Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. RIF118358 Dennis A. McConaghy, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Maxine Cutler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant and appellant Clifford Dixon guilty of committing (1) two counts of spousal rape under Penal Code section 262; (2) one count of spousal abuse under section 273.5, subdivision (a); (3) one count of assault with a deadly weapon under section 245, subdivision (a)(1); (4) two counts of criminal threats under section 422; (5) one count of false imprisonment by violence or menace under section 236; and (6) one count of assault with a rifle under section 245, subdivision (a)(2). The jury also found that defendant had (1) used a firearm during the commission of one of the rape of a spouse offenses, one of the criminal threats offenses, and the assault with a firearm offense; and (2) engaged in tying or binding the victim during the commission of the other rape of a spouse offense. The trial court sentenced defendant to 10 years, plus 15 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends, and the People concede, that the trial court erred in sentencing defendant. We agree with the parties and shall remand this case for resentencing. Defendant also contends that the trial court erred in limiting defendant’s cross-examination of the victim. For the reasons set forth below, we disagree and shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
A. Prosecution
In late July 2004, defendant was living in a two-bedroom apartment in Moreno Valley with his wife, the victim; their four-year-old son; and the victim’s 14-year-old daughter. Defendant and the victim were having communication and financial problems.
On July 28, 2004, about 10:30 p.m., defendant and the victim were at home and the two children were asleep in the children’s bedroom. The victim and defendant were in the other bedroom. The victim was talking on the telephone. Defendant got upset; he did not want to listen to the telephone conversation. As requested, the victim went into the living room. About five minutes later, defendant went into the living room and told the victim to get off the telephone. The victim complied and hung up the telephone.
At that point, defendant hit the victim in the back of the head with his fist and the victim ran toward the children’s bedroom. Defendant caught up with the victim, grabbed her around the neck, and pulled her out of the children’s bedroom. He then proceeded to choke the victim and stated that he should kill her. Defendant grabbed the victim and tore off her nightgown. Defendant then pushed the victim into their bedroom and onto the bed. Defendant got on top of her, hit her in her face and head, and pulled out some of her hair.
Defendant then picked up a leather belt from the floor, hit the victim with it, and wrapped it around her neck. Defendant choked her with the belt. The victim lost consciousness twice for a few minutes. Defendant then took the belt off her. Defendant then began having intercourse with the victim on the bed. The victim tried to push defendant away. Defendant told her not to scream. The victim complied because she was afraid of defendant and believed that he would continue to beat her if she resisted.
Defendant noticed that the victim’s eye was swollen. He told her that he was sorry and went to get some ice for her eye. After getting defendant’s permission, the victim went out onto the balcony to smoke a cigarette. Defendant followed her to the balcony. Defendant started to talk about what was wrong with their relationship and started to get angry again. They went back into their bedroom and the victim got on the bed. Defendant continued to complain about their relationship.
Defendant then went into the dining room and got a chair. Defendant stood on the chair, got a rifle out of the attic, and stated that he should kill the victim and then himself. Defendant went over to the nightstand; the victim thought that defendant got some bullets for the rifle, but did not see the bullets. Defendant walked around with the rifle stating that he should kill her. The victim thought that defendant might shoot her, or hit her with the butt of the rifle.
Eventually, defendant put the rifle down. He again had sexual intercourse with the victim. The victim told defendant to stop, but he began having anal sex with her. The victim pleaded with defendant to get some lotion so it would not hurt. Defendant told her that he did not care and continued to have sex with the victim. Defendant then went to sleep. The victim got dressed and left the apartment. She went around the corner to her other daughter’s apartment and her daughter called the police.
After midnight, Deputy Todd Lewis responded to the apartment of the victim’s daughter. When he arrived, the victim was upset and crying. She also had a black eye, three inches in diameter. Deputy Lewis took a statement from the victim that chronicled the events of that night.
Deputy Timothy Cleary went to defendant’s apartment. Defendant told Deputy Cleary that he was sorry for what he had done to the victim. Defendant stated that he had never hit the victim before, but she had driven him to the edge that night. Defendant also told the deputy that they had sex that night and that he had pointed the rifle at her to scare her. Deputy Cleary recovered an unloaded but operable .22-caliber rifle; no magazine or bullets were found in the apartment. Defendant was taken into custody.
