People v. Towry CA2/6

Filed 12/28/15 P. v. Towry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B261669 (Super. Ct. No. 2012019652) Plaintiff and Respondent, (Ventura County)

v.

KRISTY ANN TOWRY,

Defendant and Appellant.

Kristy Ann Towry appeals from the judgment following her conviction by jury of felony corporal injury to a child. (Pen. Code, § 273d, subd. (a).1) The trial court suspended the imposition of sentence and granted appellant four years of probation, including that she serve a 90-day jail term. Appellant concedes 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 jury a propensity evidence instruction which fails to define reasonable discipline. We affirm.

1 All statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND Prosecution Evidence2 May 29, 2012 Crime In 2012, the 11-year-old victim, C., lived in Moorpark with his father, Timothy M., and appellant, his stepmother. C. was homeschooled. Timothy M. and appellant both disciplined C. by spanking him with a belt. On Tuesday, May 29, they left C. home while they were at work. Before she left, appellant told him to pick up some rocks that were in the yard. She came home before noon and found C. in the house. She yelled and told him to go outside and pick up rocks. A few minutes later, she called him back inside, and told him to bend over and pull down his pants. When he complied, she hit him with a belt several times. He asked her to 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 or would not provide his address or his parents' telephone number to Ghoston. Ghoston took C. to a police station, where he was interviewed by Sheriff Deputy Robert Burckard. C. explained that appellant had spanked him with a belt "between 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 kind 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 his leg earlier that day and that they were "from the belt." He did not fall or injure himself while running away. Sheriff Deputy Gregory Tougas interviewed appellant the same day. She admitted she had "disciplined" C. with a belt that day, by hitting him four