People v. Gorostiza

Full title: THE PEOPLE, Plaintiff and Respondent, v. ELIAS GOROSTIZA, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: May 29, 2020

No. F075943 (Cal. Ct. App. May. 29, 2020)

Opinion

F075943

05-29-2020

THE PEOPLE, Plaintiff and Respondent, v. ELIAS GOROSTIZA, Defendant and Appellant.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Mars, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F16904710)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Mars, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Elias Gorostiza was charged with multiple felony offenses after he physically assaulted his then-girlfriend, C.G., on two separate occasions in July 2016. C.G failed to appear at the preliminary hearing. Prior to trial, she testified at an evidentiary hearing that she did not want to testify at trial, she did not remember anything about the two incidents, and asserted that she would similarly testify that she could not remember anything if she appeared at trial. At defendant's jury trial, which was held in December 2016, C.G. briefly testified on direct examination that she could not remember anything about the two incidents. She then failed to appear the next day for continued examination and cross-examination; the court issued a no-bail body attachment.

Despite extensive efforts by the investigators for both the People and the defense, C.G. was not located and never returned to the trial. The court found she was unavailable as a witness within the meaning of Evidence Code section 240. Thereafter, the People moved to call the officers who interviewed C.G. to testify about her pretrial hearsay statements regarding the charged offenses. Defendant objected and argued C.G.'s pretrial statements were testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and inadmissible under the Sixth Amendment since the defense never cross-examined her at trial. The court overruled the defense objections and admitted the hearsay statements pursuant to Evidence Code section 1370, statements about the infliction of physical injuries, and Evidence Code section 1240, spontaneous declarations. The court agreed with the People that defendant had sufficient opportunity to confront and cross-examine C.G. at the pretrial evidentiary hearing and overruled defendant's Crawford objections.

Based on the two incidents in July 2016, defendant was convicted of two counts of the willful infliction of corporal injury to C.G., with a prior domestic violence conviction (Pen. Code, §273.5, subd. (f)(1));¹ two counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); and two counts of misdemeanor contempt of court, based on his violation of a criminal protective order that existed at the time of the offenses (§ 166, subd. (c)(1)). He was also convicted of assault with a deadly weapon, a belt (§ 245, subd. (a)(1)), and misdemeanor vandalism (§ 594, subd. (a)), based on the July 23, 2016, incident. He was sentenced to 15 years four months in state prison.

1 All further statutory citations in the Introduction and Part I are to the Penal Code unless otherwise indicated.

On appeal, defendant contends the court improperly permitted the officers to testify about C.G.'s pretrial hearsay statements in violation of Crawford and his Sixth Amendment right to confront and cross-examine witnesses, since C.G. never returned to trial for cross-examination. He also contends the prior domestic violence conviction allegations attached to the two violations of section 273.5, willful infliction of corporal injury, must be reversed because they were the result of defense counsel's stipulation to the existence of the prior conviction, and he was never advised of or waived his constitutional rights. Defendant next contends his admissions to the three prior prison term enhancements alleged in the information must be stricken because the court again failed to advise him of his constitutional rights and also because of subsequent amendments to section 667.5, subdivision (b).

Defendant raises two sentencing issues and argues the court improperly imposed fully consecutive midterm sentences for the two counts of dissuading a witness, and the court lacked jurisdiction to impose a 10-year criminal protective order.

In Part I of the factual statement, we will address the evidence introduced at trial. In Part II, we will review the procedural background of C.G.'s repeated failures to appear in this case, the pretrial evidentiary hearing where C.G. appeared and the defense had the opportunity to cross-examine her, C.G.'s brief trial appearance, and the events which culminated in the court's rulings that C.G. was unavailable as a witness and her pretrial hearsay statements were admissible through the testimony of the officers who interviewed her.

We find the admission of the officers' testimony about C.G.'s pretrial statements did not violate defendant's Sixth Amendment rights. We affirm defendants' two convictions for the willful infliction of corporal violence, but we are compelled to strike the jury's true findings on the prior domestic violence conviction allegations attached to those two convictions because defendant did not knowingly and intelligently waive his constitutional rights before defense counsel stipulated to the prior conviction. We are also compelled to strike defendant's admissions and the sentences imposed for the three prior prison term enhancements and will remand the matter for a new sentencing hearing. In all other respects, we will affirm the judgment.

PART I

THE CHARGED OFFENSES

C.G.'s trial testimony

C.G. testified defendant was her fiancé, they lived together in her house in Fresno, and were involved in an intimate relationship for over two years. C.G.'s three minor children also lived with them; defendant was not their biological father. C.G. testified there were no issues of infidelity between them and she trusted him.²

2 As we will explain in issue I, post, C.G. failed to return to the trial for cross-examination. Thereafter, defense counsel made the tactical decision not to move to strike C.G.'s limited trial testimony.

In response to the prosecutor's questions, C.G. testified she did not recall the charged offenses that allegedly occurred on July 16 and 23, 2016, and did not recall making statements to certain police officers about those incidents. The prosecutor showed her a photograph of a damaged DVD player and asked what happened to it. C.G. said she did not know and did not remember telling an officer that defendant damaged a DVD player in the house on July 23, 2016, and it was worth $800. She was also shown a photograph of a crutch in her house. C.G. testified it had been used as an antenna to help with television reception and did not recall telling an officer that defendant used the crutch to damage the DVD player.

The prosecutor asked C.G. if there had been any incidents of domestic violence in their relationship prior to July 2016. C.G. testified she could not remember "that far back." The prosecutor asked C.G. if she was aware that defendant had been convicted of committing two counts of domestic violence against her in August and September 2015. C.G. testified she could not recall or remember anything happening on those dates, testifying in a prior case, or that defendant was convicted of anything.³

3 In February 2016, defendant was convicted of committing misdemeanor domestic violence offenses against C.G. He was placed on probation and given a criminal protective order to stay away from C.G. for three years.

The prosecutor asked C.G. if she sent text messages to her stepfather on July 23, 2016, asking for his help. C.G. testified: "I don't recall anything that happened that far back. I can't remember." She testified that she did not recognize the text messages, and she could not recall sending them from her cell phone.⁴

4 As will be addressed below, this was the full extent of C.G.'s direct examination at trial. The court recessed for the day and ordered her to return, but she failed to do so, and she was never found before the end of defendant's trial.

A.G., C.G.'s stepfather, testified he spent quite a bit of time with C.G.'s children and cared for them. He had an on-and-off relationship with C.G, and she kept him "in the dark" since she became involved with "certain people." A.G. testified C.G. had been through domestic violence issues with prior boyfriends, and one former boyfriend had been sent to prison.

A.G. knew defendant moved into C.G. house. A.G. did not like defendant and thought he was "kind of shady." C.G. had been "very secretive" about her relationship with defendant, and she "changed" after she was with him. He had previously seen C.G. with black eyes and bruises, but C.G. "would never say it was [defendant]." The incident on July 16 , 2016 (counts 1-5)

On Monday, July 18, 2016, C.G. called the police department and reported a domestic violence incident had occurred on Saturday, July 16, 2016. An officer did not respond to her home to take a report until July 19, 2016, because of an erroneous dispatch classification.

On July 19, 2016, Fresno Police Officer Brian Williams met with C.G. at her home.⁵ Officer Williams testified that prior to meeting with her, he determined that a protective order had been issued in February 2016, protecting C.G. from defendant, and it was still valid.

5 After C.G. failed to return to the trial, the court granted the People's motion to admit Officer Williams's testimony about his conversation with C.G. regarding the July 16, 2016, incident, that was the basis for counts 1 through 5.

Officer Williams testified that C.G. let him into the house but appeared scared. She looked outside, asked where the patrol car was parked, and said it could not be in front of her house. C.G. said she had received threats from defendant that he would kill her and her children if she called the police. Williams testified C.G. was scared during the entire the interview and had a "nervous twitch." C.G. did not want the officer there and was afraid defendant would show up.

Officer Williams testified that C.G. said that around 5:00 a.m. on Saturday, July 16, 2016, she was asleep, and her children were in the house. Defendant and C.G. were no longer together, but he still had a key to the house. Defendant entered the house that night using a key. Defendant asked her about a .22-caliber firearm. C.G. told defendant that she did not know anything about the gun. C.G. said defendant became upset and punched her multiple times in the chest and arms. C.G. fell and defendant "stomped" her in the back and took her cell phone away from her.

C.G. said defendant put a gun to her head and threatened to kill her and the children if she called the police. C.G. said defendant was holding a black semiautomatic .380-caliber gun. Defendant turned to leave and threw a .380-caliber bullet at her. Defendant still had the .380-caliber gun when he left. C.G. believed defendant would kill her. C.G. had not heard from defendant since that night.

Officer Williams asked C.G. why she waited to call the police. C.G. said defendant had taken her cell phone, and she did not find it until Monday, July 18, 2016, under the cushions in her couch.

Officer Williams testified he recovered an unexpended .380-caliber bullet in the house, that C.G. said defendant had thrown at her. C.G. showed him a gun that she found in the house; it was a BB gun that appeared to be a real semiautomatic firearm. She also showed him a gunshot hole in a bathroom wall. C.G. said a few days before assaulting her, defendant was cleaning his gun and it discharged into the wall. Williams recovered an expended .380-caliber bullet from the hole in the bathroom wall.

Officer Williams testified C.G. reported defendant assaulted her two weeks before the incident on July 16, 2016. C.G. said defendant hit her legs with keys that caused bruises and injuries, and he burned her foot with a cigarette. C.G. said she did not report this incident because they were trying to make the relationship work. C.G. said defendant had previously ordered her to delete all his photographs from her cell phone so "she couldn't show any of his pictures to the police." Williams obtained a photograph of defendant from the computer in his patrol car, and she confirmed his identity.

Officer Williams observed a large, substantial bruise on C.G.'s arm. Another officer took photographs that showed bruises on C.G.'s back, thigh, chest and arms, and bruises and abrasions on her legs. She complained of back pain. Williams offered C.G. medical attention, but she declined.

Officer Williams advised C.G. of services for domestic violence victims. C.G. said she had already changed the locks in her house after the July 16, 2016, incident. C.G. said she wanted charges filed against defendant "as long as she didn't have to testify" because she was afraid of defendant and his family.

Charges and convictions

Based on the July 16, 2016, incident, defendant was charged and convicted of the following offenses:

Count 1: Corporal injury to a person with whom defendant previously had a dating relationship, C.G., with a prior domestic violence conviction (§ 273.5, subd. (f)(1));

Count 4: Dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); and

Count 5: Misdemeanor contempt of court for violating the existing criminal protective order (§ 166, subd. (c)(1)).

Defendant was charged in count 2 with assault with a firearm (§ 245, subd. (a)(2)). The jury found him not guilty but convicted him of the lesser included offense of misdemeanor simple assault (§ 240). Defendant was charged with count 3, criminal threats (§ 422) and found not guilty. The July 23 , 2016, incident

C.G.'s stepfather, A.G., testified that on July 23, 2016, he received text messages from C.G.'s cell phone number. The messages said: " 'I need help,' " and " 'I need you to call probation officer. His name is Justin Baroni' " and gave a telephone number. The messages continued: " 'Send him to my house. He's [defendant's] probation officer. Please help me, dad. Don't text back. Love you and the [children].' "⁶

6 A.G. appeared at trial on the day that C.G. failed to return to complete her testimony. A.G. testified C.G. was "not too happy" that he was going to testify. A.G. said he initially did not want to appear because C.G. "put the fear in me that this guy would come after us, you know. But enough's enough," and he decided to testify to protect his grandchildren.

A.G. became distraught when he read the messages. A.G. was too upset to call the police himself. Instead, he immediately contacted his niece, told her about C.G.'s messages, and asked her to call the probation officer.⁷

7 A.G. testified that after the July 23, 2016, incident, C.G. told him that defendant hit her and put her in the closet. She showed him bruises on her hands and arms. C.G. told A.G. that she was afraid defendant was going to "come after her and the kids."

The police respond

Around 12:40 p.m. on July 23, 2016, multiple officers from the police department were dispatched to C.G.'s home after being informed of a possible domestic violence emergency. The officers were advised there had been a previous incident at the house that possibly involved a firearm, based on C.G.'s report about the July 16, 2016, assault.⁸ The officers were stationed in front of the house. They repeatedly attempted to make contact with anyone in the house inside using telephone numbers associated with the occupants. They also used a loudspeaker to make multiple announcements to the occupants. No one responded.

8 Officer Scott testified that a probation officer was not contacted, and the dispatch call came through 911.

At 1:30 p.m., Fresno Police Chief Jerry Dyer arrived as the field commanding officer. Dyer was advised that a man was possibly holding a female against her will based on a message she had sent to a relative, no one was responding to multiple calls and messages sent into the house, and the suspect was possibly armed.

At 2:22 p.m., Chief Dyer ordered a SWAT team to force entry into the house.

The SWAT team used a ram to break open the front door; they entered and secured the residence. Within minutes of entry, the officers arrested defendant and escorted him out of the house without incident. Defendant was wearing jeans but no shirt. C.G. was also in the house. Defendant was not armed, and the officers did not find a firearm in the house.

C .G.'s statement to Chief Dyer

Chief Dyer testified he entered the house immediately after it was secured, and he was the first officer to speak with C.G. Dyer's initial contact with C.G. "was to simply determine how she was physically and whether or not there was going to be a need for medical aid. I didn't visibly see that she did need that but just asked her if she was okay and she said yes."⁹

9 After C.G. failed to return to the trial, the court granted the People's motion to call Chief Dyer to testify about C.G.'s statements regarding the July 23, 2016, incident.

Chief Dyer testified that C.G. was "very visibly shaken" and "very scared." She was "shaking when she was seated, she had a cigarette ... that she had just lit, but she was shaking considerably. And at that time when I was speaking with her[,] I could tell that her voice was also shaking."

Chief Dyer testified that he had the following exchange with C.G. upon entering the house, within a 30 to 60 second timeframe.

"Initially I had asked her if she was being held against her will or was not allowed to be, was not allowed to leave the residence when the announcements were made and her response was, I believe, that she did not hear the announcements, but that she believed he did. And then I followed up with a question and asked her did you feel that you were not allowed to leave the residence, and she said yes. And then I asked the question how did she know that she was not allowed to leave the residence, and ... she said because she was led into another room. And then I had follow-up, did he lead you into that room physically, and she had made the comment something about him grabbing her hair. And then there was ... another question if he had sexually assaulted her or had sex against her will. She said no. I asked her if he had hit her and she said yes. And then the last question I asked her specifically was so you did feel that you were being held against your will and how did you know that. And she said - she paused and said because I didn't want to get hit again."

After this brief conversation, Chief Dyer testified he turned over the investigation to other officers and left the house.

C .G.'s statement to Officer Divine

Officer Divine testified that after Chief Dyer left the house, Divine interviewed C.G. for about 30 minutes. Divine testified C.G. was relieved the officers were there, but she was shaking, tearful, and became emotional as she described what happened. She did not appear under the influence of drugs or alcohol.¹⁰

10 The court granted the People's motion for Officer Divine to testify about C.G.'s statements after she failed to return to the trial.

Officer Divine asked C.G. what happened and then asked more detailed questions as she explained the incident. C.G. said defendant appeared in the house around 2:00 a.m. Her children were not home. C.G. thought defendant got into the house because he still had a key, and she did not do a good enough job changing the locks.

C.G. said defendant accused her of calling his probation officer. She tried to avoid the question. Defendant said if she had to think about it, then she was lying. Defendant took off his belt and used it to hit C.G.'s left leg. Officer Divine observed a bruise on her left leg.

C.G. said they argued, and defendant grabbed a crutch that was in the house and used it to break the DVD player. Defendant told C.G. that he would "take care of her" if she contacted the police in any way. C.G. knew he meant that she would "either be beaten or killed by him or someone else." C.G. was afraid of him.

C.G. said she convinced defendant to take a shower to calm down. C.G. said while defendant was in the shower, she sent a text message to a family member that defendant was there and not to text her back. C.G. then deleted the text message because defendant periodically reviewed her cell phone to see who she was texting or calling. C.G. took a shower after defendant did.

After C.G. got out of the shower, she tried to get dressed but defendant said he was seeing shadows at the front door and he wanted to go into the laundry room. C.G. thought defendant was having a "trip" from using methamphetamine. C.G. said defendant took her hand and forcibly made her to go to the laundry room, and then forced her to an upstairs bedroom.

