NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F5099)
Following a jury trial, defendant Willie Dixon Weekly was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) with an enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (e)), forcible oral copulation (§ 288a, subd. (c)(2)), and two counts of battery on a spouse, a misdemeanor (§ 243, subd. (e)(1)). The trial court sentenced defendant to 10 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends instructing the jury with CALCRIM No. 850 regarding expert testimony on domestic violence impermissibly lowered the prosecution's burden of proof. He further contends the upper term on the assault offense was an abuse of discretion as the trial court made improper findings as to one aggravating factor and failed to accord proper weight to the mitigating evidence. In a supplemental brief, he contends the matter should be remanded for a hearing on his ability to pay various mandatory fines pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
CALCRIM No. 850 does not lower the burden of proving defendant's guilt. The sentence was not an abuse of discretion. With respect to the mandatory fines imposed in this case, we conclude no remand is necessary. We shall affirm.
A. Prosecution Case
Defendant and K.W. met in Illinois in March 2015, married that August, and subsequently lived together in her home in Peoria. Their relationship changed soon after marriage, as defendant was unfaithful, was absent for extended periods, and displayed control issues. He told K.W. that he owned her and had women trained to act in certain ways, such as not speaking to other men. Defendant got angry and upset when K.W. did not comply.
In March 2016, K.W. began questioning defendant about his infidelity issues. Defendant took her upstairs and said he was going to punish her. When they got upstairs, defendant forced anal sex on K.W. This scared K.W. but she still loved her husband very much.
Defendant resumed using force on her in April 2016. Once, while K.W. was driving, defendant asked if she had told anyone about the drugs in the attic. After K.W. said no, defendant threw her phone out of the car window and punched her on the right side of her body. Defendant then broke the car mirror and told her to drive home. When they arrived home, defendant shut the garage door and dragged K.W. into the house by her hair.
Defendant took K.W. to her bedroom, put her on the bed, put his hands around her neck, and choked her. Defendant picked up two knives, holding one in each hand. He started to punch and kick her, but did not touch her with the knives. Defendant eventually cut himself and started bleeding. He let K.W. leave the room when she asked if she could get something to stop his bleeding. She then fled the house by taking the car and driving through the garage door. When K.W. returned the next day, defendant apologized and was loving again, so they reconciled.
Two days after the attack, defendant threw away K.W.'s cell phone and they drove to St. Louis to visit his family, where she, at defendant's direction, said her bruises came from a car accident. Next, they visited defendant's friend in Alabama, where they had a recommitment ceremony, and then returned to Illinois. Defendant verbally abused K.W. during the entire trip.
Defendant continued to verbally and mentally abuse K.W., as well as use force against her, from March through May of 2016. K.W. and defendant eventually flew to Sacramento and, in May 2016, rented a home on four and a half acres in Palo Cedro. The physical abuse subsided but the verbal and mental abuse continued in California. They began attending church regularly but did not socialize much outside of church. Defendant was charming again, but had mood swings where he would become very angry and verbally abusive.
K.W. was sitting outside their house in a folding chair, waiting to go to church on the morning of July 17, 2016, when she heard defendant was on the phone and very upset. A screaming defendant came up behind K.W. and slammed her onto the pavement. He pulled K.W. up, ripping her dress. Defendant then took K.W. to the shallow end steps of their pool, pushed her into the pool, and held her head underwater. Defendant then pulled K.W. out by her arms.
Defendant pulled K.W. up the steps and inside the house through the side door. He then grabbed K.W. by the neck and began strangling her, causing her to lose consciousness, urinate herself, and fall to the floor. When she came to, K.W. was on the floor with defendant on top of her, punching her in the arms and chest. During the attack, defendant slashed K.W. in the forehead with his finger. She was scared for her life and thought defendant was going to kill her. Defendant spit in her face and eventually told K.W. to go to the bedroom. He calmed down, drew her a bath, and gave K.W. her bible. After the attack, K.W. had marks on her neck, it was hard to swallow, and she had bruising and headaches.
K.W. did not report the incident to the police because defendant was her husband and she was afraid. Defendant had threatened to kill K.W and bury her in the backyard. He had made ongoing threats against K.W.'s children and her family. Defendant also told K.W. she could not hide from him.
K.W. has three adult children.
About a week later, K.W. told her father about the July 17 attack when he visited her. Defendant came outside when she was talking to her father. He told K.W. to go inside and book a flight home for her father, cutting short the visit.
Defendant forced K.W. to perform oral sex on him on the night of July 26. K.W. drove to a hospital the next day because she felt like ending her life. While K.W. first had the nurses call defendant, she eventually told them about her relationship with him. She became afraid when the nurses told her they were mandated reporters. K.W. did not want the nurses to call the police, but they did so anyway. The deputies who arrived had her make a pretext call to defendant, who denied making the attacks, got angry with her, and told her not to call him again.
K.W. went to a women's shelter when she left the hospital. Defendant had been texting her in the hospital and kept doing so when she was in the shelter. On July 31, she called the sheriff's office and told them to meet her at the home she shared with defendant so she could get some of her belongings. She then went to the residence with A.M., a friend she met at the shelter.
