Opinion
D068399
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS ROBLES GUTIERREZ, Defendant and Appellant.
Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF34224) APPEAL from a judgment of the Superior Court of Imperial County, Raymundo Ayala Cota, Judge. Affirmed. Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Amy L. ran barefoot to a sheriff's substation at 2:30 a.m. in mid-December to report—hysterically—that her boyfriend, defendant Jesus Gutierrez, had just hit and repeatedly choked her. The People charged defendant with one felony count of willfully inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). The prosecution team could not locate Amy before trial. Therefore, the only prosecution witnesses at trial were the three law enforcement officers who interacted with Amy when she reported the crime. A jury convicted defendant and the trial court sentenced him to four years in state prison. He asserts numerous issues on appeal.
As of January 1, 2017, California Rules of Court, rule 8.90 (all further rules citations are to the California Rules of Court) became effective. Rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) After consideration, we refer to the victim in this case by her first name and last initial, and thereafter by her first name only, to provide her with some measure of anonymity.
Undesignated statutory references are to the Penal Code.
First, defendant contends the trial court erred by allowing the three officers to testify about the statements Amy made to them when she reported the crime. Defendant argues Amy's statements were testimonial and, thus, their admission violated his rights under the confrontation clause as articulated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He also argues the statements did not fall within the spontaneous statement exception to the hearsay rule (Evid. Code, § 1240). We disagree. Amy's statements were nontestimonial because the record supports the conclusion the lead officer's primary purpose in questioning her was to assess the existence and extent of an apparent emergency so he could determine the appropriate response, not to gather evidence or preserve testimony for future prosecution. The statements were spontaneous because Amy made them while she was under the stress of excitement caused by traumatic events that had occurred just minutes earlier.
Second, defendant contends the trial court erred by granting the prosecutor's motion to exclude certain statements Amy made to one of the officers about injuries (a black eye and a mark on her neck) she purportedly sustained on other occasions from sources other than defendant. We conclude the trial court acted within the bounds of its discretion in excluding this evidence.
Third, defendant contends the trial court erred by allowing two of the officers to testify about their firsthand experiences with domestic violence victims' behavior, and one officer's firsthand experience investigating strangulation injuries. We agree with respect to the former, and disagree with respect to the latter. However, the trial court's erroneous admission of evidence regarding domestic violence victims' behavior was harmless.
Fourth, defendant contends the evidence did not support the trial court's instruction to the jury regarding "Consciousness of Guilt: False Statements." (CALCRIM No. 362.) We disagree. There was abundant evidence of defendant's guilt apart from his denial of culpability. Thus, the instruction was properly given.
Fifth, defendant contends the prosecutor engaged in several instances of improper conduct during closing argument. We find no error in the trial court's handling of the matter.
Sixth, defendant contends the trial court erred by denying his posttrial motion for new trial. We disagree. The trial court did not abuse its discretion in concluding the "newly discovered evidence" (§ 1181, subd. (8)) on which the motion was based—Amy's alleged willingness to now recant her claim of abuse—was not new at all because defendant made no showing of diligence to obtain the evidence before or during trial.
Finally, defendant asserts the trial court made several sentencing errors. None of these claims has merit.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Before trial, the court heard extensive argument on motions in limine and conducted extensive hearings under Evidence Code section 402 to determine the admissibility of several conversations Amy had with law enforcement officers on the night at issue. The court admitted three of the conversations as nontestimonial, and excluded other statements as testimonial or for other evidentiary shortcomings. We set forth here the testimony admitted at trial; we later describe the testimony adduced at the Evidence Code section 402 hearings.
Deputy Caldwell's Trial Testimony
At about 2:30 a.m. on December 18, 2014, Imperial County Sheriff's Deputy William Caldwell was doing paperwork inside the sheriff's substation in Winterhaven when someone "began frantically knocking on the front door." Deputy Caldwell went around the side of the building (to avoid a potential ambush at the front door) to investigate. He saw a woman (later determined to be Amy) frantically knocking on the door and wearing yoga pants and a tank top, but no shoes, jacket, or other type of cover- up. Amy's attire struck Deputy Caldwell as odd in light of the time and mid-50's temperature.
Deputy Caldwell asked Amy how he could help her. As she ran toward him, Deputy Caldwell "could smell the odor of an alcoholic beverage coming off her breath" and could see that she was "noticeably crying or had been crying. Her makeup was running. Her hair was messed up, disheveled." Amy yelled, "Help me. He's going to kill me," then started crying uncontrollably. Deputy Caldwell looked at Amy to see if she had any obvious injuries, then looked around to see if anyone was chasing her. Seeing no one, Deputy Caldwell asked Amy if she needed medical assistance. She declined. Deputy Caldwell asked Amy if she was sure, and she declined again. Then Amy "all of a sudden" said, "He choked me." Deputy Caldwell asked, "Well, who choked you?" Amy replied that "her boyfriend Jesse had choked her." Deputy Caldwell asked where "Jesse" lived and Amy provided the address of their home, which was about 200 to 300 yards from the substation. Deputy Caldwell asked Amy her name and she identified herself. After being outside for about one minute, Deputy Caldwell asked Amy to come inside the substation. (Adopting the parties' nomenclature, we will refer to Deputy Caldwell and Amy's communications outside the substation as Conversation One.)
Inside the substation, Deputy Caldwell stood while Amy sat in a "little almost like a holding cell area" and he asked her "just to tell [him] what was going on." Deputy Caldwell testified as follows about Amy's response (which we will refer to as Conversation Two):
"She told me that she had gone out that evening with her boyfriend, Jesse Gutierrez, to a bar in Yuma. She stated they had some drinks. She ended up driving back to the residence . . . .
"And in the vehicle they—she told me that her and Mr. Gutierrez got into an argument over her phone and the contents of her phone.[] She stated once she got back to the residence, the argument trailed over to inside the residence, again, arguing about the phone and the contents. [¶] Mr. Gutierrez had told her that he had gained access to it through her small child who . . . knew the password.
"Then [Amy] stated that all of a sudden Mr. Gutierrez got behind her and began choking her with his arm. [¶] At that point, [Amy] started to cry.
[¶] . . . [¶]
"She started crying for a little bit and then she went on. She told me that Mr. Gutierrez would ask her questions about the phone. And if she didn't answer fast enough, that he would start to choke her again.
[¶] . . . [¶]
"She's noticeably upset—she's crying, she's . . . in shock. She was just crying uncontrollably.
[¶] . . . [¶]
"She kind of paused and she told me that she could feel her lips go numb and she felt like she was going to pass out.
[¶] . . . [¶]
"After that, she told me Mr. Gutierrez let go of her. She . . . asked him if she could use the restroom or go to the restroom. [¶] She told me at first, Mr. Gutierrez didn't let her go to the restroom. [Amy] said that Mr. Gutierrez was—due to the amount of fear that he was instilling into her, that if she didn't go to the restroom, that she was going to urinate on the couch.
[¶] . . . [¶]
"At that point she stated that he let her go to the restroom. He followed behind her as they went to the restroom. And while in the restroom, he continued asking her questions about what was on the phone and who she was talking to. While he was hitting her, he was asking her these questions, hitting her in the head.
[¶] . . . [¶]
"At this point then she told me she tried to put on a pair of shoes to try to leave and run out. [¶] She stated Mr. Gutierrez didn't let her put on the shoes and actually told her to put them next to the toilet.
[¶] . . . [¶]
"[Amy] then told me that while Mr. Gutierrez was looking through her phone, he started walking towards the kitchen. She stated he got distracted looking through her phone. And when she saw the opportunity, she ran out the front door."
Deputy Caldwell testified that Amy told him defendant "was upset about her talking to other males on Facebook."
Amy ran directly to the substation, which Deputy Caldwell estimated would be a three- to five-minute walk, and "presumably running it would be faster." Deputy Caldwell again asked Amy if she needed medical attention, but she declined. Deputy Caldwell radioed for backup.
As Amy was speaking to Deputy Caldwell, he observed that her nose, hands, and chest had inch-long scratches that "looked very fresh"—they were bright red and "looked like they were almost about to bleed." He also observed that Amy "had red marks on her neck, on either side and a little bit towards the front that appeared to be pretty fresh. And she also had red, bright red on her chest." Deputy Caldwell testified that the "red marks on her neck were, I don't know, like—like someone was choked." When the prosecutor asked whether the marks on Amy's neck were "consistent with somebody who has been choked recently," Deputy Caldwell responded, "Yes," explaining (without objection): "Just the freshness. You know, the redness is going to eventually dissipate if it had happened over time. They were pretty fresh. They weren't, you know, dulling. They were noticeable." Deputy Caldwell acknowledged he did not ask Amy how she received these injuries.
After Deputy Caldwell and Amy had been inside the substation for about five minutes, Deputy Caldwell's partner (Deputy Christian Torres) and an officer from the Quechan Tribal Police Department in Winterhaven (Shawn Gross) arrived. Deputy Caldwell briefed them outside, then asked Officer Gross to stay with Amy while he (Deputy Caldwell) and Deputy Torres attempted to contact defendant at the residence. Deputy Caldwell explained he wanted someone to stay with Amy because "[w]e didn't know where the suspect was. We didn't know really anything about it besides their name and what she was telling us. You know, we didn't know if it was legitimate, that somebody was going to come after her, if somebody had seen her. [¶] We weren't just going to leave her there by herself. We didn't want her to walk away in case she did have other serious medical issues and she pass[es] out or something."
Deputies Caldwell and Torres took the nearly 30-second drive from the substation to defendant and Amy's residence. When they arrived, all the inside and outside lights were off, and no one answered the door after about five minutes of knocking. The deputies left and made the approximately 30-second drive back to the substation.
Deputy Caldwell observed that when he and Deputy Torres returned to the substation after their approximately six-minute absence, Amy "was seated right where [he] had left her" and was still crying and "very upset."
Deputy Caldwell stated that his general practice in investigating domestic violence cases is to attempt to obtain a recorded statement from the victim, to photograph any injuries, and to handwrite a report describing any injuries and their location. He explained he does this, in part, to guard against subsequent recantation by the victim. If a victim does not consent to giving a recorded statement or to allowing photographs of injuries, Deputy Caldwell's practice is to respect the victim's wishes. Amy declined to provide a recorded statement or to be photographed. Deputy Caldwell observed that Amy at this point "was very upset still. She started crying, crying into her hands. Just looking down, did not want to make eye contact. Just really upset." She also "appeared scared."
Deputy Caldwell testified he had worked on more than 50 domestic violence cases during his approximately three years as a peace officer. In his experience, the victims "sometimes"—between 5 and 10 percent of the time—become uncooperative, either by refusing to talk to the deputy, by saying " 'Everything is fine now,' " or by being unfindable. (We discuss Deputy Caldwell's testimony about domestic violence victims in further detail in part III, post.)
About 10:00 p.m. on the day Amy ran to the substation, Deputies Caldwell and Torres returned to defendant's residence. Both Amy and defendant were home. Deputy Caldwell observed that Amy "had a lot of makeup on and it was caked on. She had it on her face and also down onto her neck, almost to her collarbone." Although the makeup somewhat masked Amy's injuries, Deputy Caldwell could still see them.
Deputy Caldwell questioned defendant outside. Defendant said he and Amy had gotten into an argument over men she was talking to on Facebook. When Deputy Caldwell asked if the argument had become physical, defendant "paused"—"almost like he was thinking about what to say"—before answering. Defendant responded by stating "[i]t was just a verbal argument and [Amy] went for a walk." He did not "offer any explanation as to why [Amy] would go for a walk barefoot in the middle of December."