When they were upstairs, C.G.'s cell phone rang. Defendant asked her about it. C.G. said she did not know who was calling her. Officer Devine testified that based on C.G.'s timeline, he believed the call was from the officers in front of the house who were trying to contact the occupants.

C.G. said she got on the bed and was on her side with her "good ear" on the mattress so she did not have to listen to defendant. He was ranting and yelling at her. Defendant suddenly got up, put on his pants, and started pacing around the room. C.G. thought the police were making the loudspeaker announcements based on defendant's reaction, but she could not hear anything.

C.G. said she realized the police were there when she heard the front door crash open. Defendant said he loved her and told her to go downstairs first. C.G. agreed because she was relieved the police were there.

Officer Divine testified C.G. also told him about the incident on July 16, 2016, and said the children were present at that time. C.G. said their relationship ended that day because defendant threatened her children.

C .G.'s statements to Officer Scott

On July 25, 2016, Officer Derek Scott spoke to C.G. on the telephone. C.G. knew defendant was in custody and said she had not been in contact with him. C.G. expressed concern about her well-being.¹¹

11 After C.G. failed to appear, the court granted the People's motion for Officer Scott to testify.

Officer Scott testified he had been trained as a domestic violence expert. He investigated the July 23, 2016, incident and reviewed the photographs. He believed C.G.'s leg injury was consistent with being caused by a "typical belt swing." Stipulations

The court advised the jury that the parties had entered into the following stipulation of facts. On February 18, 2016, in Fresno Superior Court case No. 15906337, defendant was personally served in court with a criminal protective order forbidding him from having personal, electronic, telephonic or written contact with C.G. for three years.

It was also stipulated that in the same case, defendant was convicted of a misdemeanor violation of section 243, subdivision (e)(1), domestic battery upon C.G., committed on August 24, 2015; and a misdemeanor violation of section 273.5, subdivision (a), corporal injury upon C.G., occurring on September 19, 2015.¹² Prosecution expert

12 In counts 1 and 6, defendant was charged with corporal injury to a person with whom he had been in a dating relationship, with a prior domestic violence conviction in 2016. The stipulation was to the 2016 prior conviction alleged to those counts. The prior conviction allegations were not bifurcated, sent to the jury, and found true. In issue V, post, we address defendant's argument that the jury's true findings must be stricken because the court never advised defendant of his constitutional rights prior to defense counsel entering into the stipulation about the truth of the prior domestic violence conviction.

Robert Meade, a licensed marriage and family therapist, testified the domestic violence cycle consisted of the "honeymoon" phase, "explosion" phase, and a return to the "honeymoon" phase. Domestic violence is mainly about power and control. The abuser tries to make the victim question their sense of reality, the relationship wears down the victim's sense of self-esteem, and victims frequently return to the abusive relationship despite past physical abuse. Domestic violence victims sometimes avoid coming to court to testify or sometimes testify to a lack of memory.

Charges and convictions

Based on the July 23, 2016, incident, defendant was charged and convicted of the following offenses:

Count 6: Corporal injury to a person with whom defendant had a dating relationship, C.G., with a prior domestic violence conviction (§ 273.5, subd. (f)(1));

Count 7: Assault with a deadly weapon, a belt (§ 245, subd. (a)(1));

Count 8: Dissuading a witness by force or threat (§ 136.1, subd. (c)(1));

Count 9: Misdemeanor vandalism¹³ (§ 594, subd. (a)); and

Count 10: Misdemeanor contempt of court, based on violating the existing criminal protective order (§ 166, subd. (c)(1)).

13 The vandalism charge in count 9 was based on defendant's destruction of the DVD player and charged as a felony based on the allegation that the property was worth more than $400. The jury convicted defendant of vandalism but found the value allegation was false, resulting in the misdemeanor verdict.

DEFENSE EVIDENCE

Defense investigator Kristen Herrera testified she spoke with C.G. outside the courtroom on December 8, 2016, which was the only day that C.G. testified at the trial. C.G. was not "excited about being involved in the case." Herrera asked C.G. if she recalled the charged offenses. C.G. said no. Herrera gave the specific dates for the charges. C.G. repeatedly said she did not remember anything that happened then.

C.G. said she saw a Facebook article that said defendant held her hostage in the house. She said that they lived in that house, so it was not possible that he held her hostage. C.G. said they had verbal disagreements, but they were dating. She never believed defendant was cheating on her, and she never saw him with a firearm.

Herrera asked C.G. if she had any contact with defendant since he was arrested. C.G. said she had mailed letters to defendant in jail because they were in a relationship. She stopped sending letters because the jail sent them back to her. C.G. said she was not requesting a restraining order because she planned to continue having a relationship with defendant in the future.

C.G. said she took medication for a condition that caused grand mal seizures twice a week. Herrera tried to contact C.G. when she failed to return to the trial but could not find her. Defendant's testimony

Defendant testified and admitted that he had prior convictions for violating Vehicle Code section 2800.2, subdivision (a), evading an officer with reckless disregard in 2014; section 12316, subdivision (a)(1) and section 12021, subdivision (a)(1), possession of a firearm by a felon in 2008; a misdemeanor domestic violence conviction in 2016 that was committed against C.G.; and that a protective order had been issued as part of his probation in the domestic violence case.

Defendant testified that he never told C.G. that he loved her or planned to marry her. He was not living with C.G. in 2016 and tried to avoid her after the protective order was issued in February 2016. Defendant met another woman named Megan, and they started living together. He tried to avoid further contact with C.G. In February or March 2016, C.G. contacted defendant. He told her that that he was in a relationship with someone else.

Defendant denied that he went to C.G.'s house on July 16, 2016, and said he never held a gun to her head.

Defendant testified that he went to C.G.'s home on July 23, 2016. C.G. called and asked for help because she was having a seizure. They had sexual intercourse that day. Defendant did not hear the police's announcements through the loudspeaker. Defendant testified he never told C.G. not to testify or tried to influence her testimony in this case.

Defendant testified he read a Facebook post from C.G. in August 2016. C.G. wrote that July 23, 2016, was the worst day of her life because a "[d]ude" pulled a gun on her and threatened to kill her.

Defendant testified that in July, August, and September 2016, while he was in jail for the current charges, he received several letters from C.G., and read them aloud at trial. In the letters, C.G. accused him of cheating with "Meg"; she was angry about the other woman and threatened to kill her; she was angry at defendant and was going to press charges against him, but she still loved him. Defendant did not respond to C.G.'s letters to avoid violating the protective order. He gave the letters to his attorney and asked a custodial officer to document that C.G. was sending the letters to show that he was not violating the protective order.

Officer Michael Mason testified for the defense. He worked in the jail's mail screening unit. Mason testified mail logs showed that in September and October 2016, C.G. sent numerous letters to defendant, but the jail returned them to her, because of the existing restraining order and in response to defendant's request to a correctional officer.

REBUTTAL

Officer Justin Baroni, whose name C.G. texted to her stepfather on July 23, 2016, testified he was not a probation officer but instead assigned to the police department's probation unit. Baroni went to C.G.'s home in October 2015 to look for defendant because he had an outstanding probation warrant. When Baroni and other officers approached the house, they heard sounds consistent with two people inside. C.G. answered the door. C.G. initially said he was not there, but then admitted he was present. The officers used a loudspeaker and ordered defendant to come out. Defendant would not leave the house for 15 minutes. He was eventually taken into custody.

Officer Baroni testified he again went to C.G.'s house on July 21, 2016, based on a report defendant might be there. The officers cleared the house and determined defendant was not present. Baroni spoke with C.G., who appeared fearful because of the July 16, 2016, incident. C.G. said defendant had fired a gunshot into a bathroom wall a few days earlier and told Baroni, "[T]his has got to stop." Baroni gave her his business card, told her to call him if defendant returned, and they would take him into custody.

SENTENCE

On December 14, 2016, outside the jury's presence, defendant admitted three prior prison term enhancements alleged in the information (§ 667.5, subd. (b)).¹⁴

14 In issue V, post, we will find that defendant's admissions to the three prior prison term enhancements, and the terms imposed, must be stricken.

On December 16, 2016, the jury returned the verdicts, as outlined above.

On June 30, 2017, the court denied probation and imposed an aggregate term of 15 years four months: the upper term of five years for count 1, willful infliction of corporal injury with a prior domestic violence conviction; plus three one-year terms for three prior prison term enhancements; a fully consecutive midterm of three years for count 4, dissuading a witness by force or threat; a consecutive term of one year four months (one-third the midterm) for count 6, willful infliction of corporal injury with a prior domestic violence conviction; a fully consecutive midterm of three years for count 8, dissuading a witness by force or threat; the term for count 7, assault with a deadly weapon, was stayed pursuant to section 654.¹⁵

15 Defendant rejected the People's pretrial offer to plead guilty to count 3, criminal threats, for a maximum possible term of two years and dismissal of other pending cases. The People rejected defendant's counteroffer of pleading to a misdemeanor violation of section 273.5, subdivision (a) for time served.

The court also issued a domestic violence criminal protective order that prohibited defendant from having any contact with C.G. for 10 years, pursuant to section 136.2, subdivision (i)(1).

PART II

C.G.'S FAILURE TO APPEAR AND THE COURT'S ADMISSION OF HER

PRETRIAL STATEMENTS

As noted above, C.G. briefly appeared at trial, failed to return, and was not subject to cross-examination by the defense. The court found she was unavailable as a witness. Thereafter, the court granted the People's motion to introduce C.G.'s pretrial hearsay statements about the charged offenses that she gave to Officers Scott, Williams, Divine, and Chief Dyer.

In issues 1 through 4, post, we address defendant's primary arguments on appeal, that the court erroneously admitted the officers' testimony about C.G.'s pretrial hearsay statements in violation of his Sixth Amendment right to confront and cross-examine witnesses, because C.G.'s statements were testimonial under Crawford, and defendant never had the opportunity to cross-examine C.G. since she failed to return to the trial; and the People's argument that defendant had the opportunity to cross-examine C.G. at the evidentiary hearing held prior to trial, and his Sixth Amendment rights were not violated. In order to address these arguments, we must review the procedural background leading to the court's decision to admit the officers' testimony. C.G.'s failure to appear at the preliminary hearing

On July 26, 2016, the complaint was filed. On August 30, 2016, the court set the preliminary hearing for September 6, 2016. Defendant withdrew his previous time waiver so that the case would time out on December 5, 2016.

On September 6, 2016, the court convened the scheduled preliminary hearing. C.G. failed to appear, and the court issued a body attachment for her arrest. The court granted the People's motion to continue the hearing.

On September 23, 2016, the court conducted the preliminary hearing. C.G. had not been found, and the court continued the body attachment. In C.G.'s absence, the People called Officers Williams and Divine to testify to C.G.'s pretrial hearsay statements about the charged offenses pursuant to Proposition 115.¹⁶ Defendant was held to answer. First day of trial; motions in limine

16 Later during trial, when C.G. failed to return to testify, the prosecutor explained that C.G. failed to appear at the preliminary hearing even though the court issued a body attachment, and that forced the People to proceed with the preliminary hearing by introducing the officers' hearsay testimony about C.G.'s pretrial statements under Proposition 115. Proposition 115 allows for the admission of certain hearsay evidence in a preliminary hearing, and that a finding of probable cause may be based "in whole or in part upon the sworn testimony of a law enforcement officer ... relating to the statements of declarants made out of court offered for the truth of the matter asserted" if the law enforcement meets certain criteria. (Pen. Code, § 872, subd. (b).)

On December 1, 2016, defendant's trial began with the parties' motions. Defense counsel's first motion sought to prevent the People from relying on Evidence Code section 1390 ¹⁷ to introduce C.G.'s pretrial hearsay statements to the officers if she failed to appear.

17 All further statutory citations in Part II and the Discussion, issues I, II, III, and IV, are to the Evidence Code unless otherwise indicated.

As we will discuss below, section 1390 codifies the forfeiture by wrongdoing equitable doctrine that permits the admission of testimonial statements made by an unavailable victim or witness, who was not subject to cross-examination, when the defendant by a wrongful act makes that witness unavailable with the intent to prevent that person from testifying. (See, e.g., Giles v. California (2008) 554 U.S. 353, 358-368; People v. Kerley (2018) 23 Cal.App.5th 513, 549-550 (Kerley).)

Defense counsel stated she was making the motion "in contemplation that the alleged victim would not be in court and that the People would attempt to admit unconfronted testimonial evidence about her presence under the doctrine of forfeiture by wrongdoing, essentially that it was due to [defendant's] bad acts or interference her appearance is not in court," by calling the officers to testify about her pretrial hearsay statements. Defense counsel argued there was no evidence defendant engaged in any conduct to prevent C.G. from appearing within the meaning of section 1390.

The court said the body attachment to compel C.G.'s presence was still outstanding. The court asked the prosecutor whether C.G. was going to appear and, if not, whether the prosecutor would move to introduce C.G.'s pretrial hearsay statements based on section 1390.

The prosecutor said she was not sure if C.G. was going to testify and, at the moment, she did not plan to rely on section 1390 because she did not "have evidence to be able to go forward" on that basis, but "that could change."

The court granted defendant's motion to exclude the People's reliance on section 1390 without prejudice, and advised the prosecutor that "if you believe that the posture of the case changes prior to the presentation of any evidence within the meaning of ... Section 1390, we'll take a hearing outside the presence of the jury to ascertain the nature and the extent of that evidence and whether the court is going to exclude it or not."

While C.G. failed to return to trial to complete her testimony, the prosecution never raised or relied upon section 1390, the forfeiture by wrongdoing doctrine, to argue that defendant forfeited any Sixth Amendment objections to the admission of C.G.'s pretrial hearsay statements, and the court never addressed the issue.¹⁸ The section 402 evidentiary hearing ¹⁹

18 In issue I, post, below, we address the People's appellate argument that the officers' testimony about C.G.'s hearsay statements was admissible under section 1390, the forfeiture by wrongdoing doctrine.

19 This section 402 hearing was the only time C.G. was available for cross-examination in this case. In issue III, post, we find that defendant's opportunity to confront and cross-examine C.G. at this hearing was sufficient to permit the introduction of her testimonial statements to the officers at trial.

Also, on December 1, 2016, the court addressed the prosecutor's motion to introduce the text messages that C.G. sent to her stepfather on July 23, 2016. Defense counsel raised foundation and hearsay objections. The court took the matter under submission.

On Monday, December 5, 2016, the court resumed the hearing on the text messages. The prosecutor stated that C.G. was present in court and could testify at a section 402 evidentiary hearing to establish the foundation for the text messages to address defendant's objections. The court agreed, and said it was also concerned about whether C.G. intended to testify at trial and wanted to address that issue before a jury was selected.

The court called C.G. to the witness stand and she was sworn. The court asked whether she would consent to using her full name when she testified before the jury. C.G. replied: "Well, I don't want to testify."

"THE COURT: You just stated that you don't want to testify. Do you understand that you are subpoenaed as a witness and the court could hold you in contempt if you did not testify?

"THE WITNESS: Yes, I understand.

"THE COURT: All right. And my understanding is that in a prior case you also stated under oath there that you didn't want to testify or refused to testify and the court was going to hold you in contempt unless you testified and pursuant to law referred you for counseling as to that particular issue. Do you recall that incident?

"[C.G.]: I can't recall that far back.

"THE COURT: Do you understand that as a witness in this matter the court can compel you to testify?

"[C.G.]: Yes, I understand.

"THE COURT: All right. And if you were called to testify would you answer questions regarding the allegations that have been made in this case back from July of this year?

"[C.G.]: If I remember."

The court asked the prosecutor if she wanted to question C.G. about the text messages. The prosecutor declined because she did not have any objections to the admission of the text messages.

The court invited the defense attorney to question C.G.

"[Defense counsel:] Specifically I had a question for you, do you remember July 23rd, 2016?

"[C.G.] No, I can't remember that far back.

"Q Do you remember whether - you don't remember that day at all?

"A No.

"Q And so you certainly don't remember sending any text messages?

"A No.

"Q Do you remember July 16th at all?

"A No.

"Q So you don't remember sending any text messages during that period of time?

"A No. With my seizures I have trouble remembering a lot." (Italics added.)

Defense counsel asked C.G. about her medical condition. C.G. testified she suffered from seizures and a heart murmur. Defense counsel asked if she had a seizure on July 23, 2016. C.G. said she had suffered "many seizures."

Defense counsel said she did not have any more questions.

The prosecutor then questioned C.G.

"[THE PROSECUTOR] Just to clarify ... if you were asked any question about July 16, 2016, your answer would be I don't remember?

"A Yes, I don't remember.

