The opinion
Filed 11/12/20 P. v. Solomon CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C085796
Plaintiff and Respondent, (Super. Ct. Nos. 15F5369 &
17F1780)
v.
TIMOTHY SOLOMON,
Defendant and Appellant.
In case No. 17F1780, defendant Timothy Solomon was convicted by jury of
willfully inflicting corporal injury on R., a former cohabitant.1 Defendant admitted
allegations he committed this offense while released on bail or on his own recognizance
in two other cases (case Nos. 15F5369 & 16F2004). Following a court trial on an
allegation defendant was previously convicted of a serious or violent felony offense, i.e.,
1 The jury acquitted defendant of burglary based on the same incident.
1
a 1998 assault with a deadly weapon, the trial court found the allegation to be true.
Sentencing in the three cases was consolidated and defendant was sentenced to serve an
aggregate determinate term of 16 years in state prison. This sentence includes four one-
year prior prison term enhancements defendant admitted as part of a guilty plea in case
No. 16F2004.
The issues properly before this court involve only case No. 17F1780. With
respect to that case, defendant argues: (1) the trial court violated his constitutional right
of confrontation by admitting into evidence a portion of the call R. made to 911 after
defendant assaulted her and fled from her apartment; (2) the trial court prejudicially erred
and also violated defendant’s constitutional rights by finding R. was unavailable to testify
without requiring her to take the stand and refuse to do so in front of the jury; (3) the trial
court prejudicially abused its discretion and further violated defendant’s constitutional
rights by excluding evidence R. failed a drug screening test several hours before she
made the 911 call and admitted to law enforcement, almost eight months after the assault
in this case, that she possessed heroin for sale; (4) the cumulative prejudicial effect of the
foregoing claims of error requires reversal; and (5) the trial court violated defendant’s
constitutional right to jury trial by finding he was previously convicted of assault with a
deadly weapon as opposed to assault by force likely to produce great bodily injury.2
2 Defendant raises an additional claim in supplemental briefing, asserting we must
remand the matter to the trial court with directions to strike the four one-year prior prison
term enhancements he admitted as part of his guilty plea in case No. 16F2004. This is so,
he argues, because Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590,
§ 1), which became effective January 1, 2020, and eliminates such enhancements for
defendant’s crimes, applies retroactively to cases not yet final on appeal. However, as
the Attorney General points out, defendant neither appealed from case No. 16F2004 nor
obtained a certificate of probable cause. The Attorney General argues the latter failure
deprives this court of jurisdiction to entertain defendant’s challenge to his stipulated
sentence. Defendant’s notices of appeal in this case identify case Nos. 15F5369 and
17F1780, but not case No. 16F2004. We therefore lack jurisdiction to consider the
2
We affirm. Defendant’s right of confrontation was not violated by admission of
the 911 call. Defendant has forfeited his challenge to the procedure used by the trial
court for determining R.’s unavailability by failing to object to that procedure below; nor
did his defense counsel provide constitutionally deficient assistance by failing to so
object. We also reject defendant’s assertions of evidentiary error and cumulative
prejudice. Finally, defendant’s right to jury trial was not violated by the trial court’s
finding he was previously convicted of assault with a deadly weapon because such a
conclusion was adequately supported by defendant’s record of conviction.
FACTS
Prior to the events giving rise to this appeal, defendant and R. lived together at
various locations in Redding. They no longer lived together in November 2016. One
night that month, defendant showed up at R.’s apartment and pounded on her door for
about 10 minutes. A neighbor, M., heard the pounding, but did not go outside to
investigate until she heard a woman screaming.
The record is unclear as to exactly how defendant got into R.’s apartment.
Damage to a window screen and an apparent shoe print on the front door indicated he at
least attempted to force his way inside. The jury, however, acquitted defendant of
burglary. Regardless of his means of entry, once inside, defendant violently attacked R.,
biting and kicking her in the face.
R.’s screams caused M. to run out of her apartment. Determining the source, M.
ran over to R.’s apartment and pounded on the front door. M. could not see what was
happening inside, but intuitively yelled: “Get the fuck off of her.” She then yelled that
additional claim. (Cal. Rules of Court, rule 8.304(a)(4); see Shiver, McGrane & Martin
v. Littell (1990) 217 Cal.App.3d 1041, 1045 [“notice of appeal will not be considered
adequate if it completely omits any reference to the judgment being appealed”]; Norman
I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [“if no
appeal is taken from [separately appealable judgment or] order, the appellate court has no
jurisdiction to review it”].)
3
the police were being called and ran back to her apartment, where she told her boyfriend
to get her phone so she could call the police. As M. explained in her testimony, “he
didn’t get it fast enough, and I wanted to get back down there to make sure everything
was okay,” so M. returned to R.’s apartment without her phone and pounded on the door
again. As she did so, the door opened and “a black male with his head covered up ran
past [M.] and ran down the stairs.”
At trial, M. did not identify defendant as the man who ran past her that night.
During the prosecution’s direct examination of her, she described the man as standing 5
feet 10 inches or 5 feet 11 inches in height with a medium build.3 During cross-
examination, she testified that R. introduced her to defendant after the incident. When
defense counsel asked M. the leading question, “he was not the same gentleman as the
day of the incident?” M. responded: “No, he was not.” However, when asked on redirect
whether she could say for sure that defendant was not the man who ran past her the night
of the incident, M. answered: “No, I cannot.” She then returned to her previous answer
when it was defense counsel’s turn to re-ask the question on recross, agreeing with
counsel that defendant “was not the person that pushed past [her] on that incident.”
