Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. RIF122713, Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.).
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P.J.
A jury convicted defendant of inflicting corporal injury on his cohabitant (Pen. Code, § 273.5, subd. (a)), making terrorist threats (§ 422) and dissuading a witness (§ 136.1, subd. (c)(1)). In bifurcated proceedings, the trial court found defendant had suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)) and a serious and strike prior. (§ 667, subds. (a), (c) & (e).) He was sentenced to prison for 14 years, 4 months and appeals, contending that the victim’s statements were erroneously admitted, insufficient evidence supports the trial court’s finding that defendant suffered a prior conviction for robbery and sentencing error occurred. We reject defendant’s first two contentions and agree with portions of the third. We therefore affirm his convictions and the true findings made by the trial court, affirm some of his sentences and reverse others, ordering one to be stayed, and remand the matter for a determination about the other.
All further references are to the Penal Code unless otherwise indicated.
The minutes of the sentencing hearing and abstract of judgment incorrectly report some of the terms imposed and the total sentence.
Facts
During the early morning hours of March 29, 2005, defendant beat his live-in girlfriend and poured several cans of beer on her. When he left to get more alcohol, she disabled the doorbell because he had told her if the police rang it, he would kill her and have a shoot out with them. After he returned, she waited until he fell asleep to awaken her 14 and 15 year old sons and take them with her as she left the house. She went to a side street around 100 yards from her home, hid behind a vehicle with her sons and called her parents to come get them and take her to the hospital. Although it was chilly, neither the victim nor either of her sons had on a coat or sweater. She had injuries to her face. Photographs of her injuries taken at that time were shown to the jury. On the way to the hospital, the victim spoke to a 911 operator. At the hospital, she spoke to a police officer. The latter observed that the victim’s clothes were disorderly and damp, she was physically and emotionally fatigued, scared and had been crying. Her face was bruised and had lumps. Her hair was in disarray. She looked like she had been in a fight. After defendant was arrested, he admitted getting into an argument with the victim, but he claimed he merely scolded her verbally. More facts will be disclosed in connection with the issues discussed.
Issues and Discussion
1. Admission of Victim’s Pretrial Statements
Between 1:00 and 2:00 a.m. on the 29th, the victim called her parents and told her father that she and her sons were hiding outside her home and wanted them to come over and pick her up. Her parents arrived 15-20 minutes later. The victim was pretty upset and had been crying. She wanted to be taken to the hospital. She said defendant had beaten her up and she and her sons had left their house immediately because they feared for their safety.
In his moving papers, the prosecutor stated that when defendant fell asleep after the crimes, the victim woke up her sons and the three “fled” the house and “hid outside until [her] father was able to come . . . and take her to the hospital.” Defense counsel did not dispute this factual statement.
The victim then spoke to a 911 operator. When asked by the operator what had happened, the victim reported that she had been beaten up by the defendant 30 to 40 minutes previously. She said defendant was passed out on the bed in the master bedroom of their home. She explained that she had not called from her home because defendant had told her that he would split her head open with a beer bottle if she did. She said she snuck out of the house when defendant passed out and she waited for someone to come and get her. She described defendant, his clothes and the injuries to her face, ear and back. She said defendant had been drinking. She cried while speaking to the operator.
A police officer interviewed the victim at the hospital around 4:00 a.m. She told him that during an argument, defendant pushed her off their bed and onto the floor. After demanding that she make a phone call and twisting the phone from her hands, breaking it, he hit her with a closed fist in her forehead, cheek, top and back of her head and jaw. He grabbed her by the arm and threw her to the ground. While the victim was on all fours on the ground, defendant got on top of her and began to punch her in the back of the head. He poured eight beers on her head and clothes. He told her if she called the police, he’d kill her. He also said that when he returned from getting more alcohol, if he heard the doorbell ring and it was the police, he’d kill her and have a shootout with the officers. After he left, she disabled the doorbell. Upon returning, he fell asleep and she left. She called 911 on the way to the hospital. She said the previous December, defendant had been physical with her and she had to be hospitalized. She lied about the incident, saying some girls had jumped her because she feared what defendant would do if he found out she had reported him. She was crying while making these statements.
This is from the transcript of the preliminary hearing, which the trial court noted it had read.
See footnote 3, ante.