"Q And if you were asked any questions about the incidences [sic] that occurred or things that occurred on July 23rd of 2016, you would refuse, or I'm sorry, you would say that you don't remember anything.

"A Yes." (Italics added.)

The prosecutor asked C.G. if she recognized defendant, who was sitting at the defense table. Defense counsel objected, and the court overruled the objection. C.G. testified she recognized him, said she was defendant's fiancée, and they were engaged.

"Q And on the dates of July 16th and July 23rd of 2016, were you at home with [defendant]?

"A I don't remember.

"Q [The defense attorney] asked you about a text message that you received or that you sent and you indicated that you didn't recall sending a text message on July 23rd of 2016. I would like to approach and show you Exhibits Number 4 and 5 [that showed the text messages] .... If you could just look at these and tell me if they refresh your recollection.

"A No, I don't remember sending these.

"Q You don't remember sending any text message?

"A No, I don't remember any of this.

" Q So as you sit here today you don't recall texting your father -

"[Defense counsel]: Objection. Asked and answered.

"THE COURT: Overruled. [¶] Go on with the question.

"[The prosecutor]: You don't recall texting your father on July 23rd of 2016, telling him that [defendant] was at your house, to contact his probation officer and help me?

"A No, I don't remember." (Italics added.)

The prosecutor asked C.G. to look at exhibit 6, a photograph that showed a bruise on her leg, and asked how she got it. C.G. admitted she was in the picture, but she did not know how she got the injury.

"Q Okay. Do you remember telling officers on July 23rd that [defendant] struck with you a belt?

"A I don't remember anything from that day. I can barely remember a month back." (Italics added.)

The prosecutor showed C.G. exhibit 2, a photograph taken on July 16, 2016. C.G. admitted the picture showed an injury on her back, but she did not know or remember how she got that injury.

"Q You don't remember telling officers --

"A I don't remember anything.

"Q If I could just finish. Do you remember telling officers that [defendant] caused injuries to your back?

"A No."

The prosecutor showed exhibit 3 to C.G., which was a photograph taken on July 16, 2016. C.G. admitted the picture showed a bruise on her leg. The prosecutor asked how she got it. C.G. said she did not know.

"Q Do you remember telling officers that [defendant] caused that bruise?

"A I don't remember."

The prosecutor said she had no further questions. The court asked defense counsel if she had additional questions. Defense counsel declined to further question C.G.

The court then questioned C.G.

"THE COURT: All right. [I]f called to the witness stand in the presence of the jury you'll be under oath to testify in this matter. It appears what you're saying today is that you would prefer not to testify, but if you do testify your testimony will simply be that you don't recall these particular incidences or dates or things that occurred because of the lapse of time and/or due to some medical condition; is that correct?

"[C.G.]: Um-hum.

"THE COURT: So what you're saying is you're not going to refuse to testify, it's just that if do you testify your testimony will primarily be that you don't remember the incidences that we're here for; is that correct?

"[C.G.]: That's correct."

The court asked C.G. to wait outside the courtroom.

The court's findings

The court made the following findings about C.G.'s expected trial testimony:

"Having heard the testimony in the [section] 402 hearing it appears to the court that, although reluctant, [C.G.] will testify. It also appears to the

court that she's going to testify for whatever reason she can't recall the incidences in question, and it doesn't appear that the extent of her testimony is going to be very detailed. But she is here and she's available as a witness and she's not refusing to testify, therefore there's no issue of contempt of court or need to refer her for counseling concerning whether she would or would not testify in this matter pursuant to law." (Italics added.)

The court held it would exclude the text messages unless the prosecution established a proper foundation. The court said it could change its decision depending on C.G.'s trial testimony.

The prosecution's concerns about C .G. 's trial appearance

After the court's findings, the prosecutor said she was concerned that C.G. might appear at trial and claim she did not recall anything about the charged offenses, as C.G. had just testified. If that happened, the prosecutor explained that she would move to introduce C.G.'s pretrial statements to the police officers.

"[THE PROSECUTOR] I would like to ask the court - okay. So in this [section] 402 hearing [C.G.] has testified that she doesn't recall anything, so I anticipate that that's what she would do in front of the jury. The People would then plan to impeach her by using ... the numerous officers who took statements from her that day. One of the officers did speak to her directly about that text message and she clarified the reasons why she made that call, the fact that she was afraid and the specifics. So I do plan to call that officer to question him about what she said about the text messages. So the ruling is not that I'm not allowed do that, the ruling depends on the testimony and how it plays out; is that correct?" (Italics added.)

The court said the prosecutor was correct. The prosecutor asked to resume the evidentiary hearing and recall C.G. to ask whether she talked to Officer Divine about the text messages. The court said that was not necessary.

"THE COURT: I think it's pretty clear she's demonstrated how she's going to testify to anything in this case." (Italics added.)

Thereafter, the court called C.G. back into the courtroom and ordered her to return on December 7, 2016, for her trial testimony, and she agreed to return. C.G. fails to appear at trial as ordered

On December 7, 2016, the court conducted voir dire, and said C.G. had not appeared as ordered, the prosecutor's investigator could not find her, and issued a body attachment.

Later that day, the prosecutor's investigator brought C.G. to court. The prosecutor's investigator had gone to C.G.'s house to look for her and no one answered. The investigator watched the house and saw C.G.'s child arrive home. C.G. opened the door for her child, and the investigator arrested her on the body attachment.

The court asked C.G. to explain why she violated the order to return. C.G. said she did not appear earlier because she had an appointment with her child. The court ordered C.G. to appear the next day and warned that she could be charged with contempt if she failed to do so. C.G.'s limited trial testimony

On December 8, 2016, the prosecution was scheduled to begin introducing evidence. C.G. appeared in court but said she had to go home and get her seizure medication. The court allowed her to leave but only under the escort of the prosecutor's investigator, and she returned to court.

Later that afternoon, the prosecutor called C.G. as the first trial witness. As set forth in the factual statement above, C.G. testified she could not recall anything that happened on July 16 or 23, 2016, confirmed the photographs showed that she had certain bruises and injuries on her body, and that the DVD had been destroyed, but she did not remember how those injuries happened. She did not remember or recall anything about defendant's prior domestic violence convictions committed against her.

After she briefly testified on direct examination, the court recessed for the day and ordered C.G. to return the next day. C.G. fails to return to trial; the People's first motion to admit her statements

When the court convened on Friday, December 9, 2016, it stated that C.G. had failed to appear despite the efforts of the prosecution's investigator, and she had not completed her direct examination and cross-examination testimony. The court stated that C.G. had previously failed to appear in this case, and it had "continually" brought her to hearings on body attachments and warned her about failing to appear. The court issued another body attachment to secure her presence.

The prosecutor moved for the court to admit C.G.'s pretrial hearsay statements to the police officers pursuant to section 1370 because she had "purposely made herself unavailable.

As we will discuss in issue IV, post, section 1370 states that evidence of a hearsay statement is admissible if the statement narrated the infliction of physical injury, the declarant is unavailable as a witness, the statement was made at or near the time of the infliction of injury, it was made to a police officer, and it was made under circumstances indicating its trustworthiness. (§ 1370, subd. (a); People v. Price (2004) 120 Cal.App.4th 224, 237-239.)

In making this motion, the prosecutor relied on the C.G.'s section 402 evidentiary hearing where she testified and was cross-examined by the defense. The prosecutor acknowledged the section 402 hearing was initially about the foundation to admit C.G.'s text messages to her father on July 23, 2016, but she asked C.G. additional questions about the charged offenses because she was concerned about whether C.G. would appear for trial based on her prior behavior.

The prosecutor argued Crawford was satisfied because defense counsel had the opportunity to confront and cross-examine C.G. under oath at the section 402 hearing, and C.G. made it clear that if she appeared at trial, she was going to testify that she did not remember anything about the charged offenses. The prosecutor argued that as a result, C.G.'s pretrial hearsay statements to the police officers about how she was injured were admissible at trial pursuant to section 1370, as statements describing the infliction of her physical injuries for all the charged offenses.

Defense counsel objected and argued the section 402 hearing was limited to the admission of the text messages, and C.G. was only questioned about that topic. Defense counsel said she objected when the prosecutor asked C.G. questions that went beyond the scope of the text messages, and argued the defense did not have the opportunity to conduct a meaningful cross-examination of C.G. to admit her testimonial hearsay statements about the charged offenses.²⁰ Defense counsel complained that the prosecutor had failed to call C.G. at the preliminary hearing, and the defense never had the opportunity to cross-examine C.G. prior to trial.

20 At the section 402 hearing, defense counsel objected when the prosecutor asked C.G. about topics other than the text messages, and whether she remembered the charged offenses. The court overruled the defense objections and permitted the prosecutor to ask the questions and C.G. to answer. Defense counsel had the opportunity to cross-examine C.G. after the prosecutor's questions about the charged offenses but declined to do so.

The prosecutor replied that at the section 402 hearing, she specifically asked C.G. about the injuries shown in the photographs taken after the two incidents, and how those injuries happened. As for the preliminary hearing, the prosecutor explained C.G. had been served with a subpoena, the court issued a body attachment to compel her appearance, C.G. failed to appear at the preliminary hearing, and the People had to proceed pursuant to Proposition 115 and call the officers to testify about her hearsay statements to them.²¹

21 As explained above, on August 30, 2016, the court scheduled the preliminary hearing for September 6, 2016, and defendant withdrew his time waiver. On September 6, 2016, C.G. failed to appear for the preliminary hearing and the court issued a body attachment. On September 23, 2016, the court held the preliminary hearing; C.G. had not been found, and the prosecution relied on the testimony of Officers Williams and Divine about C.G.'s prior hearsay statements.

The prosecutor stated C.G. had "done everything she can to disrupt this case." The prosecutor further argued defense counsel had the opportunity to cross-examine C.G. at the evidentiary hearing, after C.G. testified that she could not remember the charged offenses, and counsel declined.

The court found the district attorney had used due diligence to bring her to court. The court was not ready to find C.G. was unavailable or admit the officers' testimony about C.G.'s hearsay statements, but it was "very close to ruling in that regard." The court instructed the attorneys and their investigators to continue looking for C.G.

The court acknowledged that at the section 402 hearing, C.G. was questioned under oath and "generally made statements that she was not going to be able to remember anything about the incidences in question because they were too remote in time for her to recall based upon a couple reasons that she gave for that, including that she takes medication and has seizures." However, the court declined to find her unavailable or admit her hearsay statements to the officer, and it was not going to strike the testimony she already gave before the jury on the first day of trial.

The trial continued with the testimony of A.G., C.G.'s stepfather, who testified to a foundation to admit the text messages that he received from C.G.'s cell phone. The court admits C.G.'s pretrial statements

On the morning of Monday, December 12, 2016, the court reconvened the trial. The prosecutor said the People's investigator had not located C.G. over the weekend and detailed the efforts that had been made.

The prosecutor renewed her prior motion to have the court declare C.G. was unavailable pursuant to section 240 and call the police officers to testify about C.G.'s pretrial hearsay statements under section 1370, the hearsay exception for a declarant's statements about the infliction of physical injury.

The court asked defense counsel if she wished to be heard. Counsel said, "Not at this time."

The court made the following ruling:

"Having considered the matter, pursuant to ... Section 1370 and ... Section 240, the court is now going to find that the complaining witness, [C.G.], is unavailable, that the People have satisfied the requirements to show unavailability, and therefore, the court is going to find that certain hearsay statements of [C.G.] will be admissible in the People's case in chief in this trial.

"Based upon the failure to appear, the court having provided [C.G.] specific directions on when to appear on multiple occasions, advised her on multiple occasions if she failed to appear it would be a violation of a court order and that she could be held in contempt, if and when she is brought to court the court intends to have a contempt proceeding. I'm prepared to find her in direct contempt of the court's lawful order to appear. I am not, at this point in time, basing any contempt on her refusal as a complaining witness in a domestic violence case refusing to testify because she has, in fact, in part testified both at a [section] 402 hearing as well as in the trial itself, but now it is apparent that now she has intentionally made herself unavailable in violation of the court's order to be present." (Italics added.)

Defense counsel decides not to strike C.G.'s trial testimony

Immediately after the court found C.G. was unavailable and held the officers' testimony was admissible, the court asked the parties whether it should strike C.G.'s limited trial testimony before the jury. The prosecutor offered to stipulate to allow the testimony to remain in evidence and speculated it could help both the People and the defense, particularly since the jury had already heard it.

Defense counsel said she did not want to strike C.G.'s limited trial testimony:

"THE COURT: All right. And is there an agreement by the parties that [C.G.'s] testimony [will] remain as part of the record even if she doesn't appear for cross-examination?

"[Defense counsel]: Yes, Your Honor, we would agree to that.

"THE COURT: Then I will reserve to you the right to have that testimony stricken prior to the conclusion of the evidence in the case. So if, for some reason, there were to be a change of posture, that evidence, I could

reconsider that ruling. So I won't be advising the jury whether it is stricken or not stricken until the conclusion of the case."²²

22 In issue I, post, we address the People's argument that defendant forfeited appellate review of his Sixth Amendment objections to the officers' testimony about C.G. pretrial statements because counsel did not move to strike C.G.'s limited trial testimony.

Thereafter, the prosecution called Chief Dyer and Officers Williams, Divine, and Scott to testify about C.G.'s pretrial hearsay statements about the charged offenses, as set forth in Part I of the factual statement, ante.

On December 13, 2016, the court asked the parties if there were any updates about C.G.'s whereabouts. Defense counsel said her investigator had repeatedly looked for C.G. but could not find her. The court asked defense counsel if she still wanted C.G.'s limited direct examination testimony to remain on the trial record.

"THE COURT: ... Is the defense stipulating that [C.G.'s trial] testimony to the extent it has already been entered into in this case in the presence of the jury not be stricken and be admissible despite the lack of any cross-examination being done for trial tactic purposes, because there are certain matters that she testified to, or the manner in which she testified to them, that assists in the presentation of the defendant's argument and defense in this case.

"[Defense counsel]: Yes, Your Honor. That is the case. However, one of the things I wanted to talk about and in anticipation of doing an [Penal Code section] 1118.1 motion, having reviewed the case law again regarding confrontation, it is the defense position and we would like to argue that, again, that the testimony should be stricken that was provided by police officers that was, first of all, not prior testimony that was heard in court.· It was not confronted, and nontestimonial, specifically the interviews with Officer Williams and with Officer Scott and Divine. (Italics added.)

The court said it would address defense counsel's motion to strike the officers' testimony and dismiss the charges after the People rested. The court asked defense counsel that if it denied defendant's motions, whether counsel would "still agree to have [C.G.'s trial] testimony in for a trial tactic reason?" Defense counsel said yes. Defendant's motions to strike the officers' testimony and dismiss the charges

After the prosecution rested, defense counsel moved to strike the testimony of the officers' regarding C.G.'s pretrial hearsay statements and to dismiss all the counts pursuant to Penal Code section 1118.1. Counsel did not challenge the court's finding that C.G. was unavailable and agreed the prosecution had exercised due diligence to look for her. However, counsel argued that C.G.'s hearsay statements to the officers were not admissible just because she was unavailable.

Defense counsel argued the admission of C.G.'s pretrial hearsay statements violated defendant's Sixth Amendment right to confront and cross-examine because her statements to the officers were testimonial within the meaning of Crawford. Defense counsel further argued the defense's brief opportunity to question C.G. on the limited topic of the text messages at the section 402 hearing was insufficient to satisfy the Sixth Amendment analysis.

Defense counsel asked the court to strike the officers' testimony, which would require the court to dismiss all counts since there was no other evidence to support the charged offenses. Defense counsel conceded C.G.'s hearsay statements to Chief Dyer "may be considered non-testimonial if they were an excited utterance."

The prosecutor replied that C.G.'s statements to Chief Dyer were not testimonial under Crawford and were admissible as spontaneous declarations since the statements were made immediately after the police entered the house on July 23, 2016. The prosecutor further argued that defense counsel had the opportunity to question C.G. at the section 402 hearing, and reminded the court there were "obvious signs" prior to trial and at the section 402 hearing that C.G. "was playing games."