Officer Gross's Trial Testimony
Officer Gross testified that he was on patrol in the early morning hours of December 18 when he received a call for assistance at the sheriff's substation in Winterhaven. He arrived on the scene within approximately three minutes. Amy "appeared to be very scared, shaken. She was shaking a lot, crying, [and had] difficulty breathing." It struck Officer Gross as unusual that Amy was barefoot because it was a "cool" December night and "[i]t's just not normal to see somebody running around with no shoes on." The deputies briefed Officer Gross and asked him to stay with Amy at the substation while they attempted to contact defendant. He agreed.
During the deputies' approximately five-minute absence, Officer Gross sat with Amy without asking her any questions. He explained it was his department's policy not to re-interview a person when the sheriff's office is handling a case. He noticed Amy "had some marking around her neck and a bruise on her upper chest." Amy "appeared to be very frightened," "[h]er whole body was shaking," and she "kept rocking and leaning forward, trying to pull her knees up to be in more of a fetal position and crying the whole time." As they sat, Amy stated (in Officer Gross's words) that "she doesn't know how she keeps putting herself in positions like this." (We will refer to this statement as Conversation Three.)
Deputy Torres's Trial Testimony
As of December 2014, Deputy Torres had been a peace officer for about one year. Before that, he served as a correctional officer for Imperial County for eight years. He was patrolling Winterhaven at 2:30 a.m. on December 18 when he returned to the substation and observed Deputy Caldwell speaking with a barefoot woman he later determined was Amy. It struck Deputy Torres as unusual that Amy was barefoot because "[i]t was 2:00 in the morning, December, really cold outside." Amy "was crying, hysterical. She appeared to be, like, really scared, terrified actually." Amy was "rambling," "talking hysterically," and "jumping all over the place chronologically in telling her story." Deputy Torres overheard Amy mention defendant's last name and tell Deputy Caldwell that she feared for her life and had not had time to put on shoes before she ran from her residence.
Deputy Torres noticed that Amy "had redness" to her neck, chest, and left shoulder. Based on his experience as a correctional officer "working the jail," during which he investigated 100 to 200 assaults, about 10 percent of which involved strangulation injuries, Deputy Torres concluded Amy's injuries were fresh. Based on that same experience, he believed Amy's injuries were "consistent with a strangulation that had just occurred" because of "the color [and] the redness"—"it was a bright pink. It wasn't faded . . . . [U]sually after it's been a while, they kind of fade out and they start to dissipate. But it was like a bright pink." (We discuss Deputy Torres's testimony about Amy's injuries in further detail in part III, post.)
Deputy Torres noted Amy would not allow the deputies to photograph her injuries. He said he had investigated 10 domestic violence cases during his one year as a peace officer. In those 10 cases, eight of the victims eventually recanted, with five of them recanting while he was on the scene, once "the immediate danger ha[d] passed." (We discuss Deputy Torres's testimony about domestic violence victims in further detail in part III, post.)
Trial, Verdict, and Sentence
The People charged defendant with willfully inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). The People dismissed the latter count after the close of evidence.
At trial, the only witnesses were Deputies Caldwell and Torres, and Officer Gross. After less than two hours of deliberations, the jury returned a guilty verdict.
The trial court sentenced defendant to four years in prison. (We discuss sentencing issues in further detail in part VIII, post.)
DISCUSSION
I. Admission of Amy's Statements to Law Enforcement
Defendant contends the trial court erred by allowing Deputy Caldwell and Officer Gross to testify at trial about the statements Amy made to them. He maintains this violated his confrontation clause rights because the statements were testimonial inasmuch as there was no ongoing emergency. He further maintains the statements were inadmissible under the spontaneous statement exception to the hearsay rule. We disagree in both respects.
A. Background
Amy did not testify at the preliminary hearing and the prosecution team was having difficulty locating her before trial. Accordingly, the prosecutor moved in limine to deem Amy's statements to Deputy Caldwell and Officer Gross admissible. The prosecutor argued the statements were not testimonial for confrontation clause purposes because they were made during an ongoing emergency. She argued the statements fell within the spontaneous statement hearsay exception because Amy made them while under the stress and excitement of having just been choked.
The prosecution team filed several declarations and an affidavit documenting their unsuccessful efforts to contact Amy.
Defense counsel also moved in limine to exclude the statements on confrontation clause and hearsay grounds and requested a hearing under Evidence Code section 402. The prosecutor identified Deputy Caldwell and Officer Gross as the only witnesses from whom she intended to elicit testimony about Amy's statements. The trial court heard testimony from Deputy Caldwell and Officer Gross during a pretrial Evidence Code section 402 hearing, and from Deputy Caldwell during several follow-up hearings held before and during trial.
The prosecutor did not identify Deputy Torres in this regard, but noted she intended to examine him regarding statements defendant made when the deputies arrested him. Defendant did not object below to Deputy Torres's testimony on the basis he was not adequately disclosed as a witness or presented at the Evidence Code section 402 hearing. Thus, defendant has forfeited this issue on appeal. (See People v. Boyette (2002) 29 Cal.4th 381, 423-424.)
1. Deputy Caldwell's Evidence Code Section 402 Testimony
Deputy Caldwell described the circumstances and substance of Conversation One largely as he eventually described them at trial. He added that when Amy first approached him he observed that she had a blackened left eye, but he did not yet see her other injuries. He acknowledged he did not hear anyone else screaming or yelling; did not hear any audible signs of a struggle; and did not see anyone else in the area.
Deputy Caldwell also described the circumstances and substance of Conversation Two largely as he eventually described them at trial. On direct examination, he explained the nature and purpose of his questioning of Amy that led to her recounting of events:
"Q. When the victim is explaining to you what happened, are these in—responses to your question or is this in response to your general question of what's going on or what happened?"
"A. Just [']what's going on, what happened[?']"
"Q. So you asked just a general what-happened question. And then she divulged the story of why she's knocking on the Winterhaven substation?"
"A. Yes."
"Q. Were there any pointed or detailed questions that you asked during her rambling, I guess you could call it?"
"A. No."
"Q. And what is her demeanor like?"
"A. Noticeably upset, crying."
"Q. Why did you ask her what happened?"
"A. It's part of the investigation. I had to know what was going on, whether this was a domestic violence dispute, whether maybe she was in a car accident. I had no idea why she was like the way she was."
"Q. When you said 'part of the investigation,' what do you mean by that?"
"A. To discover facts. [¶] You know, people will come to you different ways. It could be whether they're injured, maybe they're not mentally stable. You just have to figure out what's going on."
"Q. And why would that make a difference to you?"
"A. Whether it's going to be a suspect, whether there's other people involved, whether there's still a danger, danger to others."
"Q. So does it affect your possible responses or how you respond to a situation?"
"A. Yes."
"Q. And what was your understanding of this situation when somebody came frantically knocking on the substation and gave that statement?"
"A. That there's somebody out there that might want to cause her danger."
"Q. And how would you describe your overall purpose of asking her what had happened and if she needed medical attention?"
"A. Just for the well-being of her."
Deputy Caldwell also testified about his rationale for summoning Officer Gross and asking him to stay with Amy (which led to Conversation Three): "Based on the circumstances and what she was telling us, that he had choked her and was basically trying to kill her, I wasn't going to go confront the subject by myself, I needed a partner just to make it safe. That would have left her alone. [¶] Not knowing where the suspect was at, possibly he knew that [she] went to the substation, I wasn't going to leave her alone without some[one] to protect her."
While waiting for Officer Gross to arrive, Deputy Caldwell asked Amy about her black eye and another injury he observed on her neck. He could tell both injuries were "old." The black eye "looked old" and Deputy Caldwell testified he "knew it was from a past-occurr[ing] event." Amy told him "she got [it] fighting with a girl the week before." The injury on her neck also "appeared older, like, scabbed, more of a brown not really a red." Amy explained she accidentally burned herself with a curling iron. Deputy Caldwell testified that because he could tell the black eye and curling iron burn were old, he was not asking about them in connection with the pending incident. After Deputy Caldwell asked about the old injuries, Officer Gross arrived and Deputy Caldwell went outside to brief him and Deputy Torres.
When Deputies Caldwell and Torres returned from their six-minute trip to Amy and defendant's residence they relieved Officer Gross, who left to search for defendant across the border in Arizona. Deputy Torres continued searching for defendant while Deputy Caldwell tried to question Amy further. Amy did not want to discuss the incident further or allow Deputy Caldwell to document her statement or injuries; she "just basically wanted to leave." However, Deputy Caldwell would not let her leave alone because they "still didn't know where the suspect was." Deputy Caldwell considered it "[d]efinitely an emergency situation." Amy contacted a relative to accompany her.
Before Amy's relative arrived, Deputy Caldwell questioned Amy further. When Amy was "uncooperative" about documenting the incident, Deputy Caldwell asked whether there was a history of domestic violence between defendant and her. Amy said "yes and that they were progressing." Deputy Caldwell immediately confirmed on the sheriff's computer system that defendant had previously been arrested for domestic violence. Deputy Caldwell asked Amy "if she was scared of the defendant." "She looked down . . . , she put her head into her hands and said, 'Yes.' " She explained that defendant had previously "told her that if he were to go to jail, he would remember her and once he got out, he would kill her." Amy did not consent to documenting the incident.
Amy's relative arrived at the substation about an hour after Amy had called her. Deputy Caldwell escorted them to defendant's residence so she could get her car. He explained he escorted them because "[t]here was still somebody out there that [Amy] said wanted to kill her."
2. Officer Gross's Evidence Code Section 402 Hearing Testimony
Officer Gross described the circumstances and substance of Conversation Three largely as he eventually described them at trial. He clarified that Amy's statements "were completely unsolicited." Although Amy "had calmed down a little bit" while accompanied by Officer Gross, "[s]he was still upset." He "could still tell she was having a little bit of a difficulty breathing. She was a little shaky."
3. Trial Court's Ruling
After hearing argument from counsel, the trial court found Conversations One, Two, and Three admissible. The court found the first two conversations were nontestimonial and spontaneous because they were made during an ongoing emergency. The court found Conversation Three admissible because Amy's statements to Officer Gross were unsolicited and spontaneous. The court excluded Amy's statements about her black eye and curling iron burn; defendant's history of domestic violence; and his threat to kill Amy if he were imprisoned.
B. Confrontation Clause
1. Guiding Principles: Crawford and Its Progeny
The confrontation clause of the Sixth Amendment to the federal Constitution states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." "[T]his bedrock procedural guarantee applies to both federal and state prosecutions." (Crawford, supra, 541 U.S. at p. 42.)
In Crawford, supra, 541 U.S. 36, the United States Supreme Court reexamined the application of the confrontation clause to the admission of hearsay statements in criminal proceedings. The court observed that the text of the Sixth Amendment reflects concern with " 'witnesses' against the accused—in other words, those who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " (Id. at p. 51.) Thus, the court concluded admission of a "testimonial" hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. (Id. at pp. 59, 68.) This rule applies even if the statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 56 & fn. 7.) But the rule does not apply to "nontestimonial hearsay." (Id. at p. 68.)
The Crawford court "l[eft] for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68, fn. omitted, italics added.) While the court recognized "one can imagine various definitions of" the term " 'interrogation,' " the court found it unnecessary to spell out a comprehensive definition because the police questioning at issue there "qualifie[d] under any conceivable definition." (Id. at p. 53, fn. 4.) Specifically, the Crawford court deemed testimonial a tape-recorded interview of the defendant's wife that occurred at a police station hours after the events at issue and after she had been advised of her Miranda rights. (Id. at pp. 38-39.)
