Opinion
H045011
10-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151481A)
A jury convicted defendant of kidnapping, inflicting corporal injury on a former girlfriend, and stalking. He was sentenced to an eight-year prison term. He argues trial counsel was constitutionally ineffective, and the trial court committed prejudicial evidentiary and sentencing error. For the reasons stated here, we will affirm the judgment.
I. BACKGROUND
Defendant confronted Jane Doe shortly after midnight when she returned home from a Friday evening outing with friends. Doe had ended a three-year dating relationship with defendant, and recently stopped acknowledging his text messages. Doe did not have her house key, and she heard defendant call her name as she was knocking on the front door. Defendant told Doe he wanted to talk. She told defendant she did not want to talk at that time, and she asked him to move away from the door so her then 15-year-old son would not overhear the conversation. She offered to talk the next day, and repeatedly asked defendant to leave. Defendant backed Doe into a fence by the driveway, where she continued to tell him she did not want to talk. He defied her will, grabbed her arms, and pulled her toward his parked van. One of her shoes caught on the ground, and she fell backward. Defendant lifted Doe in a bear hug, opened the front passenger door of the van, and pushed her inside. Doe opened the door as defendant was walking in front of the van. He returned to the passenger door, secured her inside, and locked the door with his electronic key. She tried the door but could not get out.
Defendant drove several blocks from Doe's house, where he parked and restrained her for about three hours. He repeatedly hit her in the head and slapped her thigh. He angrily accused her of not being there for him, called her a bad person, and said "[s]ee what you make me do?" When he demanded her phone and she refused, defendant grabbed her by her arm and midsection, and maneuvered her over the console to the backseat. Defendant grabbed Doe's phone from her purse, and repeatedly demanded her Facebook password. She refused, but he was able to read her text messages, and he confronted her about a text sent by a male friend. Defendant continued to hit her, and at one point he grabbed and squeezed her breast. Doe was afraid defendant might rape her, and she begged him to stop. Defendant continued to verbally abuse Doe. Her phone eventually died, and after repeated pleas, defendant unlocked the van, returned her phone and shoe, and Doe walked home barefoot.
The next morning, Doe texted her closest friend: "I faced an unexpected heartbreaking experience last night. Feels like I had a nightmare. Don't know why he took it this far. I'll share with you another day, but it has to do with [defendant]." The friend had canceled the plans she and Doe had to meet that day because of a family emergency. But they met the following day (Sunday) and Doe told her what had happened. When Doe returned home around midnight defendant confronted her a second time in her driveway while she was in her car. Doe "never felt so scared in [her] life." Defendant kept hitting the passenger window, ordering Doe to come out. Then he banged on the driver's side window, saying " 'Come out. We need to talk. I want to talk to you now.' " Doe yelled for defendant to go away, said she was going to call the police, and called inside the house for someone to turn on the outside lights. Defendant disappeared when the lights came on and Doe's son opened the door, and Doe went inside. Within minutes, defendant banged on Doe's front door and called her name. Doe told defendant to go away, and said she was calling the police. Defendant then knocked on Doe's brother's bedroom window, saying " 'I just want to talk to your sister. Open the door.' " Doe again yelled that she was calling the police. She placed a 911 call but hung up as defendant retreated from the house and drove away, and she turned her attention to her son who was confused and upset.
The next day (Labor Day) Doe went to the police station to make a report. The station was closed so she spoke with an officer over the phone. She was eventually interviewed and photographed. Defendant was arrested and arraigned on a criminal complaint, and a criminal protective order was issued.
Doe testified at a preliminary hearing, after which defendant was charged by information with kidnapping (Pen. Code, § 207, subd. (a); count 1), inflicting corporal injury on a former girlfriend (Pen. Code, § 273.5, subd. (a); count 2), stalking (Pen. Code, § 646.9, subd. (a); count 3), and misdemeanor sexual battery by restraint (Pen. Code, § 243.4, subd. (e)(1); count 4).