"We had to arrest her numerous times on the body attachment. It wasn't a situation where she came in freely and voluntarily.· She made numerous statements about not remembering anything to not only the People, but to defense counsel. So at that time everyone was on notice that [C.G.] may not come to court again when the court ordered her back.·

Because of that, the People purposely went beyond the scope of just the text messages [at the section 402 hearing]. I don't recall defense objecting. · And I believe - I know that there was still the ability for the People to ask her questions about injuries that she had sustained.· I showed her photographs.· I specifically asked her about things that happened on both dates and she made it very, very clear that her answer as to any question that was asked by either side would be that she didn't recall any of the events of July 16th or July 23rd, 2016 because she suffered from seizures. [Defense counsel] had an opportunity to ask her any question that she needed to at that point in time and she made the decision not to.²³. Because of that, it is my understanding that the court ruled that those statements previously made to law enforcement were going to be allowed in under 1370, and therefore, it is the People's position that all of the charges in this case have survived [a dismissal motion]." (Italics added.)

23 At the section 402 hearing, defense counsel objected to the prosecutor's questions to C.G. that went beyond the text messages, but the court overruled the objections. Defense counsel then had the opportunity to cross-examine C.G. but declined to do so.

Defense counsel replied that the People could not "bootstrap a very limited scope [section] 402 hearing which is specific about the admissibility of a text message, to use that and say that that was an opportunity for the defense to cross examine on all of the issues and all of the testimony that was presented. That's simply not the case," and the defense never had the opportunity for effective cross-examination. Defense counsel also noted that only the prosecutor had been able to question C.G. before the jury when C.G. appeared at trial:

"[I]n addition to the [section] 402 [hearing] the prosecution had a chance to elicit statements [at trial], not a long period of time, 20 minutes, in which there was statements made. I know this is contrary to the position that we're taking on that testimony, but we never had a chance to cross examine her on those statements either. And I believe what happened here is that the, on one hand [the] defense has had no opportunity to cross examine [C.G.] and yet her hearsay statements have nonetheless been admitted under the former testimony exception."²⁴ (Italics added.)

24 As we will discuss in issue IV, post, the court did not admit C.G.'s pretrial hearing statements under the former testimony exception, but instead granted the People's motion to admit the evidence under section 1370, statements about the infliction of physical injury.

The court's ruling

The court denied defendant's motion to strike the officers' testimony about C.G.'s pretrial hearsay statements.

"First, as to the motion to strike the testimony of the officers, Williams, Divine and Scott, and even if it's made in whole or in part to the testimony of Chief Dyer, the court is denying that motion. In this matter we've had a [section] 402 hearing for a limited purpose and at that hearing [C.G.] clearly stated that she would answer all questions about the incidents on the two dates in question as being I don't remember and she blamed that on poor memory because of a lapse of time and seizures.

"The other circumstances surrounding her attending court, when she attended, when she failed to attend, when she actually was called as a witness in this case and did partially testify wherein she again stated she couldn't remember the dates in question because of a lapse of time and seizures, although she did testify as to a relationship going back a period of time that was beyond those dates. All that combined the court can conclude that [C.G.] is a hostile witness and her prior statements, not necessarily former testimony, but her prior statements become admissible as prior inconsistent statements to her testimony that she doesn't remember. And therefore, the lack of an opportunity to substantially cross examine at the [section] 402 hearing and the lack of ability to cross examine at all on the trial testimony does not make those statements inadmissible." (Italics added.)

The court also denied defendant's motion to dismiss the charged offenses because it did not strike the testimony of the officers. C.G. reappears after the verdicts; the court finds C.G. in contempt

C.G. was never found during defendant's trial. On December 16, 2016, the jury returned the verdicts in this case and defendant was convicted.

On February 9, 2017, the court convened the scheduled sentencing hearing and granted the parties' motion for a continuance. The court stated C.G. was present for the first time since she failed to return during the trial, even though a body attachment had been issued and the investigators for both the People and the defense went to great lengths to try and find her.

The court asked C.G. to step forward and explain what happened. C.G. said: "I ended up in the hospital." The court asked if she had any documents to prove it. C.G. said she did but failed to bring the papers because she did not think she would need them. The court remanded C.G. into custody, appointed counsel, and set a hearing to determine whether C.G. was in contempt for failing to return.

On February 10, 2017, the court conducted a hearing and found C.G. in contempt, sentenced her to two days, gave her credit for time served, and ordered her released that day. Defendant's motion for new trial

Prior to the sentencing hearing, defendant filed a motion for new trial that was prepared by a newly-appointed defense attorney.²⁵ The motion asserted that defendant's trial attorney was prejudicially ineffective for failing to move to strike C.G.'s limited direct examination testimony before the jury, and the introduction of C.G.'s testimony violated defendant's Sixth Amendment rights since the defense never had the opportunity to cross-examine C.G. at trial.

25 The deputy public defender who represented defendant at trial left the public defender's office after defendant was convicted in this case. Thereafter, the newly appointed deputy public defender declared a conflict, and the court appointed conflict counsel to represent defendant at the post-verdict hearings.

The prosecution's opposition summarized the lengthy procedural history of the case and asserted that defense counsel made a knowing tactical decision not to strike C.G.'s limited direct examination testimony. The prosecution further asserted that the defense had the opportunity to cross-examine C.G. at the section 402 hearing, and the defense was aware that C.G. intended to testify at trial that she did not remember anything about the charged offenses.

On June 30, 2017, the court heard arguments on the new trial motion. Defense counsel said that when the court asked the parties whether it should strike C.G.'s limited trial testimony, defendant's then-trial counsel decided on a "whim" not to strike it and improperly waived defendant's Sixth Amendment rights without conducting any research, and never made a reasonable tactical decision on the issue.

The prosecutor replied that the court gave defendant's trial attorney sufficient time during the trial to consider whether she wanted to strike C.G.'s limited testimony, while both parties continued to look for C.G. The prosecutor stated that trial counsel was prepared and made a tactical decision not to strike the evidence.

The court's denial of the motion

The court denied the motion for new trial and found defendant's trial attorney made a reasonable tactical decision not to strike C.G.'s testimony because it allowed the jury to perhaps imply that C.G. was a reluctant and even recanting witness, and also to introduce C.G.'s prior inconsistent statements to the defense investigator and in the letters sent to defendant in jail.

In denying the motion, the court noted that at the section 402 hearing, C.G. testified that she could not remember anything about the charged offenses and defendant had the opportunity to question her. C.G. provided very limited trial testimony and then failed to return. The court stated that it admitted the officers' testimony about C.G.'s pretrial hearsay statements "based upon a theory that it was a prior consistent or inconsistent statement and defense counsel had an opportunity to try and get the complaining witness to return to court as did the People."²⁶ The prosecutor's statements at the sentencing hearing

26 As explained above, the court admitted C.G.'s hearsay statements under section 1370, as statements about the infliction of physical injury.

After the court denied the new trial motion, it conducted the sentencing hearing and the parties again discussed C.G.'s failure to return to the trial. The prosecutor said she handled defendant's prior domestic violence case involving C.G. in 2015 and 2016, he was tried before a jury on felony offenses, the jury was unable to reach a verdict, and he later pleaded to misdemeanor offenses. The prosecutor explained what happened:

"[W]hat's very disturbing is that I was the one who prosecuted [defendant] back on the 2015 case. That case involved two separate incidences of domestic violence against [C.G.]. She testified she hid during the trial.· It was very difficult to get her to trial.· When she finally did come to trial, she did what she did here in this trial which is pretend that she didn't have any recollection of what was going on. Those were felony charges.· They were serious charges and the jury hung on that case. I made a decision not to retry that case because of how difficult it was to get her to court and the manner in which I assumed she would again testify. I made a decision to offer misdemeanors in that case merely because of those things that were problematic in the first trial knowing or making the assumption that I might be back here again prosecuting again [defendant] for domestic violence. I don't even believe it was a year later that he - and he was on probation, misdemeanor probation for domestic violence on two separate incidences, that he committed the offenses that he was on trial for in this case."

DISCUSSION

I. Defendant has not Forfeited his Sixth Amendment Objections

Defendant contends the court improperly admitted the testimony from the police officers about C.G.'s pretrial hearsay statements in violation of his Sixth Amendment right to confront and cross-examine witnesses. Defendant argues that even if C.G.'s pretrial statements satisfied statutory hearsay exceptions, her statements about the two domestic violence incidents were still testimonial within the meaning of Crawford and the Sixth Amendment, and inadmissible because she became unavailable as a witness and defense counsel never had the opportunity to cross-examine her at trial.

We find that the court properly admitted the testimony of Chief Dyer and Officers Williams and Divine, about C.G.'s pretrial hearsay statements regarding the two charged offenses. In order to reach this conclusion, we will begin with the People's arguments that defendant forfeited his Sixth Amendment objections to the officers' testimony about C.G.'s pretrial statements by failing to object, and as a result of his own misconduct.

A. Defense Counsel's Decision not to Strike C.G.'s Limited Trial Testimony

"The right to confrontation may ... be [forfeited], including by failure to object to the offending evidence; ..." (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313-314, fn. 3; Evid. Code, § 353.)

The People contend that defendant forfeited appellate review of his Sixth Amendment objections to the officers' testimony about C.G.'s pretrial statements. The People's argument is based on defense counsel's decision not to move to strike C.G.'s limited direct examination testimony at trial. The People assert that since defense counsel did not have the opportunity to cross-examine C.G. at trial, counsel's failure to strike her limited trial testimony resulted in the forfeiture of defendant's Sixth Amendment arguments on appeal.

The entirety of the record refutes these assertions. As set forth in Part II of the factual and procedural statement, ante, defense counsel made two separate decisions after C.G. failed to return to the trial: (1) to preserve defendant's Sixth Amendment objections to the court's decision to grant the prosecution's motion to admit the officers' testimony about C.G.'s pretrial statements; and (2) once the court overruled the Sixth Amendment objections, to make the tactical decision not to strike C.G.'s limited trial testimony in order to introduce defense evidence to impeach her credibility.

When C.G. failed to return to trial, defense counsel repeatedly raised Sixth Amendment objections to the prosecution's motions to introduce the officers' testimony about C.G.'s pretrial statements. The court ultimately found C.G. was unavailable, overruled defendant's Sixth Amendment objections, and admitted the officers' testimony about her statements.

Once the court overruled defense counsel's Sixth Amendment objections, the court asked the parties whether they wanted to strike C.G.'s limited trial testimony. Defense counsel said she was making the tactical decision not to strike C.G.'s trial testimony. The court replied that it would allow defense counsel to reserve the right to have C.G.'s testimony stricken, up to the time the case would be submitted to the jury.

After the People rested, defense counsel renewed the Sixth Amendment objections, and moved to strike the officers' testimony about C.G.'s statements and to dismiss the charges. When the court denied the defense motions, it again asked defense counsel if she wanted to strike C.G.'s trial testimony. Counsel again said she was making the tactical decision not to strike C.G.'s testimony.

Finally, after defendant was convicted, his new defense attorney brought a motion for new trial and claimed his trial attorney did not make a reasonable tactical decision and decided not to strike C.G.'s testimony on a "whim." The court denied the motion and found defendant's trial attorney made the reasonable tactical determination not to strike C.G.'s testimony since it allowed the defense to introduce the letters that C.G. sent to defendant in jail as prior inconsistent statements. We thus find defense counsel did not forfeit defendant's Sixth Amendment objections to the officers' testimony about C.G.'s pretrial statements.²⁷

27 Given our determination that defense counsel did not forfeit defendant's Sixth Amendment contentions, we need not reach defendant's alternate argument that counsel was prejudicially ineffective for failing to preserve his objections.

B. The People Expressly Declined to Rely on Forfeiture by Wrongdoing

The People next argue that defendant forfeited any Sixth Amendment objections to the officers' testimony about C.G.'s pretrial statements because of his own acts of wrongdoing that caused C.G. not to return to trial and complete her testimony.

The People's argument is based on the equitable doctrine of forfeiture by wrongdoing, which allows admission of unconfronted testimonial statements "where the defendant ha[s] engaged in wrongful conduct designed to prevent a witness's testimony." (Giles v. California, supra, 554 U.S. at p. 366; Davis v. Washington (2006) 547 U.S. 813, 833 (Davis) ["... one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation"].)

The doctrine is codified in section 1390, subdivision (a), which states: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (Italics added; Kerley, supra, 23 Cal.App.5th at p. 549.) "That 'wrongdoing' has not been limited to the killing of a victim or even of a nonvictim witness." (People v. Jones (2012) 207 Cal.App.4th 1392, 1399, fn. omitted; People v. Merchant (2019) 40 Cal.App.5th 1179, 1185.) The defendant must "engag[e] in wrongdoing that renders the declarant unavailable with an intent to prevent that declarant's in-court testimony. [Citation.]" (People v. Perez (2018) 4 Cal.5th 421, 455, fn. 3.)

Section 1390 requires "[t]he party seeking to introduce the evidence [to] establish, by a preponderance of the evidence, that the requisite elements have been met at a foundational hearing." (§ 1390, subd. (b)(1).) A finding that the elements have been met shall not be solely based on the hearsay statement of the unavailable declarant, shall be supported by independent corroborative evidence, and the court may consider whether the evidence is trustworthy and reliable. (§ 1390, subds. (b)(2), (b)(4); People v. Merchant, supra, 40 Cal.App.5th at pp. 1185-1186.) The trial court's preliminary factual findings, that defendant acted with the intent to prevent the victim or witness from testifying, will be affirmed if supported by substantial evidence, and its legal ruling is reviewed for an abuse of discretion. (People v. Banos (2009) 178 Cal.App.4th 483, 502; People v. Thompson (2016) 1 Cal.5th 1043, 1120.)

On appeal, the People assert for the first time in this case that defendant is barred from raising Sixth Amendment objections to C.G.'s pretrial statements based on section 1390 and forfeiture by wrongdoing. The People argue that section 1390 applies because defendant's assaultive conduct resulted in C.G.'s failure to return to trial, and her testimonial statements were admissible regardless of the defendant's inability to cross-examine her at the trial.

The trial evidence certainly raises the question whether defendant engaged in conduct with the intent to prevent C.G. from reporting or testifying about his assaultive conduct. When Officer Williams interviewed C.G. about the July 16, 2016, incident, C.G. said defendant put a gun to her head and threatened to kill C.G. and the children if she called the police. C.G. said defendant had previously ordered her to delete all the photographs she had taken of him from her cell phone so "she couldn't show any of his pictures to the police." When Officer Divine interviewed C.G. after the standoff on July 23, 2016, C.G. said defendant accused her of calling his probation officer and he would "take care of her" if she contacted the police in any way. C.G. knew he meant that she would "either be beaten or killed by him or someone else." (See, e.g., Kerley, supra, 23 Cal.App.5th at pp. 556-559.)

Nevertheless, the People had the opportunity to rely on section 1390 but expressly declined to do so. As set forth in Part II, ante, on the first day of trial, the defense attempted to preempt the People's reliance on section 1390 through a motion in limine. In response, the prosecutor said if C.G. failed to appear at trial, she did not intend to rely on section 1390 because she did not "have evidence to be able to go forward" on that basis. When C.G. failed to return to trial after her limited testimony, the prosecution relied on other theories to introduce C.G.'s hearsay statements to the officer. The prosecution never sought a hearing under section 1390, subdivision (b) to meet its burden to establish the statutory prerequisites by a preponderance of the evidence, and the court never made factual findings about whether defendant engaged in conduct designed to prevent C.G. from testifying. (People v. Banos, supra, 178 Cal.App.4th at p. 502.)

Given the People's failure to pursue the matter below, we therefore decline to make such factual findings on appeal. II. Crawford and Testimonial Statements

Having found defendant did not forfeit his Sixth Amendment objections, we turn to the merits of his confrontation clause arguments. "In light of our hearsay rules and Crawford, a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (People v. Sanchez (2016) 63 Cal.4th 665, 680.)

Defendant argues that even though C.G. became unavailable as a witness when she failed to return to the trial, her pretrial statements were testimonial hearsay and inadmissible since defense counsel never had the opportunity to confront and cross-examine her at trial, as required by the Sixth Amendment and Crawford, regardless of whether her statements satisfied statutory hearsay exceptions.

In this section, we will determine whether C.G.'s statements to the four officers were testimonial within the meaning of Crawford.

A. Crawford

"Prior to Crawford, the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant's right of confrontation," as set forth in Ohio v. Roberts (1980) 448 U.S. 56, 66 (Roberts). (People v. Corella (2004) 122 Cal.App.4th 461, 467 (Corella).)

In Crawford, the United States Supreme Court held that the confrontation clause precludes the use of "testimonial" hearsay against the defendant in a criminal trial, unless the declarant is unavailable, and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.) Crawford did not provide a comprehensive definition of "testimonial," but explained the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Ibid.)