The Supreme Court revisited the distinction between testimonial and nontestimonial hearsay in Davis v. Washington (2006) 547 U.S. 813, 823-826 (Davis), which arose from two consolidated domestic violence cases (Davis v. Washington and Hammon v. Indiana (Hammon)). The court formulated the following test to distinguish nontestimonial from testimonial statements made to law enforcement officials: "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." (Id. at p. 822.) The court added that analysis of the formality of the circumstances surrounding the giving of the statement is also "essential." (Id. at p. 830, fn. 5.)
Applying these principles to the Davis v. Washington portion of the case, the court deemed nontestimonial a recording of a 911 call from a domestic violence victim who reported events "as they were actually happening." (Davis, supra, 547 U.S. at p. 827.) The court found it clear that the victim "was facing an ongoing emergency" and that her 911 call "was plainly a call for help against a bona fide physical threat." (Ibid.) The operator's questioning "elicited statements [that] were necessary to be able to resolve the present emergency," including by attempting to learn the perpetrator's identity "so that the dispatched officers might know whether they would be encountering a violent felon." (Ibid.) Finally, the court noted the informality of a 911 call from a "frantic" caller who was "in an environment that was not tranquil . . . ." (Ibid.) Under these circumstances, the court concluded the victim "simply was not acting as a witness; she was not testifying." (Id. at p. 828.)
The Davis court cautioned that although the initial interrogation conducted during a 911 call "is ordinarily not designed" to elicit testimonial statements (Davis, supra, 547 U.S. at p. 827), the conversation can " 'evolve' " into one that elicits testimonial statements once the initial purpose of enabling a response to an ongoing emergency has been achieved (id. at p. 828). The court surmised (but did not need to decide) this might have happened once the Davis assailant left the scene and the 911 operator "proceeded to pose a battery of questions" to the victim. (Id. at pp. 828-829.)
By contrast, the Supreme Court deemed the Hammon victim's statements testimonial because "the primary, if not indeed the sole, purpose of the interrogation was to investigate" "possibl[y] criminal past conduct," not respond to an emergency in progress. (Davis, supra, 547 U.S. at pp. 829-830.) When police responded to a reported domestic disturbance, the " ' "somewhat frightened" ' " victim was alone on the front porch and reported that " ' "nothing was the matter." ' " (Id. at p. 819.) One officer questioned the victim in the living room while another confined the suspect to the kitchen so they could " 'investigate what had happened.' " (Id. at p. 820.) After the victim reported the suspect had physically abused her, the officer " 'had her fill out and sign a battery affidavit.' " (Ibid.) In finding the victim's oral and written statements testimonial, the Supreme Court observed they were made when "there was no immediate threat to [the victim's] person," and the questioning officer "was not seeking to determine (as in Davis [v. Washington]) 'what is happening,' but rather 'what happened.' " (Id. at pp. 829-830, italics added.) The court found the victim's statement was "formal enough" because the victim and suspect were physically separated; the police questioned the victim about past events; and the interrogation "took place some time after the events described were over." (Id. at p. 830, italics added.)
The Davis court clarified that its holding as to Hammon did not establish a blanket rule that initial inquiries by police responding to a crime scene will never yield nontestimonial statements. (Davis, supra, 547 U.S. at p. 832.) To the contrary, the court noted it had "already observed of domestic disputes that '[o]fficers called to investigate . . . 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." (Ibid.) That just was not the case in Hammon.
In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court, applying Crawford and Davis, deemed "manifest[ly]" testimonial a statement given by a minor victim to a sheriff's deputy while awaiting medical treatment at a hospital for a facial laceration inflicted by the defendant (the victim's mother). (Cage, at pp. 970-971, 984.) The deputy had earlier been to the scene of the crime and observed evidence that could suggest the defendant had committed an assault; the deputy was dispatched about an hour after that to a separate location where he found the victim bleeding; the deputy did not accompany the victim to the hospital then, but rather, visited him " 'at a later point' "; and the deputy then pointedly asked the victim " 'what had happened between [him] and the defendant.' " (Id. at pp. 970-971, 984-985.) This passage of time, geographical separation from the defendant, and pointed questioning led the court to conclude the deputy's "clear purpose in coming to speak with [the victim] at this juncture was not to deal with a present emergency, but to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity." (Id. at p. 985.)
In so concluding, the court rejected the prosecution argument on appeal that the deputy's "question was not an attempt to investigate a crime, for he did not yet know one had occurred, but merely an effort to ' "assess the situation" ' [citation] to determine whether further immediate police action might be necessary to apprehend a perpetrator, to ensure the safety of the apprehending officers, and to safeguard the other minors in defendant's home." (Cage, supra, 40 Cal.4th at p. 985, fn. 15.) The court implicitly recognized the conceptual validity of the argument, but found it unsupported on the record before it. (Ibid.)
As for formality, the Cage court acknowledged that a hospital emergency room is "relatively informal," but nonetheless found the circumstances "were no less formal or structured than the residential interview" in Hammon. (Cage, supra, 40 Cal.4th at p. 986, italics added.) In both cases, "the requisite solemnity was imparted by the potentially criminal consequences of lying to a peace officer." (Ibid.) Moreover, although the deputy asked "only a single question," the interview was nonetheless sufficiently " 'structured' to constitute an 'interrogation' " because the "question called for, and elicited, a considered and detailed narrative response." (Ibid., fn. 16, citing Davis, supra, 547 U.S. at p. 822, fn. 1 ["The Framers were no more willing to exempt from cross-examination . . . answers to open-ended questions than they were to exempt answers to detailed interrogation."].)
The United States Supreme Court revisited the confrontation clause in Michigan v. Bryant (2011) 562 U.S. 344 (Bryant). There, police found the victim in a gas station parking lot bleeding to death from a gunshot wound. (Id. at p. 349.) The officers asked " 'what had happened, who had shot him, and where the shooting had occurred.' " (Ibid.) The victim answered the questions. (Ibid.) The conversation ended within five to 10 minutes when medical personnel arrived. (Ibid.) The Bryant court deemed the victim's statements nontestimonial. (Id. at p. 378.) The court reasoned an ongoing emergency existed and had not yet resolved because (1) all the victim's statements occurred "within the first few minutes of the police officers' arrival and well before they secured the scene of the shooting—the shooter's last known location" (id. at p. 374); (2) the shooter's whereabouts and motive were unknown, thus the officers had "no reason to think that the shooter would not shoot again if he arrived on the scene" (id. at p. 377); and (3) the victim's physical distress suggested he did not give his statement with the " 'primary purpose' " of " 'establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution' " (id. at p. 375). Regarding formality, the court noted "the questioning . . . occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion." (Id. at p. 366.) The court also noted the questions the officers asked "were the exact type of questions necessary to allow the police to ' "assess the situation, the threat to their own safety, and possible danger to the potential victim" ' and to the public." (Id. at p. 376.)
In sum, Crawford and its progeny provide the following guidance for determining whether a statement is testimonial or nontestimonial: (1) "[t]he court must objectively evaluate the circumstances of the encounter along with the statements and actions of the parties" to determine "the primary purpose of both officer and declarant" based objectively on " 'the purpose that reasonable participants would have had' " (People v. Blacksher (2011) 52 Cal.4th 769, 813 (Blacksher); (2) "[t]he court should consider whether an ' "ongoing emergency" ' exists, or appears to exist, when the statement was made," even "if hindsight reveals that an emergency did not, in fact, exist" (id. at p. 814); (3) "[w]hether an ongoing emergency exists is a 'highly context-dependent inquiry' " that may take into account the type of weapon involved and whether the victim, first responders, or the public remain at risk (ibid.); (4) the declarant's medical condition is relevant to both the "purpose in speaking and the potential scope of the emergency" (ibid.); (5) "[a] nontestimonial encounter addressing an emergency may evolve, converting subsequent statements into testimonial ones" (ibid.); and (6) "regardless of the existence of an emergency, the informality of the statement and the circumstances of its acquisition are important considerations" (id. at p. 815).
"On appeal, we independently review whether a statement was testimonial so as to implicate the constitutional right of confrontation." (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)
2. Analysis
Our independent review of the record leads us to conclude that, objectively speaking, the primary purpose of Conversations One, Two, and Three was to enable law enforcement to assess the existence and extent of an apparent emergency so they could determine the appropriate response, not to gather evidence or preserve testimony for future prosecution.
Conversation One raises little doubt. Amy arrived barefoot and underdressed at a sheriff's substation in the middle of a cold December night, frantically pounding on the front door and window. She had a black eye, was (or had been) crying, her makeup was running, and her hair was disheveled. Deputy Caldwell asked Amy how he could help her. Her response—"Help me. He's going to kill me"—was literally "a call for help against bona fide physical threat." (Italics added.) (Davis, supra, 547 U.S. at p. 827.) The fact that Amy said "[h]e's going to kill me" instead of "he tried to kill me" suggests the existence of an ongoing emergency and not merely a completed past event. (Italics added.) After being asked twice whether she needed medical attention, Amy "all of a sudden" said, "He choked me." Deputy Caldwell then asked who had choked her, where they lived, and who Amy was. These "were the exact type of questions necessary to allow the police to ' "assess the situation, the threat to their own safety, and possible danger to the potential victim" ' and to the public." (Bryant, supra, 562 U.S. at p. 376.) Amy's responses revealed that the incident had occurred just yards away from the substation and only minutes earlier (the time it had taken her to run to the substation). The fact this one-minute conversation occurred in the early morning hours outside the substation—that is, "in an exposed, public area" (id. at p. 366)—indicates its informal nature. Thus, it is clear Amy's statements during Conversation One were nontestimonial.
Conversation Two presents a much closer call. Several factors suggest this conversation was testimonial. It occurred inside the presumably safe environment of the substation (as in Crawford) with Amy sitting in a "little almost like a holding cell area" with Deputy Caldwell standing over her and separated from defendant (as in Hammon). Amy declined medical treatment (unlike the wounded victims in Cage and Bryant). And her injuries were apparently inflicted by hand as opposed to with a firearm, suggesting "a narrower zone of potential victims" (Bryant, supra, 562 U.S. at p. 363) and the need for less physical separation from the aggressor (id. at p. 373).
However, several more compelling factors suggest Conversation Two was nontestimonial. With respect to the existence of an ongoing emergency, unlike the interviews in Crawford and Cage that took place more than an hour after the incident, Conversation Two occurred only minutes after defendant had repeatedly choked Amy. It occurred only one minute after Conversation One, in which Amy stated defendant had choked her and was going to kill her, thus indicating not only the very recent occurrence of an incident of domestic violence, but also the existence of an ongoing death threat to Amy.
Deputy Caldwell's conduct during Conversation Two is consistent with that of someone objectively concerned about an ongoing emergency. Out of concern for his own physical safety, he summoned backup (Deputy Torres) to accompany him to defendant's residence. Out of concern for Amy's physical safety during his and Deputy Torres's absence, he summoned backup (Officer Gross) to protect Amy in case defendant—whose whereabouts were unknown (like the shooter in Bryant and unlike the assailants in Crawford, Hammon, and Cage)—"possibly . . . knew that [she] went to the substation." Deputy Caldwell also learned during the course of Conversation Two that defendant had gained access to Amy's phone "through her small child." Since Amy arrived at the substation without her child, an objective observer could reasonably conclude that someone else potentially remained in danger.