Approximately one month after defendant’s arrest, the victim began weekly visits with defendant in jail. Defendant also continued to call the victim. During one of the calls, defendant asked the victim to “put in a kind word for [him].” After this conversation, the victim continued to visit defendant in jail and to speak with him on the telephone. The victim spoke with him before and after she testified at the preliminary hearing. Defendant was not happy with the victim’s preliminary hearing testimony.
At some point, the victim obtained a restraining order against defendant. About three months after defendant’s arrest, he and another inmate, Jim, spoke with the victim. During that call, Jim coached the victim on how to testify at trial. He also told her how to stop the restraining order. Later, she had the restraining order modified so she could take their son to visit defendant.
The victim continued to speak with and visit defendant after he assaulted her because she loved him and they had a son together.
B. Defense
Defendant conceded that he had hit the victim with his fists and pointed a rifle at her to scare her. Defendant, however, argued that he had not used a belt, he had not made terrorist threats, and the victim consented to having sex with him. In support of his defense regarding consensual sex, defendant pointed to the victim’s preliminary hearing testimony. At that hearing, the victim testified that she had not pushed defendant away during sex and had consented to have sex with him. In addition, defendant argued that, during his telephone calls with the victim while he was in jail, the victim continually accused defendant of assaulting her and using a rifle; she, however, made no references to a belt or forced sex.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Limiting Defendant’s Cross-examination of the Victim
Defendant contends that the trial court erred “when it refused to allow [defendant] to question [the victim] on cross-examination about evidence that indicated that she had a current bias against [defendant].” According to defendant, he should have been allowed to cross-examine the victim on her past and current relationship with her ex-husband. We disagree.
1. Background
When the victim was originally interviewed by Deputy Lewis on the night of the incident, she stated that defendant had hit her in the face, choked her with a belt, threatened her with a firearm, and forced her to have sex with him.
However, at the preliminary hearing held three months later, the victim testified that defendant had hit her in the face, choked her with a belt, and threatened her with a firearm, but that she had consented to having sex with defendant that night. She stated that her statements to the deputy about forced sex had been an exaggeration.
At trial, the victim changed the testimony she gave at the preliminary hearing. She stated that she had not consented to having sex with defendant. Instead, she testified that she told defendant, “No,” but then participated because she was afraid of defendant.
Following this testimony, which differed from the testimony given at the preliminary hearing, defendant attempted to cross-examine the victim about her relationship with her ex-husband. Outside the presence of the jury, defendant made an offer to prove that: (1) the victim had an affair with defendant and lived with him while she was still married to her ex-husband, and then left her ex-husband for defendant; (2) the ex-husband hated defendant for stealing the victim; (3) the victim was currently living with her ex-husband; (4) the victim’s daughter had called the ex-husband on the night of the incident and he told her to call the police.
Defense counsel argued that the evidence was offered (1) to show that the victim had a current bias against him because of the ex-husband’s influence; and (2) to explain why the victim changed her testimony. The trial court stated, “I’m not going to let you get into the fact that [the victim] was married to the first husband when she was living with [defendant] because that’s not relevant. That just pins her as a bad person, and I’m not going to allow it.”
2. Analysis
The confrontation clauses of the federal and state Constitutions guarantee a criminal defendant the right to confront adverse witnesses. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) To show a violation of the confrontation clause, defendant must show that he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness and thereby to expose facts from which the jury could appropriately draw inferences relating to the reliability of the witness. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680.)
“Nevertheless, a trial court retains broad discretion over the conduct of trial. In the context of its duty to supervise the questioning of trial witnesses, it has wide discretion to limit questions that are marginally relevant and cumulative.” (In re Ryan N., supra, 92 Cal.App.4th at p. 1385.) Although the exposure through cross-examination of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of confrontation, the confrontation clause does not prevent a trial court from imposing reasonable limits on a defense counsel’s inquiry into the potential bias of a prosecution witness. (People v. Cooper (1991) 53 Cal.3d 771, 816-817.) “‘On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’” (In re Ryan N., supra, at p. 1385, quoting Delaware v. Van Arsdall, supra, 475 U.S. at pp. 678-679.)