After Crawford, a "nontestimonial" hearsay statement continues to be governed by the Roberts standard, such that admission of a hearsay statement does not violate the confrontation clause if the statement "bears adequate 'indicia of reliability,' " and it either "falls within a firmly rooted hearsay exception" or is cloaked with "particularized guarantees of trustworthiness." (Roberts, supra, 448 U.S. at p. 66, fn. omitted; Crawford, supra, 541 U.S. at pp. 42, 68; Corella, supra, 122 Cal.App.4th at p. 467.)²⁸

28 As we will discuss in issue IV, post, "[t]he hearsay exception for spontaneous declarations is among those 'firmly rooted' exceptions that carry sufficient indicia of reliability to satisfy the Sixth Amendment's confrontation clause. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 529; People v. Brown (2003) 31 Cal.4th 518, 542.)

B. Davis and Hammon

Defendant argues that C.G.'s statements were testimonial based on the analysis in Davis, supra, 547 U.S. 813, where the court determined "when statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause." (Id. at p. 817.)

Davis addressed two cases with different factual situations. In the first case, a domestic disturbance victim called 911 and described the defendant's actions to the operator as she was being assaulted. In response to the operator's specific questions, the victim reported the defendant's name, described how he was attacking her, and identified her location. The victim started to ramble, and the 911 operator admonished her to " 'Stop talking and answer my questions.' [Citation.]" (Davis, supra, 547 U.S. at pp. 817-818.) As the call progressed, the victim said the defendant had just run out the door and was leaving in a car. At trial, the victim did not appear, and the prosecution introduced the tape recording of the 911 call. (Id. at pp. 818-819.)

Davis also addressed the facts of a companion case, Hammon v. State (Ind. 2005) 829 N.E.2d 444, where officers responded to a domestic disturbance call at the home where the defendant and his wife lived.²⁹ When they arrived, the defendant's wife was on the front porch and appeared frightened, but she said nothing was wrong. The defendant was inside the house and said they argued, but everything was fine. When the officers spoke again to his wife, the defendant tried to interfere in the conversation and became angry when the officers separated them. The officers interviewed the victim separately about the incident, and she signed a written battery affidavit about how the defendant attacked her. The victim refused to appear at trial, and the prosecution introduced the testimony of the officers who interviewed her. (Davis, supra, 547 U.S. at pp. 819-821.)

29 Defendant argues that C.G.'s pretrial statements to the officers were similar to those found inadmissible in Hammon.

Davis explained that while Crawford held that " 'interrogations by law enforcement officers fall squarely within [the] class' of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial." (Davis, supra, 547 U.S. at p. 826.)

Davis expanded upon the meaning of "testimonial" and clarified that not all those questioned by the police are witnesses, and not all interrogations by law enforcement officers are subject to the confrontation clause:

"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822, fn. omitted.)

Davis relied on this definition and held that in the first case, the victim's statements to the 911 operator were admissible and not testimonial under Crawford. The circumstances of the 911 operator's "interrogation" of the victim "objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. [The victim] simply was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony' at trial .... No 'witness' goes into court to proclaim an emergency and seek help." (Davis, supra, 547 U.S. at p. 828.) The victim was "speaking about events as they were actually happening, rather than 'describ[ing] past events,' [citation]." (Id. at p. 827.) Moreover, the questions posed by the 911 operator did not turn the victim's statements into testimonial evidence because "the nature of what was asked and answered, ... again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. [Citation.]" (Ibid.)

In contrast, Davis held the victim's statements to the police officers in the companion case of Hammon were testimonial and inadmissible in the absence of the victim's trial testimony. The victim told the officers that things were fine. Her hearsay statements about the assault were ultimately given through a written affidavit as part of an investigation into possible past criminal conduct, and there was no emergency or immediate threat to the victim. (Davis, supra, 547 U.S. at pp. 827, 819-821, 829-830.) The officers did not ask questions to determine " 'what [was] happening,' but rather 'what happened.' Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime - which is, of course, precisely what the officer should have done." (Id. at p. 830.) "It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct" and "[t]here was no emergency in progress ...." (Id. at p. 829.) Davis acknowledged the interview in Hammon was less formal than stationhouse questioning addressed in Crawford, but "[i]t was formal enough" and "[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial." (Id. at p. 830, fn. omitted.)

As the court further explained in Michigan v. Bryant (2011) 562 U.S. 344 (Bryant):

"An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the 'primary purpose of the interrogation.' The circumstances in which an encounter occurs - e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards - are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred. [¶] ... [¶] This logic is not unlike that justifying the excited utterance exception in hearsay law.... An ongoing emergency has a similar effect of focusing an individual's attention on responding to the emergency." (Id. at pp. 360-361, fns. omitted.)

Bryant noted that while a domestic violence case may have "a narrower zone of potential victims than cases involving threats to public safety," the determination of whether an emergency "that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and the public may continue. [Citation.]" (Bryant, supra, 562 U.S. at p. 363.)

C. Application of Crawford

In Corella, supra, 122 Cal.App.4th 461, a woman called 911 and reported the defendant, who was her husband, had assaulted her. The first officer who arrived at the house found the victim was crying, distraught, and in physical pain. The victim said the defendant argued with her and punched in her in the head and ribs. The victim did not testify at trial and her hearsay statements were admitted as spontaneous declarations. (Id. at p. 465.) On appeal, the defendant argued that the statements were testimonial and inadmissible under Crawford, regardless of the hearsay exception. Corella held the victim's statements to the 911 operator and the officer about the circumstances of the assault were not testimonial because they were not given in response to structured police questioning. (Id. at p. 466.) Corella contrasted the situation with that addressed in Hammon and held the victim's statements to the officer were not testimonial, even though she responded to questions:

"[The victim's] spontaneous statements described what had just happened did not become part of a police interrogation merely because [he] was an officer and obtained information from [her]. Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an 'interrogation.' Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police 'interrogation' as that term is used in Crawford. [Citations.]

"Moreover, it is difficult to identify any circumstances under which section 1240 spontaneous statement would be 'testimonial.' The rationale of the spontaneous statement exception to the hearsay rule is that the

utterance must be made without reflection or deliberation due to the stress of excitement. [Citation.] [The victim's] statements were ultimately used in a criminal prosecution, but statements made without reflection or deliberation are not made in contemplation of their 'testimonial' use in a future trial." (Corella, supra, at p. 469, italics added, fn. omitted; People v. Brenn (2007) 152 Cal.App.4th 166, 178.)

In People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), a domestic violence victim and her child arrived at a police station and spoke to officers. The woman was nervous, crying, upset, and scared, and had visible cuts and bruises. She told the officers that 30 minutes earlier, the defendant had choked, pushed, hit, and threatened her, and said he would shoot her if she went to the police. She said she came to the police station because she was afraid of the defendant. She accepted the officers' offer for an emergency protective order. The officers then went to her home and arrested the defendant. When the victim failed to appear to testify at the defendant's trial, the trial court permitted one of the officers to testify about her statements at the police station. (Id. at p. 1587.)

Saracoglu found the situation "was closer to Davis than to Hammon," and held the victim's statements were not testimonial because "[o]bjectively viewed, the primary purpose of [the victim's] initial interrogation by [the officer] was 'to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.' [Citation.]" (Saracoglu, supra, 152 Cal.App.4th at p. 1597.) Saracoglu held the victim's appearance at the police station was "the functional equivalent of making a 911 call" and her initial statement to the officres "was plainly a plea for help in the face of a bona fide physical threat." (Ibid.) The victim reported that the defendant threatened to kill her if she went to the police, and she fled with her child for help. This implied she could not return home without facing that threat, and her arrival at the police station constituted part of an ongoing emergency situation. (Ibid.)

Analysis

We review the testimony of the four officers about the hearsay statements made by C.G., to determine whether C.G.'s statements to each officer were testimonial within the meaning of the Sixth Amendment and Crawford, and inadmissible without defendant having the opportunity to cross-examine her. We independently review whether otherwise admissible out-of-court statements are testimonial such that their admissions violated defendant's constitutional right to confrontation. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)

Officer Williams

Officer Williams testified about C.G.'s statements regarding the incident on July 16, 2016, when defendant entered the house, assaulted C.G., and allegedly threatened her with a gun. However, this interview did not occur shorty after that incident. C.G. called the police to report the assault on July 18, 2016, and later explained the delay was because defendant hid her cellphone in the house, and she could not find it. Moreover, Officer Williams was not dispatched to her house to interview her until July 19, 2016, because of an erroneous classification of the call by the dispatcher. C.G. described the physical assault and her fear of defendant, showed her physical injuries, and described another assault that happened earlier.

As in Saracoglu, C.G.'s statements to Officer Williams were her first report of the July 16, 2016, incident and she was obviously still upset and frightened about the assault. However, Williams did not speak with her until three days after the incident. By that time, Williams's primary purpose was to conduct a formal interview about what happen. The emergency situation had obviously ended, and defendant had disappeared. As a result of the delayed report, C.G. made her statements in a situation similar to that addressed in Hammon, and we agree with defendant that her statements were testimonial.

Chief Dyer

Defendant argues that C.G.'s statements to Chief Dyer on July 23, 2016, were similar to the situation in Hammon and testimonial since defendant had already been taken into custody and the emergency was over. As in Corella, however, the circumstances of Dyer's brief conversation with C.G. show that her statements were not testimonial. Dyer spoke to C.G. immediately after the SWAT team forced entry and arrested defendant, and it objectively appears the primary purpose of his contact with C.G. was not to create testimonial evidence. The police had been summoned to the house on a domestic violence call but had not been able to determine how many people were in the house, if children were present, a weapon was involved, or if any of the inhabitants were injured. The SWAT team entered the house and arrested defendant, but there is no evidence any of those officers had any contact with C.G. Under the circumstances, it was reasonable for the first officer who contacted the victim to determine what just occurred and whether there was an ongoing threat to other family members.

When officers are called to investigate a domestic dispute, they " 'need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.' [Citation.] Such exigencies may often mean that 'initial inquiries' produce nontestimonial statements." (Davis, supra, 547 U.S. at p. 832.) "Davis supports a conclusion that statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency." (People v. Johnson (2010) 189 Cal.App.4th 1216, 1225, fn. omitted.)

Chief Dyer testified his initial contact with C.G. "was to simply determine how she was physically and whether or not there was going to be a need for medical aid," and he asked her a series of short questions within 30 to 60 seconds to evaluate the situation. In contrast to Hammon, Dyer's preliminary questions, asked at the scene of a crime shortly after it occurred, constituted "an unstructured interaction" and "bears no formal resemblance for a formal or informal police inquiry" as contemplated by Crawford. (Corella, supra, 122 Cal.App.4th at p. 469.) We thus find C.G.'s statements to Dyer were not testimonial.

Officer Divine

As with Chief Dyer, defendant argues C.G.'s statements to Officer Divine on July 23, 2016, after the SWAT team forced entry, were also testimonial because the emergency was over, and defendant was in custody when he interviewed her. The record supports defendant's arguments. After Dyer left the house, Officer Divine interviewed C.G. for about 30 minutes about what had just happened and asked more detailed questions as she explained the incident. Divine testified at trial about his interview with C.G. and her detailed account of what happened that day.

As in Hammon, C.G.'s statements to Officer Divine were testimonial. Defendant had been arrested, the scene was secured, the initial inquires indicated no one else was at risk, and Divine was conducting a formal investigation into the assaultive incident.

Officer Scott

We agree with defendant's argument that C.G.'s statements to Officer Scott were testimonial. Scott briefly testified about his interview with C.G. regarding the July 23, 2016, incident. Their conversation occurred on July 25, 2016, when he called her and asked additional questions, and she said she had not been in contact with defendant since he was arrested. C.G.'s statements to Scott were clearly testimonial and obtained during a structured interview.

D. Conclusion

As in Corella, C.G.'s statements to Chief Dyer about the July 23, 2016, incident were not testimonial and were admissible if the evidence satisfied a statutory hearsay exception.

As in Crawford and Hammon, however, C.G.'s statements to Officers Williams, Divine and Scott were testimonial. Williams's testimony provided the only evidence about the convictions based on the July 16, 2016, incident, and Divine's testimony provided a detailed account to support the convictions based on the July 23, 2016, incident. In contrast, Scott did not testify about any statements by C.G. regarding the charged offenses, only that she said she did not have any contact with defendant after he was arrested.

III. C.G.'s Testimony at the Section 402 Hearing

When C.G. failed to return to trial, the prosecutor moved to call the four officers to testify about C.G.'s pretrial statements. The prosecutor argued C.G. was unavailable under section 240, and defendant had the opportunity to cross-examine her at the section 402 evidentiary hearing. Defendant objected because counsel did not have the opportunity to cross-examine C.G. at trial. The court granted the motion and agreed with the prosecutor's argument that the defense had the opportunity to cross-examine C.G. at the section 402 hearing.

Defendant argues the court improperly overruled his Sixth Amendment objections because while C.G. became unavailable, defense counsel never had the opportunity to confront and cross-examine C.G. at trial since she failed to return to trial. Defendant further argues C.G.'s appearance at the section 402 hearing was limited to the question of whether there was a sufficient foundation to introduce C.G.'s text messages about the July 23, 2016, assault, and counsel did not have the same motive or opportunity to cross-examine her that would be required to satisfy the Sixth Amendment objections to the testimonial evidence introduced at trial.

"Testimonial statements of a person who does not testify at trial are admissible against a criminal defendant over a confrontation clause objection when (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine. [Citations.]" (People v. Hull (2019) 31 Cal.App.5th 1003, 1022.)

A. Unavailability

Defendant has not challenged the trial court's finding that C.G. became unavailable as a witness when she failed to return to trial. Under section 240, subdivision (a)(5), a declarant is unavailable when 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 term '[r]easonable diligence, often called "due diligence" in case law, " 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' " ' [Citation.] Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' [Citation.]" (People v. Herrera (2010) 49 Cal.4th 613, 622.)

C.G. repeatedly failed to appear for prior hearings in this case despite the court's orders and body attachments. She appeared and gave limited direct examination testimony at trial, was ordered to return the next day, and failed to do so. The court issued another body attachment, and both the prosecution and defense investigators were unable to find her. The court properly found C.G. was unavailable and the People used reasonable diligence to attempt to find her.

B. The Section 402 Hearing

The court granted the People's motion to introduce C.G.'s statements to the officers based on the People's argument that defendant had the opportunity to question C.G. at the section 402 evidentiary hearing, which was the only time C.G. was available for cross-examination by the defense. Defendant argues his Sixth Amendment rights were not preserved at the section 402 hearing because it was limited to the admissibility of C.G.'s text messages on July 23, 2016, and the defense did not have the same motive and opportunity to cross-examine her as it would have during trial.

In order to resolve this issue, we look to section 1291, the hearsay exception that provides for the introduction of former testimony. While the court did not rely on section 1291, its provisions are relevant to determine when a defendant has the same motive and opportunity at a prior hearing to cross-examine a witness who later becomes unavailable, in order to satisfy the Sixth Amendment.

Section 1291 states that evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and the party against whom the former testimony is offered was a party to the action in which the testimony was given "and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (§ 1291, subds. (a)(2).) "When the requirements of ... section 1291 are met, 'admitting former testimony in evidence does not violate a defendant's right of confrontation under the federal Constitution. [Citations.]' [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 340; People v. Hull, supra, 31 Cal.App.5th at pp. 1021-1022.)

The defendant must have been given the opportunity for effective cross-examination, even if the defendant did not avail himself fully of that opportunity, conduct a particular form of cross-examination that in hindsight might have been more effective, or even if events occurred after the first proceeding that might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1549-1550, citing People v. Valencia (2008) 43 Cal.4th 268, 293-294 and People v. Carter (2005) 36 Cal.4th 1114, 1173-1174.) "The 'motives need not be identical, only "similar." ' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 333; People v. Zapien (1993) 4 Cal.4th 929, 975.)

Analysis

We find that defendant had sufficient opportunity to confront and cross-examine C.G. at the section 402 hearing such that the court properly overruled defendant's Sixth Amendment objections to the introduction of C.G.'s testimonial statements at trial.

The court conducted the section 402 hearing on the first day of trial in response to defendant's objections to the introduction of C.G.'s text messages from the July 23, 2016, incident. The prosecutor advised the court that C.G. was present and available to testify to address defendant's objections, and the court agreed to conduct the hearing. C.G. took the stand and was sworn in. The court asked preliminary questions and C.G. immediately said she did not want to testify. The court invited the prosecutor to ask questions, and the prosecutor initially declined since she did not object to the text messages.

