Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F10900
OPINION
DAVIS, Acting P.J.
A jury convicted defendant Kenneth Glen Whitfield of two counts of corporal injury and one count of assault with a deadly weapon against his live-in girlfriend, Virginia W., as well as one count of criminal threat against Virginia’s uncle, Marvin W. (Respectively, Pen. Code, §§ 273.5, subd. (a), 245, subd. (a)(1), 422.) The jury also found that defendant used a weapon during the criminal threat offense. (§ 12022, subd. (b)(1).) The jury deadlocked on another count of criminal threat (with Virginia the alleged victim) and a count of assault with a deadly weapon (with Marvin as the victim), and a mistrial was declared on those two counts.
Hereafter, undesignated section references are to the Penal Code unless otherwise noted.
Sentenced to seven years in state prison, defendant appeals. He contends the trial court (1) violated his confrontation rights by admitting into evidence a statement that Marvin had given to a police officer; (2) erroneously admitted evidence of prior domestic violence; (3) violated his right to a public trial by ordering his daughter to leave the courtroom temporarily; (4) erroneously allowed the People to amend the information to add the criminal threat charge involving Marvin; (5) failed to instruct on the lesser included offense of attempted criminal threat; and (6) violated his jury trial (and related due process) rights by imposing an upper term. We find no prejudicial error and affirm the judgment.
Background
One of the corporal injury offenses occurred on July 21, 2002; the rest of the offenses took place on October 31 of that year.
The July 21 offense occurred after defendant accused Virginia, who was then four months pregnant, of having arrived at that condition through the efforts of her former boyfriend, Andrew, rather than through defendant. This angered defendant and eventually led to some rather bad behavior on his part, including sitting on Virginia, choking her, and telling her he was going to cut the baby out of her (with a knife he fortunately could not find).
As for the October 31 offenses, they unfolded in much the same way, with defendant again angrily accusing Virginia of becoming pregnant with Andrew’s child. At this point, defendant and Virginia were living with Virginia’s uncle, Marvin, who was a quadriplegic. During this incident, defendant, who was armed with a knife, threatened to kill Virginia, and also slapped her, kicked her, and hit her in the head and the ribs with a flashlight (a Maglite). Defendant also threatened to kill Marvin, while holding the knife to Marvin’s throat, and threw a cup of hot soup at him. During this fracas, Virginia managed to place Marvin’s headset telephone on him, and he hit the button to make a 911 call. A tape of this call was played for the jury. Eventually, an attendant of Marvin’s restrained defendant. The attendant allowed defendant to flee before the police arrived.
The prosecution’s case consisted of testimony from Virginia (who is also known as Danielle); photographs showing her injuries; the tape of Marvin’s 911 call; testimony from responding officers and medical personnel; photographs of the subject knife and flashlight; and evidence of several prior incidents of domestic violence involving defendant’s former wife, Pamela W., and one prior incident involving a former live-in girlfriend, Kyla T.
The defense presented evidence that Marvin’s mental and memory capabilities were impaired by a seizure he had suffered prior to the incidents at issue, and that responding officers on October 31 did not recall seeing any soup on Marvin or his bed.
We will set forth other pertinent facts as we discuss the issues.
Discussion
1. Confrontation Issue--Admission of Marvin’s Statement to Responding Officer
Defendant contends the trial court erred prejudicially by admitting into evidence a statement that Marvin made to one of the police officers who responded to the October 31, 2002, incident. Defendant claims this statement comprised a hearsay (out-of-court) statement, equivalent to testimony, that violated his constitutional right of confrontation as interpreted by Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). We find no prejudicial error.
The Crawford court concluded that the constitutional right of confrontation--which guarantees a criminal accused’s right “‘to be confronted with the witnesses against him’” (U.S. Const., 6th Amend.)--protects an accused against a hearsay statement that is uttered by one who spoke as if testifying, if that speaker neither takes the stand at trial nor was otherwise available for cross-examination by the accused. (Crawford, supra, 541 U.S. at p. 54; see id. at pp. 51-54.) Here, Marvin made a statement to one of the officers responding to the October 31 incident, and the officer conveyed that statement at trial. Marvin died in April 2003, well before trial.