Three different attorneys represented defendant before trial, a fourth during trial, and a fifth at sentencing. Doe testified at trial and she described defendant as jealous, controlling, and accusatory of her friendships with others. The prosecution also called Doe's brother who was home when defendant was outside Doe's house Sunday night; Doe's neighbor who overheard defendant and Doe Friday night; Doe's friend; a district attorney investigator; an officer who reviewed 911 phone logs; and a second officer who interviewed Doe. A woman identified as "Doe Two" testified regarding her past romantic relationship with defendant, and a psychologist testified regarding behaviors and characteristics common to victims of domestic violence.
Defendant called an automobile mechanic who testified to having inspected the van about two months before trial (18 months after the incident). He testified that the passenger door lock was working properly, and a person could unlock the passenger door from the inside even if the door were locked by a remote key.
The jury found defendant guilty on counts 1, 2, and 3. The jury was unable to reach a verdict on count 4 (misdemeanor sexual battery), and a mistrial was declared as to that count. Defendant was sentenced to the upper term of eight years on count 1, the upper term of four years on count 2 stayed under Penal Code section 654, and a concurrent three-year upper term on count 3.
II. DISCUSSION
A. INEFFECTIVE ASSISTANCE CLAIMS
Defendant argues trial counsel was constitutionally ineffective by promising in opening statement evidence that was not presented at trial, by not objecting to certain evidence, and by gratuitously antagonizing the court. An ineffective assistance claim requires a showing both that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A reviewing court "presume[s] that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) To establish deficient performance, the record on appeal " 'must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.' " (People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice requires a showing that, but for counsel's failings, there is a reasonable probability of a result more favorable to the defendant. (Strickland, at p. 695.) A "reasonable probability" is one that undermines confidence in the outcome of the proceeding. (Id. at p. 694.)
Opening Statement
Trial counsel represented to the jury that the evidence would show a background story about how defendant had garnered enemies through political activism: "Ladies and gentlemen, to assume that this is a run-of-the-mill battery-kidnapping case would be a great disservice to this court, to the practice of law, and the history of humanity here in the state of California." Counsel described defendant as born into a farmworker family, growing up in poverty, witnessing injustice, working for change by running for elected office, and advocating against poor working conditions, homelessness, and police brutality. Counsel made reference to Cesar Chavez having been incarcerated in the local jail. Counsel stated, "I want you to pay close attention to every witness the People provide ... I want you to pay close attention because there's another story happening here, and that story is we need to send a message to my client. We need to send a message to every Chicano politician who dares stand up for the people." Counsel then described weaknesses in the prosecution's case: "[Doe] said when she got into the passenger side of the van she was unable to open the door. ... What we will be doing is attempting to bring in an expert witness to talk about the contrary: that the door is able to be opened, even if it's locked." And "the other thing I find interesting is listen to the 911 calls. ... I don't think there's any indication of abuse, ... I think she says, 'I'm being harassed,' which is very different from being abused."
Defendant has not demonstrated that trial counsel provided deficient representation during opening statement. "Making promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance of counsel per se." (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) It is clear from the record that defendant viewed himself as targeted by law enforcement because of political activism, and counsel sought to deflect the jury's attention from the prosecution's evidence by referencing perceived injustices. Counsel attempted to establish law enforcement bias during trial, albeit unsuccessfully. Attempting to show bias and attempting to garner sympathy from the jury, particularly when the prosecution's case is strong, do not constitute deficient performance.