The court then turned to defense counsel, who asked C.G. about the text messages. C.G. repeatedly testified that she could not remember anything about the incident. Defense counsel also asked if she remembered anything about the text messages or what happened on July 16 and 23, 2016, and C.G. said she did not remember.

After defense counsel finished her questions, the court asked the prosecutor if she had any questions. The prosecutor then asked C.G. whether she recalled anything about the charged offenses that occurred on July 16 and 23, 2016, and how she received the injuries that were depicted in the photographic exhibits. Defense counsel objected to the prosecutor's questions for going beyond the scope of the text messages. The court overruled the objections and permitted C.G. to answer. In response to the prosecutor's questions, C.G. admitted the photographs showed her with various injuries, but testified she could not remember how she was injured, she could not remember anything that happened on July 16 and 23, 2016, and claimed it was too long ago and she suffered memory loss because of her seizures.

The court asked C.G. that if she intended to testify at trial that she did not remember anything about the charged offenses, and C.G. said yes. The court asked defense counsel if she had any further questions for C.G., and counsel declined.

"[T]he federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer. [Citation.]" (People v. Carter, supra, 36 Cal.4th at p. 1172.) The defense's interest and motive for cross-examination does not necessarily change just because the defense develops information after the hearing about which it did not have the opportunity to cross-examine the witness. (People v. Hull, supra, 31 Cal.App.5th at pp. 1029-1030.)

When defendant's trial began, both parties were aware that C.G. was a reluctant witness given her failure to appear at the preliminary hearing. While the section 402 hearing was initially held to address the admission of the text messages, the prosecutor also asked C.G. to explain how she was injured on July 16 and 23, 2016, and what happened on those dates. Once the court overruled defense counsel's objections, the prosecutor continued to ask questions about the charged offenses, and what she told the police. C.G. repeatedly testified she could not remember anything because it was too long ago, even though the offenses occurred was just six months earlier. The court invited defense counsel to ask additional questions and she declined.

At that point, the defendant had the opportunity to cross-examine C.G. about how she was injured, what happened on July 16 and 23, 2016, and her alleged failure to remember anything about two incidents. We thus conclude that the defense had the opportunity to confront and cross-examine C.G. at the section 402 hearing, and the admission of C.G.'s testimonial statements did not violate defendant's Sixth Amendment rights.

IV. Admission of C.G.'s Hearsay Statements

The final question is whether C.G.'s statements to the four officers were admissible for the truth of the matter pursuant to a statutory hearsay exception. Defendant argues the court admitted C.G.'s statements as prior inconsistent statements under section 1235. As we will explain, however, the court granted the People's motion to introduce the officers' testimony about C.G.'s hearsay statements based on section 1370, statements about the infliction of physical injury, and section 1240, spontaneous declarations.

A. Section 1370

When C.G. failed to return to the trial, the prosecutor moved to admit her hearsay statements to the officers pursuant to section 1370, and the court granted the motion.

Section 1370, subdivision (a)(1) states that evidence of a statement by a declarant is not made inadmissible under the hearsay rule if the statement purports to "narrate, describe, or explain the infliction or threat of physical injury upon the declarant," if (1) the declarant is unavailable; (2) the statement was made at or near in time to the injury; (3) the statement was made in writing, was recorded, or was made to medical or police personnel; and (4) the statement "was made under circumstances that would indicate its trustworthiness." (§ 1370, subd. (a).)

Subdivision (b) of section 1370 lists three factors to consider in determining whether the circumstances indicate trustworthiness: (1) whether the statement was made in contemplation of litigation, (2) whether the declarant had a bias or motive for fabrication, and (3) whether the statement is corroborated by independent evidence.

"The plain meaning of the phrase 'at or near' denotes a time close to the infliction of the injury - which in most circumstances will be within hours or days, rather than weeks or months," so that the statements must be made "close in time to the infliction of the injury, to provide some assurance that the statements would relate to facts fresh in the declarant's mind and reduce the risk that the statements resulted from the declarant's prevarication or coaching by third parties. [Citations.]" (People v. Quitiquit (2007) 155 Cal.App.4th 1, 9-10 [statements made two months after incident were not "at or near" time of event].)

In People v. Price, supra, 120 Cal.App.4th 224, the court held that as a result of the decision in Crawford, the "trustworthiness prong" of section 1370 must be construed "to require a prior opportunity to cross-examine the declarant. [Citation.]" (Price, at p. 239.) A finding that evidence is admissible under section 1370 is reviewed for abuse of discretion. (People v. Hernandez (1999) 71 Cal.App.4th 417, 424-425.)

Analysis

Section 1370's requirements were satisfied in this case to admit the testimony of Officers Williams and Divine about C.G.'s hearsay statements regarding the infliction of her physical injuries. The court found C.G. was an unavailable witness. C.G.'s statements to Officers Williams and Divine purported to narrate, describe, and explain defendant's assaults on, respectively, July 16 and 23, 2016, that resulted in the infliction of her physical injuries and his threats to harm her if she reported the incidents.

C.G.'s statements to Officer Divine were made immediately after the July 23, 2016, incident, and her statements to Officer Williams were made within three days of the July 16, 2016, assault, and thus were "at or near" the time of the assaults.

As for trustworthiness, C.G. was clearly upset and frightened of defendant when she was interviewed in both situations. The police documented her physical injuries with photographs. She was not involved in any litigation with defendant when she reported the July 16, 2016, assault, although the February 2016 protective order was still valid. When she was interviewed on July 23, 2016, the prior case was still under investigation, but C.G. refused Officer Divine's offer for a protective order and repeatedly expressed her fear of defendant, and that she did not want to testify against him. Finally, to the extent that the trustworthiness condition requires the opportunity to confront and cross-examine the declarant within the meaning of Crawford, we have already found that defendant had that opportunity at the section 402 hearing.

B. Spontaneous Declarations

Section 1240 states that evidence of a statement is not made inadmissible by the hearsay rule if the statement "[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant," and "[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception."

" 'To be admissible, "(1) there must be some occurrence startling enough to produce ... nervous excitement and render the utterance

spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." ' [Citations.]" (People v. Lynch (2010) 50 Cal.4th 693, 751-752, abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610.)

"A number of factors may inform the court's inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and misrepresent.' [Citation.] Such factors include the passage of time between the startling event and the statement, whether the declarant blurted out the statement or made it in response to questioning, the declarant's emotional state and physical condition at the time of making the statement, and whether the content of the statement suggested an opportunity for reflection and fabrication. [Citations.] This court has observed, however, that these factors 'may be important, but solely as an indicator of the mental state of the declarant.' [Citation.] For this reason, no one factor or combination of factors is dispositive. [Citations.]" (People v. Merriman (2014) 60 Cal.4th 1, 64; People v. Sanchez (2019) 7 Cal.5th 14, 40.)

Although detailed questioning is likely deprive a declarant's response of the spontaneity required under section, an answer to a simple inquiry might be spontaneous. (People v. Morrison (2004) 34 Cal.4th 698, 718-719; People v. Farmer (1989) 47 Cal.3d 888, 903-904.) The "crucial element" is the "mental state of the speaker. [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 811.)

"The requirement is for a spontaneous declaration, not an instantaneous one.... The test is not how long a period has elapsed since the event occurred, but whether it is reasonable to suppose the excitement of the event still dominates the declarant's reflective powers so the statement is likely to be ' " 'the unreflecting and sincere expression of one's actual impressions and belief.' " ' " (People v. Riva (2003) 112 Cal.App.4th 981, 995-996, & fn. 48, citing People v. Poggi (1988) 45 Cal.3d 306, 319; People v. Hughey (1987) 194 Cal.App.3d 1383, 1388.)

Analysis

C.G.'s statements to Chief Dyer were properly admitted as spontaneous declarations. Dyer contacted C.G. just moments after the SWAT team forced entry into her house, and after several hours where defendant kept her in the house. Dyer testified C.G. was "very visibly shaken" and "very scared." She was "shaking when she was seated, she had a cigarette and that she had just lit, but she was shaking considerably. And at that time when I was speaking with her I could tell that her voice was also shaking." C.G. was clearly under the stress of defendant's assaultive conduct toward her when she made her initial statements to Dyer.

Defendant acknowledges C.G. had been through a stressful incident but asserts she had calmed down by the time she spoke to Dyer. "[T]he fact that the declarant has become calm enough to speak coherently ... is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the exception virtually nugatory: practically the only 'statements' able to qualify would be sounds devoid of meaning." (People v. Poggi, supra, 45 Cal.3d at p. 319.) While C.G. was able to speak in more than one-word utterances, the record supports the court's implied finding that she remained under the stress of the event.

While we have already found that C.G.'s statements to Officer Divine were admissible under section 1370, it is arguable that the evidence also satisfied the spontaneous declaration exception. Divine testified he interviewed C.G. immediately after Chief Dyer's brief conversation with her, and they talked for about 30 minutes. Divine testified C.G. was shaking, tearful, and became emotional as she described what happened. C.G. said she was afraid of defendant, and he said he would "take care of her" if she contacted the police in any way, and she knew he meant she would "either be beaten or killed by him or someone else."

Officer Divine's description of C.G.'s mental state would lead to the inference that she was still under stress and fear from being held in the house for several hours and assaulted by defendant. After Crawford, "[t]he hearsay exception for spontaneous declarations is among those 'firmly rooted' exceptions that carry sufficient indicia of reliability to satisfy the Sixth Amendment's confrontation clause. [Citation.]" (People v. Dennis, supra, 17 Cal.4th at p. 529; People v. Brown, supra, 31 Cal.4th at p. 542.) Thus, even if defendant did not have a sufficient opportunity to cross-examine C.G. at the section 402 hearing, the admission of Officer Divine's testimony did not violate the Sixth Amendment since C.G.'s statements were spontaneous declarations.

C. Prior Inconsistent Statements

Defendant contends the court admitted C.G.'s hearsay statements as prior inconsistent statements and argues that exception does not apply to the facts of this case.

"Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with [her] testimony at the hearing and is offered in compliance with Section 770." (§ 1235, italics added.) Section 770 in turn provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of [her] testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give [her] an opportunity to explain or deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action." (Italics added; see, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 710; People v. Rodriguez (2014) 58 Cal.4th 587, 633.)

Analysis

We first note the record refutes defendant's assertion that the court primarily and erroneously relied on the hearsay exception of prior inconsistent statements. After the court found C.G. was unavailable, the prosecutor moved to call the officers to testify about C.G.'s pretrial hearsay statements, and argued the evidence was admissible under section 1370, the hearsay exception for statements about the infliction of physical injuries. The court granted the People's motion. As we have explained, the statutory requirements for section 1370 were satisfied to introduce the testimony of Officers Williams and Divine for the truth of the matters asserted in C.G.'s statements.

There was some confusion later in the trial, when defense counsel moved to strike the officers' testimony and dismiss the charges based on the alleged violation of defendant's Sixth Amendment right to cross-examine C.G. The court denied defendant's motions and, in doing so, said that C.G.'s pretrial statements were introduced as prior inconsistent statements. The court made a similar statement when it denied defendant's motion for new trial.

Despite these subsequent statements, the court clearly granted the People's motion to admit C.G.'s hearsay statements under section 1370. The court's subsequent references to the prior inconsistent statement exception were likely based on C.G.'s repeated claims at the section 402 hearing that she did not remember anything about the charged offenses, even though the incidents occurred just six months before defendant's trial. A witness's "deliberately evasive forgetfulness is an implied denial of prior statements, which creates 'inconsistency in effect' and authorizes admission of the witness's prior statements under ... section 1235." (People v. Perez (2000) 82 Cal.App.4th 760, 764.) C.G.'s claims that she could not remember anything about the offenses certainly implicated this aspect of section 1235, but the prosecutor did not rely on this hearsay exception and the court did not address the statutory requirements to find the evidence was admissible under this rule.

D. Officer Scott

Officer Scott's limited trial testimony about C.G.'s pretrial hearsay statements was not admissible under either section 1240 as spontaneous declarations, or section 1370 as statements about the infliction of physical injury. Scott called C.G. two days after the July 23, 2016, incident, and C.G. said she had not been in contact with defendant since he was arrested that day, and she was concerned about her well-being.

We conclude Scott's testimony about C.G.'s hearsay statements was erroneously admitted, but the error is harmless under any standard. However, Scott's testimony about his evaluation of C.G.'s physical injuries, based on his review of the photographs, was based on his opinion and not subject to Sixth Amendment or hearsay objections.

E. Conclusion

We find C.G.'s pretrial statements to Chief Dyer were not testimonial and were admissible as spontaneous declarations.

While C.G.'s pretrial statements to Officers Williams, Divine, and Scott were testimonial, we find that the court properly denied defendant's Sixth Amendment objections because C.G. was unavailable within the meaning of section 240, and defendant had the prior opportunity to cross-examine C.G. about the charged offenses at the section 402 hearing.

C.G.'s hearsay statements to Officers Williams and Divine were admissible under section 1370 as statements about the infliction of physical injury. C.G.'s statements to Officer Divine also appear to be spontaneous declarations. Her brief statements to Officer Scott, that she did not contact defendant after he was arrested, do not appear to fall within a hearsay exception, but the erroneous introduction of Scott's testimony about her hearsay statements was necessarily harmless.

V. The Prior Domestic Violence Allegations

In counts 1 and 6, defendant was charged and convicted of willful infliction of corporal injury on C.G., with a prior domestic violence conviction, in violation of Penal Code³⁰ section 273.5, subdivision (f)(1). The prior conviction allegations for both counts were based on the same 2016 offense and were not bifurcated and were decided by the jury.

30 All further statutory citations are to the Penal Code unless otherwise indicated.

Defendant contends the jury's true findings on the prior conviction allegations for counts 1 and 6 must be reversed because the findings were based on defense counsel's stipulation to the truth of the 2016 domestic violence conviction. Defendant asserts that counsel's stipulation was constitutionally invalid because it amounted to an admission of the truth of the prior conviction allegation attached to counts 1 and 6, and the court never advised defendant of his constitutional rights under Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.

A. The Prior Domestic Violence Conviction Allegations

In counts 1 and 6, defendant was charged with violating section 273.5, subdivision (f)(1) on July 16 and 23, 2016, corporal injury to C.G., a person with whom he had a dating relationship, with the additional allegations that he had a prior domestic violence conviction.

As to both counts 1 and 6, the information alleged defendant had a prior domestic violence conviction on February 16, 2016, for violating section 273.5, subdivision (a) in Fresno County Superior Court case No. F15906337.

The information also alleged that he had served three prior prison terms. The 2016 domestic violence conviction was not the basis for any of the section 667.5, subdivision (b) enhancements because he was placed on probation for that offense.

Prior to trial, defendant moved to bifurcate the prior prison term enhancements. Defendant did not move to bifurcate the prior domestic violence convictions attached to counts 1 and 6.

B. The Stipulations

At the beginning of defendant's trial, the court stated the parties had agreed to the following stipulations: (1) defendant was personally served with a criminal protective order in Fresno County Superior Court that ordered him to have no contact with C.G., and it expired on February 18, 2019; (2) defendant was convicted of a misdemeanor violation of section 273.5, subdivision (a), corporal injury to a spouse; and (3) he was also convicted of a misdemeanor violation of 243, subdivision (e)(1), domestic battery against C.G.

"THE COURT: Is that a stipulation that both parties are prepared to enter into at this time?

"[DEFENSE COUNSEL]: Yes, Your Honor.

"[THE PROSECUTOR]: Yes, Your Honor."

"THE COURT: All right. That will be considered as evidence by the jury in this case."

Later during the trial, the court asked the parties if they still agreed to the stipulation. The prosecutor said yes, and defense counsel did not reply. The court said: "All right. So if and when you're ready, I can read that stipulation to the jury."

During the People's case, the court read the above stipulations to the jury, including that on February 18, 2016, in Fresno County Superior Court case No. 15906337, defendant was convicted of a misdemeanor violation of section 273.5, subdivision (a), corporal injury to a spouse; both the prosecutor and defense attorney entered into the stipulations. The court then instructed the jury:

"[A] stipulation is an agreement as to facts.· That means that in this case the defense and the People have both agreed to the facts that I just read to you.· This means that they both accept those facts as true, and because there's no dispute about those facts, you must also accept those facts as read to you as being true."

C. Defendant's Trial Testimony

Toward the end of the People's case, defense counsel said she was going to call defendant to testify since C.G. had not reappeared, and she needed defendant to establish the foundation to introduce the letters C.G. sent to him in jail. The court reviewed its prior ruling that defendant could be impeached with certain prior convictions but did not address the prior misdemeanor violation of section 273.5, subdivision (a).