The People sought the trial court’s permission to introduce the victim’s statements to her father, the 911 operator and the officer. The trial court concluded that they were excited utterances, adding it did not consider the time that elapsed between the crimes and the 911 call, during which the victim was waiting for defendant to fall asleep and hiding out in the street with her sons, waiting for her parents to come and pick her up, in determining if the victim’s statements were sufficiently close in time to the crimes. The day after the court made this ruling, an attorney appeared in court for the victim and informed the court that the victim would, on the basis of the Fifth Amendment, refuse to answer any question about the crimes when called as a witness for the prosecution. Defense counsel then asserted that admission of the victim’s statements to the 911 operator and the police officer would violate Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford) as they were testimonial in nature. The trial court concluded that none were testimonial, therefore, Crawford did not prohibit their admission. Both sets of statements were eventually admitted at trial. A few days after the victim refused to answer questions about the crimes, she changed her mind and testified, but this time, for the defense, during which she was fully examined and cross-examined about her pretrial statements.
In their trial brief, the People asserted that, unlike the victim’s statements to the 911 operator and the police officers, which were admissible as excited utterances, her statements to her father were admissible as prior consistent statements, in the event she testified at trial in a manner that contradicted these statements. Defendant did not submit a response in writing. At the hearing on the admissibility of the statements, defendant objected to the admission of the statements to the 911 operator on the basis that they were hearsay and were unduly prejudicial. Thereafter, the prosecutor argued that the victim’s statements to her father, the 911 operator and the police officer were all excited utterances. (Thus, defendant’s assertion that the prosecutor did not do this until after the witness invoked her Fifth Amendment right is belied by the record.) The prosecutor said that he anticipated introducing them as prior inconsistent statements, but he wanted the trial court’s ruling that they were also excited utterances. Without specifying which statements he was addressing, defense counsel argued that too much time had passed for them to be excited utterances. As stated before, the trial court then ruled that it was not including the time the victim “cowered” from the end of the crimes to when she obtained assistance. Although defense counsel did not specifically object to the admission of the statements the victim made to her father, it appears that the trial court’s ruling included them.
Appellate counsel for defendant maintains that “[Defendant] . . . objected [below] to the admission of [the victim’s] statements to the 911 operator and police, this time on the additional ground that, because he had not been able to cross examine [the victim], the out of court statements were inadmissible under Crawford . . . .” (Italics added.) He cites in support Reporter’s Transcript pages 13-16. The following is all of what defense counsel below said on those pages: “Your Honor, there comes to mind a fairly recent case, and I don’t know the cite. I think it’s -- I can’t remember the name. And a victim, a witness victim took the Fifth Amendment and it significantly impacted -- [¶] . . . [¶] And it significantly impacted the trial. I don’t know how if or at all it would impact what we’re talking about here, but I would like a little bit of time. [¶] . . . [¶] Yeah, I haven’t read it thoroughly, and I would like to have time -- that’s my understanding, too, but I don’t -- I don’t know. [¶] . . . [¶] If we continue picking and finalize selecting a jury, perhaps we can take some time off, sufficient time to investigate the matter, research it, and then adjourn to a later time. [¶] . . . [¶] Right. [¶] . . . [¶] That’s not on the record. [¶] . . . [¶] Eight. [¶] . . . [¶] I’ve got eight, Your Honor, I believe.”
Defendant asserts that the trial court abused its discretion in admitting these statements. (See People v. Ledesma (2006) 39 Cal.4th 641, 708.) Defendant asserts that the victim’s first statement to her father, i.e., that she and her sons were hiding outside their home and she wanted her parents to come and pick her up, was not an excited utterance because it did not describe an event perceived by the victim. We disagree. It described the event of her and her sons hiding in the middle of the night outside their home.
Defendant asserts that the victim’s next statement to her father, that defendant had beaten her up and she and her sons had left their house immediately because they feared for their safety, was not an excited utterance because there was no evidence that she was still under the stress of excitement when she made it. However, the trial court listened to the tape of the victim’s conversation with the 911 operator, which occurred after this statement. As already stated, it included a description of the injuries the victim suffered, the threat of great bodily injury defendant made to her and the fact that she snuck out of her house to get help. She is crying on the tape. The tape, along with the fact that the victim and her sons were hiding near their home while fleeing the defendant, supplies a sufficient basis for the trial court’s conclusion that the victim’s “emotional state at the time the statement[] [was] made [rendered it an] excited utterance.”
See footnote 3, ante.
