People v. Brackins

249 Cal. Rptr. 3d 261, 37 Cal. App. 5th 56
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 2, 2019
DocketH043584
StatusPublished
Cited by33 cases

This text of 249 Cal. Rptr. 3d 261 (People v. Brackins) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Brackins, 249 Cal. Rptr. 3d 261, 37 Cal. App. 5th 56 (Cal. Ct. App. 2019).

Opinion

Mihara, J.

*59Defendant Lionel Brackins was convicted by jury trial of aggravated assault ( Pen. Code § 245, subd. (a)(4) ),1 inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)), attempting to dissuade a witness (§ 136.1, subd. (b)(1)), and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)).2 The court sentenced defendant to four years in prison.3

On appeal, defendant contends that the trial court prejudicially erred in (1) denying his request to modify CALCRIM No. 2622, the attempted dissuading instruction, to insert language requiring a finding of malice and describing when a presumption that malice was absent would apply, and (2) instructing the jury with CALCRIM No. 850 about expert testimony by a prosecution expert on intimate partner violence. We find that the trial court properly denied the request for modifications to CALCRIM No. 2622 because a violation of section 136.1, subdivision (b), unlike a violation of section 136.1, subdivision (a), does not require malice. We also reject defendant's challenge to CALCRIM No. 850. Accordingly, we affirm the judgment.

I. Prosecution's Case At Trial

Janet Amezcua and defendant had been in a relationship for 10 years and had four children, including Jane Doe. Although Amezcua testified at trial that their "arguments" had never become "physical," the prosecution produced evidence at trial that defendant had repeatedly physically assaulted Amezcua. The charged offenses occurred in August 2014 and January 2015, but evidence of several prior events was also introduced at trial. At trial, Amezcua denied that any domestic violence had occurred, and she claimed that she called the police on numerous occasions only because she was "mad and angry" at defendant.

*264*60When the police were summoned to Amezcua's residence in February 2008, Amezcua had a bruise on her arm and swelling on her face. She told the officer that defendant had caused the injury to her arm, though she denied that he had caused the injury to her face. In October 2011, the police arrived at Amezcua's apartment and found her "bleeding pretty heavily" from her right hand and visibly shaking. Amezcua told the officer that she had asked defendant to leave, and he had responded by getting "angry," grabbing her, throwing her down on the couch repeatedly, and then punching her in the arm. "He then got up and went to the kitchen and got a knife and approached her with the knife at which point she thought she was going to be stabbed by him with the knife and she grabbed the knife out of his hand," thereby cutting her hand. At trial, Amezcua admitted that she had told the police that defendant had threatened her with a knife, but she denied that he was responsible for her grabbing the knife and cutting herself. In April 2012, the police arrived at Amezcua's residence and found her with a swollen, lacerated, bloody lip and a loose tooth. She told the officer that defendant had "punched her in the mouth" after she "tried to strike" him. When she tried to leave, he blocked her way and "pushed her down on the couch."

The charged corporal injury and aggravated assault counts arose from events in August 2014. The police arrived at Amezcua's residence in response to a domestic violence call. Amezcua, who was crying, told the responding officer that she and defendant had argued after she refused to let him use her cell phone. He pushed her onto the couch, got on top of her, and grabbed her throat with his hand. Defendant choked her for a minute. She could not breathe, and she lost consciousness for a few seconds. When she regained consciousness, he told her not to say anything. She pushed him off her and tried to run away, and after a struggle with defendant, she escaped his grasp, left the residence, and called 911. She asked the officer to obtain a protective order for her, and he did so. Amezcua's neck was red and had a small abrasion, and she reported pain in her neck.

Amezcua told the officer that Jane Doe had been present during the incident. Jane told the police that Amezcua and defendant had been "fighting" before the police arrived. She saw defendant push Amezcua down on the couch and begin "twisting her ankle." Then defendant "choked" Amezcua with one hand on her throat. Jane reported that Amezcua "was making like a choking, gagging type of sound and it made her very sad to see that." After a minute, defendant stopped choking Amezcua and "started twisting her ankle again." When Amezcua managed to get up and tried to leave the residence, defendant "grabbed [Amezcua] by the hair and yanked her back into the apartment." Eventually, Amezcua escaped from the apartment and called the police.

*61At trial, Jane was a reluctant witness and claimed to have no memory of most of the events or of talking to the police about them. Amezcua's trial testimony minimized the violence. She admitted that she and defendant had argued about defendant's desire to use her phone and that he had tried to take her phone from her hand. He did not succeed, and he began yelling at her. She told him to leave and called the police when he did not. Amezcua testified at trial both that she did not remember what she had told the police and that she had lied to the police about defendant choking her. She testified that she lied because she was "desperate," "frustrated," and "angry," and she "wanted him to *265leave." Amezcua claimed that the scratch on her neck was self-inflicted.

In January 2015, the police were dispatched to Amezcua's apartment after a report of a domestic disturbance. The officer made contact with Amezcua, who reported that defendant had kicked the door and broken it. The officer observed that the door frame was cracked, the locking plate was on the ground, and the door would not close. There was a footprint on the door. Jane was present while the officer was talking to Amezcua. Amezcua told the officer that defendant had been "yelling and screaming" at Jane, causing Jane to cry. Amezcua had told defendant to leave, but he did not. She left the apartment to call 911, and "he chased her." She ran back into her apartment and closed and locked the door. That was when defendant kicked in and broke the door. Defendant fled before the officer arrived.

While the officer was talking to Amezcua, "the cell phone rang and rang and Jane Doe held it up and said, He's calling! He's calling!" The officer looked at the phone and saw from the "caller ID" that defendant was calling. Jane asked the officer if she should answer it, and the officer said "Okay." Jane answered the phone and put it on speaker phone. Jane "said hello," and defendant immediately began screaming loudly. He said: " 'You better not be talking to the fucking police.' " He also said " 'listen' " and " 'don't talk to the fucking police.' " Defendant was "so loud," and "Jane Doe was upset ...." The officer took the phone and identified herself as a police officer. Defendant began screaming at her. He was "[v]ery loud and angry." The officer terminated the call, but defendant called back several times. His calls were not answered. Amezcua asked for an emergency protective order, and the officer obtained one for her.

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Cite This Page — Counsel Stack

Bluebook (online)
249 Cal. Rptr. 3d 261, 37 Cal. App. 5th 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-brackins-calctapp5d-2019.