Expert Testimony
Nor did counsel perform deficiently by not challenging the admission of expert testimony regarding behaviors and characteristics of domestic violence victims. Without objection, the prosecutor moved in limine under Evidence Code section 1107 to admit expert testimony to provide " 'general information' about the actions, reactions and reasoning of persons subject to abuse, specifically why a person stays subject to abuse, does not call the police, is reluctant to cooperate with police or does not desire prosecution of the abuser." At trial, a licensed marriage and family therapist testified to common characteristics of domestic violence victims observed during the course of her counseling career. She also testified regarding considerations that may lead a victim of domestic violence to minimize and underreport domestic abuse, including shame, being publicly known as a victim and thought less of, and the impact reporting would have on the victim's career. The witness did not know Doe, nor offer an opinion about Doe's credibility or defendant's guilt. Her testimony was based on her overall knowledge and expertise in the field of domestic violence. The witness testified that she held a master's degree in counseling psychology, had worked as a licensed marriage and family therapist for over 10 years, had served as the executive director of the YWCA, had overseen shelters and counseling centers, and had counseled thousands of domestic violence victims in whom she was able to observe common characteristics. Given the witness's credentials, defense counsel may have made a reasoned decisioned not to object because the witness had sufficient knowledge and experience to qualify as an expert on domestic violence. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel not required to proffer futile objections].)
Defendant argues that the witness's testimony was inadmissible because it had nothing to do with Doe, given that Doe had ended her relationship with defendant before the charged incidents, Doe had no trouble leaving the relationship, there was no evidence defendant had abused Doe during the relationship, or evidence that Doe had harbored shame, humiliation, or a reluctance to report. No deficient performance is demonstrated based on the lack of a relevancy objection. Doe testified that defendant was jealous, controlling, and accusatory during the relationship; she did not try to get anyone's attention as she was dragged to the van because she did not want to make a dramatic show outside her home; she was embarrassed by what had happened that night; and she did not report the incident to police immediately because she was emotionally distraught, she felt she would be judged, and she thought defendant might apologize. She also knew that "it wouldn't be just any other report" because defendant was known in the community. Whether or not Doe's relationship with defendant was physically abusive, the expert's testimony was relevant to Doe's credibility. (People v. Humphrey (1996) 13 Cal.4th 1073, 1087 [battered women's syndrome evidence relevant to bolster domestic violence victim's credibility].) Even if Doe did not display every behavior or characteristic of a domestic violence victim, the evidence was admissible to dispel misconceptions generally. (Ibid.)
Defendant argues trial counsel was deficient for not objecting to the witness's testimony regarding a person's nervous system and brain function. Asked whether the witness was familiar with "common characteristics of how [domestic violence victims] feel when they're in the relationship," the witness identified depression, anxiety, and often undiagnosed PTSD from underlying trauma. The witness elaborated, "And as we know more about neurobiology, it's less about the cycle of violence. ... [I]t's also about the way our brain works and the way our nervous system works that keeps that cycle continuing." The witness explained that "anger and depression come from the early primal part of the brainstem." She then referred to "fight/flight." She continued, "And they're fighting quite often freeze. And, you know, you're either trying to defend, or you're even [an] aggressor or you try to leave over and over again or you're numbed out. You're frozen. And I see that quite frequently also." No deficient performance is shown on this record. Defendant provides no authority to support the view that a licensed therapist with a master's degree in psychology is unqualified to recognize the impact of the brain and nervous system on human behaviors which are the focus of the therapist's counseling. That portion of the testimony was also brief and inconsequential, and trial counsel may have been of the view that no tactical purpose would be served by objecting.
Uncharged Misconduct
Doe Two testified to physical and verbal abuse that had characterized the five-year relationship she had had with defendant. She testified defendant had been controlling and abusive toward her both verbally and physically. He would call her "slut," "bitch," and "ho," and accuse her of wearing provocative clothes and flirting with men. He would take her phone and go through her text messages and call logs to see with whom she had been communicating. During arguments, defendant had thrown a shoe at Doe Two splitting her lip, shoved her into a wall, and struck her across the face. At times, he had prevented her from leaving by cornering her or by closing his fists in a rage and "get[ting] in [her] face." Doe Two testified to ending the relationship because there was "just no end" to the "abusive pattern." Defendant did not take it well, and for a year tried to reconcile by calling Doe Two, sending her text messages, and appearing at places he knew she would be. He also took over $10,000 of her money held in a joint account. He interfered with Doe Two's wedding plans by claiming to be married to her. And Doe Two obtained a restraining order to prevent defendant from entering the wedding venue.
