Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 1205371 George C. Eskin, Judge.
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Jessie Daniel Defilippo appeals a judgment after his conviction of two counts of inflicting corporal injury to a former cohabitant (Pen. Code, § 273.5, subd. (a)), battery with serious bodily injury (§ 243, subd. (d)), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) and two counts of making criminal threats (§ 422). The jury also found the special allegation that Defilippo inflicted great bodily injury under circumstances involving domestic violence to be true (§ 12022.7, subd. (e)). The trial court imposed an aggregate state prison term of nine years eight months. It imposed an upper term of four years on the corporal injury count.
All statutory references are to the Penal Code unless otherwise stated.
We conclude the trial court: 1) properly admitted evidence of prior domestic violence incidents, 2) correctly admitted a tape of a telephone conversation, 3) properly excluded the testimony of a psychologist who tried to impeach a prosecution witness, 4) gave the defense adequate opportunity to impeach a prosecution witness, 5) correctly instructed the jury on the offense of dissuading a witness, and 6) did not err by imposing an upper term sentence for the corporal injury count. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) But the court erred by not imposing a court security fee for each count in the judgment. (§ 1465.8.)
We order the abstract to be corrected to add a $20 court security fee for each count in the judgment. In all other respects we affirm.
FACTS
Michelle C. met Defilippo in 1999. They lived together for several years. Michelle moved out in 2003, but they continued to see each other.
We refer to the parties by their first names, not from disrespect, but to ease the reader's task.
On August 20, 2005, Michelle and Defilippo had an argument. Michelle testified that Defilippo "socked" her and "gave [her] a black eye." A few days later Janice G., Michelle's mother, asked Defilippo about the black eye. He said "they got into an argument," he became "angry and he hit" Michelle.
On August 25 Defilppo and Michelle spent the day together. Defilippo drove her home, told her that he was going to his parents' house and left. Michelle suspected he was "cheating on" her. She took a cab to Defilippo's parents' home. Defilippo was not there. She located Defilippo, told him she could not tolerate "his lies" and she was ending their relationship. Defilippo offered to take her home. After they got into his car, he punched her in the nose and told her not to call the police.
Michelle was bleeding and had three nose fractures. Two weeks later she underwent surgery to "elevate the bones of the nose" and "straighten out the cartilage and septum."
Before the surgery Janice went to Michelle's house and discovered that Defilippo was staying with her. She confronted him about her daughter's injuries and said, "You did it again." Defilippo responded, "Yep." She told Michelle that Defilippo "better not be there when I come back."
A few hours later she returned and saw Michelle lying in the street "screaming hysterically that [Defilippo] hit her again." Michelle's face was "swollen" and "black and blue." Janice and Michelle "agreed" to call the police. After reporting the incident Michelle wanted to leave the state. She "was scared because she knew that when [Defilippo] found out that she talked to the police, that he was going to hurt her."
Two weeks later Janice learned that Defilippo made a threat. He told Michelle that "if [he] spent one day in jail, that Michelle would have two bullets in her forehead and he would burn [Janice's] apartment building down." Janice testified that Michelle was "scared."
Tom Miller, a criminal investigator with the district attorney's office, testified that Michelle was afraid. She said that "she couldn't testify or she was dead."
Janice tape recorded a telephone conversation with Michelle after Defilippo had made death threats to document her daughter's fear. The tape was played for the jury. Janice testified that during the telephone conversation Michelle said she was afraid for her own safety and feared that Janice "was going to be burned."
Evidence of Prior Uncharged Acts of Domestic Violence
Over Defilippo's objection the court admitted evidence of prior domestic violence incidents involving Defilippo and Michelle.
Michelle testified that Defilippo became "physically violent" during the first few months of their relationship. In 2000 he physically assaulted her. In 2001 he told her to leave the house. When she began to leave, Defilippo shot her with a BB gun. On several occasions he threw a coffee table at her, and then told her to clean up the mess.
In 2002 they fought with each other. Michelle suffered injuries during these incidents, including a sprained ankle and arm and neck bruises. In 2003 Defilippo pushed Michelle out of a window. In 2004 Michelle's mother observed new bruises on Michelle's thighs and arms.
DISCUSSION
I. Admitting Prior Uncharged Acts of Domestic Violence
Defilippo contends the trial court abused its discretion in admitting 24 prior acts of domestic violence which he had committed against Michelle.
Where the defendant is charged with a domestic violence offense, the prosecution may introduce "prior domestic violence evidence" to show a defendant's propensity for using violence. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.) But the court must weigh the evidence under Evidence Code section 352 to determine whether it "is more probative than prejudicial." (Jennings at pp. 1313-1314.)