In Davis v. Washington (2006) 547 U.S. ___ [165 L.Ed.2d 224] (Davis), the United States Supreme Court clarified what constitutes “testimonial hearsay” that violates the right of confrontation within the meaning of Crawford. Said Davis: “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 [and therefore violate the confrontation right if admitted into evidence] when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. ___ [165 L.Ed.2d at p. 237].)
Here, the responding officer who took Marvin’s statement arrived on the scene only eight minutes after Marvin’s 911 call ended. Other officers had already arrived, and the responding officer went directly to interview Marvin, who appeared somewhat agitated but not overly so. As noted, defendant had fled the scene prior to any officers arriving.
We need not resolve whether Marvin’s statement to the responding officer was testimonial or nontestimonial under Davis. This is because even if we assume that Marvin’s statement was confrontation-violative testimonial hearsay, we conclude its admission was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] [setting forth this standard of harmless error for constitutional violations].) We reach this conclusion because the jury properly heard the tape recording of Marvin’s 911 call describing defendant’s attack as it unfolded. As the People correctly note, “[d]uring this tape recording, the jury could hear [Marvin] directly informing the operator of the same events he conveyed to [the responding officer], but with more detail. On the tape, the jury also heard [defendant] himself raging in the background and threatening Virginia and Marvin.”
The 911 tape and the statement to the responding officer each conveyed the physical attacks on Virginia (including with the flashlight), the hot item thrown at Marvin, and the knife threat made against Marvin. The only significant difference between the tape and the statement was that the statement included defendant’s additional threat to burn down Marvin’s house. But the 911 tape was actually more prejudicial than the statement because the statement was presented in an antiseptic way (through an officer’s testimony at trial) compared to the blow-by-blow real-time terror and profane and raging voices from the tape. Additionally, the jury heard Virginia’s corroborating testimony, saw Virginia’s corroborating photographs, and considered defendant’s prior incidents of domestic violence. Any error, therefore, in admitting into evidence Marvin’s statement to the responding officer was harmless beyond a reasonable doubt.
2. Evidence of Prior Domestic Violence
Evidence Code section 1109 (hereafter, section 1109) states as pertinent:
“(a)(1) Except as provided in subdivision (e) [and another subdivision not relevant here], in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 [character evidence to prove conduct] if the evidence is not inadmissible pursuant to [Evidence Code] Section 352 [weighing prejudice against probative value]. [¶] . . . [¶] “(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
Pursuant to section 1109, the trial court here admitted into evidence several prior domestic violence incidents involving defendant and his former cohabitant and wife, Pamela W., and one such incident involving defendant and his former live-in girlfriend, Kyla T.
Defendant contends the trial court abused its discretion and violated his due process rights (1) by admitting into evidence several incidents that were over 10 years old; (2) by admitting into evidence that defendant had “raped” Pamela and “hog[-]tied” Kyla after forcing her to “strip”; and (3) by allowing an officer to testify to an incident that Pamela had forgotten. We find no prejudicial error. We discuss these contentions in turn.
First, the trial court allowed in evidence that defendant abused Pamela throughout their cohabitation and marriage in the 1980’s and 1990’s, and the court admitted into evidence a series of defendant’s violent acts upon her during this span of time. These violent acts included defendant pointing a shotgun at Pamela, hitting her in the nose repeatedly while trying to break it, and running a butcher knife up and down her back while saying he would love to just shove it in. The trial court allowed in this evidence because it illustrated, as contemplated by section 1109, an ongoing pattern of behavior that continued to a point close to the currently charged offenses. The trial court did not abuse its discretion or violate due process rights in doing so. Section 1109 recognizes, as the trial court recognized, that crimes involving domestic violence are often the result of a pattern of abusive behavior and victim recantation; and the court weighed the evidence pursuant to section 352 (prejudice against probative value).
