Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50910182.
Sepulveda, J.
A jury convicted defendant Charles Chatman of inflicting corporal injury upon his wife (Pen. Code, § 273.5, subd. (a)), and endangering his young children who fled the family home during the assault (Pen. Code, § 273a, subd. (b)). The conviction was based upon police testimony and the preliminary hearing testimony of the wife. The wife did not testify at trial. She made herself unavailable for trial by deliberately evading service of a witness subpoena.
Defendant contends on appeal that (1) a portion of the preliminary hearing testimony was more prejudicial than probative, and should have been redacted; (2) admission of police testimony reciting a statement by defendant’s wife made days after the assault violated his constitutional right of witness confrontation; and (3) there was insufficient evidence of child endangerment. We reject the contentions and affirm the judgment.
I. facts
Defendant’s wife, Chardae, did not testify at the December 2009 trial. She did testify at the preliminary hearing in September 2009, and a redacted version of her preliminary hearing testimony was read to the jury.
Chardae testified that she returned home on the morning of August 22, 2009 after a night out and defendant met her at the doorway, choked her, and pulled her into the apartment by her neck. The couple’s three children (ages three, four, and six) were at the doorway when Chardae came home, and ran out the front door when Chardae started screaming. Defendant punched and kicked Chardae, and pulled hair from her head. Defendant told Chardae: “ ‘I’m whooping your ass because you’re not trying to be in the house with your kids; you[’re] not taking care of them.’ ” Defendant hit Chardae “[a] lot” of times, striking her “[e]verywhere” on her body. Chardae tried to get out of the apartment but could not. Defendant told Chardae to take off her clothes and he took off his own clothes. Chardae was naked when the police arrived. The beating lasted about 20 minutes, and left Chardae with bruises “[e]verywhere.”
Antioch Police Officer Ted Chang testified that he heard a loud argument between a man and woman, and “a lot of banging around, ” as he and other officers approached defendant’s apartment in response to a police radio dispatch. One of the officers announced their presence and “[e]verything went silent” inside the apartment. After about a minute, Chardae came to the door draped in a sheet or bedspread. Officer Chang saw that she was crying, “very distraught, ” and had redness, bruising, and scratches on her face, chest, arms, and legs. Photographs corroborate the officer’s observation of Chardae’s injuries. Chardae told the police: “ ‘He’s in there.’ ” Officer Chang took Chardae from the apartment, onto the front walkway. The apartment complex is composed of two rows of apartment units that face each other across a walkway, or “sort of a courtyard.” The couple’s children, who had run from the apartment when Chardae started screaming, were not seen by the police.
Officer Chris Valliere was one of the three officers who responded to the scene. Officer Valliere is part of a K9 unit, and he announced that he was going to search the apartment with a police dog and that anyone inside should come out to avoid being bitten. The officer received no response so he released the dog. As Officer Valliere followed the dog through the apartment, he heard the shower water running and made another loud announcement for anyone in the apartment to come out. No one did. The dog went into a bedroom. There were a lot of clothes on the floor, next to a bed. The dog started sniffing the clothes, indicating that it had picked up the scent of human odor, then scratched under the bed to indicate that it detected a human. The officer lifted the bed and found defendant hiding there. The dog “apprehended” defendant-biting and holding him for about 25 seconds until the officer took defendant into custody.
Defendant testified in his own defense and denied striking Chardae on August 22, 2009. Defendant denied having even a verbal argument with her that day. Defendant testified that he returned home after days spent at his sister’s house and found his wife bruised. Defendant asked Chardae what happened to her, and she said, “don’t worry about it.” Defendant did not worry about it nor ask any further questions. Chardae then took off her clothes “like she was about to get in the shower.” Defendant heard a knock at the door. Defendant had been home only about five minutes. Defendant looked out the window, saw the police, and hid under the bed. Defendant hid because he knew there was a parole warrant for his arrest. Defendant explained that he had been convicted in 2008 of being a felon in possession of a firearm.