The purpose of Deputy Caldwell's single question during Conversation Two about "what was going on" also objectively supports the existence of an ongoing emergency. Deputy Caldwell asked the question because he "had no idea why she was like the way she was"—he "had to know what was going on, whether this was a domestic violence dispute, whether maybe she was in a car accident," whether Amy was "not mentally stable," whether she was a potential suspect, "whether there's other people involved," and "whether there's still a . . . danger to others." As the United States Supreme Court recognized in Davis, supra, 547 U.S. at page 832, police officers responding to domestic violence disputes " '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.' "
The informality of Conversation Two also supports our finding that the conversation was nontestimonial. Contrary to defendant's repeated assertions that Deputy Caldwell engaged in "structured questioning," he asked only a single open-ended question about what was going on. Unlike the victims' statements in Crawford and Hammon, Amy's statement was not recorded. Further, Deputy Caldwell testified he normally attempts to obtain a recorded statement as part of his investigation. He did not attempt to obtain a recorded statement from Amy during Conversation Two; he did so only after Conversation Three.
In addition, unlike the wife in Crawford who "was responding calmly" (Davis, supra, 547 U.S. at p. 827) or the victim in Hammon who said " ' "nothing [is] the matter" ' " (id. at p. 819), Deputy Caldwell testified that during Conversation Two Amy was "rambling," "noticeably upset," "in shock," and "crying uncontrollably." Deputy Torres testified Amy "was crying," "rambling," "talking hysterically," and "jumping all over the place chronologically in telling her story." This is not the demeanor of a person who reasonably expects her statements to be later used as trial testimony.
Our conclusion is supported by People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), which is virtually on all fours. There the appellate court (over the Attorney General's concession) deemed nontestimonial the statements of a victim who presented herself with her child at a police station claiming that 30 minutes earlier her husband had choked and beaten her, and threatened to kill her if she went to the police. (Id. at p. 1587.) The court characterized the victim's in-person trip to the police station as "the functional equivalent of making a 911 call," as occurred in Davis v. Washington. (Saracoglu, at p. 1597.) The court recognized that although the victim was safely inside the police station, that safety "was only temporary" in light of the husband's death threat "because [the victim] could not go home again until the situation was resolved." (Ibid.)
The record before us is even more compelling. Whereas the Saracoglu victim arrived at the police station about 30 minutes after the incident, Amy arrived within three to five minutes (and likely faster because she ran there). Whereas the Saracoglu victim's child was with her, Amy's was not, thus leaving a potential victim unaccounted for. And whereas the record in Saracoglu does not indicate what questions police asked the victim (Saracoglu, supra, 152 Cal.App.4th at p. 1597), the record here indicates Deputy Caldwell asked only one question during Conversation Two: "what was going on?"
On balance, our independent review of the record in this " 'highly context-dependent inquiry' " (Bryant, supra, 562 U.S. at p. 393) leads us to conclude Conversation Two was nontestimonial. The primary purpose of the conversation, considered objectively, was to enable law enforcement to assess the existence and extent of an apparent emergency so they could determine the appropriate response. The Cage court recognized that this primary purpose renders a statement nontestimonial, but found the record did not support such a finding in that case. (Cage, supra, 40 Cal.4th at p. 985, fn. 15.) The record before us does support such a finding, particularly in light of (1) the time of day, temperature, and Amy's underdressed and shoeless state; (2) Amy's frantic demeanor; (3) Amy's fresh injuries; (4) the temporal proximity of Amy's statement to the occurrence of the crime; (5) the conversation's geographic proximity to the crime scene and unaccounted-for suspect; (6) defendant's apparent threat to kill Amy; (7) Deputy Caldwell's stated concern for Amy's and his own safety; and (8) Deputy Caldwell's uncertainty as to whether there were other potential victims (including a small child). These specific facts lead us to conclude Amy "simply was not acting as a witness; she was not testifying." (Davis, supra, 547 U.S. at p. 828.)
Conversation Three, regarding Amy's comment about her choice of men, was clearly nontestimonial. Most notably, it was not even a "conversation"—it was a "completely unsolicited" statement by Amy in Officer Gross's presence. It is unclear whether Amy was even talking to Officer Gross. He had not asked her any questions; to the contrary, he intentionally avoided doing so to comply with his department's policy against intervening in sheriff's office investigations. Although Amy made the statement inside the substation, the circumstances were otherwise informal. She was crying, shaking, and "trying to pull her knees up to be in more of a fetal position." An objective observer would not consider it a substitute for trial testimony.
Because Conversations One, Two, and Three were nontestimonial, their admission at trial did not violate defendant's right of confrontation.
C. Spontaneous Statement Hearsay Exception
1. Guiding Principles
"A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and '[w]as made spontaneously while the declarant was under the stress of excitement caused by' witnessing the event. (Evid. Code, § 1240.) ' "To render [statements] admissible [under the spontaneous statement exception] it is required that (1) there must be some occurrence startling enough to produce this 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." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 809-810.)
"Spontaneous[ ]," as used in Evidence Code section 1240, means "actions undertaken without deliberation or reflection . . . . [T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." (People v. Farmer (1989) 47 Cal.3d 888, 903.)
"The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous. [Citations.] More detailed questioning, in contrast, is likely to deprive the response of the requisite spontaneity. [Citations.] But ultimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter." (People v. Farmer, supra, 47 Cal.3d at pp. 903-904; see People v. Gutierrez, supra, 45 Cal.4th at pp. 810-811.)
" 'Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' [Citation.] [¶] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity." (People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi) italics omitted.)
"Unlike some other hearsay exceptions . . . , admissibility does not depend upon declarant unavailability. A statement qualifying as [a spontaneous statement] is admissible irrespective of declarant availability." (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.)
Because witness availability is irrelevant to nontestimonial statements that fall within the spontaneous statement exception, we do not detail the prosecution team's efforts to locate Amy, as alluded to in footnote 4, ante.
We review for substantial evidence the trial court's factual determinations, such as whether the declarant was under the stress of excitement when the statements were made. (People v. Phillips (2000) 22 Cal.4th 226, 235-236.) "We review for abuse of discretion the ultimate decision whether to admit the evidence." (Id. at p. 236.) " '[T]he discretion of the trial court is at its broadest' when it determines whether an utterance was made while the declarant was still in a state of nervous excitement." (People v. Thomas (2011) 51 Cal.4th 449, 496.)
2. Analysis
The trial court did not abuse its discretion by finding Conversations One, Two, and Three admissible under the spontaneous statement hearsay exception.
The record supports the finding that Amy experienced an event sufficiently traumatic to produce the level of excitement necessary to render her statements spontaneous and unreflecting such that they were not the product of reflection. Defendant hit her several times, choked her repeatedly (including to the point that she lost feeling in her lips), and would not let her leave the house. Although, as defendant argues, Amy may not have been "gravely injured" or "on the brink of death," the trial court did not abuse its discretion in concluding the experience Amy perceived was sufficiently traumatic to satisfy the hearsay exception. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 66 (Merriman) [exception satisfied where victim told friend within 20 minutes of incident that ex-boyfriend had just choked her]; Poggi, supra, 45 Cal.3d at p. 319 [witness's statements made 30 minutes after attack held spontaneous]; Saracoglu, supra, 152 Cal.App.4th at p. 1589 [finding 30 minutes sufficient and noting "[m]uch longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception"].)
Nor did the trial court abuse its discretion—broadest in this context (People v. Thomas, supra, 51 Cal.4th at p. 496)—in determining Amy was still under the stress of excitement during each of the conversations. Conversation One occurred no later (and most likely sooner) than three to five minutes after Amy had been beaten, choked, and confined to the residence. Amy was frantic and crying uncontrollably. Although Deputy Caldwell asked Amy a few questions, the trial court did not abuse its discretion in concluding the questioning was insufficient to render Amy's statement unspontaneous.
Conversation Two occurred only one minute after Conversation One, and thus no more than four to six minutes after the incident. Deputy Caldwell testified Amy was "noticeably upset," "in shock," and "crying uncontrollably" during Conversation Two. Deputy Torres testified Amy was "crying, hysterical," "terrified," "rambling," and "jumping all over the place chronologically in telling her story." In light of this testimony, the trial court did not abuse its discretion in concluding Amy was still under the stress of excitement of the incident during Conversation Two. (See, e.g., Merriman, supra, 60 Cal.4th at p. 66 [exception satisfied where victim "was upset and angry" when she recounted choking incident within 20 minutes of its occurrence].)
Conversation Three occurred sometime during the deputies' six-minute roundtrip to defendant's residence. Thus, it occurred somewhere between nine and 17 minutes after the incident. It was truly spontaneous inasmuch as Deputy Gross testified it was "completely unsolicited." Moreover, when Amy made the statement she "appeared to be very frightened," "[h]er whole body was shaking," and she "kept rocking and leaning forward, trying to pull her knees up to be in more of a fetal position and crying the whole time." The trial court did not abuse its discretion in concluding Amy was still under the stress of excitement of the incident during Conversation Three.
II. Exclusion of Evidence of Amy's Other Injuries
Defendant contends the trial court deprived him of his constitutional rights to due process and to present a complete defense by excluding Amy's statements explaining that her black eye and curling iron burn were caused by sources other than defendant. Defendant further contends the evidence was admissible under the "rule of completeness" embodied in Evidence Code section 356. We find no error.
A. Background
As noted, Deputy Caldwell testified under Evidence Code section 402 that during Conversation Two he noticed Amy had two "old" injuries—a black eye that "looked old," and a scabbed, brown mark on her neck. Amy explained she got the black eye in a fight with a woman a week earlier, and the mark on her neck was an accidental burn from a curling iron.
The prosecutor stated she did not intend to elicit trial testimony from Deputy Caldwell linking these injuries to defendant, and objected to defendant's efforts to introduce Amy's explanations of them. Defendant argued Amy's explanations were exculpatory with respect to defendant. That is, if someone else gave Amy a black eye in the past, a logical inference can be drawn the she "gets into fights with people" and "got the injuries . . . on her face from somewhere other than the defendant." Similarly, defendant argued that "evidence that [Amy] has burned herself before with a curling iron demonstrates that it is possible that [the other marks on her face and neck] could have come from another source other than the defendant."
The trial court excluded all evidence regarding Amy's black eye and curling iron burn. The court found defendant's theories of exculpation were "not directly exculpatory" and, in any event, speculative. The court also found that because the prosecution was precluded from citing Amy's past injuries, defendant should likewise precluded from doing so because he "has no reason . . . to explain [to jurors] something that's not before them."
During cross-examination, defense counsel questioned Deputy Caldwell about Amy's fresh injuries. After confirming Amy declined medical attention three times, defense counsel asked separately whether Deputy Caldwell asked Amy how she got the scratches on her chest, nose, and hands. The prosecutor objected that this questioning related to Amy's prior injuries. Defense counsel clarified that he was asking only about the fresh injuries. The court found that defense counsel had not qualified his questions to clarify that it related only to the fresh injuries and not the curling iron burn on Amy's neck. The court sustained the prosecutor's objection and struck the question and answer regarding the injury to Amy's chest. The court did not strike the questions and answers regarding the fresh wounds to Amy's nose and hands.
B. Guiding Principles
"Only relevant evidence is admissible . . . ." (People v. Harris (2005) 37 Cal.4th 310, 337.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The trial court has broad discretion in determining the relevance of evidence." (Harris, at p. 337.)
Even relevant evidence may be excluded under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " ' "Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion." ' " (People v. Peoples (2016) 62 Cal.4th 718, 743 (Peoples).) " ' "[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion." ' " (Ibid.; see People v. Morrison (2004) 34 Cal.4th 698, 711 ["Evidence is irrelevant . . . if it leads only to speculative inferences."].)