Here the prosecution sought to introduce 28 incidents of prior domestic violence by Defilippo. The court excluded four incidents which it found to be unduly prejudicial. Defilippo concedes that the trial court "performed the analysis under § 352."
He claims, however, that admitting the remaining 24 incidents into evidence was excessive. But these events took place over a five-year period. They show a probative pattern of violence by Defilippo during the beginning, middle and end of his relationship with Michelle. Because this pattern is similar to the charged offenses, the court could reasonably find its probative value substantially outweighed any prejudicial impact. (People v. Jennings, supra, 81 Cal.App.4th at pp. 1314, 1315.) There was no abuse of discretion.
Moreover, Defilippo has not shown that the exclusion of this evidence would have changed the result. Michelle's testimony was supported by the testimony of Janice and medical evidence.
II. The Admission of Janice's Tape Recording
Defilippo contends the court erred in admitting the tape recording of the telephone call Janice had with Michelle. He claims the prosecution did not establish the tape's authenticity. We disagree.
A tape recording of a conversation may be admitted where the proponent of this evidence authenticates the tape and shows that it is accurate. (People v. Patton (1976) 63 Cal.App.3d 211, 220; People v. Spencer (1963) 60 Cal.2d 64, 77-78.) Here Janice testified about how and when the tape was made and she identified the parties to the telephone conversation. Michelle testified the tape was accurate. The jury could determine the reliability of the tape and the credibility of Janice and Michelle because they both testified.
Defilippo claims that because Janice gave the tape to the prosecution it was now in the custody of a public entity and had to meet the certification standards for admitting public records into evidence. (Evid. Code, §§ 1530, 1531.) We disagree. Evidence Code section 1530 provides, in relevant part, that "(a) A purported copy of a writing in the custody of a public entity . . . is prima facie evidence of the existence and content of such writing . . . if . . . (1) The copy purports to be published by the authority of the . . . public entity . . . (2) . . . and the copy is attested or certified as a correct copy of the writing . . . by a public employee . . . ." (Evid. Code, § 1530, subd. (a)(1) & (2), italics added.)
But this tape was not a writing or a public record. It was not prepared by a public agency or by anyone performing a public duty. Janice made the tape to document her daughter's state of mind after Defilippo had threatened her. It was a private recording.
Defilippo argues that in In re Kirk (1999) 74 Cal.App.4th 1066, the Court of Appeal held that public records act certification standards apply to psychological reports "prepared by outside doctors to be used as evidence in [an] SVP proceeding." But that case is distinguishable. The psychologists, although private, are performing a public duty to make an evaluation required by the SVP Act. The public entity receiving their reports has a statutory duty to maintain them and determine whether the requirements of the SVP Act are satisfied.
Here the prosecution's act of obtaining a private tape to use as evidence did not convert the tape into a public record. Defilippo concedes that the police and the prosecution had no role in making that tape. Moreover, there was no evidence that the tape had been altered, was inaccurate or incomplete.
Defilippo claims the tape should have been excluded because it was admitted "only to invoke an emotional bias against" him and the contents of the tape were irrelevant. He contends it was prejudicial error to allow jurors to hear Michelle's "hysterical" sobbing on the tape. But it was highly probative evidence of her sustained fear which is a relevant element of the criminal threats counts against Defilippo. (§ 422.)
Moreover, Defilippo has not shown how the result would change if the tape had been excluded. The prosecution introduced additional evidence to show Michelle's state of mind. Janice testified about Michelle's terrified demeanor during the telephone conversation. Miller testified that Michelle was so scared she did not want to testify.
III. Expert Testimony to Impeach Michelle's Credibility
Defilippo contends the trial court erred by excluding the testimony of his expert, Dean Given, Ph.D, a clinical psychologist. He claims Dr. Given should have been permitted to testify that Michelle had a borderline personality disorder and people with such a disability tend to exaggerate events. We disagree.
Defilippo sought to introduce this testimony to impeach Michelle. But "[t]he use of psychiatric testimony to impeach a witness is generally disfavored." (People v. Marshall (1996) 13 Cal.4th 799, 835.)
Moreover, the trial court held a hearing out of the presence of the jury to determine whether any of this testimony should be admitted. It found Dr. Given did not have sufficient information to testify about Michelle's "ability to perceive and recall events" and the evidence would have a "prejudicial effect [on] the jury's deliberative process."