Defendant argues trial counsel was constitutionally deficient for not objecting to or seeking a limiting instruction regarding the testimony about the money in the joint account. But counsel reasonably could have determined that an objection would be futile, given that the evidence described manipulative, controlling behavior. Counsel also may have believed that such an objection or instruction would only highlight the testimony and make it appear more significant. (People v. Williams, supra, 16 Cal.4th at p. 215.)
Gratuitous Antagonism
Defendant argues trial counsel was unprofessional and ill-prepared, and rendered constitutionally deficient assistance by engaging in egregious and prejudicial conduct throughout the trial. Defendant cites several instances outside the jury's presence where the trial court admonished counsel or commented on his behavior, such as scolding counsel for being "incredibly discourteous" in repeatedly arriving late and keeping court staff and potential jurors waiting, interrupting Doe's cross-examination to note that defendant was impeding the trial by repeatedly consulting with and directing counsel's questioning apparently to force Doe to return the next day, and rebuking counsel for "asking whatever your client writes down and asks you to ask." Defendant also points to comments the court made during pre-trial hearings.
Notwithstanding the court's comments, the record shows that trial counsel competently advocated on defendant's behalf before and during trial. Counsel subpoenaed newspaper records and moved for a change of venue; made evidentiary objections throughout trial; conducted robust cross-examinations of Doe and Doe Two; called a qualified expert to testify regarding the locks on defendant's van; and presented a cogent closing argument emphasizing the prosecution's burden of proof and the weaknesses in the prosecution's case. The trial court itself commented at sentencing that trial counsel "did a very capable job" in the face of defendant's disruptive conduct. The court observed that defendant "was clearly telling his attorney to make arguments that perhaps didn't have any merit," but trial counsel was not to blame for that problem. No deficient performance is shown on this record.
Prejudice
Even if counsel had performed deficiently in any of the ways described above, defendant's ineffective assistance claim fails because he cannot demonstrate prejudice, cumulative or otherwise. The evidence against defendant was strong, credible, and corroborated. The trial court commented at sentencing that Doe appeared completely credible describing her physical and emotional injuries. Doe testified that defendant had ambushed her on her front steps, put her in his van and held her there for several hours against her will during which time he verbally accosted and repeatedly struck her, all the while demanding access to her cell phone and passwords. He accosted her in front of her house a second time 48 hours later, terrifying her and upsetting her son. At no time did Doe recant her description of events. Her testimony was consistent with the statements she made to her friend following the events. It was corroborated by photographs of her injuries and by the testimony of other witnesses.
Importantly, none of the court's admonitions to counsel were made in front of the jury, and not once did the court discredit defendant's case. (See People v. Snow (2003) 30 Cal.4th 43, 81 ["the effect of the court's remarks was not to 'discredit the defense or credit the impression it was allying with the prosecution' "].) Even if individual jurors had a negative view of defendant's attorney, they were instructed not to let bias toward the attorneys influence their decision, and nothing in the record rebuts the presumption that the jurors understood and followed the court's instructions. (People v. Covarrubias (2016) 1 Cal.5th 838, 905.)
B. EVIDENTIARY ERROR
Doe's friend testified that she and Doe met and talked on Sunday afternoon. When asked whether she and Doe discussed what had happened Friday night, she testified "[Doe] vented to me," "she felt very bothered about what had happened," and "[s]he was clearly upset and emotional." The friend testified that Doe was crying and had visible bruises on her arms. Defendant objected on hearsay grounds. The court stated "I'll allow it," and allowed the prosecutor to continue.
The witness went on to testify that Doe told her "they got upset," "[t]hey were arguing," and "somehow she was dragged into a van, and he continued to be upset at her." The friend explained "somehow she[] was released," "one of her shoes was in her hand," and "she just was very upset." She said Doe told her "he took it too far, and she was ready to do something about it."
