Filed 12/28/15 P. v. Towry CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B261669
                                                                          (Super. Ct. No. 2012019652)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

KRISTY ANN TOWRY,

     Defendant and Appellant.



                   Kristy Ann Towry appeals from the judgment following her
conviction by jury of felony corporal injury to a child. (Pen. Code, § 273d, subd.
(a).1) The trial court suspended the imposition of sentence and granted appellant
four years of probation, including that she serve a 90-day jail term.
                   Appellant concedes that she struck her stepson but contests the
severity of the blows. She contends that the court committed prejudicial error by
(1) failing to instruct the jury that battery is a lesser included offense of felony
corporal injury to a child and (2) giving the jury a propensity evidence instruction
which fails to define reasonable discipline. We affirm.




1
    All statutory references are to the Penal Code.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                 Prosecution Evidence2
                                  May 29, 2012 Crime
                In 2012, the 11-year-old victim, C., lived in Moorpark with his father,
Timothy M., and appellant, his stepmother. C. was homeschooled. Timothy M.
and appellant both disciplined C. by spanking him with a belt.
                On Tuesday, May 29, they left C. home while they were at work.
Before she left, appellant told him to pick up some rocks that were in the yard. She
came home before noon and found C. in the house. She yelled and told him to go
outside and pick up rocks. A few minutes later, she called him back inside, and told
him to bend over and pull down his pants. When he complied, she hit him with a
belt several times. He asked her to stop, and fell to his knees. Appellant told him to
get back up. C. ran away.
                California Highway Patrol Officer Abbron Ghoston responded to a
report of a young child who appeared to be lost. He found C., who could not or
would not provide his address or his parents' telephone number to Ghoston.
Ghoston took C. to a police station, where he was interviewed by Sheriff Deputy
Robert Burckard. C. explained that appellant had spanked him with a belt "between
10 and 20 times" because he did not finish his chores. C. told her to stop because
he "had not ever been hit that many times."
                While speaking with Burkhard, C. noticed that "it kind of hurt to sit
down," and that his "leg [was] a bit sore." He raised his shorts, and Burkhard saw a
large bruised area on his upper right thigh. C. said the marks were not on his leg
earlier that day and that they were "from the belt." He did not fall or injure himself
while running away.
                Sheriff Deputy Gregory Tougas interviewed appellant the same day.
She admitted she had "disciplined" C. with a belt that day, by hitting him four


2
    Unless otherwise indicated, the events described herein took place in 2012.
                                            2
times. She said C. "went down on the ground and grabbed his legs," as "kind of a
little tantrum that he pulls sometimes." Appellant "always [sat] down for prayer,"
before disciplining C., to seek the "wisdom and understanding to . . . give proper
discipline." She admitted that she had bruised C. "more than a year" before May 29
and said it had been "probably about six months" since Timothy M. last bruised
him. She further stated she saw small bruises on C.'s arms and legs that he acquired
while playing dodge ball on the weekend. When Tougas showed her the May 29
photographs of C.'s right leg, appellant said, "that's definitely not what I saw."
Tougas asked if she had caused those marks with the belt. She answered, "I would
say yes, because [unintelligible] seen it anywhere else." She admitted that C.'s
injuries were "pretty severe" but said she was "not necessarily surprised," because
he bruised easily. She also said, "I know my force was hard. I mean I know my
swing[] on him was hard." Tougas asked if she thought she had gone "overboard."
She answered, "Absolutely."
              Appellant told Tougas that over the prior two years, she usually
disciplined C. by hitting his bottom with a belt. She felt bad that he was scared of
her and scared to go home. She said she "would be happy to get into [] anger
management" or even "remove [herself] from the home so C. could return home
with Timothy M. She told Tougas that Timothy M. physically and sexually abused
her.
                              Prior Uncharged Incidents
              C. testified appellant spanked him badly "many times" before May 29.
He testified that on one occasion, she and Timothy M. "traded off" hitting him with
belt that had studs imbedded in leather. That was "probably the worst" spanking of
his life.
              C. testified about another occasion when appellant "grabbed a stick
from the outside" when she could not find a belt. She hit him with the stick at least
10 times before Timothy M. brought her a belt. She hit C. at least as many times


                                           3
with the belt as she had done with the stick, and left "severe bruising and welts" on
his body.
                                  Defense Evidence
              Appellant testified at trial. On May 29, she found C. playing on the
computer when she returned home after 11:00 a.m. She prayed about it and decided
it was better to discipline C. herself than wait for Timothy M. C. was wearing a
long shirt and baggy shorts. She told him to turn around and pull down his shorts.
She held his left arm and used a belt to spank "his bottom" four times. She did not
use any "extra force" or spank him on his right side. C.'s left side faced her as she
spanked him. He dropped to the floor, crying and yelling after the fourth spank.
She tried to console him, but C. ran away.
              Appellant further testified that two days before May 29, on Sunday,
evening, she heard Timothy M. spank C. Before the May 29 incident, appellant had
spanked C. on just one other occasion. A few months before May 29, she "swatted
[C.] on his bottom" with her hand.
              During trial, appellant admitted having told Tougas that she had
bruised C. during an incident where "he was moving around when [she] was hitting
him," but explained that was a false statement. Her statement to Tougas that
Timothy M. had not left bruises on C. for "about six months" was also false.
Although appellant told Tougas she had caused the bruises on C. on May 29, she
actually meant that she felt responsible for the abuse Timothy M. inflicted upon C.
Appellant testified that Timothy M. was physically and sexually violent to her
throughout their marriage, which humiliated her, but she felt that she "deserved it."
Timothy M. made her stay in the room with him while he disciplined C., and she
was uncomfortable because sometimes it was too much but she would not say
anything and felt responsible "for what was happening."
              Justin Ellis testified that he babysat C. for a weekend in late May.
During the weekend they played dodge ball at a trampoline park.