R. did not testify at trial. However, she identified defendant as the man who
attacked her during a call to 911. This phone call was played for the jury at trial. We
provide the details of the call later in this opinion. For present purposes, we note that
after R. identified defendant as her attacker, she stated he left in a black Honda.
Although M. did not identify defendant as the man who ran past her outside of R.’s
apartment, she testified to seeing “a black car speed off” immediately after the incident.
3 An officer who had contacted defendant on numerous occasions estimated his
height to be about “six feet tall” and his build: “Not overweight, somewhat fit.”
4
DISCUSSION
I
Admission of the 911 Call
Defendant contends the trial court violated his constitutional right of confrontation
by admitting into evidence a portion of the phone call R. made to 911. We disagree.
A.
Additional Background
The transcript of R.’s call to 911 is divided into two segments. During the first
segment of the call, after the dispatcher asked R. what the emergency was, R. stated her
“boyfriend just came here and he just beat me up.” In response to follow-up questioning,
R. provided her address, indicated she did not need an ambulance, stated and spelled her
name, and told the dispatcher defendant “just left in a car.” During this portion of the
call, while R. was spelling her name, the dispatcher was unable to understand her and told
her to “take a deep breath and calm down.” After R. told the dispatcher defendant just
left, the dispatcher said: “Hang on one second, okay? Hold on.”
The second segment of the call picks up with the dispatcher asking R. for the name
of her attacker. R. provided defendant’s name, and in response to follow-up questioning,
spelled his name, provided his date of birth, and described the car he left in. The
dispatcher also asked how long ago he left. R. answered: “Like 10 minutes ago.” R.
then provided a description of the car and said defendant was “probably on his way to
Red Bluff.” The dispatcher then asked what defendant did to her. R. answered: “He bit
my face and he kicked me in my face.” In response to further questioning, R. again said
she did not need an ambulance and said defendant was under the influence of “probably
meth and heroin[].” The dispatcher confirmed defendant was “possibly in route to Red
Bluff,” again asked if R. needed medical attention, and also asked whether defendant had
“any weapons on him or in the vehicle.” R. again declined medical attention and said she
did not know whether or not defendant had any weapons. The call concluded with the
5
dispatcher assuring R. that law enforcement officers would be coming and telling her to
call again if defendant came back.
The prosecution moved in limine to admit this phone call into evidence, arguing
R.’s statements in the call were admissible hearsay under the spontaneous statement
exception to the hearsay rule. The prosecution also argued R.’s statements were not
testimonial under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]
(Crawford). In response, defendant filed a motion seeking to exclude the call in its
entirety, arguing R.’s statements in the call were inadmissible testimonial hearsay and
their admission would violate defendant’s right of confrontation under Crawford and also
his right to due process.
Following a hearing on these competing motions, the trial court ruled R.’s hearsay
statements were admissible as spontaneous statements and were nontestimonial under
Crawford, supra, 541 U.S. 36. The trial court further concluded the call was also
admissible under Evidence Code4 section 352.
B.
Analysis
Defendant’s challenge to the trial court’s admission of the 911 call is limited to the
second portion of the call and further limited to challenging admission of that portion of
the call under Crawford, supra, 541 U.S. 36.
“The confrontation clause of the Sixth Amendment to the United States
Constitution, which is binding on the states under the Fourteenth Amendment, guarantees
the right of a criminal defendant ‘to be confronted with the witnesses against him [or
her].’ [Citations.] The understanding of the clause’s protections has shifted over time.
Although the United States Supreme Court at one time interpreted the clause to bar
4 Undesignated statutory references are to the Evidence Code.
6
admission of out-of-court statements that lacked ‘adequate “indicia of reliability” ’
[citation], the court reconsidered this approach in Crawford . . . . Tracing the historical
origins of the confrontation right, the court explained that ‘the principal evil at which the
Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused.’ [Citation.]
Interpreting the clause with this focus in mind, the court held that the Sixth Amendment
bars ‘admission of testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.’ [Citations.]” (People v. Hopson (2017) 3 Cal.5th 424, 431.)
Here, R. refused to testify at trial. There is no dispute her statements in the 911
call were hearsay, but admissible under the Evidence Code as spontaneous statements.
Nor is there any dispute defendant had no prior opportunity for cross-examination. We
must therefore determine whether or not this otherwise admissible hearsay was
“testimonial” in nature such that its admission violated defendant’s right of confrontation
under Crawford, supra, 541 U.S. 36.
Deriving “several basic principles” from the United States Supreme Court’s
decision in Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), our
California Supreme Court has explained: “First, . . . hearsay statements that are
testimonial . . . are out-of-court analogs, in purpose and form, of the testimony given by
witnesses at trial. Second, though a statement need not be sworn under oath to be
testimonial, it must have occurred under circumstances that imparted, to some degree, the
formality and solemnity characteristic of testimony. Third, the statement must have been
given and taken primarily for the purpose ascribed to testimony—to establish or prove
some past fact for possible use in a criminal trial. Fourth, the primary purpose for which
a statement was given and taken is to be determined ‘objectively,’ considering all the
circumstances that might reasonably bear on the intent of the participants in the
conversation. Fifth, sufficient formality and solemnity are present when, in a
7
nonemergency situation, one responds to questioning by law enforcement officials, where
deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law
enforcement officials are not testimonial if the primary purpose in giving and receiving
them is to deal with a contemporaneous emergency, rather than to produce evidence
about past events for possible use at a criminal trial.” (People v. Cage (2007) 40 Cal.4th
965, 984, fns. omitted.)
