Filed 12/ 28 /15 P. v. T owry CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

KRISTY ANN TOWRY,
Defendant and Appellant. 2d Crim. No. B261669 (Super. Ct. No. 2012019652) (Ventura County)

Kristy Ann Towry appeals from the judgment following her conviction by jury of felony corporal inj ury to a child. (Pen. Code, § 273d, subd. (a)

. 1 ) The trial court suspended the imposition of sentence and granted appellant four years of probation , in cluding that she serve a 90

- day jail term.

A ppellant concede s 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 jur y a propensity evidence instruction
which fails to define reasonable discipline

. We affirm.

1 All statutory references are to the Penal Code.2 FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidenc e 2 May 29, 2012 Crime In 2012, the 11

- year

- old victim, C. , lived in Moorpark with his father, Timothy M

. , and appellant, his s tepmother. C. wa s homeschooled. Timothy M. and appellant both disciplined C. by spanking him with a belt.

On Tuesday, May 29, they left C. home while they we re at work. Before she left, appellant told him to pick up some rocks that were in the yard. She

came home before noo n and found C. in the house. She yelled and told him to go outside and pick up rocks. A few minutes later, s he called him back inside , and told
him to ben d over and pul l down his pants

. When he complied, she hit him with a
belt several times. He asked her t o 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 o r would not provide h is address or his parents ' tele p ho ne number to Ghoston

. Ghoston took C. to a p olice station
, where he was interviewed by Sheriff Deputy
Robe r t Burckard

. C. explained that a ppellant had spanked him with a belt " betwe en 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 k i nd 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 h is leg earlier that day and that t hey were " from the belt. " He did not fall or injure himself while running away.

Sher iff Deputy Gregory Tougas interviewed appellant the same day.
She admitted s he had " disciplined " C. with a belt that day
, by hitting him four

2 Unless otherwise indicated, the events described herein took place in 2012.3

times. She said C. " went down on the ground and grabbed his legs, " as " kind of a
little tantru m that h e pulls sometimes. " Appellant " always [ s at] 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 photogra phs 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 sai d
, " 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

. "
S he an sw ered, " Absolutely. "

Appella n t 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 [] ang er 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 tim es " 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 times4

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 a fter 11 :00 a.m. She prayed about it and decided it was better to discipline C. her self 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 2 9, on Sunday, evening, she heard Timothy M. spank C. B efore the May 29 incident, appellant had spanked C. on just one other occasion. A few months before Ma y 29, she " swatted [ C. ] on his bottom " with her hand.

During trial, app ellant admitted having told Tougas that she had
bruised C. during an incident where " h e was moving around when [she] was h itting him, " but explained that was a false statement. Her statement to Tougas that Timothy M. had not left br u ises 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.5 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 a ny error, or waived
this issue
, by advising the court that she did not want a l esser included instruction. Invited error aside, we conclude that the lack of a lesser included offense instruction
i s harmless.
T he trial court does not have a duty to instru ct 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 g reater 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 s ix months " since Timothy M. had last bruised Christoper. U pon seeing the photograph of C. ' s severely bruised leg, appellant admitted that the
bruises were " defini tely not " what she saw before. She further told Tougas that she

" would say " she had c aused 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 f

elt 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 2 7 , 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 corpora l injury of a child (§ 273d). ( People v. Sargent (1999) 19 Cal. 4th 1206, 1220; CALCRIM No. 822 [Inflicting Physical Punishment on Child] .)6 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 correctl y 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 la w. ( 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 i n relevant part : " The People presented evidence that the defendant committed domest ic 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 pe rson 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
domesti c violence. [¶]

. . . If the People have not met this burden of proof, you must disregard this evidence entir ely. "

Immediately before reading the propensity instruction, the court instructed jurors with two instructions that use and define the reasonab le discipline7

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 .) T he court also instructed the jury with the following version of
CALCRI M 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 j ustifiable 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 bec ause 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 prope nsity instruction which repea ts 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 propensit y 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

un likely that jurors wo uld confuse uncharged ab use with reasonable discipline
, or misuse propensity evidence. T he 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 jurors8

un derstand 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.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.