Second, defendant uses inflammatory labels in arguing repeatedly that the trial court allowed in evidence that he had “raped” Pamela, and had “hog[-]tied” Kyla after forcing her to “strip.” The challenged evidence regarding Pamela was admitted during her testimony about a prior beating, when she added, pursuant to questioning by the prosecutor and clarifying questioning by the court, that on at least one occasion during her marriage to defendant he “forced [her] to have sex against [her] will.” The challenged evidence regarding Kyla comprised part of the prior incident of domestic violence to which she testified. Kyla testified that during this incident defendant hit her in the face with a phone, told her “to take off all of [her] clothes” so she “wouldn’t try to get away,” tried to “tie [her] hands and . . . b[ind] [her] feet together,” and tried to choke her with a cord. The evidence that defendant challenges was not in the form of the inflammatory labels he uses (rape, forced stripping, hog-tie), and this challenged evidence was admitted within otherwise proper evidentiary contexts. These facts make it harder to argue that the trial court abused its discretion or violated due process in admitting this evidence. If the trial court did err, though, any such error was harmless for the reasons specified in the previous section of this opinion.
And third, an officer who responded to a domestic violence call in 1988 at defendant’s and Pamela’s residence testified that Pamela reported defendant had pushed her face-first into a wooden fence. The officer added that Pamela’s forehead and nose were skinned up. Pamela did not remember this incident at trial. To the extent the trial court erred along hearsay lines in this respect, any such error, again, was harmless for the reasons specified in the previous section of this opinion. Furthermore, this incident was less harrowing than many of those properly admitted.
3. Right to Public Trial
At the center of this issue is defendant’s and Pamela’s daughter, K.
The prosecutor was concerned about K.’s presence in the courtroom during Pamela’s upcoming testimony because K. did not want her mother (Pamela) testifying against her father, defendant. The trial court indicated it had no authority to exclude K. on this basis (unless she became disruptive), but the court agreed to admonish K. about not pressuring her mother.
K. was brought into the courtroom and stated that Pamela had told the prosecutor she (Pamela) did not want to testify. K. then stated, regarding the subpoena served on Pamela, that someone had shown up at Pamela’s house at 6:30 a.m. “with a gun flashing out”; adding, “[h]e had a gun flashing around. He had it on his hip and he pulled his jacket back and said: [Pamela], if you do not answer the door, if you do not come outside and accept your subpoena we are taking you to jail.”
These statements prompted the prosecutor to request that K. now be excluded as a potential witness on the issue of how Pamela had been subpoenaed as a witness.
The trial court noted that only 30 minutes remained of that morning’s court session. The court ruled that K. was to remain in the hallway during this period and make herself available to the prosecution’s investigator on the subpoena issue she had raised. This was so the court could determine her status as a potential witness (however, the court also noted that K. did not have to give a statement).
During the rest of the morning session, the jury heard testimony from one officer who had responded to the July 21 incident and another officer who had responded to the October 31 incident.
During the lunch hour, a prosecution investigator interviewed K. It was determined there was little substance to K.’s subpoena comments, and the trial court declined to exclude K. without more to indicate she could be a witness. Pamela then took the stand and testified.
The constitutional requirement of “‘“‘a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’”’” (Waller v. Georgia (1984) 467 U.S. 39, 46 [81 L.Ed.2d 31] (Waller).)
Defendant contends the trial court violated his right to a public trial by excluding K. from the courtroom without following the constitutionally required procedure for such exclusion. Under that procedure, (1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,” (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to clos[ure],” and (4) “the trial court must make findings adequate to support the closure.” (Waller, supra, 467 U.S. at p. 48.)