Davis, supra, 547 U.S. 813, involved two companion cases. In the first, “a woman
called 911 seeking help because her boyfriend was in the process of beating her. The
caller did not testify but her hearsay statements to the dispatcher were admitted in Davis’s
subsequent trial. The court concluded that even though the statements were made to a
police employee, and some were made in response to the dispatcher’s questions, the
caller’s statements were not testimonial . . . because ‘the circumstances of [the]
interrogation objectively indicate its primary purpose was to enable police assistance to
meet an ongoing emergency.’ [Citation.]” (People v. Sanchez (2016) 63 Cal.4th 665,
687-688 (Sanchez).) In contrast, in the companion case of Hammon v. Indiana, “police
were sent to a home following a report of domestic violence. They were met by [the
victim], who initially reported that there had been no problem. When interviewed outside
her husband’s presence, she acknowledged he had attacked her. An officer had her ‘ “fill
out and sign a battery affidavit” ’ describing the assault. [Citation.] [The victim]
declined to testify at the subsequent bench trial but the interviewing officer related her
statements and ‘authenticate[d]’ her signed affidavit. [Citation.] The high court
concluded the statements were testimonial hearsay. ‘It is entirely clear from the
circumstances that the interrogation was part of an investigation into possibly criminal
past conduct’ and ‘[t]here was no emergency in progress . . . .’ [Citation.] Although
acknowledging the in-the-field interview was less formal than the station house
questioning in Crawford, the court nevertheless reasoned ‘[i]t was formal enough’ and
‘[s]uch statements under official interrogation are an obvious substitute for live
8
testimony, because they do precisely what a witness does on direct examination; they are
inherently testimonial.’ [Citation.]” (Id. at p. 688.)
Defendant argues what began as questioning to determine whether R. was in need
of emergency assistance in the first portion of the 911 call evolved into an investigation
into possibly criminal past conduct after R. indicated she did not need medical assistance
and informed the dispatcher defendant left her apartment 10 minutes earlier. In making
this argument, he relies on the following statement in People v. Johnson (2010) 189
Cal.App.4th 1216: “Davis strongly suggests that when the victim is questioned by the
police and the assailant has departed or is detained by the police, the emergency, for
purposes of the confrontation clause, is over.” (Id. at p. 1226.) However, the Johnson
court also noted the high court in Davis did not disclose what in its view indicated that
“immediately after Davis left, [the victim] was in a safe place,” and rejected the
defendant’s argument the same conclusion should be drawn when a victim flees from a
violent attack. (Ibid.) Thus, neither Davis nor Johnson holds an emergency situation
necessarily ends immediately upon the departure of the assailant.
The opposite conclusion is implicit in Michigan v. Bryant (2011) 562 U.S. 344
[179 L.Ed.2d 93] (Bryant). “There, in response to a dispatch, officers came upon a badly
injured shooting victim lying in a parking lot. The victim answered questions about the
circumstances, location, and perpetrator of the shooting. The victim died and Bryant was
charged with his murder. The parking lot statements were admitted and the high court
ruled they were not testimonial. Bryant refined the ‘primary purpose’ standard by
emphasizing the test is objective and takes into account the perspective of both questioner
and interviewee: ‘[T]he relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the purpose that reasonable
participants would have had, as ascertained from the individuals’ statements and actions
and the circumstances in which the encounter occurred.’ [Citation.] In concluding the
shooting victim’s statements to police were nontestimonial, Bryant observed that the
9
officers’ questioning of the victim was objectively aimed at meeting an ongoing
emergency. [Citation.] The victim’s responses indicated the shooter’s whereabouts were
unknown and there was ‘no reason to think that the shooter would not shoot again if he
arrived on the scene.’ [Citation.] Finally, the court observed that the circumstances in
which the statements were made were far from formal. The scene was chaotic; the victim
was in distress; no signed statement was produced. [Citations.]” (Sanchez, supra, 63
Cal.4th at pp. 688-689.)
Similarly, in People v. Romero (2008) 44 Cal.4th 386 (Romero), police officers
responding to a dispatch encountered an agitated man who was the victim of an assault
with a small ax. The victim, who was not seriously injured, told the officers that he was
the property manager of a building and caught two men spray painting graffiti on the
building. When he confronted the men, one of them attacked him with the ax, cutting his
finger. The victim then retrieved a gun and fired three rounds in the air, causing the men
to flee. (Id. at pp. 420-421.) Our Supreme Court held statements the victim made to the
officers describing the attack and assisting them in locating the perpetrators were not
testimonial, explaining: “The statements provided the police with information necessary
for them to assess and deal with the situation, including taking steps to evaluate potential
threats to others by the perpetrators, and to apprehend the perpetrators. The statements
were not made primarily for the purpose of producing evidence for a later trial and thus
were not testimonial. The same is true of the statements pertaining to identification. The
primary purpose of the police in asking [the] victim . . . to identify whether the detained
individuals were the perpetrators, an identification made within five minutes of the
arrival of the police, was to determine whether the perpetrators had been apprehended
and the emergency situation had ended or whether the perpetrators were still at large so
as to pose an immediate threat.” (Id. at p. 422.)
Here, as in Bryant and Romero, defendant’s departure from the crime scene does
not entail a conclusion the emergency posed was at an end. Nor does the fact R. declined
10
medical assistance. There is no indication the minor cut the victim in Romero received
required an emergency medical response, but that did not mean the officers questioning
him were not doing so in response to an emergency. Our task on appeal is to determine
from all the circumstances in which the 911 call was made whether the dispatcher’s
questioning was objectively aimed at dealing with an ongoing emergency situation. We
conclude it was. Because defendant does not dispute the first portion of the call was
aimed at this purpose, we limit our discussion to the second portion of the call, in which
R. identified defendant, briefly described what transpired, and provided law enforcement
with information designed to assist them in locating him. Similar information was
provided in both Bryant and Romero.
