P. v. Brown

Filed 1/28/03 P. v. Brown CA2/6
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
CORNELL COOPER BROWN,
Defendant and Appellant.
2d Crim. No. B153455
(Super. Ct. No. MA022297)
(Los Angeles County)
Cornell Cooper Brown appeals from the judgment entered following his
conviction by jury of making a terrorist threat, false imprisonment by violence,
and misdemeanor battery on a domestic partner. (Pen. Code, §§ 422, 236, 243,
subd. (e)(1).) The jury found true allegations that appellant had used a deadly
weapon in the commission of the felony offenses. It also found true allegations of
four prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior serious or
violent felony conviction within the meaning of California's "Three Strikes" law.
(Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was
sentenced to state prison for 10 years, 8 months.
Appellant contends that the trial court erroneously (1) admitted expert
testimony on battered women's syndrome (BWS); (2) instructed the jury pursuant
to CALJIC No. 17.41.1; and (3) imposed a consecutive eight-month sentence for

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false imprisonment. We modify the judgment to stay execution of the sentence for
false imprisonment and affirm the judgment as modified.
Facts
Victim's Testimony
Kimberly Pipes had been dating appellant "on and off" for 11 years. On
April 17, 2001, she was living with him and was in love with him. That day, Pipes
and appellant had an argument. Appellant hit Pipes with his hand in the lower
stomach. The blow did not hurt her. He pulled her by the arm into the bedroom
and "made" her lie on the bed.
Pipes lay in bed with appellant until he fell asleep. She then left the
residence. She did not leave because she was afraid of him. She was angry and
"was trying to just get away . . . ."
After leaving, Pipes telephoned 911 and said she wanted the police "to
come get [appellant]." When deputy sheriffs arrived, Pipes told them that
appellant had hit her in the stomach. She also said that she believed she was
pregnant. She falsely accused appellant of pointing a knife and a fork at her. She
denied saying that appellant had threatened to cut her with the knife. She admitted
saying that appellant had grabbed her around the neck, but this accusation was also
false.
After the incident, Pipes visited appellant in jail and "talked to him on the
phone numerous times." Appellant told Pipes that he loved her, and "he
promise[d] to make the relationship better[.]" Pipes continued to love appellant.
Before April 17, 2001, Pipes and appellant had argued, but appellant had
never hit her.
Deputy Sheriff's Testimony
Deputy James Wheeler responded to Pipes' 911 call. Pipes told him that
she had "been assaulted by her boyfriend." Appellant "grabbed her by the neck"
and "dragged her into the master bedroom," where he "threw her on the bed."
With a steak knife in one hand and a barbecue fork in the other, appellant

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threatened to cut her if she left. Appellant said, "I don't want you having my
baby." He then punched her in the stomach. Appellant "grabbed [Pipes] by the
neck again and threw her on the bed and held her down, prevent[ing] her from
leaving." Pipes "was very afraid of him." She complained of pain in her
abdomen.
Expert Testimony
Jeri Darr qualified as an expert on domestic violence. According to Darr,
victims of domestic violence are typically hesitant "to come forward and escape
abuse." After the "initial incident" of domestic violence, there generally is
"anywhere between 24 and 48 hours where victims will be truthful about what
occurred because they're still angry, they're still scared." After 48 hours, "it is not
uncommon for them to change their mind." "It's been estimated in research
within the domestic violence field . . . that a victim will leave and return to her
abuser on the average of three to five times before [she] decide[s] to separate
permanently . . . ." The victim returns because "there's a hope that things are
going to get better and . . . there's a tremendous amount invested in relationships."
In 80 to 85 percent of the cases, victims "actually recant at some point in the
process." "Almost every victim . . . will minimize [her] experience. They can
have black eyes, severe bruising, broken bones, and say . . . he just . . . pushed me
around . . . ." A victim may suffer from BWS after only one incident of physical
abuse.
The Expert Testimony On BWS Was Relevant And Admissible
Evidence Code section 1107, subdivision (a),1 permits the admission in a
criminal action of expert testimony on BWS, "except when offered against a
criminal defendant to prove the occurrence of the act or acts of abuse which form
the basis of the criminal charge." (Ibid.) Section 1107, subdivision (b), requires
1 All statutory references are to the Evidence Code unless otherwise stated.