K.W. and A.M. waited for sheriff's deputies when she arrived at her home. When no one showed up after a few hours, K.W., thinking defendant was not in the house, decided to go in. A.M., who was outside, went in the house when she heard screaming. Defendant was there, hostile and twisting K.W.'s arm as the two were coming down the stairs. A.M. left after defendant told her she needed to leave and threatened to kill her.
Defendant grabbed K.W.'s hand to take off her wedding ring, spraining her finger. K.W. ran outside after defendant pushed her down the stairs. She made it to her car, but defendant followed her. Defendant reached into K.W.'s car and took her cell phone. K.W. and A.M. then fled from the house to the church.
Later, K.W. received Facebook messages from an account associated with defendant. The messages, which K.W. believed were written by defendant, said: "Dead bitch. You're dead. I promise every nigga I know, your kids, family, everyone, you're fucking dead, bitch. Your kids, everyone, dead. Dead. Dead. . . . Fuck ya'll is online bitch all over you here I swear you not making you - making high kids. It's on, I swear to you nothing will stop it until done, and somebody has to pay. I promise paying." K.W. felt threatened by this as she believed defendant would follow through with his threats.
Investigator Mike Wallace of the Shasta County District Attorney's Office testified as an expert on domestic violence, nonfatal strangulation, and why domestic violence victims stay with their abusers.
According to Investigator Wallace, it is fairly common for victims to recant, minimize their abuse, or help the abuser. There is often a cycle of violence in which tension builds, leading to an acute battering or violent episode. A honeymoon period in which the abuser expresses remorse generally follows the violent outbreak. The victim typically takes care not to set off the abuser during the honeymoon period, which leads to another stage of building tension.
An abuser employs many tactics to retain power and control over the victim in what is known as the power and control wheel. These methods include: intimidation, isolation, emotional abuse, minimizing or blame shifting, using children, using male privilege, economic abuse, and threats.
He explained that strangulation does not always have visible signs. A person being strangled can lose consciousness after 10 seconds and involuntarily urinate after 15 seconds. If a person being strangled loses consciousness and then involuntarily urinates, it is a sign of a significant strangulation event with asphyxiation.
After interviewing K.W., Investigator Wallace had the opinion that defendant used intimidation, emotional abuse, isolation, and minimizing blame in abusing K.W. He also used threats and prevented K.W. from keeping a job, resulting in economic abuse.
K.W.'s mother testified that she had frequent contact with K.W. until her daughter met defendant, after which K.W. was isolated and would not talk to her mother that often. K.W. had changed her phone number, preventing K.W.'s mother from contacting her.
In May 2016, K.W.'s mother received a phone call from a number associated with K.W. Defendant, thinking she was K.W., was screaming. He said, " 'If you do not get up here now, you are going to get what you got yesterday.' " Defendant, still thinking he was talking to K.W., said he was going to hurt her. He hung up after realizing he was not talking to K.W. K.W.'s mother then texted an apology to defendant. He replied by texting her a picture of K.W. with a black eye. B. The Defense
Diane kept attendance at Palo Cedro Community Church, where she was a member. Defendant and K.W. were present at a bible study on July 17, 2016. K.W. pushed her chair away from defendant during the study, but Diane could not recall observing any injuries on K.W.
Craig, the pastor at Palo Cedro Community Church, was friends with defendant, who attended the church with K.W. Based on the church's attendance logs, he believed defendant and K.W. were at the church on July 17, 2016. Defendant helped another member with her car after bible study that day. He did not recall anything out of the ordinary between K.W. and defendant on that day, and did not recall K.W. complaining of any injury.
K.W. and A.M. attended the church on July 31, 2016. After speaking with K.W., Craig called defendant with K.W.'s phone. Defendant was aggressive and cursing when he answered the call, and eventually hung up.
A. CALCRIM No. 850
Without objection, the trial court instructed the jury with CALCRIM No. 850 as follows: "You have heard testimony from Investigator Michael Wallace regarding the effect of domestic violence. Investigator Wallace's testimony about the effects of domestic violence 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 K.W.'s conduct was not inconsistent with the conduct of someone who has been abused in evaluating the believability of her testimony."
Defendant contends this instruction, by advising the jury it could use the expert testimony to evaluate K.W.'s credibility, lowered the prosecution's burden of proof by "using expert testimony to counter the complaining witness's believability and thus prove the truth of the numerous charges" depriving him of his right to due process under the state and federal constitutions.
"Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818." (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) There was no error here, let alone an error resulting in a miscarriage of justice.
Evidence Code section 1107, subdivision (a) 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 act or acts of abuse which form the basis of the criminal charge."