Moreover, also like Bryant, supra, 562 U.S. 344, notwithstanding R.’s estimate
that defendant left her apartment “[l]ike 10 minutes ago,” and her belief he might have
been heading to Red Bluff, she did not actually know defendant’s whereabouts and there
was no reason to think he would not continue his assault on her if he decided to return.
Indeed, the dispatcher told R. at the end of the call to call back if defendant returned. The
dispatcher also asked R. whether defendant was on drugs and whether he had any
weapons on him or in the car, objectively designed to assess the level of danger defendant
posed to responding officers and the public at large.
Finally, we note the exchange between R. and the 911 dispatcher in this case was
far from formal and was not remotely akin to the official interrogation the high court held
to be an obvious substitute for live testimony in the Davis companion case of Hammon v.
Indiana.
Admission of the second portion of the 911 call did not violate defendant’s right of
confrontation under Crawford.
11
II
Unavailability Determination
Defendant also claims the trial court prejudicially erred and violated his federal
constitutional rights by finding R. was unavailable to testify without requiring her to take
the stand and refuse to do so in front of the jury. We conclude the claim is forfeited
because defendant did not object to the trial court’s procedure for determining R.’s
unavailability. (People v. Smith (2007) 40 Cal.4th 483, 517 (Smith).) Anticipating this
conclusion, defendant alternatively argues his trial counsel provided constitutionally
deficient assistance by failing to so object. We are not persuaded.
A.
Additional Background
During a break in jury selection, an attorney appointed to represent R. informed
the trial court that R. did not wish to testify and would be invoking her privilege against
self-incrimination to avoid doing so. R.’s counsel also informed the trial court that
should R. be granted immunity, she would be relying on Code of Civil Procedure section
1219.5
That afternoon, the trial court questioned R. concerning her decision not to testify.
The court first indicated it would be giving her a few more days to discuss the matter
with her attorney and a victim witness representative. The trial court then asked whether
she intended to invoke her privilege against self-incrimination. R.’s counsel stated she
did; R. confirmed that was true. The trial court asked the prosecutor whether immunity
would be offered. The prosecutor answered in the affirmative and produced an immunity
5 Subdivision (b) of this section provides in relevant part: “Notwithstanding any
other law, a court shall not imprison or otherwise confine or place in custody the victim
of a sexual assault or domestic violence crime for contempt if the contempt consists of
refusing to testify concerning that sexual assault or domestic violence crime.” (Code Civ.
Proc., § 1219, subd. (b).)
12
agreement. The trial court then explained to R., in general terms, what an immunity
agreement was and advised her to review the agreement with her attorney. The trial court
asked, assuming immunity was granted, whether R. still intended to refuse to testify. R.’s
counsel again stated she did. The trial court then explained to R. that although Code of
Civil Procedure section 1219 prevented the court from placing her in custody because of
her refusal to testify, it did not prevent the court from holding her in contempt and
imposing a fine for disobeying a court order to testify. The trial court encouraged R. to
discuss “all of these things” with her attorney and ordered her to return to court the
following Tuesday.
When R. returned to court at the appointed time, the trial court had her sworn as a
witness, outside the presence of the jury, and again questioned her about her decision not
to testify. The trial court first explained it had granted her immunity for her testimony
and asked if she understood the immunity agreement. R. said she did. The trial court
then asked: “Now, having been granted immunity for your testimony, are you willing to
testify in this case?” R. answered: “No, Your Honor.” When the trial court asked her to
provide a basis for her refusal, R. answered: “Because I’ve been with him for ten years
and he’s the father of my kids. And I’m going through my own stuff right now. And my
kids might not have both of us in their lives. So I’m facing my own criminal charges
right now.” R.’s counsel then stated the legal basis for her refusal to testify was Code of
Civil Procedure section 1219. The trial court again explained that provision to R. and
asked whether she understood. R. said she did.
The trial court found R.’s testimony was relevant to the case, ordered her to
testify, and again warned that she would be held in contempt if she refused to do so.
When asked whether she understood, R. said she did. The trial court asked whether she
still refused to testify. R. answered: “Yes, Your Honor.” The court then found R. to be
in direct contempt of court for her willful refusal to testify and imposed a stayed fine of
$500.
13
At this point in the proceedings, the prosecutor asked to be heard and stated on the
record her understanding that R.’s “refusal to testify . . . would have to happen before the
jury so that she would be made unavailable.” The trial court disagreed and stated: “I
think she’s made it clear that she’s both going to refuse to answer my questions here
directly, and she’s also indicated that she’d refuse to answer the questions in front of a
jury. I do intend to make a finding that she is unavailable.” The prosecutor objected to
the procedure, explaining: “I think the People should be given the opportunity to call her
as a witness because sometimes, when called and sworn as a witness in front of a jury,
victims and witnesses might change their mind and decide to testify. [¶] And, for the
record, it was clear [R.] was extremely uncomfortable with her refusal. She became
tearful and cried and looked to the defendant several times. And so I think the fact that
the jurors would not see that refusal is not the procedure contemplated by [Code of Civil
Procedure section] 1219, which, admittedly, there’s no set procedure in there, but my
understanding was that the type of refusal would have to come after she took the stand,
because there’s always the possibility that, once in court and under those circumstances,
the victim may answer a question, if not all questions. So the People are objecting to that
procedure that was taken.”
The trial court asked for the defense position. Defense counsel answered: “I have
nothing to add, Your Honor.” The trial court then declared R. unavailable as a witness
and stated the court’s view that R. had been given “every possible opportunity to consult
with whoever she needs to consult with” and “never wavered at all with regard to her
decision not to testify.”
B.
