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People v. Sexton

California Court of Appeals, Fourth District, First Division

July 15, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL FRANK SEXTON, Defendant and Appellant.

          APPEAL 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.

          Xavier 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.

          DATO, J.

         Defendant Daniel Frank Sexton was convicted of several crimes committed against Jane Doe, his ex-wife.[1] 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.

         On 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 [him]."

         Sexton 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 instruction.

         Sexton 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.

         Accordingly, 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Background

         Jane 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 2010.

         B. Incidents of Domestic Violence

         1. Uncharged Incidents Before 2014

         Jane 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.

         2. The July 2014 Incident (Counts 1-5)

         At some 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.

         When 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.

         At work 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.

         3. The August 2014 Incident (Counts 6-7)

         On 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 kill her.

         4. The February 2015 Incident (Count 8)

         In 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 him.

         5. The Uncharged March 2015 Incident

         On a 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.

         C. Jane's Changing Allegations and Law Enforcement's Investigation

         After 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.

         In 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 proceed. ...


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