Opinion
H046425
05-13-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK THOMAS ESPINOZA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1772724 )
The trial court sentenced defendant Mark Thomas Espinoza to a three-year prison term after a jury convicted him of inflicting corporal injury on his spouse. Defendant asserts evidentiary challenges on appeal. Finding no prejudicial error, we affirm.
I. BACKGROUND
A. Factual Summary
Carol C. testified that, in early May 2017, she received a phone call from her adult daughter, Jennifer, who was crying uncontrollably. After several minutes, Jennifer calmed down. She told her mother that she and her husband of more than 20 years, defendant, had been arguing. He had thrown her against the wall and grabbed her breasts so hard that she thought he was trying to break her breast implants. She was still in a lot of pain from the attack. Carol saw her daughter about a day later and saw bruises covering her breasts.
On May 6, 2017, San Jose Police Officer Kelvin Pham was dispatched to O'Connor Hospital in San Jose to investigate a possible case of domestic violence. There, he contacted Jennifer. He observed and photographed injuries to her breasts and three-inch-long injuries to each of her forearms. Those photographs were admitted into evidence at trial. Jennifer's medical records from the hospital visit—including statements she made to medical personnel during that visit—also were admitted into evidence.
Defendant testified on his own behalf that he and Jennifer argued on May 4, 2017. He took his cell phone out to record her aggression towards him. Before he could begin recording, Jennifer tried to knock the phone out of his hands using the television remote control, which flew out of her hand and hit the TV. According to defendant, Jennifer then tried to wrestle the phone away from him and bit his hand. She left the room, only to return and attack him again. Defendant said he did not respond physically and denied inflicting any wounds on Jennifer. After the fight, Jennifer left the house. After she had gone, defendant went to a hotel in Sacramento for a couple of days. When he returned home, he was arrested.
Defendant testified that in April 2016 Jennifer got angry at him because she thought he had called another woman. During the ensuing argument, Jennifer intentionally hit herself in the face. She then called the police and reported that defendant had hit her. Defendant was arrested but not charged in connection with her report.
Richard Ferry, a licensed marriage and family therapist testified for the prosecution on rebuttal as an expert in intimate partner violence. He opined that one of the misconceptions regarding intimate partner violence is that victims of such abuse will leave the relationship, report the abuse to the police, and cooperate with authorities in investigating and prosecuting such abuse.
B. Procedural Background
The Santa Clara County District Attorney charged defendant with inflicting corporal injury on his spouse in violation of Penal Code section 273.5, subdivision (a). The case went to a jury trial in April 2018. The jury deliberated for more than a full day and requested readbacks of Carol's testimony and defendant's testimony before rendering a guilty verdict on April 26, 2018. The trial court imposed a mid-term sentence of three years at a September 28, 2018 sentencing hearing. Defendant timely appealed.
II. DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Declaring Jennifer Unavailable
Defendant contends the prosecution did not exercise reasonable diligence in attempting to locate Jennifer to testify at trial. As such, he maintains that the trial court erred in ruling that Jennifer was unavailable as a witness and in admitting into evidence statements she made to medical personnel during her May 6 hospital visit. We find no error. Moreover, even if defendant had demonstrated error, he does not argue—let alone show—resulting prejudice.
1. Background
The prosecutor moved in limine to have Jennifer declared unavailable under Evidence Code section 240, a prerequisite to the admission of statements she made to medical personnel under Evidence Code section 1370. At a section 402 hearing, Lamont Cusseaux, an investigator with the Santa Clara County District Attorney's Office, testified that he had been assigned to serve Jennifer with a subpoena in this case. Cusseaux testified that he first attempted to contact Jennifer on December 12, 2017 in advance of the preliminary hearing, which was scheduled to take place two days later. He knocked on the door of the residence listed as Jennifer's address on both the investigative request and the police report. There was no answer. He also went to a second address and confirmed that Jennifer no longer lived there. In addition, he called the cell phone number listed for Jennifer on both the investigative request and the police report. She did not answer so he left a message. The following day, Cusseaux called the phone number he had for Jennifer again, but did not reach her. He then searched two law enforcement databases for information on Jennifer. Those searches did not yield any new information.
All further statutory references are to the Evidence Code unless otherwise noted.