The court did not advise defendant of or obtain waivers of his constitutional rights prior to his trial testimony. During his direct examination testimony, defendant responded to his attorney's questions and admitted he had certain prior convictions, including one for "misdemeanor domestic violence" against C.G. in 2016.

On cross-examination, the prosecutor asked defendant to clarify that his prior misdemeanor domestic violence conviction was for violating section 273.5, causing traumatic injury to someone with whom he was in a relationship with, on February 18, 2016, and the victim was C.G. Defendant admitted the prior conviction and said he took "responsibility" for it, but denied he was in a "relationship" with C.G. at that time.

D. Instructions and Verdict

Prior to closing arguments, the parties agreed that the court could include the written stipulation with the printed instructions given to the jury. Defense counsel also agreed that the court should instruct the jury to determine whether the prior domestic violation conviction allegations were true for counts 1 and 6.

The jury was instructed with CALCRIM No. 840 on the elements of the substantive offense alleged in counts 1 and 6, infliction of corporal injury in violation of section 273.5. It was further instructed with CALCRIM No. 3101:

"The People have alleged that the defendant was previously convicted of Penal Code Section 273.5(a) on February 18th, 2016, in Fresno Superior Court Case F15906337. The People have the burden of proving this allegation beyond a reasonable doubt. You may not return a finding that the alleged conviction has or has not been proved unless all 12 of you agree on that finding. If the People have not met this burden, you must find that the alleged conviction has not been proved."

The jury was also instructed with CALCRIM No. 222 on the definition of evidence: "During the trial you were told that [the] [P]eople and the defense agreed or stipulated to certain facts. This means they accepted those facts as true. Because there's no dispute about those facts, you must also accept them as true."

The jury found defendant guilty of the infliction of corporal injury as alleged in counts 1 and 6 and found true the additional allegations on the verdict forms for each count that he had suffered the prior domestic violence conviction on February 18, 2016.

E. The Constitutional Advisements

Defendant contends that his defense attorney's agreement to the stipulation that he suffered the prior domestic violence conviction in 2016 was invalid because the trial court failed to advise him and obtain waivers of his constitutional rights as required by Boykin/Tahl. Defendant asserts that since the court instructed the jury to accept the stipulation as true, defense counsel's stipulation resulted in the jury's true findings on the prior convictions alleged for counts 1 and 6.

"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform the defendant of three constitutional rights - the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers - and solicit a personal waiver of each. [Citations.]" (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).) Prior to accepting a defendant's admission of a prior conviction, the court is required to advise and obtain waivers of the same three constitutional rights. (In re Yurko (1974) 10 Cal.3d 857, 863.) "[I]n the event of a guilty plea or other conduct tantamount to a plea, 'the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.' [Citation.]" (People v. Lopez (2019) 31 Cal.App.5th 55, 63.)

"A guilty plea ... is an event of signal significance in a criminal proceeding.... Accordingly, counsel lacks authority to consent to a guilty plea on a client's behalf, [citation]; moreover, a defendant's tacit acquiescence in the decision to plead is insufficient to render the plea valid, [citation]." (Florida v. Nixon (2004) 543 U.S. 175, 187-188.)

F. Howard

The People concede defendant was not expressly advised of his constitutional rights before defense counsel entered into the stipulation about the truth of the 2016 prior domestic violence conviction attached to counts 1 and 6. Instead, the People argue that defendant's "admission" was knowing and intelligent under the totality of the circumstances.

The People's argument is based on People v. Howard (1992) 1 Cal.4th 1132 (Howard), where the defendant was alleged to have a prior felony conviction. The trial court advised him that he had a right to a jury determination of the allegation and a right to confront prosecution witnesses, but did not mention the privilege against self-incrimination, and he admitted the prior conviction. Howard found the trial court clearly committed error by failing to advise defendant of his privilege against self-incrimination and reaffirmed the requirement for express admonitions and waivers. (Id. at pp. 1174-1175, 1179.)

Howard further held the error was not reversible per se. Instead, the test for reversal is whether "the record affirmatively shows that [the guilty plea] is voluntary and intelligent under the totality of the circumstances. [Citations.]" (Howard, supra, 1 Cal.4th at pp. 1175, 1179.) "[W]hen the record demonstrates that knowledge there is 'no need to go farther and attach to such knowledge the talismanic phrase "right not to incriminate himself." ' [Citations.]" (Id. at p. 1180.) Howard held the defendant in that case entered a knowing and voluntary waiver in the absence of express advisements:

"The record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront

adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea." (Ibid., fns. omitted.)

G. Cross and Farwell

Defendant relies on Cross, supra, 61 Cal.4th 164 and People v. Farwell (2018) 5 Cal.5th 295 (Farwell) to argue that the stipulation in this case was invalid.

In Cross, supra, 61 Cal.4th 164, the defendant was charged with felony infliction of corporal injury with a prior felony conviction for that same offense. The charge, now defined in section 273.5, subdivision (f)(1), provides for an increased term if the defendant has a prior domestic violence conviction. At trial, defense counsel stipulated to the existence and date of the prior conviction. The court accepted defense counsel's stipulation without advising the defendant of his constitutional rights or the penal consequences of the stipulation or eliciting a personal waiver of those rights. Based on the stipulation, the jury convicted the defendant of the charged offense and found the prior conviction allegation true. The court sentenced the defendant to the higher term authorized by subdivision (f)(1). On appeal, the defendant argued the stipulation to the prior conviction allegation was invalid under Boykin, Tahl, and Yurko since he was never advised of his constitutional rights and it resulted in a higher sentence. (Cross, at pp. 168-169.)

Cross agreed and held the stipulation was invalid because Yurko requires full Boykin/Tahl advisements when a defendant admits a prior conviction allegation that subjects him to increased punishment, whether it is considered an enhancement or an alternate sentencing scheme. (Cross, supra, 61 Cal.4th at pp. 169-170, 177-178.)³¹

31 Cross rejected the People's claim that the defendant forfeited appellate review of this issue, and held the issue raised a question of law that was cognizable since it was not based on disputed facts. (Cross, supra, 61 Cal.4th at pp. 172-173.)

"[S]ection 273.5(f)(1) authorized the trial court to impose a greater punishment on [the defendant] if the jury found that he was guilty of the charged offense under section 273.5(a) and that he had previously been convicted of violating section 273.5. [The defendant] stipulated that he had previously been 'convicted of a felony violation of ... Section 273.5.' Because he admitted 'every fact necessary to imposition of the additional punishment other than conviction of the underlying offense' [citation], he was entitled to receive Boykin-Tahl warnings before he made this admission. [¶] [A] stipulation has 'definite penal consequences' if it establishes 'every fact necessary' to support an 'additional punishment.' [Citations.] A stipulation may establish every fact necessary to support an increased punishment even if the trial court decides not to impose that punishment. Thus, our cases suggest that the phrase 'definite penal consequences' means definite exposure to additional punishment. Because the stipulation here established every fact necessary to expose [the defendant] to a penalty beyond the four-year maximum term available under section 273.5(a), it resulted in a definite penal consequence. '[N]othing more was prerequisite to imposition of [the elevated] punishment except conviction of the underlying offense ....' [Citation.]" (Id. at pp. 174-175.)

Cross reviewed the entirety of the record, held there was no evidence of a knowing and voluntary waiver under the totality of the circumstances, and set aside the stipulation and remanded the matter. (Cross, supra, 61 Cal.4th at p. 180.)

"Here, the record contains no indication that [the defendant's] stipulation was knowing and voluntary, and the Attorney General does not contend otherwise. After counsel read the stipulation in open court, the trial court immediately accepted it. The court did not ask whether [the defendant] had discussed the stipulation with his lawyer; nor did it ask any questions of [defendant] personally or in any way inform him of his right to a fair determination of the prior conviction allegation. [Citation.] The stipulation occurred during the prosecutor's examination of the first witness in the trial; the defense had not cross-examined any witness at that point. [Citation.] Further, we have no information on how the alleged prior conviction was obtained. [Citation.] Even if the complaint's express mention of 'Section 273.5 ([f])(1) of the Penal Code' was sufficient to put [the defendant] on notice of the penal consequence of his stipulation, nothing in the record affirmatively shows that [he] was aware of his right to a fair determination of the truth of the prior conviction allegation. Accordingly, [the defendant's] stipulation must be set aside." (Ibid., italics added.)

In Farwell, the defendant was charged with gross vehicular manslaughter, and misdemeanor driving with a suspended license. During trial, the parties entered into a stipulation admitting all the elements of the misdemeanor charge. The court later instructed the jury to accept the stipulated facts as true. (Farwell, supra, 5 Cal.5th at pp. 298-299.) The court did not advise the defendant "of the constitutional rights implicated by a guilty plea or the stipulation. Nor did it solicit a personal waiver of those rights." (Id. at p. 299.)

Farwell held that a "stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea. [Citations.]" (Farwell, supra, 5 Cal.5th at pp. 299-300.) Farwell further held that defense counsel's stipulation "conclusively establish[ed] the stipulated facts as true and completely relieved the prosecution of its burden of proof" on the misdemeanor count. (Id. at p. 300.) "While the jury was still required to return a verdict on that count, its limited function did not amount to a jury trial in the constitutional sense," and since the court instructed the jury to find the defendant guilty on that count. (Ibid.)

Farwell held Howard's totality of the circumstances test applied in all circumstances "where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea." (Farwell, supra, 5 Cal.5th at p. 303.) In applying this review, however, Farwell rejected the findings made by the majority opinion from Court of Appeal in defendant's case, where it affirmed defendant's convictions, rejected his Boykin/Tahl arguments, and found the defendant " 'knew of and waived his constitutional rights when he and his counsel made the strategic decision to enter the stipulation.' The majority focused on comments the trial court made to [the defendant] and to the jury in his presence about the charged crimes, the People's burden of proof, [the defendant's] right to cross-examine witnesses and his right not to testify. It also concluded that [the defendant] was aware of his constitutional rights 'because he was in the midst of that very jury trial, after a witness had been called and cross[-]examined when he and his attorney made the strategic trial decision to stipulate to the elements of count 2.' Finally, it noted that [the defendant] had two prior convictions and that his previous experience in the criminal justice system was relevant to demonstrate his knowledge of his legal rights." (Id. at p. 306.)

Farwell concluded that it did not have to decide whether the circumstances addressed in the Court of Appeal's majority opinion "affirmatively demonstrate" that the defendant was aware of his constitutional rights "as a general matter. Instead, we find the record insufficient for another reason: There is no affirmative showing that [the defendant] understood he was waiving his trial rights by virtue of the stipulation entered on his behalf." (Farwell, supra, 5 Cal.5th at p. 306.)

Farwell carefully reviewed the circumstances of the trial and the stipulation, rejected the appellate court's findings, and held the stipulation had to be set aside because the record was insufficient to show the defendant entered a constitutionally valid waiver of his rights:

"A comparison of the circumstances surrounding the plea negotiations with the circumstances of the later stipulation brings this point into focus. In pretrial discussions, defense counsel indicated that she had conferred with her client and that he was willing to plead no contest to the charge of driving while his license was suspended or revoked, 'so that can be an issue taken out of the hands of the jury.' (Italics added.) As noted, [the defendant's] offer to plead no contest was resisted by the prosecutor and ultimately rejected by the court. The prosecutor did offer to accept a plea on the vehicular manslaughter charge, and the court discussed that offer with [the defendant]. During that discussion, the court summarized the charges and explained [the defendant's] trial rights as follows: '[T]he prosecutor will present her witnesses' and 'defense counsel will point out the problems with the case, if you will, or at least attack some of the testimony. That's her job, is to confront those witnesses.' The court then explained that 'when it's all said and done, 12 people there, having heard all this testimony, and having also heard the strengths and weaknesses of the case' would either return a verdict of guilty, not guilty, or fail to reach a verdict. Noting that the prosecutor had offered a plea bargain of 13 years in prison, the court asked [the defendant] whether he 'had an opportunity to process that, think about it, talk to his family about it, understand and weigh

that, and realize the risks and benefits of what a jury could do, what a sentencing court could do, and have a response to that particular offer?' (Italics added.) [The defendant] replied, 'Yes sir. I disagree.' After the jurors were sworn, the court instructed them in [the defendant's] presence that the 'defendant has pleaded not guilty to the charge or charges,' and that he 'is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.' 'Unless the [People's] evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.'

"Unlike the express discussions on the subject of [the defendant's] change of plea, the circumstances preceding the stipulation are cryptic at best. After the People's first witness, defense counsel asked to approach the bench for an unreported discussion, apparently without [the defendant's] presence. Thereafter, the court simply read the stipulation into the record and informed the jury of its conclusive evidentiary effect. The court did not discuss the stipulation or its legal effect with [the defendant]. Nor did counsel confirm on the record that she had done so. The People urge us to infer that she did. [Citation.] The way this stipulation was handled makes such an assumption unwarranted. When [the defendant's] counsel entered the stipulation, [the defendant] had rejected the plea offer and was in the midst of a jury trial. The trial court had refused to accept his no contest plea to count 2. [The defendant] would correctly have understood that he was accused of both crimes and that the prosecution bore the burden of proving him guilty. There is no affirmative evidence that [defendant] understood his stipulation would conclusively establish all of the elements of the misdemeanor crime and make the guilty verdict a foregone conclusion. [Citation.]" (Farwell, supra, 5 Cal.5th at pp. 307-308, fn. omitted.)

Farwell held that "[t]he rule requiring a constitutionally valid waiver of trial rights by a criminal defendant applies here because this particular kind of stipulation is tantamount to a guilty plea." (Farwell, supra, 5 Cal.5th at p. 308.) Farwell concluded the record "fails to affirmatively show that [the defendant] understood his counsel's stipulation had the effect of waiving his constitutional trial rights," and reversed the conviction since "[t]he stipulation was the only basis for the jury's misdemeanor verdict." (Id. at pp. 298.)

Analysis

In counts 1 and 6, defendant was charged and convicted of the infliction of corporal injury on C.G., a person with whom he was in a dating relationship in violation of section 273.5. Under subdivision (a), he could have been sentenced to two, three or four years in prison. In this case, however, it was alleged as to both counts that he had a prior domestic violence conviction under subdivision (f)(1), and the jury found that allegation true, so that his potential sentence was two, four or five years. The court imposed the upper term of five years for count 1, and a consecutive term of one year four months for count 6, representing one-third the midterm of four years under subdivision (f)(1).

Defendant contends that his attorney's stipulation to the prior domestic violence conviction that was the basis for the allegations in counts 1 and 6, that resulted in the jury's true findings and the enhanced sentences imposed for those counts, must be stricken and reversed because the entirety of the record showed defendant was never advised of or waived his constitutional rights as required by Boykin, Tahl, and Yurko.

We agree that as in Cross and Farwell, defense counsel's stipulation, that defendant had a prior domestic violence conviction in 2016, and the court's instruction to the jury to accept the stipulation as true, resulted in the jury's true findings on the prior conviction allegations attached to counts 1 and 6. While the court and the attorneys extensively addressed the stipulation, it was entirely based on defense counsel's agreement and defendant was never asked if he concurred with counsel's decision. The court did not expressly advise defendant of his privilege against self-incrimination, and his rights to a jury trial and confront and cross-examine witnesses, at any time in this case.

The People concede the error but argue that defendant knowingly and intelligently waived his rights based on the totality of the circumstances test in Howard. The People assert defendant's extensive criminal history, and the fact that his 2016 domestic violence conviction resulted from a guilty plea, showed his "awareness" of his Boykin-Tahl rights. The People also assert he was aware of his constitutional rights because the court so advised him when he admitted the three prior prison term enhancements, and defendant testified at this trial and admitted he had been convicted of the domestic violence offense.

There are several problems with the People's arguments. First, there were no plea negotiations or discussions in this case where the court addressed the defendant's potential waiver of his constitutional rights. Prior to the start of trial, the court merely noted that defendant had rejected a plea offer, the prosecution rejected defendant's counteroffer, and defense counsel concurred. Second, while defendant testified at the trial in this case, and the court addressed whether his prior convictions were admissible, the court never advised him of his privilege against self-incrimination, or any other constitutional right, before he took the stand. Third, defendant entered a plea to the 2016 conviction, but the instant record does not include the advisements that led to that plea.