During his testimony, defendant authenticated a handwritten letter by Chardae that was notarized on October 6, 2009. The letter states: “My name is Chardae Chatman. I’m [writing] this letter because my husband Charles Chatman was arrested for spouse abuse on August 22, 2009. Charles Chatman has never hit me. I was just so mad at Charles Chatman. On September 22, 2009 Charles Chatman had a preliminary hearing. I was [also] there because I had been subpoenaed. When I showed up [the prosecutor] Mr. Murphy told me that I had to go on the stand. I repeatedly told Mr. Murphy that I was not going to say [those] bad [things] about Charles Chatman. I was so afraid. Mr. Murphy [k]new that. He took [full] advantage of that. I just want the court to [k]no[w] that Charles Chatman is a good dad and a good husband.”
An investigator for the public defender’s office testified for the defense. The investigator, Dan Castori, said he interviewed Chardae in November 2009, two months after she testified at the preliminary hearing. Chardae told Castori that she and defendant had been arguing when the police arrived at their apartment, but that he did not hit her. Chardae said she told the police that defendant assaulted her because she was angry with him, and maintained the story at the preliminary hearing because she “felt that she had to answer the same way as when she talked to the police officers initially.” Castori asked Chardae how she sustained the bruises seen by the police on the day of defendant Charles Chatman’s arrest, and all she said was “it wasn’t Charlie.” Castori told Chardae that he needed to know how she sustained the injuries, and “[s]he just repeated that Charlie didn’t do it.” Chardae said that defendant never assaulted her, in August 2009 or at any time in the past.
In rebuttal, a police detective who interviewed Chardae two days after the August 2009 incident testified that he asked Chardae if defendant had ever hit her before and she said “that he had hit her so many times in the past that she couldn’t count the number, the total number that it happened.”
The jury convicted defendant of inflicting corporal injury upon his wife Chardae (Pen. Code, § 273.5, subd. (a)) and endangering his young children who fled the family home during the assault (Pen. Code, § 273a, subd. (b)). The court sentenced defendant to the middle, three-year prison term for inflicting corporal injury upon a spouse, plus an additional one-year enhancement for a prior prison term. (Pen. Code, § 273.5, subd. (a), 667.5, subd. (b).) On the misdemeanor child endangerment count, the court sentenced defendant to 130 days in county jail, equal to time already served.
II. discussion
Defendant claims that (1) the portion of the preliminary hearing testimony in which Chardae said defendant ordered her to undress was more prejudicial than probative, and should have been redacted; (2) admission of the police detective’s rebuttal testimony reciting Chardae’s out-of-court statement that defendant “hit her so many times in the past that she couldn’t count the number” violated defendant’s constitutional right of witness confrontation; and (3) there was insufficient evidence of child endangerment. We turn to a discussion of these claims.
A. The victim’s preliminary hearing testimony was properly admitted
Defendant does not deny that Chardae’s preliminary hearing testimony was admissible at trial. The prosecution established, in pretrial proceedings, that the wife was unavailable for trial-she deliberately evaded repeated efforts at service of a witness subpoena. The hearsay rule does not bar introduction of former testimony of an unavailable prosecution witness where, as here, defendant had the right and opportunity to cross-examine the witness at the prior hearing. (Evid. Code, § 1291, subd. (a)(2).)
Nor does the constitutional right to confrontation of witnesses bar introduction of Chardae’s preliminary hearing testimony. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) “A criminal defendant has a constitutionally guaranteed right to confront and cross-examine the witnesses against him or her. [Citations.] The right of confrontation is not absolute, however, and may ‘in appropriate cases’ bow to other legitimate interests in the criminal trial process. [Citations.] An exception to the confrontation requirement exists where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant.” (People v. Carter (2005) 36 Cal.4th 1114, 1172.)
Under these principles, the California Supreme Court has routinely allowed admission of the preliminary hearing testimony of an unavailable witness. (People v. Seijas (2005) 36 Cal.4th 291.) “The recent decision of Crawford v. Washington (2004) 541 U.S. 36..., although changing the law of confrontation in some respects, left these principles intact. ‘Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ ([Crawford, supra, ] at p. 59.] ‘Where testimonial evidence is at issue... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.’ ” (Seijas, supra, at p. 303, quoting Crawford, supra, at p. 68.) These requirements were met here. The trial court properly ruled the preliminary hearing testimony admissible.
While admitting the former testimony into evidence, the court granted defense counsel’s motion to redact portions of the testimony under Evidence Code section 352, which gives a court discretion to “exclude evidence if its probative value is substantially outweighed by the probability” that admission of the evidence will “necessitate undue consumption of time” or “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The court denied one of defense counsel’s redaction requests, and that is the basis of defendant’s grievance on appeal.