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the proponent of the expert testimony to establish "its relevancy and the proper
qualifications of the expert witness."2
Appellant contends that Darr's testimony on BWS was irrelevant because
the evidence showed only one incident of abuse. Appellant relies on People v.
Gomez (1999) 72 Cal.App.4th 405.
The Gomez court noted: "In making a determination of relevancy, the
[trial] court must first decide whether the evidence in the particular case supports a
contention that the [victim] was a battered woman. Expert testimony on battered
woman syndrome is irrelevant unless there is a sufficient factual basis for the fact
that [the victim] was a battered woman.' [Citation.]" (People v. Gomez, supra, 72
Cal.App.4th at pp. 415-416.) The Gomez court concluded that, as a matter of law,
the evidence does not support a contention that the victim was a battered woman
where there has been only one violent incident without evidence of other abuse.
(Id., at p. 416-417.) In these circumstances, the court held that expert testimony
on BWS is always irrelevant and inadmissible. (Ibid.) The court reasoned:
"[B]attered women's syndrome is a series of characteristics which appear in
women who have been abused physically and psychologically over a period of
time. [Citation.] A single violent incident, without evidence of other physical or
psychological abuse, is not sufficient to establish that a woman suffers from
2 Section 1107 provides: "(a) In a criminal action, expert testimony is admissible
by either the prosecution or the defense regarding battered women's syndrome,
including the nature and effect of physical, emotional, or mental abuse on the
beliefs, perceptions, or behavior of victims of domestic violence, except when
offered against a criminal defendant to prove the occurrence of the act or acts of
abuse which form the basis of the criminal charge. [¶] (b) The foundation shall be
sufficient for admission of this expert testimony if the proponent of the evidence
establishes its relevancy and the proper qualifications of the expert witness. Expert
opinion testimony on battered women's syndrome shall not be considered a new
scientific technique whose reliability is unproven. [¶] (c) For purposes of this
section, 'abuse' is defined in Section 6203 of the Family Code and 'domestic
violence' is defined in Section 6211 of the Family Code or acts defined in Section
242, subdivision (e) of Section 243, or Section 262, 273.5, 273.6, 422, or 653m of
the Penal Code.[¶] (d) This section is intended as a rule of evidence only and no
substantive change affecting the Penal Code is intended. [¶] (e) This section shall
be known, and may be cited as, the Expert Witness Testimony on Battered
Women's Experiences Section of the Evidence Code."

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battered women's syndrome." (Ibid.) The Gomez court cited our Supreme
Court's definition of BWS in People v. Humphrey (1996) 13 Cal.4th 1073, 1083-
1084: "[T]he [Humphrey] court recognized that '[b]attered women's syndrome
"has been defined as 'a series of common characteristics that appear in women
who are abused physically and psychologically over an extended period of time by
the dominant male figure in their lives.' " ' [Citations.]" (People v. Gomez, supra,
72 Cal.App.4th at p. 416.)
Gomez was criticized in People v. Williams (2000) 78 Cal.App.4th 1118.
The Williams court concluded: "There is nothing in . . . section 1107 to suggest
that the Legislature intended that a batterer get one free episode of domestic
violence before admission of evidence to explain why a victim of domestic
violence may make inconsistent statements about what occurred and why such a
victim may return to the perpetrator." (Id., at p. 1129.) The Williams court
observed that the result in Gomez was "at odds" with the expert testimony in that
case. (Ibid.) The expert testified " 'that about 80 percent of the time a woman
who has been "initially assaulted" by a boyfriend, husband or lover will recant,
change or minimize her story. This recanting does not happen only after there has
been a continuing pattern of abuse. In fact, depending on the severity of the
incident, it is more likely to occur after a first incident.' " (Ibid., quoting from
People v. Gomez, supra, 72 Cal.App.4th at p. 411.) The expert further testified:
"A woman will react in this manner more commonly after the first event because
she really wants to believe that the person who committed the act of violence is
not the man she is in love with." (People v. Gomez, supra, 72 Cal.App.4th at
p. 414.)
The Williams court distinguished People v. Humphrey, supra, 13 Cal.4th
1073. It noted that the issue in Humphrey was whether evidence of BWS was
admissible "to establish self-defense to a charge of homicide. . . . In that light, it is
reasonable to require that the alleged victim/defendant establish a history of
abuse." (People v. Williams, supra, 78 Cal.App.4th at p. 1130.) On the other

