Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. VA098936-01. Philip H. Hickok, Judge
Daniel G. Koryn, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, Joseph P. Lee, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant was convicted by jury of second degree robbery with personal infliction of great bodily injury (GBI) (count 5; Pen. Code, §§ 211, 12022.7) and sexual penetration by foreign object with GBI (count 7; §§ 289, subd. (a)(1), 12022.8). Appellant admitted, and the court found true, the allegations that appellant had a prior strike conviction within the meaning of the Three Strikes law (§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
Appellant filed a motion to strike his prior conviction pursuant to section 1385, which the court denied. It imposed a sentence of 36 years in state prison. The court selected the upper term of five years on count 5, doubled to ten years, and imposed a consecutive sentence of the upper term of eight years on count 7, doubled to sixteen years. It imposed five years for the GBI enhancement in count 7, and five years for the prior strike conviction. The court stayed the GBI allegation on count 5, pursuant to section 654.
FACTS
Prosecution
On December 13, 2006, at approximately 11:00 p.m., a woman (identified as Jane Doe) was jogging at a park in Cerritos. She was wearing glasses and talking on her cell phone when she heard footsteps behind her. Someone approached and choked her into unconsciousness.
When the victim regained consciousness she was laying on the ground on her back. Her shirt was pulled up, and her bra was above her breasts and her pants and underwear were around her ankles. Her glasses and cell phone were missing. The victim returned home and told her parents she thought she had been raped. They went with her to the park to look for her glasses and cell phone. The police were called and an ambulance arrived and took the victim to the hospital.
Jan Hare, a forensic nurse, testified that she examined the victim at Anaheim Memorial Hospital at approximately 2:00 a.m. on December 14. The victim reported that she was jogging in a park and heard footsteps behind her. She stopped and moved aside and the footsteps stopped. She resumed jogging and heard the footsteps again. Someone grabbed her from behind and choked her around the neck. She passed out, and the next thing she remembered was waking up on the ground. Her shirt was pulled up, and her bra was above her breasts. Her pants and underwear were around her ankles and she had pain in her rectal area.
Hare testified that the victim had broken blood vessels on her face, behind her ears, on her neck and eyeballs, indicative of choking. She took swabs of the victim's breasts, vaginal and anal areas. Photographs showed multiple tears in the external anal area and lacerations in the internal area. The injuries were consistent with something being inserted into the rectum. The parties stipulated that saliva from the victim's left breast indicated the presence of DNA from the defendant. Also on her breast was the DNA of an unknown third person, whose gender could not be determined. No semen was detected on the victim's body.
Sheriff Deputy Frank Cordova responded to a sexual assault call at the park. He met the victim and her parents in the area where the assault had occurred. The victim told the deputy that she was walking in the park at approximately 11:00 p.m. She felt someone come up from behind, who began choking her and then she lost consciousness. When she awoke, she was laying on the ground with her pants pulled down and her shirt pulled up. The victim was unable to identify her attacker from a photographic line-up or at trial.
Defense
Rodolfo Castro is appellant's friend and has known him for four years. At approximately 7:00 p.m. on the day of the offense they met at a high school track to go for a run. At 9:00 p.m., Castro went to appellant's house in Whittier where they watched a movie. Appellant's wife, five sons and grandmother were present. Appellant fell asleep on the couch. Castro awoke appellant at approximately 11:00 p.m., and then left his house.
DISCUSSION
Past Recollection Recorded
At an Evidence Code section 402 hearing, the prosecution sought to admit the victim's statements to the nurse and police on the grounds that the victim could no longer remember what she told them. Defense counsel objected, arguing that the statements were inadmissible hearsay. The trial court admitted the statements under the past recollection recorded exception to the hearsay rule. (Evid. Code, § 1237) It rejected defense counsel's contention that the reports were testimonial statements within the meaning of Crawford v. Washington (2004) 541 U.S. 36.
At trial, defense counsel renewed his hearsay objections. The victim testified that she remembered going to the park, talking to a friend on her cell phone and running home. She was aware that her cell phone and glasses were missing, and her clothes were in "disarray." The victim recalled speaking to law enforcement and a nurse about the attack, but could not remember what she had told them.
On appeal, appellant claims that the statements did not fall within a hearsay exception and their admission violated his right to confrontation. We review the trial court's ruling on a hearsay objection for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.) Evidence Code section 1237 permits admission of evidence of a witness's extrajudicial statement if certain requirements are met. The statute provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
"(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
"(2) was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;
"(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
"4) Is offered after the writing is authenticated as an accurate record of the statement."
Section 1237 is followed by an assembly judiciary committee comment that "[s]ufficient assurance of the trustworthiness of the statement is provided if the declarant is available to testify that he made a true statement and if the person who recorded the statement is available to testify that he accurately recorded the statement."
