Opinion
C084334
05-24-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL KEOLA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF-16-5228)
Following a jury trial, defendant Paul Keola was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), false imprisonment by force or violence (§§ 236, 237, subd. (a)), and cohabitant abuse (§ 273.5, subd. (a)) with enhancements for personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally using a deadly weapon (§ 12022, subd. (b)(1)). The jury sustained allegations of a prior prison term (§ 667.5, subd. (b)) and a prior domestic violence conviction (§ 273.5, subd. (f)(1)) in a bifurcated proceeding. The trial court sentenced defendant to a 12-year state prison term.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred in admitting hearsay statements made by the victim to the police. Finding the majority of the statements admissible as prior consistent or inconsistent statements and the admission of any other statements to be harmless error, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
Defendant and the victim (B.C.) lived together on and off since 2002. In September 2016, B.C. lived by herself at the Crest Motel in West Sacramento, and there was a restraining order between the two. According to B.C., defendant did not know where she lived.
Around 10:45 p.m. on September 3, 2016, West Sacramento Police Officers Salvatore Lombardo and Andrew Ha responded to a mental health call at the Crest Motel. Officer Lombardo entered a room at the motel containing defendant, B.C., and James Sewell. Both defendant and B.C. appeared to be very intoxicated. Sewell, who was calm and not intoxicated, agreed with the officers to keep defendant and B.C. in the motel room.
B.C. called 911 about half an hour later to report someone hit her. She sounded intoxicated when giving the report. Officers Lombardo and Ha returned to the Crest Motel. B.C. did not appear to be injured and there was no damage to the motel room. B.C. demanded that defendant leave the room, so the officers told defendant to go. Officer Lombardo heard a motel employee tell B.C. she violated motel rules by having guests in her room and she had to leave as well.
Paramedics responded to a call at the motel room on September 4, 2016, at around 9:30 a.m. B.C. was sitting on a chair outside. She had facial injuries, abrasions to her left arm, swelling on her left hand, swelling and bruising to her right arm, swelling to her ankles, and appeared to be intoxicated. Paramedics took her to the hospital, where she was diagnosed as having sustained fractures of the lumbar spine vertebrae, an acute displaced fracture of the fourth finger on her left hand, and a fractured right forearm. She told a nurse defendant assaulted her with fists and a pole.
B.C. testified that defendant kicked in the door and broke into her motel room. She believed defendant followed her home from the store. B.C. called 911 and asked the police to order defendant to leave. Defendant grabbed her hair, pushed her to the ground, put his hands around her neck, and struck her with his fists. B.C. unsuccessfully tried to escape through the window. B.C. grabbed a pole she kept under her bed for self-defense, but defendant snatched it from her hand. He hit her ankle and arm with the pole. Defendant told B.C. he wanted to kill her because he went to jail for one year.
B.C. was hospitalized for "six days to two weeks." Defendant visited her in the hospital; he said he was sorry but B.C. "chased him out of there." B.C. admitted she was drunk during the assault and suffered from bipolar disorder.
B.C. also testified that this was not the first time defendant beat her. He would hit her out of jealousy. She previously lied in court about how she sustained her injuries because she loved defendant and did not want him to go to jail.
While testifying, B.C. claimed to be unable to answer many questions because she could not remember. She did not remember when the police previously responded to the motel room, why they came, whether she had a conversation with the police, or when she had seen defendant before the attack. B.C. remembered talking to a nurse but could not recall what she told the nurse. She also could not remember details about when defendant previously attacked her, and whether she gave statements about the attacks to the police.
In 2013, defendant was convicted of felony infliction of a traumatic injury (§ 273.5) on B.C. B.C. entered a plea in a case where defendant was hit with a bottle.
The Defense
A blood sample taken from B.C. at 10:22 a.m. on the morning of the attack showed a blood-alcohol level of 0.382 percent.
The defense presented expert testimony on forensic toxicology. A blood-alcohol level of 0.38 percent was high for a light to moderate drinker, but a heavy drinker who had developed tolerance for alcohol might appear physically normal at that level. High alcohol concentration can affect memory, but memory impairments will vary. Someone with a high blood-alcohol level might recall an event at or near the time of the event but have little or no recollection of it later. A 0.38 percent blood-alcohol level can also influence a person's perceptions. A person five feet two inches tall and weighing 120 pounds who does not consume any alcohol after 12:30 a.m. and has a blood-alcohol concentration of 0.38 percent at 10:10 a.m. would have a blood-alcohol concentration of 0.46 to 0.58 percent at 12:30 a.m.
B.C. is five feet two inches tall and weighs 120 pounds. --------
The Hearsay Objection
West Sacramento Police Officer Hector Torres testified that B.C. spoke with him at the hospital. She was in pain and showed signs of being medicated or intoxicated during the interview. B.C. told Officer Torres defendant caused her injuries, but she was not sure when she was assaulted. Defendant made a hearsay objection when the prosecutor asked Officer Torres whether B.C. told him where she met defendant that day. The trial court overruled the objection and allowed defendant to make a running objection to the rest of Officer Torres's testimony about his interview with B.C.