The preliminary hearing was continued to January 22, 2018. "[S]ometime after" January 20, 2018, Cusseaux received a second request to serve Jennifer with a subpoena. He performed an Employment Development Department (EDD) request in an effort to get Jennifer's current and past employment information. He learned that she was not employed.
On January 22, 2018, the preliminary hearing was continued to February 1, 2018. Cusseaux surveilled Jennifer's residence from 8:00 a.m. to 12:00 p.m. on January 24, 2018. He did not observe anyone coming or going. He surveilled the residence again on January 30, 2018, from 6:30 a.m. to 10:30 a.m. During that time, Cusseaux observed defendant leave the house on a bicycle, ride down the street, and return to the house. Cusseaux also observed Jennifer's daughter leave the house. He approached her, thinking she was Jennifer. The daughter told him that Jennifer knew he was outside and was not coming out. Cusseaux was unable to serve Jennifer with a subpoena before the preliminary hearing, which took place on February 1, 2018.
On February 13, 2018, the trial court set a trial date of March 19, 2018. At a trial readiness hearing on March 15th, the court granted the prosecutor's request for a continuance and reset the trial for April 2nd. A trial readiness hearing was scheduled for March 29th at 9:00 a.m. At some unknown point, Cusseaux received a request to serve Jennifer with a subpoena to testify at the trial. He first attempted to serve her on March 29th. That day, he surveilled her home from 6:30 a.m. until 8:15 or 8:30 a.m. He saw nothing. At the readiness hearing that same morning, the court granted another prosecution request for a continuance, resetting the trial for April 9.
Cusseaux interviewed Jennifer's mother Carol on April 3rd. He learned from her that there was video surveillance equipment outside Jennifer's residence. Therefore, when he surveilled the residence the following day from 6:30 a.m. to 10:30 a.m., he did so from further away using binoculars.
On April 5th, Cusseaux obtained a different cell phone number for Jennifer from Carol. Cusseaux called the new number that day and left a message. He also texted the new number and requested that Jennifer call him back. She responded "I can't because [defendant] is here." Cusseaux sent a couple of follow up texts, to which Jennifer did not respond. Concerned about Jennifer's wellbeing, Cusseaux requested that San Jose police check on her. Officers made contact with her and confirmed that she was safe. Cusseaux did not request that those officers attempt to serve Jennifer with the subpoena. Cusseaux again surveilled Jennifer's residence without success on April 6th, on April 10th from 8:30 to 9:30 a.m., and on the morning of April 11th before testifying at the section 402 hearing that day. Cusseaux testified that he concluded it was going to be "virtually impossible" to serve Jennifer because she was actively avoiding him.
The trial court declared Jennifer to be unavailable as a witness under section 240 and admitted statements she made to medical personnel during her hospital visit (as contained in her medical records of that visit) pursuant to section 1370. Defendant now challenges the court's finding that Jennifer qualified as an unavailable witness, arguing the prosecution failed to show it exercised reasonable diligence in attempting to procure her as a witness at trial.
Defendant indicates the trial court also admitted Jennifer's statements to her mother under section 1370. In fact, the court admitted those statements as spontaneous statements under section 1240. While a finding that the declarant is unavailable as a witness pursuant to section 240 is a prerequisite to the admission of a statement under section 1370, the same is not true for the admission of spontaneous statements under section 1240. That provision provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (§ 1240.)
2. Legal Principles
Section 1370, subdivision (a) excepts from the hearsay rule statements purporting to narrate, describe, or explain the infliction or threat of physical injury upon the declarant where various conditions are met. One of those conditions is that the declarant is unavailable as a witness pursuant to Section 240. (§ 1370, subd. (a)(2).)
Section 1370, subdivision (a) provides in full: "[e]vidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official."
Section 240, subdivision (a)(5), provides that a declarant is "unavailable as a witness" if he or she is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." The California Supreme Court has said that the "reasonable diligence" (or "due diligence") required by section 240, while " ' "incapable of a mechanical definition," . . . "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." [Citations.] Relevant considerations include " 'whether the search was timely begun' " [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation].' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 675.)
On appeal, "we defer to the trial court's factual findings that are supported by substantial evidence, but we 'independently review whether the facts demonstrate prosecutorial good faith and due diligence.' [Citation.]" (People v. Foy (2016) 245 Cal.App.4th 328, 339.) We will not reverse " 'simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps . . . does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection.' [Citation.]" (People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz).)