After the witness's testimony concluded and the jurors had been excused for a lunch recess, the court expanded on its ruling. It found that the circumstance of the occurrence, Doe's demeanor, and what she was describing met the requirements of a spontaneous statement. The court acknowledged "no rule as to how much time would be too much time before a statement would no longer be rendered trustworthy or spontaneous." The court considered "[w]hether this is something she had time to make up and still wasn't upset about it, or was still so upset she was relating what had happened," and found the latter to be true. The court found that the stress of the event would stay with Doe for days. It was "not ruling on how many days," but applied the hearsay exception here.
Defendant argues the trial court committed evidentiary error and violated due process by admitting Doe's hearsay statement under the spontaneous statement exception. He contends Doe's statement was not without deliberation or reflection because Doe had all day Saturday and most of Sunday to reflect about Friday night, during which time she was able to attend a baseball game with her son.
The spontaneous statement hearsay exception applies when a statement "(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [is] made spontaneously while the declarant was under the stress of excitement caused by such perception." (Evid. Code, § 1240.) A spontaneous statement's foundational elements are: (1) an occurrence startling enough to produce nervous excitement and render the statement spontaneous and unreflecting; (2) the statement was made "before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance"; and (3) the statement relates to the circumstance of the occurrence. (People v. Poggi (1988) 45 Cal.3d 306, 318.) In determining whether a statement is sufficiently reliable to be considered spontaneous, the declarant's mental state is paramount. (People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on another ground in People v Waidla (2000) 22 Cal.4th 690, 724, fn.6.) Thus, "[t]he nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant." (Id. at pp. 903-904.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact ... the determination of which involves an exercise of the [trial] court's discretion." (People v. Merriman (2014) 60 Cal.4th 1, 65.) The trial court's discretion "is at its broadest" when deciding whether a statement was made before the declarant had time to contrive and misrepresent, and the nervous excitement of the event still dominated. (People v Poggi, supra, 45 Cal.3d at pp. 318-319.) We review a trial court's application of the spontaneous statement hearsay exception for an abuse of discretion. (Id. at p. 319.)
We find no abuse of discretion on this record. Doe's friend testified that when she and Doe spoke, Doe was visibly bruised, clearly upset, emotional, very bothered about what had happened, crying, and needing to vent. The court was also familiar with the trauma Doe had suffered, having presided over the preliminary hearing in which Doe testified to being locked in the van for several hours, during which time defendant verbally berated her, repeatedly struck her with his hand, grabbed and squeezed her breasts, and "really scared" her.
Cases relied on by defendant are distinguishable. This court in People v. Pirwani (2004) 119 Cal.App.4th 770 reversed an embezzlement conviction in part because the trial court had erred in admitting as a spontaneous statement the victim's version of events told to the witness two days after learning she had entrusted over $55,000 to the defendant. (Id. at pp. 788-790.) We acknowledged that a two-day time-lapse by itself does not disqualify a statement from consideration as a spontaneous utterance. (Id. at p. 789.) However, in that case over the course of the two days between the occurrence and the victim's statement, the victim (accompanied by the witness) visited the police station and spoke to at least two officers and accused defendant of stealing from her. (Id. at p. 790.) The victim was also tearful but calm while relating the events to the witness. (Id. at p. 789.) In contrast here, Doe was visibly upset when she related the traumatic event. And there is no evidence that Doe was able to confide in anyone before speaking with her friend. Even if evidence of Doe attending a baseball game with her son had been before the court at the time the hearsay was admitted, the record shows that Doe did not confide in her son. According to Doe's testimony, he was 15 years old and she wanted him to remain unaware of what had happened.