Evidence Code section 356 provides: "Where part of a[] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached . . . conversation . . . is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." Evidence Code section 356 "is sometimes referred to as the statutory version of the common law rule of completeness." (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) "The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) "Application of Evidence Code section 356 hinges on the requirement that the two portions of a statement be 'on the same subject.' " (People v. Vines (2011) 51 Cal.4th 830, 861, quoting Evid. Code, § 356.) "A trial court's determination of whether evidence is admissible under [Evidence Code] section 356 is reviewed for abuse of discretion." (Parrish, at p. 274.)
" 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.' " (Blacksher, supra, 52 Cal.4th at p. 821.) Thus, "[a]lthough the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999; People v. Thornton (2007) 41 Cal.4th 391, 452-453 ["short of a total preclusion of defendant's ability to present a mitigating case to the trier of fact, no due process violation occurs"].)
C. Analysis
The trial court did not abuse its discretion in excluding Amy's explanation of her black eye and curling iron burn. The evidence did not relate to the December 18 incident and was thus only marginally relevant, at best. Absent additional evidence regarding the circumstances of the fight one week earlier it is entirely speculative to infer Amy is the type of person who "gets into fights with people." Similarly, it is entirely speculative to infer that because Amy burned herself once with a curling iron (under circumstances undisclosed by the record), she sustained her December 18 scratches the same way. Deputy Caldwell's testimony clearly differentiated between the appearance of the curling iron burn and the fresh, nearly bleeding scratch marks. The trial court did not abuse its discretion in excluding this speculative evidence under Evidence Code section 352.
Nor did the trial court abuse its discretion in excluding the evidence under Evidence Code section 356. Amy's statement about how she sustained injuries on occasions other than December 18 is not "on the same subject" (ibid.) of how she sustained different injuries on December 18. In addition, as the trial court observed, because the prosecution was precluded from introducing evidence of Amy's black eye and curling iron burn, it was unnecessary for defendant to address what caused them—the jury simply never learned of these injuries. Thus, Deputy Caldwell's testimony about what happened on December 18 was not misleading without additional information about Amy's other injuries.
The trial court's exercise of its discretion under these evidentiary principles did not violate defendant's right to present a complete defense. Defense counsel cross-examined Deputy Caldwell extensively regarding whether he asked Amy how she sustained the scratches to her nose and hands; the extent of Amy's alcohol consumption leading up to the incident; Amy's refusal to give a recorded statement or to allow photographing of her injuries; and Amy's repeated declining of medical assistance.
The trial court was within the bounds of its discretion to conclude that defense counsel's question about the scratch on Amy's chest was sufficiently related to the forbidden topic of the burn mark to her neck. As noted, the court allowed defense counsel to ask about Amy's other fresh scratch marks.
III. Improper Opinion Testimony
Defendant contends the trial erred by allowing (1) Deputies Caldwell and Torres to testify about their personal experiences with other domestic violence victims, and (2) Deputy Torres to testify that Amy's neck injuries were consistent with a recent strangulation. We conclude the trial court erred only with respect to the deputies' testimony regarding other domestic violence victims; however, we further conclude the error caused defendant no prejudice.
A. Background
Just days before trial, the prosecutor sought to designate an expert witness to testify about "domestic violence victims' . . . psyche, for lack of a better word." The trial court excluded the expert as untimely designated.
During trial, as described in the background section, Deputy Caldwell testified that it is his practice to attempt to obtain a recorded statement from a domestic violence victim and to photograph his or her injuries in case the victim later recants. When the prosecutor asked Deputy Caldwell about his personal experience with the cooperativeness of other domestic violence victims, defense counsel objected on relevance, speculation, and Evidence Code section 352 grounds. Following a sidebar conference, the trial court ruled that Deputy Caldwell could testify about the cooperativeness of domestic violence victims with whom he had personally interacted. However, the court found the deputy was not qualified—despite having worked more than 50 domestic violence cases—to testify as an expert regarding the general cooperativeness level of domestic violence victims. Although the court recognized the permitted testimony would be somewhat prejudicial, the court found it would not be "unduly so" because the defense has "as much [of] an explanation to offer as the People do." Deputy Caldwell then testified about his personal experiences with domestic violence victims, as described in our factual summary.
The following day, when the prosecutor asked Deputy Torres about his personal experiences with domestic violence victims, defense counsel again objected. As it had done with Deputy Caldwell, the trial court allowed Deputy Torres to testify about his personal experiences with domestic violence victims, but not about "third-party things that he has no personal knowledge of." Deputy Torres then testified to his personal experience, as described in our factual summary.
Deputy Torres also testified about how his prior experience as a correctional officer provided a foundation for his opinion about the nature of the marks on Amy's neck. He described redness on the left side of Amy's throat, chest, and back side of her left shoulder, and stated they appeared to be fresh based on his experience working the jail. When questioning turned to his experience with strangulation injuries, defense counsel objected on Evidence Code section 352 grounds and on the basis the prosecutor had not disclosed this aspect of Deputy Torres's testimony before trial.
The prosecutor argued that by establishing Deputy Torres's "personal experience with observing strangulation injuries" she was "laying a foundation for how he knew that the strangulation injuries that he observed were fresh." She insisted, "He's not testifying as an expert." The prosecutor also explained she had not previously disclosed this aspect of Deputy Torres's testimony because she had only just learned immediately before trial that he previously worked as a correctional officer.
The trial court overruled the defense objections. As to the expert aspect, the court explained that "the only thing that we have gone into is his background that assists him in testifying about whether or not injuries that he sees are fresh. [¶] And so what he's done is he's given the jurors a foundation upon which that knowledge is based." The court explained its view that even a lay witness requires a foundation for his or her lay opinion. The court stated it would allow Deputy Torres to testify about his lay opinions based on his personal observations of strangulation injuries, such as "obvious apparent surface bruising that appeared to be . . . from fingers being used around somebody's throat. That appears to be okay for me without any foundation other than that he's seen that before. To me that's okay." The court drew the line at "specialized" information like "subdural hematomas and bruises and how much time has elapsed between this and that."
The court also overruled defendant's objection regarding inadequate pretrial disclosure, reasoning Deputy Torres would be testifying only as a lay witness who had not prepared any undisclosed pretrial expert reports. The court noted Deputy Torres was "prominently mentioned" in the police report as someone involved in the investigation such that "the defense should anticipate that he might be a percipient witness about any injuries and any other things that he has observed."
Deputy Torres then testified that the injuries he saw on Amy's neck "appear[ed] to be caused from force applied to the throat." He elaborated that the nature and spacing of the marks resembled the marks left by fingers during strangulation. He added that the color and appearance of the marks were "consistent with a strangulation that had just occurred."
The trial court instructed the jury with CALCRIM No. 333 regarding evaluation of lay opinion.
The court instructed the jury: "Witnesses gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness['s] opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. [¶] You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
B. Guiding Principles
"An opinion is an inference or conclusion the witness draws from his or her observations." (Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2016) ¶ 8:627, p. 8C-97, citing Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 362.) "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony [citation], 'i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.' " (People v. Hinton (2006) 37 Cal.4th 839, 889; Evid. Code, § 800.) " 'Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on "subtle or complex interactions" between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations.' " (People v. Sanchez (2016) 63 Cal.4th 411, 456.) "Matters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion." (Ibid.)
Evidence Code section 800 states: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
The " 'erroneous admission of expert testimony only warrants reversal if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (People v. Pearson (2013) 56 Cal.4th 393, 446, quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C. Analysis
The trial court abused its discretion by allowing the deputies to testify about their personal experiences with domestic violence victims other than Amy. The court made clear that it was allowing the deputies to testify as lay witnesses only. However, the purpose for which the prosecutor undoubtedly elicited the testimony—to establish how domestic violence victims behave, that Amy behaved that same way, and thus Amy must be a domestic violence victim—exceeds the bounds of common experience. The "behavior of victims of domestic violence" is generally within the realm of experts. (Evid. Code, § 1107, subd. (a); People v. Brown (2004) 33 Cal.4th 892, 900.) The prosecutor admitted as much when she—at the "11th hour"—unsuccessfully sought to designate an expert on the topic. Her attempt to elicit substantially the same information from unqualified lay witnesses was a blatant end-run on the trial court's earlier ruling. Although the deputies limited their testimony to their personal observations of other domestic violence victims, this evidence was relevant only to support the broader inference that Amy behaved consistently with a domestic violence victim. This is a topic beyond common experience. Accordingly, it called for expert, not lay, opinion.
The same does not hold true for Deputy Torres's testimony about the foundation for his opinion that Amy's neck injuries were consistent with a recent strangulation. He testified in detail about the coloring and spacing of the finger marks he personally observed on Amy's neck. His testimony about similar observations in the jail setting provided a foundation for his opinion. Although we find it a close call—even defendant calls it "pseudo-expert opinion" (italics added)—we conclude the trial court did not abuse its discretion in admitting this testimony as lay opinion. Deputy Torres limited his testimony to his personal observations of superficial physical characteristics that are within the common experience. (See, e.g., Carter v. State (Alaska Ct. App. 2010) 235 P.3d 221, 226 [police officer's "testimony that the fresh scratches on [the victim]'s neck and lower face were indications that she had been strangled . . . . [¶] . . . was lay opinion. The jurors did not need specialized training or experience to understand the basis for this inference."] He did not wade into underlying physiological mechanisms that are beyond common experience. On balance, the trial court did not abuse its discretion in permitting Deputy Torres to testify about his personal observations of strangulation injuries.
Nor did the trial court abuse its discretion in allowing Deputy Torres to testify over defendant's discovery objection. As the trial court observed, Deputy Torres was testifying as a lay witness, he had not prepared any pretrial reports, and his identity as a percipient witness was well known to defense counsel.
Although the trial court erred in allowing the deputies to testify about their personal experiences with other domestic violence victims, we find the error harmless under the Watson standard. "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
Defendant misplaces reliance on People v. Albarran (2007) 149 Cal.App.4th 214 to support the proposition that the Chapman v. California (1967) 386 U.S. 18 standard for assessing error applies. (Albarran, at pp. 227-228.) Albarran was "one of those rare and unusual occasions where the admission of [gang] evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.) The Albarran prosecutor introduced evidence of the defendant's membership in a gang, but engaged in "overkill" by "consum[ing] the better part of an entire trial day" and 70 pages of the reporter's transcript with one police officer's testimony about the gang (id. at p. 228 & fn. 10)—evidence the appellate court deemed "extremely and uniquely inflammatory" (id. at p. 230) and irrelevant to the underlying charges (id. at pp. 227-230). The Albarran court's split decision reversing the defendant's conviction was based on the existence of "a real danger that the jury would improperly infer that whether or not [the defendant] was involved in [the charged offenses], he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished." (Id. at p. 230.) The evidence here is far more limited, far less inflammatory, and does not support an inference that defendant has a criminal disposition. Thus, this is not "one of those rare and unusual occasions" where the Chapman standard applies to the trial court's discretionary admission of expert testimony. (Albarran, at p. 232.)
First, our review of the entire record establishes there was abundant other evidence that defendant committed the charged offense. Deputy Caldwell testified Amy told him defendant choked and hit her; Deputy Torres testified he overheard portions of this; all three trial witnesses testified they observed Amy's physical injuries, which the deputies testified appeared fresh and were consistent with recent strangulation; and defendant's statement to Deputy Caldwell corroborated the latter's testimony that an altercation had occurred, but offered an implausible accounting of events (that Amy, who was barefoot and underdressed, decided to take a walk at 2:30 a.m. in mid-December).