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hand, such a requirement is not reasonable when evidence of BWS is offered to
explain recantation by a victim of domestic violence. (Ibid.)
We find the reasoning of Williams persuasive. By ruling that a single
violent incident can never trigger BWS without evidence of other abuse, the
Gomez court usurped the trial court's authority to determine relevancy on a case by
case basis. "The trial court retains broad discretion in determining the relevance of
evidence. [Citation.]" (People v. Garceau (1993) 6 Cal.4th 140, 177.)
Furthermore, the Gomez court's ruling is unsupported by the record in that case.
The expert in Gomez testified that a behavior pattern characteristic of BWS --
recanting and minimizing the event -- is most pronounced after the first incident of
domestic violence.
Accordingly, we construe section 1107 as authorizing the admission of
expert testimony on BWS based on a single incident of domestic violence without
evidence of other abuse, provided that the testimony is relevant. Section 1107
subdivision (a) provides that admissible expert testimony includes "the nature and
effect of physical, emotional, or mental abuse on the beliefs, perceptions, or
behavior of victims of domestic violence . . . ." The statute draws no distinction
between victims of a single incident of domestic violence and victims of multiple
incidents. We also consider the 2000 amendment of section 1107, which added
subdivision (e). (Stats. 2000, c. 1001 (S.B. 1944), § 1.) The subdivision provides:
"This section shall be known, and may be cited as, the Expert Witness Testimony
on Battered Women's Experiences Section of the Evidence Code." (Italics added.)
The use of "Experiences" is consistent with a legislative intent to deemphasize the
importance of the "syndrome" language in subdivision (a).3
3 In People v. Humphrey, supra, 13 Cal.4th page 1084, footnote 3, our
Supreme Court noted that, although section 1107 uses the term "battered women's
syndrome," "according to amici curiae California Alliance Against Domestic
Violence et al., '. . . the preferred term among many experts today is "expert
testimony on battering and its effects" or "expert testimony on battered women's
experiences." Domestic violence experts have critiqued the phrase "battered
women's syndrome" because (1) it implies that there is one syndrome which all

