive mother of her phone permanently since he returned the phone to her later that evening, and the phone did not diminish in value during the time he possessed it. We disagree with his contentions.
" 'Robbery is 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.' (§ 211.) At base, robbery is a theft coupled with the use of force or fear to obtain the property—theft being defined in relevant part by section 484, subdivision (a) as a 'felonious' taking of 'the personal property of another.' (See People v. Tufunga (1999) 21 Cal.4th 935, 946-948 [use of 'felonious taking' language in § 211 incorporated requirements of theft that robber intend to take property belonging to someone else].)
"Although the intent for theft (and hence, for robbery) has at times . . . been described as the intent to permanently deprive, that is not an accurate description of the required mens rea. In People v. Avery (2002) 27 Cal.4th 49 (Avery), . . . the California Supreme Court held that 'the language in section 484, subdivision (a), referring to an intent to "feloniously steal," reasonably construed, adopted the common law intent requirement. That requirement, although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.' (Id. at p. 58; see People v. Bacon (2010) 50 Cal.4th 1082, 1117.) Indeed, the Avery court described such intent as ' "equivalent to the intent to permanently deprive an owner of property." ' (Avery, supra, 27 Cal.4th at p. 57.)" (People v. Aguilera (2016) 244 Cal.App.4th 489, 500 (Aguilera).)
The taking of a cell phone to deny its owner the opportunity to call the police meets the Avery definition of intent to feloniously steal. (Aguilera, supra, 244 Cal.App.4th at pp. 501-502.) In Aguilera, Division Four of the Second Appellate District held a husband's taking of his wife's cell phone to prevent her from calling the police as he assaulted her was sufficient evidence to establish he took the phone with felonious intent. With reasoning that applies well to this case, the court stated: "Our conclusion that a spouse can be convicted of robbery for the forcible taking of community property from the other spouse on a temporary taking theory largely disposes of defendant's contention that the evidence was insufficient to support his robbery conviction. The evidence showed that defendant took the white phone to prevent [his wife] from calling the police in the midst of his violent assault on her. That evidence was certainly sufficient to prove that the defendant took the phone with the intent to deprive [his wife] of it temporarily, but for an unreasonable period of time so as to deprive her of a major portion of its value or enjoyment. As the prosecutor aptly observed in argument to the jury, calling 911 for help during a violent assault is probably 'the most important call you could make,' and defendant's taking the phone from [his wife] under those circumstances undoubtedly deprived her of a major portion of the value or enjoyment of the phone." (Ibid.)
Here, defendant took mother's phone as she attempted to call 911 because he had entered her home without permission and in violation of a restraining order. When he took the phone, he told mother she was not getting it back. He did not return the phone until he returned later that night. Even then, he returned it conditionally, thus violating the outstanding judicial restraining order. During this time, mother was unable to call the police or anyone to remove defendant from her property or prevent him from harming her or her son. As the prosecutor argued to the jury, "[s]he couldn't even use it for its most basic function, to call for help." This evidence sufficiently established defendant intended to deprive mother of her phone temporarily but for an unreasonable time so as to deprive her of a major portion of its value or enjoyment.
Defendant contends the fact he ultimately returned the phone to mother, although he did so based on an unlawful condition, demonstrates he did not intend to deprive her of it permanently. He also claims the phone lost none of its value during the time he possessed it. Neither point persuades us. That defendant ultimately returned the phone does not compel the conclusion he did not intend to possess it permanently when he took it. Section 211 requires a finding that defendant intended to possess the phone permanently either before or during the theft. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.) Defendant told mother when he took the phone she would not be getting it back. This is sufficient evidence of his intent to deprive her of her phone permanently. His subsequent return of the phone does not change the intent he harbored when he robbed her. (See People v. DeLeon (1982) 138 Cal.App.3d 602, 606 [subsequent abandonment of stolen car does not establish defendants intended to deprive the car's owner only temporarily].)
Moreover, the phone's value was not just its fair market value, as defendant infers. The phone had a particular value in allowing its owner to contact police when exposed to danger. Its value was in being able to be used when it was needed most. In Avery, the Supreme Court used diamonds, strawberries, and lawn mowers as examples to explain how a property owner could be deprived a major portion of an item's value or enjoyment for purposes of determining felonious intent in temporary takings. The high court noted there was a difference in taking diamonds and strawberries with the intent to return them in two weeks. A diamond, unless damaged, would still be in the same condition, but the strawberries likely would have gone rotten. Unlike the owner of the strawberries, the diamond owner would not have been deprived the main value of her property. (Avery, supra, 27 Cal.4th at p. 56.) In comparison, taking a neighbor's lawn mower for the summer with the intent to return it in the fall would deprive the owner of its primary economic value. (Ibid.) Contrary to defendant's argument, mother's phone is more akin to the lawn mower than a diamond. Her cell phone's primary value was in being able to communicate, particularly when needing to summon the police for help and protection. Defendant's denial of this value under the circumstances here was sufficient evidence from which a jury could determine he intended to deprive mother of her phone permanently, i.e., temporarily but for an unreasonable time so as to deprive her of a major portion of the phone's value or enjoyment. Accordingly, the robbery conviction stands.
II
Robbery Jury Instruction
Defendant contends the trial court erred when it instructed the jury using CALCRIM No. 1600, the form instruction for the crime of robbery. He argues the instruction misstates the crime's element of intent. It does not.