Appellant relies on People v. Simmons (1981) 123 Cal.App.3d 677, to argue that the past recollection recorded exception is inapplicable. The witness in Simmons reported to police that he heard the defendant speak about burning down a house, and boast about it afterwards. After signing a statement to this effect, the witness suffered a head injury which caused total amnesia. He could not recall having made the statement, or the circumstances under which it was made. (Id. at p. 679.) The court held that the statement was inadmissible as a past recollection recorded because the witness could not attest to the accuracy of the matters contained within it. (Id. at p. 682.)
Evidence Code "[s]ection 1237 merely recognizes that time universally erodes human memory, although to a greater or lesser degree depending on circumstances and individual characteristics. The motive behind section 1237 is to allow previously recorded statements into evidence where the trustworthiness of the contents of those statements is attested to by the maker, subject to the test of cross-examination...." (People v. Simmons, supra, 123 Cal.App.3d at p. 682.) These requirements were met.
Unlike the witness in Simmons, the victim in the present case recalled being in the park and speaking to law enforcement and a nurse. Their reports were made while the event was fresh in the victim's memory, and she testified that her statements were true. The trial court's admission of the statements under Evidence Code section 1237 was not an abuse of discretion.
Right to Confrontation
Appellant contends that the victim's statements violated his Sixth Amendment right to confrontation under Crawford v. Washington, supra, 541 U.S. 36. Crawford held that the testimonial statements of a witness absent from trial are admissible only where the witness is unavailable and the defendant had a prior opportunity to cross-examine him. (Id. at p. 68.) The court did not define the term "testimonial," but gave examples--grand jury testimony, prior trial testimony, preliminary hearing testimony, and statements taken by officers in the course of interrogation. (Ibid.)
We need not reach the issue of whether the police and nurse's reports constituted testimonial statements. Here, the victim was present at trial. She testified, and was cross-examined concerning the circumstances surrounding the making of her extrajudicial statements. Crawford is inapplicable.
Identity
The issue at trial was identity, which was established by the parties' stipulation that appellant's DNA was found on the victim's breast. Despite the stipulation, appellant claims there was insufficient evidence of identity because the DNA found of the victim's breast included the DNA of an unknown person. Appellant's argument is an invitation to reweigh the evidence, which we must decline. An appellate court may not substitute its judgment for that of the jury, reweigh the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Romero Motion
Appellant claims that the trial court abused its discretion by refusing to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. A trial court has limited discretion under section 1385 to strike prior convictions in Three Strikes cases. It must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Appellant argued that the trial court erred in denying his Romero motion, because his prior strike, an assault with a deadly weapon, was too remote. He committed the offense in 1993, fifteen years before the instant offense. He contended that he served a jail sentence, successfully completed probation and his prior conduct was unrelated to the present offense. Appellant asserts on appeal that the court placed undue emphasis on the great bodily injury allegation in the present case and failed to consider mitigating circumstances.
The record reflects that the trial court was of aware of its sentencing discretion under section 1385 because it stated that it chose to treat the matter as a strike case. It considered that appellant's prior conviction involved gun use and also considered the true finding on the great bodily injury allegation in the present offense. We also note that appellant has not remained crime-free, having been convicted of an unlawful touching in 1995. Appellant has not shown that the court abused its discretion in denying his Romero motion.
Imposition of Upper Term
Appellant asserts that, pursuant to Cunningham v. California (2007) 549 U.S. 270, the trial court erred by imposing the upper term based on facts neither found by the jury nor admitted by appellant. His argument is foreclosed by the decision in People v. Sandoval (2007) 41 Cal.4th 825, which was issued after the amendment of section 1170 subdivision (b). A court may now exercise its discretion to impose a lower, middle or upper term. An additional factual finding is no longer required to impose an upper or lower term. (Sandoval, at pp. 844-845.) Appellant was sentenced on March 14, 2008, after section 1170 subdivision (b) was amended and Sandoval became law. He acknowledges that we are bound by Sandoval, but states he has raised his argument to preserve the matter for federal review.
Imposition of Consecutive Sentences
Appellant asserts that imposition of consecutive sentences in counts 5-7 based on facts not found by a jury or admitted by him violated his Sixth Amendment right to a jury trial. However, he concedes that his argument is foreclosed by the decision in People v. Black (2007) 41 Cal.4th 799, which held that discretionary sentencing choices of consecutive terms does not violate a defendant's Sixth Amendment right to a jury trial. (Id. at pp. 821, 823.) Appellant indicates he has raised this issue only to preserve the matter for federal review.
Correction of Abstract of Judgment
There is a clerical error in the abstract of judgment, which the parties agree should be corrected to conform to the court's oral pronouncement. On count 5, the court imposed and stayed a GBI enhancement (§ 12022.7) pursuant to section 654. On count 7, the court imposed five years for a GBI enhancement (§ 12022.8), and five years for a prior strike conviction. However, the abstract of judgment reflects that the trial court imposed the section 12022.8 enhancement on count 5, rather than count 7.
DISPOSITION
We direct the trial court to modify the abstract of judgment to reflect imposition of a five-year section 12022.8 enhancement for the sexual penetration offense (count 7), and a stay of the section 12022.7 enhancement for the robbery offense (count 5). A copy of the amended abstract of judgment is to be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.