Analysis
As the foregoing summary reveals, it was the prosecution, not the defense, who
sought to have R.’s unavailability declared in front of the jury. Contrary to defendant’s
argument on appeal, his trial counsel’s statement that she had “nothing to add” does not
14
amount to a joinder in the prosecution’s objection to the trial court’s procedure. “A
defendant may not challenge, for the first time on appeal, the procedure used by the trial
court to find a witness unavailable.” (Smith, supra, 40 Cal.4th at p. 517.) The claim is
therefore forfeited.
Defendant’s alternative assertion that defense counsel provided constitutionally
deficient assistance by failing to object to the trial court’s procedure also fails. “A
criminal defendant’s federal and state constitutional rights to counsel [citations] include
the right to effective legal assistance. When challenging a conviction on grounds of
ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To satisfy
this burden, the defendant must first show counsel’s performance was deficient, in that it
fell below an objective standard of reasonableness under prevailing professional norms.
Second, the defendant must show resulting prejudice, i.e., a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would have been
different. When examining an ineffective assistance claim, a reviewing court defers to
counsel’s reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance. It is particularly difficult to prevail
on an appellate claim of ineffective assistance. On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could be no satisfactory
explanation. All other claims of ineffective assistance are more appropriately resolved in
a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, there may well have been a rational tactical purpose for not objecting to the
trial court’s procedure declaring R. to be unavailable as a witness outside the jury’s
presence. Defendant argues, “there could simply be no satisfactory explanation for the
failure to act” because defense counsel “argued repeatedly that if [R.] did not take the
stand, [defendant’s] constitutional right to present crucial impeachment evidence would
15
be impermissibly curtailed.” However, the fact defendant might have wanted R. to testify
is beside the point. She refused to do so. It does not follow that counsel could not have
rationally concluded that requiring her refusal to happen in front of the jury might benefit
the prosecution rather than defendant. The prosecution certainly thought so. We cannot
conclude a rational defense attorney could not have come to the same conclusion.
Indeed, it is precisely because a witness’s refusal to testify in front of the jury may, in
certain circumstances, unduly prejudice a criminal defendant that our Supreme Court has
“noted that ‘ “it is the better practice for the court to require the exercise of the privilege
out of the presence of the jury.” ’ [Citations.]” (Smith, supra, 40 Cal.4th at p. 517.)
Because the record does not affirmatively disclose defense counsel had no rational
tactical purpose for not objecting to the trial court’s procedure, we cannot reverse for
ineffective assistance of counsel.
III
Exclusion of Defense Evidence
Defendant further asserts the trial court prejudicially abused its discretion and
violated his federal constitutional rights by excluding evidence R. failed a drug screening
test several hours before she made the 911 call and also admitted to law enforcement,
almost eight months after the assault in this case, that she possessed heroin for sale. He is
mistaken as to both items of evidence.
A.
Additional Background
The assault in this case occurred on November 18, 2016. Earlier in the day, at
2:30 p.m., R. submitted to a mandatory drug screening test. The results revealed the
presence of an opiate in her system. Based in part on these test results, defendant moved
in limine to exclude the call she made to 911 after the assault. Defendant also relied on
an incident that happened on July 12, 2017, almost eight months after the assault in this
case, in which R. was contacted by law enforcement during an investigation into reported
16
drug sales. R. was arrested and apparently admitted possessing heroin for personal use
and for purposes of sale. Defendant argued these facts rendered her statements in the 911
call unreliable. The trial court admitted the 911 call over defendant’s objection.
Thereafter, defendant moved to introduce the results of the drug screening test “for
impeachment purposes, which would show that the -- that [R.] could have been impaired
on that day and that she did test positive for opiates.” The prosecutor objected, arguing,
“this is just a screening” without “confirmation of the results and what those might
mean.” The trial court ruled in favor of the prosecution, explaining: “The screening test
for whether or not there is a presence of a drug, positive or negative, the screening is not
going to provide evidence of the effect of the drug on the person at that particular time.”
The trial court excluded the evidence concluding the prejudicial nature of the evidence
outweighed its minimal probative value, as the trial court put it, “it doesn’t really tell us
much about anything except for, on the day in question, she may have used drugs either
that day or the days prior depending on what the half-life of the particular drug she’s
using is.”
Defendant also sought to introduce evidence of R.’s recent arrest for possession of
heroin for sale. Defense counsel argued: “If [R.] does not testify at this trial, the jury
won’t have her in front of them to determine her credibility or demeanor. The fact that
she’s regularly using a controlled substance as strong as heroin seems to factor into her
current credibility in this case as well. [¶] And so at this point, the information that we
have is that there was an arrest and conviction for possession of heroin for sales in
2016,[6] and now there’s ongoing conduct, which I think speaks to her credibility as a
whole, including the incident in question on November 18th where the defense has
evidence that [R.] had a positive drug test for opiates. [¶] And so I think the fact that
6 The trial court ruled evidence of this conviction was admissible.
17
there is an overarching pattern of heroin use, heroin sales speaks directly to her
credibility. . . . That the fact that she has a recent arrest is relevant in multiple, different
ways, and one of which is that it’s a conduct for moral turpitude.”
The trial court ruled evidence of R.’s recent arrest for possession of heroin for sale
was inadmissible “under [section] 352” because “we would be getting too far afield,
particularly because this arrest happened after the incident itself.” Defense counsel then
asked the trial court to allow her to have “the statements [R.] made to the officers
regarding sales and use admitted as a declaration against penal interest.” The trial court
ruled these statements would also be excluded under section 352 unless “there’s other
evidence that seems to lead us more towards that road a little bit . . . .”
B.