The court permitted the following testimony to be read to the jury, which was testimony elicited by defense counsel at the preliminary hearing: “Q. Okay. You said that [defendant] told you to take off your clothes; did you do that? [¶] A. Yes. [¶] A. Okay. Did he also take off his clothes? [¶] A. Yes. [¶] Okay. Were you naked when the police arrived? [¶] A. Yes.”
Defendant argues on appeal that “[t]he trial court’s refusal to redact this portion of Chardae’s preliminary hearing testimony constitutes as abuse of discretion because this testimony bore no relevance to the charged offenses and created a substantial danger of undue prejudice to [defendant] by improperly suggesting that he had engaged in some sort of sexual misconduct.” We disagree with defendant’s assessment of the relevancy and potential prejudice of this evidence. The evidence was relevant. It showed defendant’s power over Chardae, explained why she was wrapped in a bed sheet when the police arrived, and rebutted defendant’s testimony that Chardae was undressed because she was about to step into the shower. The evidence was not unduly prejudicial. Chardae simply said that defendant told her to take off her clothes, which she did, and he took off his clothes. This evidence does not show sexual misconduct and the prosecution never argued that it did. The prosecution focused its case on the infliction of corporal injury, and only referenced Chardae’s state of undress to support the charged offense. In closing argument to the jury, the prosecutor referred to Chardae’s prior sworn testimony that defendant beat her and the “corroborating evidence from the officers” who heard a loud argument and described “[t]he manner in which she was found, naked, draped in a sheet, covered in bruises and marks, crying and upset.” Chardae’s preliminary hearing testimony that she undressed at defendant’s command was relevant and not unduly prejudicial. The trial court did not abuse its discretion in admitting that portion of her testimony in evidence.
B. The victim’s police statement was properly admitted
Defendant proffered an October 2009 letter from Chardae recanting her September 2009 preliminary hearing testimony and stating: defendant “Charles Chatman has never hit me.” Defendant also offered the testimony of defense investigator Castori, who interviewed Chardae in November 2009, two months after she testified at the preliminary hearing. Castori testified that Chardae told him that defendant never assaulted her-not in August 2009 nor at any time in the past. In rebuttal, the trial court permitted a police detective to testify that Chardae, two days after the August 2009 incident and weeks before writing the letter or speaking to Castori, told the detective that defendant “had hit her so many times in the past that she couldn’t count the number, the total number that it happened.”
The prosecution had argued that Chardae’s hearsay statement to the police detective was admissible as a prior consistent statement. (Evid. Code, § 1236.) Defense counsel conceded that “[h]earsay isn’t the problem, ” but maintained that admitting the police statement would violate defendant’s constitutional right to witness confrontation. The court overruled the objection, finding no constitutional bar to admission of the statement because defense counsel had an opportunity to cross-examine Chardae about prior beatings at the preliminary hearing, and briefly did so.
At the preliminary hearing, Chardae said she had a restraining order against defendant at the time of the August 2009 incident, referred to injuries predating the August incident, and said “I’ve been hit by him a lot of times.” Defense counsel succeeded in suppressing these portions of Chardae’s preliminary hearing testimony at trial by convincing the court that they were more prejudicial than probative. The existence of this preliminary hearing testimony about prior spousal abuse, while excluded from the jury’s consideration, demonstrated that defendant had an opportunity to cross-examine Chardae on the subject and thus permitted the prosecution to introduce a short police statement to rebut defense evidence denying spousal abuse, the court ruled. The ruling was correct.
Defendant had an opportunity to cross-examine Chardae at the preliminary hearing, and exercised that opportunity. Testimonial statements of witnesses absent from trial are admissible where, as here, the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 59.) It is true that defendant did not explore Chardae’s accusation of prior spousal abuse during the preliminary hearing but that tactical choice does not render her accusation inadmissible. Prior testimony is admissible as long as defendant is given the opportunity for effective cross-examination; admissibility does not depend upon whether defendant availed himself of the opportunity. (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1547-1548.)