                                           4
                                     DISCUSSION
                         Lesser Included Offense Instruction
               Appellant contends that the trial court committed prejudicial error by
failing to instruct the jury that battery is a lesser included offense of felony corporal
injury to a child.3 Respondent counters that appellant invited any error, or waived
this issue, by advising the court that she did not want a lesser included instruction.
Invited error aside, we conclude that the lack of a lesser included offense instruction
is harmless.
               The trial court does not have a duty to instruct on a lesser included
offense if there is no substantial evidence in support of it. (People v. Cunningham
(2001) 25 Cal.4th 926, 1008.) The court may refuse the instruction where the
evidence shows that if the defendant is guilty, he is guilty of the greater offense.
(People v. Mendoza (2000) 24 Cal.4th 130, 174.) We independently review the
court's ruling in this regard. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
               When interviewed by Tougas on May 29, appellant said it had been
"probably about six months" since Timothy M. had last bruised Christoper. Upon
seeing the photograph of C.'s severely bruised leg, appellant admitted that the
bruises were "definitely not" what she saw before. She further told Tougas that she
"would say" she had caused C.'s bruises with the belt; that his injuries were "pretty
severe;" she knew"[her] force was hard;" and that she "absolutely" went overboard.
At trial she repudiated or diminished these statements by testifying she actually
meant that she felt responsible for injuries that Timothy M. had inflicted upon C.
She testified further that she heard Timothy M. spanking C. with a belt on May 27,
and that her May 29 statement that Timothy M. had not bruised C. for six months
was false.



3
  Battery (§ 242) is a lesser included offense of felony corporal injury of a child
(§ 273d). (People v. Sargent (1999) 19 Cal.4th 1206, 1220; CALCRIM No. 822
[Inflicting Physical Punishment on Child].)
                                            5
              Based on the evidence, if the jury had accepted the defense that
Timothy M. rather than appellant injured C., it would not convict her of battery; it
would acquit her. Thus, even if the trial court erred by failing to instruct jurors that
battery is a lesser included offense, the error is harmless. (People v. Watson (1956)
46 Cal.2d 818, 836; see People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to
instruct on lesser included offense in noncapital cases is subject to Watson standard
of harmless error review].)
                           Propensity Evidence Instruction
              Appellant claims that the trial court erred by giving the jury a
propensity evidence instruction which fails to define reasonable discipline. We
disagree.
              The trial court has a duty to correctly instruct the jury "on the general
principles of law relevant to the issues raised by the evidence." (People v. Najera
(2008) 43 Cal.4th 1132, 1136.) We apply the de novo standard of review in
determining whether jury instructions correctly state the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.)
              The court instructed the jury regarding propensity evidence, with a
modified version of CALCRIM No. 852, which provides in relevant part: "The
People presented evidence that the defendant committed domestic violence/abuse
that was not charged in this case. Domestic violence includes abuse committed
against a child or stepchild of the defendant. [¶] Abuse means intentionally or
recklessly causing or attempting to cause bodily injury or placing another person in
reasonable fear of imminent serious bodily injury to himself or herself or to
someone else. You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. [¶] . . . If the People have not met this burden of proof, you
must disregard this evidence entirely."
              Immediately before reading the propensity instruction, the court
instructed jurors with two instructions that use and define the reasonable discipline

                                           6
concept. In describing the elements of the charged corporal injury upon a child
offense, the court instructed the jury that the prosecution must prove that "when the
defendant acted, she was not reasonably disciplining a child." (CALCRIM No.
822, italics added.) The court also instructed the jury with the following version of
CALCRIM No. 3405: "A parent or guardian or stepparent is not guilty of inflicting
physical punishment upon a child if she used justifiable physical force or another
justifiable method to discipline a child. [¶] Physical force is justifiable if a
reasonable person would find that the punishment was necessary under the
circumstances, and that the physical force or method used was reasonable."
              Appellant claims that because the trial court used a propensity
evidence instruction which failed to define the concept of reasonable discipline
"there was a substantial danger that the jury misused propensity evidence." We
disagree. Although a propensity instruction which repeats the reasonable discipline
concept provided to jurors in other instructions might be helpful in some
circumstances, it was not "vital to the jury's ability to analyze the evidence" here.
(People v. Najera, supra, 43 Cal.4th at p. 1139.) The propensity evidence
instruction guided jurors concerning the correct use of evidence of uncharged acts
of domestic violence. It explained that domestic violence includes "abuse
committed against a child." (CALCRIM No. 852.) The instruction also defined
such abuse. Immediately before giving the propensity evidence instruction, the
court gave the jury instructions which correctly explain the use and definition of
reasonable discipline. (Ibid; CALCRIM No. 3405.) With such instructions, it is
unlikely that jurors would confuse uncharged abuse with reasonable discipline, or
misuse propensity evidence. The court expressly instructed the jury that "[s]ome
words or phrases used during this trial have legal meanings that are different from
their meanings in everyday use. These words and phrases will be specifically
defined in these instructions. Please be sure to listen carefully and follow the
definitions that I give to you." (CALCRIM No. 200.) We presume that jurors


                                            7
understand and follow the court's instructions. (People v. Mills (2010) 48 Cal.4th
158, 200.)
                                  DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         PERREN, J.



We concur:


             GILBERT, P. J.



             YEGAN, J.




                                         8
                                Nancy L. Ayers, Judge
                           Superior Court County of Ventura
                         ______________________________


             Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