Second, the improper opinion testimony was not unduly prejudicial. Deputy Caldwell had already testified without objection that one of the reasons he attempts to obtain recorded and photographic evidence from domestic violence victims is in case they later recant or become uncooperative. Moreover, the improper opinion testimony related only to domestic violence victims' uncooperativeness, a fact to which Deputies Caldwell and Torres properly testified about Amy. Further, the testimony related to Amy's conduct, not her veracity (as defendant suggests) or mental state.
Third, defendant was afforded and availed himself of the opportunity to cross-examine the deputies regarding the bases for their opinions. (See, e.g., People v. Bradley (2012) 208 Cal.App.4th 64, 84 ["ample opportunity to cross-examine" lay witness who offers improper opinion testimony "dispell[s] any possible prejudice"].) Indeed, cross-examination revealed that although Deputy Caldwell had investigated more than 50 domestic violence cases, Deputy Torres had investigated only 10, calling into question the basis for his opinion. Although the trial court instructed the jury on the evaluation of lay opinion but not expert opinion, the given instruction advised the jury to "[c]onsider . . . the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion." (CALCRIM No. 333.)
Finally, although the prosecutor cited the deputies' testimony during closing arguments, she did so only in her rebuttal argument after defense counsel emphasized Amy's absence from trial and refusal to allow documentation of her complaint and injuries.
Simply put, we do not find it reasonably probable that defendant would have obtained a more favorable result in the absence of the deputies' erroneously admitted opinion testimony. (See Watson, supra, 46 Cal.2d at p. 836.)
IV. Consciousness-of-Guilt Instruction
Defendant contends the trial court erred by instructing the jury, under CALCRIM No. 362, that potential false or misleading statements by a defendant may indicate consciousness of guilt on his part. He maintains there was insufficient evidence to support the instruction. We are not persuaded.
A. Background
As noted in our factual summary, when the deputies visited defendant on the evening of December 18, defendant admitted he and Amy had gotten into an argument, but denied it became physical; he claimed she later went for a walk.
Over defendant's objection, the trial court instructed the jury with CALCRIM No. 362, which states (as given):
"If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt.
"If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." (Italics added.)
B. Guiding Principles
" 'False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt.' " (People v. Flores (2007) 157 Cal.App.4th 216, 221.) The false nature of the defendant's statement may be shown by inconsistencies in the defendant's own testimony, his or her pretrial statements, or by any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498.) Accordingly, "[a] trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions." (People v. Bowman (2011) 202 Cal.App.4th 353, 366.)
C. Analysis
Abundant evidence in the record—apart from defendant's denial of culpability—supports the trial court's giving of CALCRIM No. 362. Defendant's denial was contradicted by Deputy Caldwell's testimony (which, in turn, was partially corroborated by Deputy Torres's testimony) that Amy stated defendant had repeatedly choked and hit her. Three law enforcement officers testified about Amy's physical injuries and the unusual circumstances of her appearance and demeanor. This was sufficient evidence from which the jury could infer defendant gave a false or misleading statement, which supports the inference defendant was conscious of his guilt.
V. Improper Closing Argument
Defendant contends the prosecutor committed numerous instances of misconduct during her closing argument. Specifically, defendant contends the prosecutor improperly: (1) argued the jury had not heard any evidence that Amy did not want prosecution in this case; (2) stated Amy's hearsay testimony was reliable because the trial court allowed it into evidence; (3) compared the present case to a murder case with an absent victim; and (4) vouched for the credibility of the law enforcement officers. We disagree.
A. Background
The following transpired during the prosecutor's closing argument:
"[PROSECUTOR]: There are some common arguments in domestic violence cases. One, [']but the victim doesn't want prosecution.['] First of all, we have not heard any evidence that the victim does not want prosecution necessarily. [¶] We know that she was extremely scared—"
"[DEFENSE COUNSEL]: Your Honor, I'm going to object. This is not entered into evidence and this is speculative. And I'd ask you to strike it."
"THE COURT: Overruled. You may proceed."
"[PROSECUTOR]: We heard evidence that the victim appeared extremely scared and terrified. We heard that from multiple officers. One said she kept, you know, lifting her legs up in a fetal position. Another said she was shaking. Another, she was crying. She appeared terrified.
"But even assuming that the victim didn't want prosecution and it wasn't because of her fear, it doesn't matter. A crime still happened. There is no element that says 'and the victim wants prosecution.' [¶] I put the elements there again, the one and the two. All right? Willfully inflicting a physical injury, and, two, traumatic condition. [¶] There is no element of wanting prosecution. It does not matter. If the elements of a crime are satisfied and you're satisfied beyond a reasonable doubt that those elements have been proven, then you must find the defendant guilty.
"Another common defense: The victim didn't testify. All we have is hearsay. [¶] Where there are sufficient circumstances to find hearsay evidence reliable, the Court will allow it in. Here the Court has ruled that the evidence is admissible. If the evidence had not been admissible, you would not have heard it. That's the judge's job."
"[DEFENSE COUNSEL]: Objection, Your Honor. Motion to strike."
"THE COURT: Overruled."
"[PROSECUTOR]: If the defendant were to be able to get off the hook merely because the victim wasn't available, then what would we do in murder cases? Right? Clearly that's not the rule."
"[DEFENSE COUNSEL]: Objection, Your Honor.
"THE COURT: Sustained."
[¶] . . . [¶]
"[DEFENSE COUNSEL]: Motion to strike."
"THE COURT: I don't think it's necessary to strike it."
[¶] . . . [¶]
"[PROSECUTOR]: Let's talk about the credibility of the witnesses here. We have three officers who came to testify. Part of their job is responding to emergency situations and investigating a crime, writing a report, if necessary coming to testify in court. [¶] They do
not get any bonus if something happens one way or the other. They don't have any skin in the game. Basically they have no reason to lie. This is part of their job."
"[DEFENSE COUNSEL]: Objection. Vouching."
"THE COURT: Overruled. It's not a personal voucher. It's an argument."
B. Guiding Principles
"Prosecutors . . . are held to an elevated standard of conduct. . . . 'A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state . . . . Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citation.]' " (People v. Hill (1998) 17 Cal.4th 800, 819-820; see Peoples, supra, 62 Cal.4th at p. 792.) " ' " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' " (Ibid.)
That said, a " ' "prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." ' " (Peoples, supra, 62 Cal.4th at p. 796.)
As for vouching, " '[a] prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record.' " (Peoples, supra, 62 Cal.4th at p. 796; see People v. Bonilla (2007) 41 Cal.4th 313, 336-337.)
"We review the trial court's rulings on prosecutorial misconduct for abuse of discretion." (Peoples, supra, 62 Cal.4th at pp. 792-793.)
C. Analysis
We find no abuse of discretion in the trial court's handling of defense counsel's objections to the prosecutor's closing argument.
The prosecutor's assertion that a common defense tactic in domestic violence cases is to argue that the victim does not want prosecution was permissible advocacy. We do not interpret the comments as "accus[ing] defense counsel of fabricating a defense," as defendant now suggests. The assertion there was no evidence that Amy, in particular, did not want defendant prosecuted was reasonable comment on the state of evidence at trial inasmuch as the jury learned that Amy was unwilling to give a recorded statement or to allow photographs of her injuries. The prosecutor could fairly argue this did not amount to a desire that defendant not be prosecuted. In any event, the prosecutor correctly noted the victim's intent with respect to prosecution is irrelevant—it simply is not an element of the offense.
Defendant's contention on appeal that the prosecutor's argument violated the spirit of an in limine ruling prohibiting defendant from specifically mentioning Amy's absence from trial (because it may have been procured by defendant's death threat, which the trial court deemed inadmissible) is forfeited because he did not object on this basis below. (See People v. Stanley (2006) 39 Cal.4th 913, 952 [" 'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety' "], italics added.)
The prosecutor's argument that the trial court determines whether hearsay evidence is sufficiently reliable to be admitted was a correct statement of the law. Significantly, the prosecutor did not argue that the jury therefore need not determine whether the hearsay evidence is credible. Indeed, the trial court instructed the jury to the contrary with CALCRIM No. 226, which states: "You alone must judge the credibility or believability of the witnesses."
Regarding the prosecutor's analogy to murder prosecutions to support the logical argument that the victim need not be available to enable prosecution, the trial court sustained defense counsel's unspecified objection. This was sufficient. (See Peoples, supra, 62 Cal.4th at p. 795 ["A party is generally not prejudiced by a question to which an objection has been sustained."].) The trial court did not abuse its discretion by not striking the statement. Defendant's assertion that the argument suggested defendant's charged offense was as egregious as a murder offense is not persuasive. Rather, as noted, the prosecutor merely cited murder as an example of an offense where by definition the victim is unavailable.
Finally, the trial court did not abuse its discretion by concluding the prosecutor did not improperly vouch for the law enforcement witnesses. The prosecutor was merely emphasizing by way of example certain of the criteria for determining credibility set forth in CALCRIM No. 226 (e.g., "Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?"). Although there was no evidence in the record to support the assertion that the witnesses "do not get any bonus if something happens one way or the other," it is a reasonable inference that can be drawn from the witnesses' status as public law enforcement employees. Notably, the prosecutor did not argue the witnesses were more likely to be credible merely because they were police officers; rather, she merely argued that certain attributes of their positions tended to demonstrate they lack certain of the indicia of bias articulated in CALCRIM No. 226.
In sum, the trial court did not abuse its discretion by concluding the prosecutor's conduct did not infect the trial with such unfairness as to make the conviction a denial of due process or use deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Peoples, supra, 62 Cal.4th at p. 792.)
VI. Cumulative Error
Defendant contends the "trial court's evidentiary errors . . . , instructional errors . . . , and the prosecution's misconduct" were cumulatively prejudicial to defendant. We disagree. Because we have determined only one nonprejudicial error occurred at trial, there was no error to accumulate. (See People v. Richie (1994) 28 Cal.App.4th 1347, 1364, fn. 6.)
VII. New Trial Motion
Defendant contends the trial court erred by denying his motion for new trial based on newly discovered evidence—defense counsel's claim that Amy was now willing to admit she had lied to police on December 18 about defendant having abused her. Defendant contends the trial court further erred by denying his request for a continuance to allow Amy time to appear at the hearing with her own counsel because she would likely be admitting to having committed a crime. (See, e.g., § 148.5, subd. (a) ["Every person who reports to any peace officer . . . that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor."].) We find no error in the trial court's conclusion that Amy's recantation did not constitute newly discovered evidence inasmuch as defendant made no showing of diligence in discovering the evidence before trial. Consequently, there was no need to grant a continuance.
A. Background
On June 19, about one week after the jury returned its guilty verdict, defendant moved for a new trial on the basis of newly discovered evidence. According to a declaration from defense counsel, Amy left him a voicemail the day after the guilty verdict (a Friday), while defense counsel was out of the office. Defense counsel returned the call the following Monday.