As for the prior prison term enhancements in this case, none of the allegations were based on defendant's 2016 misdemeanor domestic violence conviction since he was placed on probation for that offense. More importantly, the court did not correctly advise defendant of his constitutional rights prior to his admission of the prior prison term enhancements. The court only advised defendant that he had the right to a trial by either the jury or the court and asked if he waived both options. The court failed to advise defendant of his privilege against self-incrimination and his right to confront and cross-examine witnesses.³²

32 As we will discuss in issue VI, post, defendant separately contends the prior prison term enhancements must be stricken because the court failed to properly advise him of his constitutional rights. In response to that argument, the People concede the error but again assert that his admissions to the enhancements were knowing and intelligent because he was "well-versed in the criminal justice system" and entered a guilty plea to his 2015 prior conviction.

As in Cross and Farwell, we are compelled to reverse the jury's true findings for counts 1 and 6, that defendant had a prior domestic violence conviction, because the findings were based entirely on his attorney's stipulation and in the absence of any constitutional advisements and waivers.

In doing so, however, we are not reversing defendant's convictions for the substantive convictions in counts 1 and 6 for the infliction of corporal injury on C.G. As a result, on remand the court may instead impose a sentence based on section 273.5, subdivision (a)'s triad of two, three or four years, instead of the enhanced triad of three, four, or five years under subdivision (f)(1).

VI. The Prior Prison Term Enhancements

Defendant contends his admissions to the three prior prison term enhancements must be stricken because (1) his admissions were invalid since the court failed to fully advise him of his constitutional rights; (2) one of the prior prison terms had "washed out" and should not have been alleged; and (3) the enhancements must be stricken based on the amendments to section 667.5, subdivision (b) enacted by Senate Bill 136.

A. Background

The information alleged three prior prison term enhancements (§ 667.5, subd. (b)), based defendant's prior convictions and prison sentences for violations of (1) section 12316, subdivision (a)(1) and section 12021, subdivision (a)(1), felon in possession of a firearm, in 2008; (2) Vehicle Code section 2800.2, subdivision (a) driving in willful or wanton disregard while fleeing an officer, in 2014; and (3) sections 236/237, false imprisonment, in 2001. Defendant moved to bifurcate these allegations.

Prior to closing arguments, defense counsel advised the court that defendant would waive a jury trial on the bifurcated prior prison term enhancements and admit the allegations. The court erroneously advised defendant that he had two prior prison term allegations, that he had a right to a trial by either the jury or the court and asked if he was waiving both options. Defendant said yes. The court read two of the prior prison term allegations and defendant admitted he suffered the underlying prior convictions. The prosecutor and defense counsel stipulated to a factual basis for the two allegations.

The prosecutor and defense counsel advised the court that there was a third prior prison term enhancement. The court questioned whether the underlying conviction had "washed out" within five years, and defense counsel stipulated to the enhancement. The court advised defendant of his right to a trial by either the jury or the court on the third allegation; defendant said he understood and waived that right and admitted the allegation. The prosecutor and defense counsel again stipulated to the factual basis.

At the sentencing hearing, the court imposed three consecutive one-year terms for the prior prison term enhancements.

B. Defendant's Admissions

We first address the validity of defendant's admissions to the three enhancements since the People rely on his admissions to support the claim addressed in issue V, ante, that defense counsel's stipulation to the prior domestic violence allegations in counts 1 and 6 was valid. However, the People concede that when the court addressed the prior prison term enhancements, it only advised defendant of his right to either a jury or court trial and failed to advise him of his privilege against self-incrimination and right to confront and cross-examine witnesses.

As with defense counsel's stipulation to the prior domestic violence allegations, the People contend that the totality of the circumstances show that defendant gave knowing and intelligent waivers before he admitted the prior prison term enhancements because he was "well versed in the criminal justice system and had recently waived his constitutional rights and entered a guilty plea as recently as 2015." In making these arguments, the People are attempting to bootstrap its assertions made in support of the validity of the stipulation for the prior domestic violence convictions, which in turn relied on his admissions to the prior prison term enhancements.

For the reasons explained in issue V, ante, we again find the People's arguments are not persuasive since defendant was never advised of his constitutional rights at any time during this trial, and his prior domestic violence conviction was not one of the convictions underlying the prior prison term enhancements.

C. Senate Bill No. 136

As a separate matter, defendant contends his admissions to the three enhancements, and the three one-year terms that were imposed, must be stricken because of subsequent amendments to section 667.5, subdivision (b). At the time of defendant's trial, former subdivision (b), provided for a one-year enhancement for each prior prison term served for "any felony," with an exception not applicable here.

After defendant was sentenced, Governor Newsom signed Senate Bill No. 136 into law, which amended section 667.5, subdivision (b). Effective January 1, 2020, a trial court may impose the one-year enhancement only when the prior prison term was served for a qualifying sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)

In supplemental briefing, defendant contends, and the People concede, the amendment to section 667.5, subdivision (b) enacted by Senate Bill No. 136 is retroactive to this case since it is not yet final, and his admissions and the three one-year terms imposed for the prior prison term enhancements must be stricken since the underlying convictions were not for the qualifying sexually violent offenses. (See, e.g., People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.)

Since the matter is already being remanded for a new sentencing hearing for counts 1 and 6, the court must strike the three one-year terms imposed for the prior prison term enhancements.³³

33 Given our resolution of this issue, we need not reach defendant's alternate argument that one of the enhancements was invalid under the "washout" provisions of section 667.5, subdivision (b).

VII. The Consecutive Sentences Imposed for Counts 4 and 8

In counts 4 and 8, defendant was convicted of dissuading a witness, C.G., by force or threat on, respectfully, July 16 and 23, 2016, in violation of section 136.1, subdivision (c)(1). The court imposed fully consecutive midterms for each count. Defendant contends the court erroneously believed it was mandated to impose such terms under section 1170.15. Section 1170.15 states, in relevant part:

"[I]f a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, or of a felony violation of Section 653f that was committed to dissuade a witness or potential witness to the first felony, the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury." (Italics added.)

The People reply that even if the court did not understand the scope of its sentencing discretion, remand would be an idle act since the court stated its intent to impose consecutive sentences in this case.

A. The Probation Report

The probation report found four aggravating circumstances and no mitigating circumstances. The report recommended consecutive sentences because the crimes and their objectives were predominantly independent of each other; the crimes separate acts of violence or threats of violence; and the crimes were committed at different times.

The report further stated: "Pursuant to PC 1170.15, the terms in Counts Four and Eight are mandated to be imposed consecutively at the full middle term." (Italics added.) In the recommendations, the report again stated that defendant should be sentenced to fully consecutive midterms for counts 4 and 8 under section 1170.15.

B. The Sentencing Hearing

At the sentencing hearing, the court found defendant was statutorily ineligible for probation, and there were no unusual circumstances based on his significant criminal record, the circumstances of the current offenses, and he was on probation when he committed the current offenses.

The court stated that it was generally required to impose the midterm unless the aggravating circumstances outweighed mitigating circumstances. The court acknowledged the findings in the probation report, but independently found the aggravating circumstances outweighed any mitigating circumstance: his lengthy prior record, he had engaged in violent conduct in the past, he was on probation and PCRS supervision when he committed the current offenses, the current offenses occurred within days of each other and involved violence or the threat of violence to the same victim, and the current offenses involved the same victim within months of committing similar offenses against her.

Based on these findings, the court said it would select "the aggravating term as the principal term" for defendant's convictions and imposed a total term of 15 years four months. As to count 1, violation of section 273.5, subdivision (f)(1), with the prior domestic violence conviction, the court imposed the upper term of five years, plus three one-year terms for the three prior prison term enhancements.

As to count 4, violation of section 136.1, subdivision (c)(1), the court stated that "[p]ursuant to ... Section 1170.15 the court is required to impose a consecutive full midterm," and imposed "three years consecutive to the sentence the court has imposed in Count 1. [¶] Count 8 was a similar offense. Again, the court is imposing a consecutive term of three years for the offense in Count 8."

In count 6, the second conviction for violating section 273.5, subdivision (f)(1), the court found "a consecutive sentence is warranted" and imposed 16 months (one-third the midterm of four years). In count 7, assault with a deadly weapon, the belt, the court imposed "the aggravated term for the reasons previously stated," which was four years, but stayed the term pursuant to section 654 since it involved the same conduct, victim and occurrence as in count 6. The court gave credit for time served for the misdemeanor convictions in count 2, 5, 9, and 10.

C. Sections 136.1 and 1170 .15

Section 136.1 states that any person who attempts to prevent or dissuade a person from reporting a crime is guilty of a crime, which may be punished as either a misdemeanor or a felony. (§ 136.1, subd. (b)(1).) While attempting to dissuade, a defendant commits a felony violation if, while attempting to dissuade, he or she "knowingly and maliciously" acts with force (or an express or implied threat of force or violence) upon a witness or victim, and may be sentenced to two, three or four years in prison. (Id. at subd. (c)(1).)

Under California's determinate sentencing law, when a trial court imposes consecutive terms for multiple felony offenses, the defendant in most cases receives an aggregate term consisting of the principal term (the felony with the greatest term of imprisonment, including enhancements), coupled with the remaining felonies, which are deemed the subordinate terms. (People v. Sasser (2015) 61 Cal.4th 1, 9.) The subordinate terms consist of one-third of the middle term of imprisonment for those offenses, plus one-third of the term imposed for any specific enhancements. (Ibid.)

The crime of dissuading a witness, however, is an exception. (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478-1479 (Woodworth).) As noted above, section 1170.15 states, in relevant part, that upon a conviction of violating section 136.1, the subordinate term "shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury." (Italics added.)

In Woodworth, this court held that "the plain language of section 1170.15 does not mandate consecutive sentences," but instead "requires the trial court to impose the full middle term of imprisonment only if a consecutive sentence is imposed. The section does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Woodworth, supra, 245 Cal.App.4th at p. 1479, italics added.)

Analysis

The People assert that the record does not affirmatively show the court erroneously believed it was mandated to impose fully consecutive midterms for counts 4 and 8. However, the court stated it was "required to impose a consecutive full midterm" for count 4, and imposed "three years consecutive to the sentence the court has imposed in Count 1," and that count 8 was a "similar offense" and against imposed a fully consecutive midterm. (Italics added.)

The People further argue that remand for resentencing on these counts is not required because the court demonstrated its intent to impose consecutive terms for every felony conviction in this case. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "However, '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' [Citation.]" (People v. Gamble (2008) 164 Cal.App.4th 891, 901; People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)

We agree with the People that remand for resentencing on counts 4 and 8 would be an idle act based on the court's findings and statements at the sentencing hearing. Only one aggravating factor is required to support a consecutive sentence. (People v. Davis (1995) 10 Cal.4th 463, 552.) Section 1170.15 does not require the trial court to impose a consecutive sentence, but "if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Woodworth, supra, 245 Cal.App.4th at p. 1479.)

The trial court independently found and listed multiple aggravating circumstances that outweighed any mitigating circumstance. The court further stated that it was selecting "the aggravating term as the principal term" for defendant's convictions. It imposed the upper term for count 1, violation of section 273.5, subdivision (f)(1), plus fully consecutive midterms for counts 4 and 8. More importantly, the court found "a consecutive sentence [was] warranted" for count 6, the second conviction for violating section 273.5, subdivision (f)(1), and imposed one-third the midterm. As for count 7, assault with a deadly weapon, the belt, the court again imposed "the aggravated term for the reasons previously stated," but stayed the term pursuant to section 654.

We thus conclude that while the court may have erroneously believed that fully consecutive midterms were mandated for counts 4 and 8, remand for resentencing is not required on these counts given the court's stated intent to impose consecutive upper terms in this case and, based on the court's intent, it properly imposed fully consecutive midterms.

VIII. The Criminal Protective Order

Defendant challenges the court's decision at the June 2017 sentencing hearing in this case, to impose a 10-year criminal protective order prohibiting any contact with C.G. pursuant to section 136.2, subdivision (i)(1). Defendant argues this order is invalid because there was already an existing criminal protective order from his prior conviction that did not expire until February 2019.

A. Background

On February 18, 2016, defendant was convicted of a misdemeanor violation of section 243, subdivision (e)(1), domestic battery upon C.G., committed on August 24, 2015; and a misdemeanor violation of section 273.5, subdivision (a), corporal injury upon C.G., committed on September 19, 2015, in Fresno Superior Court case No. 15906337, and was placed on probation. On the same day, defendant was personally served in court with a criminal protective order forbidding him from having personal, electronic, telephonic or written contact with C.G. for three years, that would expire on February 18, 2019.

On July 23, 2016, defendant was arrested in this case and taken into custody. On July 26, 2016, the complaint was filed.

On July 27, 2016, defendant appeared in court and pleaded not guilty. The court served defendant with a criminal protective order under section 136.2, prohibiting any contact with C.G. for three years.

On June 30, 2017, the court conducted the sentencing hearing in this case, and imposed an aggregate term of 15 years four months, as set forth above. The court also served defendant with a criminal protective order pursuant to section 136.2, subdivision (i)(1), and stated: "I'm also going to sign and order a criminal protective order based upon the specific circumstances of this case and the prior cases involving the same complaining witness under ... Section 136.2(i)(1)," ordering defendant not to have any contact with C.G. The court asked the prosecutor how long the order should last. The prosecutor requested a 10-year period "based on the sentence." Defense counsel objected because defendant was married to C.G., then clarified they were not married, "but we'll object."

The court overruled defendant's objection and stated the order would expire in 10 years: "It generally could be a three-year order, but based upon the nature of the relationship of the parties and the sentence that the court has imposed, the court is going [to] order that this criminal protective order will not expire until June 30th of 2017 - 2027."

B. The Protective Orders

Section 136.2, subdivision (a)(1) authorizes the court to impose a protective order during the pendency of a criminal action. Once the defendant is found guilty and sentenced, the court's authority to impose a protective order under subdivision (a) generally ceases. (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465.)

Section 136.2, subdivision (i)(1) provides for the court to issue a postconviction protective order in domestic violence cases, and states:

"When a criminal defendant has been convicted of a crime involving domestic violence ..., the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of a restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and the victim's immediate family."

As applied in this case, the court initially imposed a protective order pursuant to section 136.2, subdivision (a)(1) at defendant's first court appearance after he was arrested. That order, however, expired once defendant was convicted. As a result, the court was authorized under section 136.2, subdivision (i)(1) to impose the 10-year protective order at the sentencing hearing.

Analysis

Defendant asserts the court lacked jurisdiction to impose the 10-year protective order based on the rule of "exclusive concurrent jurisdiction" because he was already subject to an existing section 136.2, subdivision (i)(1) protective order that the superior court issued in his prior domestic violence case in February 2016, and that order was still valid at the time of the sentencing hearing in this case.

" 'Under the rule of exclusive concurrent jurisdiction, "when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved." [Citations.] The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits.' [Citation.]" (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769-770.)

"The rule is established and enforced not 'so much to protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice.' [Citation.] The rule of exclusive concurrent jurisdiction may constitute a ground for abatement of the subsequent action. [Citation.] [¶] 'An order of abatement issues as a matter of right not as a matter of discretion where the conditions for its issuance exist.' [Citation.] However, abatement is not appropriate where the first action cannot afford the relief sought in the second. [Citations.]" (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.)

We find the court did not lack jurisdiction to impose the 10-year order at the June 2017 sentencing hearing in this case. The court's decision was not based on the same subject matter or controversy that was relied upon to impose the previously existing protective order from the February 2016 domestic violence case, but on the specific facts of this case and the sentence imposed. Moreover, defendant could not have been criminally prosecuted twice based on a single act that violated both orders. (In re B.S. (2009) 172 Cal.App.4th 183, 192-193.)

In any event, we note that the matter must be remanded for a new sentencing hearing on counts 1 and 6. The prior protective order expired on February 18, 2019. On remand, the court may clarify and again impose a protective order in this case.

DISPOSITION

Defendant's convictions for the substantive offenses alleged in counts 1 and 6, willful infliction of corporal injury upon C.G., are affirmed. The jury's true findings on the prior domestic violence conviction allegations attached to counts 1 and 6, and the sentences imposed therein pursuant to section 273.5, subdivision (f)(1), are reversed. On remand, the defendant may be sentenced pursuant to the provisions of section 273.5, subdivision (a).

Defendant's admissions and the three one-year terms imposed for the section 667.5, subdivision (b) prior prison term enhancements are stricken.

In all other respects, defendant's convictions and the sentences imposed are affirmed. The matter is remanded for a new sentencing hearing and further appropriate proceedings as set forth in this opinion.

POOCHIGIAN, J. HILL, P.J. MEEHAN, J.