3. The Trial Court Did Not Err
The parties debate whether the prosecution exercised reasonable diligence in attempting to serve Jennifer with a subpoena to testify at trial. As noted, one of the factors relevant to that analysis is the importance of Jennifer's testimony. The trial court correctly observed that Jennifer's testimony was "critical" here, as only she and defendant were present for the underlying altercation. Accordingly, she was not only the alleged victim but also the only percipient witness other than defendant.
Another pertinent consideration is the timeliness of the search. Cusseaux first attempted to serve Jennifer with a subpoena to testify at trial on March 29th, four days before the trial was then set to begin and a week and a half before the trial ultimately commenced. Cusseaux had previously attempted to contact Jennifer in December 2017 and January 2018 without success. Based on his prior investigations, he knew where Jennifer lived and that she was not employed. That Cusseaux already had gathered information about Jennifer cuts against defendant's argument that he should have begun his search earlier. But Cusseaux's knowledge that Jennifer might be difficult to contact suggests that he should have begun his search efforts earlier.
Also relevant is whether leads were competently explored. Cusseaux pursued the few leads he had in this case. Jennifer was not employed, so he could not attempt to contact her at work. He knew where she lived, but she did not answer the door. He obtained her cell phone number, but she did not answer or return his calls and responded to his text messages rarely, and then only to avoid him. He spoke with her mother. He conducted surveillance on her home on five mornings in the week and a half before trial.
Defendant suggests additional steps that could have been taken, including conducting surveillance at different times of day, knocking on the door of her residence more frequently, and requesting that the police officers that checked on Jennifer's safety serve the subpoena. But the fact that more could have been done does not render the efforts that were made unreasonable. Significantly, the evidence showed that Jennifer was purposefully avoiding service of process. In these circumstances, we conclude that the prosecution exercised reasonable diligence in attempting to procure Jennifer's attendance at trial. (See Diaz, supra, 95 Cal.App.4th at p. 707 [taking into account witness's " 'calculated effort to avoid service of process' " in making finding of due diligence]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [evidence that witness "was actively avoiding being served with the subp[o]ena by hiding from the process server" held to support finding of due diligence].)
4. Defendant Does Not Contend that Any Error Was Prejudicial
Even if we were to conclude that the trial court erred in finding Jennifer to be unavailable as a witness (and thus by admitting evidence of her statements to medical personnel), we would not reverse because defendant does not carry his burden to show that he suffered prejudice. (See People v. Quitiquit (2007) 155 Cal.App.4th 1, 12-13 ["The admission of hearsay statements erroneously admitted under section 1370 constitutes reversible error 'if it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' "].) Defendant does not explain how he was prejudiced by the admission of Jennifer's statements to medical personnel. Accordingly, the point is forfeited. Had it not been forfeited, it is unlikely defendant would have been able to demonstrate prejudice, given Carol's testimony and the corroborating photographs of Jennifer's injuries.
B. Exclusion of Evidence of Jennifer's Prior Conduct
Defendant sought to impeach Jennifer with evidence of four prior incidents, which he said evinced her moral turpitude. The trial court excluded evidence of three of those incidents under section 352, reasoning that the probative value of that evidence was substantially outweighed by the probability that its admission would necessitate undue consumption of time, create substantial danger of undue prejudice, and confuse the jury. Defendant challenges the court's ruling under section 352. He further argues that the trial court erred by failing to analyze the admissibility of the evidence under section 1202 and section 780, subdivision (f). Alternatively, he asserts ineffective assistance to the extent trial counsel failed to preserve the foregoing arguments. We reject these claims.
1. Background
Citing sections 1202 and 1101, subdivision (b), and the Truth-in-Evidence provision of the California Constitution (Cal. Const., art. I, § 28), defendant moved in limine to admit evidence of Jennifer's past conduct. Specifically, he sought to admit evidence showing that: (1) Jennifer hit him in the head with a baseball bat during a fight in 2008; (2) Jennifer hit him with a belt buckle a dozen times during a fight in 2015; (3) also in 2015, Jennifer tracked defendant's iPhone to locate him while he was driving on Highway 101 and forced him off the road by hitting her vehicle into his; and (4) Jennifer filed a false police report accusing defendant of hitting her in 2016.