Analysis
“No evidence is admissible except relevant evidence” (§ 350), and “[e]xcept as
otherwise provided by statute, all relevant evidence is admissible.” (§ 351.) Evidence is
relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action,” including “evidence relevant to the
credibility of a witness.” (§ 210.) However, “[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Section
352 “permits the trial judge to strike a careful balance between the probative value of the
evidence and the danger of prejudice, confusion and undue time consumption,” but also
“requires that the danger of these evils substantially outweigh the probative value of the
evidence.” (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Tran (2011) 51
Cal.4th 1040, 1047.)
18
1. Drug Screening Test
Defendant argues, “[R.’s] positive drug test hours before []her 911 call was
relevant to suggest that she was under the influence when she made the call” and
therefore admissible to impeach her ability to perceive or recollect events. However, as
the trial court correctly observed, the positive drug test was only a screening test, and
therefore did not reveal the amount of opiate in R.’s system on the day of the assault.
Without knowing the amount of opiate in her system, there is no way of knowing whether
R. was under the influence when she made the call. Moreover, to the extent the screening
test tended to demonstrate R. was a habitual user of opiates, “[e]vidence of habitual
narcotics . . . use is not admissible to impeach perception or memory unless there is
expert testimony on the probable effect of such use on those faculties. [Citations.]
Defendant offered no such evidence; the court’s ruling was proper.” (People v. Balderas
(1985) 41 Cal.3d 144, 191-192.)
We also reject defendant’s assertion the trial court’s ruling violated section 1202.
That section provides, in relevant part: “Evidence of a statement or other conduct by a
declarant that is inconsistent with a statement by such declarant received in evidence as
hearsay evidence is not inadmissible for the purpose of attacking the credibility of the
declarant though he is not given and has not had an opportunity to explain or to deny
such inconsistent statement or other conduct. Any other evidence offered to attack or
support the credibility of the declarant is admissible if it would have been admissible had
the declarant been a witness at the hearing.” (§ 1202, italics added.)
Relying on the italicized portion of the section, defendant takes issue with the trial
court’s hypothetical statement that if R. testified, and if she denied having used opiates
“in the recent past,” then “that is a whole other issue.” Defendant argues this statement
indicates the trial court used “a different standard for impeaching in-court testimony as
opposed to out-of-court statements” in violation of section 1202. Not so. In the trial
court’s hypothetical, the positive drug screening test would have directly impeached R.’s
19
denial of recent drug use. The same would be true if R. had made an out-of-court
statement denying such drug use. In both cases, the positive screening test would have
been admissible. But R. did not make such an out-of-court statement. Thus, the more
analogous in-court hypothetical would be if R. testified and was not asked about recent
drug use. In that situation, as here, the positive screening test would not be admissible
for the reasons expressed above. In other words, the fact the screening test would be
admissible if R. denied recent drug use, whether in-court or out-of-court, does not mean
the trial court erred in determining the test was inadmissible, without such a denial, to
impeach R.’s memory or perception. It was not admissible for that purpose “unless there
is expert testimony on the probable effect of such use on those faculties.” (People v.
Balderas, supra, 41 Cal.3d at p. 191.) The trial court did not violate section 1202.
2. R.’s Admission to Possessing Heroin for Sale
Turning to R.’s admission to possessing heroin for sale nearly eight months after
the assault in this case, defendant argues the trial court “should have weighed [his]
constitutional rights to present a complete defense more heavily” in conducting the
balancing required by section 352. We are not persuaded.
Although “it is undeniable that a witness’[s] moral depravity of any kind has some
‘tendency in reason’ [citation] to shake one’s confidence in [her] honesty” (People v.
Castro (1985) 38 Cal.3d 301, 315), and possession of heroin for sale is conduct involving
the kind of moral turpitude relevant to a witness’s credibility, even though “the trait
involved is not dishonesty but, rather, the intent to corrupt others” (id. at p. 317, fn.
omitted), trial courts nevertheless possess broad discretion under section 352 to exclude
such evidence in individual cases. (People v. Wheeler (1992) 4 Cal.4th 284, 295.)
“When exercising its discretion under [this section], a court must always take into
account, as applicable, those factors traditionally deemed pertinent in this area.
[Citations.] But additional considerations may apply when evidence other than felony
convictions is offered for impeachment. . . . [I]mpeachment evidence other than felony
20
convictions entails problems of proof, unfair surprise, and moral turpitude evaluation
which felony convictions do not present. Hence, courts may and should consider with
particular care whether the admission of such evidence might involve undue time,
confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn.
omitted; People v. Chatman (2006) 38 Cal.4th 344, 373.)
Here, R. was not convicted of possession of heroin for sale. She apparently
admitted to possessing the substance for this purpose during an investigation into drug
sales at her residence. Apparently, there was also another man involved. The record
does not reveal the reason R. was not prosecuted for this crime. It is entirely possible the
district attorney’s office had doubts the case could be proved beyond a reasonable doubt
notwithstanding R.’s admission. Without speculating about facts not in the record, it is at
least possible other information gathered during the investigation cast doubt upon R.’s
admission to being the one with intent to sell the heroin found at her residence that day.
Thus, allowing evidence of R.’s admission would have necessitated inquiry into other
details of the investigation, requiring a mini-trial into whether or not R. in fact possessed
heroin for purposes of sale. We cannot conclude the trial court abused its discretion in
determining this would have required an undue consumption of time when compared to
the limited probative value of such an admission. This is because even if the jury
concluded R. possessed the heroin for sale, such an offense is not directly probative of
dishonesty. Instead, the jury would have to infer a willingness to lie from the general
intent to corrupt others inherent in selling heroin. Such an inference is one the law
allows. But it is not particularly strong evidence R. was untruthful with the 911 operator,
almost eight months earlier, when she reported the assault.