Examining these procedural requirements in order, we see that the prosecution sought to exclude K. because K.’s own statements to the court indicated she could be a potential witness on the issue of whether the prosecution had coerced Pamela W., its principal witness as to prior domestic violence, to testify. Evidence Code section 777 provides, in pertinent part, that the court “may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.” The trial court acted to determine whether K. could be a witness and therefore excludable. The prosecution had an overriding interest in this regard.
The closure was no broader than necessary to protect that interest. The trial court excluded K. for only 30 minutes of testimony from two responding officers, and the court did so only to determine K.’s witness status. As the People correctly note, the court limited its ruling as much as possible, keeping K. from the courtroom for only as long as it took for necessary interviews to determine her witness status. The court did not exclude K. from the testimony upon which K. was focused--that of her mother, Pamela.
As for the last two procedural requirements of reasonable alternatives and supporting findings, the trial court, as noted, carefully considered the issue of K.’s exclusion and only excluded K. for a short and temporary period to determine her witness status. The court then found that the prosecution had not persuaded it to exclude K. as a potential witness, noted that it was balancing the right to a public trial against the right to a fair trial, and allowed K. to be in the courtroom for her mother’s testimony and that of any other witness. The court never excluded the press, nor the public in general, nor defendant’s family and friends in general.
We conclude the trial court followed a constitutionally adequate procedure under Waller and therefore did not violate defendant’s right to a public trial.
4. Amending Information to Add Criminal Threats Charge
Defendant contends the trial court erroneously allowed the People to amend the information to add count five, a criminal threat charge with Marvin as the victim. (§ 422.) Defendant argues there was no evidence presented at the preliminary hearing that Marvin had suffered “sustained fear,” an element required for this charge. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).) We disagree.
For some unstated reason, the People at the preliminary hearing (represented by a different deputy district attorney than the one at trial) did not ask for a commitment order regarding count five. That count was then dismissed.
“‘[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense “arose out of the transaction which was the basis for the commitment” on a related offense. [Citations.]’” (People v. Pitts (1990) 223 Cal.App.3d 606, 903, quoting Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665; see also § 1009 [allowing amendment at any stage of the proceedings, but the new charged offense must have been shown by the preliminary hearing evidence], § 739.)
This test from Pitts, Jones and section 1009 was met here regarding the element at issue: sustained fear.
At the preliminary hearing, two officers who responded to the October 31 incident testified. One officer had interviewed Virginia. Virginia told the officer that defendant grabbed Marvin by the throat, pulled a knife on him, and threatened to kill him. The other officer had interviewed Marvin. Marvin told this officer that defendant became angry at him (Marvin) for calling 911, threw hot soup on him, and then grabbed a hunting knife, put it to his throat and called him a “cop-calling bitch.” Marvin also told the officer that defendant threatened to burn down Marvin’s house.
A “sustained fear” is a fear that “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The evidence detailed in the preceding paragraph is sufficient to show the element of “sustained fear,” and the amendment-added offense of count five arose out of the same incident that formed the basis of most of the other charges (the October 31 incident).
The trial court did not err in allowing the People to add count five to the information.
5. Instruction on Lesser Included Offense of Attempted Criminal Threat
Defendant claims the trial court erroneously failed to instruct, on its own motion, on the offense of attempted criminal threat as a lesser included offense to count five, criminal threat committed against Marvin. Defendant contends a reasonable jury could have concluded from the evidence that Marvin was not placed in sustained fear, one of the elements of the criminal threat offense. We find no prejudicial error.
A trial court has a duty to instruct on its own motion on a lesser included offense whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by a jury composed of reasonable persons. This instructional duty arises, for example, when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162 (Breverman).)
As suggested by the state Supreme Court in Toledo, an attempted criminal threat occurs, among other ways, if a defendant “with the requisite intent [i.e., specific intent to threaten] makes a sufficient threat [i.e., threat of death or great bodily injury made with immediate prospect of execution] that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.” (Toledo, supra, 26 Cal.4th at p. 231, original italics; see § 422.)