People v. Ramirez (2006) 143 Cal.App.4th 1512 involved statements made by a 16-year-old victim within hours after being raped by a man she had met at a party. Two justices in Ramirez decided that statements the victim made to strangers about being raped did not come within the spontaneous statement hearsay exception, notwithstanding the victim's physical pain and emotional stress, because the victim at the same time had shown "deliberation or reflection" by expressing worry about what her brother would do if he found out what had happened. (Id. at pp. 1525-1526.) The third justice concurred in the judgment but was of the view that the requirements of the spontaneous statement exception had been met because the totality of the victim's mental and physical condition supported the trial court's finding that the victim had never reached a point where she was beyond distress and excitement. (Id. at p. 1536.) Considering both viewpoints from Ramirez here, the fact that Doe may have interacted with her son or brother before seeing her friend does not militate against a finding of spontaneity. Doe had experienced a stressful assault by someone she had trusted, and the record supports a finding that Doe was under the unabated influence of that stress at least until the time she confided in her friend. Doe testified to being in shock, emotionally distraught, confiding in no one, and spending Saturday alone in her room crying before taking her son to a ballgame.
Even if Doe's statements to her friend were admitted in error, defendant has not demonstrated prejudice or shown the evidence rendered the trial fundamentally unfair. Under the California Constitution, a reviewing court may not set aside a judgment based on evidentiary error "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) A miscarriage of justice results only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We see no reasonable probability of a result more favorable to defendant had the jury not heard the challenged statements, which related that Doe and defendant were upset and arguing, and that Doe was dragged into the van and eventually released with her shoe in hand. But the challenged hearsay related none of the details to which Doe ultimately testified. The prosecution's evidence was strong. Doe was an articulate, credible witness, whose hearsay statements were not a significant part of the prosecution's case overall. Defendant has shown neither prejudice nor a deprivation of due process resulting from the admission of testimony from Doe's friend relating Doe's statements to her.
C. SENTENCING ISSUES
Defendant was sentenced to the upper term of eight years on count 1, the upper term of four years on count 2 stayed under Penal Code section 654, and a concurrent three-year upper term on count 3. The court noted at the beginning of the sentencing hearing that it had considered the parties' sentencing memoranda, the probation report, several letters written in support of defendant, and six victim impact letters. Doe, defendant, and counsel addressed the court, after which the court found no unusual circumstances to overcome the presumption that defendant was ineligible for probation. The court addressed the remorse defendant expressed in the first instance at the sentencing hearing, finding it to be "less than sincere and genuine." The court noted defendant's narcissism, commenting that the focus of defendant's statement was more about himself than Doe, and that his reciting a prayer was self-serving.
Eleven victim impact letters were filed with the court. Five (including letters from Doe, Doe's brother, and three of Doe's friends who signed anonymously) were collectively filed on June 16, 2017. Five additional letters (two from friends who signed anonymously) and a sixth letter (also signed anonymously) were filed on June 20. The court stated it had read "five filed together and one subsequent to that." We deduce from the court's description of the letters it read, together with a specific reference to Doe's statement, that the court read the letters filed on June 16 plus the letter separately filed on June 20. The second set of letters filed on June 20 were presented under a cover memorandum nearly identical to the June 16 filing.
The court commented: "I thought a lot about this sentence. And I'll tell you, I wasn't sure what this was going to be when I came in here today. But I had already found the following circumstances in aggravation pursuant to rule 4.421: The crime involved violence, the threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness. The defendant forcefully took Jane Doe away from the safety of her home, in a locked vehicle, drove her to a dark area where he subjected her to violence, bodily harm, and degrading remarks and accusations for at least a couple of hours. And he did not just punch the victim once, he punched her numerous times, slapped her. It was almost [a] continuous physical assault." The court found defendant "was lying in wait," and Doe "was particularly vulnerable because she was alone, it was late at night, dark outside. She had absolutely no advance[] warning, or any idea, that the defendant would ambush her outside her home under those circumstances."
The court found defendant had engaged in violent conduct indicating he is a serious danger to society, his prior convictions as an adult were of increasing seriousness, and there was nothing genuine about his public apology. The court agreed with a letter written by defendant's uncle that defendant "has done wrong to some people, but also done good to others." The court recognized defendant's community activism, but rejected his suggestion that the activism had rendered him a target and brought him to trial. The court impressed upon defendant: "[Y]our actions here are not just [in]excusable, but actually horrific in terms of what Jane Doe suffered at your hands. She testified as to her fear, and she appeared fearful in court when she testified. She appeared completely credible describing her physical and emotional injuries. And then in court you appear to have wanted to further humiliate and embarrass both Jane Doe and Jane Doe 2 during their testimony ... by seeking to have admitted into evidence things that would be embarrassing, humiliating, and certainly not relevant to their testimony."