In sum, the trial court neither abused its discretion nor violated defendant’s federal
constitutional rights by excluding either R.’s positive drug screening test or her admission
to possessing heroin for sale.
21
IV
Cumulative Prejudice
Having rejected each of the foregoing claims of error, we must also reject
defendant’s assertion the cumulative prejudicial effect of these claims of error requires
reversal.
V
Prior Conviction Finding
Finally, defendant contends the trial court violated his constitutional right to jury
trial by finding he was previously convicted of assault with a deadly weapon as opposed
to assault by force likely to produce great bodily injury. We disagree with this contention
as well.
A.
Additional Background
In November 1997, defendant was charged with “assault with a deadly weapon
and by means of force likely to produce great bodily injury, in violation of Penal Code
section 245[, subdivision (a)(1)].”7 (Italics added; some capitalization omitted.) The
complaint specified defendant committed “an assault . . . with a deadly weapon, to wit,
Knife, and by means of force likely to produce great bodily injury.” (Italics added.) The
complaint also specified the offense was a serious felony within the meaning of Penal
Code section 1192.7, subdivision (c).
7 At the time, the statute criminalized “assault upon the person of another with a
deadly weapon . . . or by any means of force likely to produce great bodily injury” in
subdivision (a)(1). (Former Pen. Code, § 245, subd. (a)(1); Assem. Bill No. 1344 (1993-
1994 Reg. Sess.) § 1.) The current version of the section criminalizes assault with a
deadly weapon in subdivision (a)(1) and assault by means likely to produce great bodily
injury in subdivision (a)(4). (Assem. Bill No. 1026 (2011-2012 Reg. Sess.) § 1.) The
amendment was “nonsubstantive.” (Legis. Counsel’s Dig., Assem. Bill No. 1026 (2011-
2012 Reg. Sess.) Stats. 2011, Summary Dig., ch. 183.)
22
The same month, defendant pleaded guilty to the above-described offense, listed
in the plea form as “PC 245(A)(1) ASSAULT WITH A DEADLY WEAPON.” In
March 1998, defendant was sentenced to serve two years in state prison. The abstract of
judgment also lists defendant’s conviction as “ASSLT DEADLY WEAPON.”
Without going through the procedural events in case No. 15F5369, we note the
complaint in that case, subsequently deemed an information, alleged defendant was
previously convicted of a strike offense, specifically the assault with a deadly weapon to
which defendant pleaded guilty in 1997. Defendant ultimately pleaded no contest to one
of the counts charged in case No. 15F5369 in exchange for dismissal of the remaining
counts. A court trial on the prior strike allegation was continued at defendant’s request in
order to facilitate a potential “global resolution” of defendant’s cases, i.e., case Nos.
15F5369 and 16F2004.8
Thereafter, while released on his own recognizance pending resolution of these
cases, defendant committed the assault on R. charged in case No. 17F1780. As
previously described, defendant was convicted by jury of willfully inflicting corporal
injury on a former cohabitant and admitted committing this offense while released on bail
or on his own recognizance in the other cases. The prior assault with a deadly weapon
was again alleged as a prior strike offense in case No. 17F1780.
The trial court consolidated resolution of the prior strike allegation in case Nos.
15F5369 and 17F1780. Following a court trial on the allegation, the trial court found the
allegation to be true.
8 As previously mentioned, defendant did not appeal from the latter case.
23
B.
Analysis
“The People must prove all elements of an alleged sentence enhancement beyond
a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “On review, we
examine the record in the light most favorable to the judgment to ascertain whether it is
supported by substantial evidence. In other words, we determine whether a rational trier
of fact could have found that the prosecution sustained its burden of proving the elements
of the sentence enhancement beyond a reasonable doubt.” (People v. Delgado (2008) 43
Cal.4th 1059, 1067 (Delgado).)
As a preliminary matter, we note Penal Code section 1192.7, subdivision (c)(23),
lists “any felony in which the defendant personally used a dangerous or deadly weapon”
as a serious felony offense. (Italics added.) The same paragraph existed at the time of
defendant’s prior offense. (Compare Pen. Code, § 1192.7, subd. (c) with Sen. Bill No. 60
(1993-1994 Reg. Sess.) § 18.) However, “[i]n 2000, the voters adopted Proposition 21,
which, among other things, added subdivision (c)(31) to [Penal Code] section 1192.7.
Under this provision, all assaults with deadly weapons are serious felonies,” whether or
not the defendant personally used the deadly weapon. (Delgado, supra, 43 Cal.4th at
p. 1067, fn. 3.) Assault by means likely to produce great bodily injury is not listed as a
serious felony offense.
Where, as here, “a defendant’s current offense was committed on or after the
effective date of Proposition 21, a determination whether the defendant’s prior conviction
was for a serious felony within the meaning of the three strikes law must be based on the
definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on
March 8, 2000,” i.e., the effective date of Proposition 21. (People v. James (2001) 91
Cal.App.4th 1147, 1150.) Accordingly, we must determine whether the record contains
sufficient substantial evidence to support the trial court’s determination that defendant’s
24
prior conviction was for assault with a deadly weapon as opposed to assault by means
likely to produce great bodily injury.
In Delgado, supra, 43 Cal.4th 1059, our Supreme Court explained: “A common
means of proving the fact and nature of a prior conviction is to introduce certified
documents from the record of the prior court proceeding and commitment to prison,
including the abstract of judgment describing the prior offense. [Citations.] [¶] ‘[The]
trier of fact is entitled to draw reasonable inferences from certified records offered to
prove a defendant suffered a prior conviction . . . .’ [Citations.] ‘[O]fficial government
records clearly describing a prior conviction presumptively establish that the conviction
in fact occurred, assuming those records meet the threshold requirements of admissibility.