Defendant advances the same argument concerning the victim’s statements to the 911 operator. However, as with the statements to the father, there was sufficient evidence on the tape itself and in the circumstances presented to the trial court for it to find that the victim was still under the influence of the crimes when she made the statements.
As to the victim’s statements to the officer at the hospital, defendant acknowledged that the officer stated that she was physically and emotionally fatigued, seemed scared and it appeared as though she had been crying. The prosecutor’s assertion below that at the time of this interview the victim was crying and holding her face which was bruised and severely swollen went unchallenged by the defense. Therefore, there was a reasonable basis for the trial court to conclude that her statements were excited utterances.
In reasserting the objection he made below to this evidence on the basis of Crawford, defendant here ignores what actually happened in this trial. As we have already said, after initially making herself unavailable to be confronted about her pretrial statements by invoking the Fifth Amendment and refusing to testify about the crimes, the victim changed her mind and testified, for the defense, thus subjecting herself to examination and cross-examination about her pretrial statements. Therefore, there could not possibly have been a Crawford violation in the admission of her statements.
Both in his opening and reply brief, defendant argues that, due to the admission of the victim’s statements to the 911 operator and the police officer, “he had no opportunity to cross examine [her] before trial.” However, the only pre-trial opportunity to cross examine the victim is the preliminary hearing. The victim did not testify at the preliminary hearing, although she could have been called as a witness by the defense and examined about her pretrial statements. The trial court’s later ruling admitting these statements at trial did not prevent the defense from doing this. Moreover, no party has a right to “cross examine” any witness before trial.
Nonetheless, defendant wants to take us back to the moment the trial court ruled that the statements were not rendered inadmissible by Crawford and argue that he was prejudiced by their admission because if the trial court had excluded them, the People could not have produced sufficient evidence to establish their case before the victim changed her mind and testified for the defense. However, we cannot speculate that the evidence presented by the prosecutor during his case-in-chief was the only evidence available to him and if the trial court had excluded the victim’s statements to the 911 operator and to the police officer, he could not have called other witnesses to prove the offenses. Therefore, defendant cannot demonstrate that he was prejudiced by the admission of these statements, assuming that the trial court’s ruling was erroneous at the time it was made under Crawford and ignoring the fact that the victim subsequently testified, thereby subjecting herself to cross-examination about her statements.
For example, the victim’s mother, her two sons, and the treating medical personnel at the hospital might have testified to statements the victim made about what defendant did and said to her. We know that the victim had said something to both of her sons to the effect that defendant was responsible for her injuries.
2. Sentencing
a. Consecutive Sentence
At the sentencing hearing, defense counsel asked the trial court to stay sentencing for the criminal threats conviction under section 654. The trial court denied his request, finding one did not have to make a terrorist threat in order to batter a spouse. When the trial court began to impose one-third of the mid term for that count, doubled under the two strikes provision of the three strikes law, defense counsel interrupted, saying he thought the court had to impose a concurrent non-doubled term. The trial court replied, “No. Each of these counts has to be imposed and doubled.” Then defense counsel said the court could double the term, but impose it concurrently. The court replied, “I don’t agree with you.” It then imposed one-third of the mid term, doubled. Then the court imposed a full mid term for dissuading a witness, saying it “must run consecutively under 1170.15 of the Penal Code.” The court offered no reason for running this term consecutively. Defendant here contends that the trial court erroneously believed a consecutive term for dissuading a witness was mandatory and, in fact, it was not. We agree.
Section 1170.15 states, in pertinent part, “Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against the victim of . . . the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed . . . .”
We agree with defendant that the foregoing language means that if the sentencing court chooses to impose a consecutive term for dissuading a witness, that term must be the full term and not one-third of the full term as section 1170.1, subdivision (a) provides. However, 1170.15 does not mandate that a term imposed for dissuading a witness must be a consecutive term. Therefore, what appears to be the sentencing court’s assumption that 1170.15 required it to impose a consecutive sentence on this conviction is incorrect. The sentencing court retained discretion to impose either a concurrent or consecutive term, but if it chose a consecutive term, it had to be the full term and not one-third. Therefore, the matter must be remanded for the trial court to determine whether to impose a concurrent or consecutive term for dissuading a witness.
The People appear to abandon their waiver argument should we so interpret section 1170.15.
b. Section 654
The parties agree that because defendant’s convictions for making criminal threats and dissuading a witness are based on the same threats, therefore, the term for making criminal threats must be stayed pursuant to section 654.
c. Serious/Strike Prior
Defendant contends that the People failed to prove beyond a reasonable doubt that he had suffered a robbery conviction in 1993, which had been alleged both as a serious prior and as a strike.
