California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of Riverside County No.
RIF1501014, Elaine M. Kiefer, Judge. Affirmed in part;
reversed in part with directions.
William J. Capriola, by appointment of the Court of Appeal,
for Plaintiff and Respondent.
Becerra, Attorney General of California, Gerald A. Engler,
Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Steve Oetting and Paige Boulton Hazard,
Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Frank Sexton was convicted of several crimes committed
against Jane Doe, his ex-wife. During the course of the
investigation, Jane first accused him of domestic violence,
later recanted her allegations, and then reverted to her
original statements. At trial, the jury received testimony
from an expert who offered her professional opinion about
statements typically made by victims of intimate partner
battering. Specifically, the expert asserted that it is not
unusual for victims of intimate partner battering to cycle
between periods of seeking assistance from law enforcement
and of supporting their battering partners, including by
making false statements to the police.
appeal, Sexton challenges CALCRIM No. 850, the standard jury
instruction regarding testimony by complaining witnesses in
cases in which the jury also hears evidence from an expert in
intimate partner battering. The instruction directs the jury
to limit their consideration of the expert testimony to their
evaluation of whether the alleged victim's conduct was
not inconsistent with the conduct of a victim who had been
abused. The instruction further directs the jury to take this
analysis (of the consistency of the alleged victim's
conduct with that of a victim of intimate partner battering)
into account in evaluating the believability of the alleged
victim's testimony. Immediately preceding these
directions, in its second sentence, the instruction plainly
asserts that the expert testimony "is not evidence that
the defendant committed any of the crimes charged against
claims the instruction would lead reasonable jurors to
believe it directs them to impute their assessment of the
credibility of an expert to that of the complaining witness
with respect to the factual evidence of the alleged crimes.
In other words, the instruction would suggest that if jurors
find the expert to be credible, they should find the witness
credible too. But the text of the instruction does not allow
for an interpretation of this sort, and the instruction is
not otherwise ambiguous or vague. Furthermore, the record
indicates neither confusion on the jury's part, nor
divergence from the standard text, nor any likelihood of
misunderstanding the court's discussion of the
raises several additional issues. He claims that because
Arizona's robbery statute does not contain all the
elements of California's, including asportation, the true
finding on the alleged Arizona prior conviction must be
reversed and the five-year prior serious felony enhancement
stricken. He also argues that the statutory dual punishment
ban requires that the sentence on either count 3 (domestic
violence) or count 4 (assault with force likely to cause
great bodily injury) be stayed given that both counts were
predicated on the same physical assault as part of a single
course of conduct that had one objective, the infliction of
physical and emotional harm on Jane. As discussed below, we
agree with each of these arguments. Finally, Sexton seeks
remand for the trial court to consider whether it should
strike his prior serious felony enhancement under Senate Bill
No. 1393, which the People concede is appropriate.
we reverse in part and provide directions to the trial
court-to strike the prior serious felony enhancement and true
finding regarding the Arizona robbery allegation, reconsider
the sentence for the remaining prior serious felony
enhancement in light of Senate Bill No. 1393, stay the
sentence on either count 3 or count 4, and resentence as to
all counts. In all other respects, we affirm the judgment.
AND PROCEDURAL BACKGROUND
and Sexton's dating relationship began in 2007; by
October they started to live together. They had two
children-a son and a daughter-and were married in November
Incidents of Domestic Violence
Uncharged Incidents Before 2014
testified about two incidents of uncharged domestic abuse
committed by Sexton before 2014. In 2007, he pulled her out
of the shower by her hair and slammed her against the wall by
her throat. In 2011, he shoved her while she was holding
their infant son.
The July 2014 Incident (Counts 1-5)
point during July 2014, Jane told Sexton she wanted a
divorce. On July 22, 2014, he told her that he would be in
the house to pack up his belongings and leave, and not to
come home until he had left. After some time, he sent her a
text message falsely telling her that he had left and she
could return to the house.
Jane arrived home she found Sexton unconscious on the floor
with a bottle of vodka nearby. But when he awoke, he seized
her by the throat and began choking her. He told her that she
should not have come home and threatened to kill her. She
tried to escape and run after their children, who had fled
the room, but he grabbed her by the hair and continued to
choke and threaten her. Sexton demanded sex; she stopped
resisting; and he removed her clothes and tampon. He
attempted to engage in sexual intercourse, but he could not
produce an erection. At that point, he grabbed her by the
hair, forced her mouth onto his penis, demanded oral
copulation, threatened to kill her if she did not comply, and
ejaculated into her mouth. She then vomited on him.
the following day, Jane's coworker observed marks on her
neck that were "very faint" and "not very
visible." Jane told the coworker about the assault and
asked her to call the police if she ever missed work. When
she returned home from work, Sexton apologized and promised
he would never do something like that again.
The August 2014 Incident (Counts 6-7)
August 15, 2014, Jane and Sexton argued about her attitude
towards him since the July 2014 incident. According to
Jane's testimony, he pushed her onto the floor, grabbed
her by the throat, and picked up a ceramic vase over his head
as if to strike her with it. He also verbally threatened to
The February 2015 Incident (Count 8)
early February 2015, Jane decided to separate from Sexton.
Without telling him, she and their children left the house
and moved in her with her sister. A couple weeks later,
Sexton called Jane and demanded she return home. He
threatened: "If you don't come home by tomorrow,
it's open season on anything and everything you love and
care about." Jane's sister overheard the threat.
Jane then contacted law enforcement, filed a report, and the
following day obtained a temporary restraining order against
The Uncharged March 2015 Incident
morning in March 2015, Sexton appeared unannounced at
Jane's sister's house, where Jane and the children
were living, just as she was leaving with the two children.
He pulled a gun and pointed it at her face, and the children
ran off screaming. She tried to call 911 on her phone, but he
threatened to kill her if she refused to put the phone down.
They then together searched for and found the children, and
they all returned to their own home together. With a gun on
the table in front of him, Sexton threatened Jane again once
they arrived. He told her to lie to her sister and say that
she had decided to return to him of her own free will. He
later directed her to testify that she had fabricated the
allegations to gain leverage in their custody dispute when
the domestic violence allegations proceeded to trial.
Jane's Changing Allegations and Law Enforcement's
Jane reported Sexton to the City of Riverside police in
February 2015, a patrol officer interviewed her. She
discussed several incidents of domestic violence and
described the incident from July 2014 as the most serious.
Jane was also interviewed by a Riverside County deputy
sheriff, and in March 2015, Jane's sister was interviewed
by a Riverside police detective.
April 2015, Jane informed law enforcement that she no longer
wished to press charges against Sexton. She was told that
irrespective of her assistance, there was enough evidence to