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It remains to determine whether Darr's expert testimony was relevant.
" 'Evidence is relevant if it has any tendency in reason to prove or disprove a
disputed fact at issue.' [Citations.]" (People v. Kipp,(2001) 26 Cal.4th 1100,
1123.) "We apply the deferential abuse of discretion standard when reviewing a
trial court's ruling on a relevance objection. [Citations.]" (Ibid.) "A trial court
abuses its discretion when its ruling 'fall[s] "outside the bounds of reason." '
[Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 714.)
The trial court did not abuse its discretion in determining that Darr's
testimony was relevant. Pipes' statements to the police supported a finding that
she had been physically battered by appellant. Pipes' conduct after the battery
supported a finding that she was suffering from BWS. She recanted, resumed her
relationship with appellant while he was in jail, and professed her love for him.
Moreover, Darr testified that a victim may suffer from BWS after only one
incident of physical abuse. It was not unreasonable for the trial court to conclude
that Darr's testimony on BWS had at least some tendency in reason to explain the
motivation behind Pipes' recantation. (See People v. Morgan (1997) 58
Cal.App.4th 1210, 1215 [expert testimony on BWS "relevant and admissible to
explain or offer a motive for [victim's] recantation and thereby reconcile
inconsistencies in her testimony"].) "[A]s with any evidence, the jury [could] give
this testimony whatever weight it deem[ed] appropriate in light of the evidence as
a whole." (People v. Humphrey, supra, 13 Cal.4th at p. 1088.)4
battered women develop, (2) it has pathological connotations which suggest that
battered women suffer from some sort of sickness, (3) expert testimony on
domestic violence refers to more than women's psychological reactions to
violence, (4) it focuses attention on the battered woman rather than on the
batterer's coercive and controlling behavior and (5) it creates an image of battered
women as suffering victims rather than as active survivors.' "
4 Pursuant to CALJIC No. 9.35.1, the trial court instructed the jury on the
appropriate use of BWS evidence: "Evidence has been presented to you
concerning battered women's syndrome. This evidence is not received and must
not be considered by you to prove the occurrence of the act or acts of abuse which

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The Trial Court Did Not Err In Instructing the
Jury Pursuant To CALJIC No. 17.41.1.
Pursuant to CALJIC No. 17.41.1, the trial court instructed the jury as
follows: "The integrity of a trial requires that jurors, at all times during their
deliberations, conduct themselves as required by these instructions. Accordingly,
should it occur that any juror refuses to deliberate or expresses an intention to
disregard the law or to decide the case based on penalty or punishment or any
other improper basis, it is the obligation of the other jurors to immediately advise
the Court of that situation."
Appellant contends that this instruction violated his constitutional right to a
jury trial and to due process of law. The contention is without merit. After the
filing of appellant's opening brief, our Supreme Court held that the giving of
CALJIC No. 17.41.1 does not constitute constitutional error. (People v. Engelman
(2002) 28 Cal.4th 436.)5 Moreover, appellant waived any claim of error because
he failed to object to the instruction in the trial court. (People v. Elam (2001) 91
Cal.App.4th 298, 311.)
The Sentence For False Imprisonment Must Be Stayed
Penal Code Section 654 precludes "multiple punishments for a single act or
indivisible course of conduct. [Citation.]" (People v. Miller (1977) 18 Cal.3d
873, 885.) A defendant's intent and objective generally determine whether a
form the basis of the crimes charged. [¶] Battered women's syndrome research is
based upon an approach that is completely different from the approach which you
must take to this case. The syndrome research begins with the assumption that
physical abuse has occurred, and seeks to describe and explain common reactions
of women to that experience. As distinguished from that research approach, you
are to presume the defendant innocent. The People have the burden of proving
guilt beyond a reasonable doubt. [¶] You should consider this evidence for
certain limited purposes only, namely, that the alleged victim's or defendant's
reactions, as demonstrated by the evidence, are not inconsistent with her having
been physically abused, or the beliefs, perception or behavior of victims of
domestic violence."
5 On the other hand, our Supreme Court directed that the instruction "not be given
in trials conducted in the future." (People v. Engelman, supra, 28 Cal.4th at p.
449.)

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course of conduct is divisible. "'If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not for
more than one.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Respondent concedes that the offenses of making a terrorist threat (Pen.
Code, § 422) and false imprisonment by violence (Pen. Code, § 236) "were part
of an indivisible course of conduct committed for the single purpose of preventing
Pipes from leaving the location." Accordingly, we modify the judgment to stay
execution of the consecutive eight-month sentence for false imprisonment. (See
People v. Beamon (1973) 8 Cal.3d 625, 639-640.)
Disposition
The judgment is modified to stay execution of the consecutive eight-month
sentence for false imprisonment by violence (count 3), such stay to become
permanent upon the completion of the six-year sentence for making a terrorist
threat (count 2). The modification reduces appellant's aggregate sentence to 10
years. In all other respects, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and forward it to the Department of
Corrections.
NOT TO BE PUBLISHED.
YEGAN, J.
I Concur:
GILBERT, P.J.