The opportunity to cross-examine a witness at a preliminary hearing is sufficient to warrant the admission of both the preliminary hearing testimony and related police statements if that witness is unavailable for trial. (People v. Seijas, supra, 36 Cal.4th at p. 303; People v. Price (2004) 120 Cal.App.4th 224, 239.) In any event, the evidentiary effect would have been the same whether the court admitted Chardae’s preliminary hearing statement (“I’ve been hit by him a lot of times”) or her police statement (defendant “hit her so many times in the past that she couldn’t count the number”), and defendant is in no position to fault the court for admitting the police statement instead of the former testimony because the testimony was excluded at his insistence. In fact, defendant does not fault the court on this point. Defendant’s complaint lies with the court’s reading of the preliminary hearing transcript.
Defendant argues that Chardae did not really accuse defendant of prior spousal abuse, and thus the subject was never raised or cross-examined. Defendant is mistaken. While certain remarks are ambiguous when read in isolation, the accusation of prior spousal abuse becomes clear when the transcript is read as a whole. When read alone, Chardae’s testimony that “I’ve been hit by him a lot of times” could possibly, as defendant argues, refer to the number of blows she received during the August 2009 incident rather than to the number of previous beatings. But it is a strained reading. One would normally say “I was hit by him a lot of times” when referring to the number of blows from a single beating, rather than “I’ve been hit by him a lot of times.” The decisive element, however, is the surrounding testimony in which Chardae said she had a restraining order against defendant at the time of the August 2009 incident and referred to injuries predating the August incident. When the transcript is read as a whole, it is clear that the subject of prior spousal abuse was raised at the preliminary hearing. Defendant therefore had an opportunity to cross-examine Chardae on that subject and thus the statement about prior spousal abuse was admissible at trial.
Moreover, any error in admitting the statement was harmless beyond a reasonable doubt because the evidence on the charged offense was compelling. (See People v. Cage (2007) 40 Cal.4th 965, 991-992 [applying harmless error standard to violation of confrontation right].) Chardae gave a graphic description of the beating she sustained, and police testimony and photographs corroborated her testimony. Defendant’s defense was inconsistent with the observations of the police and completely implausible. A husband, no matter how neglectful, does not return home to a badly battered wife and show no interest in the cause of her injuries. The evidence of the charged offense compelled a guilty verdict. The statement about prior spousal abuse did not contribute to the verdict.
C. Substantial evidence supports the child endangerment conviction
Defendant was charged with child endangerment. (Pen. Code, § 273a, subd. (b).) The jury was instructed: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering; [¶] OR [¶] 1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health might have been endangered; [¶] AND [¶] 2. The defendant was criminally negligent when he caused or permitted the child to suffer, or be injured, or be endangered.” (CALCRIM No. 823.) A person acts with criminal negligence when “1. He or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation; [¶] 2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; [¶] AND [¶] 3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.” (Ibid.)
In closing argument to the jury, the prosecution argued that defendant was guilty of child endangerment when he beat his wife and the children fled the home under either theory presented in the jury instructions-by causing mental suffering to the children who witnessed the beginning of the assault or by acting with criminal negligence in placing the children in a situation where their health might be endangered when they left the apartment without supervision.
Defendant concedes that a child endangerment conviction may be based on mental suffering caused by one parent’s physical attack upon another. (People v. Burton (2006) 143 Cal.App.4th 447, 453-457.) But defendant notes that the children were present for only a short time during the assault, and that there was no evidence presented about the emotional impact of the incident upon the couple’s children. Defendant also argues that there was insufficient evidence to support the alternative theory-that defendant placed his children in a dangerous situation by causing them to flee the apartment unsupervised. Defendant argues that “there remains a reasonable possibility that upon fleeing the apartment the children immediately found the aegis of a trusted relative or other adult that lived in one of the other apartments that opened onto the common courtyard.”
We believe a jury may reasonably infer that young children suffered mental anguish at watching their mother choked and pulled into the family home screaming, even if the children were not present for the entire assault. That inference is well supported by the children’s response, which was to run from the apartment. The other theory of culpability is even stronger. Defendant’s attack upon his wife drove the children from the apartment and he did nothing to assure their safety. The children were young-ages three, four, and six-and therefore vulnerable. It is possible, as defendant argues on appeal, that the children found refuge with an adult in the apartment complex. It is also possible that the children ran through the streets, alone and exposed to countless dangers. Defendant’s culpability rests upon that uncertainty. An ordinarily careful person would not let his young children run from the family home and do nothing to secure their return or safe supervision. The evidence supports the jury’s verdict of child endangerment.
III. disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.