This provision properly allows the jury to be educated by expert opinion regarding matter's relevant to the complaining witness's credibility in a domestic abuse case while at the same time preventing the expert testimony from being used as evidence of the accused's guilt. (See People v. Riggs (2008) 44 Cal.4th 248, 294 ["Without expert testimony explaining that an abused person's . . . failure to leave the perpetrator . . . is consistent with a psychological syndrome caused by the abuse, the jury might have mistakenly believed the only reasonable explanation for [the abused person's] failure to do these things was that defendant's statements to the police and his defense at trial were true"]; People v. Gadlin (2000) 78 Cal.App.4th 587, 594 [evidence may be admissible to explain a victim's "reunion" with her abuser, despite her "cooperation with the prosecution at the trial"]; People v. Housley (1992) 6 Cal.App.4th 947, 957 ["Because juries may accord undue weight to an expert's opinion, special care must be taken to insure the jury understands its duty to independently assess the expert opinion along with and in light of all other relevant evidence"].)
CALCRIM No. 850 carries out this mandate by explicitly informing the jury that the expert testimony on domestic violence cannot be used as evidence that defendant committed any of the charged crimes. It correctly limits the expert testimony to helping the jury assess the complaining witness's credibility. Furthermore, the instruction takes no position on the complaining witness's credibility, telling the jury it may use the expert testimony only in deciding "whether or not" the witness's actions were consistent with an abused person in determining the complaining witness's credibility. This does not tell the jury to find K.W. credible and accordingly did not lower the prosecution's burden of proof. B. Upper Term Sentence
The trial court imposed an upper term of four years on the assault count, finding two aggravating factors; that the crime involved great violence, and that defendant engaged in violent conduct which poses a danger to society. (Cal. Rules of Court, rule 4.421(a)(1), (b)(1).) Defendant asserts the upper term was an abuse of discretion since the aggravating factors were improper in light of both the great bodily injury enhancement attached to the crime as well as the nature of the assault offense, and because the court did not give proper weight to the strong mitigating evidence in this case. We disagree.
We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on "any aggravating circumstance" the court deems significant so long as it is " 'reasonably related to the decision being made.' " (Id. at p. 848.) A court abuses its discretion if it relies on circumstances not relevant to the decision or that "constitute an improper basis for decision." (Id. at p. 847.)
Defendant's claim is forfeited by trial counsel's failure to object at trial. (See People v. Gonzalez (2003) 31 Cal.4th 745, 751 ["A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial"].) Since defendant claims counsel was ineffective in failing to do so, we consider the merits of his claim.
The trial court had sufficient evidence apart from any element of the assault offense or the great bodily injury enhancement to conclude that defendant engaged in violent conduct that posed a great danger to society under California Rules of Court, rule 4.421(b)(1). Defendant's repeated acts of domestic violence against K.W. in Illinois and in California before the July 2016 incident shows a pattern of violent conduct demonstrating his danger to society. Likewise, defendant's threat to kill K.W. and bury her in the backyard, and his attempt to drown K.W., show the type of violent conduct that demonstrates he poses a danger to society. While the jury acquitted defendant of the criminal threats and attempted murder charge stemming from this incident, a trial court may rely on conduct underlying an acquitted offense in sentencing. (People v. Towne (2008) 44 Cal.4th 63, 71.)
We need not determine whether the other aggravating factor, the offense of "great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness," (Cal. Rules of Court, rule 4.421(a)(1)) involved an improper dual use of facts underlying the crime or enhancement, because any error is harmless. " 'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' [Citation.] Only a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728.)
Defendant presented the court with an aggravated example of domestic violence that included an uncharged sexual assault. The trial court did not have to give weight to the mitigating evidence defendant claims to exist in this case. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) We also find that it is not reasonably probable that the trial court would have been persuaded to impose a lower term by the mitigating factors defendant cites: his involvement in church, lack of gang ties or substance abuse, long history of employment, and not going to prison for 11 years since last completing parole. Since defendant was not prejudiced by the failure to object to the aggravating factors, counsel did not render ineffective assistance. C. Ability to Pay
Defendant contends in a supplemental brief that the matter should be remanded pursuant to Dueñas for a determination of his ability to pay various mandatory fines.
The Dueñas court held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "that although section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.) Defendant contends the matter should be remanded for a hearing on his ability to pay the restitution fine, court facilities assessment, and court operations assessment pursuant to Dueñas.
The People argue defendant forfeited his claim by failing to object to the assessments or restitution fine. The arguments defendant advances in support of his assertion that his claim is not forfeited presuppose that Dueñas was correctly decided. We are not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the restitution fine, court facilities assessment, and court operations assessment.
The court also imposed without objection a $300 sex offender fine, which totaled $1,170 with the included assessments and surcharges. Imposition of the sex offender fine is contingent upon defendant's ability to pay. Failing to contest the ability to pay in the trial court forfeits the contention that the defendant was unable to pay the fine or fee, that the trial court did not properly consider the ability to pay, or that the People did not carry the burden of proving the ability to pay. (See People v. McCullough (2013) 56 Cal.4th 589, 597-598; People v. Gibson (1994) 27 Cal.App.4th 1466, 1467-1468.) Defendant's failure to object to the sex offender fine forfeits the claim that the trial court failed to consider his ability to pay this fine.
"Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (§ 290.3, subd. (a).) --------
The judgment is affirmed.
RENNER, J. We concur: /S/_________
MURRAY, Acting P. J. /S/_________