At oral argument on the motion, the prosecutor argued that the evidence should be excluded under section 352. The trial court took the view that section 1103 governed because defendant was seeking to offer evidence of Jennifer's character for dishonesty. The court went on to rule that evidence of the 2016 false police report incident was admissible. But it excluded evidence of the other incidents under section 352, reasoning that they bore little relevance to her credibility and that their admission would confuse the jury, consume unnecessary time, and result in undue prejudice.
2. Legal Principles
Evidence offered to attack or support the credibility of a hearsay declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. (§ 1202.) "Generally speaking, evidence 'that has any tendency in reason to prove or disprove the truthfulness of a [witness's] testimony' is admissible. (§ 780; see also § 210.)" (People v. Turner (2017) 13 Cal.App.5th 397, 408.) That includes "prior conduct involving moral turpitude whether or not it resulted in a felony conviction." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) "Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad." (People v. Wheeler (1992) 4 Cal.4th 284, 296, fn. omitted, superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459.)
Under section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." In conducting the section 352 analysis in this context, courts should consider, "among other factors, whether [the prior conduct] reflects on the witness's honesty or veracity [and] whether it is near or remote in time . . . . Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] [Accordingly], 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.]" (Clark, supra, 52 Cal.4th at pp. 931-932.)
We review the trial court's rulings on the admissibility of evidence for an abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1095 (McCurdy).) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
3. Exclusion of the Evidence Under Section 352 was not an Abuse of Discretion
At issue is the admissibility of what can best be characterized as evidence of (largely uncharged) spousal abuse—namely, prior acts of violence and stalking by Jennifer towards defendant. The trial court was not unreasonable in concluding that this prior conduct was only minimally probative of Jennifer's credibility. The acts involved violence, not dishonesty, and therefore did not directly bear on Jennifer's veracity. And two of the three prior acts did not result in convictions, making them "generally . . . less probative of immoral character or dishonesty . . . ." (Clark, supra, 52 Cal.4th at pp. 931-932.)
During argument on the motion, defense counsel represented that Jennifer was convicted of violating Penal Code section 415—misdemeanor disturbing the peace—in connection with the 2008 incident.
The trial court's conclusion that the evidence would create a substantial danger of undue prejudice was likewise reasonable. " ' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 491.) It was not unreasonable for the court to conclude that evidence of Jennifer's past violence and stalking would inflame jurors and motivate them to punish her.
In sum, the trial court did not err in excluding the evidence under section 352.
4. Defendant's Other Contentions Fail
Defendant faults the trial court for failing to consider whether Jennifer's past acts were admissible under sections 1202 and 780, subdivision (f). Having never raised section 780, subdivision (f) below, defendant recognizes the possibility that he failed to preserve one or both of these arguments. He contends that, in that case, trial counsel was constitutionally ineffective for failing to do so.
a. Legal Principles
As noted above, section 1202 allows for the admission of evidence impeaching the credibility of a hearsay declarant where such evidence would have been admissible had the declarant been a witness at the hearing. Section 780 states that, "[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to . . . [¶] . . . [¶] (f) The existence or nonexistence of a bias, interest, or other motive." Sections 1202 and 780 both are subject to the limitations of section 352. (People v. Jacobs (2000) 78 Cal.App.4th 1444, 1453; People v. Thornton (2007) 41 Cal.4th 391, 428.)
We review trial court rulings on the admissibility of evidence for abuse of discretion. (McCurdy, supra, 59 Cal.4th at p. 1095.) Unless the erroneous exclusion of evidence completely deprives a defendant of the right to present a defense, reversal is required only if it is reasonably probable that a result more favorable to the defendant would have resulted had the evidence been admitted. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
b. Analysis
As discussed previously, the trial court properly excluded the evidence of Jennifer's prior misconduct under section 352. Assuming the court erroneously failed to consider whether the evidence was admissible under sections 1202 and 708, that assumed error was harmless under any standard. Both of those provisions are subject to section 352 and, given the facts here, the section 352 analysis would be the same whether the evidence was admitted under section 1103, 1202, or 708. Accordingly, had the court considered those provisions, it nevertheless would have conducted the section 352 analysis and reached the same conclusion. Thus, if the claims of error were preserved, any error does not merit reversal. And, if they were not, the ineffective assistance of counsel claim fails for lack of prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
DANNER, J.