These findings are supported by the record. Dr. Given testified about the general tendency of people with borderline personality disorder to exaggerate. But he admitted that he did not examine Michelle and therefore could not diagnose or determine whether she had that disability. He reviewed her medical records which mentioned borderline personality disorder. But he conceded that he could not tell from those records whether the tests necessary to diagnose the disorder had been administered. The trial court could reasonably infer that Dr. Given's testimony was largely speculative and potentially confusing to jurors. It did not abuse its discretion by excluding it. (People v. Marshall, supra, 13 Cal.4th at p. 835.)
IV. Impeaching Michelle With Her Prior Petty Theft Conviction
Defilippo contends that the trial court erred by refusing to allow him to impeach Michelle with evidence that she had been convicted of petty theft. He is not correct.
The trial court initially ruled that evidence of Michelle's petty theft conviction was inadmissible to impeach her. But it later reversed itself. The defense subsequently questioned Michelle about her petty theft conviction. She admitted that she had pled guilty for stealing $40. The jury heard evidence about this conviction to consider it for impeachment purposes.
V. Instruction on Dissuading A Witness
Defilippo contends the court's instruction on the offense of dissuading a victim or witness from reporting a crime was erroneous. We disagree.
The court gave CALCRIM No. 2622 which states, in relevant part, "The defendant is charged in Count 4 with intimidating a witness. To prove that the defendant is guilty of this crime, the prosecution must prove that: 1. the defendant maliciously tried to prevent or discourage Michelle . . . from making a report that she was a victim of a crime to a law enforcement agency; 2. Michelle . . . was a witness or crime victim; and 3. the defendant knew he was trying to prevent or discourage Michelle . . . from making a report that she was a victim of a crime to a law enforcement agency and intended to do so. A person acts maliciously when he unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice . . . ." (Italics added.)
Defilippo claims that this instruction omits the required elements that the defendant used force or the threat of force to dissuade the witness. Section 136.1 has several subdivisions of crimes involving intimidating victims and witnesses. A defendant charged under subdivision (c)(1) of this statute must have dissuaded the witness or victim "by force or by an express or implied threat of force or violence." (§ 136.1, subd. (c)(1).)
But Defilippo was charged and convicted of violating section 136.1, subdivision (b)(1). It states, in relevant part, "Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense . . . (1) Making any report of that victimization to any peace officer or state or local law enforcement officer . . . ." Under this subdivision force or fear is not an element of the offense. (People v. McElroy (2005) 126 Cal.App.4th 874, 879.) The instruction the trial court gave was correct. (Id., at pp. 879-880.)
Moreover, Defilippo told Michelle not to contact the police after he broke her nose. Defilippo has not shown from this record why the jury could not reasonably infer that this warning was accompanied by an implicit threat of violence if she disobeyed.
VI. The Upper Term Sentence
Defilippo contends the trial court erred by imposing an upper term sentence of four years on the corporal injury count by relying on aggravating sentencing factors which were not tried by a jury. (Cunningham v. California, supra, 127 S.Ct. 856.) We disagree.
When the sentence was imposed California law provided that the presumptive term was the mid-term. Defilippo therefore had the right to have a jury decide the aggravating sentencing factors before the trial court could impose an upper term sentence. (Cuningham v. California, supra, 127 S.Ct. 856.) There are two exceptions to this rule. "First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict." (People v. Sandoval (2007) 41 Cal.4th 825, 836.) "Second, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction." (Ibid.)
Here the probation report listed as factors in aggravation that: 1) Defilippo's "prior convictions as an adult are numerous and increasing in seriousness," 2) he was on probation when the crime occurred, and 3) his prior performance on probation was unsatisfactory. It noted that he had prior felony convictions for selling drugs. Before imposing the upper term the court said that Defilippo had abused Michelle and inflicted "terror" on her family. It noted that he had prior felony convictions for "drug dealing" and a "history of criminal conduct." The "imposition of an upper term sentence [does] not violate [a] defendant's right to a jury trial" where "at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [the defendant] eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 806.) The aggravating sentencing factor of Defilippo's prior criminal record is sufficient to support the upper term. (Ibid.)
VII. The Court Security Fee
The Attorney General notes that Defilippo was convicted of six counts, but when the court imposed sentence it erred by not including any court security fees. We agree.
A trial court must impose a $20 court security fee for "each of [the] defendant's convictions." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865; see § 1465.8, subd. (a)(1).)
We direct the trial court to modify the abstract of judgment to impose a total of six $20 court security fees. (See People v. Schoeb, supra, 132 Cal.App.4th at p. 867.) As so modified, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.