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DISSENTING OPINION – PERREN, J.
I respectfully dissent.
Relying upon People v. Williams (2000) 78 Cal.App.4th 1118, 1129,
the majority conclude that there is nothing in Evidence Code section 1107
requiring that "a batterer get one free episode of domestic violence before
admission of evidence to explain why a victim of domestic violence may make
inconsistent statements about what occurred and why such a victim may return to
the perpetrator." I believe that this begs the question. The vice of such evidence
lies with the fact that the jury must assume the occurrence to make the testimony
of the expert relevant.
The decision whether to admit evidence about battered women's
syndrome (BWS) must be made on a case-by-case basis, depending on relevancy.
"'In making a determination of relevancy, the court must first decide whether the
evidence in the particular case supports a contention that the petitioner was a
battered woman. Expert testimony on battered woman syndrome is irrelevant
unless there is a sufficient factual basis for the fact that petitioner was a battered
woman.'" (People v. Gomez (1999) 72 Cal.App.4th 405, 415-416.)
BWS may explain characteristics of women who have been abused
physically and psychologically over a period of time. (People v. Gomez, supra, 72
Cal.App.4th at pp. 416-417, citing People v. Humphrey (1996) 13 Cal.4th 1073.)
Here, as in Gomez, there was no evidence of an ongoing abusive relationship or
that defendant battered the alleged victim previously. (Id. at p. 416.) "Although a
woman may minimize or deny a single instance of violence or abuse, her denial
does not mean she suffers from battered women's syndrome." (Ibid.)
Where there are no prior incidents of domestic violence, the jury
must make a preliminary finding that the witness is a "battered woman" based on
the evidence of the crime itself and the expert's opinion about BWS. As in Gomez,
the expert in the instant matter testified that it is more likely that a victim will

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recant or minimize the abuse after the first incident, especially if she intends to
resume the relationship. (People v. Gomez, supra, 72 Cal.App.4th at pp. 411-412.)
The prosecution emphasized this testimony in closing argument, arguing that the
profiles of batterer and victim fit the facts and circumstances of this case.
BWS evidence may not be offered to prove that the event charged
occurred, but only to explain the dynamics of the syndrome and to overcome
"stereotyped impressions" about abused women. (People v. Humphrey, supra, 13
Cal.4th at pp. 1086-1088.) It does not present a problem for the jury to conclude
that the victim has suffered from BWS when there is evidence of other, previous
instances of abusive behavior in the relationship. Jurors can reasonably conclude
that evidence about prior violence in the relationship aids in their understanding of
"the nature and effect of physical, emotional, or mental abuse on the beliefs,
perceptions, or behavior of victims of domestic violence . . . ." (Evid. Code,
§ 1107.) But where, as here, the charge itself is the only event upon which
evidence of BWS is based, the reasoning becomes circular. In such a case, the
jury must first find the preliminary fact of abuse to be true before it may consider
BWS evidence. But, in so concluding, the trier of fact must already have decided
that the accused committed the very act charged in the information.
I conclude, as did the court in Gomez, that a proper foundation for
the admission of BWS evidence requires that the proponent demonstrate
psychological or physical abuse over a period of time. (People v. Humphrey,
supra, 13 Cal.4th at pp. 1083-1084; People v. Gomez, supra, 72 Cal.App.4th at pp.
416-417.) "A single violent incident, without evidence of other physical or
psychological abuse, is not sufficient to establish that a woman suffers from
battered women's syndrome." (Gomez, at p. 417.)
I would reverse and remand for a new trial.
NOT TO BE PUBLISHED.
PERREN, J.

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Pamela R. Rogers, Judge
Superior Court County of Los Angeles
______________________________
William D. Farber, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney
General, Margaret E. Maxwell, Supervising Deputy Attorney General, John Yang,
Deputy Attorney General, for Plaintiff and Respondent.

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