It was alleged that defendant suffered this robbery conviction and a 2000 conviction for petty theft with a theft prior, the latter under section 667.5, subdivision (b). The robbery conviction was alleged to have occurred on May 5, 1993 in Riverside Superior Court. A section 969b packet concerning the 2000 petty theft with a theft prior conviction was submitted to the trial court. It contained a set of fingerprints which matched the defendant’s.
Also submitted to the trial court were copies of documents which are available to the public on the superior court’s web site, of which the court took judicial notice, without objection by the defense. The first page shows that an Edwin Anthony Arnold was charged in case number CR46005 in Count 1 under section 211 with a robbery which occurred on November 2, 1992 and he pled guilty to that charge and was convicted. The remaining pages are minutes for the same case number, which show that an Edwin Anthony Arnold pled guilty to Count 1 and was given three years of formal probation.
When the prosecutor asked the trial court to take judicial notice of these documents, the court asked defense counsel if he had seen them. He said he had. He did not object. The trial court then took judicial notice of them. Again, defense counsel did not object.
In light of this, defendant’s contention that the omission of any reference to robbery or section 211 from the remaining pages means that there was insufficient evidence that the crime for which an Edwin Anthony Arnold was convicted was robbery is without merit.
Defendant contends that the foregoing is insufficient to prove that he is the Edwin Anthony Arnold who was convicted in 1993 of robbery. However, the section 969b packet established that defendant had been convicted of a theft offense before January 5, 2001, the date on which he was arrested for the petty theft with a prior. The minutes for the robbery case indicate that the Edwin Anthony Arnold to which it refers was youthful on April 7, 1993. Defendant would have been 22 on that day. Defendant’s entire name is not at all common. The chances that this Edwin Anthony Arnold, who had suffered a conviction for a theft offense before January 5, 2001, when he was young, was not the same Edwin Anthony Arnold who was convicted of robbery in 1993 is sufficiently slight that it does not undermine the substantial evidence supporting the trial court’s finding.
Despite his lack of objection below to the trial court taking judicial notice of the documents produced by superior court’s web site, in response to the People’s argument that they were proper subjects of judicial notice, he asserts that they were not. Evidence Code section 452, subdivision (d)(1) permits a court to take judicial notice of its records. Section 452.5 states, “The official . . . records specified in subdivision[] . . . (d) of Section 452 include any computer-generated official court records, . . . when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry.” Defendant contends that the following disclaimer which appears on the web site demonstrates that its records there have not been certified by the clerk of the court: “All information provided by the Superior Court of California, County of Riverside, through this internet service is provided ‘as is’, with no warranties, express or implied, including the implied warranty of fitness for a particular purpose. The Riverside Superior Court, furthermore, does not guarantee or warrant the correctness, completeness or utility for any general or specific purpose of the data available through the access of this site. In no event shall the Riverside Superior Court be liable for any damages, or any nature whatsoever, arising out of the use of, or the inability to use this internet service.”
However, this disclaimer is not an indication that the records have not been certified by the clerk. It is merely a warning that the court will not be civilly liable for any particular use of the information on the web site. Had defendant wished to oppose the People’s request that the trial court take judicial notice of these records on the basis that they lacked certification, the time to do it was below, and not here.
Disposition
The convictions, findings as to the prior allegations and sentences for Count 1 (inflicting corporal injury on a cohabitant) and for the prior conviction and prison allegation (§ 667.5, subd. (b)) are affirmed. The sentences for Count 2 (criminal threats) and Count 3 (dissuading a witness) are reversed. The trial court is directed to stay the sentence for Count 2 pursuant to section 654. The matter is remanded for the trial court to determine whether to impose a consecutive or concurrent term for Count 3 (dissuading a witness) and to state reasons for imposing the former, if that is its choice. When completing a new abstract of judgment, the trial court is directed to state that the term imposed for Count 1 is the mid term, doubled, and not the upper term, doubled, as the abstract currently states.
We concur: HOLLENHORST J., MILLER J.
Not only did trial counsel for defendant not make the argument he asserts here on those pages, he did not make it at any point because it is nonsensical. There was no time that defendant had “not been able to cross-examine [the victim]” because trial had not yet begun and she had not been called as a witness at the preliminary hearing.