CALCRIM No. 1600, as given by the trial court, states defendant is guilty of robbery if the prosecution proves, among other elements, that "[w]hen the defendant used force or [fear] to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of that property." Defendant claims this language was misleading for it allowed the jury to find him guilty of robbery if it concluded he denied mother of the phone for a temporary period of time. He argues for a taking to be robbery, the denial of a property's major value, use, or enjoyment must be permanent.
It is defendant who misstates the intent element of robbery, not CALCRIM No. 1600. The instruction mirrors the requirements of the intent element established by Avery. As already stated, the Supreme Court in Avery announced the intent element could be satisfied in cases of temporary takings as follows: "We now conclude that an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment satisfies the common law, and therefore California, intent requirement." (Avery, supra, 27 Cal.4th at p. 55.) This is what CALCRIM No. 1600 says. Nothing in Avery indicates the Supreme Court meant the denial of a property's major value, use, or enjoyment must be permanent. Indeed, the court used the example of the lawn mower returned at the end of summer to illustrate a robbery, even though the denial of the mower's major value, use, or enjoyment was not permanent. CALCRIM No. 1600 does not misstate the law.
Because we rule on this claim's merits and reject it, we do not address defendant's contention his trial counsel rendered ineffective assistance by not objecting to CALCRIM No. 1600.
III
Not Instructing on Expert Witness Opinion
Section 1127b requires a trial court to instruct sua sponte on the weight of expert testimony whenever it admits expert opinion into evidence in a criminal proceeding. The failure to so instruct is not prejudicial "unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given." (People v. Reeder (1976) 65 Cal.App.3d 235, 241.) In this matter, the trial court admitted expert testimony but failed to instruct the jury as required by section 1127b. Based on our review of the record, we conclude the error was not prejudicial.
Section 1127b reads: "When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given."
Mike Wallace, an investigator in the district attorney's office, testified in two capacities. He testified as an active investigator in this case and also as an expert witness on domestic violence. Although neither the prosecutor nor the court designated Wallace as an expert witness, he testified to his experience and qualifications in the field of domestic violence, qualifying him as an expert under Evidence Code section 720. He testified that, among other things, domestic violence victims often recant, stay in relationships with their abusers, and minimize the abuse and violence they suffer. He described the "cycle of violence" a domestic violence victim will often experience. The victim will suffer abuse but will return to the abuser, believing that the violence will end. Wallace also explained an analytical diagram called the "power-and-control wheel," which illustrates how the abuser might use various methods and tactics to control the victim. Theses methods and tactics may explain why a victim stays in the abusive relationship.
The court did not instruct the jury with CALCRIM No. 332, the form instruction on expert testimony, nor any other instruction on expert testimony. This omission violated the duty section 1127b imposed on the court.
Nevertheless, we conclude the error was harmless. We do not consider jury instructions in isolation. Rather, we consider the entire charge to the jury to determine whether instructions were correct and adequate. (People v. Holt (1997) 15 Cal.4th 619, 677.) From this perspective, we hold the trial court adequately instructed the jury based on all of the instructions it gave. The court instructed the jury with CALCRIM No. 226, which instructed the jury on how to evaluate witness testimony. This instruction broadly and similarly instructed the jury as CALCRIM No. 332 would have done. Like CALCRIM No. 332, which incorporates CALCRIM No. 226 and instructs the jury to follow instructions about the believability of witnesses generally in evaluating the believability of an expert witness, CALCRIM No. 226 instructed the jury to judge the credibility or believability of the witness. Like CALCRIM No. 332, which instructs the jury that the meaning and importance of an expert's opinion are for it to decide, CALCRIM No. 226 instructed the jury to use its common sense and experience to decide which testimony it found true and accurate and how much of the witness testimony it believed. Additionally, similar to CALCRIM No. 332, which instructs the jury to consider the expert's opinion but states it is not required to accept the opinion as true or correct, CALCRIM No. 226 instructed the jury to consider the testimony of each witness and decide how much of the testimony it believes, noting that the jury may believe "all, part, or none of any witness's testimony." Finally, CALCRIM No. 226 adequately equipped the jury to evaluate Wallace's testimony because it broadly instructed the jury to consider anything that reasonably tends to prove or disprove the truth or accuracy of his testimony.
The trial court also instructed the jury with other instructions that informed the jury how to evaluate Wallace's testimony. It instructed the jury with CALCRIM No. 200, which informed the jurors they must decide the facts of the case and that the jury alone must decide what happened. CALCRIM No. 200 also instructed the jury to consider all of the jury instructions together, and to consider them equally. The court further instructed the jury with CALCRIM No. 301, which states that the testimony of only one witness can prove any fact, and CALCRIM No. 302, which instructs the jury on how to deal with conflicting evidence. Considering the case in light of all of the jury instructions the court gave, we conclude the court adequately instructed the jury on how to evaluate Wallace's testimony. The jury would have reached the same verdict had it been instructed with CALCRIM No. 332. There was no prejudicial error.
IV
Abstract of Judgment
We note the felony abstract of judgment has an error. It incorrectly lists count A4, a violation of section 211, as a first degree burglary instead of robbery.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is ordered to prepare a corrected abstract of judgment making the following correction: state that count A4, a violation of section 211, is the crime of robbery. The clerk is instructed to forward the corrected abstract to the Department of Corrections and Rehabilitation.
NICHOLSON, J. We concur: BUTZ, Acting P. J. DUARTE, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------