In the following examination, Officer Torres testified that B.C. told him she met defendant at the liquor store where they drank and talked. Defendant asked where she lived and she told him. She told defendant he could not come over because she was not allowed to have a second person stay at her room. She went back to her room after they separated, but B.C. did not know when she returned. She went into her room and barricaded it with the refrigerator because she was afraid defendant would come back to her room. She heard someone coming in through the door. When B.C. looked up and saw defendant, she told him he cannot be there. She did not know when this happened. Defendant accused her of sleeping with some guy. He then hit her with his cane, grabbed her hair, and shoved her to the ground. When she was on the ground, defendant grabbed a steel pole and hit her several times and kicked her. She believed she lost consciousness after defendant struck her in the head with the steel pole. Defendant stopped the attack after B.C. "sweet-talked" him. She then tried to climb out of a window, but defendant closed the window on her left hand, bit her left forearm, pulled her back to the ground, and continued beating her. While he attacked her, defendant said, "I'm going to kill you." Defendant hit her with the pole about 10 times, all over her body. The assault ended when three men who appeared to work at the motel entered the room and told defendant to leave. One of the men called 911.
The trial court explained its decision at the next break, stating: "I allowed that testimony for several reasons: Number one, the testimony contained both prior consistent and inconsistent statements by [B.C.]; number two, both counsel, throughout this trial, have frequently asked witnesses about what [B.C.] said to them; and, number three, I feel counsel have had sufficient time under the confrontation clause to confront and cross-examine and examine [B.C.], and she's subject to recall."
DISCUSSION
Defendant contends the trial court prejudicially erred in admitting Officer Torres's testimony about B.C.'s statements to him.
We review the admission of hearsay evidence under an abuse of discretion standard. (People v. Pirwani (2004) 119 Cal.App.4th 770, 787.) We apply the same standard to questions of the existence of elements necessary to satisfy a hearsay exception. (Ibid.) A court's ruling admitting hearsay evidence implies all necessarily factfinding prerequisites. (Evid. Code, § 402, subd. (c); People v. Martinez (2000) 22 Cal.4th 106, 120.)
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
" ' "A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770." [Fn. omitted.] [Citation.] "The 'fundamental requirement' of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony." [Citation.] " 'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement . . . .' " ' " (People v. Homick (2012) 55 Cal.4th 816, 859.)
Most of B.C.'s statements to Officer Torres were admissible as prior inconsistent statements. Her statement that she met defendant at the liquor store before the attack was inconsistent with her testimony that she did not meet defendant before the attack or did not remember if she met him. Her statement about telling defendant where she lived is inconsistent with her testimony that defendant did not know where she lived. The statement that defendant hit her with a cane was inconsistent with her testimony that mentioned only one weapon in the assault, the pole. The statement that defendant hit her with the pole before she tried to escape is inconsistent with B.C.'s testimony that defendant did not hit her with the pole until after she tried escaping.
B.C.'s statements to Officer Torres that were consistent with her testimony were admissible as prior consistent statements.
"A prior consistent statement is admissible as an exception to the hearsay rule if it is offered after admission into evidence of an inconsistent statement used to attack the witness's credibility and the consistent statement was made before the inconsistent statement, or when there is an express or implied charge that the witness's testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive. (Evid. Code, §§ 791, 1236.)" (People v. Kennedy (2005) 36 Cal.4th 595, 614, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
On cross-examination, defense counsel questioned B.C. about her current living situation. When B.C. explained that the district attorney's office arranged for her to stay at a facility for battered people, counsel asked, "So the DA gave you a place to live?" This was an implicit attack on B.C.'s credibility, insinuating that she was biased to give testimony favorable to the prosecution because it secured shelter for her. Prior consistent statements she made to Officer Torres were therefore admissible over the hearsay objection.
Any error in admitting the remaining statements to Officer Torres not covered by either hearsay exception was harmless. Since B.C. testified, her statements to Officer Torres were not testimonial under Crawford v. Washington (2004) 541 U.S. 36 and any error in admitting them was state law error subject to the harmless error test of People v. Watson (1956) 46 Cal.2d 818. (People v. Sanchez (2016) 63 Cal.4th 665, 698-699; People v. Guillen (2014) 227 Cal.App.4th 934, 1015.) The evidence against defendant was compelling: B.C.'s testimony, the medical record of her injuries, the prior incidents with defendant that day, her prior consistent and inconsistent statements to Officer Torres, her statements to the nurse at the hospital, and defendant's apology to B.C. at the hospital strongly point toward defendant's guilt. The few statements to Officer Torres not covered by either hearsay exception did not, as defendant asserts, fill "a lacuna in the prosecution's case." It is not reasonably likely that defendant would obtain a different result had they not been admitted.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.