The evidence shows that Marvin told defendant (on the 911 tape) to “[d]o it” when defendant threatened Marvin with the knife. And Virginia testified that Marvin did not appear threatened when defendant was holding the knife to his throat and threatening to kill him because Marvin had had a miserable life as a quadriplegic for 25 years and “was ready to go”; “[Marvin] told [defendant] to go ahead and do him a favor.”
However, evidence also shows that Marvin called 911 for help because he was afraid that defendant might badly hurt him and Virginia; as Marvin stated on the 911 tape, defendant had a “knife right at [his] throat” and “threaten[ed] to slice [him] up”; “[defendant] was going to cut [him] up.” As the People note, the 911 tape is replete with Marvin’s desperate requests for police assistance and detailed descriptions of defendant’s violent acts, including with the knife.
But even if we assume the trial court erred in this respect, it is not “‘reasonably probable’” that defendant would have obtained a more favorable verdict had the error not occurred. (Breverman, supra, 19 Cal.4th at p. 178, quoting People v. Watson (1956) 46 Cal.2d 818, 836 for this standard of prejudicial error; see id. at pp. 165, 172.)
The 911 call lasted for several minutes, with Marvin telling the dispatcher about defendant’s many violent acts and pleading for the police to arrive. Defendant made his threats with a knife at Marvin’s throat, threatening to “slice” Marvin “up.” Marvin was a physically helpless quadriplegic. The jury found true a pleading allegation that defendant had used a deadly weapon in committing the criminal threat offense against Marvin. (§ 12022, subd. (b).) And the jury heard the tape of Marvin’s 911 call, which placed the jury in a great position to assess whether Marvin had suffered sustained fear.
Assuming the trial court erred in this respect, we find no prejudicial error.
6. Upper Term Sentence
Defendant contends the trial court violated his constitutional right to jury trial (and related due process rights)--as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham)--by imposing the upper term of five years on his count three conviction for corporal injury involving Virginia.
The People claim (1) defendant forfeited this contention by failing to object in the trial court, and (2) in any event, the recidivism exception applies to defendant’s challenge on its merits. We agree with the People’s second point.
The trial judge sentenced defendant to the upper term, based on the following aggravating factors: (1) the crime involved a high degree of cruelty, viciousness or callousness; (2) defendant was armed with or used a weapon; (3) Virginia was particularly vulnerable; and (4) defendant’s prior convictions are of increasing seriousness. The trial judge found no mitigating circumstances.
We reject the People’s first argument that defendant has forfeited this contention by failing to raise it in the trial court. People v. Black (2005) 35 Cal.4th 1238 (Black I)--which had held that the sentencing law under which defendant was sentenced did not violate the federal constitutional right to a jury trial (and which was overruled by Cunningham)--was in effect at the time of defendant’s sentencing; therefore, any such objection would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837.)
As for the merits of defendant’s contention, the California Supreme Court recently ruled in People v. Black (2007) 41 Cal.4th 799 (Black II) that “imposition of [an] upper term does not infringe upon [a] defendant’s constitutional right to jury trial [under Apprendi-Blakely-Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) This is because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) And it is only when a sentence goes above the “statutory maximum” that the Apprendi-Blakely-Cunningham rule is triggered, requiring a jury to determine sentencing facts; as Cunningham explained, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], italics added; accord, Apprendi, supra, 530 U.S. at p. 490.)
Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendant’s record of prior convictions. The trial judge found the aggravating circumstance that defendant’s prior convictions are of increasing seriousness. (See Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including the circumstance of prior convictions of increasing seriousness].) As the Black II court stated, the “determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820; see also pp. 818-819.) Consequently, under Black II, the trial judge’s imposition of the upper term did not violate defendant’s constitutional right to jury trial (and related due process rights) under Apprendi-Blakely-Cunningham.
Disposition
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.