Cross-examination is effective under the Sixth Amendment as long as the jury receives sufficient information to apprise it of the potential biases and motivations of the witness. (United States v. Carr (9th Cir. 1994) 18 F.3d 738, 740.) A trial court’s imposition of restrictions on cross-examination is reviewed for abuse of discretion. (People v. Farnam (2002) 28 Cal.4th 107, 187; see also United States v. Perkins (9th Cir. 1991) 937 F.2d 1397, 1405.)
In this case, we conclude that the restriction on defendant’s cross-examination of the victim did not violate defendant’s confrontation rights. The relevant question in analyzing whether restrictions on cross-examination have denied a defendant the right of confrontation is whether the prohibited questioning would have given the jury a “‘significantly different impression of [the witness’s] credibility.’” (People v. Frye (1998) 18 Cal.4th 894, 946.)
Defendant argues that the jury’s impression of the victim’s credibility would have been significantly different had the defense been allowed to question her about her relationship with her ex-husband. Defendant argues that, without evidence that the victim had a sexual relationship with defendant while she was married to her ex-husband and that the victim was living with her ex-husband at the time of trial, the jury could not appreciate the victim’s motive for changing her preliminary hearing testimony at the time of trial. We disagree.
Here, the jury heard what the victim told Deputy Lewis on the night of the incident. The jury heard the victim’s testimony at the preliminary hearing, wherein she stated that the sex was consensual and defendant did not choke or otherwise hurt her. During trial, the victim recanted her preliminary hearing testimony and testified that the sex was not consensual. Defense counsel cross-examined the witness on each and every prior inconsistent statement.
Thus, the victim was thoroughly cross-examined about her inconsistent statements. The jury presumably considered the victim’s inconsistent statements in assessing her credibility. Therefore, because questioning the victim about her ex-husband would not have given the jury a “‘significantly different impression of [the victim’s] credibility’” (People v. Frye, supra, 18 Cal.4th at p. 946), the restriction on defendant’s cross-examination of the victim did not violate defendant’s confrontation rights.
B. The Case Should be Remanded for Resentencing
Defendant contends that the trial court erred in imposing a term for his personal use of a firearm enhancement under section 12022.53, attached to the spousal rape conviction in count 1, because the trial court used that circumstance to sentence defendant under the “One Strike” alternative sentencing provisions. The People agree.
Under section 667.61, commonly referred to as the One Strike law, a defendant convicted of certain sex offenses, including rape of a spouse by force under section 262, subdivision (a)(1), can be sentenced to a term of 15 years to life if one of the circumstances listed in section 667.61, subdivision (e), is alleged in the accusatory pleading and found true by the trier of fact. (§667.61, subds. (a), (b), (c)(3), (j).) Relevant to this case, one of those circumstances is where a defendant has personally used a firearm during the commission of the offense within the meaning of section 12022.53. (§ 667.61, subd. (e)(4).)
Here, the amended information charged defendant with a count of rape of a spouse by force (count 1) and alleged that defendant had used a firearm during the commission of that offense within the meanings of sections 667.61, subdivision (e)(4), and 12022.53, subdivision (b). The jury found defendant guilty of count 1 and found the allegation to be true.
At sentencing, the trial court imposed a sentence of 15 years to life on the spousal rape conviction under section 667.61, subdivision (b), based on defendant’s use of a firearm during the commission of the rape. Thereafter, the trial court imposed a consecutive 10-year term on the firearm use enhancement attached to that offense under section 12022.53, subdivision (b), for a total term of 25 years to life on count 1. This was in violation of section 667.61.
Under section 667.61, subdivision (f), as noted in detail above, a 15-year-to-life term could not be imposed absent two of the listed circumstances. Then, neither circumstance could be used to impose separate and lesser punishment for the use of a deadly weapon enhancement. Therefore, the trial court could not impose the 10-year weapon use enhancement consecutive to the 15-year-to-life term.
III
DISPOSITION
Defendant’s sentence is vacated and the case is remanded to the trial court for resentencing in accordance with the provisions of section 667.61. In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P. J., KING, J.