According to defense counsel's declaration, Amy stated (1) she had had no contact with defendant and had not resided at their Winterhaven residence since December 18; (2) she learned of the guilty verdict the day it was rendered when she "received a telephone call from a friend, who is one of [defendant]'s cousins"; (3) she "was upset by the verdict and that the trial proceeded without her because she had lied to the officers about the events in the officers' reports"; (4) defendant "did not batter or attack her" on December 18; (5) she has had no contact with the district attorney's office regarding the case; (6) "she did not want [defendant] prosecuted because she had lied to officers" on December 18; (7) "she told arresting officers on . . . December 18 . . . that she had lied to them about being attacked by" defendant; (8) "she is now coming forward because she has just heard about the verdict, and knows the events surrounding it to be untrue"; and (9) "she has retained counsel and wishes to arrange a meeting with [defendant's] counsel and her attorney to provide a detailed statement . . . ." Defendant did not support his new trial motion with a declaration from Amy.
The People opposed defendant's motion, arguing defendant failed to satisfy the prerequisite of demonstrating the existence of "newly discovered evidence" because he had not made a showing that he diligently sought to obtain the evidence before trial.
The trial court held a hearing on the motion on July 1 (about three weeks after the guilty verdict). Defense counsel acknowledged he had not obtained a declaration from Amy, but offered to do so. The court responded that if it "does decide to consider any evidence," it will be live testimony, not "a one-sided presentation, an affidavit." But the court cautioned "she better have an attorney here. Because if she testifies under oath to what I think she's going to testify to, she may be incriminating herself." The court reiterated later in the hearing that "if [Amy] does [testify], then she may be incriminating herself by making a false report to a peace officer at the time of the alleged event. Her attorney better be here."
Defense counsel responded that Amy had retained counsel who "wants to be here," but "[h]e just is not available today." The court noted that more than two weeks had elapsed since Amy contacted defense counsel, yet he had not obtained an affidavit from Amy or otherwise prepared to present her testimony at the hearing. Defense counsel explained, "She's not able to [testify at the instant hearing] unless her attorney is present. And that's based on the advice of her counsel." Defense counsel requested a continuance to allow time for Amy to appear with her own counsel.
The court stated, "The problem is that she says she has an attorney, but the attorney is not here. That's where it is. I can't take her testimony today. The Court can either set the matter for further proceedings, including potential testimony, or deny the request for additional time. But I won't have her testify without counsel."
Defense counsel added, "Well, she's not prepared to proceed without an attorney." Defense counsel again requested a continuance so Amy could have her own counsel present. The court found the request for a continuance untimely in light of the time defense counsel had to coordinate with Amy's counsel to obtain an affidavit or to prepare to give live testimony.
The court proceeded with the hearing and denied defendant's new trial motion. The court explained defendant had not met his burden of establishing Amy's recantation was newly discovered evidence:
"You knew that this witness existed. You knew that you could have put forward testimony from this witness. And . . . it's at least a fair comment or a fair assessment to say that because of the connection between the defendant and [Amy] there could have been any number of avenues that could have been pursued in locating her, including friends and relatives and other people that would have helped to locate her if [defendant] himself did not know where she was at."
[¶ . . . [¶]
"I have no showing that there was any attempt at all to secure the presence or the testimony of this witness at any time during proceedings, including preliminary hearing and the trial. And because of that I don't think . . . under the law this should be considered to be new evidence. This is old evidence. It's just that you never went out and got it or you made no diligent showing that you tried. And as a result, I'm not going to allow this to be considered new evidence because there were no diligent efforts made to locate her, to subpoena her before trial and present her testimony. So this evidence was available to be sought before trial, and the defense cannot now complain that this evidence was missing through no fault of their own and now wish to present it at a new trial."
B. Guiding Principles
Section 1181, subdivision (8), authorizes the trial court to grant a new trial:
"[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable."
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Turner (1994) 8 Cal.4th 137, 212.)
" ' "The determination of a motion for a new trial rests so completely within the trial court's discretion that its action will not be disturbed [on appeal] unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Davis (1995) 10 Cal.4th 463, 524.)
C. Analysis
The trial court did not abuse its discretion in denying defendant's new trial motion on the basis defendant was not diligent in seeking out Amy before trial. As below, defendant makes no attempt on appeal to show he was diligent. Instead, he argues he was excused from doing so because he had no reason to believe Amy would recant until she came forward after the guilty verdict. In so arguing, defendant relies almost exclusively on People v. Hairgrove (1971) 18 Cal.App.3d 606 (Hairgrove). Although superficially analogous to the facts here, Hairgrove is materially distinguishable.
In Hairgrove, the defendant supported his new trial motion with a declaration from Larry Spasbo confessing to the crime for which the defendant had been convicted. (Hairgrove, supra, 18 Cal.App.3d at p. 609.) Spasbo had twice denied guilt before the defendant's trial, and defense counsel stated he had no reason to believe until after the trial that Spasbo would confess. (Id. at p. 610.) Spasbo was present and willing to testify at the hearing on the new trial motion, but the court "effectively dissuaded" him from doing so by repeatedly admonishing him of his right against self-incrimination before ultimately stating, " 'I won't ask him to take the stand.' " (Id. at p. 609.) The trial court denied the motion on the basis that the defendant had not demonstrated diligence in procuring Spasbo's confession before trial. (Id. at p. 610.) The appellate court reversed, reasoning Spasbo's repeated pretrial denials of guilt belied a lack of diligence. (Ibid.) The appellate court also stated that although the trial court should have "ma[de] every effort to hear a witness who appears in court to confess to a crime for which someone else stands convicted," the court discouraged Spasbo from doing so by giving him multiple admonitions of his right against self-incrimination when "one warning . . . should suffice." (Id. at p. 611)
As noted, Hairgrove is distinguishable in many material respects. First, whereas the Hairgrove defendant supported his new trial motion with a declaration from Spasbo (Hairgrove, supra, 18 Cal.App.3d at p. 609), defendant supported his motion with only a declaration from his counsel, not Amy. Second, whereas the Hairgrove witness was willing to testify at the hearing but was dissuaded by the trial court from doing so (id. at p. 609), defense counsel here twice advised the court Amy was present but unwilling to testify without her counsel present. Third—and most compelling with respect to pretrial diligence—whereas the Hairgrove defendant's counsel had no reason to believe Spasbo would confess to the crime because Spasbo had twice declined to do so before trial (id. at p. 610), defense counsel's declaration asserted that Amy stated "she told arresting officers on . . . December 18 . . . that she had lied to them about being attacked by" defendant. In other words, Amy claimed to have begun recanting the very day of the offense—about six months before trial. Finally, whereas Hairgrove was concerned with "a witness who appears in court to confess to a crime for which someone else stands convicted" (id. at p. 611), we are concerned here with the familiar legal pattern of a domestic violence victim recanting before trial (see, e.g., People v. Brown (2004) 33 Cal.4th 892, 899 ["in domestic violence cases prosecutors are often faced with exceptional challenges" such as "victims who refuse to testify, who recant previous statements, or whose credibility is attacked by defense questions on why they remained in a battering relationship"]; Cage, supra, 40 Cal.4th at pp. 965, 970).
As for the court's denial of defendant's request for a continuance of the hearing on the new trial motion, a continuance was unnecessary in light of the trial court's conclusion that defendant failed to exercise adequate pretrial diligence in seeking out Amy. In other words, there was no need to hear what Amy had to say because defendant made no effort to find that out before trial.
The other cases on which defendant relies also are unhelpful to him. People v. Huskins (1966) 245 Cal.App.2d 859 is unhelpful because the evidence there "undoubtedly . . . was newly discovered" and "[r]easonable diligence [was] conceded." (Id. at p. 862.) Not so, here. And United States v. Jorn (1971) 400 U.S. 470 is unhelpful because it does not involve a motion for new trial, but rather, involves double jeopardy issues arising from a trial court's complete failure to exercise any discretion before declaring a mistrial based on potentially insufficient self-incrimination warnings given to witnesses. (Id. at p. 486-487.) The record here indicates that, unlike in Jorn—where "the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so" (id. at p. 487)—the trial court heard extensive argument from counsel before issuing a reasoned ruling.
VIII. Sentencing Issues
A felony violation of section 273.5 is punishable "by imprisonment in the state prison for two, three, or four years." (§ 273.5, subd. (a).) Defendant's probation officer recommended that defendant receive a suspended middle-term sentence and three years of formal probation. Instead, the trial court found defendant was ineligible for probation, denied him a "split sentence," and sentenced him to the upper term of four years in state prison. Defendant contends each of these was error. We disagree.
Section 273.5 is a "wobbler"—it can be either a felony or a misdemeanor. (People v. Sillas (2002) 100 Cal.App.4th Supp. 1, 3.) Defendant was charged and convicted of the offense as a felony, so we address only the punishments applicable to felony convictions.
"A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department." (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)
A. Probation Eligibility
1. Guiding Principles
"Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation." (People v. Welch (1993) 5 Cal.4th 228, 233.) Probation eligibility falls into three categories: "(1) the defendant is presumptively eligible for probation, but the court has discretion not to grant it and impose a straight sentence in state prison or county jail; (2) the defendant is presumptively ineligible for probation, but the court may grant it if unusual circumstances are shown; and (3) the defendant is statutorily ineligible for probation under any circumstances and must be sentenced to state prison." (Couzens et al., Sentencing California Crimes (The Rutter Group 2016) ¶ 8:2, p. 8-2; see § 1203 et seq.; Welch, at p. 233.) We are concerned here with the latter two categories: presumptive ineligibility and absolute ineligibility.
One instance of presumptive ineligibility arises under section 1203, subdivision (e)(4) (hereafter, § 1203(e)(4)), which states: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." When a trial court denies probation to a presumptively ineligible defendant, the court need not specify its reasons for conforming to the presumption. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1156; see People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)
On the other hand, before a trial court may grant probation to a presumptively ineligible defendant, the court must engage in a two-step analysis. (See rule 4.413(b); People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) First, the court must determine whether the defendant's case is "unusual." (Rule 4.413(b), (c); see Dorsey, at p. 1229.) Second, assuming the first test resolves in favor of eligibility, the court must determine whether probation is appropriate under the circumstances. (See rules 4.413(b), 4.414; Dorsey, at p. 1229 ["mere suitability for probation does not overcome the presumptive bar set out in section[] 1203"].) A trial court's determinations of whether a case is unusual and whether probation is appropriate are reviewed for an abuse of discretion. (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) "To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason." (Ibid.)
One instance of absolute ineligibility arises under section 1203, subdivision (k) (hereafter, section 1203(k)), which states: "Probation shall not be granted to . . . any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense." The Legislature intended that this provision would "eliminate the trial court's discretion to grant probation to a defendant convicted of a violent felony while on probation for a violent felony conviction." (People v. Neild (2002) 99 Cal.App.4th 1223, 1227.)
2. Background
Before sentencing, the probation officer issued a report evaluating defendant's eligibility and suitability for probation. The probation officer noted defendant's criminal history in Arizona, which included felony convictions in 2000 for "Drug Paraphernalia Violation" and "Agg Aslt-Disfigurment," and in 2014 for "Poss Wpn By Prohib Person." The report stated "defendant is statutorily ineligible pursuant to Section 1203(e)(4)." Without balancing the rule 4.413 factors for determining whether a case is unusual enough to overcome the presumption of ineligibility, the probation officer balanced the rule 4.414 factors regarding suitability for probation and recommended that the court sentence defendant to a three-year suspended prison term and three years of formal probation.
The probation report also noted defendant had misdemeanor convictions in 2008 for "Disorderly Conduct—Fighting," in 2011 for "DUI Liquor/Drugs/Vapors/Combo," and in 2012 for "Violation of Promise to Appear."