[Citation.] Some evidence must rebut this presumption before the authenticity, accuracy,
or sufficiency of the prior conviction records can be called into question.’ [Citation.] [¶]
Thus, if the prosecutor presents, by such records, prima facie evidence of a prior
conviction that satisfies the elements of the recidivist enhancement at issue, and if there is
no contrary evidence, the fact finder, utilizing the official duty presumption, may
determine that a qualifying conviction occurred. [Citations.]” (Id. at p. 1066.)
“However,” the court continued, “if the prior conviction was for an offense that can be
committed in multiple ways, and the record of the conviction does not disclose how the
offense was committed, a court must presume the conviction was for the least serious
form of the offense. [Citations.] In such a case, if the statute under which the prior
conviction occurred could be violated in a way that does not qualify for the alleged
enhancement, the evidence is thus insufficient, and the People have failed in their
burden.” (Ibid.)
Because the abstract of judgment in Delgado, part of the record of conviction,
clearly and unambiguously identified the defendant’s prior offense as, “ ‘Asslt w
DWpn,’ ” and there was no dispute that notation stood for “ ‘assault with a deadly
weapon,’ ” our Supreme Court concluded: “The People therefore presented prima facie
25
evidence, in the form of a clear, presumptively reliable official record of defendant’s
prior conviction, that the conviction was for the serious felony of assault with a deadly
weapon. Defendant produced no rebuttal evidence. Utilizing the presumption of official
duty, and drawing reasonable inferences from the official record, the trial court, as a
rational trier of fact, could thus properly find beyond reasonable doubt that a prior serious
felony conviction had occurred.” (Delgado, supra, 43 Cal.4th at pp. 1063, 1070, fn.
omitted.)
Similarly, here, the abstract of judgment lists defendant’s conviction as, “ASSLT
DEADLY WEAPON.” This is a clear and unambiguous identification of defendant’s
offense as assault with a deadly weapon, a strike offense following passage of
Proposition 21. Moreover, as previously mentioned, the charging document also clearly
indicated defendant was charged not with assault with a deadly weapon or by means
likely to produce great bodily injury, but was instead charged with “assault with a deadly
weapon and by means of force likely to produce great bodily injury,” and further
specified defendant used “a deadly weapon, to wit, Knife.” (Italics added; some
capitalization omitted.) Defendant also pleaded guilty to “ASSAULT WITH A
DEADLY WEAPON.” There is nothing ambiguous about which form of the offense
defendant committed.
Nevertheless, defendant argues we should not follow Delgado because that case
“is no longer good law” following Descamps v. United States (2013) 570 U.S. 254 [186
L.Ed.2d 438] (Descamps), Mathis v. United States (2016) ___ U.S. ___ [136 S.Ct. 2243;
195 L.Ed.2d 604] (Mathis), and People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). We
disagree.
In Gallardo, our Supreme Court explained that Descamps and Mathis “make clear
that when the criminal law imposes added punishment based on findings about the facts
underlying a defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a
jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable
26
doubt.’ [Citation.] While a sentencing court is permitted to identify those facts that were
already necessarily found by a prior jury in rendering a guilty verdict or admitted by the
defendant in entering a guilty plea, the court may not rely on its own independent review
of record evidence to determine what conduct ‘realistically’ led to the defendant’s
conviction.” (Gallardo, supra, 4 Cal.5th at p. 124.) There, in determining whether or not
the defendant’s prior assault conviction qualified as a serious felony, “the trial court
examined the preliminary hearing transcript from the underlying proceeding,” in which
“the victim testified that defendant had ‘tried to scare me with the knife,’ ‘push[ed] me
aggressively to get me away from the car,’ and ‘punched me on the face, on the forehead
. . . .’ Relying on this testimony, the trial court concluded that defendant had, in fact,
been convicted of ‘assault with a deadly weapon; to wit, knife.’ ” (Id. at p. 126.)
Our Supreme Court held this use of the preliminary hearing transcript violated the
defendant’s Sixth Amendment right to a jury trial and explained: “The trial court’s role
is limited to determining the facts that were necessarily found in the course of entering
the conviction. To do more is to engage in ‘judicial factfinding that goes far beyond the
recognition of a prior conviction.’ ” (Gallardo, supra, 4 Cal.5th at p. 134, quoting
Descamps, supra, 133 S.Ct. at p. 2280.)
Here, in stark contrast, the trial court relied on the abstract of judgment, the
complaint, and defendant’s admission on the plea form to committing an “ASSAULT
WITH A DEADLY WEAPON.” Defendant has not persuaded us that by doing so the
trial court ran afoul of Gallardo, Descamps, or Mathis. Indeed, in Gallardo, our
Supreme Court “differentiated the preliminary hearing transcript from the pretrial
documents that could be relied upon such as indictments and jury instructions because a
‘sentencing court reviewing that preliminary transcript has no way of knowing whether a
jury would have credited the victim’s testimony had the case gone to trial.’ [Citation.]
‘[I]n the absence of any pertinent admissions, the sentencing court can only guess at
whether, by pleading guilty to a violation of Penal Code section 245, subdivision (a)(1),
27
[the] defendant was also acknowledging the truth of the testimony indicating that she had
committed the assault with a [deadly weapon].’ [Citation.]” (People v. Hudson (2018)
28 Cal.App.5th 196, 206-207, italics added.) The trial court’s finding in this case is
supported by the abstract of judgment, the complaint, and defendant’s admission to
committing an “ASSAULT WITH A DEADLY WEAPON.” We cannot conclude the
trial court violated his Sixth Amendment right to jury trial by relying on these documents.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
28