Defendant has a 2003 misdemeanor domestic violence conviction (Pen. Code, § 243, subd. (e)), and a 2011 misdemeanor conviction for making a false affidavit concerning an initiative, referendum, or recall petition (Elec. Code, § 18660). --------
False Information
Defendant argues that the trial court violated his right to due process by relying on false information during sentencing, pointing to the court describing defendant as having "punched" Doe in the van and the assault as "continuous." Defendant has forfeited this issue by failing to raise it to the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott); People v. Stowell (2003) 31 Cal.4th 1107, 1113.) Defendant argues that the trial court did not provide an opportunity to object to its mischaracterizations. But the law does not require the court to solicit objections, only to consider those that are raised. (Scott, at p. 452) The record does not support the view that the court would not have considered an objection had one been asserted to clarify the record. Indeed, the court itself used both the words "punched" and "slapped" in describing defendant's conduct as an "almost continuous physical assault."
The argument also lacks merit. Although a sentencing court's reliance "on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process" (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080), the trial court's imprecise word choice here is not tantamount to relying on materially untrue information concerning the facts of the case. The sentencing judge presided over both the preliminary hearing and the trial, and its description of events is largely accurate. Doe testified that defendant repeatedly hit her head and slapped her thigh while she was in the passenger seat of his van; continued hitting her head after moving her to the backseat; and at one point grabbed and squeezed her breast. The record reflects full consideration of the evidence presented at trial and all relevant sentencing factors. No due process violation has been shown.
Victim Impact Letters
Referencing Penal Code section 1191.1, defendant argues "it is only '[t]he victim, or up to two of the victim's parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died,' who have the right to submit [victim impact] statements." According to defendant, the court mischaracterized the letters from Doe's brother and friends as statements coming within section 1191.1, and it therefore did not understand that it had the discretion not to consider the letters. Defendant's failure to raise his concern to the sentencing court forfeits the issue on appeal. (Scott, supra, 9 Cal.4th at pp. 352-356.)
The argument is also meritless. Under section 1191.1, a victim (or the victim's representative if the victim is a minor or deceased) has the right to attend all sentencing proceedings, and to express his or her views to the sentencing court concerning the crime, the defendant, and restitution. Section 1191.15 provides for the victim (or representative) to submit a written or recorded statement in lieu of or in addition to personally appearing in court. (Pen. Code, § 1191.15, subd. (a).) But neither section limits the court's authority or discretion to consider the views of others regarding the impact of a crime on the victim. (People v. Zikorus (1983) 150 Cal.App.3d 324, 332 ["Penal Code section 1191.1 was not intended to change common law and limit information a sentencing court may consider in imposing judgment. It simply guarantees to the victim a right to be heard and considered."].)
The sentencing court referred to the letters twice—once as victim impact statements and a second time as victim impact letters. Neither characterization supports defendant's view that the court understood it to be mandated by law to consider them. (People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general rule is that a trial court is presumed to have been aware of and followed the applicable law"].)
Defendant complains that six of the letters were anonymous and therefore unreliable and prejudicial. Though it appears the court read only four anonymous letters, all the letters written on Doe's behalf were submitted by the district attorney's office, and copies were provided to defendant's attorney and the probation office two months before defendant was sentenced, which provided ample time to verify the letters. That contrasts with situations where a defendant has no opportunity to address out-of-court statements relied on by the sentencing court. (See People v. Surplice (1962) 203 Cal.App.2d 784, 792, and People v. Giles (1945) 70 Cal.App.2d.Supp. 872, 884.) The trial court committed no error in considering the letters presented here.
III. DISPOSITION
The judgment is affirmed. /s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Danner, J.