The court began the sentencing hearing by noting it had "received and . . . considered the probation officer's report," but had not received any statements in mitigation or aggravation. The trial court then stated its tentative view that defendant was both absolutely and presumptively ineligible for probation:
"That in spite of the recommendation by the probation officer in this case [for] probation, the defendant is statutorily ineligible for probation. So we'll start with that. It wasn't mentioned in the probation report, but it would appear to me the defendant is ineligible, for the reason that he was on probation at the time of the commission of the offense. And this would make him ineligible for probation.
"The probation report asserts he is statutorily ineligible on good cause. I think that applies as well. But even more severely restrictive is . . . Section 1203(k), which statutorily makes the defendant ineligible for probation because he was on probation for a felony, as I understand it, in Arizona, at the time of the commission of the offense."
Defense counsel then argued the merits of why he believed defendant deserved probation. However, he never objected or otherwise argued defendant's prior Arizona felony convictions or probation status were insufficient to render him absolutely ineligible under section 1203(k) or presumptively ineligible under section 1203(e)(4).
After hearing argument from defense counsel and statements from Amy and defendant, the trial court gave the following explanation for its decision to "not follow[] probation's recommendation":
"All this that you say is fine and all good, [defense counsel], but the law says I can't give him probation, in spite of what you said. Statutorily ineligible. That's not something I have any discretion on. Even if I was inclined to grant him probation, I can't. In fact, my tentative is that this—the totality of the circumstances, the facts and the circumstances of this case, and the defendant's record—indicate the upper term."
After hearing additional argument the trial court found defendant absolutely ineligible under section 1203(k) and sentenced him to four years in state prison.
3. Analysis
Defendant argues the trial court erred by finding him ineligible for probation under either section 1203(k) or 1203(e)(4). He asserts the former is inapplicable because his current conviction is not for a serious or violent felony, as required. The Attorney General concedes this point. We accept the concession.
Defendant asserts the trial court abused its discretion in denying probation under section 1203(e)(4) because (1) there was no evidence establishing defendant had two qualifying out-of-state felony convictions, and (2) "the court failed to conduct any 'interest of justice analysis.' " Defendant forfeited the first contention, and the second lacks merit.
First, defendant never argued to the trial court that his out-of-state convictions were insufficient to trigger the presumption of ineligibility under section 1203(e)(4). Although he argued defendant was suitable for probation, this was insufficient to preserve a challenge to the separate issue of whether the presumption of ineligibility applied in the first instance. Thus, defendant failed to preserve the issue for appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.)
Moreover, even if defendant had preserved the issue, we likely would find it has no merit. Contrary to defendant's assertion, certified copies of conviction records were not required to establish the fact of defendant's prior convictions. The probation report's recitation of defendant's criminal history was sufficient to establish, as sentencing facts, the existence of his prior felony convictions. (See People v. Dorsch (1992) 3 Cal.App.4th 1346, 1349-1351.) And although the probation report does not specify the Arizona statutes under which defendant was convicted, the Attorney General's briefing on appeal identifies statutes that correspond to the offenses identified in the report and correlates them to California felonies. Defendant argues this effort is belated. We view it as the product of his failure to object below. In any event, defendant does not address the merits of his claim that the cited Arizona statutes would not qualify as felonies in California.
Compare Arizona Revised Statutes Annotated section § 13-1204(A)(3), (D) [assault causing "substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part" is a felony] with section 243, subdivision (d) [battery causing great bodily injury is punishable as a felony], and Arizona Revised Statutes Annotated sections 13-3101(A)(7), 13-3102(A)(4) and (M) [possession of a deadly or prohibited weapon, including a firearm, is a felony] with section 29800 [possession of a firearm by a felon is a felony].
Second, the record shows the trial court properly exercised its discretion in denying defendant probation under section 1203(e)(4). Defendant contends that because the court found defendant absolutely ineligible for probation under section 1203(k), the court necessarily did not conduct the balancing of interests required for presumed ineligibility under section 1203(e)(4). The record does not support this contention. First, the court noted that although the former applied, the latter "applies as well." This was supported by the acknowledgement in the probation report that defendant was ineligible absent a showing of unusual circumstances. Second, the trial court made clear that it disagreed with the probation officer's recommendation and that, not only was the court denying probation, it was also imposing the upper term based on "the totality of the circumstances," which included the defendant's serious criminal history. Finally, the trial court was not required to specify on the record the reasons why it found defendant's case was not an unusual one justifying deviation from presumptive ineligibility. (See People v. Bradley, supra, 15 Cal.App.4th at p. 1156; People v. Lesnick, supra, 189 Cal.App.3d at p. 644.) We find no abuse of discretion in the trial court's denial of probation.
B. Split Sentence
During the sentencing hearing, the trial court initially sentenced defendant to a four-year split sentence to be served two years in county jail and two years on mandatory supervision. Before the trial court finished pronouncing defendant's sentence and before remanding defendant into the sheriff's custody, the prosecutor advised the court that a felon convicted under section 273.5 is not eligible for a split sentence. The trial court stated, "I wasn't aware." Defense counsel objected solely on the basis that the court had "just sentenced the defendant" and the prosecutor's only remedy was to file a notice of appeal. The court disagreed, stating that it had the authority to correct the sentence if it was unauthorized. The court gave defense counsel the opportunity "to look at that statute . . . to confirm whether [defendant]'s eligible or not." Defense counsel reiterated, "No, I'm not arguing it. My only position is the Court just sentenced him. The procedure to challenge that would be by appeal." The trial court proceeded to sentence defendant to four years in state prison.
On appeal, defendant contends the prosecutor's assertion that defendant was ineligible for a split sentence "was flatly wrong on the law." This contention fails.
First, defendant forfeited this contention by expressly refusing to assert it below. (See People v. Scott, supra, 9 Cal.4th at p. 356.)
Second, even if defendant had preserved the contention for appeal, it would fail on the merits. In 2011, the Legislature enacted and amended the Criminal Justice Realignment Act of 2011 (Realignment Act), which "significantly change[d] the punishment for some felony convictions." (People v. Scott (2014) 58 Cal.4th 1415, 1418.) Under the Realignment Act, "qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision." (People v. Catalan (2014) 228 Cal.App.4th 173, 178; see § 1170, subd. (h)(5)(B); People v. Camp, supra, 233 Cal.App.4th at p. 467.)
As noted, however, the Realignment Act applies only to some felony convictions. (People v. Scott, supra, 58 Cal.4th at p. 1418.) " 'As part of the Realignment Legislation, the statutes defining many substantive offenses were amended to provide for felony punishment [in county jail] under [section] 1170[, subdivision] (h).' " (People v. Guillen (2013) 212 Cal.App.4th 992, 995, quoting 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction to Crimes, § 141, pp. 231-232; see, e.g., § 193, subd. (b) ["Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."], italics added.) " 'However, the statutes defining many other substantive offenses provide that the sentence must be served in state prison.' " (Guillen, at p. 995.) Section 273.5 is one of those statutes. (Guillen, at p. 995; see § 273.5, subd. (a) [specifying "imprisonment in the state prison for two, three, or four years" for a felony conviction].) By failing to include language authorizing punishment under section 1170, subdivision (h) for a felony conviction under section 273.5, "the Legislature intentionally excluded defendants convicted of that offense from eligibility for a county jail sentence" (Guillen, at p. 996), and, by extension, from eligibility for a split sentence served partially in county jail and partially under mandatory supervision. Accordingly, the trial court properly denied defendant a split sentence for his felony conviction under section 273.5.
This conclusion negates defendant's assertion that section 1170, subdivision (h)(3) "enumerates the only list of crimes that render a defendant ineligible for a split sentence . . . ." The cited provision presupposes a sentence was imposed under section 1170, subdivision (h) and, therefore, was punishable by imprisonment in a county jail. However, as we just concluded, a sentence imposed for a felony conviction under section 273.5 is not imposed under section 1170, subdivision (h), and must be punished by imprisonment in state prison. Therefore, the trial court properly denied defendant a split sentence.
Section 1170, subdivision (h)(3) states: "Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony . . . or a prior or current conviction for a violent felony . . . , (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony . . . or a violent felony . . . , (C) is required to register as a sex offender . . . , or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison."
C. Upper-term Sentence
Defendant contends the trial court erred in selecting the upper term by (1) improperly making dual use of an element of the offense as a factor in aggravation, and (2) ignoring numerous factors in mitigation. We find no error.
At the sentencing hearing, the prosecutor argued a prison sentence was appropriate because defendant was on probation at the time of the instant offense, he had a history of violent felonies and misdemeanors, and because of the "fact of what occurred to the victim," including "cutting off someone's airway and choking someone. That is what made this a felony."
Defendant argued probation was appropriate because of his cooperation with court orders, positive bail performance, family support system, efforts toward earning a GED, and his productive self-employment. The court acknowledged, "All these things that you are saying are fair comments."
Amy submitted a letter directly to the court stating defendant "has been nothing but sincere, honest," and "a positive role model" to her three children. The letter also stated defendant provided financial stability to Amy and her children, and his incarceration has affected their family "financially, mentally, and physically." In response to the letter, the court stated, "I'll take all of the statements to heart, [Amy]."
The court then sentenced defendant to the upper-term sentence. The court explained it had considered the circumstances in aggravation and mitigation set forth in rules 4.420, 4.421, and 4.423. As circumstances in aggravation, the trial court stated defendant's actions involved great violence and a high degree of cruelty upon a particularly vulnerable victim (rule 4.421(a)(1), (3)); "defendant has engaged in violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)); defendant's "prior convictions as an adult . . . are numerous . . . ." (rule 4.421(b)(2)); and "defendant has served a prior prison term" (rule 4.421(b)(3)).
Of the mitigating circumstances set forth in rule 4.423, the court stated the one relating to defendant's positive performance on probation prior to committing the charged offense (rule 4.423(b)(6)) was "the only circumstance in mitigation that I . . . can find in his favor under the Rules of Court."
The court found, "Clearly the defendant's circumstances in aggravation far outweigh the circumstances in mitigation, thereby justifying the imposition of the upper term." We review this finding for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) We find no such abuse.
Defendant contends the trial court "improperly used an element of the offense"—Amy's injury—"to support imposition of the upper term." (See People v. Scott, supra, 9 Cal.4th at p. 350 [a court may not "use a fact constituting an element of the offense . . . to aggravate . . . a sentence."].) Defendant forfeited this challenge by failing to object on this basis in the trial court. (Id. at p. 353 [forfeiture applies in "cases in which the court purportedly erred because it double-counted a particular sentencing factor"].) In any event, we need not determine whether the trial court made improper dual use of this fact because the trial court cited several additional aggravating circumstances, and "a single factor in aggravation is all that is needed to impose the upper term." (People v. Williams (1996) 46 Cal.App.4th 1767, 1782.)
Defendant also contends the trial court erred by "failing to consider or even recognize the multitude of additional" mitigating circumstances identified by defendant and Amy during the sentencing hearing. The record contradicts this claim. As noted, after defendant addressed the court, the court responded that defendant had made "fair comments." But the court went on to explain that the mitigating circumstances defendant cited were outweighed by defendant's criminal history and conduct toward Amy.
Similarly, after Amy addressed the court, the court responded that it would "take all of [her] statements to heart." However, the court observed that "the elephant in the room" was Amy's failure to make any mention of defendant's abusive conduct toward her. In that circumstance, the court went on to explain its view that "the primary thing that the Court . . . has got to do is to look after the safety and health of [its] citizens, more so than the other concerns about financial security and being close to someone that you love." Thus, the court made clear that it considered the mitigating circumstances that Amy identified, but found them outweighed by countervailing concerns.
In sum, the trial court did not abuse its discretion in selecting the upper-term sentence.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.